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Working paper

Normativity of legal rules according to Eugen Ehrlich

In this paper the author questions the role of Eugen Ehrlich’s sociological jurisprudence for the contemporary debates about sources of the binding rules which have their (ontological) foundation in the societal practices but whose validity cannot be extracted from these practices. The question about the normativity of the legal rules for Ehrlich was not identical with the thesis about the normativity of the social practices and the patterns of behavior which are capable of obtaining biding force if fixed in a legally recognized form (i.e. recognized by the legal community). As a result, the process of norm-creation requires an intellectual reconstruction of these practices and patterns by jurists, judges, and legislators who reshape the societal relations into the legal ones with the help of particular intellectual images. It is this reshaping that gives rise to the legal rules. The process of such reconstruction cannot be but intellectual, and therefore cannot be conceived of without reference to the creative work of the lawyers. Consequently, the legal rules cannot emerge directly from the societal practices. These practices in which the lawyers are engaged in or which they simply contemplate, can influence their creative activity, but cannot replace it, and thus cannot provide a mechanical transformation of the factual into the intellectual/normative.