The influence of psychoanalysis on the state-legal views of M.A. Reisner and A. A. Ehrenzweig: a comparative analysis of ideas

Nersesyants Anna Vladikovna ORCID: 0000-0001-6408-2015 Researcher of the Department of Philosophy of Law, History and Theory of State and Law of the Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 nersesancanna@gmail.com

The importance of psychoanalysis for the development of social science.   Psychoanalysis as a special method of studying the human psyche, developed by the Austrian neurologist and psychiatrist Z. Freud at the turn of the XIX and XX centuries for the treatment of neuroses, in the first quarter of the twentieth century. he managed not only to overcome the initial sharply negative attitude from the scientific community, but also gained many supporters and great fame. At the same time, a number of ideas, concepts and theoretical constructions of psychoanalysis were in demand in the sciences of society.  The greatest influence on social science was his theory about the unconscious processes occurring in the human psyche, which significantly form both an individual and the culture of peoples.

It can, apparently, be said that the ideas of psychoanalysis "resonated" with those layers of social consciousness that were associated with sensations, premonitions, and partly already with the understanding of the fundamental incompleteness and simplification of ideas about man as a rationally thinking carrier of a highly organized mind, confidently following the path of progress in various spheres personal and public life. The First World War, which forced many to face the manifestations of the wild element of the unconscious beginnings of the human psyche, sharply actualized the ideas of psychoanalysis about the place and role of the unconscious in the structure of the human psyche, about the deep connection of the unconscious with the collective experience of the primitive tribal community, about the constant struggle of the unconscious beginnings of the psyche with censorship and restrictions from the Ego ("I", Consciousness) and Super-Ego ("Super-Ego", about the conflict inherent in human nature between Eros and Thanatos as instincts of life and death, etc. 

 All this contributed to the fact that the influence of psychoanalysis went far beyond the scope of natural science knowledge into the sphere of philosophy, sociology and jurisprudence.  At the same time , Z. Freud did not have the task of integrating psychoanalysis into the social sciences: he sought to build a fundamentally new field of scientific knowledge based on the foundations of biology and the achievements of the nascent cognitive neuroscience. Moreover, Z. Freud denied any connection between psychoanalytic theory and philosophy, not to mention jurisprudence and sociology.   It was for these reasons that in 1924 he refused a huge fee of $25,000, even by today's standards, offered to him for conducting a psychological examination in the framework of a high-profile trial in Chicago in the case of two young men accused of premeditated murder ^{[25, p. 142]}.

  In the 20s of the last century, the greatest interest in the social aspects of the theory of psychoanalysis was shown primarily in the USSR, where a whole trend of social thought was formed, designated in modern literature as ^{[1, p.37]}, as well as in the USA, where the so-called movement of legal realists was born during this period, some representatives of which (G. Oliphant, D. Hutcheson, C. Llewellyn and especially J. Frank)  they turned to the ideas of psychoanalysis in their works. And if in the USSR, already in the 1930s, Freudian interpretations of Marxism were finished for a long time, then in the USA at the same time, interest in psychoanalysis received a new impetus: a large group of intellectuals who fled Hitler's Nazism arrived in the country, who brought modern achievements of European scientific thought to American social studies.

 M.A. Reisner belongs to the number of Soviet lawyers who were carried away by the ideas of psychoanalysis, and in the USA A. Ehrenzweig advanced the furthest in the direction of integrating the ideas of psychoanalysis into jurisprudence. It is significant that the main works in this field were published by both scientists a couple of years before his death, and in this sense they contain a kind of summing up of their scientific creativity.  Although M.A. Reisner was almost half a century ahead of his American colleague in trying to analyze legal phenomena through the prism of the ideas of psychoanalysis, A. Ehrenzweig, unfortunately, did not know anything about these aspects of his scientific activity: in his monograph "Psychoanalytic jurisprudence" he notes only the fact that M.A. Reisner developed the idea of a "natural basis of origin political systems based on an instinctive "revolutionary sense of justice" ^{[22, p.41]}. Most likely, A. Ehrenzweig received information about the works of his colleague from the book G. Kelsen's "Communist Theory of Law", a separate chapter of which is devoted to the legal views of M. A. Reisner.  Both authors speak about the Soviet scientist only in the context of the creative heritage of L.I. Petrazhitsky, without mentioning his recent works based on the ideas of Freudian psychoanalysis.  It can be assumed that if A. If the results of M.A. Reisner's research in this field were available to Ehrenzweig, then he would find in them support for some of his ideas, as well as the potential for fruitful scientific polemics.

