Sociology of Law. Apropos Moll's Translation of Eugen Ehrlich's Grundlegung der Soziologie des Rechts

Rheinstein, Max

doi:10.1086/intejethi.48.2.2989411

Cited by 7 publications

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“…Ehrlich was criticised by sociologists as much as by legal theorists and political philosophers. For instance, Rheinstein () criticised Ehrlich's confusion of law with custom, and his reduction of legal science to sociology, and prudence to popular sentiment. More significantly, Ehrlich's sociological method as a basis of a general theory of law was ignored by Weber, who established his sociology of law by using common jurisprudential concepts of law, legal norms and sanctions or the relationship of law, the modern state and legal legitimacy.…”

Section: Is Ehrlich Having the Last Laugh? Radicalising The Sociologimentioning

confidence: 99%

Asking the Sovereignty Question in Global Legal Pluralism: From “Weak” Jurisprudence to “Strong” Socio‐Legal Theories of Constitutional Power Operations

Priban

2015

Ratio Juris

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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

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Section: Is Ehrlich Having the Last Laugh? Radicalising The Sociologimentioning

confidence: 99%

Asking the Sovereignty Question in Global Legal Pluralism: From “Weak” Jurisprudence to “Strong” Socio‐Legal Theories of Constitutional Power Operations

Priban

2015

Ratio Juris

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“…The idea that living law must anyways take over official law, frequently advocated by many researchers (e.g., Tamanaha, 2001, 224 ff. ), is absent in Ehrlich's works: It was wrongly ascribed to him by Roscoe Pound (Pound, 1922) and Max Rheinstein, the first English reviewer of the translated Fundamental Principles (Rheinstein, 1938).…”

Section: Bridging the Normativity Between The Justified And The Socialmentioning

confidence: 99%

The Normativity of Legal Rules According to Eugen Ehrlich

Antonov

2013

SSRN Journal

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In this paper the author questions the role of Eugen Ehrlich's sociological jurisprudence for contemporary debates regarding the sources of binding rules that have their (ontological) foundation in societal practices, but whose validity cannot be extracted from these practices. The question on the normativity of legal rules for Ehrlich was not identical with the thesis on the normativity of social practices and the patterns of behavior that are capable of having a biding force if fixed in a legally recognized form (i.e., recognized by the legal community). As a result, the process of norm-creation requires an intellectual reconstruction of these practices and patterns by jurists, judges, and legislators who reshape societal relations into legal ones with the help of particular intellectual images. It is this reshaping that gives rise to legal rules. The process of such reconstruction cannot be anything but intellectual, and therefore cannot be conceived of without reference to the creative work of lawyers. Consequently, legal rules cannot emerge directly from societal practices. The practices in which the lawyers are engaged or which they simply contemplate, can influence their creative activity, but cannot replace it, and thus cannot provide a mechanical transformation of the factual into the intellectual or normative.JEL Classification: K1.

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“…shortly before publication of the Grundlegung: during the Congress of German lawyers in 1911 38 and in three other important publications. 39 The very ideas of incompleteness of state law and the impossibility for the judge to remain within the narrow limits of legal syllogism were common place in the movement of free finding of the law [Freie Rechtsfindung] to which Ehrlich belonged at the turn of the 20th century, 40 and to which he sympathized even earlier. 41 What was the reason of this scandalous success of the…”

Section: It Is Not Evident Whether Ehrlich Himself Was Prepared For Tmentioning

confidence: 99%

Eugen Ehrlich – State Law and Law Enforcement in Societal Systems

Antonov¹

2013

RTH

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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.

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Sociology of Law. Apropos Moll's Translation of Eugen Ehrlich's Grundlegung der Soziologie des Rechts

Cited by 7 publications

References 0 publications

Asking the Sovereignty Question in Global Legal Pluralism: From “Weak” Jurisprudence to “Strong” Socio‐Legal Theories of Constitutional Power Operations

Asking the Sovereignty Question in Global Legal Pluralism: From “Weak” Jurisprudence to “Strong” Socio‐Legal Theories of Constitutional Power Operations

The Normativity of Legal Rules According to Eugen Ehrlich

Eugen Ehrlich – State Law and Law Enforcement in Societal Systems

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