Review

Reviewed Work(s): Fundamental Principles of the Sociology of Law by Eugen Ehrlich and
Walter L. Moll
Review by: Sidney Post Simpson
Source: Harvard Law Review, Vol. 51, No. 1 (Nov., 1937), pp. 190-194
Published by: The Harvard Law Review Association
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Igo HARVARD LAW REVIEW [Vol. 51

FUNDAMENTAL PRINCIPLES OF THE SOCIOLOGY OF LA

Translated by Walter L. Moll.2 With an introductio
Harvard Studies in Jurisprudence. Volume V. Camb

versity Press. 1936. Pp. xxxvi, 54I. $5.00.

The sociological movement in jurisprudence may be

publication of Montesquieu's L'Esprit des Lois in i750

positivist sociology of Spencer and his followers and som

of Holmes,5 it is a movement which has had its major d

generation. That development has taken place in larg

the Atlantic; it is only necessary to recall such names
and to point out that the present-day realist moveme
prudence is largely in direct line of descent from the s
modern sociological jurisprudence has by no means been
can phenomenon. The work of Tarde 6 in France and
Ehrlich in Germany and Austria has been of significa
work of American jurists. The present excellent tra

Grundlegung der Soziologie des Rechts, although appeari

after its original publication, is thus especially welcome
Eugen Ehrlich was born in Czernowitz, in the Duchy o
of the Austro-Hungarian Empire and now part of Roum
his doctorate in law at Vienna, and, after some years as

professor of Roman law at Czernowitz in 1897. His wr

a significant paper on the tacit declaration of the wil
concluding with an article published posthumously in t
tensive and important, the most significant being the
published in 1913, and Die juristische Logik, publishe
in I922, in the sixtieth year of his age, broken in health
the war as Moseley at Gallipoli and as great a loss to t
The basic thesis of the volume is stated by Ehrlich t
as well as at any other time, the center of gravity of leg
in legislation, nor in juristic science, nor in judicial d
itself." 10 To one who has not read the book, this thesi
as to be meaningless or at best to be an obvious platitud
has been read, the statement takes on a different colo
equity, it aids recollection and sums up an attitude even
large concrete content. And Ehrlich's book is full of co

1 Late Professor of Roman Law, University of Czernowi

2 Professor of Law, George Washington University.
3 University Professor, Harvard University.

4 See HOLMES, Montesquieu in COLLECTED LEGAL PA

Ehrlich, Montesquieu and Sociological Jurisprudence (1916)

5 E.g., in The Path of the Law (I897) Io HARV. L. REV. 45

LEGAL PAPERS (1920) I67, I84-87; Law in Science and Sc

HARV. L. REV. 443, 452, COLLECTED LEGAL PAPERS (1920) 2

6 Especially LES TRANSFORMATIONS DU DROIT (8th ed. 192
7 Especially RECHTSWISSENSCHAFT UND SOZIOLOGIE (9I
8 DIE STILLSCHWEIGENDE WILLENSERKLXRUNG (1893).

9 The Sociology of Law (1922) 36 HARV. L. REV. I30.

10 P. xv. Ehrlich says: "It is often said that a book must be written in a
manner that permits of summing up its content in a single sentence." He then
gives the sentence quoted in the text as a summary of his book.

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1937]

BOOK

REVIEWS

19I

ing throughout the wordy abstract

on Jurisprudenz and Rechtsphiloso
It is central to Ehrlich's argumen
which persons in society order the
according to which courts decide c

the law (die Tatsachen des Rechts

associations "-- families, clans, re
parties, corporations, labor unions,
ness relations, etc. - largely indep
is the " inner order of the [social]

law ".11 The courts decide cases in the first instance on the basis of " the

facts of the law ", and it is only later that, as a result of juristic effort, th
norms for decision developed by the courts are universalized and precise
stated as " legal propositions ". When legal propositions are formulated, they

to be sure, may effect the inner order of the social associations and so the fa

of the law, but the facts of the law continue to be of primary importan
This is true, says Ehrlich, even though the state - the largest and most incl
sive of the several associations - intervenes by legislation. Most legislatio
especially in the form of the Continental codes, merely gives a statutory for
to the legal propositions developed by jurists and judges on the basis of t
facts of the law. In Ehrlich's phrase, such legislation is " non-state law ".

