Towards Psychological Theory of International Law
Strangely enough, in the doctrine of International Law there is no yet adequately developed psychological theory of International Law, even though one of the major sources of this law – international custom – contains, as widely accepted, psychological element in the form of opinio juris.In my view, psychological theory of International Law could be developed on the basis of methodology worked out by famous creator of psychological school of law Leon Petrazycki. According to him, law is a content of human psyche (mentality), i.e., “legal emotion” (impulsion) in terms of psychological school of Leon Petrazycki. Law as specific psychological experience has bilateral, “attributive-imperative” character. As Aleksander W. Rudzinski explains Petrazycki’s concept of legal “emotions”, these emotions are “complex psychological imperative-attributive experiences having a double passive (stimulus) and active (reaction) nature, where the image of an observed or imagined action releases an emotional repulsion or attraction and a conviction that actor A is obliged to behave in a certain manner (duty impulse) and that such behavior of A is due to person B as his right. Persons A and B may be both extraneous and observed or imagined by the person experiencing a legal emotion or the experiencing person may be one of the two (A or B). The kind of action or behavior may be physical or even psychical in nature”.At the same time we cannot understand psychological approach to law without concept of legal signs and symbols (legal semiotics). From the standpoint of Petrazycki’s theory, legal symbols are non-psyche signs of legal character by means of which legal psyche is getting objectified and symbolized. Legal signs are sort of carriers conveying legal emotions. From this perspective law is studied by legal psychology and is congruent with natural law theory, which is understood as theory of human’s nature, i.e., psychological nature of human being. It is also noteworthy that psychology of human being is embedded in “collective sub-consciousness”, which, according to Carl Gustav Jung, contains archetypes, some of which may serve as a basis for legal psychology.Applying this methodology to International Law we might argue that this kind of law is made up of two elements: 1) specific international legal “emotions” (impulsions); 2) peculiar international legal signs and symbols.This statement might serve as a foundation for further development of psychological theory of International Law.
Wednesday, December 15, 2010
Oleksandr (Alexander) Merezhko: Towards a Psychological Theory of International Law
Oleksandr (Alexander) Merezhko, Head, International Law, University of Economics and Law, Kyiv, Ukraine is currently visiting the United States as a Fulbright-Kennan Scholar at the Kennan Institute, Woodrow Wilson International Center for Scholars. Professor Merezhko more and more interested in psychological theory of law developed by Leon Petrazycki and his followers. See, e.g., Leo Petrazycki, in Law and Morality Transaction Publishers (November 30, 2010). Their work is understood as a forerunner or harbinger of today's more fashionable versions of sociology of law. In an editorial review of Law and Morality for which he provides an introduction, Professor A. Javier Treviño of Wheaton College explains: "Petrazycki formulates a theory of law around five conceptual themes: anti-formalism, imperative-attributive legal relationships, law’s functional control, law’s subjective reality and morality. Petrazycki presents the two ways by which law coordinates and regulates social conduct as through its distributive and organizing functions. Law and Morality has a basic objective: to analyze interrelations between positive and intuitive law." Id., editorial review.
Professor Merezhko believes that Petrazycki is worth reviving. The avenue for that revival may lie through the work of George Guins who initially (after Revolution of 1917) fled to Kharbin (China) where created Russian legal faculty and later on came to the US where he lectured at U.C. Berkeley. His work, like that of Petrazycki, remains less well known to English speaking audiences.
Professor Merezhko was kind enough to provide some thoughts on his project in the short essay set out below.