Ziegert, K Alex --- "A Note on Eugen Ehrlich and the Production of Legal Knowledge" [1998] SydLawRw 4; (1998) 20 (1) Sydney Law Review 108

A Note on Eugen Ehrlich and the Production of Legal Knowledge

K ALEX ZIEGERT[*]

The name of the eminent Austrian legal scholar and Professor of Roman Law Eugen Ehrlich (1862–1922) is intimately connected with innovative legal scholarship at the turn of the century. The following is a re-evaluation of Ehrlich’s work in relation to the issues of legal knowledge production and legal education in the light of continuing struggles in law schools for curricula which are both academic and relevant for lawyers. This evaluation pays special attention to arguably the most important part of his work,[1] an analysis of legal reasoning,[2] which has never been translated into English.

After more than [25] years of research and lively discussions with his fellow law professors, Eugen Ehrlich presented in 1913, for the first time in the history of legal scholarship, a consistent concept of a sociology of law. He summarised his findings inimitably in the famous foreword to his Grundlegung der Soziologie des Rechts (Fundamental Principles of the Sociology of Law):

At the present as well as at any other time, the center of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself. This sentence, perhaps, contains the substance of every attempt to state the fundamental principles of the sociology of law.[3]

This radical assault on the traditional understanding of law and legal doctrine was followed five years later by an equally radical analysis of legal practice and legal reasoning in a second major contribution to legal theory. Once again, he succinctly summarised his position in the foreword of the book Die juristische Logik:

For most lay people and for many lawyers it is evident today that the main task of judicial decision-making is to deduce the decisions in the individual case from what the laws and statutes say. There is so much which is not evident from this evidence that it takes the combined forces of the theory of knowledge, legal history, logic, psychology and sociology to find out where this assumption which dominates all of the modern jurisprudence comes from, what it means, how far it reaches and where it leads to.[4]

Ehrlich’s death from tuberculosis in 1922 prevented him from completing the planned trilogy with a project on judicial decision-making,[5] but in these two books Ehrlich presented a genuinely complete and innovative program for a sociological theory of law and for sociolegal research as a basis for legal knowledge. Even if this approach has been and still is widely mentioned, it is rarely explicitly referred to and only selectively used. As is often the case with outstanding precursors of a discipline, the reception of their work without the context in which it was conceived and written depends largely on who is making the selection for the further transmission of conceptions and ideas. Ehrlich’s distinctive observations had an impact on lawyers, especially the legal realists in the USA and Scandinavia in the thirties, legal anthropologists since the forties, and legal educators and sociologists of law in the seventies and eighties. However, each group received a different message from Ehrlich’s work. I will try to present in the following Ehrlich’s work in its context (sections 1 and 2). I will then address what lawyers, legal anthropologists and sociologists have found to be remarkable in this work, and worth carrying further (section 3). I will argue that the contribution of Ehrlich is not only important for current sociology of law, as that of an authentic empirical observer of the operations of legal systems at the turn of the century, but also as a relevant, empirically founded piece of evidence for the differentiation and selfcreation of law as an indispensable part of social life in all given contexts. This evidence, I argue, is the key for a meaningful approach to law in legal education.

The presentation of Ehrlich’s work in its social and historical context will make it unmistakably clear that Ehrlich was an academic lawyer who wrote for academic lawyers, received his most important inputs from academic lawyers, and who saw in sociology not more, but not less either, than a fruitful ancillary method to realise his vision of a scientific approach to law. This provoked the criticisms of other academic lawyers but did not produce, and was not intended to produce, sociology. Ehrlich remained faithful to the juridical project of legal theory throughout. This project, for him as for other legal academics, consisted of producing better lawyers and better legal doctrine, that is, lawyers who were made more methodologically conscious and a legal doctrine that was made more consistent and less selfdeluding in its assumptions. However, while it is fair to dub Ehrlich’s project “legal theory”, his unconventional and uncompromising search for the scientific reliability of his findings (rather than their congruency with doctrinal orthodoxy) set his work clearly apart from all other doctrinal work, and unveiled the myths, errors and weaknesses of legal theory where it proceeds merely by way of reflexive doctrinal analysis. Ehrlich’s empirical stance produced, for the first time, remarkably powerful distinctions between different types of legal operations which have helped and still help to see law and its conditions and effects in a new light. These fine but fundamental distinctions, rather than a fully developed “sociology of law”, have influenced and stimulated legal anthropologists and sociologists, and created some misunderstandings as to what Ehrlich had actually distinguished (see below section 3). More importantly, the fact that the distinctions which Ehrlich introduced have only survived and flourished outside legal theory indicates, perhaps, something that can never be achieved, namely to integrate explanatory scientific approaches and legal doctrinal practice. Nobody has seen this problem more clearly than Ehrlich himself. However, he saw it only as a difficulty which had to be overcome by the hard work of generations of legal scholars to come. Undaunted, he set out to make a beginning and lay, at least, the foundations for this work: “Thus a beginning has to be made at some time.”[6]

I

Eugen Ehrlich was born in Czernowitz (today Cernovcy, in Belorus), the capital city of Bukowina in south-eastern Europe, in 1862. He studied law in Czernowitz and Vienna and became Professor of Roman Law in Czernowitz in 1896. Apart from travels to international conferences, he lived and worked in Czernowitz until his death in 1922. Behind the facade of this seemingly uneventful life in a remote province of the decaying Austrian empire, Ehrlich’s life and work reflected the dramatic cultural and political processes characteristic of this part of Europe in the historical period leading to the first World-War and the rapid changes which it precipitated.

