Structure of Legal Consciousness
There were two different approaches to legal consciousness in Soviet legal studies, legal philosophy, criminology and legal psychology. Legal theoreticians viewed legal consciousness as a part of law, in the broadest sense of the word (jurisprudence), which reflected the elements of jurisprudence. According to this definition, law could ‘materialise’ (e.g. legislation) and these ‘materialised’ forms of legal consciousness would reflect legal consciousness. Legal psychologists defined consciousness as a general term and viewed legal consciousness as a subfield of consciousness. Soviet legal scientists did not attempt to unify these different approaches and as a result the various studies on legal consciousness were rather chaotic and even contradictory. Such deficiencies and contradictions of Soviet science were adopted by scientists in other socialist countries.
This article describes Soviet theoretical positions on legal consciousness to which the author has attempted to add her thoughts and observations. However, a basic overview still needs to be developed.
Empirical studies on legal consciousness in the Soviet Union were to a great extent based on methodologies borrowed from the West and as such, these studies are worthy of consideration. In Estonia, Professor Ilmar Rebane, who passed away a year ago, and his students (P. Nuuma, E. Raska, L. Auväärt and others) have studied the various aspects of legal consciousness.
Basically, consciousness exists in a society, social group and in an individual. Micro (consisting of a couple of persons) and macro groups can be distinguished. The latter may correspond with the definition of a society. Consciousness is an immediate modifier of behaviour of a society, group or an individual which reflects the objective reality and the place and role of those demonstrating consciousness in that reality.
There are various forms of social consciousness (political, legal, moral, ethnic, aesthetic, religious, and so forth) through which people become aware of the surrounding world. All forms of social consciousness are defined by the social environment and these forms themselves influence the processes taking place in a society.
Legal consciousness is a collection of ideas, views, feelings and traditions which reflects people’s attitudes toward legal issues in society. The drafting and implementation of laws in a society takes place through legal consciousness since any particular law being drafted or implemented must be in conformity with the principles of the drafter and implementer of the law in its justification and effectiveness. Legal consciousness has an important role to play in developing the imperative behaviour model. This is carried out by extensively studying people’s views on a series of economic, political, ethical, religious, and other relationships at the levels of society as a whole, in social groups and of a particular individual. Legal consciousness evaluates the existing law and also bears in mind an image of the desired or ideal law.
In studying the structure of legal consciousness, the dependence of its elements on the degree of development of a society, the role and importance of those elements in a society, the types of legal relationships, and those subject to the law must be considered.
In dealing with the structure of legal consciousness its dynamism due to objective and subjective factors must also be considered. The fluidity of legal consciousness may be expressed in many ways. These include:
1) the departure of concepts of various elements of legal consciousness from the concept of legal consciousness as a whole;
2) discord between elements, such as conflict between legal norms and legal consciousness; and
3) transformation of legal consciousness due to socio-political changes. A study of such internal changes assists in understanding the development of legal consciousness.
Legal consciousness may be classified according to many criteria. In criminology it is classified into:
1) theoretical and practical legal consciousness depending on the degree and depth to which the social environment is reflected;
2) legal ideology and legal psychology, bearing in mind the social functions of legal consciousness; *1
3) mass, specialised and local legal consciousness according to the extent to which social relationships are reflected; and
4) social, group and individual legal consciousness based on the legal consciousness of a person.
Practical and theoretical legal consciousness manifest in two levels of social relationships: perception of events, and perception of the social nature of law. Practical legal consciousness directly reflects social existence and legal matters on the bases of people’s experiences. Practical legal views are framed by the limits of people’s everyday lives. Generally these views are expressed on an empirical level through a society reaching an understanding on a person’s rights and obligations, and on lawfulness and legal order. As a rule, such legal consciousness reflects the outer most ties and relationships of the legal life of a community without discovering its essence. It also encompasses the different empirical knowledge of the legal experiences of the masses such as the fight against lawbreakers and participation in justice which has been acquired during the historical development process of law.
Theoretical legal consciousness is a constant system of law-based knowledge which is aimed at discovering the essence and rules in the legal life of a society.
Social legal psychology is formed on the bases of thoughts, ideas, moods, feelings and aspirations caused by the social environment and which guide the behaviour of social groups. The most influential factor in the development of social legal psychology is the community itself and how it influences the people in that community.
Legal ideology is a system of principles on legal ideas, theories and views of one social group or another which reflects the interests of a particular social group. The main characteristics of a legal ideology are the following:
1) a systematic expression of interests by a social group in a community;
2) its development by the ideologists of a particular group;
3) a desire to realise one’s opportunities through mass legal consciousness; and
4) its use in the practical legal activity of the particular group.
