Abstract

THE INFLUENCE OF LEON PETRAŻYCKI ON POLISH THEORY AND SOCI¬OLOGY OF LAW SUMMARY This book is a study of the influence of Leon Petrażyc¬ki's (1867-1931) thought on Polish theory and sociology of law, with some further con¬sideration of that influence on other branches of the humanities (particularly methodolo¬gy). While not well-known in the Western world today, Petrażycki's contributions to legal science at the turn of this century were recognized both in Poland and throughout Europe. Such prominent legal scholars as P. A. Sorokin, N. S. Timasheff and G. Gurvitch were among Petrażycki's stu¬dents, and they consciously sought to build upon their master's thought. Petrażycki's psychological theory of law and the state was related to his theory of morality: law and morality both constitute ethical phenomena. His theory, based on new methodological and psychological foundations, rejects tra-ditional concept of the law, which he called „law in the juristic sense” and discarded it as inadequate for legal theory, however useful for legal dog¬matics. He claimed instead that law exists in the individual psyche (psycholo¬gism) and law is created not only by the state but by other groups and in¬dividuals (anti-statism/legal pluralism). According to Petrażyc¬ki, law is any psychic phenomenon which contains the imperative attributive emotion. Morality, on the other hand, is only imperative. Law creates rights and duties, which are mutually correlative. Morality creates only duties. Petrażycki's theory understands the law not as an „ideal ought”, constituting the meaning of the legal norms, but as a psychical phenomenon, which can be studied empirically, especially introspectively. Petrażycki developed his theory as the basis for a science of legal policy at the beginning of his academic career in late nineteenth century Berlin. Unlike his contem¬poraries, Petrażycki argued that the main role of the law was not the resolution of conflicts but the education and motivation of individuals and of societies. Petrażycki was responsible for initiating discussion not only about the ontology of law but also its epistemology and the methodology of legal sciences. During the first years of the twentieth century Polish legal literature paid scant attention to Petrażycki's thought. This was in marked contrast to the situation in Germany and then in Russia, where Petrażycki's ideas were widely discussed. The situation in Poland changed immensely, however, during the interwar period. Petrażycki came in 1918 from Petersburg to the reborn Poland to take up the chair of sociology at the University of Warsaw's Faculty of Law, a chair which had been created for him ad personam. During this period, Petrażycki's thought enjoyed its strongest position in Warsaw. Warsaw became the base not only for the scholar himself but for two of his most active followers: E. Jarra (who held the chair of legal theory) and H. Piętka (who diligently transcribed Petrażycki's lectures and seminars). Not¬withstanding of certain Jarra's concessions to legal positivism he - and even more Piętka - drew psychological elements from Petrażycki's theory. Other contemporary scholars who followed Petrażycki's ideas included W. Makowski and W. Komarnic¬ki. After Petrażycki committed suicide his followers established the Leon Petrażycki Society, which was very active until World War II. President J. Finkelkraut was instrumental in publishing several of Petrażycki's manuscripts as well as in the translation of Petrażycki's works into Russian. The Leon Petrażycki Sociological Student Association at the University of Warsaw was also instrumental in populariz¬ing the ideas of its patron. Petrażycki's theories were propagated, first in Wilno (1921-29) and then in Kra¬ków by his Petersburg student Jerzy Lande. Lande's apologetic efforts were sig¬nificant because, for some obscure reason, Petrażycki eschewed written polemics with his adversaries. His opponents, like Cz. Znamierowski of the University of Poznań, accused Petrażycki of psychologism, subjectivism, social atomism, etc. Lande recognized the exaggerations in his master's teachings but he also stressed the multi-plane character of law which Petrażycki did not develop fully. Owing to Lande, Petrażycki's ideas spread in the academic circles of Wilno and Kraków. At the University of Wilno Petrażycki left his mark on legal scholars like B. Wróblewski, S. Frydman and J. Zajkowski. While fascinated by the psychological theory of law in the early years of their academic careers, these thinkers used Petrażycki's thought as a point of departure from which they crystallized their own ideas, often developed a contrario. Lande's efforts on behalf of Petrażycki bore fruit at the Jagiellonian University in the work of J. Sztykgold (who sought to rebuild Petrażyckian theory more coherently with reference towards positive law) and W. Steinberg. Petrażycki's thought found some sympathizers at the Catholic University of Lublin (where theory of law was taught in three faculties!), but the majority of