TOPIC: Ehrlich’s Concept of Living Law
AUTHOR: Aney Verma a Student of Symbiosis Law School, Noida.
INTRODUCTION
He was regarded as the creator of legal sociology. The study of law from a social perspective is known as the sociology of law. Eugen Ehrlich was an Austrian legal philosopher and he was born in 1862. He gave the theory of the living law. He was a supporter of sociology school. His famous work is the fundamental principles of the sociology of law. According to Ehrlich, the law is driven by the social factor i.e. society’s behaviour decides the law formation. He believes that doesn’t matter the time, period or place, and society is where legal development is most concentrated and not in legislative judiciary, justice science, or judicial decision. The state did not introduce the law, but the behaviour of the society did, and society made the law function properly. According to him, the source of law is society alone. An individual can not survive without society. Individuals and society shall remain together. hence, society is more prioritised than the state. He argued that society is the association of men. He did not consider custom as a source of law but considered it as a type. His contribution to sociology school is significant because of his thinking and his contribution.
ANALYSIS
“At present as well as any other time, the centre of gravity of legal development lies not in litigation, nor in juristic science, nor in a judicial decision, but in society itself.” Eugen gave this statement while promoting the concept of living law.
Eugen’s legal philosophy is more of the shorter side, which revolves around 2 concepts:
• Popular acceptance.
• Living law.
Ehlrich coined the term ‘living law’. He argued that the law depends upon popular acceptance and that the main source of law in society. Society means the men in the association. He believes in the continuous evolution of law, and he conceives of law in the context of present society rather than hanging to the past like the historical school of thought. The law should be studied within the context of society. He argued that neither we talk about the past law nor about the law in future, and we should only be concerned with the present society with the law in action. The Concept of living law has to take care of the changing needs and has to keep pace with the changing society.
The more society shall progress the more law shall evolve. Ultimately, law and society go hand in hand; they necessarily co-exist, and under no circumstance can they exist separately. The law should maintain its youth and glory. Law should not be static, and it has to retain its dynamic character. Then, the actual purpose of the law, which is the administration of justice, could be fulfilled otherwise that law will be outdated. His life law governs the social life. Any problem in the institution of marriage or inheritance could be resolved only by the living law. The social jurist relates the law with society and they believe that the living law is the product of the creation of mutual consent of the people. Mutual consent means it is the result of the popular acceptance of people and it is not a result of a statutory act or court decision. Law is not created by statute or by a court. Rather, law is created by popular acceptance just because the people living in society practice it. People create the law, which is the main essence of the sociological school of thought. The law need not necessarily be of arbitrary creation and need not be the command of the sovereign in a state having with its force of sanction or external compulsion. Law is only found in social facts.
CRITICISM:
1. According to Ehrlich, the law is decided by society, but what happens if society decides to adopt a morally unacceptable practice? In the case of sati pratha, society accepts it and performs it, but is it socially appropriate? Ehrlich’s theory of living law justifies the traditional practice.
2. Ehrlich completely denies the authority and law-making of statutory, juristic science. And completely rely upon society but how could we decide the competency of society? Society contains more fools than intellectuals. A bunch of fools could make any activity lawful according to Ehrlich’s living law.
3. He conflates custom as a source of law with custom as a category of law.
4. He did not distinguish between legal norms and social norms.
5. His separation between special state legal norms and legal norms where the state just gives sanction to social facts isn’t maintained by his rationale.
CONCLUSION
The concept was given by Ehrlich, that is living law. It has a few cons and a few pros. It believes in continuing to evolve with society. It aims to keep up with the present society. It supports society as the main party to making law through social practice. It didn’t support other institutions in law-making, and this is its main drawback. According to me, his theory of living law is useful in a few areas. It supports the keep evolving views. If he removes some confusion and gives more importance to the judiciary, etc, in law-making, then it would be more beneficial to society.
BIBLIOGRAPHY
Lon. L. Fuller, Morality of the Law (1976) I. H.L.A. Hart,
The Concept of Law (1961).
H.L.A. Hart, The Concept of Law (1961).
VIDHI KI PATHSHALA, EUGEN EHRLICH || LIVING LAW THEORY, YouTube (Feb. 22, 2021), H.L.A. Hart, The Concept of Law (1961).
