4.1 Legal instrumentalism and the ethical worth of law

Modern socio-legal research over the past half century has largely presumed – and been strongly promoted by – an instrumental view of law. That is to say, law has been generally treated, not necessarily by jurists but usually by legislators and administrators, as an instrument of government; a means of framing and implementing policy, setting social goals, encouraging and regulating economic life, and shaping desirable behaviour by citizens. Alongside this it has often been treated as a private resource: an instrument available to citizens, corporations and others to promote and secure their interests, if necessary through litigation. Socio-legal scholarship in general can be said to have adopted this instrumental approach to law as its dominant, if often implicit, outlook on the nature of law (Cotterrell, Reference Cotterrell2009a, pp. 488–491). On this basis, Western socio-legal research has flourished as a support for legal policy, especially in combating racial and sex discrimination, and in economic regulation, the organisation of welfare provision, the support of family life and the control of crime.

It is hard to deny the usefulness of empirical research on the effects of legal policy in these and other areas. Research has often identified what Roscoe Pound (Reference Pound1917) called ‘the limits of effective legal action’ and the conditions under which law can and cannot achieve the results envisaged by law-makers. But a purely instrumental view of law can also be criticised. To treat law as no more than an instrument is to ignore the question of whether law should have qualities that allow it to flourish as a valuable cultural phenomenon in itself, rather than merely for what it may be used to achieve. Petrażycki saw the imperative–attributive character of law as valuable in this way. The consciousness of rights would be a means of entrenching in individuals a sense of dignity and self-respect and the firmness, confidence, energy and initiative ‘essential for life’.Footnote ⁷ Thus, if the legal experience of right and duty is well organised in its social settings, it can serve not merely pragmatic or short-term governmental or private aims but a larger ethical purpose. The development of a general legal consciousness has, so it seems, a cultural value in itself. On this, Petrażycki is explicit – law can be a powerful educative force as well as a motivating force. In terms that few modern scholars would dream of using, Petrażycki suggests that law can, indeed, make us ethically better people.

It is easy to mock such claims. Many decades of empirical research have shown the limits of law's ability to achieve intended effects, and there is strong resistance in socio-legal scholarship to moral prescriptions of any kind. But one can also note in the literature urgent criticisms of the excesses of legal instrumentalism, on the basis that this can make law seem no more than a weapon available to be used in socially irresponsible ways by any person or agency able to gain control of it (see e.g. Tamanaha, Reference Tamanaha2006). The image of the lawyer as amoral ‘hired gun’ is very familiar. Petrażycki was in no way opposed to the use of law as an instrument of policy – indeed he pioneered the project of a ‘science of legal policy’ and developed this idea extensively (Babb, Reference Babb1937; Gorecki, Reference Gorecki1975a). But his image of what legal policy could be goes so far beyond the assumptions of contemporary socio-legal research as to seem, at first, shockingly naive or bizarre.

He sees law's ultimate task as to promote ‘the complete dominance of active love’.Footnote ⁸ What this means in essence is the promotion of a social life characterised by solidarity, altruism, active citizenship, public spiritedness and social responsibility. Law, in this view, is to shape not only behaviour (through incentives and penalties) but also character (by inculcating experiences of duty and entitlement). These are long-term aims for law, but they set immediate challenges: for example, to make official (state) law as understandable and accessible to the citizen as possible, to adapt it carefully to the psyche of those subject to it, to make it vivid and clear through factual illustrations, and to enforce it firmly and consistently; the ultimate aim of legal policy is to make official law increasingly unnecessary insofar as the ethical regulation of social life becomes more effective (Babb, Reference Babb1937, pp. 810, 826–828).

