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Ehrlich (Living Law)

Eugen Ehrlich (1862-1922) was a great and eminent jurist of the sociological school of jurisprudence. He propounded the famous theory of "living law,", which has an important basis in the development of sociological schools. The theory of "living law" came as a strong reaction against analytical positivism, which has only a positive basis, i.e., human-made law.

Ehrlich was of the view that the function of law should be in correspondence with society and put great emphasis on the relation between law and the life of society. The law that is acceptable to society as a whole and according to their customs, traditions, cultures, etc., will work as the proper function of law. Ehrlich, in his "Living Law" theory, wants that the development of law should be according to the existing social situation and needs, not the state-promulgated laws, which are against the spirit of social life.

According to Ehrlich, legal development is not possible with changes in legislation, jurisprudence, or judicial decisions but with changes in the society itself i.e., the society will accept any law when there are reforms in the society related to the implications of those laws.

For example: Suppose a society has a large population and each family has 6-8 members or children. To tackle the problem, the government passed the law of two-child policy for each family. But the promulgated law would have very little impact as the law is not in accordance with the life of the society, and the law will be acceptable only when reforms come within the society itself about the consciousness of the population.

In this article , we will discuss in detail about Ehrlich and his "Living Law" theory, justice, the function of law, and his criticisms in the upcoming topics and sub-topics.

Eugen Ehrlich: A Legal Scholar:

  • Biography: Eugen Ehrlich was one of the leaders in contemporary science of law, born on September 14, 1862, Czernowitz, Austrian Empire [now Chernovtsy, Ukraine], an Austrian legal scholar and teacher credited with founding the discipline of the sociology of law. As a young man he converted from Judaism to Roman Catholicism, but late in life he devoted much of his attention to the problems of the Jews. Anti-Semitism prevented him from teaching after World War I.
  • Education and Work: Educated in law at the University of Vienna, where he took his doctorate in law and taught there for several years and then served as associate professor of Roman law at the University of Czernowitz (1899-1914). In I897 he became professor of Roman law in the University of Czernowitz having already attracted the attention of legal scholars everywhere by his book, Die stillschweigende Willenserkldrung (I893), in which he treated brilliantly one of the difficult problems of the civil law. A thorough student of Roman law and the modern codes, well acquainted with English law, Professor Ehrlich lived and taught in a place where modern law and primitive law came together and a modern complex industrial society jostled with groups of much older types.
  • Last Moment: Once he had accepted an invitation to come to America and deliver a course of lectures at the Lowell Institute and to address the Association of American Law Schools in December, I9I4, but was prevented by the outbreak of the war which cut off Czernowitz from the rest of the world. At the close of the war, it was hoped that he might be able to accept a renewed invitation. Unhappily the hardships incident to the war in which Czernowitz was fought over backward and forward repeatedly, undermined his health and he did not live to be restored to his work in the re-established university. He died on May 2, 1922, at Vienna, Austria, while still in the fulness of his powers is a serious loss to the science of law.

Living Law: Ehrlich's Theory:

According to Ehrlich, law is derived from social facts and depend not on State authority but on social compulsion. The real source of law is not statutes but the activities of society itself. To quote him: "The center of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself". According to Ehrlich, certain facts underlie all laws. Those are usage, domination, possession and declaration of will. A formal concept of law consists of the synthesis of generalizations constructed from the various propositions of law .

The "living law" as conceived by Ehrlich is "the inner order of associations," that is, the law practiced by society, as opposed to the law enforced by the state. He identified the living law with the law which dominates societal life, even though it has not been posited in legal propositions. Ehrlich contrasted the "norms of decision," laid down for the adjudication of disputes, with the "norms of organization," which originate in society and determine the actual behavior of the average man. Thus, there is a psychological component in Ehrlich's theory of law: he attributes great weight to the power of habit in the life of the law.

