The European Sociological Jurisprudence

The European sociological jurisprudence in the late nineteenth century was more of a reaction to the so-called ‘jurisprudence of concepts’ from the Kantian idea of natural law, than a definition of a sociological program for the study of law. This must be emphasized, since in the studies on the origins of the sociology of law, sociological concerns are often confused with the purely legal. Indubitably, sociology of law has ties with the sociological movements of the North American and European jurisprudence. We will later see Max Weber and Talcott Parsons reflecting some of these ideas in sociological formulations. This confusion usually occurs because, although in the United States sociological jurisprudence clearly differed from sociology of law (cf. Pound 1943). In Europe, the use of sociology for the interpretation and application of law was commonly called ‘sociology of law,’

without reaching a sociological program for the study of law. It is worth insisting on this. The main concern of these movements was to provide guidelines for science and philosophy of law in dealing with social conditions and the effects of the law.

For these reasons, we prefer to call this movement as ‘sociological jurisprudence’

and not ‘sociology of law,’ a term we reserve for later.

In the context of the European sociological jurisprudence, the works of Thimashef (1939), Gurvitch (1947), or Ehrlich (1989) surface. Ehrlich provided a connection

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between the North American sociological jurisprudence and the European and later with the sociology of law of Max Weber. With regard to Gurvitch, Mc Donald (1979) supports that his sociology of law was despised in the United States for a long time, partly by the wide diversity of influences of the Russian thinkers settled in France, which ranged from phenomenology, Marxism, structuralism, the sociology of Durkheim (whom he succeeded as scholar in La Sorbonne), and empiricism, and also because he supported a position that was more philosophical than sociological.

The work of Thimashef meanwhile, although recognized by Pound (1943), did not have the impact that, on the contrary, Eugen Ehrlich obtained.

Ehrlich significantly influenced the North American sociological jurisprudence.

Oliver Wendell Holmes was interested in his works and took up contact with him, as related by Ehrlich (1916: 582). Nevertheless, his ideas will take force only up to the programmatic formulation of the sociological jurisprudence of Roscoe Pound.

In his first writings, Pound (1914) commented that the work of Ehrlich was an important influence for the consolidation of the sociological jurisprudence. Later in 1922, Pound (1922: 130) published a brief Laudation to the work of this author, in which occasion he lamented that, because of the First World War, Ehrlich had to decline the invitation to travel to the United States and present his ideas. The similarities between the thought of Pound and of Ehrlich are evident. Perhaps the clearest of all is the use of a dichotomy that distinguishes the traditional study of law and the new approach of sociological inspiration. The Ehrlich dichotomy (1989:

409ff.) between “state law” and “living law” was re-formulated by Pound in his first writings as the distinction, as already discussed, between “law in books” and “law in action”. In both cases, it is a question of differentiating an ambience of explanation of law from social considerations, separately from the traditional understanding of law. This distinction served to open the interpretation of precedents and doctrine towards social aspects and thus adjust judicial decisions in the North American sociological jurisprudence. Meanwhile, in case of European sociological jurisprudence, this distinction served to deal jurisprudence with concepts of Kantian inspiration. Indeed, in contrast to North American sociological jurisprudence, which

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tried to reorient judicial decisions towards sociologically empirical aspects, Ehrlich, his contemporaries, and predecessors (Ihering, Kantorowicz, Savigny, etc.), aside from trying to reorient this judicial praxis, faced constant attacks of conceptual jurisprudence.

The criticism towards sociological jurisprudence in Europe was based on a famous postulate of Kant about the impossibility of founding an ‘empirical science of law.’

