Why should lawyers study the social context of law and are they capable of doing this? These questions may seem absurd. But unfortunately they are not irrelevant or archaic. Unlike American post-realist jurisprudence, with its influential pragmatic emphasis, the continental legal profession is still resistant to attempts to integrate any sort of analysis of the social impact of law.
Moreover, here in Russia the problem has a special relevance. We have a good text of law, often identical to the best texts of the developed societies. But very often this has nothing to do with reality. Even more, it is often applied not strategically, but for purposes that are directly opposite to those for which similar rules are applied in Western democracies. Often these purposes have nothing to do with the rule of law.
In these circumstances, it becomes apparent for the relevance of legal implementation. In the following, some of its implications are developed in the paper.
It is apparent that the monistic, single-factor theory cannot explain the diverse world of law; for such explanation one should refer to broad philosophical categories that could describe social (actual), normative, and ideal aspects of reality. This category in modern theoretical jurisprudence may well be the concept of “communication”. The idea of communication in law was developed in depth in the modern German philosophy of law (Werner Krawietz, Niklas Luhmann, Helmut Schelsky and others), but it is not alien in the Russian legal discourse either. This is evidenced by the writings of Leon Petrazycki and other members of the St. Petersburg school of legal philosophy, who as early as in the early 20th century have formulated the legal problems of communication and attempted to explore it using the terms of philosophy of that time. To rely on the developments done by members of this school and to use their ideas as a semantic light tower in (re)designing the communicative philosophy of law in Russia are a necessary prerequisite of the scientific discourse and, in particular, of the work within the framework of the “St. Petersburg Dialogue” that is held amongst Russian and German legal theorists.
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.
In 2014 Professor Thomas Schultz published the book “Transnational Legality”, in which he raised a vast number of strikingly interesting issues. It is no exaggeration to say that Schultz has written a marvellous book. In this paper only one of the issues is considered: the thesis of the nonscalability of the concept of law. The paper is dedicated to a critical assessment of the thesis.