«Judicial Discretion as The Basis of ‘Living Law’ in The Doctrine of E. Ehrlich»

Abstract

The article analyses the legal doctrine of E. Ehrlich regarding the concept of living law and the impact of judicial practice on legal reality and the formation of legal content. The author establishes that social relations may well be ahead of the existing norms, which is especially evidenced by the modern movement of life, and thus the question of the need for flexible forms of law arises.
The author notes Ehrlich's critical attitude to the regulatory value of the State rule due to the desire for automatic resolution of the issue of regulation of social relations which are not automatically carried out. On the one hand, a judge must decide a case through his or her own expression of will, taking into account the actual circumstances, and on the other hand, the law seeks to make the judge's will as predictable as possible by implementing the jurisprudence of concepts, i.e., the formation of a categorical apparatus capable of assessing any relationship.
The author analyses the provisions on the ‘tacit will of the judge’, which is not a norm and does not have such legal force, but such will in a decision may be based partly on traditions, customs, principles, rather than on the prescription of a norm which may not correspond to the actual realities of life. Good faith and discretion are also an opportunity for a judge to exercise his or her own lawmaking if the law contains a gap or does not adequately regulate the actual relations. The emergence of new categories and concepts in law is also due to the development of public communication. However, in this case, it is difficult to take into account private life cases, which may at the same time require a complex application of the principles of justice, humanity, equality and freedom. All these principles are legal and equivalent, but their application in different cases is not the same. And this is why the sociology of law arises, to formulate prescriptions on the basis of living relations.
The author comes to the conclusion that E. Ehrlich's vision of the value of judicial discretion remains relevant even now, when Ukraine is experiencing severe extraordinary circumstances related to the armed conflict and martial law, for which ‘peaceful law’ is not always ready, and therefore judicial practice plays an important role in the interpretation and implementation of the rules which, in particular, restrict human rights and freedoms, and in preserving the necessary criteria for such restriction.