As Social Order Itself Laws

In western legal history, legal ideas of changes experienced three stages, namely by "natural law" to "actual" and then to the transformation of"the living law", these three views respectively is natural law school, analysis and the sociallaw school represented by the school of positivism, the change process embodies the law thinking Angle and study center of change,they explain and understand the law respectively from "law method", "law of law" and "law outside method" of Angle."Living Law" theory is the earliest by Austria scholars put forward Eugen·Ehrlich. Eugen·Ehrlich will definition for standardizing the principal social order itself law, from his legal phenomena and other social contact between the many, expounds a kind of different from traditional new rationalism. His law is to "commands" sovereign, this thesis puts forward the challenge, and believe in the form of state laws enacted laws is the only legal age never has been, legal originates from the society itself, with no national inevitable connection.Except the introduction and conclusion outside, text including five parts:Introduction of the main topic of this paper talk basis, through briefly described Eugen·Ehrlich sociology history position, given its "living law" theory of uniqueness, is not only a kind of legal research methods, and is in today's social reality of this theory a concern, the author produced discussion the idea.The first part of this part starts to play it introduces the "theory of social and historical background, namely large social reality of existing proof enacted law cannot covers every aspect of social life, a large number of written law plays a role in many fields," living law"theory in the influence of various factors under emerge as The Times require. This theory is the main ideas of the source is the historical law pie flashbeagle savigny, his "the national law perspective gave Eugen·Ehrlich great inspiration, Eugen·Ehrlichbased on the critical inheritance, established and developed his own theory.The second part, through choosing a few understand "living law" theory, the key concepts, respectively is social association, internal order, legal regulation, thus interpretation "living law" theory of the main contents. Can say,Eugen·Ehrlich's "living law" theory is around these three categories launch. First is "society" this confusion and easily misuse of concepts, The second is "order", this is any jurist inevitable problems; Once again, is "norm", we usually say of norms and Eugen·Ehrlich said standard significance differently? This article will are thoroughly discussed.The third part, the part for card into "living law" theory necessary matting, this section is around "living law" theory, the specific contents unfolding. Firstly introduces Eugen·Ehrlich think law, he will law defined as a neat, by combining historical argument method, he took the judges norms, legal proposition and law in the gates of the basic form of exclusion laws outside. On this basis, for his "living law"theory was further extensions, puts forward the legal freedom found. Eugen·Ehrlich think,law is forming social order to play it, they contain based on the complicated social life, the judge cannot be enacted law bind feet and hands, but according to their emotions freely, discovery, reveal the law, in order to make cases will be fair and reasonable solution. Finally, ella lehi limited" living law"scope, namely those in daily life for members of the association for social members accepted and the actual behave.The fourth part, reveals the existing dilemma, principal mainly embodies in the "principal" theory of justice sense of disenchanted, this concept ruled out moral factors. "living law" standard also difficult, what is the order of the association can boil down to internal order? Meanwhile, "living law" theory is also difficult to distinguish between law and other social norms. Above these problems in the use of "living law"theory may arise in disagreement.The fifth part, points out the "principal of" defferent between local government of law embodied pluralism thinking, and summarizes the "principal" theory and Chinese academic circle of similarity theory "indigenous resources" and "folk law", "customary law" comparison, shows "living law" theory of unique academic value, for the transitional period of China's legal system construction and jurisprudence has positive significance. Through the above research, the author of this theory is a new experience.Conclusion part summarizes the Eugen·Ehrlich with its unique opinion, created the "principal" theory this of sociology of methodology. "living law" theory to study law provided a new Angle of view, pay great attention to the study of reality, this is actually a method of broken state laws in the whole country, the leading position of the legal system, from the legal phenomena and other social phenomenon of contact and its social contribution and function to investigate the status of law in the whole society, from the society found in legal functions.