The Sociology of Law

Author(s): Eugen Ehrlich and Nathan Isaacs

Source: Harvard Law Review , Dec., 1922, Vol. 36, No. 2 (Dec., 1922), pp. 130-145
Published by: The Harvard Law Review Association

Stable URL: https://www.jstor.org/stable/1329737

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I30 HARVARD LAW REVIEW

A thorough student of Roman law and the modern codes,

well acquainted with English law, Professor Ehrlich lived and
taught in a place where modern law and primitive law came
together and a modern complex industrial society jostled with
groups of much older types. Thus he had exceptional advantages
which he did not fail to improve. His studies of the role of non-
litigious custom in the development of law have put historical
theories of law upon a surer foundation.
Equally at home in German, French and English he wrote for
scientific legal periodicals throughout the world. His paper,
Montesquieu and Sociological Jurisprudence, 29 HARVARD LAW
REV[EW, 582, printed exactly as received from him, attests his
mastery of English. He had accepted an invitation to come to
America and deliver a course of lectures at the Lowell Institute
and to address the Association of American Law Schools in
December, I9I4, but was prevented by the outbreak of the war
which cut off Czernowitz from the rest of the world. At the
close of the war it was hoped that he might be able to accept
a renewed invitation. Unhappily the hardships incident to the
war in which Czernowitz was fought over backward and forward
repeatedly, undermined his health and he did not live to be
restored to his work in the re-established university. His death
while still in the fulness of his powers is a serious loss to the
science of law.

THE SOCIOLOGY OF LAW

MAY I not begin these observations with a q

there such a thing as a worldwide Law? Or a
Laws, differing in various states, among variou
Most jurists and many laymen would be inclined
answer the second question in the affirmative; the
ways heard of a French, an English, a Roumanian l
it seems very natural for them to believe in the m
of Laws. Were one to suggest that over and ab
these varieties there must exist some universal
they would answer that this is a conception which

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 THE SOCIOLOGY OF LAW I3I

the long-exploded Law of Nature in which no scientific jurist

believes any more.
What could they say, however, to the following counter-
suggestion? Suppose we were undertaking a trip into a land of
whose law we knew nothing. We should assuredly expect to
find certain things in this land: marriage, family, possession.
We should certainly expect to get goods for our money in the
shops, to rent a room, to be able to make or receive a loan, to
find that property is inherited after one's death. All these mat-
ters, marriage, family, possession, contracts, succession, are legal
affairs unthinkable without a law. And if they occur among
all civilized peoples in every civilized state, it seems obvious
that there must be something in them common to all legal
systems. Among uncivilized and half-civilized peoples we
should miss some of these things, should find others in a
hardly recognizable condition, but even there the whole scheme
will hardly be absent. In some respects an exception is con-
stituted by Bolshevik Russia of today, but this exception is
very instructive because, as I hope to show, it is one of those
that proves the rule.
As so often happens where diametrically opposed views are
expressed, so here too affirmation and negation rest upon the
use of similar words to designate different things with the re-
sult that the opposing parties talk past each other. Those
who proclaim a multiplicity of Laws understand by "Law"
nothing other than Legal Provisions, and these are, at least
today, different in every state. On the other hand, those who
emphasize the common element in the midst of this variety are
centering their attention not on Legal Provisions but on the
Social Order, and this is among civilized states and peoples
similar in its main outlines. In fact many of its features they
possess in common even with the uncivilized and the half-
civilized.
The Social Order rests on the fundamental social institu-
tions: marriage, family, possession, contract, succession. A
social institution is, however, not a physical, tangible thing
like a table or a wardrobe. It is, nevertheless, perceptible to
the senses in that persons who stand in social relations to each
other act in their dealings according to established norms. We

