The Normativity of Legal Rules According to Eugen Ehrlich

Abstract

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.

Eugen Ehrlich State Law and Law Enforcement in Societal Systems

“…In the Grundlegung, we read: "The state existed before the constitution; the family is older than the order of the family; possession antedates ownership; there were contracts before there was a law of contracts; and even the testament, where it is of native origin, is much older than the law of last wills and testaments". 4 From such statements one can further (but erroneously, to our mind) conclude the anarchist stance of their author.…”

“…130-145, at p. 133 (emphasis added). 4 Eugen Ehrlich, Fundamental Principles of the Sociology of Law. New Brunswick, 2009: reprint of the 1936 edition, p. 35-36. means of social organisation that are taken to be consensual, untainted by authority and imposition".…”