Ehrlich, like Pound, recognized that the formal sources of law provide an incomplete picture of what law is really like the 'living law'. 'Living law' is the law which dominates life itself even though it has not been posited in legal propositions. For Example: the law of contract is better understood by empirical studies than by reading textbooks and judicial decisions. As we know that rules of offer and acceptance, consideration etc., hardened businessmen as they are ignorant of those rules, but found ways of avoiding the law and lawyers whenever possible and thus business people less concerned about contract law than the actual operation of commercial practice. Therefore, to obtain a reliable insight into the actual practice of law, we need to penetrate the social context in which it is played out .

Ehrlich's thesis was that laws found in formal legal sources, such as statutes and decided cases, give only an inadequate picture of what really goes on the community, for the norms which in fact govern life are only imperfectly and partially reflected in them. The point that Ehrlich was seeking to make was that the 'living law' of society has to be sought outside the confines of formal legal material, in other words, in society itself .

Ehrlich answer to the distinction between formal law and living law by the ways i.e:
  • Judicial Decisions, which are evidentiary only
  • Modern business documents against which judicial decisions need to be checked
  • Observation of people, by living among them and noting their behavior
The concept of living law has distracted attention from Ehrlich's more enduring contribution. His Fundamental Principles of the Sociology of Law-published in German in 1913 and in English in 1936: articulates a lively multisided account of legal change in society. What excited early twentieth-century American jurisprudents about Ehrlich's work was not "living law" as now understood´┐Żthe identification of nonstate legal orders´┐Żbut instead the proposition that law is alive within society. Present day scholars who invoke Ehrlich typically focus on the "law" aspect of "living law," emphasizing that society is filled with multiple "legal" orders .

For Ehrlich, since law is a social phenomenon, every kind of legal science is a social science and all laws are rules of conduct within the social order, or association. Basically, human beings live together in social groups, or "associations". In most cases they regulate their conduct within the group according to certain rules of conduct that they recognize as binding.

Of these rules of conduct, there are legal rules and non-legal rules, of which the latter are non-normative rules (language, rules of hygiene) and non-legal normative rules (ethical custom, tact, etiquette). Ehrlich argues that a science of law should study the total legal field, all law that we can find in society, through a sociological method. This means that legal scientists should study law of different human associations, both statutes and non-statute law, state and non-state law, judicial decisions and the living law.

Criticism Of Ehrlich's Theory


  • Friedmann refers to three main weaknesses in the work of Ehrlich:
    • Ehrlich gives no clear criterion by which to distinguish a legal norm from any 'other social norm. The interchangeability does not diminish the need for a clear test of distinction. Ehrlich's sociology of law is always on the point of becoming a general sociology.
    • Secondly, Ehrlich confuses the position of custom as a "source" of Jaw with custom as a type of law. In primitive society as in the international law of our time, custom prevails both as source of law and the chief type of law. In modern society, it is still important in the first, but less and less important in the second, role. Modern society demands articulate laws made by a definite law-giver.
    • Thirdly, Ehrlich refuses to follow up the logic of his own distinction between specific legal State norms and legal norms where the State merely adds sanction to social facts. As modern social conditions demand more and more active control, the State extends its purposes. Consequently, custom recedes before deliberately made law, mainly statute and decree. At the same time, law emanating from central authority as often molds social habits as it is molded itself.


  • The view of Lord Lloyd is that Ehrlich unduly belittled the primary role of legislation in creating new law, both in the public and private sector. A grasp of underlying social phenomena may not in itself point the way to appropriate solutions, either in new legislation or decisions of the courts The legal process may need to be invoked as in itself an educative factor, as, for instance, in the attempt in the United States to impose desegregation by judicial decree and so set the educative forces in motion which might ultimately produce a change in the social climate, rather than yielding to existing social pressures.


