International Governance and Law

International Governance and Law

State Regulation and Non-state Law

Edited by Hanneke van Schooten and Jonathan Verschuuren

Around the world, the role of national regulation is often hotly debated. This book takes as its starting point the fact that legislatures and regulators are criticized for overregulation and for producing poor-quality regulation which ignores input from citizens and stifles private initiative. This situation has enhanced the role of non-state law, in forms such as self-regulation and soft law. In this book, international scholars in various fields of law, as well as socio-legal studies, address the question to what extent non-state law currently influences state regulation, and what the consequences of non-state law are likely to be for state regulation.

Chapter 6: Ehrlich’s Non-State Law and the Roman Jurists

Olga Tellegen-Couperus

Subjects: politics and public policy, international politics


Olga Tellegen-Couperus 1. INTRODUCTION At first sight, it may seem strange to find Roman law and Roman jurists featuring in a volume on twentieth century non-state law. However, it is no longer so strange when it is realized that the first person to introduce the concept of non-state law was a professor of Roman law. It is only natural that this person, Eugen Ehrlich (1862–1922), used his expertise in legal history when developing his new theory on the sociology of law. It is not his fault that he did so in a way that was generally accepted in his day but which is now regarded as questionable. Therefore, it is interesting to return to his fundamental work on the sociology of law and see whether the arguments that he put forward then still hold today. In his Grundlegung der Soziologie des Rechts (1913), Ehrlich argued that, in all times, the development of law is not centred in legislation, nor in jurisprudence or jurisdiction, but in society itself.1 Law, and particularly private law, is and must be free from state influence. He seems to base his theory on a historical argument, for, throughout the book, he refers to Roman law, ius commune, and common law. In this contribution, I will concentrate on Ehrlich’s use of Roman law as an example of law developed in society by independent jurists who were free from state influence. According to Ehrlich, in the time of the Republic, i.e., in the first 500...

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