作为方法的活法理论——埃利希《法律社会学基本原理》解读-the theory of living law as a method —— interpretation of ehrlichs basic principles of sociology of law.docxVIP

3 3 使用很大的篇幅介绍分析实证主义法学的一些基本理论，比如法律事实、裁判规范、国 家与法等命题，而最后才引出法律社会学来。在埃利希那里，法律社会学是在对法律深 入研究的基础上谈论的，法律社会学是一种更深意义的法律研究，而非纯粹的社会学研 究。法律社会学具有双重身份，它不仅是社会学的组成部分，而且也是法学的一个分支。 关键词：尤根·埃利希；法律命题；国家创制之法；习惯法；活法；方法 PAGE PAGE 1 Abstract The theory of “living law” is the method of legal sociology. Ehrlish brings those norms which have the practical functions in the daily life such as the custom laws or the jurists’ laws into the extension of the concept of law. In light of this creation on the perspective, he makes an expansion for law while he opposes over the view of legal pragmatism that he consider the law as the active rules but not the judicial rules. So the written statutory is the small part of laws and the individuals who never get into the judicial processes are the potential subjects by the active rules. Comparing with the other theories about the common researches on what is the living law; Ehrlish’s Fundamental Principles of Legal Sociology has given an interpretation on the theory of living law in the sense of methodology actually. And on the basis of the theories regarding legal positivism, he explores the laws with the creative methodology that is the theory of living law to enrich the extension of the concept of law. Therefore, living law is the root of Ehrlish’s legal sociology which guides all of his thoughts concerning with this area. The basic principles, the legal thesis, the functions of jurisprudence and the written laws by state or the custom laws and other legal sociological thoughts in this masterpiece are all established on the foundation of living law theory. By the arising of this theory, the survey perspective of legal sociology turns a radical conversion which changes the position of the normative law by the legal rules themselves into the position of the society-focus theory outside the legal rules, which get a great wide horizon to treat these problems above. The body-text are divided into four parts expect for the introduction and the conclusion. The