Osgoode Hall Law Journal

Volume 47, Number 3 (Fall 2009)

Article 6

Book Review: Living Law: Reconsidering Eugen

Ehrlich, by Marc Hertogh (ed)
Michel Coutu

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Citation Information
Coutu, Michel. "Book Review: Living Law: Reconsidering Eugen Ehrlich, by Marc Hertogh (ed)." Osgoode Hall Law Journal 47.3
(2009) : 587-593.
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587

Book Review
LIVING LAW: RECONSIDERING EUGEN EHRLICH,
edited by Marc Hertogh1
MICHEL COUTU 2
EUGEN EHRLICH (1862-1922) IS A CLASSIC FIGURE of legal sociology and -one of
the most important theoreticians of legal pluralism to date. Born in Czernowitz
in what was then the province of Bukovina in Austria-Hungary (now Chernivtsi
in Ukraine), Ehrlich was trained as a jurist and legal historian, specializing in
Roman law. He later became the rector of the German-speaking Franz-Josef
University of Czernowitz. Alongside Hermann Kantorowicz, he was one the
founders of the German legal realist "free-law movement" ("Freirechtsbewegung"),
which influenced, among others, its American counterparts: sociological jurisprudence and legal realism. However, Ehrlich's most outstanding and lasting
achievement was in the field of legal sociology, with his opus magnum called the

Fundamental Principles of the Sociology of Law (Grundlegung der Soziologie des

Rechts).' Erhlich was of Jewish descent and therefore was forced to resign from
his post at Czernowitz after the First World War because of rising nationalist
and anti-Semitic sentiments. He died in Vienna in 1922.
Although a significant number of articles have been published in English
about Ehrlich's relevance for legal sociology, there has not been an English book
dedicated in its entirety to this important scholar until now. The publication of
the collective work Living Law: ReconsideringEugen Ehrlich (Living Law), which
is based on an international workshop held in May 2006 at the Ofiati Institute
for the Sociology of Law (in the Spanish Basque Country), is, indeed, most
1.
2.
3.

(Oxford: Ofiati International Series in Law and Society, Hart Publishing, 2009) 280 pages
[Hertogh, Living Law].
Professeur titulaire, tcole de relations industrielles, Universit6 de Montral.
(Munich: Duncker & Humblot, 1913). For the English translation, see Eugen Ehrlich,
FundamentalPrinciplesof the Sociology ofLaw, trans. by Walter L.Moll (Cambridge, MA:
Harvard University Press, 1936) (with an introduction by Roscoe Pound).

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12009147 OSGOODE HALL LAW JOURNAL

welcome. The book, without a doubt, will be of great interest to all readers
involved in legal sociology, legal anthropology, and, more broadly, in "law and
society" scholarship. The contributors to this collection of essays are all highly
learned and talented scholars, including well-known academics such as Roger
Cotterell, David Nelken, and Franz and Keebet von Benda-Beckmann. In addition to information about Ehrlich's life, historical and socio-cultural background,
and scholarly trajectory, the book also provides an in-depth analysis of Ehrlich's
views about legal sociology, empirical research, and the shortcomings of legal
dogmatics, which, at the time, were overly influenced by the "jurisprudence of
concepts" ("Begriffijurisprudenz").' Moreover, in doing justice to the highly
sophisticated views of Ehrlich in the field of legal sociology, most contributors
give their own assessment of today's relevance of the FundamentalPrinciples of
the Sociology ofLaw for contemporary socio-legal studies.
Living Law is divided into four parts that follow Hertogh's introduction
and general overview.5 In his introduction, Hertogh stresses both the strengths
(e.g., Ehrlich's study, backed by empirical material, of the ineffectiveness of
State law) and the weaknesses (e.g., the vagueness of his definition of law with
regard to other rules of conduct) of Ehrlich's work.6 The first part of the book
looks at the life and work of Ehrlich and the socio-cultural context behind his
academic achievements. in particular, Monica Eppiiger' draws an interesting
parallel between fin de sicle Austria as a fragmented state, and Ehrlich's own
legal pluralism. The second part of the book analyzes some of the main features
of the FundamentalPrinciples of the Sociology of Law, such as the reversal of what
are central and peripheral forms of law according to mainstream legal theory,8
and Ehrlich's views on the relationship between sociology and jurisprudence.9
Of the other parts of the book, the third discusses the topic of "Ehrlich and
his Contemporaries," and, in particular, the controversy with Hans Kelsen-a
4.
5.
6.
7.
8.
9.

