Eugen Ehrlich – Living law

Professor Eugen Ehrlich of Austria is another sociological jurist who expounded the organic
concept of living law. Ehrlich while following the Savigny’s line of thinking does not hang on
the past but has his views on the present society. The ‘living law’ as conceived by Ehrlich is
the ‘inner order of associations’ that is the law practiced by society as opposed to law enforced
by the State. As volksgeist was the central theme of Savigny’s theory, the ‘living law of the
people’ was the pivot of Ehrlich’s theory.
The central point in Ehrlich’s theory is that ‘the law of a community is to be found in social
facts and not in formal sources of law’. He says: “At present as well as at any other time the
centre of gravity of legal development lies not in legislation nor in juristic science, nor in
judicial decision, but in society itself.”
The law in the formal sources, like legislation and precedent, does not reflect the actual life of
the people. By reading the Advocates Act one cannot have a full knowledge of the actual rules
of conduct observed by the legal profession. There are many norms followed by the people
and deemed binding on them which are not embodied in the law.
State is an organization of the people, but it is not the only one, there are several others like
the family, the village, the chamber of commerce, the trade union. These organizations also
have norms to regulate the conduct of individuals. They are strictly observed by the
individual because of the social pressure behind them. They also form rules of conduct and
therefore part of ‘the living law of the people’
Ehrlich says “the law is much wider than legal regulations”. He illustrated the gap between the
formal law (law in legislation and precedent) and the living law (law as it actually lives or
functions in society). A commercial usage comes into practice as a matter of convenience and
usefulness, normally it takes a long time for the court to declare it in a precedent, and a longer
time for legislation to embody it in a statute, very probably, by that time new usage may have
grown in practice. The ‘formal law’ thus lags far behind the ‘living law’.
Friedmann says that Ehrlich theory relates law more closely to life in the society. It concerns to
present rather than the past, and tries to analyse the social function of law. In giving too
much prominence to social facts, Ehrlich has confused custom as a source of law with custom
as a type of law.
In primitive societies, customs were the laws, but in a modern society, a custom does not
become an enforceable law merely because it is observed in practice. It ignores the fact that
legislation does very often, and case law does at times, impose a new principle which the
society follows thereafter in practice, eg. Prohibition Act, and Donoghue v. Stevenson. As the
Welfare State extends its activities, new legislations are made to cover all possible aspects of
the social life

Ehrlich was concerned with the impact of laws on various aspects of the society. According to him the laws
to be found in formal legal sources such as statutes and decided cases give only an inadequate picture of
what really goes in a community for the norms govern life are only imperfectly and partially reflected in
them. The positive law cannot be understood apart from the social norms of living law. The living law as
discussed by Ehrlich is the inner order of associations that is the law in practice of the society as opposed
to the law enforced by the state. To Ehrlich living law is that which dominates the life of the society even
though it has not been put forward as a basis of argument in legal prepositions. He had minimalized the
differences between law and other norms of social compulsion. The difference is relative and smaller than
usually asserted because the essential compulsion behind legal no less than other social norms is social
compulsion not state authority. He drew a distinction between norms of decision that correspond to that
which is traditionally understood to be the laws and norms of conduct that govern societal life.

If one wants to study the living body of laws he must turn to marriage contracts, leases, contracts of
purchase, wills etc.The real law consists not of prepositions but of legal institutions related by the life of the
groups within society. To Enrlich a jurist should study the factory, the bank, the railroad; the great landed
estate, the labor union the association of employees etc. to know the real law. The living law of society has
to be sought outsider the confines of formal legal material. One learns little of actual law in factories by
reading only Factory Acts, the enactments and the common law of master and servant, trade unions etc.
One need to go to the factory to observe law for formal law is followed, modified, ignored and supplemented.

