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Pravo in psihologija

Ideal Types of Law from the Perspective of Psychological Typology

Marko Novak
p. 205-232
Translation(s):
Idealni tipi prava v luči psihološke tipologije

Abstract

This article presents ideal types of law in view of the law’s evolvement through history, and also concerning its contemporary manifestation. The presented ideal types of law have been developed on the basis of two great typologies: Weber’s and Jung’s. The starting point of my analysis is Weber’s ideal types of law. I tried to understand them in the light of Jung’s psychological types, however, this lead me to their modification with regard to their original understanding by Weber. In every individual certain cognitive functions prevail so is the case with every social community. Also with respect to law, both in terms of time and place – we can find proof for that in legal history and legal geography (i.e. comparative law). Concerning the four cognitive functions four general types of law can be developed, and on the basis of the influence of auxiliary functions on the dominant functions these can be further developed to eight specific types of law.

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1 Introduction

  • 1 Sharyn L. Roach Anleu, Law and Social Change, London, SAGE Publications, 2000, 22.
  • 2 Gavin Walker, Sociological theory and Jungian psychology, History of the Human Sciences (2012) 25 (...)

1When dealing with ideal types, we should define what we mean by the term ‘ideal’ at the outset. Thus what I understand in this article as an ideal type is a “hypothetical construct that involves the theoretical enumeration of all the possible characteristics against which empirical material may be compared”.1 The same would refer to the ideal types of law. The typology that is developed originates from Weber’s ideal types but, to some extent, is further developed and even modified in relation to his types. Moreover, this kind of typology has been constructed on the basis of Jung’s psychological typology. Jung, and post-Jungians with their development of psychological typology, helped to interpret and extend Weber’s ideal types of law. Jung must surely have been aware of Weber, especially the Protestant Ethic thesis, but he never discussed him, while Weber did not live to see Jung’s psychological types emerge.2As in the case of Weber, the empirical material for testing the ideal types of law has been taken from legal history. So these ideal types of law could also be called historical (ideal) types of law.

2 What follows is, firstly, a short description of Weber’s ideal types of law and a concise presentation of Jungian psychological typology. Secondly, a short justification of the relevance of tackling Weber and Jung together in such an analysis is provided. Thirdly, in the form of legal historical analysis, individual ideal types are constructed in light of psychological typology, i.e. the cognitive functions, with some modifications and developments with respect to Weber’s thought. Fourthly, in such a framework the ideal types of four different general versions of law and eight specific types of law are discussed before finally being reflected in eight ideal types of persons which are typical of such types or (legal) professionals.

2 Weber's Ideal Types of Law

  • 3 M. Weber, Economy and Society, Berkeley, University of California Press, 1978.
  • 4 Weber studied law during the height of German historical jurisprudence and then taught commercial (...)

3 One of the most important parts of Max Weber's work on law was certainly his ideal types of law that he developed in Chapter 8 of his posthumously published book Economy and Society,3 which he entitled 'Economy and Law' and subtitled 'Sociology of Law'. In addition to being a classical work in legal sociology, this Weberian analysis is also an excellent study in legal history.4 The gist of this sociological-historical work on law was in emphasizing the distinction between pre-modern and modern law, in which Weber differentiated between four ideal types of law.

  • 5 Weber 1978 (note 3), 882.
  • 6 Ibid., 656.
  • 7 Jung would assert that such a sense of justice is conditioned much more by the role of intuition t (...)

4First, the charismatic revelation of law associated with the legal prophets5 was, in Weber's opinion, of an irrational-formal character since those who “created” and “applied” the law used means that were not controlled by reason, e.g. they based their decisions on oracles or divine revelations.6 What could be added to such a type of law was, according to Weber, the irrational manner of judgments based on ordeals, the drawing of lots, duels, the swearing of an oath, sworn assistants, as well as on a sense of justice that was, in Weber's opinion, of an emotional character.7 Moreover, Weber added jury trials to the above mentioned list.

  • 8 Weber 1978 (note 3), 758-775.

5What was important for such a conception of law was the role of elders in the society who knew the relevant sacred rites. Most often, the elders included magicians, prophets and magi. As charismatic persons these were allegedly capable of discovering, not creating, laws through revelation. It was typical of their magical techniques that they used rites which were very highly formalized. Such persons, for example, reported to their community that the divine authority required for a certain dispute to be resolved in one way or another, in the context of which they usually “received” the higher message while in a state of ecstasy or through a dream.8

  • 9 Ibid., 657.
  • 10 Ibid., 784-802.

6Secondly, Weber developed a special type of law for empirical law creation and a judiciary that was carried out by legal honoratiores, which he termed the rational-substantive. What is typical of this type of law is that deciding on a legal problem is not affected by norms that are created on the basis of the logical rationalisation of abstract interpretations of certain meanings, but by ethical imperatives and utilitarian as well as pragmatic rules and political maxims.9 Following Weber, such a type of law mostly developed during the time of the Roman Empire, when practically and empirically educated lawyers in particular created the special profession of the lawyer. They, however, developed a casuistic law (Lat. casus – legal case) which is unsystematic and thus not typical of the modern age. Weber highlighted many similarities between this type of law and the education of lawyers by various legal practitioners (particularly judges and attorneys) in Anglo-American legal systems. Such lawyers have traditionally been oriented to practical law and casuistry and for a long time declined legal codification.10 Even today Anglo-American law is codified to a lesser extent than European Continental law.

  • 11 Ibid., 882.
  • 12 Ibid., 656.
  • 13 ‘Patrimonial' signifies “father-like” and sometimes refers to the seizing of all three branches of (...)

7The third type of law was, in Weber’s opinion, the law which was created and applied by great empires and theocratic authorities.11 In his opinion it is irrationally-substantive as it concerns deciding what is mostly affected by the concrete factors of a specific case which are evaluated on the basis of ethnic, emotional, and political foundations rather than on the basis of general legal norms.12 Here Weber pointed to the transition from charismatic law to a law that was based on power (imperium), which occurred at the time of the partial secularization of tribal society at the end of the Roman Empire and which was strongly conditioned by the military circumstances present at the time of the Migration Period. It concerned the conscious creation of legal rules on the basis of commands issued by military chieftains or a consensus reached inside the community. The central position was no longer given to charismatic revelation of law but to military commands. Thus the military organisation of society played a very important role in the secularisation of the law, which was also to some extent connected with the patrimonialisation of the law.13

  • 14 Weber 1978 (note 3), 809-859.

8Furthermore, the theocratic element in such a type of law signified the power of priests as the organised guardians of law, something which was especially reflected in the increasing importance of canon law. Certainly, in such a respect the patrimonial and theocratic powers were limited by the traditional law while canon law played an important role in development of the legal system towards rationality. Despite the fact that such a system could still, to some extent, be considered as rational in terms of the application of certain principles, the matter did not concern rationality in its instrumental meaning and logical in the formal sense, but rationality more in the direction of applying certain substantive principles of social justice, or of political, utilitarian or ethical content. Such law, particularly in its patrimonial version for resolving disputes, often used discretion and considered vested privileges as some kind of a gift of grace. Such an informal patrimonial administration reached its peak when the secular ruler put himself in the service of positivistic religious interests that exceeded mere ritual frameworks.14

  • 15 Ibid., 882.
  • 16 Ibid., 657.
  • 17 Ibid., 848-859.

9Fourthly, and finally according to Weber, the systematic enactment of law and the professional carrying out of the judicial function by persons having a formal legal education15 is part of rational-formal law, which concerns a professional, legalistic and abstract approach to law in the modern sense. What is, in his opinion, typical of this last type of law is the application of an abstract method that uses the logical interpretation of meaning and systematizes existing legal rules into a complex and coherent system of abstract legal rules.16 Following Weber, this occurred due to the existence of the enlightened absolutist emperor, who, with the aid of his state apparatus composed of university educated lawyers trained in the spirit of the reception of Roman law, managed to build a uniform state power. The natural consequences of such a direction to law were the great legal codifications of the 19th century.17

  • 18 Ibid., 882.

10 Weber opined that the history of law has continued and evolved in the following manner: firstly, there were primitive legal procedures in connection with a combination of magically conditioned formalism and irrationality and in which revelation played an important role. Then, an explicitly specialized legalistic and rationally-logical approach ensued and that was occasionally combined with theocratic or patrimonial informal complacency. Finally, a genuine logical sublimation and the deductive approach with the development of rational techniques in legal procedures followed.18

11 In the continuation of this work we will see how this Weberian concept of ideal types of law can be understood through the prism of Jung’s psychological typology. However, what follow are suggestions for modifications and extensions of Weber’s types.

