Eugen Ehrlich (1862–?1918) is commonly considered the founder of the sociology of law, a discipline standing somewhere between jurisprudence and pure sociology.
Ehrlich was born in Czernowitz, the capital of the province of Bukovina, then a part of the Austrian Empire (now Russia). He studied law at the University of Vienna and, after receiving his law degree, became a Privatdocent at that university. In 1897 he accepted an appointment as professor of Roman law at the university in his native town and remained there until his death in 1918 or 1919. (The exact death date is not known because the transfer of this province to Rumania at that time was accompanied by much disorder.)
From the beginning of his academic career, Ehrlich supported the theory of free law (freie Rechtswissenschaft) put forward at that time in Germany by Hermann Kantorowicz and his followers. This school was opposed to the jurisprudence of concepts (Begriffsjurisprudenz), then the dominant theory in almost all countries except perhaps the United States and England. According to the juris-prudence of concepts, a judicial decision is always based on pre-established statements of the so-called written law; all cases, foreseen or unforeseen, can be solved on the basis of the existing system of statutes and of authoritative judicial decisions. Against this view Kantorowicz argued that the judge must form his decision on the basis of his sense of justice, using the facts accumulated during the trial.
Ehrlich did not entirely support the teachings of the school of free law. Instead he suggested that the law as expressed in judicial decisions should be distinguished from the law as expressed in social conduct (lebendes Recht). The latter can be ascertained by observing human behavior in society; it is particularly apparent in organized activity. To study it Ehrlich advocated using the methods of the most progressive sociologists of his time: the observation, generalization, and arrangement of findings into a consistent system, followed by the application of the results to concrete cases.
Ehrlich’s views were first published in his Fundamental Principles of the Sociology of Law (1913). In addition to its discussion of sociological juris-prudence, the book contains several interesting and important chapters on the development of law in different countries. Although the book greatly influenced the further development of the science of law, the two chapters explicitly devoted to the sociology of law are not systematic enough to provide the basis of a genuine science.
As one of the originators of a new science, Ehrlich discussed at length the methods that should be applied to develop it but did not venture to predict future findings. The two concluding chapters of his Sociology of Law are devoted to the methods to be applied to build up the science: in the first, he emphasizes the importance of legal history and juristic science (roughly, jurisprudence); in the second, he speaks of a study of “living law,” very similar to the study of the current customary law, but hinting also at some sociological methods of studying social reality. Among other things, he published a questionnaire concerning the “living law” of the peoples of Bukovina, predominantly Rumanians and Ukrainians.
Ehrlich was by no means the first to suggest that statute law does not explain the whole nature of the law. The Russo-Polish jurist Lev Petrazhitskii had expressed such views in his Vvedenie v izuchenie prava i nravstvennosti and Teoriia prava i gosudarstva v sviazi s teoriei nravstvennosti (“Introduction to the Study of Law and Morals” and “Theory of Law and State,” respectively; both are in Petrazhitskii 1905–1907). The nature of the law, according to Petrazhitskii, is primarily psychological and is determined by individual psychology. His three closest followers, Pitirim A. Sorokin, Georges D. Gurvitch, and Nicholas Timasheff, considered his emphasis on individual psychology a grave error and shifted their focus to collective psychology, ultimately going still further and transferring the entire subject to sociology.
Another contemporary of Ehrlich, Roscoe Pound, also published articles on sociological jurisprudence. Although he expressed ideas that were more moderate than those of Ehrlich, he did distinguish between law in books and law in life. Many other American jurists of that period were also arguing against the jurisprudence of concepts.
Also in the Ehrlich tradition, there arose in Sweden the Uppsala school, headed by Axel Hägerström (see Inquiries Into the Nature of Law and Morals 1953, a compilation of Hägerström’s theoretical contributions). The Uppsala school taught that the basic concepts of law had been misconceived: there are no such things as rights and obligations; there are only human ideas about these subjects. This point of view is similar to that of Petrazhitskii, although Hägerström was not familiar with Petrazhitskii’s work.
Although the sociology of law is still in its infancy, Ehrlich’s work has given a new impetus to the idea of the study of the law as a social fact and not just as a system of ideas expressed in books.
N. S. Timasheff
[For the historical context of Ehrlich’s work, see the biographies ofKantorowiczandPound. For discussion of the subsequent development of his ideas, seeJurisprudence; Law, article onthe sociology of law; and the biography ofSorokin.]
Ehrlich, Eugen (1913) 1936 Fundamental Principles of the Sociology of Law. Translated by Walter L. Moll, with an introduction by Roscoe Pound. Cambridge, Mass.: Harvard Univ. Press. → First published as Grundlegung der Soziologie des Rechts. See especially Walter L. Moll’s “Translator’s Preface.” Also contains a list of Ehrlich’s major works.
Gurvitch, Georges D. (1940) 1947 Sociology of Law. Preface by Roscoe Pound. London: Routledge. → First published in French.
HÄgerstrÖm, Axel 1953 Inquiries Into the Nature of Law and Morals. Uppsala (Sweden): Almqvist & Wikseils.
Petrazhitskii, Lev I. (1905–1907) 1955 Law and Morality. Translated by Hugh W. Babb, with an introduction by Nicholas S. Timasheff. Cambridge, Mass.: Harvard Univ. Press. → An abridgment and translation of Vvedenie v izuchenie prava i nravstvennosti, 1905, and Teorüa prava i gosudarstva v sviazi s teoriei nravstvennosti, 1907.
Sorokin, Pitirim A. (1947) 1962 Society, Culture, and Personality; Their Structure and Dynamics: A System of General Sociology. New York: Cooper Square Publishers.
Timasheff, Nicholas S. 1939 An Introduction to the Sociology of Law. Harvard Sociological Studies, Vol. 3. Cambridge, Mass.: Harvard University, Committee on Research in the Social Sciences.
Timasheff, Nicholas S. 1957 Growth and Scope of Sociology of Law. Pages 424–449 in Howard Becker and Alvin Boskoff (editors), Modern Sociological Theory in Continuity and Change. New York: Dryden.