Eugen Ehrlich — State Law and Law Enforcement in Societal Systems

27 Pages Posted: 14 Feb 2014

See all articles by Mikhail Antonov

Mikhail Antonov

National Research University Higher School of Economics (Moscow)

Date Written: February 13, 2014

Abstract

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 normative — between Is and Ought — considering 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.

Keywords: Eugen Ehrlich, sociology of law, judiciary, rules of law, law enforcement, free finding of the law, normativity

JEL Classification: K10

Suggested Citation

Antonov, Mikhail, Eugen Ehrlich — State Law and Law Enforcement in Societal Systems (February 13, 2014). Higher School of Economics Research Paper No. WP BRP 33/LAW/2014, Available at SSRN: https://ssrn.com/abstract=2395229 or http://dx.doi.org/10.2139/ssrn.2395229

Mikhail Antonov (Contact Author)

National Research University Higher School of Economics (Moscow) ( email )

Myasnitskaya street, 20
Moscow, Moscow 119017
Russia

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