Eugen Ehrlich - Fundamental Principles of the Sociology of Law

Fundamental Principles of the Sociology of Law

Ancient Law

Henry Sumner Maine

with an introduction by Dante J. Scala

An Introduction to the Sociology of Law

Nicholas S. Timascheff

with an introduction by Trevino

Critique of the Legal Order

Richard Quinney

with an introduction by Randall G. Shelder

Fundamental Principles of the Sociology of Law

Eugen Ehrlich

with a new introduction by Klaus A. Ziegert

Penal Philosophy

Gabriel Tarde

with a new introduction by Piers Beirne

Sociology of Law

Georges Gurvitch

with a new introduction by Alan Hunt

The General Theory of Law and Marxism

Evgeny Bronislavovich Pashukanis

with a new introduction by Dragan Milovanovic

The Social Reality of Crime

Richard Quinney

with a new introduction by A. Javier Trevino

Eugen Ehrlich

with an introduction by Roscoe Pound

with a new introduction by Klaus A. Ziegert

Originally published in 1936 by Harvard University Press

Published 2002 by Transaction Publishers

Published 2017 by Routledge

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Library of Congress Catalog Number: 00-042600

Ehrlich, Eugen, 1862-1922.

[Grundlegung der Soziologie des Rechts. English]

Fundamental principles of the sociology of law / by Eugen Ehrlich ; translated by Walter L. Moll ; with an introduction by Roscoe Pound ; with a new introduction by Klaus A. Ziegert. p. cm.

Originally published: Cambridge, Mass. : Harvard University Press, 1936, in series: Harvard studies in jurisprudence ; vol. 5.

Includes index.

ISBN 0-7658-0701-7 (paper : alk. paper)

1. Sociological jurisprudence. I. Title.

K372. E38413 2000

370' .115dc21 00-042600

ISBN 13: 978-0-7658-0701-4 (pbk)

Translated by Walter L. Moll.

Dedicated To

PAUL FREDERIC GIRARD

AS A TOKEN OF FRIENDSHIP AND ESTEEM

THE present volume is a translation of Grundlegung der Soziologie des Rechts by Eugen Ehrlich; this is one of the most important works of the trend in jurisprudence that has been called the Sociological School. During the course of the nineteenth century a succession of schools of jurisprudence appeared in Europe, each of which arose by way of reaction from the teachings of its predecessor, which it superseded for the time being. Each school laid especial emphasis on some particular basic point of doctrine or method. Perhaps it over-emphasized its particular point of view, and thereby made a reaction from this over-emphasis inevitable. Thus a new school would arise with a new doctrine or with a new method, which it in turn over-emphasized, thus setting the stage for the appearance of another school of juristic thought. Each school gave way to its successor. But the new school by no means destroyed the work its predecessor had done. Each school has made a contribution of more or less abiding value to the scientific study of law, and so there has grown up a vast store of permanent juristic material, of generally accepted principles and points of view. Let it be remembered that a school of jurisprudence is not identical with the method which it chiefly employs. Neither the Historical School of Savigny and Puchta, for example, nor the Historical School of Sir Henry Maine is identical with the historical method. The school of Savigny has passed away, but the historical method has remained. All that has passed away is the one-sided emphasis on certain self-imposed limitations and principles. Modern writers have availed themselves of the abiding truths and principles found by these various schools of juristic thinking, and while it is true that each writer has selected his own particular method of approach and his own particular point of departure under the influence of the particular school by the teachings of which his own thinking is chiefly dominated, it is also true that juristic writers have come much closer together in their forms and modes of thinking than hereto- fore, and many have found a common ground in the principle that the basic thing in the formulation of legal theory is not the individual as such, with his individual will, purposes and aims, but society as a whole; not the various legal precepts as such, but the social order, i.e. the just {richtig) ordering of modern society through law; not the old abstract individualist legal justice, but the new " social justice." One of the chief among recent Continental exponents of this new trend in jurisprudence is Eugen Ehrlich. Ehrlich was born at Czernowitz in Bukowina He died shortly after the close of the war.

In his Grundlegung der Soziologie des Rechts, Ehrlich has shown that the phenomena of legal life arise in society, and in turn exercise a profound influence upon society. In his Die juristische Logik, he has discussed and rejected the idea that predominated among jurists of his day that every judicial decision must be derived by a purely logical process from established legal premises, the provisions of a code or of statutes or of juristic or judge-made law. He has set forth the social interrelations from which this idea has arisen, and has shown the social consequences of the idea. To this extent this work supplements the Grundlegung der Soziologie des Rechts.

These two books may be called a summary of Ehrliches views and teachings; for in them he has discussed in a connected fashion the fundamental ideas of all his works. In view of Ehrlich's article, "The Sociology of Law/' in 36 Harvard Law Review 130, it would be carrying coals to Newcastle to give a rsum of these two books here; for in this article Ehrlich has given a concise statement of their contents in his own inimitable manner. I shall quote two paragraphs from his article because they contain a clear and succinct statement of what is, in his view, the nature of law. He says on page 131:

Those who proclaim a multiplicity of Laws understand by "Law " nothing other than Legal Provisions, and these are, at least today, different in every state. On the other hand, those who emphasize the common element in the midst of this variety are centering their attention not on Legal Provisions but on the Social Order, and this is among civilized states and peoples similar in its main outlines. In fact many of its features they possess in common even with the uncivilized and the half-civilized.