3 Jungian Type Theory

  • 19 Carl G. Jung, Psychologische Typen, Duesseldorf, Patmost Verlag GmbH & Walter Verlag, 1921, 1971.

12One of the greatest theories of psychological types was that which was elaborated by Carl Gustav Jung in his Psychological Types.19 The field of psychological types seems to be an area of Jung's intellectual heritage that could also be of interest to lawyers and the law.

  • 20 These fundamental Jungian concepts are perhaps more simple explained by some of his contemporary f (...)
  • 21 Carl G. Jung, From Psychological Types, in V. S. de Laszlo (ed.), The Basic Writings of C. G. Jung (...)

13Initially, I should emphasize perhaps Jung’s most well-known concepts of extraversion and introversion. These two basic “attitudes” describe how psychic energy is divided in human beings, where we prefer to focus our attention, and what energises us. The extravert and introvert attitudes are present in everyone to a varying degree. The extraverted attitude is motivated from the outside and directed by external, objective factors and relationships. In the case of the extravert, who gets their energy from external elements, psychic energy flows outwards towards the world whereas, in the case of the introvert, who mainly gets his or her energy from within and also withdraws energy from the world, e.g. from the world of ideas, his or her attitude is motivated from within and directed by inner, subjective facts. Those who prefer extraversion get their energy from the outer world of people, activities, and things. Extraverts usually seek interaction, enjoy groups, act or speak first and then think, expend energy, focus outwardly, are talkative, like variety and action, are outgoing, think out loud, and enjoy discussing.20 Extraversion and introversion are mutually exclusive: if one forms the habitual conscious attitude, the other becomes unconscious and acts in a compensatory manner. Those who prefer introversion get their energy from their inner world of ideas, impressions, and thoughts. They usually like to be alone, enjoy one-on-one interactions, think first and then speak or act, conserve energy, focus inwardly, are quiet, like to focus on one thing at a time, are reserved, think by themselves, and enjoy reflecting.21

14In addition to the two attitudes, Jung introduced four functional types or four functions of the psyche to describe the character of the psyche. Jung posited four functions of the psyche and grouped them into two pairs of opposites. On one hand there are two rational or evaluative functions as they evaluate experience by helping us to make decisions: i.e. thinking and feeling. On the other hand there are two irrational or perceptive functions: sensation and intuition, as they do not evaluate but depend on acts of perception by referring to how we prefer to take in information.

  • 22 Baron 1998 (note 20), 10, 20.
  • 23 Ibid., 11, 26.
  • 24 Ibid..
  • 25 Ibid., 11.

15Sensation tells us that something exists. Those who prefer sensing pay attention to information taken in directly through their five senses and focus on what is or what was. Sensors usually prefer facts, concrete information, are more interested in what is current, pay attention to specifics, are practical and realistic, focus on the present, value common sense, and are pragmatic.22 Thinking tells us what it is. Those who prefer thinking make decisions in a logical and objective way. Thinkers are usually firm minded, analyse the problem, are objective, convinced by logic, are direct, value competence, decide with their head, value justice, can be seen as insensitive, are good at critiquing, and usually do not take things personally.23 Furthermore, feeling suggests that it is good or not. Those who prefer feeling make decisions in a personal, values-oriented way. They usually are gentle-hearted, sympathize with your problem, are subjective, convinced by values, are tactful, value relationships, decide with their heart, value harmony, can be seen as overemotional, are good at appreciating, and usually take things personally.24 Finally, intuition suggests where it has come from or is going to. Those who prefer intuiting pay attention to their “sixth sense,” to hunches and insights, and they focus on what might be. Intuitive people usually prefer insights, abstract information, are more interested in what is possible, focus on the big picture, are inspired and imaginative, focus on the future, value innovation, and are speculative.25

  • 26 Jung 1990 (note 21), ibid.

16An individual's innate conscious orientation will be towards one of these four directions. For example, if thinking is one's superior or most differentiated function then feeling would be one's most undifferentiated or inferior function, or vice versa. At the same time, the remaining two functions are the so-called auxiliary functions, which serve the superior function.26 Every person has a preference for one of the other auxiliary functions.

  • 27 They direct themselves and others according to fixed rules and principles since they are intereste (...)
  • 28 They formulate questions and seek to understand their own being. They usually neglect the world an (...)
  • 29 Ibid., 83.
  • 30 Ibid.
  • 31 They tend to focus on external facts, are practical, hard-headed and accept the world as it is, su (...)
  • 32 Ibid., 84.
  • 33 Ibid.
  • 34 Ibid.

17In accordance with this, Jung has combined the two attitudes with the four functions and created eight psychological types. These are the following: extravert thinkers,27 introvert thinkers,28 extravert feelers (e.g. chat show hosts),29 introvert feelers (e.g. monks, nuns, musicians),30 extravert sensers,31 introvert sensers (e.g. connoisseurs, aesthetes),32 introvert intuitives (e.g. mystics and poets),33 and extravert intuitives (such as PR people or adventurers).34 Locating a person’s type enables us to make better sense of his or her world view and value system. The types describe personality and frequently determine the choice of vocation and, within such and based on the chosen profession, also the special area that the individual in inclined to focus on in his or her career.

  • 35 Jung 1990 (note 21), 9.

18Jung was aware of the fact that in every person there predominates a certain mechanism of activity which, however, cannot get away from the other mechanisms being present in the same person, although they might be completely opposite to the predominant one. Therefore, according to Jung, there are no clear types but the notion of ideal types only point to the predominant existence of the said mechanism in a person.35

  • 36 Ibid.

19His methodology of creating ideal psychological types proceeded from insights that he obtained while dealing with his patients. Furthermore, these insights were appropriately reflected through the study of some previous attempts in history at creating certain ideal types in different areas of human thought. For that reason he studied the works of Schiller, Nietzsche, James and other great men.36 He finally analysed all such previous attempts and tried to comprehend them through developing appropriate categories that resulted in his own theory of (ideal) psychological types.

  • 37 The so-called Myers-Briggs Type Indicator that was developed in order to establish the presence of (...)
  • 38 Ibid.

20Today, certain psychologists continue to develop Jungian types by discovering new dimensions. Concerning the above-mentioned typological framework, some post-Jungians have further developed the characteristics of the cognitive functions and, on the basis of such, even designed a special type indicator (the so-called MBTI).37 Although the originality of the above-mentioned dimension of psychological typology must be attributed to Jung, the post-Jungians importantly developed certain aspects of his thought. Thus, additional research into the psychological types, especially of the influence of the auxiliary function on the dominant function, contributed to the extension of Jung’s eight types to sixteen.38 Furthermore, the existence and characteristics of these types were confirmed by the results of numerous MBTI tests undertaken in last decades. Therefore, the work of the post-Jungians concerning psychological typology was very important in order for the ideal (general and specific) types of law and their corresponding ideal persons or (legal) professionals to have been developed in this article.

21Now let us see how some post-Jungians described the basis facets of specific cognitive functions. These facets will be important for the interpretation and modification of Weber’s ideal types of law in section 5.

  • 39 Naomi Quenk, Essentials of Myers-Briggs Type Indicator Assessment, Hoboken, New Jersey John Wiley (...)

22Thus, for sensing as a cognitive function Quenk emphasizes that it focuses on what can be perceived by the five senses. Initially there is the (1) concrete that focuses on concrete, tangible, and literal perceptions, communications, learning styles, world view, and values. It trusts what is verifiable by the senses, and is cautious about going beyond facts. Then what is typical of sensing is the (2) realistic which prefers what is useful, has tangible benefits, and accords with common sense. It values efficiency, cost-effectiveness, conformity, and security. Furthermore, as a characteristic of sensing the (3) practical is more interested in applying ideas than in the ideas themselves and likes working with known materials and using practical, familiar methods. It prefers modest, tangible rewards over risky opportunities for greater gain. The (4) experimental as another characteristic of sensing trusts its own and other’s experience as the criterion for truth and relevance and learns best from direct, hands-on-experience. It focuses more on the past and present than the future. Finally, what is typical of sensing is also the (5) traditional, which likes the continuity, security, and social affirmation provided by traditions, established institutions, and familiar methods. It is uncomfortable with fads and unconventional departures from established norms.39

  • 40 Ibid.

