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Eugen Ehrlichs living law and its Legacy for Legal Pluralism
S. Singh*
Introduction

Legal pluralism is the key concept in a post-modern view of law1, it is essential to

reconceptualising the social2 and to being the new paradigm for the social scientific study of
law3. Yet, the internal theoretical plurality of legal pluralism4 has established a multi-dimensional
theory, making it difficult to define the modern legal pluralism to which one must compare
Ehrlichs lebendes recht5. In exploring the relationship between legal pluralism and the concepts
expounded by Ehrlich, the paper shall take the following structure. Firstly, outlining Ehrlichs
concept of living law and the context in which such a theory was developed. Secondly, outlining
the development of legal pluralism as a sociological, anthropological and legal theory and in
particular looking closely at its challenge to the ideology of legal centralism6 and how intricately
this may be linked with Ehrlichs own thinking. Finally, the paper shall explore the most complex
but most recent theories of legal pluralism as detailed by Boaventura de Sousa Santos and
Gunther Teubner; both contrasting sharply with the approach of Ehrlich. Concluding, that
Ehrlichs ingenuity and originality7 undoubtedly influenced the direction of legal pluralism, but
the spherical development8 of the theory has led living law to serve only as a bedrock to the
complex, contemporary versions of legal pluralism.

*
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7

LLB(hons), LLM(dist.)(Leiden). Visiting Lecturer of International Law, University of Vienna and Client Specialist in
Public International Law at Skadden, Arps, Slate, Meagher & Flom LLP [sahib.g.singh@gmail.com].
Santos, B de Sousa, Law: A Map of Misreading. Toward a Postmodern Conception of Law, (1987), 14 Journal of Law
and Society 279, at p. 297
Cotterrell, R., Law and Community: A New Relationship? in Cotterrell, R., (ed.), Sociological Perspectives on Law,
Volume II, 2001, Ashgate/Dartmouth: Aldershot, at p. 357
Griffiths, J., Legal Pluralism and the Theory of Legislation With Special Reference to the Regulation of Euthanasia in
Peterson, H., & Zahle, H., Legal Polycentricity: Consequences of Pluralism in Law, 1995, Dartmouth: Aldershot, at p.
201
This is a recognized part of legal pluralism, indeed some authors have seen it fit to say that this contributes to the
richness of the theory, whilst others have critiqued the doctrine for not have a clear definition of legal pluralism. See
Cotterrell, Supra note 2, at p. 369. It is stated: A wide variety of pluralistic conceptions of law is found in the literature
of legal sociology and legal anthropology.
Translation: living law. This was the original term used by Eugen Ehrlich when he wrote his famous book: Ehrlich, E.,
Grundlegung der Soziologie des Rechts (1913) in the Harvard Series of Modern Sociology
Griffiths, J., What is Legal Pluralism? (1986) 24 Journal of Legal Pluralism 1
Ziegert, K.A., The Sociology behind Eugen Ehrlichs Sociology of Law (1979) 7 International Journal of the Sociology
of Law 225, at p. 225
It [legal pluralism] comes with the promise that it will facilitate a spherical view of the legal universe, that, unlike
other approaches to the legal it will help us achieve a multiplicity of points of view and legitimately oscillate between
them. This idea was proposed by Melissaris, E., The More the Merrier? A New Take on Legal Pluralism (2004) 13(1)
Social & Legal Studies 57, at p. 58

Electronic copy available at: http://ssrn.com/abstract=1660606

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Ehrlichs Lebendes Recht

The import of Ehrlichs theoretical inventiveness9 towards challenging the closed system of legal
reasoning in forms of dogmatism and begriffsjurisprudenz10, can only be understood if one
considers the regional, political and ideological contexts in which Ehrlich created his living law.
A Romanist by profession11, Ehrlich challenged the traditionalism in academia through this liberal
positivist12 value perspective. Whilst Banakar asserts that the likes of Durkheim, Marx, Sumner
and Weber tried to reveal the intrinsic interconnectedness of law and other societal forces13, this
is a shallow assumption that they may be placed in the same category as Ehrlich. He rather
departed from the Marxist views of law wither[ing] away after the establishment of a classless
society14, Webers state centred definition of law15 and Durkheims macro-sociological approach16.
Drawing on the work of Comtes social physics and Spencers Darwinian evolutionary theories17,
he attempted to construct a social scientific approach to law. But it was not only traditional
academia he challenged drawing upon the normative pluralism of differing normative orders18
(nine tribes) and the gap between practice and legal doctrine19 he observed in Czernowitz,
Bukowina he was able to challenge first, the principle of territoriality and draw upon the
seemingly ancient principle of personality and secondly, the traditionally positivist, state centred,
conception of law20 emphasising rather the importance of traditional legal norms existent in
normative orders.