Bukowina was, as much as the Austrian Empire as a whole, a multi-cultural melting-pot. Only slow economic development kept this volatile socio-economic and socio-cultural mixture from exploding by keeping it in the state of a preindustrial, ethnic caste society. Ehrlich commented on the “tribal life” in Bukowina,[7] in which the ethnic groups of Armenians, Germans, Gipsy Jews, Hungarians, Romanians, Russians, Ruthenians and Slovaks lived side-by-side under the political umbrella of the Austrian imperial state at the brink of its collapse. When the collapse finally came, as a result of the first World War, Bukowina suffered the same fate as most of south-eastern Europe becoming part of the new state Romania in 1919. New nation-states were formed with arbitrary collections of national populations and contested territorial borders, giving rise to ever-present tensions between dominant religious-ethnic groups and various large minority groups, glossed over but never solved by the turmoil of the conflict between the European Great Powers. Under these circumstances, notions of a “common law” or a uniform “national” law are challenging propositions.

Ehrlich was a baptised Roman Catholic of Jewish descent. This fact is important to note in order to understand his keen awareness of the finer texture underlying the more obvious profile of cultural identity. As many other assimilated Jewish intellectuals, Ehrlich was torn between a deep commitment to the perceived humanitarian values of the dominant high culture and a rejection of the base nationalistic tendencies which that culture also embraced. A commitment to the professional rigour of uncompromising scientific observation seemed to provide a way out of the personal dilemma for many of these intellectuals, among them Ehrlich’s contemporary Emile Durkheim in France, who – being a sociologist and not a lawyer – is never mentioned by Ehrlich but whose work is culturally and intellectually similarly pitched.

His appointment to the Chair of Roman Law in Czernowitz (1896) provided Ehrlich with a focal point for his critical mind: Roman Law, as taught in continental European faculties of law, integrates legal doctrine and historical research methodology. Ehrlich could easily extend his scientific approach to Roman Law to legal-ethnographical research; this approach enabled him to show that law in Bukowina as in ancient Rome had none of the qualities that legal doctrine attributed to it but a host of qualities on which legal doctrine had nothing to say. It was this gap between the law as it operated and what legal doctrine said it was which fascinated Ehrlich from his earliest works.[8] These early pieces are still dressed in doctrinal argument but they already foreshadow his critical probing of the soft underbelly of normatively wishful legal doctrine, with notions such as the “unity of the legal system” and the paradox of "tacit declaration of will". He explores the gap between legal myths and actual practice with increasing methodological consciousness and an ever more confident call for a reform of legal practice.[9]

In 1910, he founded an Institute (Seminar) for Living Law based on the empirical research work of contemporary South-Slavonic (Croatian) lawyers, especially V. Bogisic, who impressed Ehrlich with his formulation of a Civil Code for Croatia based on findings from interviews with the local population concerning their customary practices.[10] He also joined the movement of critical lawyers, the so-called “Freirechtsschule” (free, that is, non-doctrinal, findings for legal decision-making) which challenged the myth of traditional doctrine that all law can be found by deduction from existing legal propositions be it in case-law or formulated in acts, statutes or codes.[11]

Sociology was the cornerstone in Ehrlich's project to reform and revitalise traditional legal doctrine. He saw it as the methodological vehicle to extend legal science into areas and aspects of social life on which legal doctrine shed no light.[12] Although the objective of sociology was empirical and explanatory, and not normative and practical, sociology offered lawyers a methodology which was indispensable if they were to fulfil their obligations towards the community, namely legal work of the highest available standard of legal knowledge. Ehrlich was soon well known for his project of improving legal education by providing young lawyers with a portfolio of methodology and research techniques which comprised more than just doctrinal analysis. In 1912, he was asked to present the keynote address at the 31st Annual Meeting of the German Lawyers’ Association (Deutscher Juristentag) on legal education which he delivered with an interdisciplinary vision: “What can be done to enhance the insight of lawyers in psychological, economic and sociological issues?” (Was kann geschehen, um bei der Ausbildung das Verständnis des Juristen für psychologische, wirtschaftliche und soziologische Fragen in erhöhtem Maße zu fördern?)[13]

However, the idea of “Freirecht” remained at loggerheads with traditional legal doctrines in Austria and Germany,[14] and precluded any major impact of Ehrlich’s sociology of law on legal education. He was more successful in influencing the contemporary discussion of legal theory in the USA and in Scandinavia. His concept of “living law” corresponded well with the society-based legal propositions of the emerging schools of Legal Realism in North America and Scandinavia, while Ehrlich, in turn, saw English and American common law as less doctrinally hardened than the “adopted Roman and adjusted common law” regime on the European continent.[15]

There may have been a misunderstanding here on both sides. As will be shown below, the concept of “living law” is far more radically sociological than the Realist notion.[16] And legal practice in England and the United States which Ehrlich admired for what he believed was its approximation to his ideal of nondoctrinal decision-making was known to him largely through law books and was in fact much more doctrinally rigid than he realised. However, there is no doubt that especially Roscoe Pound and the Harvard Law School under his deanship promoted Ehrlich’s work as an important contribution to a program of social engineering through law and gave him prominence through publications in the Harvard Law Journal and translations of his work into English,[17] notably before either Emile Durkheim or Max Weber were translated or widely known to English speaking lawyers and legal theorists in England or North America.

But it was not only the controversy over Ehrlich’s non-doctrinal approach in the legal academic establishment of Austria and Germany which rendered his remarkable foundation work for introducing sociology of law into the core curricula of faculties of law less successful than it could have been. The disastrous end of the First World War and the increasingly vicious political climate in Austria and Germany further marginalised Ehrlich’s ambitious humanist educational program. Ehrlich died in Czernowitz in 1922, struggling with having to teach and write in Romanian[18] and being victimised for having been a proponent of the German elite and their law.[19]

II

In spite of his innovative initiatives in regard to legal education and to the scrutiny of legal doctrine, Ehrlich’s work appraises legal theory exclusively. However, his fascination with scientific method provided him, through historical analysis and empirical observations and research, with powerful tools to arrive at path-breaking distinctions to which I now turn. The following list of some of Ehrlich’s major distinctions and propositions should be understood in the sense that concepts which are usually attributed to Ehrlich such as “living law”, “the inner order of associations”, “rules of conduct” and “rules of decision” are the result of a systematic re-evaluation and re-construction of legal theory with a view to draw distinctions not in regard to established (doctrinal) concepts, as done by traditional doctrinal analysis, but in regard to actual social operations[20] as found in socially related conduct, regardless of whether by lawyers or by lay-people at large. In this shift of emphasis but not the frame of reference, such concepts are not sociological findings which stand their own ground but are, as new jurisprudential distinctions, building blocks in Ehrlich’s reconstruction of legal theory. The leading distinction of this exercise is Ehrlich’s “practical concept of law”[21] which relates law to social operations or practice, instead of legal propositions or texts produced by legal doctrine. This is a radical departure from traditional assumptions of legal theory[22] and the difference which this distinction makes for understanding law and also the consequences which this distinction makes for the validity of legal theory is still widely underestimated.