23A certain antipode to sensing is the cognitive function of intuition. According to Quenk what is firstly typical of it is the (a) abstract that focuses on concepts and abstract meanings of ideas and their interrelationships. It tends to use symbols, metaphors, and mental leaps to explain its interests and views. The next characteristic of intuition is the (b) imaginative, which values possibilities over tangibles and likes ingenuity for its own sake. It is also resourceful in dealing with new experiences and solving problems. Moreover, what is characteristic of intuition is the (c) conceptual. It likes knowledge for its own sake and focuses on the concept, not its application. It enjoys complexity and implied meanings over tangible details, and likes to take risks for large potential gains. Another characteristic of intuition is the (d) theoretical that sees relevance beyond what is tangible and trusts theory as having a reality of its own. It is future oriented and sees patterns and interrelations among abstract concepts. A final characteristic of intuition can be the (e) original that tends to value uniqueness, inventiveness, and cleverness to put meaning into everyday activities. Also it enjoys demonstrating its own originality, and believes that sameness detracts from meaning.40

  • 41 Ibid., 11.

24Furthermore, for thinking as a cognitive function what is firstly typical is the (i) logical that believes that using logical analysis and hard data is the best way to make decisions, and focuses on cause and effect, pros and cons. The next characteristic of thinking is the (ii) reasonable, which uses sequential reasoning, fairness, and impartiality in actual decision making, and is confident and clear about objectives and decisions. What is also characteristic of thinking is the (iii) questioning that asks questions to understand, clarify, gain common ground, solve problems, and find flaws in its own and others’ viewpoints. Thinking is also (iv) critical since it uses impersonal critiquing of ideas, situations, and procedures to arrive at truth and avoid the consequences of flawed ideas and plans. Last, but not least, is (v) tough by means of standing firm on decisions that have been thoroughly considered and critiqued and wishing them to be implemented quickly and efficiently.41

  • 42 Ibid.

25Finally, according to Quenk, the feeling function bases conclusions on personal or social values with a focus on understanding and harmony. The first facet of feeling is ‘empathetic’ in believing that a decision’s impact on people should be primary and focusing on values and relationships. The second is ‘compassionate’ in considering the unique and personal needs of individuals rather than objective criteria as important in decision-making. Following Quenk, ‘accommodating’ is the third facet. It values harmony and the incorporation of diverse viewpoints as more effective ways to gain common ground than confrontation. The fourth facet of ‘accepting’ uses tolerance of the other to arrive at a mutually satisfying plan or procedure and is open to a broad range of ideas and beliefs. Finally, the ‘tender’ facet uses gentle persuasion and a personal approach to reach an agreement.42 Before I begin to use the Jungian psychological types to interpret and modify Weber’s ideal types of law, I should at least indicate, if not justify, what actually brings these two great thinkers together.

4 The Weberian and Jungian Types Compared

  • 43 Walker 2012 (note 2).
  • 44 Ibid., 52-53.

26 The general relations between Weber’s sociology and Jung’s psychology have been considered by Walker.43 In Walker’s opinion what brings Weber and Jung together is actually sociological theory. He contends that Jung’s psychology is sociologically coherent when seen in the light of sociology’s major theoretical traditions, which entails that it makes sense to sociologists when seen in the light of Weber’s sociology. He also asserts that Weber’s historical sociology comes quite close to Jung’s cultural history of the psyche. Walker further suggests that sociology should acknowledge Jung in order to orient new enquires, as well as for reflexive analysis of certain sociological debates.44 This is precisely my intention in this article: to reflect upon Weber’s sociology of law on the basis of the Jungian psychological types as well as modify and extend the former on the basis of the latter. Upon analysing how specific combinations of the dominant-auxiliary functions’ relation determines certain types of law, the analysis which follows will focus on developing ideal types of persons dealing with the law or legal professionals. In any given structural and cultural situation, certain personality types will predominate and tend to shape their structural and cultural settings around them.

27Both authors would certainly agree that in the course of social development, the evolution from pre-modern to modern law to some extent corresponds to the progress from the important role of irrationality in law to the subsequent importance of rationality. Take Weber’s development from irrational pre-modern ideal types of law to those modern based on rationality (both in the formal and substantive versions) or Jung’s comparison between the irrational (intuition, sensation) and rational (thinking, feeling) cognitive functions: both of them support the idea of a certain progress or at least an important change in people’s cognition over time within the course of our cultural history. Both would also support the view that the presentation of the ideal types of law has, on the one hand, a legal historical value as it points to the dependence of the historically changing of law on the changes in society and taking into account the changing of the individual while, on the other hand, it demonstrates that there exist certain laws and permanence with respect to human beings and society. The interpretation of such laws and their permanence through psychological typology emphasizes the projection of people’s cognitive elements and the prevailing social or collective cognitive elements into the law of a specific time and place. Despite the fact that law changes together with the society (Ubi societas ibi ius), it is still possible to establish certain specific, typical appearances of the law of a certain time. On the basis of such, there is the possibility to create certain ideal types of law, the characteristics of which reflect the most typical or prevailing elements of the society in general at a certain time and place.

28Weber and Jung would also agree that at a certain historical period the matter does not concern pure ideal types of law but the co-existence of several ideal types and their mutual presence to a certain extent in each other, concerning which one of them is prevalent or predominant and others being complementary to the prevailing one. Nevertheless there are differences between their comprehension of the types so Jung’s more developed general theory of types will serve to criticize, change, reallocate or extend Weber’s ideal types of law in the context of legal historical development.

29In the next section, by referring to the characteristics of the psychological cognitive types presented in section 3, we will be analysing Weber’s ideal types of law through the individual periods of legal history and also trying to modify them.

5 General and Specific Types of Law From the Perspective of Psychological Typology

30Weber's description of the ideal types of law seems to still be applicable to a certain extent, which is also supported by their interpretation below made in light of Jungian psychological typology. However, a certain correction of his models or their understanding is necessary when the (post)Jungian psychological typology is applied to them.

31Thus, Weber’s ideal types of law are to some extent modified so that the pages below consider the following general types of law: the religious type, the traditional type, the logical, and the harmonious type. The modification of Weber’s thought through an analysis from the perspective of Jungian and post-Jungian psychological typology thus contributed to the development of a certain number of changes with respect to Weber’s ideal types of law: (i) certain types’ names were altered; (ii) certain subtypes were allocated from one to another type of law; as well as (iii) certain new types of law and their subtypes were designed. On the basis of the application of the psychological typology Weber’s four main types are to some extent renamed and additional four subtypes and their corresponding ideal persons or (legal) professionals are thereby developed.

32Moreover, it is necessary to emphasize that within a particular period of time, along with a certain type of law, there also existed other types of law that were perhaps not so dominant in that era. Furthermore, until modern times it is not possible to consider any kind of established and consciously developed system of law – at least not in terms of the complexity which is typical of legal systems today.

5.1 The Religious Types of Law

33 The first general type of law described here is the so-called religious type of law. It consists of two variants: mystic law and theological law. To some extent, both types would correspond to what Weber called the charismatic revelation of law and theocratic law. Contrary to Weber, who in his ideal types referred to different epochs in which these two types appeared, I am analysing the types within one general type of law that is not limited to one special period of time but can be present at any time and in any society. Mystic law and theological law are different from each other and they appeared in different time periods, with the first being applied in more primitive societies and the latter in more developed social systems. What then justifies them being analysed within one joint model?

34 One of the main reasons for their unified treatment is the fact that both of them are based on intuition as one of the irrational cognitive functions. Still, they differ in that one is based on the auxiliary cognitive function of feeling whereas the other on the auxiliary function of thinking. This difference will be analysed in more detail below with respect to a specific type.

5.1.1 Mystic Law

  • 45 Examples are given according to the antology by Katja Škrubej, Pravo v zgodovini, Odlomki virov s (...)

35 The first subtype of law refers to the activity of charismatic authority by prophets and mystics possessing supernatural capabilities. The people of that time generally believed in such interpreters of the interventions of divine forces, respected them as such and considered their authority to be legitimate. A type of law that is based on the operation of supernatural forces and their revelation to human beings is designated as the prophets’ religious type of law. Such an irrational manner of referring to the divine origin of codes and other laws is particularly typical of the ancient Oriental law and its explicit theocratic orientation. To a certain extent, it also continued in ancient Greece, despite the important emergence of rationality, and at the early beginnings of Rome. Its importance, however, re-emerged during the Middle Ages, only to be subsequently slowly repressed with the beginnings of the modern era. What then followed was the increasing predominance of modern law being particularly secularized and rationalized. In the continuation we are presenting certain typical examples taken from legal history to demonstrate the existence of typical metaphysical elements in the perception of law.45

  • 46 Viktor Korošec, Slovenski prevod Hammurabijevega zakonika, Zbornik znanstvenih razprav Pravne faku (...)
  • 47 Martha T. Rot, Law Collections from Mesopotamia and Asia Minor, Atlanta, Scholars Press, 1997, 15- (...)
  • 48 A typical example of such follows from the Code of Hammurabi, in which one who accused another of, (...)
  • 49 Rene David, Guenther Grasmann, Einführung in der großen Recthssysteme der Gegenwart, München, C. H (...)

