Facts and Norms: The Unfinished Debate between Eugen Ehrlich and Hans Kelsen
36 Pages Posted: 8 May 2007
Date Written: 28.8.2006
Throughout his entire work, Eugen Ehrlich contested what he called the "vulgar, State-centered conception of law." In Ehrlich's view, this conception of law only could only recognise law produced or sanctioned by the State. In his view, the main function of law is to create order in and between associations within society. It does so by providing norms by which people can regulate and co-ordinate their actions, mostly without interference of State's officials. Moreover, in most cases, these order creating norms are not produced by the State, but flow from the institutions and structures of which the people are a part, the so-called "facts of the law." In his critique, Kelsen argued that Ehrlich had confused facts and norms in his conception of law. The main focus of this paper is to examine how Kelsen's critique can be accommodated within Ehrlich's own project, without sacrificing its overall purpose. To begin, I will identify and discuss the central arguments underlying Kelsen's critique. As Ehrlich never took the opportunity to respond fully to this critique, I will offer three alternate lines of defence: the first based in pragmatism, the second in natural law theory and the third in legal positivism. Of the three, I will argue that legal positivism provides the strongest framework to sustain Ehrlich's conception of law.
Keywords: validity of law, concept of law, Ehrlich-Kelsen debate, methodology, legal sociology
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