Theory of Custom, Dogmatics of Custom, Policy of Custom: On the Threefold Approach of Polish‐Russian Legal Realism

• Published date: 01 March 2017
• Date: 01 March 2017
• DOI: http://doi.org/10.1111/raju.12137
• Author: Elena Timoshina,Edoardo Fittipaldi

Theory of Custom, Dogmatics

of Custom, Policy of Custom:

On the Threefold Approach

of Polish-Russian Legal Realism

EDOARDO FITTIPALDI and ELENA TIMOSHINA*

Abstract. Proceeding from the insights of Petra_

zycki, Polish-Russian legal realists

(PRRs) distinguished legal theory, legal dogmatics, and legal policy. Legal theory

describes legal phenomena in a value-free way and formulates causal laws concern-

ing those phenomena. Legal dogmatics and legal policy are, by contrast, value-laden

sciences involving the subject’s—i.e., the scientist’s—own attitudes toward existing or

imagined phenomena: Dogmatics evaluates behaviors based on the subject’s adop-

tion of given normative sources (NSs) as binding, while legal policy evaluates the

effects produced by given NSs based on causal laws and on the subject’s goals (for

Petra_

zycki, these goals come down to that of fostering love, or benevolence). PRRs

then conceptualize custom as a representation of people behaving in a certain way (R

c

):

We have a custom on the threefold condition that (a) R

c

is believed true by a given X,

(b) R

c

causes the existence of a given normative psychical experience (NPE) in X, and

(c) X expressly refers to—or would refer—to R

c

in justifying an NPE. PRRs use the

term customary law to refer to legal experiences (i.e.,NPEs involving a sense of entitle-

ment) caused and justified by an R

c

. From a theoretical perspective, both the subject’s

adoption of custom as a binding NS and its truth are irrelevant. It is only the pres-

ence of a customary NPE in the X under study that matters. From a dogmatic per-

spective, by contrast, what matters is (a) whether the dogmatician—qua subject—

adopts custom as a binding NS, (b) whether it is true that people behave in a given

way b

w

,and(c)whetherb

w

resembles the behavior that is deontically qualified in the

norm under dogmatic evaluation. Finally, from a legal-political viewpoint, PRRs

hold that customary law in modern societies, owing to its conservative nature,

should be eradicated for the goal of removing inequalities andfostering benevolence.

1. Introduction

In this article we shall present and discuss the conceptualization of custom (obyc

ˇaj,

zwyczaj) proposed and developed within the tradition of Polish-Russian legal

* Edoardo Fittipaldiis the author of Sections 2 and 3. Elena Timoshina is the authorof Sections

1and 4.

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Ratio Juris. Vol. 30 No. 1 March 2017 (105–122)

realism—a tradition initiated by Petra_

zycki (1867–1931) and developed by his most

faithful pupils (e.g., Jerzy Lande and Max Lazerson).

In Section 2 of this article we shall present Petra _

zycki’s psychological concept of

custom as a mental object, and briefly show the role that this concept plays within

his theory

1

of law.

2

In Section 3, we shall present Leon Petra _

zycki’s and Jerzy

Lande’s legal-dogmatic concept of custom, namely, the concept of custom chiefly

used by judges and other officials, as well as by legal scholars loyal to certain ulti-

mate normative sources, or dogmata, relevant for certain social organizations

(especially, the state). Finally, in Section 4, we shall present Petra_

zycki’s ideas as to

the way “those who have in their hands legislation”—to use a Petra_

zyckian

phrase—should deal with customary legal phenomena.

In order to understand this threefold approach to custom, the reader should bear

in mind that Petra_

zycki distinguished between (1) theoretical

3

judgments and (2)

practical judgments. Theoretical sciences are constituted exclusively of theoretical

judgments, whereas practical sciences are not. Further, with regard to practical judg-

ments Petra_

zycki made a further distinction between (2.1) teleological judgments and

(2.2) normative judgments. The differentia specifica of teleological judgments as against

normative judgments is that teleological judgments are based on causal laws,

whereas normative judgments are not. In turn, normative judgments are divided into

(2.2.1) intuitive-normative judgments and (2.2.2) positive-normative,ordogmatic,judg-

ments—these latter two terms being synonymous in Petra_

zycki. The differentia

1

Throughout this textwe shall be using the term theory (teorija/teoria) in Petra_

zycki’s sense. To

understand the way he used this word, we must first recall that Petra_

zycki set up a contrast

between subjective-relational judgments (in which the individual producing the judgment

expresses heror hisown atti tude towards the logical subjectof the judgment) and objective-cogni-

tive judgments (inwhich the individual does not express any attitude towards the logicalsubject

of the judgment). The term theory in a broad sense was used by Petra_

zycki to refer to all sorts of

objective-cognitive judgments. As for the term theory in a strict sense (or, simply, theory), it was

used by Petra _

zycki to refer solely to objective-cognitive judgments concerning classes of mental

objects, namely,judgments having the following form: All objects having the feature a(i.e.,all the

members in theclass A, the membership in which is intensionally definedby having the feature

a)also have the featureb. According to Petra_

zycki, the connectionbetween having aand having b

may be a purelylogical one (as, according to him,is the case in mathematics) or a causalone (as,

according to him, is the case in empirical sciences). As for the classes which may be the logical

subject of a judgment, Pe tra_

zycki distinguished fantastic classes from realistic classes. Fantastic

classes are definedby the fact that none of the objects which are members in them exists in the

reality external to the subject who thinks of them (triangles are Petra_

zycki’s example). On the

other hand, realistic classes are defined by the fact that at least some of the objects which are

members in themdo or may exist, not only in the psychologicalreality of the subject who thinks

of them, but also in the reality external to her or him (e.g., dogs). It may be said that the

Petra_

zyckian phrase theory of law roughly means empirical, value-free science of law, and can be

roughly understoodas synonymous with psychosociology of law. But we preferto use Petra _

zycki’s

term theory of law becausePetra _

zycki was opposed to the phrase sociology of law (see Timoshina

2013). As for theterm law within the phrase theory of law,see the next footnote.

2

Throughout this text we shall be rendering the Russian noun pravo and its adjective pravovoj

with the couple law/legal (despite legal not being etymologically related with law). As Pattaro

(2005) demonstrated, there are cases where it may be misleading to translate Recht,droit,diritto

with law. This holds, too, for the Russian term pravo, especially as understood by Petra_

zycki.

Here, we shall be usingthe couple law/legal in order notto excessively depart from Babb’strans-

lation of Petra_

zycki’s works(Petra _

zycki 1955a,1955b).

3

Here, we are meaningtheoretical in a broad sense.Onthisterm,seeabove,fn.1.

106 Edoardo Fittipaldi and Elena Timoshina

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