36In view of law creation as a typical example of such religious law we can take the prologue to the Code of Hammurabi from almost two thousand B.C. In this work it is written that Hammurabi composed the mentioned code following a command from the God Marduk who had ordered him to ensure law and justice for his people.46 A similar divine ordering was found even some 320 years before Hammurabi in the Law Collection of Ur-Nammu, where the God Nana ordered him to adopt certain legal rules.47 Also, the Decalogue revealed to Moses by God and which constitutes part of Hebrew law falls within this context. Furthermore, an important metaphysical element of the ancient Oriental law is reflected in trials by ordeal. divine judgements made upon the trial by, for example, a river,48 duel, boiling water, fire, red-hot iron. In general, ordeals were carried out not only within the old Oriental law, but also in the Middle Ages, somewhat until the beginning of the 13th century when the Holy See prohibited priests from taking part in them.49

  • 50 This was an order by gods, which was communicated to people in the form of prophesy. Rajko Bratož, (...)
  • 51 Anton Sovre, Starogrška lirika, Ancient Greek Lyric Poetry, Ljubljana, DZS, 1964, 76-79.
  • 52 Škrubej 2010 (op. 45), 63.

37Despite the increase of rationality in Ancient Greece, a certain degree of the metaphysical approach to law remained, especially at the beginning of Greek civilization. For example, Plutarch reported that King Lycurgus did not write down his laws as this was prohibited by one of the retras.50 Furthermore, in his Great State Elegy, King Solon cited the divine laws of Dike (i.e. Lady Justice).51 Even in the strongly rationalized period of Rome, at least at its beginning during the period of the Kings of the archaic era prior to the Code of Twelve Tablets, one can find certain metaphysical elements when the Roman society lived upon customary law that still contained strong elements of sacral law. In such a manner they believed that a violation of law in the form of sacrilege or a crime interrupted the peaceful co-existence between people and gods. Also, the mentioned Code of Twelve Tablets still knew the punishment for desecration, which entailed that the perpetrator was given over to the gods and thereby became an outlaw.52 Subsequently, Roman law was rationalized to an important extent.

  • 53 Sergij Vilfan, Pravna zgodovina Slovencev, Ljubljana, Slovenska matica, 1961, 1996, 272.

38The irrational metaphysical elements in law were re-emphasized at the beginning of the Middle Ages when trial by ordeal was still used. Furthermore, a specialty of the early Middle Age law, particularly in Germanic leges propria (or leges barbarorum), were sworn assistants as persons who swore under oath that, for example, the assertion of one of both parties was correct or the defendant was dangerous and thus probably guilty of committing a criminal offence. Otherwise the swearing under oath is a means of evidence that is in particular of sacral origin. In swearing under oath such assistants, not the witnesses in today’s meaning, had to touch a sacred object, in the Christian era either the crucifix or gospel; in the case of Jews, the Decalogue. To some, a judgement sworn under oath was one of the first and the longest preserved forms of divine judgement.53

  • 54 Weber 1978 (note 3), 768-769.

39At the time of the early Middle Ages, there still existed charismatic prophets who made judgements in specific procedures among the Germanic tribes in the West. Such prophets included, for example, the brehon in Ireland, druid among the Gauls, rachimburgi among the Franks and lag saga with respect to the Nordic tribes.54

  • 55 Russ VerSteeg, Early Mesopotamian Law, Carolina AP (2000); cit. according to Škrubej 2010 (note 45 (...)

40With this type of law, which is somewhat characteristic of the old Oriental law and also of the law of the early Middle Ages, there certainly co-existed other types of law that are presented in the continuation. In particular these referred to legal customs, their collections, the commands and decrees of various rulers, simple laws, court decisions, etc., which were not necessarily of a metaphysical origin. In addition to important sacral roots of the then societies it was also necessary to regulate completely secular issues. Thus, for example, even from old Mesopotamia, 2112 B.C., the notice on an ‘ordinary’ civil contract has been preserved.55

41Which are the most typical examples of the legal sources of general religious law?

42If legally valid general legal acts with religious content are concerned, first of all the so-called metaphysical ‘constitutions’ must be mentioned, including the Bible (particularly the Old Testament) and the Koran. These were not only supreme religious documents but also applicable legal acts. Certain metaphysical legal norms also appeared in certain parts of historical laws or law collections such as the provisions of the Code of Hammurabi on ordeals. Certainly, until the appearance of modern legal codifications, all laws or codes were merely of a casuistic, not a systematic, character. Moreover, certain ritualistic legal customs that found their place in various law collections or were simply part of oral tradition could also have contained metaphysical laws. Otherwise the majority of laws in the past were in the oral form of legal custom until writing became better developed.

43What occurred to such types of law in later periods? Thanks to the development of modern law, which is particularly rational, it was slowly pushed to a peripheral position. Already the shift in modern natural law transferred it from a sacral dimension to the dimension of an individual’s moral perception of the world. With respect to the Anglo-American and European Continental legal families, today we could still find it but more or less in certain senses of justice or within a quite narrow circle of people who perceive law in relation to its classical (mostly religious) natural-law dimension. However, in the event of traditional and religious legal families it is still more common.

44What, then, are the psychological-typological characteristics of prophets’ and mystics’ law? Which are their prevailing elements?

  • 56 Jung 1990 (note 21).

45As we maintain that such law is irrational, one of the so-called irrational cognitive functions, as the functions of perception, must be in the forefront. Considering the fact that such a law depends to a large extent on divine revelation, the most important cognitive function in this respect is certainly introverted intuition. Concerning intuition (Lat. intueri to look upon, or in) Jung wrote that the content is presenting itself as a whole or entirely giving us little clue to discover or explain where it comes from. It concerns a somewhat instinctive perception of the given (a priori), somewhat internal certainty or conviction. Spinoza and Bergson called the scientia intuitiva the highest kind of knowledge. According to Jung, both intuition and sensation are part of infantile and primitive psychology. In its introverted version, intuition also includes the visions and insights of various prophets and mystics who obtain the material for such in particular from the unconsciousness and archetypes.56

46Weber designated such an ancient type of law as irrational-formal. The ‘formal’ refers to the careful consideration of rituals which allegedly lead to one performing them to discovering a just judgment, while the ‘irrational’ certainly relates to the predominance of intuition as a special cognitive function. In such, the formality of a ritual or ritual procedures in discovering the contents of a just decision affords priests the possibility of shelter and security when they are dealing with powerful numinous contents.

47Intuition as a perceptive function is irrational. To emphasize a perceptive function as dominant one entails that you consider an evaluative function to be of secondary importance. At least in the context of law and legal professions there is a difference between pre-modern law and modern law: as we will see in the continuation, the dominant cognitive functions in the framework of modern law are rational while in the pre-modern frame these were more irrational.

48As already indicated, by adding an auxiliary function to the dominant function of intuition we initially come to the so-called mystic law. Here the auxiliary function, i.e. feeling, is an evaluative function as the one which evaluates the perception received through intuition. What feeling adds to intuition is a somewhat total, harmonic, and value-laden experience of numinous contents as revelation, which by the prophet is then shared with other people. In the context of legal procedures, it is the revelation that is relevant for the outcome of these procedures. Since we cannot deal with any type of legal professions at that time, we could at least point to a person typical of such law, that is a prophet or a mystic.

5.1.2 Theological Law

49 What I consider as the second type of religious law is the so-called theological law. It is intuitive in origin, being on one hand based on the perception of a metaphysical content but it is, on the other hand, different from mystic law. I call it theological law as, in terms of psychological typology, it can be considered that, after the period of mystical religious revelations from the period of the old Oriental law and the beginning of the Middle Ages, the theocratic authority of the Catholic Church in particular slowly became more dogmatic and thus departing from the so-called ‘living’ faith.

50 The religious contents once revealed were subsequently written down, codified and also dogmatized. A system of religious rules, procedures, and institutions was developed. This would entail that the initial, strongly intuitive, perception of the sacred was later evaluated by the auxiliary function of thinking, which is represented by logic, systemization, and formality. The aetiology of theology is Gr. Theo – God + -logia from logos – knowledge, study. Out of original religious revelation a comprehensive rational system of the religious teaching was developed. Notwithstanding the role of thinking in the development of the system of, e.g., canon law the primacy of intuitive perception must haven been preserved since without a relation with the numinous content there is no religion, nor religious law.