Ehrlich’s distinction between what lawyers are actually doing and what legal doctrine tells them they should think that they are doing is the point of entry for his discussion of legal theory and legal education. While this triggered a lively debate on doctrinal issues at the time,[23] his sociological arguments attracted less attention in his own time. The major works in which he displayed the full spectrum of his approach to legal theory[24] are well written in a characteristic laconic style, using precise distinctions and applying arguments consistently.

Ten key distinctions and propositions which Ehrlich uses in the main body of his work may suffice to demonstrate the undiminished vitality of his approach; they can also help to allay misconceptions as to what Ehrlich’s approach stands for. (i) Norms are always social norms and they are everywhere the result of social relations, working in the same way in all spheres of human practice; “legal” norms are no exception and do not constitute a “higher order” of social norms.

The legal norm is... merely one of the rules of conduct, of the same nature as all other rules of conduct.[25]

This distinction states fundamentally that all legal operations are social operations, that is, operations which reproduce social structure, but that not all social operations are legal operations. It doesn’t provide, as Pospisil later put it “a second path for legal thought”,[26] so as to constitute a dualism between “principles of actual behavior” = “living law” and “norms for decisions” = “official law”.[27] Ehrlich’s distinction holds simply that all law is made of the same material as social life at large. In order to describe, understand and explain law, one has to look at social operations at large.

Neither is there room for a dualism between “rules of conduct” and “rules for decisions” in Ehrlich’s distinction, or for the suspicion that Ehrlich only shifts the mystique of legal normativity to a mystique of the normativity of social relations.[28] For Ehrlich, all rules are rules of conduct, that is social norms, and the notion of “rules for decisions” only specifies further the locus of their operation, namely a historically differentiated legal decision-making system, including legal practice, jurisdiction and legislation. This development, however, Ehrlich argues, has to be viewed with suspicion as the specialised legal decision-making system has its own distinct historical agenda, namely that of the ‘guild of lawyers’[29] and – historically later in the form of state law – the agenda of state functionaries, including the judges, who are told by legislation, “how to do their jobs”.[30]

Therefore, it is important to note, that the concept of “rules of conduct” (social norms) is consistently meant by Ehrlich to work both ways: it brings law “out of the closet” of its decision-making speciality and back to its centre of gravity – society. Also it includes, the reproduction of law, that is, the decision-making exercise by lawyers, judges, legal academics, and state functionaries as a part of society and as society’s law, and also here exclusively through social operations. This is less widely noted in comments on Ehrlich’s work.

(ii) The power and instrumentality of social control resides in the alliances and arrangements of individuals with other individuals (social associations); law is the more or less formal expression of this inner order of associations.

Man acts according to law first of all because social relations make him do so.[31] Criminal law is powerless when it comes to mobilise forces which are not given in society itself; every criminal law can only achieve what it can achieve with the forces which exist in people.[32]

Ehrlich’s famous distinction of “associations” and their “inner order” as the locus where the effects of law can be observed, that is, where “law lives”, is drawn to oppose the traditional legal view that law has effects because it “is there” and that legal propositions have a social effect in their own right. It is not a sociological distinction, and does not specify further how associations can be distinguished from each other.

The reason why the dominant school of legal science so greatly prefers the legal proposition to all other legal phenomena as an object of investigation is that it tacitly assumes that the whole law is to be found in the legal propositions.[33]

The concept of social associations is also devised to direct attention to the requirement of empirical methodology which lawyers must apply in order to understand law in a scientifically grounded fashion.

We are groping in the dark everywhere.... We need but open our eyes and ears in order to learn everything that is of significance for the law of our time.[34]

(iii) The instrumentality of law resides in the formulation of ways which make associations work; everyday life can, on balance, succeed because law (= the inner order) is working. Law, for Ehrlich, is an order of “peace” and not of war; debtors keep their promises to creditors, first of all, not because they are afraid of credit law or sanctions but because they are anxious to keep promises.[35]

If one reads a contract of usufructuary lease ... one marvels how it is possible for the lessee to move at all within this barbed-wire fence of paragraphs. Nevertheless the lessee gets on very well ... One who is engaged in the practical affairs of life is anxious to deal peaceably with people.[36]

The distinction of “living law” draws attention to the fact that a normative order precedes conflict (and “official law”) and it qualifies the view that the operation of law is restricted to dispute-treatment and conflict-resolution. (iv) The normative order of associations is not a mystical “group-will”[37] or a blind solidarity between individual members of an association. It is a structure which is instrumental for allowing associations on all levels to sort out their own affairs by themselves, and even when conflicts arise. Ehrlich develops his distinction of structure (“inner order”) as a sequence of interactive operations with a remarkable constructionist reference to the time dimension and this separates his theoretical approach from a crude functionalism:

It is only a consequence of the deplorable limitation of the human mind that cause and effect are seen as separated in time; if our mind could be all-embracing it would easily identify all the effects timelessly interlaced with their cause.[38]

