The meaning of the "ideal type" construction for the formation of the conceptual apparatus of sociological and psychological theories of law

Savenkov Dmitry Aleksandrovich PhD in Law Docent, the department of Theory of State and Law, Vladimir Kikot Moscow University of the Ministry of Internal Affairs of Russia 117997, Moscow, Akademika Volgina str., 12. dmitryasavenkov@yandex.ru Other publications by this author

In the modern palette of diverse approaches to the analysis of law and legal issues, the orientation to an empirical perspective has clearly become dominant. In some cases, one can clearly see a more balanced and careful attitude to other traditional positions of research and explanations of law, seeking to supplement and clarify the idealistic view of law. In other cases, the answers to questions of law are radicalized to the denial of not only the ideal, but even the conceptual side of it. There are also such points of view that have a certain circulation and are popular in some intellectual circles in the USA and Australia, which declare the empirical view of law to be the only possible and correct one, which leads representatives of this view to contrast not idealism and empiricism, but to contrast "new realism" - exceptional empiricism – and "traditional" ideas about the law ^{[13, 14]}. In any case, the issues of sociology of law and psychology of law obviously prevail in modern legal science. At the same time, the state of these approaches and interdisciplinary perspectives remains both popular and mosaic. The quantitative increase in various empirical interpretations of legal issues has, unfortunately, not yet led to any distinct holistic image of the sociology of law and the psychology of law.

The main resource for building modern models of sociology of law and psychology of law is the work of classics in this field, whose ideas are being modernized, refined, developed. But in this process, the actual content and nature of the views of the predecessors are often lost. For example, M. Weber strictly distinguished the legal approach proper, on the one hand, and the socio-legal approach, on the other. At the same time, the socio-legal approach was preceded by the author's development of "basic sociological concepts", which served as the necessary theoretical core for various branches of his sociological system: political sociology, economic sociology, sociology of law, etc. Therefore, the use of references to the works of M. Weber implies a clear distinction of meanings – legal or socio-legal. In other words, if a researcher raises a question about the legal views of M. Weber, then this question in itself is not correct in this case. Since the German lawyer and sociologist saw in sociology a certain general form of all social sciences, the issues of law, politics, economics are respectively considered as part of a certain scientific paradigm of social knowledge. From the point of view of conceptual and methodological components, the legal and socio-legal approaches included in the composition of social science may have a single basis.

Weber himself, in assessing the nature of the legal approach, preferred the views of his contemporary R. Stammler ^[15]. M. Weber, in particular, wrote: "If we are talking about "law", "rule of law", "legal norm", then it is necessary to strictly monitor the distinction between legal and sociological approaches. The first one asks the question: what is mentally valid as a right. In other words: what is the meaning, and this again means: what is the normative meaning it should belong to the language education acting as a legal norm from a logically correct point of view. The other, on the contrary, asks: what is inside some community actually it happens in favor of something or someone, because there is a chance that individuals participating in the behavior of the community, especially those in whose hands there is a socially significant measure of actual influence on the behavior of the community, subjectively consider certain orders as valid and practically act in accordance with them, i.e. orient their own behavior to them" ^{[15, S. 368]}.         

Moreover, both approaches and legal – essentially neo–Kantian - and socio-legal (in the interpretation of M. Weber) go back to the idea of logically correct thinking. The only difference is that in some specific legal perspective, law is considered as the theoretically "correct" form of thinking itself (rather as an epistemological problem), and from the point of view of the "understanding" sociology of law, law is considered as a social or socio-psychological fact, for the proper interpretation of which the same construction of correct thinking is used, in particular, the ideal type (ontological and epistemological problem). In the latter case, a corresponding analysis is performed on the contrast between the theoretically ideal and actual states. The entire sociology of law according to Weber was developed precisely from this point of view. For example, the need for coercion to clarify the concept of law is determined in such a way that in a theoretically ideal situation, coercion emanating from the state coercion apparatus behind the law is, as it were, optional, since it can be supplemented by a variety of forms of achieving the desired effect, but in the reality of the industrial economy, the role of coercion, as M. Weber assured, is only growing.

