The Inquiry Of Ehrlich's "Living Law" The Basic Theory

In the "Fundamental principles of Legal sociology", the Ehrlich introduced the use of a large number of pen and ink the basic theory of legal positivism, such as legal facts, referees and norms, the state and law thesis, which dealt with the legal concept of dualism. He was opposed to the legal concept of pragmatism that the law is a code of conduct rather than the referee specifications. The most important rules of society is the rule of law, but laws and regulations alone can not replace other rules to play a role. Statute only for a small part of the law in many places, the real work is that people in long-term form of social life, and the accumulation of customary law, rather than national system of law.Ehrlich Society as a focus, the customary law, law, family laws and a series of works in real life, the norms included in the scope of the law, and thus the concept of the law were expanded. He acknowledged that analytical positivism, on the basis of legal theory to sociological methods and perspectives to study the law, breaking the tradition and built an innovative way of "living law" theory. In addition to theory and the conclusions of this paper cited, the text consists of four parts:An Introduction focuses on Ehrlich's life and major works, and its legal origins theory of sociological thought. Through the collection and information relevant to the subject of previous work on the Ehrlich theory, sociology of law studies reviewed, and in this paper focuses on the object of study - Ehrlich's "basic principles of sociology of law," a book of the structure and main content.The first part of the legal concept of dualism: National law and living law. The balance of the community by the Commonwealth of mankind to maintain internal order, and the human consortium's internal order is the basic form of the law. This law is by the rule of law (state law) and "Living Law" composition. For a point of view, the concept of law as a judge from the norms and codes of conduct that people understand the two terms. In the course of development of the law, the legal norms is a habit, control, possession and meaning of the law, said the four fact-based build up.The second part of the function of law: To investigate the legal propositions with the "living law," the theoretical structure. Law is a code of conduct in the abstract that people universally valid propositions in an appropriate manner the expression of intellectual activity. Judges, law writers, law teachers, legislators are conducting such an intellectual activity, laws are summarized in proposition mature theoretical point of view - statutory law. Judges should not only be aware of statutory law, but also should be aware of a "living law." In the countries to develop areas not covered by law, the judge discretion to use the "liberal referee method" to find the law."Freedom of the referee method" has become a strict conformity with established rules of decision "technical doctrine's decision means" necessary and useful supplement.The third part, the state created the law and customary law. The specification differs from the State created the formation of social norms within society, can not directly use of social coercion, can only be implemented through a number of mandatory national regulatory agencies to implement. The law is not originated in the country, but the origin of social customs system, and transformation. Codification of the law binding the free development of narrowing the law's development. 2, compared to such a conclusion can be drawn, people attach importance to the countries of France created the same time, more should respect customary law, respect for the "living law."Part IV, the core content - "Living Law" basic theory. The first three have been, a "living law" laid the foundation for the theory. The internal order of the Commonwealth of human society is the law is determined by state law and "Living Law" composition. State law (statutory law) is a judge, legal writer, law teachers, legislators and other summary of legal propositions made. Live under the rule is in society's most bit of social norms, it is through various forms effectively limit people's behavior, the formation of social life, the most basic legal order. Judges should not only be aware of statutory law, but also should be aware of a "living law." At this point, "Living Law" to permit into the basic theory,People attach importance to the countries of France created the same time, more should respect customary law, respect for the "living law." Living law theory not only makes the concept of the law to be expanded, but also for people to show a new kind of legal research methods.Conclusion that, as a founder of sociology of law, Ehrlich critically inherited the legal doctrine of their predecessors, although not on this new discipline to the system architecture description, but in the sense of this ground-breaking interdisciplinary research object, research methods are discussed. Ehrlich opposed the law and practical ideas from the start, by law, the origin, development review and put forward the internal order of the community of the Commonwealth is the soul of the law, the law is not the center of the development of the country, but in the community. Law Research's main target is a "living law", that dominated the social life of its own laws,Should not be limited to the court applied the "ruling norms" and state officials to make decisions for the rules. Sociology of law is to law as social phenomena and to serve certain social purposes, a means to study, and in-depth study of the law on the basis of birth, not from a purely sociological study of law, nor is it purely from the law sociological study.