51 This kind of orientation towards theological law is certainly represented by a typical person or profession, namely a theologian (or sometimes a priest). In the West, numerous theologians and canon lawyers have contributed to the development of a vast corpus of canon law. Likewise, in the Islamic Sunni tradition there have been various schools of law (like the Hanafi school of law), which were composed of theologians and lawyers and which contributed significantly to the subsequent development of Islamic law by interpreting various primary religious texts.

5.2 The Traditional Type of Law

52 Within the general traditional type of law I analyse two specific types of law that are typical of a traditional society: (1) imperial law and (2) customary law. As we will see in the continuation, both are characterized by the role of the predominant cognitive function of sensation, also as a function of perception being irrational in nature. In the first variant the dominant sensation is supported by the auxiliary (evaluative) function of thinking, while by feeling in the second variant.

53 This kind of law is traditional by its origin and as such more part of the pre-modern periods of time (i.e. partly in ancient times and the Middle Ages). Some traces of it can also be found today. Legal customs (e.g. constitutional customs in the UK, legal customs in business law) are not so uncommon today even in the most developed countries while imperial laws emerge from time to time in some absolutist political regimes (most frequently associated with some military commands during or after certain coup d'etats).

5.2.1 Imperial Law

54In the sense of traditional law, Weber primarily dealt with the creation of imperial law (e.g. through commands by a ruler) regarding secular authority. Imperium signifies direction, command, or supreme power. Thereby Weber in general considered the power and commands of military commanders at the time of the Great Migration at the end of the Roman Empire. At that time, many wars and military conflicts occurred when the tribes had to act very quickly, most often merely upon an oral command, which could temporarily repeal and substitute even the traditional customary law of a certain tribe. Such imperial law was subsequently developed in the period of patrimonialisation (Lat. patrimonium from pater father), being a kind of privatization of public authority by local feudal lords at a micro level, and emperors in the event of the macro level of the kingdom. Such mostly oral laws, supplemented local legal customs and, through social development, led to more rational forms of legislation.

  • 57 Weber 1978 (note 3), 844-845.

55Such patrimonial law was not rational in the sense of logical rationality, since the ruler made his decisions case by case exercising discretion most often without being bound by any prior legal rules. So the result of a certain procedure was to a great extent dependent on the ruler’s grace or privilege which he or she vested in someone. If the ruler was simultaneously the highest priest in the kingdom then his power was almost complete.57 Still his or her discretion was not absolute since he or she had to some extent consider also local customs and religious norms (of natural law).

  • 58 Tom Chetwynd, Dictionary for Dreamers, London, Paladin Books, 1982, 38. Father is a symbol of repr (...)

56The patrimonial authority of this kind was patriarchal (Gr. patriaches from patria generation) or “father-like”. In the language of symbols, the father archetype represents the cognitive function of sensing, which primarily refers to “earth law”.58 The legal sources of such imperial law were various, mostly oral commands or directions in the sense of individual legal acts, for example in terms of the number of days that a serf had to spend at a castle performing compulsory work. Added to this could be various gifts of land or land tenures, usually made in writing as statements of will by which feudal lords donated land to their vassals as alodium or in return for military service. Furthermore, there are also Capitularies issued by Frankish kings and which contained instructions for the regulation of certain areas in royal ownership. These were, however, more similar to what we call today general legal acts although they were written in a more casuistic fashion.

57As already mentioned rulers, emperors, chieftans, and other types of leaders have traditionally been considered as authorities of a father-like character for a particular social group. At the same time they had a role of supreme earthly authority. They had to resolve concrete and very much practical problems usually very fast since their tribe would be in serious jeopardy. There was no time for reflection or rational decision-making with the resulting calculation of pros and cons. Hence the sensing function in the forefront of such decision-making as natural-like reaction to a physical danger. In terms of perception, such authority is directed by concrete, practical, and real issues to be decided upon. Their authority stems from a traditional need for social order and social rules to be obeyed. The sensing cognitive function is supported by the auxiliary function of thinking (when time for reflection is available) such as when the ruler is not directly engaged in a combat. The sensing perception of reality is thus evaluated in a thinking manner: logically in terms of utilizing a certain means to cause a certain effect, impersonally regardless of the consequences for whichever person (in a cold-blooded fashion of an absolutist: “because I want it so since I am God’s representative on the earth”), and in a tough way by means of standing firm on a decision reached by wishing it to be implemented quickly and efficiently.

58A person typically responsible for such types of law is the ruler or the emperor (of a more absolutist type).

5.2.2 Customary Law

  • 59 Paolo Grossi, Pravna Evropa, Ljubljana, Založba/*cf., 2010, 29-30.
  • 60 Sergij Vilfan, Uvod v pravno zgodovino, Ljubljana, ČZ Uradni list RS, 1991, 84-85.
  • 61 Škrubej 2010 (note 45), 267.
  • 62 They may apply as, e.g., commercial usages or legal standards in civil law. As formal legal source (...)

59Traditional law is also reflected in numerous legal customs. In addition to metaphysical law these were very much typical of pre-modern law, all the way from the ancient Oriental law, ancient Greece, partially Rome, to the Middle Ages in the framework of which they even represented its ‘constitution’ due to their importance for the legal sources of that historical period. Legal customs had to be respected even by rulers not only in the old Oriental law but also throughout the Middle Ages,59 the origins of legislation from the Middle Ages being collections of legal customs (either of the nobility, emerging cities, or agrarian communities).60 They were, however, marginalised by the great legal codifications of civil law. For example, the Austrian Civil Code (ABGB) provided that customs did not legally apply by their mere existence “but only if a certain law explicitly referred to them”.61 In today’s predominantly rational law, legal costumes very rarely count as formal legal sources.62

  • 63 Jung 1990 (note 21).
  • 64 Briggs Myers, Myers (note 37), 57-58.
  • 65 Quenk 2009 (note 39), 10.

60Legal is considered to be only that custom, i.e. a certain (incessant) repetition of an activity, which a community recognizes as mandatory and valid. As such, it seems to be connected with the cognitive function of sensing that gives much weight not only to the perception of certain facts but also to the norm or obligation existing therein, and particularly values positively what is unchangeable. Sensing as a perceptive function is irrational in character. With respect to legal custom, this is reflected in somewhat blind trust in traditional legal customs, in their repetition also merely for the sake of themselves, even if it is often not very rational and would be more reasonable for them to be altered.63 If a person with the predominant intuitive function trusts more in possibilities and is by his or her nature inclined to change, the sensory type is more bound by actuality, values conservativeness positively and respects customs and tradition. In short, such a person accepts the world and values as they are.64 One of the elements of the function of sensing is also tradition, respecting continuity, social affirmation, which is ensured by established institutions and already known methods. Concerning this, the sensing as a cognitive function is disinclined to changes and unconventional departures from established norms.65

61Contrary to imperial law, the auxiliary function typical of customary law is feeling. (Legal) customs are social norms which grow organically in society. They are reflections of complex and interconnected relationships between people, values, morality, and interests. As such they are evaluated in the manner of a total experience as being overarching and comprehensive social norms that are valid since time immemorial, unlike today’s legal norms which are of a known creator and limited duration. In their creation they are the products of an entire society and its need for social regulation. Furthermore, being based on concrete issues they are much closer to the personal needs of individuals than the abstract and general legal rules of modern legislation.

  • 66 In some local communities such persons could also be mayors. In Frankish law (Lex salica) there wa (...)

62Typical persons for such a type of law would be elders66 in a society as the guardians of its customs. This is further supported by the fact that in pre-modern societies it was older people particularly that were asked to describe the substance of (legal) customs for the purpose of demonstrating a valid law for the purpose of resolving a particular (legal) dispute.

63Finally, from the view of legal history, we can find another flaw in Weber’s theory of the ideal types of law. Here the problem is that, despite his very complex analysis of legal history within the traditional type of law, he does not even mention legal customs although these are considered by legal historians to be among the most important sources of law until the beginning of the creation of modern law.