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19
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Cotterrell, supra note 2, at p. 365

Ehrlich, E., Fundamental Principles of the Sociology of Law, 1936 orig. pub. 1913, Harvard University Press:
Cambridge, Mass. at p. 493
He was Professor of Roman law in Czernowitz from 1896 until his death in 1922. See Ziegert, K.A., A Note on Eugen
Ehrlich and the Production of Legal Knowledge, (1998), 20 Sydney Law Review 108, at p. 110
Ehrlichs frame of reference is probably adequately described as that of an enlightened liberal positivist who attacks at
the same time metaphysics and blunt conservatism and traditionalism Ziegert, Supra note 7, at p. 230
Banakar, R., Sociological Jurisprudence in Banakar, R., & Travers, M., (ed.), An Introduction to Law and Social
Theory, 2002, Hart Publishing: Portland, Oregon at 33, at p. 34
Timasheff, N. S., An Introduction to the Sociology of Law, 1974, Greenwood Press: Westport at p. 46
Weber defined law through state coercion exercised by a staff of specialized people.
Durkheim, E., The Division of Labor in Society, 1933 orig. pub. 1893, Free Press: New York
he mentions four times Herbert Spencer, August Comte twice, Gabriel Tarde once, this is all that sociology had to say
to Ehrlich Ziegert, Supra note 7, at p. 227
This can be contrasted strongly with adopting a view on cultural pluralism as stated in Nelken, D., Law in Action or
Living Law? Back to the Beginning in Sociology of Law, (1984), 4 Legal Studies 157, at p. 164. Furthermore, the nine
tribes that he observed were: Armenians, Germans, Jews, Rumanians, Russians, Ruthenians, Slovaks, Hungarians and
Gypsies.
Ehrlich, E., Judicial Freedom of Decision: its Principles and Objects (1917) 9 Science of Legal Method 47
This is has been framed differently by different academics, for example Banakar states They [Ehrlich and Petrazycki]
introduced a new concept of law specifically designed to challenge the dominant understanding of the law in the West
Banakar, Supra note 13

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Ehrlich, like only Ihering and Petrazycki during his time, was convinced of the social causality
that lay at the foundations of law when he introduced his notion of living law21 in 1911. Using
historiographical and questionnaire methods22 he adopted an inductive and incrementalist
approach towards his construction of the concept. Determining that society consists of
intermingling normative and official associations23 which operate through an inner order, Ehrlich
concluded that it was in this inner order that one could find living law. The inner order is
controlled by four specific Tatsache des Rechts or facts of the law from which legal propositions are
derived. Therefore, the order of such associations consists of an operative structure which allows
associations to give effect to norms within the organised structure itself. Going beyond
functionalism towards constructivism it is the operation of the inner order within a time reference
that gives it the identity of law; irrespective of acceptance of this normative order by the state.
The operation of living law is also entirely contingent on the coordination of norm elements it is
at this stage that one can invoke Ziegerts Luhmannian analysis of Ehrlich24. Ziegert emphasises
the importance of societal differentiation, the organisation of norms (organisational norms,
decision making norms and state norms) and ultimately the multifunctional state politiciz[ing]
the law25. Ultimately what must be learned from living law is the tri-partite import of
organisational norms26: firstly, it is these social norms which determine societal law and law
within the inner order of associations; secondly, organisational norms must be effectively
combined and coordinated with decision making norms (which are also to be regarded as a type
of social norm)27 if the traditional values of a society are to continue to be living law; and thirdly,
organisational norms employ their full societal potential when pitted against the norms of the

