Eugen Ehrlich

Austrian legal scholar

• Born: September 14, 1862
• Birthplace: Czernowitz, Austro-Hungarian Empire (now Chernivtsi, Ukraine)
• Died: May 2, 1922
• Place of death: Vienna, Austria

Ehrlich is generally credited with founding the legal philosophy of the sociology of law. This judicial concept changed the fundamental outlook of legal scholars in the early twentieth century, in both Europe and in the United States, from a purely analytical view of the law to a view that recognized the unique facts and social circumstances of individual cases.

Early Life

Eugen Ehrlich (OY-gehn AYR-lihk) was born in Czernowitz in the Duchy of Bukovina, a part of the Austro-Hungarian Empire. He studied law at the University of Vienna, and after completing his doctorate degree in law, he became a professor of law at the university. From 1899 through 1914, Ehrlich served as an associate professor of Roman law at the University of Czernowitz. It was while he was at his latter post at this obscure university that he completed his life’s work on sociology and the law, the work for which he is best known internationally. While a young man, Ehrlich converted from Judaism to Roman Catholicism, though he later devoted much of his energies to addressing Jewish concerns in Europe. Despite his conversion, he found it impossible to teach after World War I because of pervasive anti-Semitism, and he confined himself largely to publishing.

Life’s Work

In Europe during the course of the nineteenth century, several schools of legal philosophy evolved that attempted to explain the operation of law in scientific terms. Each school emphasized or focused on some particular aspect of legal doctrine or methodology and asserted that its position encapsulated the fundamental theory of the law. These schools often overemphasized their own particular ideas, facilitating criticism of their work. As a result, European jurisprudence of the era was defined by a succession of schools of thought. Each school made some contribution to the scientific examination of the law, and some made lasting contributions that had long-range effects. One such lasting juristic concept was the notion that the basic formulation of legal theory did not rest with a single individual (for example, a king), but instead with society as a whole. Older theories of individual justice gave way to the concept of collective social justice and the proper ordering of modern society through the law. The most important advocate for this new legal outlook, generally termed the “sociological school,” was Ehrlich.

The central theme of Ehrlich’s approach to jurisprudence was that laws deriving solely from formal legal sources (such as statutes) present an inadequate picture of the actual functioning of a community. Rather, the phenomena of legal life arise in society, not in a legislature or other lawmaking body. Ehrlich emphasized the actual observance of social customs, the “living law” of groups and communities, as the definitive element in the creation of law. According to Ehrlich, the state is only one of many associations that regulate conduct; others include the family, church, and other nonlegal business and social associations. Moreover, the state, which is historically a later development in the evolution of a society, builds on the existing codes of conduct of social institutions to develop legal norms and punishments that secure its main reason for existence, namely military organization and police administration and taxation to pay for them.

The Austro-Hungarian Empire, Ehrlich’s homeland, contained a huge variety of ethnicities, each with its own unique social customs. These diverse ethnic customs were the laboratory in which Ehrlich developed his thesis. Ehrlich’s seminar on the living law at Czernowitz was a study of these social rules through the law of family relations, particularly the rules of succession. Ehrlich concluded that the customs of succession were the social rules most independent of state regulation, especially in the peasant communities, in which a large portion of the Austro-Hungarian citizens lived, and were, therefore, ideal examples of social custom dictating law.

Ehrlich believed that when legal structures became too preoccupied with format and technique as ends in themselves, which in Ehrlich’s view was the case in the nineteenth century, it was necessary to recall that the law served a social function and was not an independent end in itself. For Ehrlich, there was a difference between the norms of conduct that underlie and govern life in a society and the process of formal decision-making (laws and adjudication). He noted that there was a lapse between actual social behavior and the recognition of that behavior in formal law. Therefore, the living law of society must be sought outside the confines of the law, in society itself, rather than in the monopolistic claims of codified rules. For example, Ehrlich maintained that one does not understand the living law of commerce by reading the statutory commercial codes but rather by observing how closely those codes are followed. A new commercial habit may arise among merchants facilitating trade, but it is only some time after the habit develops that it is recognized and used by the state’s courts in their decision-making process. Eventually, the habit may become a statute requiring all merchants to abide by the newly incorporated habit. This process of assimilation is repeated continuously. According to Ehrlich, the driving force behind social norms is social compulsion, not state authority. The task of lawmaking, then, is to keep as closely abreast of social change as possible and incorporate those changes into the legal decision-making process.

The immediate target for Ehrlich’s philosophical commentaries was the German Codification of 1900 and its conceptual aftermath, which Ehrlich believed to be an overly analytical approach to interpreting the law. Ehrlich’s works, particularly Grundlegung der Soziologie des Rechts (1913; Fundamental Principles of the Sociology of Law , 1936), were among the first to focus on the importance of examining law outside the formal system of the law, such as the European legal codes, to discover the actual operative norms of conduct in society. Ehrlich, in his attack on the purely analytical school of jurisprudence popular in the late nineteenth century, stressed the living law as a body of rules of conduct and habit that did not derive from the state. His efforts were aimed at creating a practical legal philosophy and, unlike his analytical predecessors, Ehrlich focused much more on understanding current and future legal forms than on understanding past historical constructions of law.