  • Dias: Dias also points out certain drawbacks in Ehrlich's philosophy. The difference between formal and living Jaw is necessary and important, but there is some danger of a merely verbal discussion as to whether both should be called law, or only one, and if so which. He deprived formal law of any creative activity and gave it too much the appearance of trailing in the wake of social developments. It is true that reforming legislation is sometimes the formal expression of a tide of public feeling, but it is also true that many norms of behavior have been given shape and direction by the constant enforcement of law. Ehrlich's distinction between norms of decision and norms of behavior is important, but he failed to emphasize sufficiently their mutual interaction.
Kelsen has five main points of critique when discussing Ehrlich's book: Ehrlich's alleged confusion between the ought and the is of law:

  • the lack in Ehrlich's work of one of his key concepts
  • the legal proposition
  • the lack of definition and distinction between legal norms and other social norms
  • Ehrlich's distinction between law and state
  • the concept of living law
Morris Cohen: Ehrlich's conception of living law provoked an immediate objection from jurists. It includes within "law" a great deal of social life and he provides no clear way to distinguish law from nonlaw. Morris Cohen pressed this objection in 1916:

"Ehrlich's book suffers from the fact that it draws no clear account of what he means by law and how he distinguishes it from customs and morals. The lines between law and morals, he tells us, are shifting. This, however, is all the more reason for demanding clear ideas. Thus, it may be urged that what Ehrlich calls living law, is simply custom, which, as such, is not law at all, though it may become so under certain condition ."

Felix Cohen: Legal realist Felix Cohen (1937) objected that "under Ehrlich's terminology, law itself merges with religion, ethical custom, morality, decorum, tact, fashion, and etiquette.

These are some of the major criticisms of Ehrlich's work by the jurist and legal scholar especially the criticism of Ehrlich's theory of 'Living Law'.

We can say that Ehrlich's theory of 'Living Law' is concerned with society as the law promulgated by the sovereign, i.e., legislation, which is against the spirit of social life, has no impact so far on the implication or practicability of the law concerned. In his theory of 'Living Law', Ehrlich wants that law should be in favor of social life, which is easy to implement and regulate in society, as it will receive societal acceptance, which is in correspondence with the existing situation of the society.

He also strived for the cause of social justice as an important and essential part of legal development, and the function of law should be to promote social justice. He was mostly inspired by the concept of jurisprudence, i.e., "what law is", not "what law ought to be" as he believes that law should be in accordance with the prevalent condition of society, not based on an ideal concept of law that has no link with society.

His theory received much criticism from many legal scholars and jurists, such as Friedmann, Kelson, Dias, Lloyd, etc. The main criticisms are that Ehrlich makes no distinction between legal norms and other social norms and confuses between them. Formal laws also influence, as even changes in prevalent practices of society in the interest of the whole community, such as the prohibition of Sati, were necessary for the welfare of society even though it was a prevalent custom.

Thus, we can conclude that Ehrlich's theory of 'Living Law' is a great contribution to the field of jurisprudence, especially the sociological school of jurisprudence, which relates law with society at large and regulates social relations among men, but it received many criticisms as many flaws in the theory were found, which is necessary for the healthy development of jurisprudence for the better application of law in society.

  • Eugen Ehrlich, Fundamental Principles of Sociology of law
  • Roscoe Pound, An Appreciation of Eugen Ehrlich (Harvard Law review, Vol. 36, 1922)
  • V.D Mahajan, Jurisprudence and Legal theory (EBC, 1987)
  • Edgar Bodenheimer, JURISPRUDENCE: The Philosophy and Method of The Law (Harvard University Press, 1974)
  • Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (Oxford University Press, third edition)
  • R W M Dias, Jurisprudence (Lexis Nexis, fifth edition)
  • Brian Z. Tamanaha, A Vision of Social-Legal Change: Rescuing Ehrlich from "Living Law" (American bar foundation,2011)
  • Marieke J. Hopman, Wait, what are we fighting about? - Kelsen, Ehrlich and the reconciliation of normative jurisprudence and sociology of law, Legal Pluralism and Critical Social Analysis (the Journal of Legal Pluralism and Unofficial Law vol. 54, 2022)
  • Friedmann, Legal theory (1967)
  • M.D.A Freeman, Lloyd's Introduction to Jurisprudence (Sweet& Maxwell, Eight Edition)
  • Morris Cohen, Legal Theories and Social Science, (International Journal of Ethics, 1915)
  • Britannica, Eugen Ehrlich,
  • N.V Paranjape, Studies in Jurisprudence & Legal Theory (CLA, 2019)

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