Legal phenomena in a wide variety of sociological and psychological theories of law were analyzed using the construction of an assumed or "correct" image. Also in the field of philosophy, the idea of assuming the rationality of reality, especially in the twentieth century, is found everywhere. For example, the whole system of philosophical and legal views of A. Hagerstrem is based on the assumption of the rationality of reality ^[8]. U Yu. The central idea of Habermas is the idea of some initial state (ideal variant) ^[9]. There are many similar examples. Therefore, for example, L.I. Petrazhitsky has a militant legal psyche by its nature, threatening in its essence a catastrophe for humanity, for some reason leads (as a development trend, an objective regularity) to the establishment of peace and security, and the ideal is a "healthy" legal psyche ^{[5, p. 69]}. At the heart of such a kind of contradictory explanation is obviously the assumption of a "healthy" right grain at the heart of the legal psyche. In other words, the legal psyche according to Petrazhitsky can be different – legal phantasms, legal conscience, legal passion, legal emotions – but the criterion for its evaluation is the ratio of healthy or, respectively, undeveloped, unhealthy, pathological legal psyche. A healthy legal psyche needs to be educated by calculating motives and influencing them. However, in the motley palette of legal phantasms – real mental phenomena - experienced by a person, it is impossible to distinguish right from wrong or, more precisely, unhealthy right. Everything that the logical scheme of correctly arranged legal experiences – imperative-attributive – applies to is law. Therefore, a "healthy legal psyche" is a kind of ideal type that allows you to think of legal emotions as a template for evaluating and analyzing the actual legal life and communication of people. Petrazhitsky writes that the main idea in legal theory is a simple realization that "the norms of law are the norms of law"; they are nothing more than a certain logic of emotional experiences – imperative–attributive. However, it is universally required that the legal psyche be well-mannered, healthy, normal, not suffer from pathologies, would not turn into a useless legal passion, and would lead exclusively to the realization of Christian virtues. As a result, a healthy or normal legal psyche acts either as an ideal for the development of the individual and society (Petrazhitsky recognized the existence of both individual and people's legal psyche), or as an ideal type, a template for evaluating law as a mental fact, since in reality we are more often dealing with various factual states, rather than the ideal structure of the legal psyche or legal awareness. Moreover, the first option is less noticeable, since law in the psychological theory of this scientist is only a means of socio-historical adaptation of a person, it is not a goal, but only a means (this obviously reads R. Iering's formula ^[3]).              

Psychological and sociological approaches to law, based on the methodology of positivism, developed a scheme for evaluating and analyzing relevant facts or phenomena by analogy with the natural sciences, on the contrast of observations between normal and deviant state, healthy and pathological, as well as in medicine, biology or in the natural sciences. Since the pure normal state does not occur or is rare, it began to be used as a methodological technique: there is supposedly an ideal type that allows you to think of a phenomenon or phenomenon in a certain sterile situation, when it is abstracted from all real features and processes. This technique does not allow us to find out the value or ethical grounds of the act or the simulated situation. It allows us to present a fact as a kind of metaphysical substance. This technique is most clearly represented in the philosophy of empiriocriticism in the form of the idea of pure experience ^[1]. Despite the fact that empirio-critics are often referred to as idealistic trends in philosophy, their construction of pure experience is clearly borrowed from the natural sciences.