Petrażycki's extensive work on the science of legal policy is hardly represented in the English translations of his work. But indications of its content, insofar as they are available to this writer, suggest that it points to ideas largely absent from, but an important supplement to, those that inspire much contemporary socio-legal research; one of its important messages for today seems to be that socio-legal studies should link their existing concerns about the effectiveness of legislation and the legal experience of citizens to a wider sense of law's potential moral meaning.Footnote ⁹ It implies the need for renewed attention to the often neglected expressive functions of law – attention not restricted merely to this function in the context of criminal law. At a time when law is often seen as a mere technical calculus, divorced from the moral experience of citizens, Petrażycki's voice from a century ago insists that studies of law in action can and should be guided by a vision of what an ethical life and a well-organised society might be.

How far can the vigorous assertion of rights really be seen in contemporary conditions as means of promoting ethical life in a society? Émile Durkheim drew an important distinction between what he called egoism (the selfish assertion of right to promote only one's private interests) and individualism (a moral position characterised by respect for and willingness to defend the rights of all individuals to their personal autonomy and dignity, no less than to defend one's own such rights) (Cotterrell, Reference Cotterrell1999, pp. 112–113). Hence, this moral individualism recognises an obligation to the rights of others as a basis for defence of one's own rights. The mere assertion of one's own rights without concern for others does not promote ethical life in any sense, on this view. In itself, such conduct has no ethical value to the individual or moral worth to society. What then is to be made of Petrażycki's enthusiasm for the active assertion of rights?

A Petrażyckian concept of law treats the experience of right or entitlement and that of duty or obligation as inseparable (Petrażycki, Reference Petrażycki and Babb1955, p. 46), as two sides of the psychological impulse to which the word ‘law’ refers. Current juristic thought often puts strong emphasis on the securing of private rights (especially of property) as the primary purpose of law, alongside the guaranteeing of basic personal security. But the very structure of Petrażycki's imperative–attributive concept of law suggests that the sense of obligation is as fundamental as that of entitlement. The recognition of duty by one person does not seem, in this conceptual architecture, to be the mere consequence of the assertion of right by another; the recognition of duty can equally be seen as the psychological experience that, in law, allows rights in others to exist. One might also say that although the sense of right or entitlement is what gives law the special quality that distinguishes it from morality, this sense gains its truly ‘legal’ quality only because it also embodies a typically moral experience of prescribed duty. The attributive (sense of right) and imperative (subjection to duty) elements in law are experienced as one.

It is surely this quality of law which, for Petrażycki, can make it valuable in itself, independently of its instrumental value. It makes possible legal relationships as social relationships. This is not to confuse law with morality, or to imagine that law is always (or even often) intuitively experienced as morally good; it is merely to note that as psychic phenomena law and morality are closely related, especially when understood as expressions of a vibrant culture.

4.2 Cultural pluralism, intuitive law, positive law

Some eighty years ago, praising Petrażycki's emphasis on legal pluralism, Gurvitch (Reference Gurvitch1935, p. 164) noted the emergence of many new forms of regulation that it was becoming hard for jurists to ignore – legal institutions outside the scope of state law, but existing inside national society as well as in the international sphere. In the national sphere, he mentioned the regulation of working practices produced in enterprises through processes of industrial democracy. Today, we might think especially of the demands of minority cultural groups for legal recognition of their religious or traditional norms.

Throughout much of Western Europe the issue of the female Muslim veil – the right to wear it, or a legal duty not to do so in certain contexts – has attracted a huge literature (e.g. Ferrari and Pastorelli, Reference Ferrari and Pastorelli2013). More broadly, the claims of many Muslims in Britain and elsewhere to have some effective legal recognition of their distinctive practices – for example, of marriage, divorce, inheritance and commerce – have led to unending debate. They have also often posed difficult problems for state courts faced with the need to apply official law (in Petrażycki's sense) to situations and practices already shaped and given meaning by other kinds of legal ideas. These are often ideas derived from interpretations of Islamic Sharia law or from customary practices of particular cultural groups within the larger national society.

A persistent question in much discussion has been how far these ideas, which may possess great authority and be firmly applied in the groups that recognise them, should be generally accepted as ‘law’. If so, what kind of law would this be? What would be its relation to official state law? How could its status as law be understood? By whom should it be accepted as law? What situation exists if some groups in the national society consider it legal, but others do not? What happens if it is inconsistent (perhaps irreconcilable) with state law?