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I32 HARVARD LA W REVIEW

know how husband and wife, or members of a family, con-

duct themselves toward each other; we know that possession
must be respected, contracts performed, that property after
the death of its possessor must pass to his relatives or those
persons mentioned in the last will, and we behave accordingly.
If we travel in a strange country, of course we encounter some
deviations from the system we are accustomed to and become
involved in difficulties as a result, but soon we become suffi-
ciently instructed through what we see and hear around us to
manage to avoid collisions, even without acquiring a knowledge
of the provisions of the law. A Legal Provision is an instruc-
tion framed in words addressed to courts as to how to decide
legal cases (Entscheidungsnorm) or a similar instruction ad-
dressed to administrative officials as to how to deal with par-
ticular cases (Verwaltungsnorm). The modern practical jurist
understands by the word "Law" generally only Legal Provi-
sions because that is the part of Law which interests him pri-
marily in his everyday practice.
Is a legal system possible without Legal Provisions? In
other words, is a legal system imaginable which consists of
nothing other than the Social Order? This question must be
answered in the affirmative if only for the reason that society
is older than Legal Provisions and must have had some kind of
ordering before Legal Provisions came into existence. If one
reads Tacitus' Germania he finds there a rather comprehen-
sive description of ranks (princes, nobility, the free, the half
free and the slaves); something, too, about family relation-
ships; then the famous puzzling passage about the landhold-
ing system of the Germans, some suggestions about their con-
tracts and more detailed remarks about inheritance: but one
looks in vain for any instructions to courts for the settlement
of litigation. Indeed such instructions would have been hardly
possible with the primitive court organization of the old Ger-
mans. And the same result is reached if one seeks instruction
concerning the law of other uncivilized or half-civilized people
out of books of travel or reports of missionaries; he learns
much about the regulation of marriage, family, and the ranks
and stations in life, about landholding systems, contracts and
succession, but at the same time he finds nothing that can be

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 THE SOCIOLOGY OF LAW I33

compared with the Legal Provisions with which we are fa-

miliar.
So it is throughout the earlier stages of the evolution of
peoples. If, however, we turn our attention on the same
peoples at later periods, it becomes manifest that they have
accumulated a large number of Legal Provisions, but that
these cannot possibly embrace the whole of their social order.
The Lex Salica Francorum includes in its numerous paragraphs
all that the Salic Franks ever had of Legal Provisions. But
if we compare them, for example, with that which is said of
the law of the Franks in Brunner's Rechtsgeschichte, it be-
comes clear that only a very small portion of the latter is taken
from the Lex Salica. The greater part rests upon facts in
works of history, documents and other sources. That is to
say, only a very small portion of the law of the Franks of
that time had been put together in the form of Legal Pro-
visions. And since that time it has hardly been otherwise.
Even today the whole law is incapable of being included in
Legal Provisions. True, the mass of Legal Provisions has in
recent centuries grown to such an extent that there is cer-
tainly no jurist in the world who can master all of them even
for his own state without losing his mind. But life's content
is even richer. To embrace the whole variegated body of
human activities in Legal Provisions is about as sensible as
trying to catch a stream and hold it in a pond; the part that
may be caught is no longer a living stream but a stagnant
pool-and a great deal cannot be caught at all.
This follows from the history of the Legal Provision which
I have expounded in several of my writings, particularly in
the Grundlegung der Soziologie des Rechts and in the Juris-
tische Logik. In the so-called pre-history of law there are as
yet no courts. Quarrels are either peacefully settled through
compromise or dragged out in bloody feuds. Generally they
are based on murder, mayhem, kidnapping, rape, theft, cheat-
ing. Courts begin to appear later. When the parties under
the pressure of their environment reach the point of taking it
for granted that their quarrel must be peacefully settled and
yet cannot arrive at an agreement as to the compensation for
which the injured party should abandon the feud, they submit