5.3 The Logical Types of Law

64 Although in the framework of this type of law I analyse what Weber described as (a) legal honoratories' law and (b) systematic law, and which is sometimes depicted as rational law when Weberian ideal types of law are dealt with, I use a different name. I call such a type logical law. The reason for this is to differentiate it from another type of law which I call harmonious law, which is also a rational type of law. Both logical law and harmonious law are rational since the dominant cognitive functions behind both of them are rational: in the case of logical law thinking and in the event of harmonious law, feeling. Another argument for calling this type of law logical is also the fact that both subtypes or specific types of logical law are very much logical: which is characteristic of the casuistic type of law is induction and, for systematic law, deduction, both being logical methods.

  • 67 Artur Kaufmann, Uvod v filozofijo prava, Ljubljana, Cankarjeva Založba, 1994, 51.

65To claim that logical law is only a product of the modern law or the modern state, and not at all of other historical periods, would be mistaken from the viewpoint of legal history. It is more than certain that parts of logical law existed in the past, even before the period of ancient Greece which is generally considered as marking the major break of logos with mythos.67 Nevertheless, the old Oriental law, if its rationality could be maintained at all, was even in its rationality highly permeated with metaphysical and traditional law. Thus, in the Code of Hammurabi we can trace certain rational parts that are to some extent connected with metaphysical elements (e.g. in the case of ordeals) as well as with traditional elements (e.g. in the event of a certain custom that was incorporated in the Code). Moreover, one of the important differences between modern legal societies and pre-modern legal societies is in that the modern law is predominantly rational given the fact that metaphysical and traditional elements are quite rare in such laws. As already pointed out, contrary to the Western systems of Anglo-American law and the European Continental law, customary law as traditional law and metaphysical law have been preserved much more in the heterogeneous group of the traditional and religious legal systems of non-Western societies (e.g. in Africa, the far East and in Islamic countries).

66In this section we differentiate between two subtypes of the general rational type of law. First, the logical-casuistic type of law is presented, and secondly the logical-systematic type of law is dealt with.

5.3.1 Casuistic Law

67The logical-casuistic type of law is of an older origin than the logical systematic type, although it is still present in contemporary legal systems. Various statutes adopted already in the ancient Oriental law, ancient Greece and Rome, indeed all until the period of the great legal codifications, were mainly of a casuistic character, since they broadly referred to the factual situations in which legal norms were to apply. In no sense was there a systematization and regulation of substance in the manner it is known today and which was in particular typical of the legal codifications of the 19th century (e.g. Code civile, Austrian ABGB, German BGB). Roman law also belongs to this type of law as it was to a greater extent not codified until Justinian in the 6th century (in the Corpus iuris civilis). By its systematisation the Corpus can hardly be compared with modern codifications, which signifies that that kind of rationality was not yet developed in the human psyche of that time. As already indicated, the logical-casuistic law is to an important extent also found in the contemporary Anglo-American legal family, especially concerning judicial common law, in which the judge has been historically the most important legal figure, although in recent times systemisation has gained importance with the increase of legislation activities.

  • 68 Quenk 2009 (note 39), 10-11.

68What is important for the logical-casuistic type of law in terms of psychological typology is the primacy of the cognitive function of thinking as the main function supported by the auxiliary function of sensation. For the thinking function, the operation of logic in the sense of relying on logical analysis, cause and effect, sequential justification, impartiality in decision-making, etc., are typical. The sensation function contributes to the red thread of thinking by directing it into concreteness, reality, practicality, experiment, and tradition.68 Today this is among other areas of law also mostly typical of judicial practice or case law. In such a manner it is possible to comprehend Weber’s rationality-substantive law as its thinking-sensing dimension. Thus, a legal profession typical of this type of law will certainly be a judge, but also an attorney (lawyer) would very easily fall within this specific type.

5.3.2 Systematic Law

  • 69 Ibid.

69The second previously mentioned subtype of logical law can be called the logical-systematic. This is typical of the subsequent development of law that culminated in modern legal codifications and is today mostly characteristic of general legal acts (such as constitutions and statutes, executive regulations, treaties). To Weber it signified the last step in the development of people’s rationality. Here the main thinking function is supported by the auxiliary function of intuition, characteristic of which are: abstractness, conceptuality, and theory. Thus abstractness is in the psychological-typological sense focused on concepts and abstract meanings of ideas and their interrelations. Furthermore, conceptuality means focusing on mere concepts and not their application, it also entails complexity. Finally, the emphasizing of the theoretical is typical of searching for models and relations between abstract concepts.69 In this sense it is possible to understand Weber’s rational-formal dimension of law – as the thinking and intuitive dimensions, the latter mostly in the sense of abstractness and conceptuality. Such an approach has traditionally been more typical of the European Continental legal family than of others, and which in the past professors contributed to its development, particularly in faculties of law.

70The persons or (legal) professionals that would fall under this category are certainly modern legislators, the historical ideals of such being the great codifications of the 19th century. Furthermore, as mentioned above, we should add to this type of law also professors of law, in particular those from the European Continental legal family whose legal science, in the process of the reception of Roman law from the 12th century onwards and in the development of ius commune, have contributed immensely to the codifications.

71The legal sources that are typical of the logical-casuistic subtype of law are certainly judgments of courts as individual legal acts that have an erga omnes effect when being precedents. What are typical of this subtype were also the opinions of classical jurists in Rome, which during Augustus’ Principate had been pronounced by the Emperor’s authority. In ancient times legislation was also adopted, however, until the time of the modern codification movement such legislation was mostly of the casuistic type rather than systematic. The codifications from the beginning of the 19th century are mostly typical of the logical-systematic type of law, which today includes mostly constitutions, statutes, and executive regulations as general legal acts.

72‘Contemporary’ law, particularly that of the logical character, either concerns the systematic or the casuistic type of law. This signifies that there is much less presence of the traditional and the metaphysical elements in law than it was the case in the past.

5.4 The Harmonious Types of Law

  • 70 These elements were at first more comprehensively discussed in Slovenia in Anton Perenič, Relativn (...)
  • 71 This kind of rationality was severly criticised in Max Horkheimer, Eclipse of Reason, Oxford, Oxfo (...)

73 Quite a few legal theorists today write about certain new elements of law that are emerging in order to show that we need to deal with a special type of law that they call sometimes contemporary or postmodern law. Such a kind of new law complements modern law in the same manner that the classical characteristics of modern law (including generality, abstractness, systematisation, logic, formality,70 under the umbrella of the so-called instrumental rationality (ratio),71 are being complemented by other elements.

  • 72 Jerome T. Barrett, Joseph. P. Barrett, A History of Alternative Dispute Resolution, San Francisco, (...)

74 In this context what is recently not only popular, but also increasingly important, is alternative dispute resolution (ADR), which is represented by various procedures of negotiation, conciliation, mediation, arbitration, early neutral evaluation, building a consensus process, etc. Nevertheless ADR has its own history. Thus, as early as 1800 B.C., the Mari Kingdom (in modern Syria) used mediation and arbitration in disputes with other Kingdoms. Between 1200 and 900 B.C. the Phoenicians (in the eastern Mediterranean) practiced negotiations, while in 500 B.C. an arbitration system called Panchayat was used in India. Then in 400 B.C. the Greeks used a public arbitrator in city-states so that even one hundred years later Aristotle praised arbitration over courts. Also, in China in 100 B.C. the Western Zhou Dynasty established the post of mediator. Also interesting are the research results of different anthropologists and sociologists studying the role of ADR in traditional societies (e.g. among the Bushmen of Kalahari, Hawaiian Islanders, the Kpelle of Central Liberia, and the Abkhazians of the Caucasus Mountains).72

  • 73 Konrad Zweigert, Hein Kötz, Introduction to Comparative Law, Oxford, Clarendon Press, 1998, 291.
  • 74 Ibid., 288.
  • 75 Ibid., 290.
  • 76 David, Grasmann 1998 (note 72), 440.

75 Thus, such harmonious law has had a huge importance in the historical development of, e.g., Chinese law. According to the teachings of Confucianism and the concept of ‘li’ there developed a variety of forms of conflict-resolution outside the courts which were performed by family heads, close or distant relatives or simply society elders.73 The li means appropriate behaviour and determines social rules for each situation differently, i.e. involving relations between superior and inferior, between older and younger, nobleman and citizen, between relatives, friends, strangers, father and son, older and younger brothers, or husband and wife. These rules of behaviour allegedly represent the natural order.74 “This reflects the Confucian doctrine which sees legislation as a necessary evil, only to be invoked where the state must impose a criminal sanction because the cosmic order has been very seriously disturbed, or where the organization of the state administration is in issue.”75 In China, this perspective was very important at least until the second part of the 19th century when it became more Western-oriented, taking its example for legal regulation from various European legal codes. Moreover, a similar situation existed in Japan, at least until the Meiji period at the end of the 19th century, where the traditional “natural-law” rules were called ‘giri’.76

  • 77 Ibid., 108.