This concept of an operative structure is consistent with the concept that all associations, or social systems, have their law, regardless of whether or not this normative order is recognised by the legal decision-making organisations (when they are differentiated). Therefore, the monopoly of the latter to speak for all of society’s law or to decree what is “legal” and what is “illegal” is presumptuous and highly questionable.[39]

The living law is the law which dominates life itself even though it has not been posited in legal propositions. The source of our knowledge of this law is, first, the modern legal document; secondly, direct observation of life, of commerce, of customs and usages and of all associations, not only those that the law has recognised but also of those that it has overlooked and passed by, indeed even of those that it has disapproved.[40]

(v) The problem of how law originates in societies was no issue for Ehrlich.[41] He could show, with his concept of the ‘inner order of associations’, that the origin of law has never been a practical problem for legal decision-making (and the issue of the origin of law is, in fact, never an issue in legal practice). Normative decisionmaking can and does always refer to an earlier normative order as long as it is plausible to assume that one proceeded earlier according to established social (“legal”) norms.[42] The differentiation of legal decision-making is an altogether practical affair:

Jurisdiction was first of all a limitation to avoid a feud in which the intervention of a court could be useful; procedure was a fishing for information in a complicated situation; finding the law was a search for a decision which was so appropriate that even the belligerent party had to accept it.[43]

Accordingly, law does not “start” with legal propositions but it is a set of social operations which result in, among other things, legal propositions. What makes legal propositions “legal” is not a “higher” normativity but the specialised (differentiated) performance of a sub-set of social operations, legal decisionmaking, which distils legal propositions.

What initially provides interests with legal protection is not a legal proposition but above all the art of lawyers (jurists) and a free balancing of interests. The fact that the judicial decisional norm is recognised afterwards as a legal proposition only masks its internal contradictions but does not solve them.[44]

(vi) Legal decision-making or legal practice is the response of society to the pressures from uncertainty for normative decision-making; Ehrlich calls this “Rechtsarbeit” = legal work. This work consists of finding normative decisions which resolve uncertainty and which are acceptable to all parties, including the stronger ones. Law has no higher or other power, and no other source, than the wisdom of its decisions derived from decision-making work. In other words, the authority of legal work rests on not more, but not less either, than its conceptual consistency, creativity and inventiveness. For having “social effects” legal decision-making needs the reflexivity of living law which is the “inner order” of social interactions, institutions and organisations. “Ordinary jurisprudence”, that is one which is not assisted by sociology of law, ignores this fundamental interdependence between self-referential refinement of legal decision-making and instrumental reflexivity of (living) law:

The ordinary jurisprudence is always forced, according to the purpose of its existence, to pretend that all decisions even and including the freely found ones are founded on legal propositions, and a number of exquisitely developed rules of the trade provide instructions how this is done. These rules of the trade are the “juridical logic” of the ordinary jurisprudence: their result is the juridical construction. The juridical logic understood in this sense is essentially different from scientific logic in spite of all the strenuous efforts to refer the former to the latter; the task of juridical logic is not to verify a finding according to the rules of human thought but merely to make a finding appear as such.[45]

(vii) A model for legal decision-making which can achieve the delicate balance between norm-enforcement – through interlacing with the reflexivity of living law – on the one hand, and normative innovation – through legal work – on the other is that of the “wise judge”. This model implies that if a legal (judicial) decision is to have social effects it needs to recognise the interests of all parties, who are involved including the community, and to offer something attractive to all of them.

The wise judge – a typical phenomenon of the legal pre-history – is someone who has got the best idea when it comes to decision-making; this requires a lot of experience, knowledge of human nature and intuitive insight into the given social relationships.[46]

The structural, systemic effect of legal work as a self-referential concatenation of decision-making operations of this kind is also here given by their reference to the time-dimension: decision-making operations are, and can only be, operations in the present which provide for future decision-making.

Judicial decision-making ... is already in legal pre-history exemplary for the future [and] saves the judge the hard labour of an inventor.[47]

(viii) Historically, the “hard labour of normative invention” is eventually the exception to the rule of a legal practice which, like all human practice, derives certainty and strategic advantages from routine and formalism as compared to actual and ad-hoc decision-making. Legal propositions are an attractive substitute for actual authoritative decision-making: references to legal propositions give the appearance of an actual decision and supply this decision with the authority of past decisions. At the same time, the “art” or the trade of legal decision-making provides legal practitioners with a frame of reference which is exclusively controlled by lawyers and organised by the economic interests of the “guild of lawyers”:

The Roman and English reports relate the formalism of their legal actions (leges actiones) with the guild-interests of the lawyers ... For the always increasing number of norms which can only be learned from the master of the guild makes it possible to effectively keep all those away which have no access to this learning and empower mediocrity, in the guilds as anywhere else, to rule by fearful obedience and to oppress dangerous independent initiative; foreign to the uninitiated, the guilds veil the practice of the guild in the glow of utmost importance and accumulate economic success.[48]

(ix) The concept of the specialisation of legal work in all its forms, as the formative historical process of the differentiation of law, leads Ehrlich to another radical concept. It deals with the question as to what constitutes the unity of law. Ehrlich argued, for the first time, that law has to be understood not as a system of texts, or in modern reading, “discourses”, but as a system which produces and reproduces its unity through social operations which structure themselves and, in the process, reconstitute the “inner order” of society as legal order.

Law can be seen as a real unit but it is not a unit made up by legal propositions. Legal propositions form a unit only in connection with the society in which they operate. If one wants to understand the unity of law one has to include in that not only the legal propositions but also the order which exists in legal relations. However, this order is not an achieved one but one which is constantly in the process of being achieved by dissolving the conflicts of interests in the social relations ultimately in legal regimes.[49]

This concept of the unity of law should put misunderstandings to rest which are often found in the literature that Ehrlich’s concept of ‘living law’ is designed as a dichotomy of “law” and “society”. The distinction of the operative unity of law simply states that all societies have their law (“living law”) and that the specialisation of legal practice differentiates law over time.