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134 HARVARD LAW REVIEW

to the judgment of one or more men in

fidence. The duty of these is to mete out the compensation
which will serve as damages. This is generally expressed in
terms of the number of head of cattle for which one may take
it for granted that the injured party will abandon the feud.
The amounts of these penalties are remembered; if at a
later time a similar case arises, it becomes increasingly self-
evident that a complainant must be satisfied with the esti-
mates of what the culprit should pay as worked out in earlier
cases. Such traditional penalties or "Compositions" are fre-
quently collected and published by a public authority such as
a folk assembly; these collections are mere tables of penalties.
The German folk-laws, the so-called Leges Barbarorum, were
chiefly such tables of penalties. Their contents were some-
thing like this: If a freeman kills a nobleman, he pays so
many pieces of gold; if one strikes out the eye of another, he
pays so much; if he strikes out both eyes, so much; if one
steals a cow, he pays so much; if he steals a hen, he pays so
much. The fragments of the Roman Twelve Tables that have
come down to us come, of course, from several stages in the
evolution of law, but the oldest clearly belong to such a table
of penalties.
This was the original form of Legal Provisions. It does not
serve its purpose long. The economic life of the folk expands,
property increases, commerce and industry flourish, and thus
there arise legal quarrels of a type altogether different from
the earlier ones. They put before the judge new problems for
the solution of which a much greater mental effort is necessary
than theretofore. Judicial decrees begin to awaken general
interest. There are people who write them down, gather them,
arrange them, and at the same time on all sides there arises
a demand that every new legal case that is at all similar to
an older one shall, so far as possible, be decided according
to the same Legal Provisions. (Here is the principle of the
stability of norms for decision). Thus those persons who
master the learning of the decisions achieve a great influence
in the development of the law; they become jurists who, oc-
casionally as judges, but more often as writers of opinions and
counsellors, determine the course of decisions. In this way

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 THE SOCIOLOGY OF LAW I35

judicial decisions become Legal Provisions for they contain

the norms for the decision of future cases.
The Legal Provision in its original form is thus a judicial
decision. Every developed legal system has passed through
a period in which Legal Provisions were put forth chiefly in
judicial decisions, and even the law of such progressive peoples
as the modern English and Americans is in a very essential
portion, the common law, still in that stage. The Legal Pro-
visions of the English common law must in every case be
sought out in the hundreds and thousands of volumes of
English and American judicial decisions. But the jurists do
not stop with the mere gathering and arranging of judicial
decisions. In course of time they become writers and teachers
of law, and in these capacities they develop the Legal Pro-
visions further, chiefly through generalization. In judicial de-
cisions there are essential and unessential matters. Thus it may
be said in one that the plaintiff had red hair or that the de-
fendant was married, although neither matter is relevant.
The jurists cast aside the non-essentials and thereby make a
Legal Provision of general application. The Legal Provision
of the Twelve Tables about homicide through negligence be-
gan with these words: "Si telum manu fugit magis quam jecil
-if the javelin slipped from his hand before he threw it."
Here one can still see the traces of the original case for which
the judicial sentence was shaped. Jurists declared, however,
that it made no difference whether the accused had allowed a
javelin to slip or had been negligent in any other way; and
thus arose in jurisprudence the Legal Provision: "Whoever
negligently has caused the death of a human being." But then
jurists sought at times to anticipate the courts and to shape
Legal Provisions for cases which had not yet been decided by
the courts. In this manner as a matter of practice new Legal
Provisions may arise in jurisprudence itself.
This juristic law has in many cases displaced all other law
-so in ancient Rome, in Italy, Germany, France, the Nether-
lands, in the sixteenth and seventeenth centuries, and partly
even to the end of the eighteenth century, in many parts of
Germany even in the nineteenth century. Courts no longer
relied upon earlier judicial decisions or statutes, but only on

