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Tellegen-Couperus, Olga --- "Ehrlich’s Non-State Law and the Roman Jurists" [2008] ELECD 308; in van Schooten, Hanneke; Verschuuren, Jonathan (eds), "International Governance and Law" (Edward Elgar Publishing, 2008)

Book Title: International Governance and Law

Editor(s): van Schooten, Hanneke; Verschuuren, Jonathan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847207272

Section: Chapter 6

Section Title: Ehrlich’s Non-State Law and the Roman Jurists

Author(s): Tellegen-Couperus, Olga

Number of pages: 13

Extract:

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 fea-
turing 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 (1862­1922), 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 argu-
ments 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 con-
centrate on Ehrlich's use of Roman law as an example of law developed in
society by independent jurists who were free from ...