[英文版] 法律社会学基本原理:导读注释版 [英]尤根·埃利希 著 世界学术经典系列 上海译文出版社 正版

本书作者以罗马法、英国普通法、欧陆普通法等不同类型法律的历史发展为纵线，以法律的结构与功能为横线，集中阐述了“联合体内在秩序”这个关键性概念，并就此提出“活法”的思想，“活法”即联合体的内在秩序，这是与国家执行的法律相对的社会执行的法律。社会并非是一个相互隔绝的抽象的个人集合，而是具有相互联系的人类联合体的总和。这些联合的内在秩序就是历史的起点。他认为无论在任何时候，法律发展的重心都不在立法、法律科学，也不在司法判断，而是在社会本身。

尤根·埃利希 （Eugen Ehrlich，1862～1922），奥地利法学家、自由法学的倡导者、社会学法学派在欧洲的首创人之一。导读注释者：曹阳，上海政法学院教授，法学博士，知识产尤根·埃利希权博士后。

THEORY OF ÆSTHETIC
I INTUITION AND EXPRESSION
Intuitive knowledge.
Knowledge has two forms: it is either intuitive knowledge or logical knowledge ; knowledge obtained through the imagination or knowledge obtained through the intellect; knowledge of the individual or knowledge of the universal; of individual things or of the relations between them: it is, in fact, productive either of images or of concepts.
In ordinary life, constant appeal is made to intuitive knowledge. It is said that we cannot give definitions of certain truths; that they are not demonstrable by syllogisms ; that they must be learnt intuitively. The politician finds fault with the abstract reasoner , who possesses no lively intuition of actual conditions; the educational theorist insists upon the necessity of developing the intuitive faculty in the pupil before everything else; the critic in judging a work of art makes it a point of honour to set aside theory and abstractions, and to judge it by direct intuition; the practical man professes to live rather by intuition than by reason.
But this ample acknowledgment granted to intuitive knowledge in ordinary life, does not correspond to an equal and adequate acknowledgment in the field of theory and of philosophy. There exists a very ancient science of intellectual knowledge , admitted by all without discussion, namely, Logic; but a science of intuitive knowledge is timidly and with difficulty asserted by but a few. Logical knowledge has appropriated the lion's share ; and if she does not slay and devour her companion outright, yet yields to her but grudgingly the humble place of maid-servant or doorkeeper.--What can intuitive knowledge be without the light of intellectual knowledge? It is a servant without a master; and though a master finds a servant useful, the master is a necessity to the servant, since he enables him to gain his livelihood. Intuition is blind; intellect lends her eyes.
Its independence with respect to intellectual knowledge.
Now, the first point to be firmly fixed in the mind is that intuitive knowledge has no need of a master, nor to lean upon any one; she does not need to borrow the eyes of others, for she has excellent eyes of her own. Doubtless it is possible to find concepts mingled with intuitions. But in many other intuitions there is no trace of such a mixture, which proves that it is not necessary. The impression of a moonlight scene by a painter; the outline of a country drawn by a cartographer ; a musical motive, tender or energetic; the words of a sighing lyric, or those with which we ask, command and lament in ordinary life, may well all be intuitive facts without a shadow of intellectual relation. But, think what one may of these instances, and admitting further the contention that the greater part of the intuitions of civilized man are impregnated with concepts , there yet remains to be observed something more important and more conclusive . Those concepts which are found mingled and fused with the intuitions are no longer concepts, in so far as they are really mingled and fused, for they have lost all independence and autonomy. They have been concepts, but have now become simple elements of intuition. The philosophical maxims placed in the mouth of a personage of tragedy or of comedy, perform there the function, not of concepts, but of characteristics of such personage; in the same way as the red in a painted face does not there represent the red colour of the physicists, but is a characteristic element of the portrait. The whole is that which determines the quality of the parts. A work of art may be full of philosophical concepts; it may contain them in greater abundance and they may there be even more profound than in a philosophical dissertation , which in its turn may be rich to overflowing with descriptions and intuitions. But notwithstanding all these concepts the total effect of the work of art is an intuition; and notwithstanding all those intuitions, the total effect of the philosophical dissertation is a concept. The Promessi Sposi contains copious ethical observations and distinctions, but does not for that reason lose as a whole its character of simple story or intuition. In like manner the anecdotes and satirical effusions to be found in the works of a philosopher like Schopenhauer do not deprive those works of their character of intellectual treatises. The difference between a scientific work and a work of art, that is, between an intellectual fact and an intuitive fact, lies in the difference of the total effect aimed at by their respective authors. This it is that determines and rules over the several parts of each not these parts separated and considered abstractly in themselves.
Intuition and perception.
But to admit the independence of intuition as regards concept does not suffice to give a true and precise idea of intuition. Another error arises among those who recognize this, or who at any rate do not explicitly make intuition dependent upon the intellect, to obscure and confuse the real nature of intuition. By intuition is frequently understood perception, or the knowledge of actual reality, the apprehension of something as real.
Certainly perception is intuition: the perceptions of the room in which I am writing, of the ink-bottle and "