Despite all the differences in the approaches of these scientists to the psychoanalytic interpretation of law and to the identification of areas of integration of jurisprudence with psychoanalysis , they were united by an exceptionally high assessment of the role of Z. Freud as a scientist who managed to look into the depths of the unconscious, to show its place in the structure of the human psyche and thus significantly expand the understanding of science about man as the main object of its cognition. For M.A. Reisner, an Austrian psychoanalyst is a researcher who "disturbed the peace of the world" and became an "apostle of the new gospel" ^{[13, p.7]}, having been persecuted for this. A. Ehrenzweig says in equally lofty tones that with the discovery of psychoanalysis, "the age of Plato gave way to the age of Freud" ^{[22, p. 35]}.

Next, we will compare the approaches of these authors to the interpretation of law from the standpoint of psychoanalysis, which, in our opinion, will allow us to demonstrate the wide range of influence of Freud's teachings on jurisprudence. But first, let's look at their creative biographies in general terms in order to understand what attracted such different, at first glance, researchers in psychoanalysis.

 Mikhail Andreevich Reisner (1868-1928) was a Russian and Soviet jurist, author of scientific works on the history of political doctrines, theory of state and law, as well as on social psychology. He was born in the Vilna province in the family of an official. On his father's side, M.A. Reisner was a representative of an impoverished branch of the aristocratic family of Baltic Germans, and on his mother's side, he was presumably a direct descendant of Catherine II's state Secretary A.V. Khrapovitsky ^{[7, p.11]}. As M.A. Reisner wrote in his autobiography, in his family he "was brought up in the general spirit of intellectual romanticism and from a young age was looking for a recipe for the salvation of mankind" ^{[8, p.143]}. 

In childhood and youth, M.A. Reisner was fond of painting, wrote poetry and wanted to be a priest, but after graduating from high school he entered the law Faculty of the University of Warsaw. Here he showed his abilities for scientific work: in the fourth year, a student M.A. Reisner received a university cash prize for a scientific study "On local Government" ^{[18, p. 482]}. He was greatly influenced by Professor A.L. Blok (the father of the poet A. Blok), who instilled in the future lawyer an interest in science and a desire for a sociological understanding of legal phenomena. After graduation, M.A. Reisner, on the recommendation of A.L. Blok, was offered to stay at the University of Warsaw for scientific work, but the difficult financial situation of the family forced him to take a teaching position at the Institute of Agriculture and Forestry in New Alexandria (Pulava, Warsaw province).   This complicated relations with A.L. Blok and subsequently prompted M.A. Reisner to apply for a degree at Kiev University, where the famous philosopher of law, Prof. E.N. Trubetskoy, became his supervisor.

 The ideas of E. Trubetskoy on law as a phenomenon of mental order had an undoubted influence on the formation of M.A. Reisner's scientific views. Of particular note is the fact that the arguments of a well-known jurist that during the revolution "positive law loses the meaning of law when it ceases to be the subject of persuasion of one or another social environment", and that the strength and validity of positive law are due to "unwritten legal norms that live in the depths of our consciousness" ^{[16, p. 58]}, subsequently strengthened M.A. Reisner in the idea that after the revolution, the Bolshevik government could abandon bourgeois law and rely on the revolutionary sense of justice, i.e., on the class intuitive right of the proletariat. As M.A. Reisner wrote, he proposed this idea to A.V. Lunacharsky, who implemented it in Decree No. 1 on the court ^{[14, pp.21-22]}. Another important direction of E.N. Trubetskoy's influence on a novice scientist was related to issues of national identity and folk psychology.  Being well acquainted with the works of his supervisor, M.A. Reisner could not help but pay attention to E. Trubetskoy's analysis of the book "Philosophy of the Unconscious" by E. Hartmann ^{[17, p.13]}.

In 1896, M. A. Reisner defended his master's thesis, after which he left for two years for an internship at Heidelberg University. His mentor in Germany was the famous German lawyer G. Jellinek, who not only expanded the young scientist's ideas about positive law, but also strengthened his understanding of the need to combine traditional legal analysis of law with the achievements of sociology and psychology. After all, G. Jellinek himself, in his work "The socio-ethical significance of law, untruth and punishment", spoke about the need for lawyers to study natural, psychological and social sciences, which have accumulated "inexhaustible treasures" for a long time ^{[4, p.4]}. During the internship, M.A. Reisner wrote a number of scientific papers on relations between the state and religion ("The Christian state" ^{[9, p.114]}, essays on "The Right of free religion" ^{[10, pp. 85-102]}, etc.).