The psychological and legal problems analyzed with the help of this technique, as demonstrated by the relevant theories of law, are reduced to a very narrow fragment of reality, despite the focus on overcoming the narrowness of objective definitions of law. For example, in the works of R. Stammler, a logical-epistemological interpretation of the nature of law as a form of legal thinking is proposed, but as soon as his construction of "correct law" is applied to real circumstances and relationships, the content of the concept of law becomes infinite. The idea of "natural law with changing content" is very indicative. In this title, natural-legal issues are conceived, which from the traditional point of view cannot be connected in any way with the changing content. Hence, natural law in this case is not a value characteristic of law, but a designation of the ideal state, the correct state or, more precisely, the setting of legal thinking. Similarly, L.I. Petrazhitsky has the right everywhere, since it is just a certain construction of emotions, a natural human ability. However, as soon as his theory is confronted with questions about the origin and history of law – where law cannot be reduced to a simple experience – he is suddenly ready to recognize the validity of any theory: both social Darwinism and Christian morality.  

In American legal realism, including all variants of its interpretation, the task was initially set to calculate the actual law in the behavior, or rather the predicted behavior of a judge in a particular case. This kind of intuitive-rational assumption has become the meaning of the legal profession. The idea was put forward by O. Holmes ^[10], and this installation became the leitmotif of legal activity thanks to the works of K. Llewellyn ^{[11, 12]}. Hence, the idea arose that for a convincing forecast, the best way is to refer to how a "normal" judge would act in a similar case. A "normal" judge means the judicial corps. Further, the idea arises that, analyzing the practice, it is necessary to identify a certain pattern of expected behavior calculated by statistical methods. Accordingly, the pattern of typical behavior becomes the standard for evaluating normal (expected) and deviant (unexpected) behavior. The law has been reduced to a behavioristic analysis, for the implementation of which sociological aspects are recognized as essential – the origin of the judge, upbringing, education, party affiliation, etc. But the law itself, in fact, is understood as a socio-psychological fact. On the one hand, the judge is, as it were, declared a pioneer of progress in the field of law, he is the only one who knows what law is and expresses it, as American legal realists assure. And in this sense, the law becomes a kind of psychological experience and representation in the mind of the judge. On the other hand, the judge is necessarily included in the complex structure of social conditions and factors that dictate a certain type of decisions. For example, for American jurisprudence, especially nowadays, an urgent problem is the question of the judge's party affiliation, so depending on it, different decisions are assumed in the same case. In this regard, the law becomes an ideological tool.

One can also give an example of the psychological theory of law by V. Wundt, the founder of classical psychology as a science, who proposed to solve the problem of law using the comparative method. It should be mentioned here that at the beginning of the XIX century. in jurisprudence and philosophy of law, the ideas of organic development and self-disclosure of the spirit in the historical process prevailed: For Hegel, it is a world–historical process, and for Savigny, it is a national history. The influence of theological determinism can be traced in this. In the last quarter of the XIX century. everywhere we are talking about forecasting and calculating the processes of the development of the spirit, which is now explained to a large extent with the help of the arsenal of emerging sociology and psychology. However, the solution of such a task seemed promising, but extremely difficult. Unable to answer the challenges of the time unambiguously, empiricists got carried away with the idea of intuition: they say that everything that can be calculated using empirical observations will be the basis of the scientific nature of jurisprudence, and everything that cannot be proved, let it remain the lot of intuition (A. Bergson ^[2], F. Zhenya ^[7], American pragmatists and legal realists). In fact, it turned out that the areas for intuition are much larger than for verified information. And for supporters of sociological and psychological approaches to law, the problem of law began to move into the field of the irrational as a whole. This is easily noticeable on the example of Scandinavian legal realists, who propose to understand the right as rationalized mysterious and mystical psychological impulses (A. Ross).

V. Wundt, understanding the complexity of constructing a theory of law based only on empirical psychology, proposed by comparative analysis to study the nature of law among the spheres of mental activity not only of an individual, but primarily of peoples. In other words, his idea was reduced to a sociological analysis of the legal mentality of different peoples. And the basis for the corresponding comparison should have been psychological research. As a result, there was not so much a theory of legal mentality as the idea of calculating a more or less developed legal mentality, which, however, was not based on any stable understanding of law, not to mention its value interpretation. This characteristic does not exhaust the content of V. Wundt's psychological theory of law, but demonstrates the impossibility of constructing an empirical psychological theory of law without applying a certain measure to the assessment of law, which in realistic or empirical theories of law is traditionally determined by statistical regularities – the average value.                                  