Kant (1797: 32) was referring to this option pejoratively: “A doctrine of law that is merely empirical may (like the wooden head in Phaedrus’s fable) be a beautiful head, but unfortunately it has no brain!,”¹⁰ since the true source for the science of law had to be reason and not empirical experience. Sociological jurisprudence was stubborn on developing a science of law of empirical character and, thus, subordinating the pretensions of rationality to the results of current and operative knowledge of the law. Facing this Kantian idea of the impossibility of an empirical science of law, Ehrlich (1989: 33) argues that: “the sociology of law is the scientific doctrine of law,”¹¹ since jurisprudence as science is a part of the theoretical science of society, i.e., sociology. Moreover, for Ehrlich (1907), conceptual and rational jurisprudence obey only the products of historical conditions, for example, an interpretation of Roman law concerning customary law.

Sociological jurisprudence to Ehrlich (1989: 405, 421) – which he refers to as sociology of law - would deal with the living content of law and not with its conceptual abstractions. This living content of law is the ‘living law’, i.e., non-state law produced by society beyond legal formalizations; it is also the law that dominates social life but one that is not reduced to formal or conceptual legal postulates (Ehrlich 1989: 415) and that while it can take state law – legal documents or judicial decisions - as a source, this type of law is not the main theme. Living law

10 “Eine bloß empirische Rechtslehre ist (wie der hölzerne Kopf in Phädrus' Fabel) ein Kopf, der schön sein mag, nur schade! daß er kein Gehirn hat.”

11 “Die Soziologie des Rechts ist die wissenschaftliche Lehre vom Rechte.”

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comes from social relations that occur empirically and historically, since “social order” precedes state law (Ehrlich 1922: 132) and the “social function” of living law is aimed exactly at the production of such order (Ehrlich 1989: 422). State law is located in the opposite bank. Following Ehrlich’s own writings, state law can be defined as a counter-concept of living law, since the former is located in judicial and administrative norms. In Ehrlich words: “[t]hat is living law in contrast to that which applies only to the court and authorities”¹² (Ehrlich 1989: 415) or also “[s]tate law consists for the greater part of rules of administration (instructions addressed to administrative officials). Still it includes also rules of decision (instructions to the judge as to how to proceed and how to decide in litigation)” (Ehrlich 1922: 137).

Every law that is not reduced to administrative or judicial disposals constitutes living law and, for Ehrlich, many norms are not formalized in state law.¹³

Ehrlich’ idea of ‘living law’ will serve as input to sociology of law for over half a century.¹⁴ His sociological postulates are, nevertheless, rather scarce and are not systematized towards a social theory of law of major scope. An example of this is the idea that the social and economic order produced by living law would be based on four fundamental (juridical) facts, namely: “Exercise, domination, property, declaration of interest”¹⁵ (Ehrlich 1989: 84) and in five necessary (juridical) institutions: “marriage, family, possession, contract, succession” (Ehrlich 1922: 131).

This conjunction would produce society: “Society is the totality of human relations that are in close contact with each other. These relations that they form society are

12 “Das ist also das lebende Recht im Gegensatze zu dem bloß vor Gericht und den Behörden geltenden.”

13 The problem of state law seems to be for Ehrlich a problem of complexity, i.e. a problem of

“requisite variety” (Ashby 1957: 202ff) to answer to its environment.

14 Recently attention has turned to the idea of living law of Ehrlich and its possibilities for a

‘juridical pluralism’ (cf. Nelken 2008; Hertogh 2009).

15 “die Übung, die Herrschaft, der Besitz, der Willenserklärung.”

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of very different types”¹⁶ (Ehrlich 1989: 34). If we pay attention to these facts, institutions and bonds, we see that what Ehrlich understands about ‘social order’ is rather a ‘non-state’ juridical order. The way in which social order is understood tends to rather justify an idea of law, as an idea of society. Put another way, the idea of living law tends to be a juridical description of society and not a social description of law.

The fundamental difference between the ideas of sociological jurisprudence of Pound and Ehrlich is that, for Pound, ‘law in books’ is a situation that should be improved by sociological jurisprudence, while for Ehrlich, ‘living law’ is the true law and not the juridical fictions that create doctrinaire concepts. In spite of this, in both cases it is a question of a practical task. In both cases, the concept of law is incomplete and in both cases, the nation-state law must be either replaced or improved.