Despite the lasting influence of Fundamental Principles of the Sociology of Law, it has been criticized by legal scholars on several grounds. The first general criticism is that Ehrlich fails to distinguish between his idea of legal norms and his idea of other social norms. The interchangeability of the concepts makes his work less of a jurisprudential philosophy than a general sociological study. Second, his theory falls short of explaining legal evolution in the present. Ehrlich failed to fully explain social custom as both a source and a type of law. For example, in primitive society, custom played a major role as both a source and a form of law. In modern society, however, custom plays a minor role in governing conduct and contemporary laws rely less on observable social custom for validity than in primitive societies. Finally, Ehrlich did not acknowledge that the state as a powerful independent entity creates laws that reflect its own central agenda of self-perpetuation. These laws may or may not reflect social customs. Moreover, contrary to Ehrlich’s logic, state-initiated laws do sometimes alter social custom, not vice versa. For example, collectivization of agriculture in the Soviet Union and racial legislation in fascist Germany both radically altered social customs in those nations. Ehrlich’s ideas were very controversial and remained polemic long after his death. He has been diversely hailed by some as the forerunner of the “American realism” school and condemned by others as ushering in an age of legal anarchy. Ehrlich has even been charged, unfairly, with having paved the way for judicial implementation of Nazi ideologies in contravention of then-existing German laws. He died soon after the war in Vienna in 1922.

Significance

Ehrlich’s work was instrumental in influencing our modern attitudes regarding the role of law in everyday life. The practical significance of his teachings is the importance now given to factual examination in law. His idea that law reflected existing internal social habit, rather than the prevalent notion of the era that state-created law dictated social interaction, was revolutionary. Similarly profound was his criticism of the analytical approach to the law, which emphasized the structure of the legal system rather than societal and individual needs for justice. In this regard, Ehrlich was a powerful leader in convincing European and American jurists to reject purely abstract exercises and concern themselves with the facts and intricacies of daily life.

Ehrlich was the forerunner of many modern legal practices that focus on the substance of the law rather than on its form alone. It is difficult to say whether he led the way to a new understanding of law or whether he was the first to articulate and codify an evolving trend of legal thought. In any case, there is no doubt that his philosophy was a significant factor in shaping current Continental legal thought and was influential with American jurists such as Roscoe Pound and Karl Llewellyn and in the development of the American realist school of jurisprudence.

Bibliography

Cotterrell, Roger. Law, Culture, and Society: Legal Ideas in the Mirror of Social Theory. Burlington, Vt.: Ashgate, 2006. Includes information about Ehrlich’s theories about law and society.

Dias, Reginald Walter Michael. Jurisprudence. London: Butterworths, 1985. The work is an overview of legal thought including a fine presentation of Ehrlich’s ideas. It contains analysis of a broad variety of legal philosophies and discusses Ehrlich’s work in the context of the evolution of legal history and philosophies.

Ehrenzweig, Albert A. Psychoanalytic Jurisprudence. Dobbs Ferry: Oceana, 1971. Psychology and the law together have always generated provocative discussion, and this book is no exception. It provides unique insight into the social psychology of Ehrlich’s work, including the prevailing legal attitudes and philosophies that shaped his ideas.

Ehrlich, Eugen. Fundamental Principles of the Sociology of Law. Translated by Walter L. Moll. Cambridge, Mass.: Harvard University Press, 1936. This is Ehrlich’s major work and the one that is best known, especially in the United States. Of particular interest is the translator’s foreword, which contains a brief biography, an outline of Ehrlich’s thoughts, and a partial listing of his other publications. The translation is excellent and preserves Ehrlich’s direct and powerful writing style.

Eikema Hommes, Hendrik Jan van. Major Trends in the History of Legal Philosophy. Amsterdam: North-Holland, 1979. This work is essentially a historical outline of jurisprudence. It is a technical book best suited for readers already familiar with the general underpinnings of Ehrlich’s thesis. One of the most enlightening parts of Hommes’s book is his discussion of Ehrlich’s conception of the state and society.

Friedmann, Wolfgang Gaston. Legal Theory. New York: Columbia University Press, 1967. Friedmann distills Ehrlich’s ideas into a concise and generally understandable presentation. His discussion of the norms of decision by which states regulate conduct is noteworthy. He also fully analyzes the criticisms of Ehrlich’s work leveled by later philosophers.

Friedrich, Carl Joachim. The Philosophy of Law in Historical Perspective. 2d ed. Chicago: University of Chicago Press, 1963. It is difficult to fully appreciate Ehrlich’s work without an understanding of how it fits into the overall history of legal philosophy. In his book Friedrich provides the necessary historical background. It is readable without losing the detail that made Ehrlich’s work so influential. This work is the most readable of the books in this bibliography and is the best starting point for detailed study of Ehrlich’s work.