This term was coined by Rudolf von Jhering in a pejorative sense, but nevertheless aptly
describes German jurisprudence at the time.
Marc Hertogh, "From 'Men of Files' to 'Men of the Senses': A Brief Characterization of
Eugen Ehrlich's Sociology of Law" in Hertogh, Living Law, supra note 1, 1.
Ibid. For a discussion of this point, see topic 1, below.
Monica Eppinger, "Governing in the Vernacular: Eugen Ehrlich and Late Habsburg
Ethnography" in Hertogh, Living Law, supra note 1, 21.
Roger Cotterell, "Ehrlich at the Edge of Empire: Centres and Peripheries in Legal Studies" in
Hertogh, Living Law, ibid., 75.
Ibid.

BOOK REVIEWS

589

debate that, according to most observers, was lost by Ehrlich."0 This part also
contrasts Ehrlich's concept of "living law" ("lebendes Rech?') with Roscoe Pound's
notion of the "law in action."11 The fourth part of the book examines Erhlich's
relevance for contemporary socio-legal studies. In this regard, Jeremy Webber 2
criticizes the idealized view Ehrlich had of "societal law" when compared to
"state law." Klaus Ziegert"3 describes a possible extension of Ehrlich's living law
argument in understanding the world-society that is based upon a global society
of non-governmental associations. Lastly, David Nelkenh focuses his attention
on what remains of Ehrlich's sociological theory today. If we look at what Ehrlich actually meant, we might certainly find his understanding of legal pluralism
of great importance. However, the relevance of Ehrlich's ideas for contemporary
socio-legal studies goes beyond legal pluralism. Some of his influence may also
be a result of how scholars have (constructively) misread or reinterpreted Erhlich's work. One example, according to Nelken, is Gunther Teubner's treatment
of Erhlich's ideas in advancing his arguments about legal autopoiesis.
As the contributors to Living Law would acknowledge there are many paths
that could have been followed when dealing with the complex thinking of such
an important and influential scholar. For example, under the topic "Ehrlich and
his contemporaries," Ehrlich's relationship with Hermann Kantorowicz-a cofounder of the "Free School of Law" and a strong proponent of legal sociology
who had much in common with Ehrlich-might have been explored. Ehrlich's
influence on the outstanding labour law theoretician and legal sociologist, Hugo
Sinzheimer, might have also been considered,"5 as well as his impact on the
work of Georges Gurvitch, a key figure in the historical development of legal
pluralism. 6 One notable scholar absent from the analysis of the authors is Max
10.

Bart van Klink, "Facts and Norms: The Unfinished Debate between Eugen Ehrlich and
Hans Kelsen" in Hertogh, Living Law, supra note 1, 127.

11.

SalifNamiga, "Pounding on Ehrlich. Again?" in Hertogh, Living Law, ibid., 157.

Jeremy Webber, "Naturalism and Agency in the Living Law" in Hertogh, Living Law, ibid.,
201.
Klaus Ziegert, "World Society, Nation State and the Living Law in the Twenty First
Century" in Hertogh, Living Law, ibid., 223.
David Nelken, "Ehrlich's Legacies: Back to the Future in the Sociology of Law?" in Hertogh,
Living Law, ibid., 237.
See Hugo Sinzheimer,JiidischeKlassiker der deutschen Rechtswissenschaf(Frankfurt:
Klosterman, 1953) at 187-206.
See Georges Gurvith, Sociology of Law (London: Routledge & Kegan Paul, 1947).

12.
13.
14.
15.
16.

