Sociology of law against legal dogmatics: revisiting the Ehrlich-Kelsen debate/Sociologia do direito contra dogmatica: revisitando o debate Ehrlich-Kelsen.
| Autor | Konzen, Lucas P. |
1 Introduction (1)
This article revisits the controversy between Eugen Ehrlich (1862-1922) and Hans Kelsen (1881-1973) on the scientific study of law in the context of the early 20th century Austro-Hungarian Empire. Fundamental principles of the sociology of law, (2) Ehrlich's book published in 1913 is a landmark work for the scientific project aimed at the sociological study of law. Such scientific project, however, succumbed right in its beginning in face of Kelsen's critical reaction and the following success of Pure theory of law, (3) the book launched in 1934 that would convert its author in one of the greatest names of legal positivism.
The controversy had its place in the Archive for social science and social welfare (4), one of the first journals to publish sociological studies in the German cultural and academic milieu. The journal, at that time under the direction of Edgar Jaffe, Werner Sombart and Max Weber, published studies that are today considered classics of the social sciences. (5) In 1915, Kelsen publishes A foundation of sociology of law, (6) which presents an extensive reflection on Ehrlich's book. In face of such a critical review, Ehrlich counterarguments with a Reply, (7) which is followed by Kelsen's Reply (8) appearing both in the same issue of the journal, in 1916. Ehrlich still writes a short Second reply (9) and the debate ends with Kelsen's Closing words, (10) both from 1917.
Through an analysis of the Ehrlich-Kelsen debate, the present study seeks to understand the relationships that sociology of law has established with legal dogmatics in the beginning of its trajectory in the history of legal thought. Is the line of demarcation between sociology of law and legal dogmatics a matter of division of scientific labor? Could this relationship be seen in another way, as a dispute between schools of thought that approach the same object from incompatible viewpoints and compete to establish what it means to study law scientifically? This involves recovering a discussion of epistemological order that remains of interest to problematize the identity of sociology of law as a social science in the current times.
In order to analyze Kelsen's critical reaction to Ehrlich's scientific project, the original texts of the debate published in the Archive for social science and social welfare between 1915 and 1917 were used as primary sources of information. These texts, so far available in compilations in German (LUDERSSEN, 2003) and Italian (CARRINO, 1992), were translated into Portuguese prior to the preparation of this article. This translation of the Ehrlich-Kelsen controversy is published in the present issue of Direito e Praxis.
The lack of effective engagement with these primary sources consists in one of the most remarkable deficiencies of the literature on the Ehrlich-Kelsen debate available in Brazil--for instance, Maliska (2001), Sparemberger (2003), Ataide Junior (2010), Carlotti (2015). Amato (2015) is an exception, in spite of the fact that the author seeks to develop a Luhmannian reading of this debate, which is fairly different from the one that is developed here. This situation results in a certain misunderstanding of the positions in dispute and even of the core of the controversy. However, there are a few studies published during the last decade--notably the works of Van Klink (2009) (11) and Maliska (2015) (12)--that revisited the debate using the texts of the Archive for social science and social welfare. These studies served as secondary sources of information.
The article is divided into four sections. Initially, the controversy is historically situated in order to highlight that the call for the development of sociology of law arose in a specific context of time and space, in which legal dogmatics already prevailed as a paradigm in the science of law. In the next section, the aim is to present Ehrlich's project of laying the foundations of a sociological science of the legal phenomenon, in opposition to legal dogmatics. Kelsen's critique is analyzed afterwards with the purpose of highlighting the divergences between the two perspectives on the way that they understand the relationships between legal dogmatics and sociology of law. Finally, the last section discusses Ehrlich's response to Kelsen's critique in order to show that this controversy is an inaugural moment of an unfinished dispute between two paradigms.