Such matters are increasingly ones for everyday juristic practice. State law in Western societies may, for example, refuse to recognise polygamous marriages, but how should it deal with the position of wives married and divorced from polygamous marriages when, being dependent and perhaps destitute, they seek financial support from their former husbands? Should state law ignore their situation? More generally, how can state law purport to regulate family life in communities where couples marry (and perhaps divorce) under the authority of religious law but not state law? Petrażycki's legal theory allows the organisation of such issues in terms of law, cutting through the limitations of a rigid demarcation between state law and all other forms of authoritative social regulation. The claim of the deserted polygamous wife, even if not based on an appeal to religion or custom, can be interpreted in terms of intuitive law (a sense of justice). But it may well be a claim that refers to the ‘normative fact’ of religious or customary authority. As such it is a claim of positive law, irrespective of whether the state recognises it. In Britain, Muslim arbitration bodies decide family cases brought before them on the basis of their interpretations of religious and customary sources and in an effort to find reasonable solutions consistent with the expectations of the communities they seek to serve. In practice, in these conditions, it is possible to observe, co-existing, all of Petrażycki's types of law (various kinds of official and unofficial, positive and intuitive law, and their combinations).

And Petrażycki's idea of legal policy might suggest some particular responsibilities of official law: to encourage conditions in which all individuals can flourish, their sense of social responsibility as active citizens is promoted, and communication and solidarity between communities in the larger society as well as within them is promoted. Petrażycki's legal pluralist conceptions may not solve regulatory problems. However, they make it possible to see that a radical, irresolvable conflict between different and exclusive conceptions of ‘law’ can be replaced by a single perspective – one that accepts the co-existence of a variety of distinct types of law and the need to facilitate their stable interaction or interrelation. This implies that the relative authority of different kinds of law has to be recognised and negotiated so that society can be regulated in a practical, effective, socially meaningful way.

A critic of this approach might say that it is unimportant whether the conflicts and interrelations of regulatory regimes and aspirations are thought of as problems of legal pluralism or simply of normative pluralism. Are the problems made any easier by particular choices made in applying the word ‘law’? The real issue is the clash of expectations as to what regulation is to be applied to particular problems. Whether or not regulation is called law by jurists or legal theorists may not alter popular convictions as to whether the regulation should be applied to cases that concern them. The activity of defining should not be confused with empirical study of conditions defined.Footnote ¹⁰ As argued earlier, a socio-legal perspective should not become entangled in efforts to produce a conclusive definition of what counts as law, as contrasted with non-legal regulation.

However, Petrażycki's radical reconceptualisation of law, extending it to embrace much that jurists serving state legal systems would not accept as law, may make it possible to reconsider issues of normative (or legal) pluralism in some illuminating ways. In particular, it shifts focus from the positivist position of seeking to identify particular social sources (e.g. legislative procedures, judicial decisions) that determine whether or not a norm is valid law. Such a positivist position often provides no useful answers in cases where popular opinion refuses to accept that the linking of norms to such identified sources is the only conclusive way of attributing operative authority to them. Equally, legal positivism provides no adequate answers where regulatory regimes are in conflict, and competing social sources of validity can be identified, with no established hierarchy of importance accepted as between these sources.

A Petrażyckian approach would focus not on identifying ‘pedigree tests’ of what is to count as legal or non-legal by looking to see from what social sources the regulation in question has been brought into being. Instead it would focus on the subjective experience of those who encounter the regulation. It would not need to treat as irrelevant the sense of the ‘legal’ held by those who experience, as law, types of regulation that the state does not recognise. It would presumably seek to understand the phenomenon ‘law’ at least partly in terms of their legal aspirations and their sense of what for them is authoritative regulation. It would not see the problem of regulating as one of demanding acceptance of the state's legal prescriptions irrespective of citizens' understandings (or, conversely, of accepting those understandings as the only legitimate basis of state law), but of appreciating, negotiating, influencing and organising citizens' complex and often contradictory senses of legal authority.

