Abstract:This paper uses Teubner’s reinterpretation of Ehrlich’s idea of ‘living law’ in his paper on ‘Global Bukowina’ as a test case of what is involved in making a classical author speak to current issues. It argues that interpretation is a form of appropriation and that the process of re-contextualising ideas involves an unstable compromise between establishing what an author meant and what an author means.
“…31 Ibid., p. 493. 32 Alex Ziegert confirms that the fact that this book "remained the only major publication of Ehrlich's sociological theory of law is due to the difficult circumstances of Ehrlich's work in the last years of his life and happened by default" (Klaus A. Ziegert, "World Society, Nation State and Living Law in the Twenty-first Century", in: M. Hertogh (ed.) Living Law: Reconsidering Eugen Ehrlich, pp.…”
Section: Ehrlich's Sociology Of Law and Official Lawmentioning
confidence: 78%
“…31 Ehrlich is mostly known in the English-speaking world as the author of the Grundlegunghis ideas are accepted or reproved mainly in the context of this book, to be exactof its 1936 translation. 32 Other works are available for the most part in German, 33 29 Eugen Ehrlich, Fundamental Principles of the Sociology of Law, p. LIX. 30 Ibid., pp.…”
Section: Ehrlich's Sociology Of Law and Official Lawmentioning
In this article, the author examines the socio-legal conception of Eugen Ehrlich and its relation to state law and judicial law enforcement. The attention is focused on the practical implications of this conception on the functioning of judicial systems. Analyzing the criticism raised against Ehrlich's conception, the author emphasizes that this thinker stood on a scientific platform which did not necessitate any strict distinction between the factual and the normativebetween Is and Oughtconsidering any attempt to draw a net distinction between societal phenomena as pointless. Ehrlich sought to enlarge the province of jurisprudence through the application of sociological methods to the factual material from which arise social institutions. These institutions crystallize social practices into rules of behaviour, but this crystallization does not happen automatically. It requires an intellectual reconstruction of these practices by the actors acting in the legal order.A scientific examination of law implies that all these components (social facts, institutions, mental constructions, rules and norms) are taken into consideration. Ehrlich critically assesses both the state-centrist ideology of the doctrinal law and the metaphysic speculations about law, arguing that correct law enforcement needs to rely on sociological analysis. The judge should take advantage of methods of sociological research, which allows stating the actual trends of justice in society and comparing these trends with those existing at the time the applicable legal rules were adopted. This comparison leads to a correct balancing of the conflicting interests with a view to the values protected by the legal order. At the same time, the sociological data just help the judge to reveal the will of the lawmaker who would protect the conflicting interests in the same manner as those which were protected when the lawmaker adopted the legal rules in question.
“…31 Ibid., p. 493. 32 Alex Ziegert confirms that the fact that this book "remained the only major publication of Ehrlich's sociological theory of law is due to the difficult circumstances of Ehrlich's work in the last years of his life and happened by default" (Klaus A. Ziegert, "World Society, Nation State and Living Law in the Twenty-first Century", in: M. Hertogh (ed.) Living Law: Reconsidering Eugen Ehrlich, pp.…”
Section: Ehrlich's Sociology Of Law and Official Lawmentioning
confidence: 78%
“…31 Ehrlich is mostly known in the English-speaking world as the author of the Grundlegunghis ideas are accepted or reproved mainly in the context of this book, to be exactof its 1936 translation. 32 Other works are available for the most part in German, 33 29 Eugen Ehrlich, Fundamental Principles of the Sociology of Law, p. LIX. 30 Ibid., pp.…”
Section: Ehrlich's Sociology Of Law and Official Lawmentioning
In this article, the author examines the socio-legal conception of Eugen Ehrlich and its relation to state law and judicial law enforcement. The attention is focused on the practical implications of this conception on the functioning of judicial systems. Analyzing the criticism raised against Ehrlich's conception, the author emphasizes that this thinker stood on a scientific platform which did not necessitate any strict distinction between the factual and the normativebetween Is and Oughtconsidering any attempt to draw a net distinction between societal phenomena as pointless. Ehrlich sought to enlarge the province of jurisprudence through the application of sociological methods to the factual material from which arise social institutions. These institutions crystallize social practices into rules of behaviour, but this crystallization does not happen automatically. It requires an intellectual reconstruction of these practices by the actors acting in the legal order.A scientific examination of law implies that all these components (social facts, institutions, mental constructions, rules and norms) are taken into consideration. Ehrlich critically assesses both the state-centrist ideology of the doctrinal law and the metaphysic speculations about law, arguing that correct law enforcement needs to rely on sociological analysis. The judge should take advantage of methods of sociological research, which allows stating the actual trends of justice in society and comparing these trends with those existing at the time the applicable legal rules were adopted. This comparison leads to a correct balancing of the conflicting interests with a view to the values protected by the legal order. At the same time, the sociological data just help the judge to reveal the will of the lawmaker who would protect the conflicting interests in the same manner as those which were protected when the lawmaker adopted the legal rules in question.