If mass legal consciousness reflects the attitude toward law by large social groups, classes and peoples, then specialised legal consciousness is the legal consciousness of a narrower group of people, foremost of which would be the representatives of the legal profession. As a rule, it is common for lawyers to have a highly developed sense of justice, respect for law and to absolutely obey established legal norms. At the same time, there is a danger that a lawyer’s other forms of consciousness will be subject to a legal colouring and as a result lawyers may deal with all social matters or issues through “legally tinted glasses”. This one-sided effect of the legal profession may lead to giving standardised opinions, development of stagnant stereotypes and professional deformation. Such displays may even lead to disobedience of law by lawyers. Special studies have shown that the legal consciousness of lawyers is divided into subgroups and often depends on the social roles that a lawyer fulfils. As an example, students were asked to judge a case using a ten-point system as a lawyer and later as a prosecutor. The difference was notable. Most likely, the legal consciousness of an advocate, judge, notary, and so forth can be differentiated.
Local legal consciousness is regional in its nature and is caused by local features such as regional employment and recreation opportunities, socio-economic and geographic conditions, and so forth.
In order to understand the role of legal consciousness in a society, based on the social activity of people, the levels of social, group or individual legal consciousness need to be considered.
Everything that encompasses the legal consciousness of a society occurs and exists in the legal consciousness of an individual. However, this is not the total sum of consciousness of individuals, just like the legal consciousness of individuals cannot be considered as a simple part of social legal consciousness. It is important that with respect to the legal consciousness of a society only those legal ideas and attitudes which are common to a particular group of people are considered. This group may be representative of the whole society or of a specific social group. On this basis, a number of empirical studies on various levels of legal consciousness should be conducted by using different research methods. Appropriate methods would most likely be conversation, observation and sometimes a specific test for determining the legal consciousness of an individual; a questionnaire would probably be the most suitable method for studying group legal consciousness. Social statistics provide probably the most important characteristics of group legal consciousness and of crime.
Individual legal consciousness is the feelings, attitude and impressions of one individual concerning existing and desired law. The legal consciousness of a society which develops through the legal consciousness of individuals is richer than the latter since it reflects the legal life of the whole society. Individual legal consciousness is unable to grasp the diversity of legal issues in different periods; it only reflects a few, more important characteristics. Legal consciousness of a certain individual is under the influence of the person’s living or working conditions at any given moment. The conditions are not the same for everyone and this directly reflected in legal consciousness. Different living conditions is the main factor which determines the level of legal consciousness of a particular individual and which needs to be considered in the legal education of one person or another.
The political and socio-economic changes that have taken place in Estonia have caused changes in the legal consciousness of the society, in both group and individual legal consciousness. A relatively large portion of the Soviet nomenklatura has been reasonably successful in adjusting to a basically new legal order. This is likely due to legal consciousness (as will be seen later) not only encompassing knowledge but also attitudes and behavioural habits, the latter two of which directly modify behaviour. The basic function of legal knowledge is to recognise a situation and as knowledge it can be acquired relatively easily. The newly acquired knowledge has helped the nomenklatura to adjust to the new socio-political conditions and this is why their previous attitudes and behavioural habits have guaranteed success in the environment of the new legal order. Unfortunately, the Republic of Estonia has not found any resources to study this interesting social phenomenon. *2
As mentioned, legal consciousness of an individual and a group consists of the following three basic elements:
1) legal knowledge;
2) social legal attitudes; and
3) behavioural habits.
This categorisation was prevalent in the Soviet Union, but it was known and recognised already in the 1960s in the United States of America.
Three basic elements may be distinguished in the structure of individual legal consciousness. These are:
1) legal knowledge;
2) emotions and attitudes; and
3) readiness for lawful behaviour (actual behaviour).
