Leon Petrazycki and a pluralism of the sources of law

Author:Michal Peno
Pages:246-260
SUMMARY

The article pertains to the issue of decentralisation (and democratisation) of sources of law and reconstruction of the concept of sources of law. Models of thinking or categories adopted in jurisprudence oftentimes constitute a manifestation of a repression that is stronger than the classic legal sanction. This is because they necessitate flattening of the social reality image, which tends to be ... (see full summary)

 
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Leon Petrażycki and a pluralism of the sources of law
Assistant professor Michał PENO1
Abstract
The article pertains to th e issue of decentralisation (and democratisation) of
sources of law and reconstruction of the concep t of sources of law. Models of thinking or
categories adopted in jurisprudence oftentimes constitute a manifestation of a repression
that is stronger than the classic legal sanction. This is because they necessitate flattening of
the social reality image, which tends to be richer than the corresponding law. The aim of
this article is to indicate that the scarcity of law stems solely from thinking habits and
solutions adopted unquestionab ly by jurisprudence. This is also the case for the concept of
sources of law. The positivist idea that law is created and imposed on citizens by the centre
in power (the state, the court) remains relevant, even if there are more than just one centre.
At the same time, the concept of sources of law, defended by jurisprudence, excludes any
actual displays of p luralism, thus preventing bottom-up law-making processes (perhaps
except for soft law of unclear legal status) and recognising their role in the legal system or
the legal order of a given state. Pluralism of sources of law is one of the elements of theory
of law formulated by Leon Petrażycki. If we assume that the standard p ositivist model of
sources of law is the currently binding one, Petrażycki's concept provides an alternative
that allows us to indeed recognise an d include into the notion of law all these rules that are
in fact something more than morality, habit or custom in view of ad dressees, while
maintaining the integrity and efficiency of law and traditional ways of un derstanding law in
countries of the Enlightenment tradition.
Keywords: sources of Law; Petrażycki; theory of law; a ge of pluralism;
integration.
JEL Classification: K10, K38
1. Introduction
The aim of the article is to provide a critical view of the standard, i.e.
positivist model or concept of sources of law in the context of the idea of
decentralisation and democratisation of sources of law2. It seems that centralistic
vision of law, in the light of which law is formed in a top-down pr ocess, with the
state, the court, etc., playing the leading role, in this sense l aw which is being
taken in the exclusive possession of a narrow group in power, is a form of
1 Michał Peno - Department of Philosophy of Law and Legal Theory, Faculty of Law and
Administration, University of Szczecin, Poland, michal.peno@usz.edu.pl.
2 Democracy is understood intuitively, according to a standard modern philosophical concept . Cf. Ian
Shapiro, The Moral Foundations of Politics (New Haven-London: Yale University Press 2003), pp.
212229.

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