(x) The mystifying operation of legal practice in the mode of a self-referential “guild” conceals this unity of law in its doctrinal recursivity which invisibilises the (social) reflexivity of law. In order to bring this reflexivity back into the picture, Ehrlich introduces the distinction between legal doctrine and legal science. Jurisprudence understood as the science of law has the goal of emancipating legal practice from a “pure” doctrinal refinement of legal propositions which are unable to refer to a social context and substitute these references with references to legal constructs to a scientific observation of law in its social context.

Juristic science has no scientific concept of law ... the jurist does not mean by law that which lives and is operative in human society as law, but, ... exclusively that which is of importance as law in the judicial administration of justice.[50]

Practically all modern juristic writing and teaching ... pretends to be nothing but a setting forth, as clear, as faithful, as complete, as is possible, of the content of statute law[51] and its finest ramifications and its remotest applications. Such a literature and such teaching cannot, however, be termed scientific; in fact, they are merely a more emphatic form of publication of statutes.[52]

The logic of practical jurisprudence as the doctrine of the trade (in contrast to a theoretical science of law) is in essence the same as other trade doctrines, for instance in engineering, and could hardly reach the result that applying the law is the only task of jurisdiction. Since logic is independent from positive law, the logic of jurisprudence in each legal system should be the same.[53]

The reason why juridical logic and the logic of jurisprudence can never coincide is given by the social nature of jurisprudence. Evidently, a lawyer thinks, like everybody else, not logically but psychologically.[54]

Ehrlich’s distinction of jurisprudence as legal science demonstrates that he is fully aware of the highly invasive nature of modern law, especially of state law (legislation) and that he recognises this as the result of a historical process of the differentiation of legal work. However, he does not accept all the wrong reasons for the invasiveness of modern law. In Ehrlich’s view, legal science offers a way out of the dilemma which is posed by the law of a modern society, that is, reconstructing the social order as an ever more closed legal order. By providing lawyers with scientific methodology, and not only with doctrinal instructions how to ply the trade, the cycle can be broken:

It will be a matter of the logic of the jurisprudence of coming generations to show the way that the results of social science research can be utilised in legislation, in the legal literature and in the administration of justice. All of these are only the beginnings of a scientific foundation of jurisprudence. It will take the next centuries for legislators, lawyers and judges to stand on firmly established scientific ground.[55]

III

This summary of the concepts which Ehrlich introduced in order to advance legal theory is not comprehensive and is necessarily selective. It leaves out large areas of further explications of his ideas and fascinating descriptive accounts of the legal history which was his domain. Nevertheless the summary can give an insight into the approach which Ehrlich took and set out the major nodes in the web of conceptions of Ehrlich’s legal theory which guided other legal and socio-legal scholars.

As mentioned above, Ehrlich addressed primarily his fellow legal academics in the European continental tradition, and there his work was met with mixed success. He was far more successful in the USA where the development of sociological jurisprudence, (especially through Roscoe Pound) and the (legal theory) school of Legal Realism provided a congenial, fertile ground for his ideas. However, this proved to be a mixed blessing. It has been pointed out that the concept of “living law” as the subject of legal theory against the traditional concept of “written law” in its development to positive law seemed to offer support for the concept of the oppositional pair of “law in the books” and “law in action” used by Roscoe Pound,[56] the most eminent proponent of the sociological jurisprudence approach. But there is, in fact, a considerable difference between Ehrlich and Pound in their respective approaches to sociological jurisprudence and legal theory.[57] Ehrlich appraised European legal theory whereas Pound, committed to American pragmatism assembled tools for his vision of social engineering through law. In this attempt, nothing of Ehrlich’s finer points of distinguishing “living law” as the locus of the unity of law survived.[58] However, it appears that this cruder form of Pound’s juxtaposition of “norms of decision” on the one side and social operations on the other side which insulates “law” from other forms of social operations had the most significant influence on later legal scholars.[59] A more subtle and independent blending of Ehrlich’s legal theory and Pound’s legacy of sociological jurisprudence can be found in the writing of Julius Stone[60] who recognised in Ehrlich precisely the inception of a non-doctrinal, scientific understanding and description of law as the foundation of a discipline, “sociological jurisprudence”.[61]

Another distinct group of scholars who carried the ideas of Ehrlich further were legal anthropologists who were able to reference both European legal theory and American anthropological research methodology.[62] This interpretation of Ehrlich’s work also appears to promote its own agenda, that is positivist, behaviourist research, and to miss, as pointed out above (section 2), some finer points of Ehrlich’s legal theory. Undoubtedly the distinction of “living law” and an “inner order of associations” with their organising “rules of conduct” provided a forceful argument for legal anthropology in stateless and “law-less” societies, not least because Ehrlich himself had derived these distinctions from his own ethnographic research. However, the strong behaviourist bent of these writers goes too far in interpreting Ehrlich’s distinction of “rules of conduct” as a feature of individual behaviour,[63] in criticising Ehrlich for having fallen victim to the ideas of a (socialist?) “mystical ‘group-will’ that was distinct from the wills of the members of such a group”.[64] It also goes too far in making “ a group of people into almost a living beast (thus giving rise to the unfortunate ‘Durkheimean trend’ in sociology and anthropology)”,[65] so to miss what Pospisil sees as the “transmission of normativity” through (individual) leaders of groups.[66] This is reminiscent of Pound’s criticism of Ehrlich for his “phobia of the State and of Sovereignty”,[67] along with other European legal theorists who were wedded to the idea that law could only be defined in conjunction with state power and, especially, state sanctions. However, all these criticisms are misplaced because they prefer to overlook what Durkheim actually had suggested earlier: to treat the “social” as the relevant structural level for sociological inquiry, that is, the level on which individuals relate meaningfully to each other and to themselves as persons. It is to this normative structure, the “inner order of associations”, that individuals need to refer normatively in order to construct themselves as “behaving individuals” and to expect from others what they can reasonably expect from and for themselves. This, and only this, is the domain of law.