In 1898, returning to Russia, he received an invitation to Tomsk University to the newly established Faculty of Law as a professor in the Department of Political Economy and Statistics.   Scientific interest of M. During the "Tomsk" period, Reisner was still focused on the problems of the correlation of law, morality and religion. At the beginning of 1901  he is seeking a one-year business trip abroad in order to complete his dissertation research.  The result of this business trip was his work "The Public Good and the absolute state" ^{[11, p.124]}, the essence of which was to criticize the foundations of absolutism.  After returning to Tomsk, M. Reisner begins a period of sharp deterioration in relations with the university leadership, which was triggered by his public lecture on a report on a business trip abroad. The leitmotif of the lecture was the question of "why is the Western homeland so sharply different from the Russian fatherland and, moreover, far from favoring this latter?" ^{[24, p.808]}.  As a result, M.A. Reisner resigns and goes abroad: first to Germany, then to France.  

In Europe, he took part as an expert in the Koenigsberg trial on charges of German Social Democrats in a state crime against the Russian tsar. After this process, he becomes a kind of "illegal representative of revolutionary Russia in the public opinion of Europe" ^{[8, p.144]}. During this period, the scientist published the books "The Common Good and Absolutism" and "Russia's Struggle for Rights and Freedoms", as well as a number of articles that were translated into Russian by V. I. Lenin.  In 1907, M.A. Reisner returned to Russia and began teaching at St. Petersburg University as a privatdozent at the Department of History of Political Doctrines, and then at the Faculty of Law of the Psychoneurological Institute, where he worked together with the outstanding lawyer and sociologist M.M. Kovalevsky.   His attention is increasingly attracted by the psychological approach to understanding law, presented in the works of the German lawyer L. Knapp, who sought to create a psychophysiological theory of legal thinking, and the Russian scientist L. I. Petrazhitsky, who developed the theory of intuitive law as emotional experiences of an imperative-attributive nature^{[12, p. 3]}. 

 After the revolution of 1917, M.A. Reisner, at the suggestion of V. I. Lenin, was appointed head of the Department of Legislative Assumptions and Codifications of the People's Commissariat of Justice, where he participated in the development of the first Soviet Constitution of 1918 [3 p.152], and also became the author of the Decree on the separation of church and state. Since 1918, M.A. Reisner, together with the Soviet historian M.N. Pokrovsky, initiated the organization of the Socialist Academy of Social Sciences, within which he headed the Cabinet for the Study of Religion and Religious Ideology, Social psychology.  During this period , his interest in psychology received a new impetus due to acquaintance with the works of Z. Freud on psychoanalysis. In his recent scientific research, M.A. Reisner pays great attention to the ideas of Z. Freud, seeking to use the scientific potential of his theory for a Marxist critique of capitalism. 

In 1926, the scientist's daughter, the famous revolutionary L.M. Reisner, died (probably from typhoid fever), and a year later his wife committed suicide. This tragic situation was aggravated for the scientist by the increased criticism of his colleagues (P.I. Stuchka, E.B. Pashukanis, A.Ya. Vyshinsky, etc.) for their commitment to psychologism and idealism, for the separation of law from the state, for the interpretation of Soviet law as a compromise between the systems of proletarian, bourgeois and peasant law, for the connection rights with justice and equality, etc. ^{[6, p. 254]}. In 1928, M.A. Reisner died of a heart attack.     

Albert Armin Ehrenzweig (1906-1974) was an Austrian–born American lawyer, author of scientific works on the history of political doctrines, the theory of state and law, as well as on psychoanalytic jurisprudence.

 A. Ehrenzweig started his scientific and practical activity in Austria, and then continued it in the USA. Being a representative of a well-known legal dynasty in Austria (A. Ehrenzweig, like his grandfather and father, chose the profession of a lawyer), in 1928 he defended his thesis on "Guilt as the basis of liability for damage" at the University of Vienna, where he soon received the status of a privatdozent in civil and insurance law. In addition to teaching, A. Ehrenzweig worked for a number of years in the arbitration court of one of the districts of Vienna.  In 1939, after the annexation of Austria to Hitler's Germany, he was forced to move to Great Britain, where he received a degree in law, allowing him to teach in this country.   However, soon A. Ehrenzweig emigrates to the USA, where he again has to confirm his degree in order to teach at the University of Chicago.  In the first half of the 1940s, his knowledge and broad outlook were in demand for legislative activity: A. Ehrenzweig was invited to participate in the work of the Commission for the Revision of the Legislation of New York.  From 1948 until the end of his days, he taught private international law at the University of California at Berkeley ^{[25, p.1069]}, where he collaborated and became friendly with G. Kelsen, communication with whom influenced the scientist's interest in the problems of theory and philosophy of law. 

