State Regulation and Non-state Law
Edited by Hanneke van Schooten and Jonathan Verschuuren
Chapter 6: Ehrlich’s Non-State Law and the Roman Jurists
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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