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(20091 47 OSGOODE HALL LAW JOURNAL

Weber, whose importance for contemporary sociology of law cannot be underestimated. As previously noted, the Fundamental Principles of the Sociology of
Law was originally published in 1913, the same year, incidentally, that Max
Weber finished his Sociology of Law as part of his general treatise, Economy and
Society ("Wirtschafl und Gesellschaft"), which was published as a whole in 1921.
Weber is often portrayed as completely hostile to Ehrlich's ideas, but that is a
superficial view that reveals only part of the truth: as a matter of fact, Weber
accepted Ehrlich's distinction between state law and non-state law, combining
it with his own dichotomy between empirical and normative legal orders. Weber also refers, at times with approval, to Ehrlich's account of the history of
Roman law. Basically, however, Weber rejects what appeared to him as a fundamental confusion by Ehrlich between "is" ("sein") and "ought" ("sollen").17 As
will be discussed later, Kelsen's critique, aimed at Ehrlich's understanding of
the relationship between jurisprudence and legal sociology, was directly influenced by Weber's writings on this topic.
This discussion should in no way be understood as criticism of the work of
Marc Hertogh and his colleagues. Quite to the contrary, many paths can be
taken in exploring Ehrlich's scholarship, and very rich avenues of enquiry are
indeed followed in Living Law. I have identified four controversial topics of
critical importance from an epistemological and methodological standpoint:
1. The definition of law. As is often emphasized by the authors, " Ehrlich's
definition of "law" remains one of the weakest and less convincing parts of his
work. He resorts to the concept of opinio necessitatis (of use in analysing customary law) to draw a line between legal norms and other social rules. Accordingly,
it is the intensity of the negative feelings about behaviour that offends members
of a community-especially a feeling of indignation, which allows one to differentiate law from other kinds of social norms. In so doing, Ehrlich explicitly
rejects any attempt to define law in relation to the presence of sanctions or constraints on behaviour. In a complex society, any such psychological understanding
of law appears much too vague and of little practical use for empirical research.
As a matter of fact, Ehrlich points to one dimension of legal phenomena which
other legal sociologists would call law's "legitimacy." From a sociologicalviewpoint, Kelsen's opposite insistence upon the presence of sanctions as the defining

17.

See topic 3, below.

18.

See e.g. Hertogh, Living Law, supra note 1 at 3, 90, 99.

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591

characteristic of law is also too narrow. In my view, sound sociological theory

should utilize both concepts of recognition and constraint.
2. State and societal law. Although blurred by definitional vagueness, Ehrlich's distinction between state and societal law still holds great relevance for
contemporary legal sociology. Expanding upon the institutionalist approach
initiated by Otto Gierke, Ehrlich shows that the legal sphere cannot be restricted
to state law only. For legal history conceived as a social science, that should be
self-evident. State monopoly of the creation of legal norms appeared only in
modern times, as a precept of political theory and natural law doctrines in the
wake of the absolutist state. Despite being presented as obvious by legal positivism, this monopoly was never fully realised, and it appears rather shaky in an
era of globalization. In this regard, it is quite interesting to note that Max Weber,
who is sometimes mistakenly associated with legal positivism, made use of the
same terms as Ehrlich when contrasting state law (staatlichesRechts) to non-state
law (auflerstaatlichesRecht).' 9 Without a doubt, Ehrlich's scholarship was fundamental to stimulating legal pluralism theory.
3. A confusion of "is" and "ought'?In his thorough, but harsh, critique of
Ehrlich, Hans Kelsen uses the Neo-Kantian dichotomy of "sein" and "sollen" to
disqualify Ehrlich's attempts at founding a pluralistic sociology of law on new
grounds. Kelsen's article "Eine Grundlegung der Rechtssoziologie"" first appeared in 1915 in the Archivffir Sozialwissenschafr und Sozialpolitik, a journal
headed by Werner Sombart, Max Weber, and Edgar Jaff6. Although he does
not explicitly refer to Weber, it is apparent that Kelsen relies heavily on Weber's
previous work, especially his "Critique of Stammler," first published in 1907.21
In this piece, Weber contrasted the normative science of law or jurisprudence
(an analysis of what "ought to be") to the social science of law (an analysis of
what "is"). According to Kelsen, Ehrlich confuses the two levels by disqualifying
legal dogmatics as "state law" ("Juristenrecht") and celebrating, to the contrary,
"societal law," or as he describes it, the "inner order of associations" (" Verbinde").
From Kelsen's viewpoint, this approach is an unacceptable intermingling of
19.

