Социолого-правовая концепция Ойгена Эрлих в контексте современных дебатов о правовом плюрализме
In this article the author questions the role of Eugen Ehrlich’s sociological jurisprudence in contemporary debates about legal pluralism. In author’s opinion, the modern legal pluralism is too much concentrated on opposing state law to social law. This dualist understanding of law was not characteristic for Ehrlich who defended the thesis about unity of law. Law in society always displays its integrity, even if composed of many inner social orders. Nevertheless, law can be conceptually divided into two logical units: official (state and juristic) law and living (social) law. Neither was Ehrlich inclined to advocate for mechanical transformation of facticity into normativity – for this effect creative work of lawyers is needed. From this point of view, it is not possible to use Ehrlich’s socio-legal theory for justification of the project of anthropological jurisprudence to construct the term of law as inclusive of all the normative systems of social regulation. Listing Ehrlich as one of the founding fathers of legal pluralism is not undisputable, because legal pluralism itself is not a unified scientific doctrine, and many assertions of legal pluralists contradict to Ehrlich’s position. Ehrlich by far was not biased to attribute inferior positions to law and judiciary in the legal reality, which sometimes is typical of some legal pluralists.
Legal pluralism and the experience of the state in the Caucasus are at the centre of this edited volume. This is a region affected by a multitude of legal orders and the book describes social action and governance in the light of this, and considers how conceptions of order are enforced, used, followed and staged in social networks and legal practice. Principally, how is the state perceived and how does it perform in both the North and South Caucasus? From elections in Dagestan and Armenia to uses of traditional law in Ingushetia and Georgia, from repression of journalism in Azerbaijan to the narrations of anti-corruption campaigns in Georgia - the text reflects the multifarious uses and performances of law and order. The collection includes approaches from different scholarly traditions and their respective theoretical background and therefore forms a unique product of multinational encounters.
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.
The notion of globalization is relatively imprecise, and can be used loosely to embrace a large variety of different modern phenomena. Theorists abuse the G-words (a term of William Twining to demonstrate radical changes, or at least the changes which seem to be radical to some philosophers. Generalized references to new (quasi-)realities allow theorists to escape a long and laborious examination and comparison of legal phenomena in the past and in the present. This new kind of reductionism does not seek to describe complex systems through one or several prevailing elements as the classical scientific paradigm does. On the contrary, it is claimed that the growing complexity of the world requires a multidimensional approach which tries to embrace every aspect of reality.
In this paper are summed up the principal ideas of a book by the contemporary French legal scholar Jasques Le Goff. This book was dedicated to analysis of the sociological conception of law by Georges Gurvitch. In the context of theoretical problems of the nowadays French labor law Professor Le Goff tries to outline a new methodological approach to law. According to Professor Le Goff, one needs to abandon both anarchist ideas about spontaneity of legal development, and the etatist legal positivism which conceives law as primarily emanating from state. Appropriate methodological tools for a correct analysis of law Professor Le Goff finds in the works of the French-Russian thinker of the 20th century Georges Gurvitch who was famous for his conception of social law. Gurvitch treated law as a form for institualization of social communication between individuals and groups. This approach can serve as a conceptual foundation for explaining the contemporary lawmaking processes in the nowadays French labor law where law to a certain extent is created without intervention of state.