“…Transnational law is a work in progress without a basic norm or rule of recognition, a Hartian system of rules or Kelsenian hierarchy of norms, or any other juristic model of unity and authority. (Cotterrell , 9)The plurality of laws in global society therefore constitutes a highly contested legal reality, unlimited by the constitutional structures and symbolism typical of the modern nation state (Nelken , 189) and often driven by the specific regulatory demands of non‐state legal sectors (Delmas‐Marty ).…”
Section: Globalisation the Sovereign State And Theories Of Legal Plmentioning
The article examines recent theories of legal and constitutional pluralism, especially their adoption of sociological perspectives and criticisms of the concept of sovereignty. The author argues that John Griffiths's original dichotomy of "weak" and "strong" pluralism has to be reassessed because "weak" jurisprudential theories contain useful sociological analyses of the internal differentiation and operations of specific legal orders, their overlapping, parallel validity and collisions in global society. Using the sociological methodology of legal pluralism theories and critically elaborating on Teubner's societal constitutionalism, the author subsequently reformulates the question of sovereignty as a sociological problem of complex power operations communicated through the constitutional state's organization and reconfigured within the global legal and political framework.Theories of legal pluralism are commonly perceived as critical of the very concept of sovereignty because the plurality of legal orders and regimes indicates the absence of the ultimate rule of recognition, decision-making power or the basic norm. They are equally critical of state law as a supreme legal order backed by political deliberation and decision-making, and emphasise the role of non-state legal orders, agents and organisations. Pluralistic perspectives have been adopted by mainstream jurisprudence and the discourse of legal pluralism is thus currently typical of the differentiation between the "weak" juristic concept of legal pluralism drawing on the state legal systems and the "strong" concept of legal pluralism drawing on sociological and anthropological perspectives of law (Griffiths 1986, 5-8).In this article, therefore, I pursue the goal of analysing transformations of state sovereignty in global society by critically examining theories of legal and constitutional pluralism. In the first two sections, I establish the connection between legal globalisation and theories of legal pluralism, and discuss MacCormick and Walker's theories of legal and constitutional pluralism especially in the EU context. bs_bs_banner
“…31 Ehrlich is mostly known in the English-speaking world as the author of the Grundlegunghis ideas are accepted or reproved mainly in the context of this book, to be exactof its 1936 translation. 32 Other works are available for the most part in German, 33 29 Eugen Ehrlich, Fundamental Principles of the Sociology of Law, p. LIX. 30 Ibid., pp.…”
Section: Ehrlich's Sociology Of Law and Official Lawmentioning
In this article, the author examines the socio-legal conception of Eugen Ehrlich and its relation to state law and judicial law enforcement. The attention is focused on the practical implications of this conception on the functioning of judicial systems. Analyzing the criticism raised against Ehrlich's conception, the author emphasizes that this thinker stood on a scientific platform which did not necessitate any strict distinction between the factual and the normativebetween Is and Oughtconsidering any attempt to draw a net distinction between societal phenomena as pointless. Ehrlich sought to enlarge the province of jurisprudence through the application of sociological methods to the factual material from which arise social institutions. These institutions crystallize social practices into rules of behaviour, but this crystallization does not happen automatically. It requires an intellectual reconstruction of these practices by the actors acting in the legal order. A scientific examination of law implies that all these components (social facts, institutions, mental constructions, rules and norms) are taken into consideration. Ehrlich critically assesses both the state-centrist ideology of the doctrinal law and the metaphysic speculations about law, arguing that correct law enforcement needs to rely on sociological analysis. The judge should take advantage of methods of sociological research, which allows stating the actual trends of justice in society and comparing these trends with those existing at the time the applicable legal rules were adopted. This comparison leads to a correct balancing of the conflicting interests with a view to the values protected by the legal order. At the same time, the sociological data just help the judge to reveal the will of the lawmaker who would protect the conflicting interests in the same manner as those which were protected when the lawmaker adopted the legal rules in question.
scite is a Brooklyn-based organization that helps researchers better discover and understand research articles through Smart Citations–citations that display the context of the citation and describe whether the article provides supporting or contrasting evidence. scite is used by students and researchers from around the world and is funded in part by the National Science Foundation and the National Institute on Drug Abuse of the National Institutes of Health.