There is no doubt about the fact the Ehrlich’s work is full of stimulating suggestions for a
scientific approach to law which relates the law more closely to the life of society but his works
show some weaknesses also. Firstly, it gives no clear criterion by which to distinguish a legal
norm from any other social norm. As Friedmann observes3 ‘the interchangeability of both,
which is an historical and social fact, does not diminish the need for a clear test of distinction”.
Again the stress which he laid for the distinction of living and formal law is an exaggeration. As
said by Dias ‘the distinction between formal and living law is necessary and important. But there
is some danger of a merely verbal discussion as to whether both should be called ‘law’ or only
one, and if so which. He deprived formal law of any creative activity and gave it too much the
appearance of trailing in the wake of social developments. It is true that reforming legislation is
sometimes the formal expression of a tide of public feeling, but it is also true that many norms
of behavior have been given shape and direction by the constant enforcement of law.’
Who was Sir Henry Maine?:-
Sir Henry Maine was a British comparative jurist and historian. He is famous for the thesis outlined
in his book Ancient Law that law and society developed ‘from status to contract.’ He was a
Cambridge Apostle. Shortly afterward, he accepted a tutorship at Trinity Hall. In 1847, he was
appointed a Regius Professor of Civil Law, and he was called to the bar three years later, he held
this chair till 1854. Meanwhile, in 1852 he had become one of the readers appointed by the Inns of
Court.[1]

Stages of Development of law:

1. Law made by the ruler under divine inspiration:-

In the beginning, the law was made by the command of the king believed to be acting under the
divine inspiration of the Goddess of justice. Who was above the law and whose commands must be
obeyed by the inferiors? Rulers are believed to be acting under divine inspiration. And the
laws are made on the commands of the rulers. For example, Themistes of ancient Greek.
The judgment of the king was considered to be the judgment of God or some divine
body. King was merely an executor of judgments of God, not the law-maker.

2. Customary Law:-
In the next stage, the office of the King or Judge was inspired by the heads of the councils. The
priest became a repository of law that circulated the King’s power and claimed the sole monopoly
of knowledge. Therefore, the priest class tried to preserve the customs of race or caste intact. Since
the art of writing was not invented, the customs of the community became law for those who were
united with blood relations. In this way, we notice a special event. The concept of custom is a
development of the theory of Maine emerging behind the mesters or judgments. Then the
commands of King converted into customary law. The custom prevails in the ruler or
majority class. Customs seems to have succeeded to the right and authorities of the king.

3. Knowledge of law in the hands of Priests:-

In the next phase of the development of the law, in order to implement and execute the law inspired
by the Priest class, the King’s right claimed to be learned in law as well as in religion. The priest
class claimed that they remembered the rules of customary law because the art of writing was not
developed till then. The knowledge & administration of customs goes into the hands of a
minority, Due to the weakening of the lawmaking power of the original law-makers like
Priests the knowledge of customs goes into the hands of a minority class or ordinary class.
And the ruler is superseded by a minority who obtain control over the law.

4. Codification:-
Then comes the era of codification marks the fourth and perhaps the final stage of the development
of law. With the discovery of the art of writing, a section of scholars and jurists came forward to
condemn the authority of the priests as law officials. He advocated the codification of the law to
make it accessible and easy to know. It broke the monopoly of the Priest class in matters of
administration of law. The most important codes of the era were Rome’s Twelve Tables, Codes of
Manu which were a mixture of moral, religious, and civil laws, Twelve Tables in Rome, Attic Code
of Solomon, Hebrew Code, Codes of Hammurabi, etc.

Types of Societies:-

According to Henry Maine societies are two types; Progressive Societies and Static Societies.

Progressive Societies:-

According to Henry Maine, those societies which go beyond the fourth stage as developing their
laws, by new methods are called progressive societies. Progressive societies develop their laws by
the three methods namely; Legal Fiction, Equity, and Legislation.

Static Societies:-
According to Maine, when the primitive law has been embodied in a code, there is an end to its
spontaneous development and such communities or societies which do not modify or go beyond the
fourth stage are called static societies.

Criticism:

Maine is criticized for oversimplifying the nature and structure of early society for the
following reasons: Early society does not show an invariable pattern of movement
from the three-stage development of law – from personal commands and judgments of
patriarchal rulers through law as custom upheld by judgments to law as code. The so-
called rigidity of the law has repeatedly be challenged by contemporary
anthropologists who are of the opinion that primitive peoples were adaptable and their
laws flexible.

