Exploring legal tradition: psychoanalytical theory and Roman law in modern continental jurisprudence

Abstract

The idea that psychoanalysis might be of use in the study oflaw and legal activity is by no means anything new. At the beginning of this century, the Russo-Polish jurist Leon Petrazycki proposed a theory of legal psychology, arguing that law, as an intuitively intelligible component of the human mental process, is in essence constituted by individual feelings of moral obligation and responsibility. Around the same time, psychoanalytical theory was beginning to make a slight impact on American and European jurisprudential thinking. This impact was to become all the more significant when, in the 1930s, Thurman Arnold and Jerome Frank presented arguments about the nature oflegal reasoning, and the roles of both academic lawyers and judges, which were very clearly founded upon broad interpretations of psychoanalytic ideas and concepts. In the continental tradition, Hans Kelsen, though in his early work drawing a distinction ‘between pure legal theory and psychological-sociological speculation,’ nevertheless attempted on occasion to conceive of the sovereignty of the state in Freudian psychoanalytic terms