Praetorian Law: A Contribution to the Beginnings of Legal Sociology

Abstract

This article describes parallels between Roman procedural law and trends incorporating sociology in legal science. The author is persuaded that legal theoreticians at end of nineteenth century must have been inspired by Roman law, and in particular by praetorian law. The leader of these lawyers was a romanist Eugen Ehrlich, so-called the founder of legal sociology.The author first analyses office of Roman praetor, whose activity was specific in that it touched on all three forms of state power. The praetor however was not a classic official of public power in today’s sense of word, because he was limited by his term of office and that he was not salaried.The author subsequently gives detailed attention to dichotomy between free and bounded approach in application of law, specifically in filling in gaps in law. While private law codexes (such as Code Civil) bound judges in various degrees, Roman praetor filled in gaps in law very freely.In conclusion author proposes that we be inspired by Ehrlich’s theory, specifically by fight against contra-factual norms of state law, which are of course in conflict with social law.