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27

Ehrlich defines the concept living law as the law that dominates life itself, even though it has not been printed in
legal propositions but I find this definition lacking substance, and merely a negative expression of what is not
contained in the contents of living law See Ehrlich, Supra note 10, at p. 493
Ziegert, Supra note 7, at p. 237
Society is the sum total of the human association that have mutual relations to one another Ehrlich, Supra note 10, at
p. 26
The term system suits Ehrlichs description of law far better (ad in contrast to a very diffuse usage in legal science)
as he indeed visualizes law as being a socially organized phenomenon with well defined boundaries, which reacts to
its environment and which has relations of exchange with it. Even though Ehrlich called all this a process it is one
realization of the features of this system and in accordance with systems theory: Processes are systems. Ziegert,
Ibid. at p. 251
According to this systematic approach, living law exists where the functional devices all work together. Such
functional devices include (a) organisation norms of normative order (b) organisational norms complemented by
decision making norms (role of a lawyer) (c) where societal complexity is high, the decision making norms and
organisational norms are systemised by professionals (d) the political will, i.e. the state, creates norms to induce a
second order (e) organisational requirement to bring legal order under state control to control the norms created by the
state (legal propositions).
Organizational norms is classified as Ehrlich as a legal norm which organizes daily life, and is the basis of any order. It
is essential for this norm to exist for there to be living law. Note however, this term organizational norm is coined by
Ziegert and is defined as the the autonomous expression of legal consciousness and legal development Ziegert,
Supra note 10, at p. 242
Ziegert, Supra note 11, at p. 114

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second order from the superimposing state law28. Living law allows Ehrlich to shift the centre of
gravity away from the state to society itself29.

Pound accused Ehrlich for having a phobia of the State30, Fitzpatrick contrasts his diffusive
approach with Gierkes centrist stand31 and Tamanaha recognised Ehrlichs willingness to contrast
state law with living law32. In fact Ehrlich warned of the evil of state law33 whilst simultaneously
recognising the state as one of the plurality of orders, but eventually leading to the conclusion that
state law is the expression of political power and not a legal phenomenon34. Adopting the state
as one of the Ziegerts functional systems of which living law comprises; Ehrlichs concept
challenges the state-centred traditionalism in three ways. Firstly, his sociological concept of
differentiation results in the state emanating merely second order norms (legal propositions), thus
norms which are hierarchically inferior to social norms produced in normative orderings. He
thereby creates the opposite forces of state law and societal law in his concept of living law.
Secondly, he broadens the notion of legal norm to include social norms, thereby undermining the
traditional legal norm from the state; although Friedmann criticizes him for not considering the
changing relationships between these two norms, due to the influence of the facts of the law35.
Thirdly, due to the subordination of state law to societal law, the state may only assist society to
fuse legal norms in the inner order. Thus, if the state is not considered subordinate, the danger is
state monopolisation resulting in the homogenisation of legal norms across associational lines. The
state must therefore remain subordinate if pluralism is to be sustained, and furthermore the state
must be supported by the norms established by inner orderings if it is to be an effective
organisational structure.

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32

33
34
35

Banakar, Supra note 13, at p. 44

Ehrlich, Supra note 10, at p. xiv
Pound, R., Introduction to Simpson, S. P., & Stone, J., (ed.), Cases and Readings on Law and Society Vol. 1, 1948,
West Publishing Co.: St. Paul, Minn., at p. xiv. See also Nelken, Supra note 18, at p. 159
Fitzpatrick, P., Law and Societies (1984) 22(1) Osgoode Hall Law Journal 115, at 116-117. Gierkes centerist approach
consisted of an organic theory of society, [where] the state is an association which embraces all other associations and
has ultimate authority over them.
Tamanaha, B.Z., The Folly of the Social Scientific Concept of Legal Pluralism (1993) 20(2) Journal of Law and
Society 192, at p. 209
Ehrlich, Supra note 10, at p. xiv
Ziegert, Supra note 10, at p. 250
Friedmann, W., Legal Theory, (3rd ed., 1953), Steven & Sons Ltd.: London, at p. 196. See also Rhl, K. F.,
Rechtssoziologie, 1987, Carl Haymanns Verlag: Kln, at pp. 215-216 and Raiser, T., Rechtssoziologie, 1987,
Metzner-Verlag: Frankfurt, at pp. 63, 71 and 231 whereby he is criticized for exceeding an accurate concept of modern
law and for being excessively liberalist in these ideas. Timasheff agrees with these criticisms and posits that the law
should be more closely allied with positive law see Littlefield, N. O., Eugen Ehrlichs Fundamental Principles of the
Sociology of Law (1967) 19 Maine Law Review 2, at p. 27.