2 Legal dogmatics as a paradigm in crisis in the context of the Austro-Hungarian Empire
The appearance of Fundamental principles of the sociology of law occurred in a historical moment in which a paradigm in the science of law had already been established in continental Europe. In the Austro-Hungarian Empire, however, the paradigm of legal dogmatics was going through one of its first crisis. In this section, the concept of paradigm is examined in the context of the theory of scientific paradigms; then, the main constitutive elements of legal dogmatics as a paradigm are identified in order to explain the conditions that disturbed its normal reproduction in the law schools of the Austro-Hungarian Empire in the early 20th century.
According to the theory of scientific paradigms (KUHN, 1970), scientific fields are social constructions, because the consideration of knowledge as scientific depends on the existence of paradigms. A scientific paradigm is defined as "the entire constellation of beliefs, values, techniques, and so on shared by the members of a given community" (KUHN, 1970, p. 175). In order to understand the elements that conform a paradigm it is necessary to scrutinize the constellation of group commitments of a given scientific community, which is defined as a group of scientists who are practitioners of the same specialty, passed through a similar professionalization process and share an intersubjective agreement about the normal mode of producing scientific knowledge in their field (KUHN, 1970, p. 177-178).
A paradigm thus consists in a relatively stable structure that conditions the practice of a group of scientists at a given historical moment. This means that crises and paradigm shifts can occur over time. According to the theory of paradigms (KUHN, 1970), this typically happens when a few members of a scientific community realize that the dominant paradigm ceased to function properly. Dissatisfied with the available answers to address research questions of crucial practical importance, they start to search for solutions beyond the boundaries of normal science. This process leads to the development of news schools of thought that compete with each other for support of those who belong to the scientific community. A turbulent period of transition tends to precede a paradigm shift, which is completed when a given scientific community replaces its constellation of commitments partially or completely.
This theoretical framework suggests that paradigms may exist in many different scientific fields, shaping the way scientific knowledge is produced and consumed. There is indeed a whole literature in sociolegal studies that, based on this theory, argues that legal dogmatics consisted in the prevailing paradigm in the science of law throughout the 20th century (ZULETA PUCEIRO, 1981; FARIA, 1988; HAGEN, 1995; ANDRADE, 2003). These analyses suggest that a scientific community focused on the study of law was structured historically, sharing a constellation of commitments that establishes who belongs to the group of scientists and what it means to do science of law in the normal way.
Legal monism is one of the constitutive elements of that constellation of commitments. The law as an object of study is reduced to the legal norms originated from legislative, judicial and administrative decisions of the state. Another belief is that the jurists' scientific task is to describe valid norms in a given space and time. The science of law must build a formal system of legal norms characterized by its logical unity and internal coherence, which requires the elaboration of a set of doctrinal concepts to systematize normative materials. Doctrinal studies of law, which provide a description of what the legal order prescribes about a particular matter, are the quintessential product of research done in accordance with the paradigm of legal dogmatics. The science of law works by serving the practical purpose of establishing the terms for future decision-making in concrete cases of judicial or administrative application of law, promising legal certainty and predictability in dispute resolution (ANDRADE, 2003).
The genesis of the paradigm of legal dogmatics goes back to the School of Historical Law (SANDSTROM, 2005, p. 139), which appeared in continental Europe during the 19th century, concomitantly with the process of consolidation of the Liberal State model. At that time discussions about the conditions and possibilities of a science of law based on the distinction between positive law and natural law gained momentum. The legal positivism of the German School of Historical Law (its most famous exponent being Friedrich von Savigny) pioneered the efforts in giving scientific status to the study of law, establishing as the task of the science of law to describe the content of a given system of positive law (SANDSTROM, 2005, p. 137). The School of Historical Law is closely associated to the rise of the legal scholar, that is, the law professor who, acting with a certain independence in relation to the political powers, began to play a prominent role in the production and dissemination of the science of law, contributing to the rationalization of the professional work of practical jurists (FERRAZ JR., 1980, p. 54-55).
The book Fundamental principles of the sociology of law consists in one of the first significant reactions to legal dogmatics as a paradigm. It is a book that develops not only a strong criticism of the science of law existing at the beginning of the...
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