Living Law vs. Prescription Law: A Comparative Analysis with Eugen Ehrlich
Research on Living Law – Eugen Ehrlich
Dominant Science of Law: The object of study and view of the law is the legal prescription.
Distinction between Legal Norm and Legal Prescription:
- Prescription law: Legal determination based on laws and codes (abstraction and generality) applicable to the State.
- Rule of law: Determining legal norms transformed into action (concreteness and specificity) applicable to society.
Ehrlich’s Perspective:
- The law as concrete legal relations, independent of abstract and general legal requirements under the sovereign power (State).
- The law as a result of the conditions of human existence and their relations with empirical facts.
- Living law as a standard/basic form of law, including Modern Law (Legal requirement).
Social Function of Law: Organizational.
Contract: A legal way of distributing goods and services available in society. Compliance is ensured through legal reasons (penalties) or social reasons (loss of credit). Legal and judicial deference is influenced by both legal and social factors. The rule of law exists in society outside the state.
Historicism: Ehrlich emphasizes the historical context of law. He argues that the law is a product of history and reflects the values and traditions of a society. He criticizes codification for its abstraction and disregard for historical context.
Notes:
The recognition of alternativity is somehow a criticism of the incompleteness of the legal state, which is configured as incomplete. The living law as critical to state law. Ehrlich shows his vision of the law according to the relationship between law and society in which he inserts (century, Germany. XIX). Germany is lagging behind in the production of coding, since experienced no revolution, for example, the French revolution, is concerned with the collective, with the popular thinking, with respect to the history, society and tradition. Opposes France (Napoleonic Code), which ensured a new right revolution, a new code. Encoding involves abstraction of the contexts and values, implies generality (generic rule that applies to everyone) and break with the past, for it seeks to progress and modernity for the future.
Ehrlich sees the law as a function of how history produced by connecting the past. When there is an encoding, it is a link to the future, since it establishes, in advance, rules, before the relationship actually happen.
The historicism emphasizes the link with the past and tradition, being hostile to the encoding. In France, however, sees in coding the break with the medieval past. Ehrlich seeks a law that is based on history and society, see, so some rules positivated Germany as ineffective as contrary to societal values and aspirations popular. For him, there is a right that is not always accepted by the recipient, a right that does not drive, in fact, the conduct of the recipient. Then there are prescriptions that are consistently enforced. So how can there be rules of law, which reveals the people accession, but the state does not incorporate as legal prescription.
He makes a distinction between two types of legal categories: prescription and rule. The prescription is always the rule and therefore abstract and general (laws and codes). There is no general law and not from the abstract state. The rule comes from society, reflects an order / command transformed into concrete action (not in laws and codes), and socially and historically constructed, without relying on the state. He acknowledges, then, state law and the law society (which is concrete and specific).
Perceive themselves in Germany, legal provisions are not followed by the company, as ineffective, and norms that are socially and historically constructed and guide the relationship people.
The living law is the result of specific conditions of human life, which produce concrete norms to concrete relations of men. That is, the actual standards designed to regulate empirical relationships.
Hence the relation between Bonaventure and Ehrlich, while it establishes the concept (right living), he presents the case, the practice (right alternative Pasárgada). That is, Bonaventure shows right in a concrete and empirical. Instead of the German examples in valermos Ehrlich uses that we will use the case of Pasargadae, in which the community Jacarezinho away the state law (legal requirement) to apply a living law and informal (legal rule), the right alternative. The slum is the Jacarezinho expression of facts (there is no legal limitation, conflicts must be resolved, etc.), empirical relationships, the rules also result in concrete ways.
Here, in Brazil, a series of legal requirements are not experienced as law, are not enforced. Ex: Game of the animal. When studying the dominant conception of law is of no concern whether or not society accepts such a legal prescription. Ehrlich’s vision, we must study the law that is not part of the state, which is not prescribed in laws and codes.
The law has two scientific methods to be studied: the deductive (general) which is simply the study of coding, and inductive (particular) which is an empirical observation of some facts of reality. The inductive method is extended greatly, for it seeks to study the specific right, without relying on general rules, but the reality is infinite, making this study.
Every contract, as an expression of law, part of the function of organizing the life of society and every contract involves goods produced and exchanged, and services. Obedience is given by way of consequence: loss of credit. Which brings us to comply with the law is no law, but to society through values that prevent conduct prohibited by law.
Social norms crashing when society fails, the state must then step in to reorganize social life.
Law as a legal requirement serves to protect the social institutions. Not every right of the people is positivised State; this does not cover all social practices.