Theory of Custom, Dogmatics of Custom, Policy of Custom: On the Threefold Approach of...

Proceeding from the insights of Petrażycki, 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 concerning 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 adoption 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 Petrażycki, 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 (Rc): We have a custom on the threefold condition that (a) Rc is believed true by a given X, (b) Rc causes the existence of a given normative psychical experience (NPE) in X, and (c) X expressly refers to—or would refer—to Rc in justifying an NPE. PRRs use the term customary law to refer to legal experiences (i.e., NPEs involving a sense of entitlement) caused and justified by an Rc. From a theoretical perspective, both the subject's adoption of custom as a binding NS and its truth are irrelevant. It is only the presence of a customary NPE in the X under study that matters. From a dogmatic perspective, 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 bw, and (c) whether bw 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 and fostering benevolence.

Английский

Ratio Juris. – 2017. – Vol. 30, № 1. – P. 105–122.