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Legal Pluralism, Legal Centralism and a Shift in Perspective

Academics such as Griffiths, Nelken, Tamanaha and Ziegert have all accepted Ehrlichs living
law as an essential starting point for legal pluralism 36; but the scope of the latter concept as
coined by Gilissen has founded two perspectives operating at opposite ends of a continuum
outlining the degree of state centrality. At one extreme one can find Griffiths society centred
strong legal pluralism and at the other Gurvitchs state centred weak37, juristic legal pluralism.
The latter concept offers the concentration of power to a uniform, self-validating state which
produces legal norms superior to that of social norms38, thus appearing to be everything Ehrlich
stood against however, strong legal pluralism is a different prospect. Merry notes that strong
legal pluralism flourished during the post-colonial era, with the politically volatile power struggle
in colonies, concluding with the supremacy of state law under weak legal pluralism, as its
foundation39. Santos notes that the loci of legal pluralism then changed from the local to the
national40 and it is true that legal pluralism was attested to exist in all societies as a social scientific
fact where two or more legal systems co-exist in the same social field41. As such a fact it has been
developed by Pospisils different legal levels42, Smiths study of corporations43, Galanters private
orderings44, but for this paper most importantly Sally Falk Moores semi-autonomous social
field45.

Tamanaha is quick to note that no matter the source of this strong legal pluralism, it has a
fundamental and instrumental objective of combating the distorting ideology of legal
centralism46. Galanter notes that legal centralism has impaired our consciousness of indigenous
law47; Griffiths analysis concludes a central objective of a descriptive conception of legal
pluralism is therefore destructive: to break the stranglehold of the idea that law is the power
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44
45

46
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Nelken, Supra note 18, at p. 171

Gurvitch, G., Sociology of Law, 1947, Routledge and Kegan Paul Ltd.: London, at pp. 116-122
Roberts, S. A., Order and Dispute, 1979, St Martins Press: New York, at p. 25. See also Galanter, M., Justice in Many
Rooms: Courts, Private Ordering and Indigenous Law (1981) 19 Journal of Legal Pluralism and Unofficial Law 1, at 20
Merry, S. E., Legal Pluralism, (1988) 22 Law and Society Review 869, at p. 874
Santos underlines three phases of debate: firstly, the colonial period, where weak legal pluralism allowed the local to
co-exist with the state and be recognised, even if in subordination; secondly, post-colonialism where ethnic minority
groups were finally recognised on a national level and by the state, as social norms became integrated into and
challenge legal norms; thirdly, post-modern legal plurality where the concept of the global challenges the concept of
nation-state. See Santos, B. S., Toward a New Common Sense: Law, Science and Politics in the Paradigmatic
Transition, 1995, Routledge Press: London, at p. 117
Merry, Supra note 39, at p. 870
Pospisil, L., Anthropology of Law: A Comparative Theory, 1971, Harper & Row: New York
Smith, M. G., Some Development in the Analytic Framework of Pluralism in Kuper, L. & Smith, M. G., (eds.),
Pluralism in Africa, 1969, University of California Press: Berkeley
Galanter, Supra note 38
Moore, S.F., Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study, (1973),
7 Law and Society Review 719
Tamanaha, Supra note 32, at pp. 194-197
Galanter, Supra note 38, at p. 8

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of the state48. The semi-autonomy of Moores social fields, in their ability to generate and maintain
their own norms, and Fitzpatricks Foucaultian analysis determining the interaction between
differing normative orders through integral plurality49, both subvert the hegemony of the state
laws self-validity. These challenges to legal centrality, so fundamental to strong legal pluralism,
are reminiscent of Ehrlichs state/societal oppositional dichotomy and his warning of the evil of
state law in the functioning of living law.
Challenges to legal centrality are not the only common characteristic of Ehrlichs living law and
strong legal pluralism. Just as Gurvitch, Raiser and Ziegert accused Ehrlich of broadening the
concept of the legal too much50 (to the consternation of Littlefield51); Tamanaha and Woodman
now condemn strong legal pluralists for reaching the conclusion that all forms of social control
are law52. For strong legal pluralists, the inclusion of the non-legal in the legal is based on the
assumption that not all legal phenomena have their source in the state. The argument that this
definitional issue is a tool for the subversion of the stature of the state is not without merit, for
strong legal theorists themselves recognise the problem. Griffiths notes that all social control is
more or less legal53, Merry notes, legal system include[s] non-legal forms of normative
ordering54 and Santos concedes that this very broad conception of law can easily lead to the total
trivialisation of law55. Therefore, legal pluralists recognise the definitional issue, but instead of
attempting to circumvent it, they embrace it for it identifies law with normative orderings. As
such the tradition of strong legal pluralism not only challenges the monopolisation of state law,
but more notably, in the eyes of Ehrlich, brings to the fore a newfound status for normative
orderings.

