Psychological School of Law

a trend in bourgeois legal thought that emerged in the early 20th century, simultaneously with the appearance of psychological trends in sociology and the other social sciences. From the point of view of the representatives of the psychological school of law, the factors determining the existence and application of law are rooted not in the socioeconomic and political class conditions of the state and society but in the psychology of individuals or social groups. The members of this school assert that the law is a product of various psychological drives, instincts (for example, power and domination), and emotions.

One of the founders of the psychological school of law was the French sociologist and jurist G. Tarde, who believed that imitation is the foundation of all social values and norms, including legal ones. The Russian jurist L. I. Petrazhitskii was one of the most profound and original representatives of the psychological school of law. In Germany the influence of Freud and Bergson gave rise to the concept of “legal sense” (Rechtsgefühl), maintained by M. von Rümelin, Riezler, and Isay. According to this theory, the central elements in law are not norms but judicial decisions based on the intuition, subconscious experiences, and deep psychological drives of judges. This concept, which expanded beyond limit the idea of judicial discretion in violation of the principle of legality, was adopted in the 1930’s in the USA by the school of legal realism.

In the capitalist countries several branches of the psychological school of law retained their importance after World War II (1939–45), including the Scandinavian school of law (A. Hägerström and A. Ross). Among the individual representatives of the psychological school who remained influential in the postwar period were R. West, P. A. Sorokin, and N. S. Timasheff, who updated several of Petrazhitskii’s concepts and argued that the foundation of the law is the psychology of social groups, not the psychology of individuals.

Marxism does not deny the important role played by individual and social psychology in the operation of the law. However, from the point of view of materialism, which considers law to be a product of socioeconomic and political class relations, the theoretical and methodological positions of the psychological school of law are erroneous, because they lead to an idealist interpretation of the social roots and genesis of law, to the justification of subjective voluntaristic tendencies in legislation and in the implementation of the laws, and to an underestimation of the guarantees provided by law and order and legality.