legal scholars at that time in Lublin represented other schools of thought. Interest in Petrażycki's ideas in Lwów was minimal. World War II proved very tragic for Petrażycki's thought. A majority of his Warsaw admirers - young potential followers as well as eminent scholars who ad¬hered to some of his theses perished. Despite that tragedy, a few new works, building on Petrażycki's thought, were published: apart from later works by Lande and Piętka, other authors included S. Hessen, G. L. Seidler, R. Szydłowski, and A. W. Ru¬dziński (Steinberg). Unfortunately, with the advent of the Stalinist period in Com¬munist Poland these works were passed over in silence. Indeed, some admirers like Seidler radically changed positions and severely criticized Petrażyckian theory (as well as attempts to „build bridges” between it and Marxism). After the demise of Stalinism in 1956, holistic critiques of Petrażycki's thought were replaced in Poland by the use of so-called „critical analysis” as employed by Marxist theoreticians. Critical analysis in the post-war period in Poland aimed at discovering the positive and negative elements of Petrażycki's theory and derived some stimuli for its own research from this criticism. One can call it a selective reception of this theory. It was due to Lande's disciples (K. Opałek, J. Wróblewski, M. Borucka-Arctowa, A. Podgórecki, G. L. Seidler, W. Lang) that these ideas acquired a permanent place in Polish jurisprudence. Although they were „renegades” as regarded Lande's (and, therefore, Petrażycki's) views, most of them declaring themselves Marxists, nevertheless, they frequently returned to their source for guidance and inspiration. They devoted much attention to analysis of the psycholog¬ical theory of law and moreover in their writings they often sought to revert to Petrażycki's thought and to use them as points of departure in their studies. This tendency was especially prominent in the period 1956-70, when the principal works of Petrażycki were translated into Polish under the patronage of the Polish Academy of Sciences. At the same time the first and only one monograph on Petrażyckis theory was published by J. Kowalski. Works published at that time had a fundamental impact upon the development of Polish theory and sociology of law. The most promi¬nent connections with the Petrażyckian tradition among the writers of that time were Opałek (representing theoreticians of law) and Podgórecki (representing sociologists of law). The second part of the book focuses on ideas. It examines how Petrażycki's ideas functioned (and continue to function) in Polish theory and sociology of law. It probes how these ideas have stimulated discussions among lawyers, philosophers, and sociologists and the ways in which the Petrażyckian heritage have been developed, refined and modified by its followers. Particular attention is afforded to how Petrażycki's concept of law has inspired Polish jurisprudence. One conclusion to be drawn was that theoreticians of law used the vertical dimension of Petrażycki's concept, concerning the ontological status of law (psychologism), while sociologists of law invoked the horizontal dimension, concerning its extent (anti-statism/legal pluralism). Lande's Marxist pupils developed his interpretations of Petrażycki's thought, especially about the multi-plane character of law. A. Podgó¬recki et al., on the other hand, accepted that view that apart from „official law” one can also observe „unofficial law”, both of which can be experienced as „positive law” or as „intuitive law”. Theoreticians of law as well as sociologists of law, on the other hand, delved into research on legal consciousness and the operation of law. Both camps also continued Petrażycki's discussion about legal policy: the former group connected the idea, like Petrażycki, with a theory of progress (this time a Marxist one), while Podgórecki et al. accepted this idea in an axiologically neutral, minimalistic interpretation. This work also seeks to compare and contrast Petrażyckian and Marxist theories of law. It describes the former as ontological monism (psychologism) and legal pluralism. It describes the latter, on the contrary, as ontological pluralism (multi-plane character) and legal monism. It also traces the continuity of Petrażyckian anti-statism in such sociologically-oriented sociologists of law as Podgórecki and his collaborators K. Frieske, A. Kojder, J. Kurczewski and J. Kwaśniewski. Part Three takes into account the results of Parts One and Two to try and answer whether one can talk about a Petrażyckian school in Polish thought. The answer is yes, although at the present time the term can only describe the (Neo)Petrażyckian school of Podgórecki et al. Its members generally accepted Petrażycki's methodology and his anti-state concept of the law, even while interpreting it rather in sociological than psychological categories. Since Podgórecki left Poland in the late seventies A. Kojder and J. Kurczewski have played a special role in passing on the Petrażyckian tradition.