Thus far it has been established that legal pluralism developed theories along a continuum of state
centrality of law, and Ehrlichs living law may have been reconceived in the form of strong legal
pluralism. However, legal pluralism has experienced a shift in academic debate, from debating legal
centralism to Merrys new legal pluralism and Melissaris legal pluralism in search of a diverse and
dispersed legality56. The latter concepts explore the dialectic, mutually constitutive relation between

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54
55
56

Griffiths, Supra note 6, at pp. 4-5

Fitzpatrick, Supra note 33, at p. 138
Melissaris, Supra note 8, at 60. See also Cotterrell, R., The Sociology of Law: An Introduction, 1984, Butterworths:
Oxford
Ehrlich does make an attempt at formulating some distinctions between legal and non-legal norms. He says that there
are a number of characteristics of legal norms which can now be identified Littlefield, Supra note 35, at p. 10
Tamanaha, Supra note 32, at p. 193. See also Woodman, G., Folk Law (Sept. 1991), Newsletter XX Commission on
Folk Law and Legal Pluralism 34, where it is stated: [legal pluralists] have generally been content to describe and
analyze norms and activities which seem to have a clearly legal character, without formulating a precise criterion for
borderline cases.
Griffiths, Supra note 3, at p. 39
Merry, Supra note 39, at p. 870
Santos, Supra note 40, at p. 429
Melissaris, Supra note 8, at p. 61

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state law and other normative orders57 and the necessity to explore law more spherically as a system of
thought58. To this end, the paper shall look at the works of Santos and Teubner, who both explore the
third wave of legal pluralism; globalisation.

Santos scrutinizes post-modern legal plurality59 focusing on intertwining legalities governed by

interaction between epistemology and regulation. Tamanaha, pre-occupied with criticizing Santos for
falling into the same legal/non legal definitional crevice as strong legal plurists60, is unable to recognise
the importance of Santos six structural clusters61, his topoi. Yes, Santos does adopt an anti-legal
centralism approach, but he should be recognised for establishing, firstly, the necessity for knowledge
of the self and of the community; secondly, six structural clusters of social relations which in their
stability always allows both geographical and temporal referencing during observation; thirdly, a
regulatory definition of law62 which is combined with three characteristics identifying legal
phenomena63. It is the amalgamation of these findings depicts his version of legal pluralism, which
achieves two objectives beyond the scope of strong legal pluralism. Firstly, and more notably, he
introduces the concepts of legal porosity64 between the plurality of legal order; this is effect attempts to
define the communication that takes place between intertwining legal phenomena as one that is not
determined by the domination of the state over society, but rather a mutually constitutive method.
Therefore, post-modern knowledge does not undermine regulation but rather changes our perception
of it. Secondly, he establishes an analytical framework for legal pluralism which creates a cultural
political strategy aimed at revealing the full range of social regulation 65, because he reconceptualizes
law in light of post-modernity.

Santos does attempt to explore the relations developing between dispersed legalities66, but his method
does not bear the stringency of Teubners combination of systems and reflexive theory. Finding that the

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65
66

Merry, Supra note 39, at pp. 880-883, 889-890. See also Griffiths, A., Legal Pluralism in Banakar, R., & Travers, M.,
(ed.), An Introduction to Law and Social Theory, 2002, Hart Publishing: Portland, Oregon at 289, at 304; According
to Merry, the new, strong or deep legal pluralism has reoriented, or may in the future reorient, legal analysis away
from the ideology of legal centralism and from essential definition of law in a number of ways. I disagree with Anne
Griffiths suggestion that Merry is in fact referring to the strong legal pluralism, in fact her new legal pluralism is
distinctly different from the strong, since each has its own distinct focus for legal analysis.
Melissaris, Supra note 8, at p. 61
Santos, Supra note 40, at p. 117
Tamanaha, B.Z., A Non-Essentialist Version of Legal Pluralism, (2000), 27(2) Journal of Law and Society 296, at pp.
303-306
They are: domestic law, production law, exchange law, community law, and territorial (or state law) and systematic
law. For detailed discussion of each see Tamanaha, Ibid. at pp. 302-303; Melissaris, Supra note 8, at pp. 64-65.
He defines law as a body of regularized procedures and normative standards, considered justiciable in any given
group, which contributes to the creation and prevention of disputes, and to their settlement through an argumentative
discourse, coupled with the threat of force. Santos, Supra note 40, at pp. 428-429. Tamanaha describes such a
definition as both essentialist and functionalist in nature see Tamanaha, Supra note 60, at p. 302
These are rhetoric, violence and bureaucracy Santos, Supra note 40, at p. 112
Santos, Supra note 1, at p. 279
Santos, Supra note 40, at p. 115
Melissaris, Supra note 8, at p. 72

