The normativity of legal rules according to Eugen Ehrlich

Mikhail Antonov ()
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Mikhail Antonov: National Research University Higher School of Economics (St. Petersburg)

HSE Working papers from National Research University Higher School of Economics

Abstract: In this paper the author questions the role of Eugen Ehrlich's sociological jurisprudence for contemporary debates regarding the sources of binding rules that have their (ontological) foundation in societal practices, but whose validity cannot be extracted from these practices. The question on the normativity of legal rules for Ehrlich was not identical with the thesis on the normativity of social practices and the patterns of behavior that are capable of having a 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 societal relations into legal ones with the help of particular intellectual images. It is this reshaping that gives rise to legal rules. The process of such reconstruction cannot be anything but intellectual, and therefore cannot be conceived of without reference to the creative work of lawyers. Consequently, legal rules cannot emerge directly from societal practices. The practices in which the lawyers are engaged 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 or normative

Keywords: sociology of law; living law; official law; normativity; binding force of law (search for similar items in EconPapers)
JEL-codes: K1 (search for similar items in EconPapers)
Pages: 15 pages
Date: 2013
New Economics Papers: this item is included in nep-his and nep-law
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Published in WP BRP Series: Law/ LAW, November 2013, pages 1-15

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Persistent link: https://EconPapers.repec.org/RePEc:hig:wpaper:21/law/2013

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