Ehrlich Customary Law Thought

The idea of customary law of Eugen Ehrlich was developed at the ending of the 19th century and the beginning of the 20th century. Then western society entered into the monopoly capitalism stage. Social problems emerged in endlessly, and social conflicts became more and more serious. Western values came to a shift in this social context. At the same time, the legal socialization movement was launched. Scholars began to stand in the perspective of social to research law. The idea of customary law of Eugen Ehrlich was produced in that social context. The idea of customary law of Eugen Ehrlich which was deeply influenced by popular sociological theory and research method, was based on the idea of customary law of the Historical School.The content of the idea of customary law of Eugen Ehrlich is composed of theoretical starting point and expressional form.The "Usage" and "law" is viewed as the theoretical stating point of the idea of customary law of Eugen Ehrlich. He saw usage as an important part of the facts of the law. Usage is the essential foundation of the order of the social associations. Usage is the shoot of customary law, and makes up the predecessor of customary law. Ehrlich emphasized the functional meaning of law. He viewed law as a social order. Ehrlich classified the expressional form of the idea of customary law to the conduct rules and the norms for decision. Firstly, customary law is expressed by conduct rules. In the view of Ehrlich, common law was a example of customary law, and it reflected the British conduct rules. Secondly, customary law is expressed by the norms of decision. The conduct rules are positive expressional form of the customary law of Eugen Ehrlich, and the norms for decision are negative expressional form of the customary law of Eugen Ehrlich. The characteristics of the idea of customary law of Eugen Ehrlich can be summarized into three aspects. Firstly, in the process of stating the idea of customary law, Ehrlich adopted the historicism perspective. This characteristic gets a full embodiment, which was based on the definition of the nature of ius civile of the Roman law. Secondly, Ehrlich gave a strong criticism to the Savigny's customary law. Thirdly, Ehrlich emphasized the role of the judge.Ehrlich classified the law to state law, living law, and juristic law. To accurately grasp the essence of the idea of customary law, we should make clear the internal relations between these three kinds of law and the customary law. The relationship between customary law and state law is penetration and restriction with each other. The difference between them is mainly embodied in formation conditions, contents and the role of fields. The relationship between customary law and living law is inheritance and development. The idea of customary law is the junior research achievement.And the idea of living law is the ultimate research achievement. The difference between them is mainly embodied in contents and meanings. Customary law and juristic law are both rooted in society. Juristic law is formed on the basis of recognizing and refining the customary law. The difference between them is mainly embodied in forming time, contents, functions and nature.The revelation of Eugen Ehrlich's customary law is state from research methods, theory content to practical significance. Ehrlich went on using the research method of legal anthropology. And he created and used the research method of positivism sociology. The customary law of Eugen Ehrlich has a characteristic with thoroughly against state law. But the concept of "customary law" is too general to accurately define the boundaries between customary law and other social norms. The way of Ehrlich's thinking usually comes along with strong psychological meanings and social evolutionism hue, which results in his ignorance of the traditional ethics in his values. Ehrlich emphasized the role of judges. He claimed to give full free to the judge's discretion. But in practice, it will cause the consequence of indulging the discretion of the judge. The idea of customary law of Eugen Ehrlich also has a great significant reference to the present ongoing research of popular law in our country.