A. Ehrenzweig published a number of works on tort law, as well as private international law, which brought him worldwide fame.    However, since the 1960s, the psychological aspects of the theory and philosophy of law have begun to attract more and more attention of the author, for the development of which he relies on the theory of psychoanalysis Z. Freud.  In 1964, the scientist published the work "Psychoanalytic approach to the definition of insanity - the key to the problems of criminal responsibility and insanity on death row" ^[20], in 1965 his article "Psychoanalytic jurisprudence: the Common language of Babylon" ^[21], as well as the co-authored article "Prolegomena to the psychoanalysis of law and justice" was published ^[19]. In 1971 he published a voluminous monograph "Psychoanalytic Jurisprudence" ^[22], and in 1977 (after the author's death) another monograph "Law: a Personal View" ^[23] was published, which also examines the problems of integration of jurisprudence and psychoanalysis.

  He set himself the difficult task of rethinking from the standpoint of psychoanalysis as a method of studying the human psyche his accumulated experience of scientific research, teaching practice, as well as work as a judge.  At the same time, being a supporter of G. Kelsen's position in his approach to understanding law as a whole, he believed that those initial principles of law, which in G. Kelsen's theory are designated by the concept of the basic norm, should be sought in the depths of the unconscious beginnings of the human psyche, where a sense of justice based on biologically conditioned emotions is formed. That is why he turned to psychoanalysis Z. Freud as the main, in his opinion, specialist in the field of the study of the human psyche. It is obvious that the scientist's interest in Freudianism was influenced by the events of the Second World War and the practice of Nazism in his native Austria, which again, as it was at the beginning of the twentieth century, sharply actualized the problems of the unconscious as a factor influencing people's behavior.

Psychoanalytic jurisprudence of A.A. Ehreinweig and the psychological concept of class law of M.A. Reisner: comparative analysis. Both authors build their legal theory on the basis of understanding the processes of the origin of law and the state, highly appreciating the achievements of Z. Freud, who, as M.A. Reisner wrote, revealed in the mental experience of a person "amazing remnants of his most ancient culture" ^{[15, p.17]}, thus confirming the guesses of some outstanding child psychologists that The ontogenesis of man carries the features of phylogenesis, i.e. the collective development of the human race. A. Ehrenzweig also, in line with the Freudian approach, speaks of a clear parallelism between the ontogenesis of an individual and the historical and evolutionary development of mankind. Similarly, he writes, as a man who came out of the womb was physically shaken by this separation from the mother's body, primitive man was disoriented in his desperate impotence before the omnipotence of nature. In the future, he gradually awakens to reality and in the alarming process of growth realizes his almost complete dependence on the outside world and his environment ^{[23, p. 8]}. At the same time, in the process of the child's development, the author identifies the initial - theocratic - stage of his ideas about justice, manifested in reverence for almighty parents. Further, emotional emancipation leads to the stage of anarchy and two forms of justice are formed - theocratic and anarchic. Finally, there is a model of social cooperation between parents and a child based on the awareness of the need for social order ^{[23, p. 8]}. Similarly, according to A. Ehrenzweig, political systems are developing ^{[23, p. 8]}.

 The positions of Soviet and American scientists are also brought closer by the recognition by both of the fact that legal science loses a lot in its understanding of a person as a subject of law due to the fact that it limits the scope of its attention only to the rational component of the human mind, underestimating, and often simply ignoring the significance of its sensory component, the quintessence of which is a sense of justice.

As for the differences in their approaches to assessing the role and significance of psychoanalysis for legal science, first of all, attention is drawn to the fact that M.A. Reisner is more critical than his American colleague about the ideas of Z. Freud, considering fundamentally incorrect the refusal of the founder of psychoanalysis to use psychoanalysis to study society and social relations. In particular, M.A. Reisner argues that Z. Freud was mistaken when he considered all economic activity as conscious, not seeing in it the same struggle of conscious and unconscious principles that occurs in the human psyche. This, in his opinion, indicates the inconsistency of Z. Freud's interpretation of man, since he himself recognized that the unconscious is a product of collective experience.  After all, from the standpoint of psychoanalysis, M.A. Reisner develops this idea, "consciousness itself turns out to be a collective product both in form and content ... and the entire human psyche, up to the formation of painful "symptoms", is also one of the phenomena of social life" ^{[13, p.7]}. It is indicative, the author writes, What is Z. Freud interprets neuroses as "social diseases" ^{[13, p.7]}.  M.A. Reisner assesses this inconsistency of Freudian psychoanalysis as "some great sin" from a methodological point of view ^{[13, p.7]}.