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definitional issue, which Santos fails to address, gives rise to ambiguity and confusion 67 Teubner
circumvents it by proposing a legal pluralism which follows the linguistic turn, shifting the focus to the
binary code. The code (legal/illegal) allows the differentiated identification of legal phenomena. This
code is essential in understanding the communicative process between systems through structural
coupling. State law has its own systematic environment, the boundaries of which it itself determines,
and unofficial law also has its own autopoietic system and Teubners legal pluralism explores the
multiplicity of diverse communicative processes68 between such systems. If a state law norm was to
transcend the boundary of the state law discourse to the unofficial law discourse, then the norm would
be distorted and would have to adapt to the new system (if it wishes to still fall under the binary code)
so that state law could not colonise the unofficial law system. Teubners analysis has three benefits.
Firstly, the code and the nature of systems theory means that there is no hierarchical superiority
between official and unofficial law69. Secondly, structural coupling, linkage institutions and the binary
code, ensure that any relation between systems is truly mutually constitutive under the meaning
Fitzpatrick meant to give to this phrase70. Thirdly, legal pluralism defined through this communicative
process allows the development of law as a self-regulating discourse, but furthermore, the improved
responsiveness of law since it co-evolves with other contributory and regulating discourses. Teubner
through an internal perspective, establishes what Ehrlich was unable to a theory which appreciates
the essential nature of normative orders as well as state law (on a vertical level), whilst excluding mere
social conventions and moral norms71 AND one capable of examining communication between the
heterarchy of diverse legal discourses72 with a view to making law more responsive to other
discourses.

Conclusion

Legal Pluralism, like any theory, has evolved; and with any evolution a certain species may have once
been useful but may at some point become extinct. This unfortunately is the fate of Ehrlich. His living
law was vital to establishing the legal tradition of strong legal pluralism and determining the demise
of weak legal pluralism. However, the theoretical shift towards discovering a new legal pluralism
has broadened the concept of the legal to include the epistemological works of Santos and the internal

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68
69

70

71
72

Teubner, G., Two Faces of Janus: Rethinking Legal Pluralism, (1992), 13 Cardozo Law Review 1443, at p. 1444
Teubner, G., Substantive and Reflective Elements in Modern Law, (1983), 17 Law and Society Review 1443, at p. 1451
To avoid misunderstanding, I hasten to add that the binary code legal/illegal is not peculiar to the law of the nationstate. This is in no way a view of legal centralism. It refutes categorically any claim that the official law of the nationstates, of the United Nations or of international institutions enjoy a hierarchically superior. Teubner, G., Global
Bukowina: Legal Pluralism in the World Society in Teubner, G., (ed.), Global Law Without a State, 1997, Dartmouth
Publishing: Aldershot at p. 3, at pp. 14-15
Fitzpatrick coined this term to describe the way official and unofficial legal orders make sense of each other. For
Teubner, mutual constitution cannot be understood as a transfer of meaning from one field to another but needs to be
seen as an internal reconstruction process Teubner, Supra note 88, at p. 1456
Teubner, Supra note 67, at p. 1451
Teubner, Supra note 69, at pp. 14-15

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systematic perspective of Teubner. Ehrlichs focus on the importance of normative orderings ensured
the ensuing political battle between the supremacy of official or unofficial law. But the cultural political
strategy of modern legal pluralism is to explore the communicative processes between these two
discourses, so that both can evolve by being responsive to each other. Ehrlich was instrumental, but his
living law is needed no longer by modern legal pluralism.