Criticism Pollock while criticizing Maine’s view says ‘his theory is limited to laws of property
only because personal relations e.g., marriage, minor’s capacity etc, are still matters of status
not of contract. In totalitarian states there has been a strong shift to the status again. In these
countries a contract is allowed which is in any way not in consonance with the state plan or is
otherwise harmful to the society. Moreover individual freedom of contract is curtailed by
social legislations e.g., fixing of maximum working hours and minimum wages, laying down
rules regarding compensation and other conditions of service. The thesis of Maine denying the
title of conscious legislation is disproved by intense and still unabated legislative activity which
provides conscious direction and many a time reverses the deeply rooted trends in society. In
spite of these defects in Maine’s ‘Status of Contract’s doctrine has been upheld by many
jurists. As Bodenheimer puts it, ‘this doctrine is no means his outstanding contribution to
jurisprudence. He has enshrined our knowledge and understanding of legal history in several
respects .In Maine we find a balanced view of history. Savigny explained the relation between
community and law, but Maine went further and pointed the link between the developments
of both and purged out many of the exaggerations which Savigny has made. Maine’s theory
preaches a belief in progress and it contained the germs of sociological approach. Maine
improved on Savigny’s legal theory which explained inter relation between community and
law and also recognized role of legal fictions, equity and legislation in evolution of law, while
Savigny confined his study only to Roman law and its applicability in Germany. Maine looked at
it from broader perspective and studies legal systems of different communities for his
comparative research on evolution and development of lawJurists like Maitland, Vinogradoff
and Bryce were inspired by Maine and they applied his historical and comparative method to
the study of law.
Roscoe Pound Theory Of Social Engineering

Roscoe Pound, a renowned American legal philosopher, was a prominent figure of the Sociological
School of Jurisprudence that arose in the 19th to 20th century as a reaction against the positivist
theory of law. The Sociological School regards societal customs and society itself as sources of law,
arguing that law is not merely about individuals, but about the association of individuals in society.

Pound, who is recognized as the father of this school, supported this idea by introducing his own
concept of Social Engineering based on the Sociological School. In his theory, Pound drew an
analogy between lawyers and engineers, viewing law as a body of knowledge and experience that
can be utilized by "social engineers" such as lawyers and advocates to structure society. He likened
law to engineering by stating that just as engineers use their expertise to give structure to their final
products, the law can be used in the same way to create a structured society that leads to happiness.

Pound believed that the law's primary goal is to establish equilibrium and concord in society, as
individuals always priorities their own interests. In simpler terms, he advocated for maximum
happiness and minimal conflict among members of society when conflicts of interest arise. He
contended that it is the responsibility and purpose of the law to intervene and mediate during such
conflicts between personal interests and communal interests. Furthermore, Pound stressed the
significance of both individual and communal interests, which should receive equal consideration
unless a conflict arises.

The foundation of social engineering theory

It is commonly recognized that laws are established to mold society and govern the actions of
individuals upon whom they are enforced. The objective of creating laws is to strike a balance
between the welfare of society as a whole and that of each individual. Laws also serve the purpose of
regulating human behavior.

The doctrine of law revolves around two key components: society and human beings. It
acknowledges the interdependence between these two elements and endeavor's to create a
harmonious relationship between them by utilizing legal mechanisms to establish a framework for
peaceful coexistence and social stability.

Definition
According to Pound, "Law is social engineering which means a balance between the competing
interests in society," in which applied science are used for resolving individual and social problems."

Analysis of the definition

The term "social" denotes a collection of individuals who come together to form a society, while
"engineering" refers to the practical application of scientific principles through the use of tools and
devices. Pound draws a parallel between the work of lawyers and that of engineers.