Max Weber, Wirtschaf und Gesellschaft, 5th ed. (Tiubigen: J.C.B. Mohr, 1982). See also
Ehrlich, supra note 3.

20.

Hans Kelsen, "Eine Grundlegung der Rechssoziologie" in Han's Kelsen & Eugen Ehrlich,
Rechtssoziologie und Rechtswissenschaft: Eine Kontroverse (1915/1917) (Baden-Baden: Nomos
Verlagsgesellschaft, 2003) 3.

21.

Max Weber, CritiqueofStammler, trans. by G. Oakes (Glenco: The Free Press, 1977).

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12009] 47 OSGOODE HALL LAW JOURNAL

"sein" and "solen": norms of jurisprudence are assimilated to rules of conduct,

and, from there, are reduced to "norms of decision," which interest mainly judges
and state officials. At the same time, "living law"-which is, for the most part,
societal law-is said to be based upon "legal norms," as such.22 Ehrlich does not
realize, Kelsen goes on, that the construction of concepts, the methodology,
and the object itself of (normative) legal science remain, for a sound theory of
knowledge, totally different from those of a (causal) social science of law. So far
so good, at least when one assumes a Weberian perspective. But Kelsen himself
blurs the distinction between "sein" and "sollen" when he affirms his basic thesis
about the identity of the law and the state.23 As a result, the normative standpoint prevails; Kelsen rejects any distinction between state and non-state law,
and defends the purely normative meaning of the concept of the "state." No
space is left for a truly autonomous sociology of law.
4. Domination and legalpluralism. As Jeremy Webber remarks," Ehrlich's
work embodies an idealized view of the "living law" and non-state legal orders,
which echoes his rejection of constraint and conflict when defining "law." Societal law is based upon cooperation and voluntary adherence, whereas state law
is grounded in "domination" ("Herrschaf") and constraint. Such a dichotomy
between two basic kinds of law was later radicalized by Georges Gurvitch. But
there is no reason for a sociological theory of legal pluralism to adhere to such
an idealized view of social law, which amounts to a subordination of empirical
research to built-in value judgements. The amount of cooperation or domination characterizing social interaction remains an empirical question. Moreover,
one should expect to find an apparatus of constraint ensuring the inner order of
each legal sphere, whether or not it is part of the "state."
What remains, then, of Ehrlich's efforts? Indeed, quite a lot in addition to
his contributions to legal pluralism and the understanding of the fundamental
distinction between state and non-state law. I would like to stress the following:
the concept of "living law," a notion far more encompassing then Pound's "law
in action";26 an endeavour, perhaps challenged by Ehrlich's commitment to the
"free law movement," to promote legal sociology as aiming at descriptive and
22.

See van Klink, supra note 10 at 130.

23.

But see ibid. at 148.

24.

Supra note 12 at 202.

25.

See Cotterell, supra note 8.

26.

See Nelken, supra note 14 at 260; Nimaga, supra note 11 at 166ff.

BOOK REVIEWS

593

analytical knowledge, not serving practical ends per se;" an insistence, from an
institutionalist perspective, upon the sociolegal relevance of associations in, for
example, the field of labour law; 28 a critical stance towards legal formalism which
portrays the legal sphere in a sociologically irrelevant way;29 a strong and specialized linkage with legal history, as Ehrlich's sociology of law is, to some extent,
a historical science; the necessity of skilled empirical research, taking into account
the social facts of law (Rechtstatsachen); and, not to be overlooked, a detailed
analysis of state law and "Juristenrecht.""
As I hope to have shown, any reader interested in legal sociology and legal
pluralism should find Hertogh's collective work, Living Law: Reconsidering Eugen
Ehrlich, full of relevant information about Ehrlich, and also highly stimulating.
That such a work has been published is proof that Ehrlich's thought is alive and
well today. That is excellent news for the future of the sociology of law.

27.

See Hertogh, Living Law, supra note 1 at 5f.

28.

See Ehrlich, supra note 3 at 19.

29.

See Eppinger, supra note 7 at 39ff.

30.

See Cotterell, supra note 8 at 87.