M.A. Reisner attaches particular importance to the transfer to social relations of the Freudian concept of repression (i.e. suppression, repression) as the most important mechanism for the formation of the unconscious. Such repression, which is a way of psychological protection, eliminating negative experiences from the sphere of consciousness, does not destroy them, but transfers them to the unconscious, from where they continue to influence human behavior. M.A. Reisner saw such displacement in the change of various ideologies (i.e., "a set of ideas, principles, norms and ideals to be embodied in human social activity") during major social catastrophes, when opposing ideologies "literally displace one another" ^{[13, p. 2]}. As a result of the change in the ratio of class forces, previously dominant ideological systems are put under severe prohibitions.

 This criticism of Z. Freud's view of the Soviet lawyer is primarily due to the fact that for him the subject of law is not an individual, but a class as a carrier of specifically class ideological ideas about equality and justice and legal claims based on this. Therefore, by the term "subjective law" he means class law ^{[6, p. 237]}, which expresses a specifically class sense of justice, thus introducing a legal element into the inter-class struggle of various legal ideologies. The result of this struggle is objective (in his terminology) law as a kind of compromise between the legal ideologies of different classes with the dominant position of the ideology of the ruling class.

And for A. Ehrenzweig, law is associated primarily with the norms that consolidate human rights in line with the liberal-oriented understanding of law as a system of human rights established in post-war Western legal thought. Accordingly, he is looking for the psychological origins of law in the individual sense of justice, which is one of the most important foundations of the mental structure of the human personality.  If jurisprudence, he believed, would continue to leave out of its attention the sense of human justice rooted in the biological origins of his psyche, then such disregard for the achievements of modern psychology would significantly limit the possibilities of legal theory in the knowledge of a person as a subject of law and deform legal (primarily judicial) practice. The author himself believed that the concept of "sense of justice", revealed by him through the description of such structural elements as instinct, empathy and conscience, should become one of the most important scientific categories of post-Freudian jurisprudence. Relying on the study of the sense of justice will, in his opinion, overcome the conflict between the two main approaches to understanding law - legal positivism and natural law doctrine, since each of these approaches strives for justice, the origins of which must be sought in the biological nature of man.

M.A. Reisner's position in this hypothetical legal discussion seems to be much more vulnerable. After all, since the subject of law for him is the social class, he, in his psychological interpretation of law, in fact, replaces psychology with ideology, treating it as the psychology of class. This means that "legal psychology, initially and fundamentally linked in the psychological theory of law with the individual" ^{[6, p. 250]}, he, as V.S. Nersesyants rightly emphasizes, passes off as a legal ideology. It is significant that his legal emotions "differ in the nature of demanding, forcible exercise of his rights, their combat protection, merciless revenge for their violation" and the legal psyche is "the psyche of struggle and dangerous destructive collisions ^{[2, p.148]}.  

 It should also be noted that, speaking about the sense of justice of the proletariat as the most important element of its legal psychology, M.A. Reisner indicates only the requirement "he who does not work does not eat", which, as G. Kelsen notes, goes back to the corresponding biblical formula ^{[5, p. 81]}. This "substantial poverty of proletarian legal ideology, recognized by the author, means, from Reisner's point of view, the natural readiness of the proletariat for the coming liberation from its legal ideology and law in general" ^{[6, p. 248]} in the spirit of the Marxist doctrine of the withering away of law and the state under communism.  With such anti-individualism, M.A. Reisner "undercuts the legal roots of his intuitive class law.... Thus, his peculiar class legal understanding also turns out to be a legal negation" ^{[6, p. 251]} due to the absence in class intuitive law of the principle of formal equality, the necessity of which he generally declares.

 Summing up, one can probably say that such a pronounced interest in psychoanalysis on the part of jurists belonging to different political systems, professing fundamentally different views on law, and, finally, living on continents far from each other, is evidence that legal theory is in need of a deeper approach to comprehend the nature of man as a subject of law. And this requires a broader involvement in the legal analysis of the achievements of modern human sciences.