The social engineering theory of Roscoe Pound is based on the belief that the law can be used as a
tool to engineer and structure society for the betterment of its members. This theory suggests that
lawyers and advocates are social engineers who use their knowledge and experience of the law to
create a framework for a better society.
Pound believed that law and society are interdependent and that the law's primary objective is to
establish equilibrium and concord in society by resolving conflicts between self-interests and
community interests. According to Pound, the law should be used as a means of social control to
achieve the goals of maximum happiness and minimum friction in society. The social engineering
theory emphasizes the role of law in shaping and improving society, and it asserts that the law should
be used as a tool to create a harmonious and balanced social order.

Roscoe Pound believed that in order to create an effective legal system, the following steps
must be taken when determining the scope and subject matter of the system:

1. Preparation of an inventory of interests, classifying them: This involves identifying and

categorizing the various interests of individuals, groups, and society as a whole
2. Selection of the interests which should be legally recognized: This involves determining which
interests should be protected and enforced by the legal system.
3. Demarcation of the limits of securing the interests so selected: This involves defining the scope
and boundaries of legal protection for the selected interests.
4. Consideration of the means whereby laws might secure the interests when those have been
acknowledged and delimited: This involves identifying the legal mechanisms and tools that can
be used to protect the selected interests.
5. Evolution of the principles of valuation of interests: This involves developing a set of principles
to evaluate the relative importance of the selected interests and to balance them against one
another.

Theory of Social Engineering

He distinguishes three sorts of legal interests:
1. Private Interest

Also known as individual interests, are assertions, demands, or wishes made from the
perspective of the person, according to Pound. According to Pound, individual interests
include:

A. Personality- interest of personality comprises of interests in:

 The physical person,

 Willpower,
 Integrity and Reputation,
 Sensitivities and Privacy,
 Beliefs and Opinions.

B. Domestic relationships:
It's critical to distinguish between an individual's interest in a domestic connection and
the interest of society in structures like the family and marriage. Individuals with the
 following interests:

 husbands and wives,

 parents and children And
 marital interests.

C. Substantive interest, which includes:

 Property Interests,
 Succession, Disposition Of A Will,
 Industry And Contract Freedom,
 Promised Benefits
 Favorable Interpersonal Relationships,
 Associational Freedom, And
 Job Stability

2. Social Interest

He defined public interests as claims, demands, or aspirations viewed from the perspective of
living in a politically constituted community. According to Roscoe Pound, the key topics of
popular attention are:

a. Interests of the state as a legal entity, which include Protection of the interests of the
state as a legal person claims to property that has been bought and held for corporate
purposes by a politically organized organization.
b. State interests as a custodian of social interests, including supervision and
administration of trusts, charitable endowments, protection of the natural environment,
territorial waters, seashores, regulation of public employment, and so on to use things
that are available for public use, seem to overlap with social interests.
c. Social Interest: Social interests are the claims, demands, or wants that are generalized
as claims of social groupings and are thought of in terms of social life. Social interests
allegedly consist of:

i. The social interest in ensuring general safety encompasses the branches

of law related to maintaining:

 Public Safety,
 Public Health,
 Peace And Order,
 Protection Of Property, And
 Ensuring Secure Transactions

ii. The social interest in ensuring the security of social institutions includes:

 Public Safety,
 Public Health
 Peace And Order,
 Protection Of Property, And
 Ensuring Secure Transactions.
 Safeguarding Domestic,
 Religious, Political, And
  Economic Institutions

iii. The social interest in promoting general morals includes preventing and
prohibiting activities such as prostitution, gambling, and excessive drinking.
iv. The social interest in conserving social resources involves protecting and training
dependents and those with disabilities, conserving human resources, and
rehabilitating delinquents, as well as providing for the economically dependent.
v. The social interest in promoting general progress has three aspects: economic
progress, political progress, and cultural progress.