76 Furthermore, also in the Continental Europe of the Middle Ages, arbitration was for a certain period of time more important than adjudication. The role of arbitration was not so much in helping someone to exercise his or her right but to maintain peace within a society and calm the conflicting groups. In his First Letter to the Corinthians, Paul recommended love instead of justice and advised believers not to bring their claims to courts but rather submit them to priests and brothers. At that time they considered law as something bad due to its earthliness, being as such at a low level of moral importance.77

77These were only few landmarks from the past in the development of ADR. It seems that such harmonious laws have always been present around the globe, in some societies and periods of time more than in others. Still it appears that it has never been used to the extent to which it is used today. How this version of law differs from typical modern (logical) law follows in the continuation through the prism of psychological typology.

  • 78 Marko Novak, Legal thinking: a psychological type perspective, Dignitas (2011), 49/50, 140-177.
  • 79 Quenk 2009 (note 39), 11.

78 The thinking rational evaluative cognitive function is typical of the “classical” modern (or logical) law and it is based on logical analysis that is focused on objectivity and impartiality and is close to binary thinking.78 Pursuant to such, one wins and another loses a lawsuit, one is either guilty or is not guilty for a criminal offense, one is obliged or not to pay alimony since in such cases tertium non datur applies. However, ADR most often concerns a different type of evaluation or decision-making. What is more decisive for such is the cognitive function of feeling as an evaluative function that steps out of the framework of logical rationality and formality and corresponds much more to the qualities of sympathy, compassion, harmony, compromise, mutual adaptation etc.79

  • 80 James L. Jarret (ed.), Jung's Seminar on Nietzsche's Zarathustra, Princeton, New Jersey Princeton (...)
  • 81 Ibid., 104.

79 I call such a type of law ‘harmonious’ since maintaining social harmony, both in terms of individual relations among the people and in the society as a whole, seems one of the most important elements of the feeling function. If the logical type of law resolves disputes in a society in a binary fashion that most often has detrimental effects for further social relations, as already mentioned one of the goals of the harmonious type of law is to keep social relations going on by not ruining them. Concerning the logical type of law, with its dominant function of thinking, there could be some reference, even a connection, to the general (cultural) principle of Logos as its peculiar qualities are “to discriminate, reason, judge, divide, and understand in a particular way”. The ‘Logos culture’ “insists upon giving voice to an idea, designating it, giving a name, making a concept, expressing it”. On the contrary, the feeling function can to some extent be linked with the general (cultural) concept of Eros, which is “a principle of relatedness, seeking things together, gathering things together, establishing relations between things [...] leave things in suspenso; they have not necessarily to be said.”80 However, Jung warned that the concepts of Logos and Eros are intuitive concepts which entails that they cannot be fully defined, but only referred to some small extent.81 For this very reason they are neither synonymous with thinking and feeling, nor simply attributable to a general difference between men and women.

80Concerning this, ADR, with its important emphasis on the feeling function, does not concern fighting binary (black or white) solutions, as in the case of a classical judicial manner of resolving disputes, but rather the peaceful pursuit of compromise solutions by which a dispute can be resolved. It is similar to a therapeutic process in which a mediator (therapist) mediates between two parties (clients or patients), but not in a cold-logical objective and impartial manner which is completely detached from the parties. Instead, he or she is more of a counsel – subjective and partial – but equally with respect to both parties so that he or she leads them together to a solution not apart from each other in the system of winner or losers. The results of such an ADR procedure are not black or white but grey areas, i.e. compromises. Nevertheless, such a kind of decision-making is still rational since feeling is a rational cognitive function of evaluation.

  • 82 Susan Daicoff, Lawyer, Know Thyself, Washington, American Psychological Association, 2006, 169-196
  • 83 Ibid.

81 In the U.S., where such a kind of dispute resolution has been widespread in recent decades, ADR methods and approaches not only include the above mentioned types of dispute resolution but also preventive law, therapeutic jurisprudence, case resolving courts, methods of creative dispute resolution, building consensus procedures etc.82 Lawyers who are engaged in such areas of dispute resolution emphasize the importance of human relations, values, goals, emotions, which is very much typical of the above mentioned cognitive function of feeling, or the so-called ethics of care or empathy.83 These approaches emphasize in particular altruism, non-materialism, non-competitiveness, and oppose adversary court battles which are typical of modern law. Instead of black-and-white outcomes of court “fights” that only resolve disputes with respect to past facts and conflicts, ADR deals with a holistic approach that also looks to the future.

82 Following the two-subtypes pattern from the rest of the above discussion with regards to the psychological-type impact on developing the specific ideal types of law, is it possible to develop two specific types of law within the general harmonious type? Perhaps we could make a distinction between those ADR procedures that are closer to classical legal proceedings and those that are more atypical. In the first group we could find arbitration as being closer to traditional or classical legal procedures. To some extent, arbitration follows traditional law-like ways of resolving disputes, does not depart so much from established legal institutions, procedures and norms, and from the past and present situations in which the parties who submitted their dispute to the arbitration are. Thus it seems that arbitration and arbitrators as persons or (legal) professionals typical of this kind of dispute resolution are closer to the sensing function, which in this case would be the auxiliary cognitive function supporting the dominant feeling. Contrary to that mediators as persons or professionals which are typical of mediation would fall within the second group of the ADR. Contrary to arbitration, mediation is more distant from classical and traditional legal procedures than arbitration. It is particularly mediation that tries to find the most creative possible solutions for dispute resolution in order to keep established relationships going. Good mediation should be imaginative and value possibilities over tangibles and should also be original by valuing uniqueness and inventiveness. All these facets are characteristic of intuition being the auxiliary cognitive function that is typical for mediation in support of the dominant feeling function.

6 Conclusion

  • 84 How such a difference would be relevant for law see Marko Novak, Lawyers' Ideal Psychological Type (...)

83 Before I present a table with all the ideal general and specific types of law, let me briefly refer to a topic which is otherwise crucial for discussing Jungian psychological types, namely the distinction between extraversion and introversion with respect to specific types. Jung had combined these two types of attitudes with his basic types and came up with eight different types, and by adding the two versions of the auxiliary functions, some of his followers obtained 16 different types. I am aware of the fact that this could also be done with respect to my specific ideal types of law, but with respect to this possibility I could not imagine or anticipate any added value to the types presented.84 At least there would be no important additional contribution concerning the different substance of these types, but would only lead to their further fragmentation and eventual confusion. However, there might be one interesting comparison between the theoretical and practical aspects of these types, the first associated with introversion and the latter with extraversion. Still this would mostly refer to the modern period of our history and the modern legal profession, certainly not to those of ancient times and the Middle Ages.

84Finally, on the basis of the above-presented general and specific ideal types of law and the persons, (legal) professionals, and legal sources associated or even typical of them as well as the historical periods in which these types dominated, it seems that the following table may be created:

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–––, 1990: From Psychological Types, in: Violet S. de Laszlo (Ed.), The Basic Writings of C. G. Jung, Princeton, New Jersey, Princeton University Press.

Artur KAUFMANN, 1994: Uvod v filozofijo prava. Ljubljana: Cankarjeva Založba.
Viktor KOROŠEC, 1954: Slovenski prevod Hammurabijevega zakonika, Zbornik znanstvenih razprav Pravne fakultete.

Marko NOVAK, 2011: Legal thinking: a psychological type perspective, Dignitas 49/50.

–––, 2013: Lawyers' Ideal Psychological Type Preferences, http://works.bepress.com/myaccount.cgis (March 28th 2013).

Anton PERENIČ, 1981: Relativna samostojnost prava. Ljubljana: DDU Univerzum.

Naomi QUENK, 2009: Essentials of Myers-Briggs Type Indicator Assessment. Hoboken, New Yersey: John Wiley & Sons, Inc.

Sharyn L. ROACH ANLEU, 2000: Law and Social Change. London: SAGE Publications.
Martha T. ROT, 1997: Law Collections from Mesopotamia and Asia Minor. Atlanta: Scholars Press.

Anton SOVRE, 1964: Starogrška lirika. Ljubljana: DZS.

Katje ŠKRUBEJ, 2010: Pravo v zgodovini, Odlomki virov s komentarji. Ljubljana: GV Založba.

Russ VERSTEEG, 2000: Early Mesopotamian Law. Carolina AP.
Sergij VILFAN, 1991: Uvod v pravno zgodovino. Ljubljana: ČZ Uradni list RS.
–––, 1996: Pravna zgodovina Slovencev. Ljubljana: Slovenska matica v Ljubljani.