On the one hand, by placing legal knowledge first in the above list gives it a dominant role in guaranteeing the lawful behaviour of an individual, while on the other, it is seen as important in influencing the other two elements. It is a known fact that offenders generally know the law better than the non-offenders. This is also shown by the above-mentioned study on the legal consciousness of youth. Offenders come into frequent contact with law enforcement agencies and acquire knowledge from real life. They also frequently study law in order to determine how to avoid punishment. Nevertheless, the conclusion that offenders have a more developed legal consciousness and that this developed legal consciousness causes offences cannot be hastily drawn. Let it be repeated that legal consciousness is regulated not only by legal knowledge. The respect for norms of joint existence and a high appreciation of ethical and moral norms are more important than legal knowledge in choosing the course of behaviour. A person’s lawful behaviour is influenced by internal control mechanisms which depict the social values and principles of behaviour that are encouraged and protected by legal norms and that an individual has adopted as subjective values. In referring to such values as social legal values, they may be viewed as modifiers of individual behaviour in a more general sense as with respect to a person’s social legal attitude which reflects the person’s attitude towards certain issues such as the life and health of a person, public order, and so on and as a criterion for evaluating the degree of legal consciousness; a person’s legal consciousness is more developed the more the person has used the social legal values of the community as modifiers of his or her behaviour. In addition to the above, the balance between different social legal attitudes in the structure of legal consciousness needs to be considered when evaluating the level of legal consciousness.
The behaviour of an individual is always aimed at achieving specific goals; the social values which are arranged hierarchically in a person’s mind guide as landmarks toward those goals. A value manifests something of material, social, or spiritual importance to a person, an attitude towards these matters and an assessment of these matters by an individual, social group or by the society as a whole. Every society creates a system of values which interweaves with a system of social norms, and both, though differently, modify people’s behaviour. Values in their roles as modifiers of social behaviour leave a lot of room for a person to determine the basic orientation of his or her behaviour, but consequently shape his or her lifestyle. Generally, values as modifiers of behaviour are the outcome of an inner state. The effects of social norms are somewhat different in their nature in that they are more directly and immediately interconnected with the relationship between the society and the influence of its social institutions on the actions and lifestyle of a person. A person evaluates his or her behaviour only according to those social values, principles and norms which have passed from the legal consciousness of the society to his or her individual consciousness and are recognised as inevitable, goal-oriented and useful to him or her. Social norms are more effective if they become part of a person’s individual consciousness.
A critical look at social norms may also bring about counteraction, a failure to fulfil or violation of those norms. In such cases, it is not enough to simply declare that a social norm has been violated and implement corrective measures. The reasons for the violation of a particular norm need to be detected through analysis. Special attention should be paid to whether the violation of the norm is an isolated incident or a mass occurrence. In the case of the latter, there are two possibilities:
1) the particular social norm has become ineffective in that the prescribed penalties within the norm do not guarantee its observance; or
2) the development of certain economic, organisational and psychological conditions has led to violation of the particular norm. In such a case, corrective measures will extend beyond the framework of an individual, since more extensive normative, economic, organisational, management or other kinds of measures are needed.
Everything contained within the meaning of the term “social value” extends fully to the term “social legal value”. The only differentiating characteristic between the two terms is that social legal values are protected by legal norms and their observance is guaranteed by the raw power of the state.
A person’s overall attitude towards a particular social matter is reflected in the person’s corresponding social legal outlook which along with its objective factors determines whether a particular legally protected value, such as the life or health of a person, is valued by the particular person or not. Consequently, social legal attitudes are not so much the modifiers of subjective behaviour but are the characteristics which describe a person.
Social legal attitudes may be classified as:
3) neutral; or
In the case of a positive social legal attitude, the subjective appreciation of a particular social value corresponds with that value’s objective appreciation (that is social, legal) in both content and orientation and there is a willingness on behalf of a person to behave according to the requirements of the legal norms protecting the value. A negative social legal attitude arises when there is a discrepancy between the subjective and objective appreciation of a particular value or where behavioural habits do not comply with the requirements of legal norms protecting the particular value. A social legal attitude may be viewed as neutral if there is an absence of characteristics that would allow the attitude to be classified as positive or negative. An infantile social legal attitude is characterised by an overall immaturity in both form and content.
Empirically, a social legal attitude is reflected in the attitudes toward a particular value which is being studied.
The above-mentioned study conducted in 1975 on the legal consciousness of youth showed that 80 per cent of law-abiding youth had a positive attitude toward private property and almost half toward social order; the figures for offenders were 65 and 45 per cent respectively. *3 Unfortunately, data from a current study on social legal attitudes cannot be released at this point since the study is not completed. As a comparison though, some elements of attitudes such as the outlook of youth can be characterised. In comparing the two studies, it appears that in 1975 youth agreed most with the opinion that free time may be spent without disturbing fellow citizens and that troublemakers deserve public disapproval. Teenagers of 1995 think that a person who respects his or her name will not violate established norms. As well, the uncontrolled free behaviour of youth which goes unpunished was not supported by youth in 1975 nor is it by those polled in the current study.
In order for an attitude to turn into a behaviour, the behavioural habits need to be considered along with the influence of the environment.
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