Weber described the nature of sociology and, accordingly, the sociological approach in the following way. By it, in particular, he understood "science, which seeks to understand social actions with the help of interpretation and thereby explain the course of their course and their consequences from a causal point of view. "Actions" in this case will be called human behavior ... if and to what extent the actor or persons associate some subjective meaning with it. "Social" will be called such actions that, according to the meaning assumed by the actor or persons, refer to the behavior of others and are guided by it in their course" ^{[15, S. 15]}. Sociology in this interpretation of its subject focuses on the category of "subjective meaning", which in turn very closely brings this approach closer to the social philosophy of neo-Kantianism. It is not objective meaning or general meaning that stand out as central concepts, but only subjective signification. And this makes Weberian sociology in general and the sociology of law in particular a socio-psychological science.  

A. Kaufman, analyzing the question of the tasks of philosophy and philosophy of law in our time, wrote that the two extremes in historical retrospect constantly replace each other or oppose themselves to each other. The first direction indicates the task of the philosophy of law "to make absolute, universally valid and unchangeable statements about the world, about man, about law" ^{[6, S. 14]}. Attempts to do this have been made many times in history, but each time they failed. As A. Kaufman emphasized, "these attempts cannot succeed", since "there is no absolute and timeless content in our world" ^{[6, S. 14]}. The decisive argument for A. Kaufman was the position of another German classic I. Kant, according to which "pure" cognition contains only the form by which something is known, but the content, since it does not appear from reason, but from experience, has only a posteriori meaning, i.e. it is not "pure" ^{[4, p. 50, 74]}.  Another direction of defining the tasks of the philosophy of law arises precisely as "the rejection of all content, especially statements about values, for the sake of "purity" of philosophizing (for example, M. Weber's "A Science Free of Values", Kelsen's "Pure Doctrine of Law") and refers only to the forms of being, thinking, and law" ^{[6, S. 15]}.

A. Kaufman wrote: "This "purity" is considered by many to be the decisive criterion of "rationality", since they reject any meaningful philosophizing as irrational and at the same time as unscientific. However, even this rationality, narrowed down to formal purity, should be reproached for not having answers to the questions on which it really depends. Formalism in Philosophy (which itselfKant he definitely gave rise to some witty theories, but since thoughts without content are, as we know, empty, their significance for practical life remained all the more insignificant the more they clung to the rule of purity" ^{[6, S. 15]}.

For A. Kaufman himself, the compromise solution to the struggle and mutual influence of these two directions were the views of G. Radbruch, which he called "the philosophy of law on the other side of natural law and positivism." Nevertheless, G. Radbruch's relativism did not become a universal formula, since he adhered to the idea of a limited number of possible higher values of law and excluded the possibility of a scientific answer to the question of "the only correct value" ^{[6, S. 15]}. A. Kaufman noted that behind G. Radbruch's relativism was the "ethics of freedom, tolerance, democracy" ^{[6, S. 16]}. G. Radbruch is certainly one of the most prominent jurists and legal philosophers of the twentieth century, and, indeed, there were different periods in his work. However, the pathos of A. Kaufman's interpretation of the ethics of freedom, tolerance, democracy as a washout of German legal relativism of the twentieth century, unfortunately, is not accurate, since this moral and political set arose largely only as a result of the forced return of the German intellectual environment to the mainstream of natural law thinking after the defeat of Nazi Germany in World War II and the Nuremberg Tribunal's condemnation of the ideology of National Socialism.

