Eugen Ehrlich – State Law and Law Enforcement in Societal Systems

Rechtstheorie. 2013. Vol. 44. No. 3. P. 287–313.

Antonov M.

In this article, the author examines the socio-legal conception of Eugen Ehrlich and its relation to state law and judicial law enforcement. 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 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 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: социология права, sociology of law, правовой плюрализм, legal pluralism, Eugen Ehrlich, Ойген Эрлих