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BIBLIOGRAPHY
Banakar, R., Sociological Jurisprudence in Banakar, R., & Travers, M., (ed.), An Introduction to Law and Social
Theory, 2002, Hart Publishing: Portland, Oregon
Cotterrell, R., Law and Community: A New Relationship? in Cotterrell, R., (ed.), Sociological Perspectives on Law,
Volume II, 2001, Ashgate/Dartmouth: Aldershot
Cotterrell, R., The Sociology of Law: An Introduction, 1984, Butterworths: Oxford
Durkheim, E., The Division of Labor in Society, 1933 orig. pub. 1893, Free Press: New York
Ehrlich, E., Fundamental Principles of the Sociology of Law, 1936 orig. pub. 1913, Harvard University Press:
Cambridge, Mass.
Ehrlich, E., Judicial Freedom of Decision: its Principles and Objects (1917) 9 Science of Legal Method 47
Fitzpatrick, P., Law and Societies (1984) 22(1) Osgoode Hall Law Journal 115
Friedmann, W., Legal Theory, (3rd ed., 1953), Steven & Sons Ltd.: London
Galanter, M., Justice in Many Rooms: Courts, Private Ordering and Indigenous Law (1981) 19 Journal of Legal
Pluralism and Unofficial Law 1
Griffiths, A., Legal Pluralism in Banakar, R., & Travers, M., (ed.), An Introduction to Law and Social Theory,
2002, Hart Publishing: Portland, Oregon
Griffiths, J., Legal Pluralism and the Theory of Legislation With Special Reference to the Regulation of Euthanasia
in Peterson, H., & Zahle, H., Legal Polycentricity: Consequences of Pluralism in Law, 1995, Dartmouth:
Aldershot
Griffiths, J., What is Legal Pluralism? (1986) 24 Journal of Legal Pluralism 1
Gurvitch, G., Sociology of Law, 1947, Routledge and Kegan Paul Ltd.: London
Littlefield, N. O., Eugen Ehrlichs Fundamental Principles of the Sociology of Law (1967) 19 Maine Law Review 2
Melissaris, E., The More the Merrier? A New Take on Legal Pluralism (2004) 13(1) Social & Legal Studies 57
Merry, S. E., Legal Pluralism, (1988) 22 Law and Society Review 869
Moore, S.F., Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study,
(1973), 7 Law and Society Review 719
Nelken, D., Law in Action or Living Law? Back to the Beginning in Sociology of Law, (1984), 4 Legal Studies 157
Pospisil, L., Anthropology of Law: A Comparative Theory, 1971, Harper & Row: New York
Pound, R., Introduction to Simpson, S. P., & Stone, J., (ed.), Cases and Readings on Law and Society Vol. 1, 1948,
West Publishing Co.: St. Paul, Minn
Raiser, T., Rechtssoziologie, 1987, Metzner-Verlag: Frankfurt
Roberts, S. A., Order and Dispute, 1979, St Martins Press: New York
Rhl, K. F., Rechtssoziologie, 1987, Carl Haymanns Verlag: Kln
Santos, B. S., Law: A Map of Misreading. Toward a Postmodern Conception of Law, (1987), 14 Journal of Law and
Society 279
Santos, B. S., Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition, 1995,
Routledge Press: London
Smith, M. G., Some Development in the Analytic Framework of Pluralism in Kuper, L. & Smith, M. G., (eds.),
Pluralism in Africa, 1969, University of California Press: Berkeley
Tamanaha, B.Z., A Non-Essentialist Version of Legal Pluralism, (2000), 27(2) Journal of Law and Society 296

Draft Comment Paper

(do not quote without authors permission)
Tamanaha, B.Z., The Folly of the Social Scientific Concept of Legal Pluralism (1993) 20(2) Journal of Law and
Society 192
Teubner, G., Global Bukowina: Legal Pluralism in the World Society in Teubner, G., (ed.), Global Law Without
a State, 1997, Dartmouth Publishing: Aldershot
Teubner, G., Substantive and Reflective Elements in Modern Law, (1983), 17 Law and Society Review 1443
Teubner, G., Two Faces of Janus: Rethinking Legal Pluralism, (1992), 13 Cardozo Law Review 1443, at p. 1444
Timasheff, N. S., An Introduction to the Sociology of Law, 1974, Greenwood Press: Westport
Woodman, G., Folk Law (Sept. 1991), Newsletter XX Commission on Folk Law and Legal Pluralism 34
Ziegert, K.A., A Note on Eugen Ehrlich and the Production of Legal Knowledge, (1998), 20 Sydney Law Review
108
Ziegert, K.A., The Sociology behind Eugen Ehrlichs Sociology of Law (1979) 7 International Journal of the
Sociology of Law 225