14 September 1862|
2 May 1922 59) (aged|
Ehrlich was born in Czernowitz (now Chernivtsi in the Duchy of Bukovina, at that time a province of the Austro-Hungarian empire. Ehrlich studied law in Vienna, where he taught and practised as a lawyer before returning to Czernowitz to teach at the university there, a bastion of Germanic culture at the eastern edge of the Empire.
Ehrlich remained there for the rest of his teaching career and was Rector of the University in 1906–7. During the turmoil of World War I, when Czernowitz was occupied several times by Russian forces, he moved to Switzerland. After the break-up of the Austro-Hungarian Empire and the ceding of the Bukovina to Romania, Ehrlich planned to return to Czernowitz, where he would have been required to teach in Romanian, but he died of diabetes in Vienna, Austria in 1922.
Ehrlich's experience of the Bukovina's legal culture, where Austrian law and sharply contrasting local custom seemed to co-exist, caused him to question the hierarchical notions of law propounded by such theorists as Hans Kelsen. Ehrlich noted that legal theories that recognized law only as a sum of statutes and judgments gave an inadequate view of the legal reality of a community. He drew a distinction between norms of decision and social norms or norms of conduct. The latter actually govern the life of a society and, under certain conditions, can justifiably be regarded in popular consciousness, if not necessarily by lawyers, as law. For example, commercial usage and custom may develop and be recognized and respected by courts of law and other agencies as having normative force and legal significance.
The point Ehrlich sought to make was that the "living law" which regulates social life may be quite different from the norms for decision applied by courts, and may sometimes attract far greater cultural authority which lawyers cannot safely ignore. Norms for decision regulate only those disputes that are brought before a judicial or other tribunal. Living law is a framework for the routine structuring of social relationships. Its source is in the many different kinds of social associations in which people co-exist. Its essence is not dispute and litigation, but peace and co-operation. What counts as law depends on what kind of authority exists to give it legal significance among those it is supposed to regulate.
Ehrlich's teaching is that the sources of law's authority are plural and insofar as some of those sources are political and others cultural they may conflict. But not all the norms of social associations should be thought of as 'law', in Ehrlich's view. Legal norms (understood sociologically, rather than juristically) are typically distinguished from merely moral or customary ones by powerful feelings of revulsion which typically attach to breach of them. They are, thus, regarded as socially fundamental. In addition, legal norms concern certain kinds of relationships, transactions and circumstances which he described as 'facts of the law'—specially important topics or considerations for social regulation.
- Rehbinder, Manfred (1986). Die Begrundung der Rechtssoziologie durch Eugen Ehrlich, 2nd edn. Berlin: Duncker & Humblot.
- Hertogh, Marc, ed (2009). Living Law: Reconsidering Eugen Ehrlich. Oxford: Hart. ISBN 978-1-84113-897-8.
- Cotterrell, Roger (1992). The Sociology of Law : An Introduction. 2nd edn. Oxford: Oxford University Press. ISBN 978-0-406-51770-8.
- Cotterrell, Roger (2008). Living Law: Studies in Legal and Social Theory. Farnham: Ashgate. ISBN 978-0-7546-2710-4.