Moreover, the social sanctions behind the legal order, not the sanctions

punishment or civil execution behind the rules laid down by the state for t
decision of lawsuits, are principally effective in bringing about a society go
erned by law. Only where we are dealing with " state law ",13 which Ehrlich
defines as " law created by the state through legislation ,14 mainly in the pa
in such fields as taxation and military affairs but more recently in the field
social legislation, do we find important reliance upon coercion by the for
of political society as the effective power behind the law.
It will be observed that Ehrlich uses " law" in a sense distinctly foreign to
the analytical definitions which are familiar to most Anglo-American lawyer
Pollock's " sum of rules of justice administered in a state and by its autho
ity ",15 Gray's " rules which the courts . . .lay down for the determinati
of legal rights and duties ",16 Holmes'" prophecies of what the courts will do
fact ",17 - these definitions of " law " refer solely to what Ehrlich calls " leg
propositions "; and it may be best that we reserve the term for such use
legal discourse. But while Ehrlich's use of " law " differs from these analytic
definitions in including rules according to which men in society act althoug
such rules may not be enforced in the courts, he does not merge law and eth
as did the natural law jurists of the seventeenth and eighteenth centuries. H
" living law " describes how men in society conduct themselves in fact unde
ordinary circumstances; it does not lay down rules as to how they ought
act according to some assumed absolute ethical standard. It resembles in o
11 P. 37.
12 Ausserstaatliches Recht. See p. 13, n.I.
13 Staatliches Recht.

14 The Sociology of Law, supra note 9, at I36. (Italics mine.)

I73.

15 FIRST BOOK OF JURISPRUDENCE (I896) I7.

16 THE NATURE AND SOURCES OF THE LAW (2d ed. 1921) 84.
17 The Path of the Law, supra note 5, at 461, COLLECTED LEGAL PAPERS (I920)

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192 HARVARD LAW REVIEW [Vol. 51

aspect Pound's " law in action ", as distinguished from the

which consists of legal propositions; but it is a broader

action means the law in the books in action, while Ehrlich

never have been in the books at all- indeed, the contra

books.18 As Professor Page pointed out shortly after the o

of the present volume in I9I3,19 Ehrlich's dichotomy bet
and the law of the courts undoubtedly was developed pa
fact that large fractions of the very mixed population of

nians, Roumanians, Germans, Slovaks, Jews and gypsie

many decades to follow their own customs without regar
of the Austrian Civil Code of 1811, which attempted to
for the Austro-Hungarian Empire. But the theory of a " l
by and ruling society, as distinguished from rules for deci
oped by courts or laid down by legislatures, is not one wh
validity upon the peculiar conditions in a relatively small
Roumania. The distinction may be as significant for the Un
it was for Bukowina in I9I3.20 To readers concerned with
and improvement of American law, I commend especially
ter, entitled The Study of the Living Law,21 with its emp
for study of the "modern legal document " -what kind
wills, for example, are actually being made and why 22 -an
need for " direct observation of life, of commerce, of cust
of all associations, not only of those that the law has re
those it has overlooked and passed by, indeed even of th
approved." 23 Law, and jurisprudence as a critique of law
the rules in the books if any real progress toward a legal
times is to be made. Otherwise, one might as well try to s
as that of the sit-down strike by a Restatement. To be sur
investigation of the living law outlined by Ehrlich is crude
many respects. This book, it must be remembered, da
methods of social investigation have progressed materially
of a century. Some of Ehrlich's proposals as to method s
to us now as some of Montesquieu's methods seemed crude
at the same time perhaps as suggestive.

18 See e.g., pp. 370-71, referring to the actual existence

peasant families in Bukowina of patria potestas and of the Sa

family community, both " absolutely irreconcilable" with
Austrian Civil Code. Ehrlich regards both these phenomena

law of Bukowina.

19 Page, Professor Ehrlich's Czernowitz Seminar of Living Law (I9I4) PROC.

ASS'N AM. L. SCHOOLS 46.

20 E.g., "in the steel industry, cancellation of certain types of future orders is
customarily allowed by the seller-producer, though the buyer may hold the producer
to the contract ". SUMMARY OF STUDIES IN LEGAL EDUCATION BY THE FACULTY OF

LAW OF COLUMBIA UNIVERSITY (1928) I62. Compare Ehrlich's statement: "The

living law is not the part of the content of the [legal] document that the courts
recognize as binding when they decide a legal controversy, but only that part which
the parties actually observe in life ". (p. 497)
21 pp. 486-506.
22 Cf. Isaacs, Some Thoughts Suggested by the Restatements, Particularly of
Contracts, Agency, and Trusts (1936) 8 AM. L. SCHOOL REV. 424, 428.
23 p. 493.
24 See, Ehrlich, Montesquieu and Sociological Jurisprudence, supra note 4, at
596-98.