This message of Ehrlich’s work has, finally, come through to sociologists who can follow Ehrlich’s legal theory as an approach to understand law “from the bottom up” and who can see that the distinctions of “living law” and the “inner order of associations” identify authentic areas of sociological (field) research which lie outside the traditional areas of legal research and on which legal research has nothing to say. These approaches start from the assumption of the interpenetration of a more or less differentiated law and a more or less undifferentiated law and they move towards concepts of “legal pluralism”.[68] This has clear implications for a better understanding of the working of normative structures and - possibly, just as Ehrlich intended - consequences for legal and social policies.[69] Even though, Ehrlich has provided essential clues for finding important elements in scientific legal theory underpinned by sociological research, it is clear from what has been said above that he did not, and could not, link them to an established body of sociological theory. As Ehrlich was the first to admit, this leaves a widely open field of work for those sociologists who hope to derive concepts from Ehrlich which can be easily operationalised for empirical research.[70]

Therefore, and as far as sociology is concerned, it is much more essential that the impulses of Ehrlich’s legal theory lead to an appraisal of Ehrlich’s concepts in the frame of reference of theory–guided sociological research. Contenders for such a re-evaluation of Ehrlich’s holistic approach are, so far, a sociology of norms[71] and systems theory.[72]

As far as legal theory is concerned, there have been doubts whether or not Ehrlich was able to capture all aspects of modern law with his approach[73] and questions as to the position of what Ehrlich calls “sociological method”.[74] Ehrlich has been accused of a perverted “panjurism” in relation to how he defines “social norms” which – by declaring all social norms legally relevant – exceeds an “accurate concept of modern law”,[75] for having been “excessively liberalist” by stating that coercive power is not an intrinsic part of law or may even be counterproductive for the functioning of law,[76] and for having been not thorough enough in his analysis of state law.[77] In order to assess how valid these criticisms are it is necessary to clarify Ehrlich’s concepts on issues such as social control and state law further.

As Ehrlich has shown, modern legal practice is wedded to the idea of the coercive characteristics (“Zwangscharakter”) of law. For Ehrlich, this idea is neither reasonable nor scientific but historical. Not surprisingly lawyers and the legal policy audience find the concept of a law without sanctions outrageous. Sociolegal research has persistently shown, however, that the coercive potential of law is vastly overestimated. Law and law enforcement are ineffective if not aimed at supporting the personal integrity of individuals,[78] state regulation is more successful if collaborative styles are used[79] and ‘wise’ discretion is exercised.[80] Recent social-psychological research on procedural justice[81] and a behavioural model of judicial decision-making[82] bear out Ehrlich's finding that a just decision is the crucial agent in effective decision-making, producing the desired social effects – as hypothesised by Ehrlich – through the contextual and ecological awareness of the decision-maker.[83] It seems, then, that the challenge of conceptualising the effectiveness of law without requisite coercion is not a flaw in Ehrlich’s analysis but flows from the short-sightedness of a “shallow” positivist conception of law which sees legal violence as inevitable. In the area of state law, Ehrlich’s analysis seems to fail to take into account the importance of state law in modern societies. I have suggested earlier that this underestimation of state law operations may be due to Ehrlich’s lack of a sociological concept of differentiation.[84]

As outlined above, however, this lack of a sociological concept of differentiation does not prevent Ehrlich from observing how the historical development of legal decision-making through legal practice pervades social order and specialises decision-making in an insulated sub-system of the legal system. In this analysis of the living law, there is no special role for the state, for instance of a “sovereign” other than that of a powerful party. Nevertheless, Ehrlich is well aware of the complexity of modern state operations but insists that legal practice, due to its historical conditioning, is not in a position to provide anything more than what the complementarity of normative expectations between individuals (the “inner order”) can provide factually. The historical conditioning of legal practice, on the other hand, is also a source of strength provided by legal work in achieving the necessary critical distance and independence of judicial decision-making from all forms of social interactions, including state operations. As Ehrlich never tired to point out, only where state operations are supported by the inner order of the relational webs of everyday life, that is, by the law as it lives, can they be effective on a long term basis. His scepticism as to the social engineering capacity of state law seems to be justified when we observe modern societies and their law: where legal decision-making organisations seem to lose sight of an integrative concern for the interests of a collective public at large, societies slide into the waste-land of “two-thirds” societies like the USA[85] or “hour-glass” societies with law-less citizens like the contemporary Russia in transition.[86] On the other hand, where state law is concerned with such a contextual and ecological perspective on the interests which are to be supported by law, as in the Nordic societies, fairly successful legal programs can be designed on a “human scale” and with solidarity as an outcome.[87]

In conclusion, one can say that Eugen Ehrlich has, indeed, opened the way to new departures in the analysis of the social phenomenon “law”. Possible amendments can spell out – on the basis of a large body of sociological and comparative research since his time – in more detail how legal decision-making is constantly in the process of being refined and differentiated in order to adjust to changing contexts and to more complex levels of the interdependence of domestic, international and global societies. His practical concept of law, however, is alive and productive as a useful starting point for any sociolegal analysis and as a sound basis for legal theory because it encapsulates the universal function of law in an empirical and easily accessible formula. Ehrlich’s beginning of the sociology-oflaw project was not only the necessary first step of a journey of a thousand miles but also a step in the right direction.