Gavin WALKER, 2102: Sociological theory and Jungian psychology. History of the Human Sciences 25 (I).
Max WEBER, 1978: Economy and Society. Berkeley: University of California Press.

Konrad ZWEIGERT, Hein KÖTZ, 1998: Introduction to Comparative Law. Oxford: Clarendon Press.

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Notes

1 Sharyn L. Roach Anleu, Law and Social Change, London, SAGE Publications, 2000, 22.

2 Gavin Walker, Sociological theory and Jungian psychology, History of the Human Sciences (2012) 25 (I), 69.

3 M. Weber, Economy and Society, Berkeley, University of California Press, 1978.

4 Weber studied law during the height of German historical jurisprudence and then taught commercial law and legal history at the University of Berlin. Roach Anleu 2000 (op. 1), 21.

5 Weber 1978 (note 3), 882.

6 Ibid., 656.

7 Jung would assert that such a sense of justice is conditioned much more by the role of intuition than emotions.

8 Weber 1978 (note 3), 758-775.

9 Ibid., 657.

10 Ibid., 784-802.

11 Ibid., 882.

12 Ibid., 656.

13 ‘Patrimonial' signifies “father-like” and sometimes refers to the seizing of all three branches of power within a certain territory by the local feudal lord, which was typical of the beginning of the Middle Ages.

14 Weber 1978 (note 3), 809-859.

15 Ibid., 882.

16 Ibid., 657.

17 Ibid., 848-859.

18 Ibid., 882.

19 Carl G. Jung, Psychologische Typen, Duesseldorf, Patmost Verlag GmbH & Walter Verlag, 1921, 1971.

20 These fundamental Jungian concepts are perhaps more simple explained by some of his contemporary followers. See Renee Baron, What Type Am I?, London, Penguin Books, London, 1998, 10, 13.

21 Carl G. Jung, From Psychological Types, in V. S. de Laszlo (ed.), The Basic Writings of C. G. Jung, Princeton, New Jersey, Princeton University Press, 1990, 187-298. Baron 1998 (note 20), 10, 13.

22 Baron 1998 (note 20), 10, 20.

23 Ibid., 11, 26.

24 Ibid..

25 Ibid., 11.

26 Jung 1990 (note 21), ibid.

27 They direct themselves and others according to fixed rules and principles since they are interested in reality, order and material facts. They could be scientists, who discover natural laws, or economists who create theoretical formulations. See Maggie Hyde, Michael MacGuinness, Introducing Jung, Cambridge, Icon Books, 1999, 82.

28 They formulate questions and seek to understand their own being. They usually neglect the world and dwell on their own ideas (e.g. philosophers). Ibid.

29 Ibid., 83.

30 Ibid.

31 They tend to focus on external facts, are practical, hard-headed and accept the world as it is, such as builders, speculators. Some of them might be affable enjoyers of life. Ibid.

32 Ibid., 84.

33 Ibid.

34 Ibid.

35 Jung 1990 (note 21), 9.

36 Ibid.

37 The so-called Myers-Briggs Type Indicator that was developed in order to establish the presence of certain types in persons tested. See Isabel Briggs-Myers, Peter B. Myers, Gifts Differing, Mountain View, California Davies-Black Publishing, 1995.

38 Ibid.

39 Naomi Quenk, Essentials of Myers-Briggs Type Indicator Assessment, Hoboken, New Jersey John Wiley & Sons, Inc., 2009, 10.

40 Ibid.

41 Ibid., 11.

42 Ibid.

43 Walker 2012 (note 2).

44 Ibid., 52-53.

45 Examples are given according to the antology by Katja Škrubej, Pravo v zgodovini, Odlomki virov s komentarji, Ljubljana, GV Založba, 2010.

46 Viktor Korošec, Slovenski prevod Hammurabijevega zakonika, Zbornik znanstvenih razprav Pravne fakultete, Ljubljana (1954), 53-55.

47 Martha T. Rot, Law Collections from Mesopotamia and Asia Minor, Atlanta, Scholars Press, 1997, 15-18, cit. according to Škrubej 2010 (note 45), 37.

48 A typical example of such follows from the Code of Hammurabi, in which one who accused another of, e.g., sorcery but could not prove such achieved that the accused was dipped in a river, and if the river threw him out so that he survived it was considered that he was innocent, so the one who had accused him was then executed. Korošec 1954 (note 46), ibid.

49 Rene David, Guenther Grasmann, Einführung in der großen Recthssysteme der Gegenwart, München, C. H. Beck'sche Verlagsbuchhandlung, 1988, 119.

50 This was an order by gods, which was communicated to people in the form of prophesy. Rajko Bratož, Grška zgodovina, Ljubljana, Zveza zgodovinskih društev, 2003, 75.

51 Anton Sovre, Starogrška lirika, Ancient Greek Lyric Poetry, Ljubljana, DZS, 1964, 76-79.

52 Škrubej 2010 (op. 45), 63.

53 Sergij Vilfan, Pravna zgodovina Slovencev, Ljubljana, Slovenska matica, 1961, 1996, 272.

54 Weber 1978 (note 3), 768-769.

55 Russ VerSteeg, Early Mesopotamian Law, Carolina AP (2000); cit. according to Škrubej 2010 (note 45), 37.

56 Jung 1990 (note 21).

57 Weber 1978 (note 3), 844-845.

58 Tom Chetwynd, Dictionary for Dreamers, London, Paladin Books, 1982, 38. Father is a symbol of reproduction, possession, ruling, and virtue. Jean Chevalier, Alain Gheerbrant, Slovar simbolov, Ljubljana, Mladinska knjiga, 2006, 398.

59 Paolo Grossi, Pravna Evropa, Ljubljana, Založba/*cf., 2010, 29-30.

60 Sergij Vilfan, Uvod v pravno zgodovino, Ljubljana, ČZ Uradni list RS, 1991, 84-85.

61 Škrubej 2010 (note 45), 267.

62 They may apply as, e.g., commercial usages or legal standards in civil law. As formal legal sources they also appear in constitutional and international law. In the framework of modern law they tend to be codified.

63 Jung 1990 (note 21).

64 Briggs Myers, Myers (note 37), 57-58.

65 Quenk 2009 (note 39), 10.

66 In some local communities such persons could also be mayors. In Frankish law (Lex salica) there was a tunginus as a person who performed the judicial function.

67 Artur Kaufmann, Uvod v filozofijo prava, Ljubljana, Cankarjeva Založba, 1994, 51.

68 Quenk 2009 (note 39), 10-11.

69 Ibid.

70 These elements were at first more comprehensively discussed in Slovenia in Anton Perenič, Relativna samostojnost prava, Ljubljana, DDU Univerzum, 1981.

71 This kind of rationality was severly criticised in Max Horkheimer, Eclipse of Reason, Oxford, Oxford University Press, 1947.

72 Jerome T. Barrett, Joseph. P. Barrett, A History of Alternative Dispute Resolution, San Francisco, Jossey Bass, 2004, 2-19.

73 Konrad Zweigert, Hein Kötz, Introduction to Comparative Law, Oxford, Clarendon Press, 1998, 291.

74 Ibid., 288.

75 Ibid., 290.

76 David, Grasmann 1998 (note 72), 440.

77 Ibid., 108.

78 Marko Novak, Legal thinking: a psychological type perspective, Dignitas (2011), 49/50, 140-177.

79 Quenk 2009 (note 39), 11.

80 James L. Jarret (ed.), Jung's Seminar on Nietzsche's Zarathustra, Princeton, New Jersey Princeton University Press, 1998, 102.

81 Ibid., 104.

82 Susan Daicoff, Lawyer, Know Thyself, Washington, American Psychological Association, 2006, 169-196.

83 Ibid.

84 How such a difference would be relevant for law see Marko Novak, Lawyers' Ideal Psychological Type Preferences, http://works.bepress.com/myaccount.cgis (28 March 2013); and Novak 2011 (note 78), ibid.; where I mostly discussed psychological type differences concerning the modern legal professions.

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References

Bibliographical reference

Marko Novak, « Ideal Types of Law from the Perspective of Psychological Typology », Revus, 19 | 2013, 205-232.

Electronic reference

Marko Novak, « Ideal Types of Law from the Perspective of Psychological Typology », Revus [Online], 19 | 2013, Online since 31 May 2013, connection on 01 May 2017. URL : http://revus.revues.org/2443 ; DOI : 10.4000/revus.2443

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associate professor of legal theory and constitutional law

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