Eugen Ehrlich

Eugen Ehrlich – Living law

Professor Eugen Ehrlich of Austria is another sociological jurist who expounded the organic concept of living law.  Ehrlich while following the Savigny’s line of thinking does not hang on the past but has his views on the present society.  The ‘living law’ as conceived by Ehrlich is the ‘inner order of associations’ that is the law practiced by society as opposed to law enforced by the State. As volksgeist was the central theme of Savigny’s theory, the ‘living law of the people’ was the pivot  of Ehrlich’s theory.

The central point in Ehrlich’s theory is that ‘the law of a community is to be found in social facts and not in formal sources of law’.  He says: “At present as well as at any other time the centre of gravity of legal development lies not in legislation nor in juristic science, nor in judicial decision, but in society itself.”

The law in the formal sources, like legislation and precedent, does not reflect the actual life of the people.  By reading the Advocates Act one cannot have a full knowledge of the actual rules of conduct observed by the legal profession.  There are many norms followed by the people and deemed binding on them which are not embodied in the law.

State is an organization of the people, but it is not the only one, there are several others like the family, the village, the chamber of commerce, the trade union.  These organizations also have norms to regulate the conduct of individuals.  They are strictly observed by the individual because of the social pressure behind them.  They also form rules of conduct and therefore part of ‘the living law of the people’

Ehrlich says “the law is much wider than legal regulations”.  He illustrated the gap between the formal law (law in legislation and precedent) and the living law (law as it actually lives or functions in society).  A commercial usage comes into practice as a matter of convenience and usefulness, normally it takes a long time for the court to declare it in a precedent, and a longer time for legislation to embody it in a statute, very probably, by that time new usage may have grown in practice.  The ‘formal law’ thus lags far behind the ‘living law’.

Friedmann says that Ehrlich theory relates law more closely to life in the society. It concerns to present rather than the past, and tries to analyse the social function of law.  In giving too much prominence to social facts, Ehrlich has confused custom as a source of law with custom as a type of law.

In primitive societies, customs were the laws, but in a modern society, a custom does not become an enforceable law merely because it is observed in practice.  It ignores the fact that legislation does very often, and case law does at times, impose a new principle which the society follows thereafter in practice, eg. Prohibition Act, and Donoghue v. Stevenson. As the Welfare State extends its activities, new legislations are made to cover all possible aspects of the social life