G. Radbruch's views should not be obscured by the political attitudes and slogans of post-war history, otherwise they appear only as a moment of political morality (although very inaccurately reproduced), and not as a concept of the philosophy of law that arose under the influence of neo-Kantianism and the "free law" movement (which coincided in some essential positions), in which an attempt to compromise between the logic of formal rationalism and the demand for the materialization of the philosophy of law.                    

The so-called "pure" or "ideal" type is, according to Weber, one of the key sociological categories by which sociology as a science is transformed from a purely empirical into an "understanding" science, and as such it should acquire the properties of normativity. In the literature devoted to Weber's problems, there is still no consensus on the nature of Weber's "understanding" sociology. Thus, the largest of the German specialists in Weber's sociology of law, A. Kaufman, emphasized that M. Weber's sociology of law "is strictly empirical, regarding which the fact that he occasionally spoke about "understanding sociology" should not be misleading" ^{[6, S. 123]}. Weber distinguished between a "normative meaning" that should "logically properly belong" to a legal norm, and an actual "empirical action". According to A. Kaufman, M. Weber's sociology of law in none of the significant constructions of his concept – coercion, the apparatus of coercion, calculated chances, legal norms, etc. – reflected the normative category of due, since they were explained only as certain expectations, chances, assumptions, etc.

M. Weber himself explained that the concept of "ideal type", as a category of sociological thinking, presupposes a "constructed purely purposeful course of behavior" ^{[15, S. 16]}, which is thought of as proceeding without "irrational affects and delusions" and which are subsequently considered as "obstacles" to actions.  

"For a scientific consideration based on the formation of types," M. Weber wrote, "all irrational, affectively conditioned semantic connections of the behavior pattern that influence specific actions as "deviations" from their purely purposeful course are investigated and stated as much as possible. For example, when explaining the "panic on the stock exchange", it is first of all advisable to establish: how actions would proceed outside the influence of irrational affects and then these irrational components are introduced as "hindrances". Similarly , when analyzing a political or military campaign , it is first of all advisable to establish: how the actions would proceed with an understanding of all the circumstances and all the intentions of the participants and with a strictly purposeful choice of means, guided by the experience that seems to us to be valid. Only in this way does it then become possible to causally attribute deviations from this to their conditioning irrationalities. The construction of a strictly objective action thus serves sociology in these cases, in view of its obvious comprehensibility and its unambiguity, which is linked to rationality, as a type ("ideal type") for understanding a real action influenced by irrationalities of any kind (affects, delusions), as a "deviation" from the course of events, provided with purely rational behavior" ^{[15, S. 16-17]}; "... constructions based on ideal types ... demonstrate how certain human actions would proceed if they were strictly purposeful, without the influence of delusions and affects, and if they were further absolutely unambiguously focused only on one goal (economy). Real actions only in rare cases (the exchange), and even then only approximately, proceed as it is constructed in the ideal type" ^{[15, S. 18]}.

From the analysis of this definition, it follows that ideal types, as a category of sociological scientific analysis, is not only a special theoretical technique for properly understanding human actions, namely human actions as social, but also due to orientation to a strictly defined goal – economy. Weber thereby developed the idea of the special role and value of the capitalist way of managing, as a result of the development of Western society, which caused the identification of social and economic orders. In other words, the ideal type is not just a logical construction mediating sociologically "correct" scientific thinking, but at the same time a presumption of the socio–economic value of the capitalist way of managing. Or the model of sociological scientific analysis proposed by Weber works only within the framework of a certain paradigm of capitalism. This point should be taken into account if we are talking about an accurate and proper explanation and clarification of the content of his views. It is obvious that Weber proceeded from the understanding of capitalism as the most effective way of organizing the social order, modern Western society. From this premise, the concept of goal–oriented actions was formed, only within the framework of which an effective sociological analysis is possible, since it was this construction of goal-oriented actions that determined the construction of ideal types. Other types of actions, or rather determinants of social behavior, such as value-rational actions, are, according to Weber, an exception, and not an equal type.