Legal consciousness is an important consideration in legal politics. To create a socially efficacious and acceptable law and to comprehend the impact of the positive law on society, the lawmaker has to adequately recognise the various potential motives of human conduct. To obtain knowledge on how to establish the most desired (the best) legal order, the lawmaker has to identify the law’s goals and the methods and techniques of their realisation, hence entering the domain of legal politics. Alf Ross and Leon Petrażycki have both elaborated on the concepts of legal politics. The main purpose of this paper is to compare the two concepts, with a particular focus on the importance that legal consciousness has for the politics of law. For Petrażycki, legal politics rests on empirical research on social activities and causal relations. It answers the questions of how efficiently the law can be created in the form of legislative acts and what constitutes the best legal solutions for social problems. He also established the ideal of love that should be recognized as the highest criterion of correct legislation and the ultimate goal of human development. Ross elaborated the concept of legal politics as a skill. The essence of legal politics consists of reasonably anticipating the consequences that should be expected in the case of introducing certain legal provisions and in developing principles, the introduction of which into the legal system would cause certain desired effects. He claimed that the lawmaker must take the complex picture of human motivation into account. According to Ross, two mental phenomena—belief and attitude—determine human actions. The difference between them lies at the core of Ross’s idea of legal politics and is crucial for explaining its essential psychological assumptions, connected with the concepts of legal consciousness and the sense of justice.

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Ross and Petrażycki on Legal Consciousness and Legal Politics

  • Urszula Kosielińska-Grabowska

摘要

Legal consciousness is an important consideration in legal politics. To create a socially efficacious and acceptable law and to comprehend the impact of the positive law on society, the lawmaker has to adequately recognise the various potential motives of human conduct. To obtain knowledge on how to establish the most desired (the best) legal order, the lawmaker has to identify the law’s goals and the methods and techniques of their realisation, hence entering the domain of legal politics. Alf Ross and Leon Petrażycki have both elaborated on the concepts of legal politics. The main purpose of this paper is to compare the two concepts, with a particular focus on the importance that legal consciousness has for the politics of law. For Petrażycki, legal politics rests on empirical research on social activities and causal relations. It answers the questions of how efficiently the law can be created in the form of legislative acts and what constitutes the best legal solutions for social problems. He also established the ideal of love that should be recognized as the highest criterion of correct legislation and the ultimate goal of human development. Ross elaborated the concept of legal politics as a skill. The essence of legal politics consists of reasonably anticipating the consequences that should be expected in the case of introducing certain legal provisions and in developing principles, the introduction of which into the legal system would cause certain desired effects. He claimed that the lawmaker must take the complex picture of human motivation into account. According to Ross, two mental phenomena—belief and attitude—determine human actions. The difference between them lies at the core of Ross’s idea of legal politics and is crucial for explaining its essential psychological assumptions, connected with the concepts of legal consciousness and the sense of justice.