Sociology of law is a rather new discipline. A very important figure for the study of sociology of law is Eugen Ehrlich who claims that ‘the centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself’. Eugen Ehrlich employs the term living law, the law which dominates life itself even though it has not been posited in legal propositions. He states: 'The state existed before the constitution; the family is older than the order of the family; possession antedates ownership; there were contracts before there was a law of contracts; and even the testament [will], where it is of native origin, is much older than the law of last wills and testaments.'
According to Ehrlich the legal norm is derived from social facts relying on the conviction of an association of people. The essential body of legal rules is therefore based not on the state intervention via means of compulsion, but on social facts of law, which are:
1. Usage
2. Domination
3. Possession
4. Declaration of will.
The work of Ehrlich has had an influence on the US and Scandinavian legal realism in the 30ties. In conclusion Ehrlich criticized the law as a skilled trade and wanted to transform it into a sociological science, claiming that methodology can help the lawyer to learn more about the social life and thus to produce better law/better decisions. Sociology does not replace the legal reasoning, but it extends it.
Individuals need to make reference to a set of normative expectations, describing what they should expect from others and from themselves, a frame of reference, shaping their behaviour. This frame has nothing to do with the state, the sovereignty or the governance. Ehrlich proposed a bottom up type of law understanding, which leads to the idea of legal pluralism and to the questioning of the validity of the axiom of state-law, of the assumption that law can not exist in the absence of sanctions/means of compulsion imposed by the state.
The finding that the effectiveness of law is not related to the existence of means of coercion, but to the fair treatment of the parties and a just decision. Legal violence is not inevitable. But what are the alternatives, in your view?
http://mainelaw.maine.edu/academics/maine-law-review/pdf/vol19_1/vol19_me_l_rev_1.pdf
I would put some questions, here: a just decision could not be a mean of coercion? For if it is not coercitive, how can people obey it, if one does not agree? Who would treat fairly the parties if they came to a disagreement?
Dear Ricardo, I must tell you a little secret: some of my questions are genuine questions, and myself I do not know the answer. Some others might be more rhetorical, but in the end there is always a shadow of doubt. This question, here, is a difficult one. There are many great ideas, but no complete solution. One of them is to replace fear with mutual respect and self-regulation.
Instead of obeying the state laws, because of fear, which is not the most solid ground, you maybe will be better off to be able to participate in the self-regulation of the matter and respect the adopted rules. When the rules no longer are connected with the reality, they can be changed much more easily, they can be adapted to the new reality. A condition in order to adhere to a community like that, based on self-regulation will be of course to accept the validity of the already created rules.
Another thing observed by Ehrlich was that law is not only formal law. We respect lots of rules daily, even if they are not based on formal laws, or where they are, we respect them without fearing sanctions. They simply appear to be rational, legitimate and fair and therefore we respect them, day by day, generation by generation.
The most common trap, that people fall in very easily is the illusion that hard regulation is always more effective. If we take murder as an example and study it statistically, we are going to discover that the crime is often connected with a series of events, with panic, lack of control, drugs, fear etc. The well-premeditated murder is not common, murder in cold blood, which is an act of a mentally sane person, who really has reflected over why/how and so on, this type of murder is not common. The majority of the crimes occur as a consequence of a specific social background, not because of an intelligent, but evil mind.
The fear of a sanction can maybe have an effect on the well-premeditated crimes, whose authors have time to reflect upon the consequences, but not on the other crimes, where the circumstances play a more important role than the intent. There are already studies that some people have a natural tendency to become offers for a certain toxic habit, like alcoholism for instance. They lack the capacity to say no and overtake the control of their own life and it looks like this deficit is genetic. The sanctions are not even considered in most of the cases, by the person who commits a crime.
What is the role of the sanction? It is preventive in the meaning that the person who has committed the crime will be isolated from the rest of society for a certain period of time, including life time, and it is retributive in the meaning that our sense of 'fairness' craving for revenge will be satisfied. Does the sanction in itself provide any satisfactory guaranty that the number of crimes will decrease in the future? No, absolutely not. The real prevention must be concerned with other measures directed against the fragile social background, the alcoholism etc.
Ehrlich had hopes that human beings are intelligent enough to figure out better solutions in the future.
The link below leads to a short film 'To see the invisible man'. A man has been charged for lack of empathy and sentenced with one year social isolation. The end of the film is amazing, because after absolving his sentence going through a terrible life experience, one day he meets on the street another person who obviously has been convicted and sentenced with social isolation. The 'invisible man' can not pass by, he has to stop and comfort the sentenced person. He has become an empathic person, however his deed constitutes a new infringement of the criminal law, which very probably will lead to a new sentence. The bottom line is that when sentencing and sanctioning become a pursuit in itself and they tend to do so, there is a high risk to experience the 'invisible man' story in reality. First sentenced for lack of empathy, secondly for empathy directed towards the wrong person, and the story can only go on and on.
There are real cases of people who has been sentenced consecutively for crimes invented by the government. First being convicted as an enemy of the fascist government and then as an enemy of the communist proletariat and they have been liberated after 20-30 years of imprisonment and sentenced with life time deportation. There is the risk involved in any type of delegation of authority, that the assignee will not serve the interests of the assignor in an appropriate manner.
Even if we do not have the solutions, at least not yet, it is worth to be aware and reason and try to imagine better ways to deal with law and legislation. Living law, the term coined by Ehrlich sounds like a metaphor, but it still can inspire us to re-think and question the limits of law.
http://www.youtube.com/watch?v=UnNL5VCmnWA
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