1. Political progress includes freedom of speech, association, opinion, and

criticism which are given under Article 19 of the constitution.
2. Economic progress involves freedom to use and sell property, free trade,
and encouragement of inventions.
3. Cultural progress covers freedom in science, literature, and the arts, as
well as promoting higher education and aesthetics.

vi. The social interest in individual life refers to each individual's ability to lead
a complete human life in terms of their:

 Political,
 Physical,
 Cultural,
 Social, And
 Economic Aspects

Jural postulates are basic assumptions or beliefs on which the legal system is based. In 1919, Pound
summarized the postulates which every individual in civilized society must be able to take it for
granted. Roscoe Pound identified several jural postulates that he believed to be fundamental to the
legal system, including:

1. In a civilized community, men must be able to presume that others would not intentionally
harm them. E.g. Assault, battery, wrongful restraint etc.
2. In a civilized society, people must be able to trust that those who engage in a certain behavior
will act responsibly and not pose an undue risk of harm to others. E.g. Negligence.
3. The individual has the right to use and benefit from what they have created through their own
labor, as well as what they have obtained through the current economic system. E.g.
agricultural land and usufruct as property.
4. The individuals with whom one interacts in daily life will behave honestly and with good
intentions, such as refraining from making false or harmful statements about others. E.g.
Defamation
5. In order to avoid harm to others, a person is responsible for ensuring that things within their
control remain on their property and do not escape. E.g. Ryland v. Fletcher case.

Application of roscoe pound theory of social engineering in current scenario:

Roscoe Pound's theory of social engineering remains relevant in the current scenario, as it
emphasizes the need for the law to recognize and protect a wide range of interests, including public
and social interests, along with private interests.

In the current context, the theory can be applied to various areas such as:
 1. Environmental Protection:
The recognition and protection of the environment as a social interest can be seen as an
application of Roscoe Pound's theory. This includes the implementation of laws and
regulations that aim to ensure the preservation of natural resources and reduce pollution
levels.

2. Consumer Protection:
The law can also be used to protect consumer interests by ensuring that products and services
are safe and do not pose a risk to the health and well-being of the public.

3. Workers' Rights:
The recognition of the interests of workers as social interests is also an application of Pound's
theory. This includes the implementation of laws that protect workers' rights to fair wages, safe
working conditions, and the freedom to form unions.

4. Public Health:
The law can also be used to protect public health by regulating the production, distribution, and
sale of goods that can affect the health and well-being of the public, such as food, drugs, and
tobacco.

5. Social Welfare:
The implementation of social welfare programs, such as healthcare, education, and social
security, can also be seen as an application of Pound's theory, as it recognizes the social
interest in providing basic necessities to all members of society.

Overall, Roscoe Pound's theory of social engineering provides a framework for the law to address
and protect a wide range of interests, ensuring the well-being and progress of society as a whole.
Criticism
Roscoe Pound's theory of social engineering has been subject to some criticisms over the years.
Some of these criticisms are:

1. Lack of clarity
Pound's theory has been criticized for lacking clarity in its definitions and classifications of
interests. Some have argued that his categorization of interests is too broad and vague,
making it difficult to apply in practice.

2. Overemphasis on social engineering

Some scholars have criticized Pound for placing too much emphasis on the role of law in
social engineering. They argue that he neglects the importance of individual rights and
liberties, which should be protected even if they do not serve the greater social good.

3. Failure to consider power dynamics

Critics argue that Pound's theory fails to adequately consider power dynamics and the ways in
which the law can be used to oppress certain groups. For example, laws that are meant to
protect public health and safety could be used to discriminate against marginalized
communities.

4. Limited scope
Some critics argue that Pound's theory has a limited scope and does not take into account the
complex social and economic factors that shape legal systems. They argue that a more holistic
 approach is needed to understand the role of law in society.

5. Lack of empirical evidence

Finally, Pound's theory has been criticized for its lack of empirical evidence. Some scholars
argue that his ideas are based more on intuition than on empirical research, making it difficult
to assess their validity in practice.

Conclusion
Law serves as a crucial tool in resolving conflicts between social and individual interests, which exist
simultaneously and hold equal importance. Although Roscoe Pound's theory of Social Engineering
was proposed for American society, it is now widely adopted across the world for dispute resolution.
India has also implemented this concept to ensure societal welfare.