Petrażycki's approach to law appears to downgrade state law to merely one kind of law among many – a radicalism that may seem highly dangerous. Yet we should recall that in Russia he was a jurist serving the official law of a huge multicultural empire. It may be that his approach is best seen, like that of his contemporary, the pioneer legal sociologist Eugen Ehrlich (Cotterrell, Reference Cotterrell and Hertogh2009b), as aiming to protect the state from itself; that is, from its own regulatory hubris, and from isolation and alienation from the perceptions of citizens. It would do this by encouraging a view of law that is sufficiently wide to allow the jurist (who is professionally committed to the idea of law) to see the realm of state law as if ‘from the outside’ – that is, from the imagined standpoints of citizens who recognise many kinds of intuitive, positive, official and unofficial law. In this kaleidoscope of many kinds of legal experience, the experience of positive law held in place by the state is just one element. This does not mean that it must be seen as in any way a minor element; rather, it should be continually confronted with (and enriched in) a larger regulatory environment that is not rendered juristically redundant simply by having been denied a priori – by definitional fiat – the designation ‘law’.

4.3 The nature and authority of transnational regulation

Petrażycki recognised international law as a reality, but he could hardly have envisaged the vast range of different regimes of regulation that exist today in, for example, international trade law, international criminal justice, international human rights, international financial regulation and European Union law. International law is no longer necessarily confined to regulating the relations of states. It can also often directly address individuals (as, for example, in the prosecution of offenders in international criminal law), or indirectly shape the conditions in which they live and work, as in the case of international economic law, such as that of the World Trade Organisation. Much new legal regulation can be considered not only as governing relations between states, but also as operating across, or irrespective of state boundaries: it is often called transnational law (Cotterrell, Reference Cotterrell2012).

Some of it arises from treaties or conventions between states, some from national laws that have effect extra-territorially, some from the creative activity of transnational networks of community, such as the business networks in which international commercial arbitration (the new lex mercatoria) has developed, some from international agencies (such as the World Trade Organisation or the International Criminal Court) claiming independence from specific national allegiances, and some from within transnational professions, industries or interest groups defining ‘best practice’ through authorities which they support to set uniform standards.

The growing importance of transnational law (and, in some cases, its controversial character as ‘law’) raises the question of whether Petrażycki's legal pluralism can help in analysing this phenomenon. Much transnational law is not official (state) law in his sense, and yet it is sometimes applied by officially recognised institutions (international courts; regulatory agencies; standard-setting bodies). It is often created and imposed ‘top-down’ on those it regulates. But some of it is created ‘bottom-up’, through the interactions of those for whom it is useful (transnational traders, financiers, Internet technologists, etc.), as what is sometimes called ‘transnational private law’ (Calliess and Zumbansen, Reference Calliess and Zumbansen2010). What seems to be emerging is not a single new transnational realm of law but a multitude of legal regimes claiming different kinds of authority, arising from different sources and regulating in different ways.

Petrażycki's legal theory teaches that many forms of positive law can exist outside state law. This makes it possible to portray the entire complex universe of transnational law as an array of different kinds of positive law. And if, as Sorokin argued, Petrażycki's theory shows adequately how law as a trans-subjective social form can arise from the harmonisation of individual psychological experiences, it is not difficult to see how legal structures can arise through interaction in social groups and networks and the common recognition of normative facts as the basis of positive law. The varieties of transnational positive law created in this way may have different kinds of relationships with state law.

By separating the idea of positive law from that of official state law, Petrażycki moves us past unhelpful debates as to what kinds of transnational regulation should be recognised as law. Instead, the issues become: How do these different kinds of law relate, from where do they derive their ethical meaning as structures of rights and duties, what gives them authority over those they are supposed to regulate? Ultimately, the key juristic question is: How is their relative authority – their authority relative to each other – to be judged when these kinds of law clash, purporting to regulate the same people, or the same situations or transactions?

