Fundamental Principles of the Sociology of Law

Eugene Ehrlich, Klaus A. Ziegert

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351518345
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

The innovative and revolutionary scholarship of the eminent Austrian legal theorist and professor of Roman law, Eugen Ehrlich (1862-1922), is of a very high caliber. His work has not only held its place well in view of what legal theory, especially sociological legal theory, has to offer, but is also still a powerful challenge to positions in legal theory that are no longer defensible. The sociology of law has followed in a direct line of succession from Ehrlich's observations and ideas as a new and special discipline linking jurisprudence with sociology.

XXI The Methods of the Sociology of Law

II. THE STUDY OF THE LIVING LAW

THE reason why the dominant school of legal science so greatly prefers the legal proposition to all other legal phenomena as an object of investigation is that it tacitly assumes that the whole law is to be found in the legal propositions. It is assumed furthermore that since, at the present time, all legal propositions are to be found in the statutes, where they are readily accessible to anyone, all that is necessary in order to get a knowledge of the law of the present time is to gather the material from the statutes, to ascertain the content of this material by one^s own individual interpretation, and to utilize this interpretation for the purposes of juristic literature and judicial decision. Occasionally one meets with the further idea that legal propositions may arise independently of statute. In Germany the usual belief is that they can be found in juristic literature; in France, in judicial decisions. "Customary law/' on the other hand, in the prevailing view, is so unimportant that no effort is being put forth to ascertain its content by scientific methods, much less to create methods for its investigation. Only the teachers of, and writers on, commercial law still concern themselves with usage, in this case, with business custom. This explains why the efforts of those who are carrying on research in law at the present time are bent upon ascertaining the legal propositions of the past, which are not so readily accessible to us as those that are contained in modern statutes. It is believed that the scientific result of the labor expended upon the study of the law of the past consists not only in a knowledge of the development of law, which of course means only the development of legal propositions, but also in an historical understanding of the law of the present; for the law, i.e. according to the tacit assumption the legal propositions of the present time, is rooted in the past. These, I take it, are the lines of thought on which the method of research in the field of law has hitherto been based.

But the statement that the whole law is not contained in the legal propositions applies to a much greater degree to the law that is in force today than to the law of the past. For the men who composed the Twelve Tables, the Lex Salica, and the Sachsenspiegel actually had a direct personal knowledge of the law of their own time, and their endeavor was to gather up this law with which they dealt, and to formulate it in legal propositions. This however does not apply, even approximately, to the most important part of the legal material with which the jurists of the present day are concerned, i.e. the codes. For in contrast to what once upon a time the jurists had in mind under all circumstances, vaguely at least, the compilers of the modern codes very often did not have the slightest intention whatever of stating the law of their own time and of their own community. They draw their legal material, first, from the compilation of Justinian, from which, self-evidently, they are likely to obtain reliable information on almost an...