---

[*] Associate Professor, Faculty of Law, University of Sydney.
[1] See the selected list at the end of this article. For a comprehensive bibliography of Ehrlich’s work see Rehbinder, M, Die Begründung der Rechtssoziologie durch Eugen Ehrlich (1967) (Germ.: The founding of sociology of law by Ehrlich) and Ziegert, K A, “The Sociology behind Eugen Ehrlich’s Sociology of Law” (1979) 7 International Journal of the Sociology of Law 225.
[2] Ehrlich, E, Die juristische Logik (Germ: The Juridical Logic), (1918; reprint 1966).
[3] Ehrlich, E, Fundamental Principles of the Sociology of Law (1936). For convenience of access to those texts of Ehrlich which are most likely to be available in university law libraries today, I quote from the English translation of the Grundlegung der Soziologie des Rechts (1913) in the Harvard Series of Modern Sociology (Ehrlich, E, Fundamental Principles of the Sociology of Law (1936) ) and translate from the reprint version of Die juristische Logik (1966).
[4] Above n2 at preface.
[5] See as an outline Ehrlich, E, “Die richterliche Rechtsfindung auf Grund des Rechtssatzes” (Germ: Judicial Decsion-making Based on Legal Propositions) (1917) 67 Iherings Jahrbücher für die Dogmatik des Bürgerlichen Rechts at 203 and the announcement in Ehrlich above n2 at 313.
[6] Above n2 at 313.
[7] Ehrlich, E, “Das Lebende Recht der Völker in der Bukowina” (Germ: The Living Law of the Peoples in the Bukowina) (1912) 1 Recht und Wirtschaft at 273, 322 and 273.
[8] Ehrlich, E, Über Lücken im Recht (Germ: About Gaps in the Law (1888) and Die stillschweigende Willenserklärung (Germ: The Tacit Declaration of Will) (1893).
[9] Ehrlich, E, “Freie Rechtsfindung und freie Rechtswissenschaft” (partly translated as: ‘Judicial Freedom of Decision: Its Principles and Objects”) (1917) 9 Science of Legal Method 47; “Die Erforschung des lebenden Rechts” (1911) 35 Schmollers Jahrbuch für Gesetzgebung, Verwaltung und Volkswirtschaft im Deutschen Reich at 129.
[10] Bogisic, V, Zbornik sadasnih pravnih obicja juznih Slovena (Croat: Collection of the principles in customary law of South Slavia) (1874); Ehrlich above n7 at 273 and 322; Ehrlich above n3 at 486ff.
[11] Ehrlich above n9; Rehbinder, M, (ed) Eugen Ehrlich. Recht und Leben. Gesammelte Schriften zur Rechtstatsachenforschung und zur Freirechtslehre (1967).
[12] Ehrlich, E, Grundlegung der Soziologie des Rechts (1913) and above n5.
[13] See in Verhandlungen des 31. Deutschen Juristentages vol 2, 200–220, reprint in Rehbinder, M (ed) Ehrlich, E, Recht und Leben, Gesammelte Schriften zur Rechtstatsachenforschung und zur Freirechtslehre (1967) at 61–79.
[14] Even Max Weber, contemporary of Ehrlich, suspected Ehrlich’s effort to reform legal method with the methodology of sociolegal research of being just another attempt to subvert the formal rationality of modern law by reverting to a diffuse version of a rematerialised law. But unlike Ehrlich, Weber’s sociology of law remained largely in the shadow of his far more ambitious project to explain the development of modern society more adequately than Marx; see Weber, M, Wirtschaft und Gesellschaft (Economy and Society) (1922) at 511.
[15] For a more detailed account of a placement of Ehrlich in the larger context of the history of ideas of sociology of law and sociological theory of law see Ziegert, K A, Zur Effektivität der Rechtssoziologie: die Rekonsturktion der Gesellschaft durch Recht (Germ: Towards the effectiveness of Sociology of Law: the Reconstruction of Society through Law) (1975) at 62– 86 and Ziegert above n1 at 225.
[16] See Nelken, D, “Law in Action or Living Law? Back to the Beginning in Sociology of Law” (1984) 4 Legal Studies at 157.
[17] Ehrlich, E, “The Sociology of Law” (1922) 36 Harv LR at 130 and Ehrlich (1936) above n3.
[18] See Raiser, T, Rechtssoziologie. Ein Lehrbuch (Germ: Sociology of law. A textbook) (1987) at 59.
[19] For more detailed accounts of Ehrlich’s life see Rehbinder, above n1 at 403; Ziegert, above n1 at 228–230; Raiser, above n18 at 58–9.
[20] Social operations are to be seen distinguished from individual behaviour, as, for instance, a behaviourist interpretation by legal anthropologists. Hoebel, E A, The Law of Primitive Man (1968) at 13 and Pospisil, L, Anthropology of Law. A Comparative Theory (1974) at 28, 103. For a later approach of social engineering with law, see Stjernquist, P, Laws in the Forests (1973). Further discussion of this issue below section 3.
[21] See Ehrlich, above n2 at 1–2. It is important to note that ‘practical’ refers, throughout in Ehrlich’s work, to (observable) actual social operations (‘practice’) and through that to an empirical grounding of legal theory which provides jurisprudence with a scientific (rather than doctrinal) foundation; see more in detail below.
[22] See also Pospisil, above n20 at 104.
[23] See, for instance, Rehbinder (1967); Raiser above n18 at 68–72; Röhl, K F, Rechtssoziologie. Ein Lehrbuch (Sociology of law. A textbook) (1987) at 44–46.
[24] See Ehrlich (1936) above n3 and above n2. It is important to stress, again, that Ehrlich’s approach must be assessed with regard to both his major works. It appears that much of the international discussion is focused exclusively on Ehrlich’s Fundamental Principles of Sociology of Law, presumably because it is the only work which has been translated into English and carries the word ‘sociology’ in its title. As I shall argue below (section 3), a number of conclusions which writers draw one-sidedly from this book are misled in view of the clarification in his later, sociological, account of legal practice, Ehrlich, above n2.
[25] Ehrlich (1936) above n3 at 39.
[26] Above n20 at 28.