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1937] BOOK REVIEWS 193

The weakest aspect of Ehrlich's book

mean that his work would be better f

introduction usual in German books on j

a consistent underlying philosophy, but

problem of jurisprudence - the proble

weakness is most apparent in his chapte
cept of Justice.26 Ehrlich appears to re
in the juristic development of legal pr
to the living law.27 Justice " demands th
tion, and possession ", as established b
conformity to the probable future deve

whether society-either the actual soc

society of the future - is a just society,

although the problem is hinted at in the

discussion of " individualism and collec

justice which is an expression of " social

The general current of thought of Ehr
lated to present-day tendencies in Amer

encies on the Continent. A recent reviewer has said with substantial truth

that the book " has not become, in Germany, a starting point for a new trend
in legal investigation ", and has suggested as the reason that Ehrlich's theories
are " so contestable and so contradictory "; 31 but I think the reason lies rather
in the fact that the book appeared just one year before the outbreak of the

World War. Inter arma leges (et jurisprudentia) silent; the post-war period
seems to have bred a jurisprudence of escape into such fields as that of the
" pure science of law " of Kelsen; and recent developments in Germany have
destroyed for the present any hope of progress in jurisprudence as a social
science which looks critically at the existing social order. It is not to be expected that Ehrlich's cosmopolitan and detached intelligence will appeal to
exponents of a jurisprudence which must perforce reject reason at the behest
of authority. That this prophet is without honor in his own country is an
additional reason for gratification that his work has now been made readily
available to the lawyers of the common-law world.
The task of making the book thus available has been admirably done. Pro-

fessor Moll has proved himself as a translator, causing one to wish that all

the translators for the Modern Legal Philosophy Series had been as competent.
25 A similar view is expressed in somewhat greater detail in F. S. Cohen, Book
Review (1937) 3I ILL. L. REV. 1128, 1132.
26 Pp. 2 4-44.
27 See p. 214. There is, indeed, something reminiscent of Dr. Pangloss in the
suggestion that "the fact that there is no better order in existence is always a
cogent proof that the association, in its given spiritual and moral condition, and in
view of the economic supplies it has had at its disposal, has been unable to create a

better order." (p. 62)

28 P. 218.

29 See p. 243.
30 Pp. 234-42.

31 Timasheff, Book Review (1937) 2 AM. Soc. REV. I20. This reviewer's case

for the " contestable " and " contradictory " character of Ehrlich's theories seems
to me not sufficiently made out; and the review indicates either a distinctly inadequate comprehension of Ehrlich's thought on the reviewer's part, or, perhaps, a
shrinking from concrete descriptive investigation which seems characteristic of a
certain type of theoretical sociologist.

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194 HARVARD LAW REVIEW [Vol. 51

Another reviewer has called attention to a few doubtful renditions; 32 I am

suggesting a few others in a footnote.33 None is of real importance. Professor Moll has succeeded admirably in his avowed purpose of presenting
" Ehrlich's thought without any admixture of his own thoughts and in a way
that makes the same impression upon the American reader that Ehrlich's words

make upon the reader of the original German ".34 His occasional footnotes,
too, are useful, and the index is remarkably good.
If jurisprudence is what I conceive it to be, the applied science concerned
with determining how law is best to be made use of as a means of social control and organization, it must ultimately seek a firm basis in a science of society

and in a theory of values. Both the scientific and the normative basis are
necessary. We must know how existing law works, how it affects men in so-

ciety, what effects conscious legislative or judicial changes in the law will
produce. We must also have some basis for value judgments, unless indeed
we are to accept the view that the only function of the jurist is to carry out
the purposes of the dominant group of the society for the time being. At the
present time, neither foundation for an effective applied science of jurisprudence exists in any large measure; but it is not beyond hope that both may
be developed, and that jurisprudence can change from a discipline not greatly
different from the traditional medicine of the Middle Ages or the theology of
the post-Reformation into an applied science resting on bases comparable to

those of medicine and engineering today. Ehrlich's contribution to the task

of building a scientific foundation for an effective critique and improvement of

the positive law - for an applied science of jurisprudence - is an important

one. To build such a foundation we must know what he calls the " living law "

as well as the law in the books. "To be sure, to ask a jurist to learn from
actual observation and not from sections of a code or from bundles of legal
papers " (or, I may add, from reading more and more cases) "is to make an
exacting demand upon him; but it is unavoidable ", and I hope and believe
with Ehrlich that " marvelous results can be achieved in this manner ",35 pro-

vided that the observer knows how to observe with scientific caution and ac-

curacy and provided that he does not naively assume that he can settle ethical
questions by observations of the " facts of the law ".
SIDNEY POST SIMPSON.*

32 F. S. Cohen, supra note 25, at II34.

33 Massgebend might be more understandable as "authoritative" than as
"normative" (p. 85); Gemeinde, translated as "commune" (p. 393), might per-

haps better be " municipality "; " die Normen des Kirperschaftsrechts und sonstigen
Gemeinschaftsrechts ", translated as "the norms of the law of corporations and
other communities " (p. 456) might better be " the norms of the law of corporate
bodies and other associations ". "Gervohnheitsrecht" (p. 440) is an obvious if

somewhat startling misprint. Apparently Professor Moll did not deem it worth
while to correct the author's misspellings of the names of English judges (" Hardwick " and " Stowall ", p. 290), although he has introduced one misspelling of his
own (" Shelling ", p. 330). It would have been worth while, I think, to translate
Ehrlich's French and Latin quotations as well as his German quotations.
34 Pp. xii-xiii.
36 P. 498.
* Professor of Law, Harvard Law School.

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