Ehrlich, Eugen (1862–1922)

Widely accepted as one of the “classic” sociolegal thinkers, Eugen Ehrlich had a double scholarly distance built into his analysis of contemporary state law. He looked at it from the disciplinary angle of a legal historian and from the perspective of his native province of Bukowina. He became one of the founders of the antiformalist Freirechtsschule (Free Law School), and his most influential and vexing concept remains that of the “living law.”

Born in Czernowitz, Bukowina (then part of the Hapsburg Empire), and son of a Jewish lawyer, he received his legal education in Lemberg and Vienna. After a short period of work as a lawyer in Vienna, he became professor of Roman law at the university of his native Czernowitz (1896) and, for a while, rector of that university (1906–1907). When Russia occupied Bukowina at the beginning of the First World War, Ehrlich was exiled to Vienna and became politically active in favor of peace and a multiethnic state.

After the end of the war, the (now) Romanian government reinstated him as professor in Czernowitz, but he had to face anti-Semitic and nationalistic protests. Unexpectedly, he died in 1922 of diabetes.

Ehrlich's main sociolegal work was his Grundlegung der Soziologie des Rechts (Fundamental Principles of the Sociology of Law), originally published in 1913. In this book, Ehrlich proposed that the sociology of law, that is, the empirical study of the living law, is the only scientific way to deal with law. The book was supposed to become part of a trilogy, the second part of which he published as Die Juristische Logik (Legal Logic) in 1918. Here, Ehrlich demonstrated the ideological character of what scholars usually call “legal logic” in the countries that received Roman law. Judges and legal scholars were implicitly dependent on state-derived legal norms. The third part, a project on judicial decision making, never appeared.

Living law for Ehrlich was “the law not contained in the legal propositions” (2002: 487). However, neither was it identical with “law in action,” nor did he proclaim it yet another source of law (such as customary law). It was for him the “inner order of associations,” as opposed to “mere norms of decisions” (2002: 41). For law operators to achieve social effects, they have to be aware of and rely on the living law. This implied also that judges and administrators would remain ineffective as long as they bound themselves too strictly by formal rules. Therefore, Ehrlich and others (such as Hermann Kantorowicz, 1877–1940) demanded more freedom for judicial decisions. Nevertheless, this freedom is not arbitrary decision making but sociological jurisprudence, based on knowledge about the living law. Legal realists, legal pluralists, and communitarians later took up aspects of Ehrlich's work.