Praetorian Law: A Contribution to the Beginnings of Legal Sociology
19 Pages Posted: 31 Oct 2014
Date Written: October 31, 2014
This article describes parallels between Roman procedural law and trends incorporating sociology in legal science. The author is persuaded that legal theoreticians at the end of the nineteenth century must have been inspired by Roman law, and in particular by praetorian law. The leader of these lawyers was a romanist Eugen Ehrlich, so-called "the founder of legal sociology".
The author first analyses the office of the Roman praetor, whose activity was specific in that it touched on all three forms of state power. The praetor however was not a classic official of public power in today’s sense of the word, because he was limited by his term of office and that he was not salaried.
The author subsequently gives detailed attention to the dichotomy between the free and bounded approach in the application of law, specifically in filling in gaps in law. While private law codexes (such as Code Civil) bound judges in various degrees, the Roman praetor filled in gaps in law very freely.
In the conclusion the author proposes that we be inspired by Ehrlich’s theory, specifically by the fight against contra-factual norms of state law, which are of course in conflict with social law.
Keywords: Roman law, praetorian law, Roman praetor, Eugen Ehrlich, legal sociology
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