[27] Ibid.
[28] See especially Pospisil above n20 at 107 who contrasts here Max Weber’s “sober approach” to legal pluralism favourably with Ehrlich’s distinction, and the criticism by Pound, quoted in Nelken above n16 at 159.
[29] Above n2 at 74.
[30] Id at 92.
[31] Ehrlich (1936) above n3 at 61.
[32] Above n2 at 291.
[33] Ehrlich (1936) above n3 at 486.
[34] Ehrlich (1936) above n3 at 489.
[35] Simple numbers speak here for Ehrlich’s argument and are supported by current research; as a rule, only very few customers in relation to the overall volume of credit transactions run up bad debts, and this overall success cannot be credited to law; see for more detail Ziegert, K A, “Gerichte auf der Flucht in die Zukunft. Die Bedeutungslosigkeit der Gerichtlichen Entscheidung bei der Durchsetzung von Geldforderungen” (Germ: Courts on the Flight to the Future. The insignificance of judicial decisions in relation to the collection of debts) in Blankenburg, E, and Voigt, R, (eds) Implementation von Gerichtsentscheidungen (1987) at 110.
[36] Ehrlich (1936) above n3 at 497.
[37] This is the main criticism of Pospisil, above n20 at 103 who overlooks that Ehrlich is not concerned with individual behaviour but with the structure to which individuals can refer for their (individual) behaviour.
[38] Above n2 at 180.
[39] See approvingly Pospisil, above n20 at 107–8 but the position of Hoebel (above n20 at 27) is curiously inconsistent in view of his earlier research together with Llewellyn; see Llewellyn, K, and Hoebel, E A, The Cheyenne Way. Conflict and Case Law in Primitive Jurisprudence (1941).
[40] Ehrlich (1936) above n3 at 493.
[41] Compare with Nelken, above n16 at 173 who suggests that Ehrlich did not ask the question “how do the norms of ‘living law’ arise?” perhaps because he is not aware of Ehrlich’s work on the differentiation of legal decision-making, Ehrlich above n20.
[42] See also Luhmann, N, Das Recht der Gesellschaft (Germ: Society’s Law) (1993) at 57, who confirms and details Ehrlich’s concept of law as a structure of social operations in the framework of the theory of operatively closed systems without acknowledging Ehrlich explicitly (see below section 3).
[43] Above n2 at 13.
[44] Above n2 at 27.
[45] Above n2 at 74.
[46] Above n2 at 13.
[47] Above n2 at 14.
[48] Above n2 at 17.
[49] Above n2 at 146.
[50] Ehrlich (1936) above n3 at 9–10.
[51] Here one should read “all written and declared (statute) law”. The American translation is misleading in this point by using a technical term which only exists in English common law in order to distinguish case-law from statute law. This distinction is not meaningful in legal systems with codified law.
[52] Ehrlich (1936) above n3 at 19.
[53] Above n2 at 2.
[54] Above n2 at 156.
[55] Above n2 at 313.
[56] See Pound, R, “Law in Books and Law in Action” (1910) at 44 American Law Review 12, and further on this point Ziegert, above n1 at 225.
[57] Above n16 at 159.
[58] Id at 166.
[59] Id at 160.
[60] See Stone, J, Social Dimensions of Law and Justice (1966) at 7, 44, 46–47, 645–46.
[61] Stone had, in contrast to Pound earlier, direct access to Ehrlich’s original publications and background material through co-operation with European legal theorists.
[62] See above n20; Hoebel, above n20; Pospisil, above n20.
[63] Hoebel, above n20 at 13; Pospisil above
[64] Pospisil above n20 at 102.
[65] Id at 102–103.
[66] Id at 104.
[67] See Pound quoted in Nelken above n15 at 159.
[68] See, for instance, above n15; Griffiths, J, “What is Legal Pluralism?” (1986) 24 Journal of Legal Pluralism and Unofficial Law 1.
[69] See Nelken above n16 at 173.
[70] Ibid.
[71] See, for instance, Nelken above n16 and Griffiths above n68.
[72] See Luhmann above n15; Ziegert above n1, n15 and “The Political Fitness of a Legal System: English Law, Australian Courts and the Republic” (1995) 17 Syd LR 390.
[73] See Weber above n14 at 511; Carbonnier, J, Sociologie Juridique (1972) at 86; Ziegert above n1 at 236–37; Cotterrell, R, The Sociology of Law (1984) at 38; Röhl above n23 at 33; Raiser above n18 at 69.
[74] See Cotterell above n73 at 38; Raiser above n18 at 69; Rottleuthner, H, Einführung in die Rechtssoziologie (1987) at 26.
[75] See Röhl above n23 at 215–216; Raiser above n18 at 71.
[76] See Röhl above n23 at 215; Raiser above n18 at 63, 231.
[77] See Raiser above n18 at 70; Ziegert above
[78] See in the area of criminological research Cohen, S, Visions of Social Control: Crime, Punishment and Classifications (1985) and with support from systems theory Luhmann above n42 at 156.
[79] See for many studies in the area of “Social steering through law” Stjernquist above n20 and Hawkins, K, Environment and Enforcement: Regulation and the Social Definition of Pollution (1984).
[80] See Lempert, R, “Discretion in a Behavioral Perspective: The Case of a Public Housing Eviction Board” in Hawkins, K (ed), The Uses of Discretion (1984).
[81] See Lind, A E, “Procedural Justice and Culture: Evidence for Ubiquitous Process Concerns” (1994) 15 Zeitschrift für Rechtssoziologie at 24.
[82] See above n80.
[83] See above n16 at 1720.
[84] Ziegert above n1 at 257–63.
[85] See Galanter, M, “Why the Haves Come out Ahead: Speculations on the Limits of Legal Change” (1974) 9 Law and Society Review 95.
[86] See Rose, R, “Russia as an Hour-Glass Society: a Constitution without Citizens” (1995) 4 East European Constitutional Review 34.
[87] See for many studies on Swedish legislation and state law Hetzler, A, Rättens roll i socialpolitiken (Swed: The role of law in social policy) (1984) and Carlsson, B, “Communicative Rationality and Open-ended Law in Sweden” (1995) 22 Journal of Law and Society 475.