Surely this Petrażyckian perspective is helpful. It makes possible a focus on law's practical authority rather than its abstract definition. Petrażycki's open, flexible and minimal model of law in terms of imperative–attributive experiences seems to undermine any assumptions that the challenges of normative pluralism can be dealt with simply by defining them away as outside juristic concern. Positivist legal theorists might adopt concepts of law that exclude from the ‘province of jurisprudence’ many regulatory forms and normative ideas now populating the socio-legal world that do not correspond with orthodox conceptions of state law. But Petrażycki shows that law can be thought of coherently in ways that do not depend on the concepts that have traditionally served to police the boundaries of the juridical world. This was surely the scandal of his theory in his own day, and it remains so today. The socio-legal realm does not need positivist juristic theory to mark out what is to count as law within it, though it should take account of the ideas offered by that theory. The freedom to think about legal development inside but also beyond orthodox juristic categories is a main legacy of Petrażycki for scholars seeking to understand evolving forms and characteristics of transnational law.

However, it is still important to bear in mind Sorokin's claim that important questions are not satisfactorily solved by Petrażycki's psychological theory. Some of these seem to be about the authority of official (publicly organised or recognised) legal agencies. What Petrażycki calls official law (law ‘to be applied and sustained by representatives of the state authority’) is often remote from individual citizens. Although they may recognise the normative facts that authorise it (and so they experience it as positive law), those normative facts are not necessarily (or even typically) their own choices. Certainly, the psychological theory of law may show how some law can take social form as a development from the legal experiences of individuals interacting and communicating with each other. But it is surely important to ask sociologically how official law exerts its ‘psychical effects’ (Pałecki, Reference Pałecki and Sztompka1984, p. 137, quoting Petrażycki), how it gains coercive power over individuals who have had little influence on its creation, and how the authority of the state comes into being, is sustained, and in various conditions is challenged or overthrown.

Official law, bluntly wrote the legal realist Karl Olivecrona (Reference Olivecrona1948, p. 178), ‘cannot be reduced to psychical experiences, to “law-convictions”’. However, it might be more accurate to say that it cannot usually be reduced to those of citizens in general. Footnote ¹¹ Its nature requires sociological explanation. If these issues are pertinent to state law, they may be even more so for the kinds of transnational law that are created by agreement between states (treaties, conventions) – processes in which most citizens are even less involved. In sociological terms, the problem is one of ‘moral distance’ between official law-makers and law enforcers and those whom they seek to regulate.

It is not possible here to say more than that these issues remain unresolved, on the basis of the materials available. It seems that the following conclusion can be reached. Petrażycki's theory points towards the important idea that a great deal of transnational law might be understood as created in transnational communication between individuals in groups, organisations and networks. This interaction and communication gives rise to various kinds of positive law as sociocultural phenomena. So, transnational law as a social form can be produced ‘bottom up’ in such a way. Thus, it is easy to see where the source of its authority lies. We might say it lies in the culture of those who interact to create it; it can be said that it has cultural legitimacy. But the problem of where ‘top-down’ law (such as much international law created by conventions) gets adequate authority to achieve widespread recognition and wide-ranging effects as social regulation seems to remain (Cotterrell, Reference Cotterrell and Perry-Kessaris2013). Where does the law-making authority, for example, of the World Trade Organisation, lie? Why, by whom, under what conditions, and with what limitations, is such international regulation experienced as positive law in Petrażycki's sense? Must it be seen as having only a relatively weak political legitimacy so that it is experienced as law only by the relatively few officials directly involved with it, but has little or no resonance in the legal consciousness of most of those who live within the jurisdictions it addresses?

Does, then, top-down, cross-border law-making depend entirely on the support of the governments of nation-states that authorise international law-making institutions or international judicial processes? If so, the authority supporting it is not culturally based but technical–political. But contemporary transnational regulation in general seems dependent for its stability on uneasy, shifting combinations of cultural and political sources of authority.