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I36 HARVARD LAW REVIEW

the writing of jurists. But these writi

heap of hundreds and thousands of volu
tions and disputed points. And so it
tempt to bring order out of this cha
state. This above all did the Roman em
second part of the Corpus Juris, his
(the Pandects) consists of excerpts from
jurists in which he does away with c
possible and settles all disputed point
trodden by the law-givers of European
eighteenth and in the nineteenth cent
the Prussian Landrecht, the Code Napol
the German Biirgerliches Gesetzbuch, th
and the many imitations of these work
these works legislation in the proper s
collections of already existing juristi
cases in which their promulgators atte
tion for a particular case which had ne
rather unusual occurrence, they were
had long been in the habit of doing. Thus they gave us
chiefly juristic law. It is for this reason incorrect to suppose,
as many do, that all law is created by the state through its
statutes. The great mass of law arises immediately in society
itself in the form of a spontaneous ordering of social relations,
of marriage, the family associations, possession, contracts, suc-
cession, and most of this Social Order has never been- embraced
in Legal Provisions. Legal Provisions, on the other hand,
come into existence through judicial pronouncements or
through jurisprudence as judicial or juristic law. The statute
books have, of course, the form of state-made statutes, but so
far as their content is concerned, they are almost entirely
works of juristic law.
One must not, however, conclude from this that there is no
such thing as state law, that is to say, law created by the
state through legislation. The state brings law into existence
by creating institutions through its power of compulsion (in
the last analysis military) and provides them with a legal
regulation. State law includes, first of all, the state consti-
tution itself then all law involving the army, finance, police

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 THE SOCIOLOGY OF LAW I37

regulations for the public health, safety, and morals, likewise

the law of modern social welfare and social insurance. State
law consists for the greater part of rules of administration (in-
structions addressed to administrative officials). Still it in-
cludes also rules of decision (instructions to the judge as to
how to proceed and how to decide in litigation).
Legislation is commonly considered the oldest, the original,
the peculiar task of the state. In reality, however, the state
becomes a law-giver only late in its existence. The original
state is a purely military center of might and is concerned
neither with law nor with courts. The original state, so far as
it is not yet Europeanized, knows no legislation. We speak,
it is true, of the legislation of Moses, of Zarathustra, of Manu,
of Hammurabi, but these are only collections of judicial and
juristic laws together with numerous religious, moral, cere-
monial and hygienic provisions such as we see in popular or
popular-scientific writings. An oriental despot can, if he
pleases, level a city to the earth or condemn a few thousand
human beings, but he cannot introduce civil marriage into his
kingdom. Even the popular assemblies of the ancient city-
states made no statutes, but only rules for certain particular
cases, for war and peace, the imposition of taxes, treaties, re-
ception and sending away of foreign representatives. True
legislation we come upon for the first time in Athens where an
accurate distinction was made between a decision concerning
a particular rule (7q5to-Aa) and a decision containing a Legal
Provision (voios), and then in perfect development in ancient
Rome. The German states of the middle ages stand at first
under the influence of Roman tradition. For this reason we
come across a kind of legislation in the early middle ages, the
royal capitularies; but the further we proceed from antiquity
in time, the rarer become the capitularies until at last every
vestige of legislation disappears. At the Diet of Worms in the
ninth century the question of the right of cousins to inherit
is decided through a judicial duel, and when in the twelfth
century the English bishops urged the Parliament of Merton
to legalize the rule of legitimation by the subsequent marriage
of the parents of the child born out of wedlock, the secular
nembers of Parliament answered: " Nolumus mutare leges

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I38 HARVARD LAW REVIEW

Angliae - we do not wish to change the laws of England."

As this answer shows, their attitude was dictated not by any
disinclination to accept the principle of legitimation itself,
but rather by the thought that the matter was of such a
nature that the Parliament of that time neither could nor
should under any conditions interfere with it. State legis-
lation becomes prominent again in the eleventh century in
Italy, in the thirteenth in England, in the fourteenth in France,
and in the fifteenth in Germany.
It could not have been otherwise. It is not enough that a
statute is passed; it must be capable of being enforced. For
this purpose the state must have in the persons of the judges
and other officials organs capable of putting the law into prac-
tice. But courts and other officials are at the outset social
institutions, appointed or otherwise selected men having the
confidence of the parties or of the population in general, who
are just as little concerned about legislation as juries are at
times in our midst. Furthermore, there must also be the
means of making the statute known among all these organs
spread out, as they are, over the entire realm. These men
must be able to read, to understand, to apply the statute.
For all this capable men are needed, and these were lacking in
the oriental state and during the greater part of the time also
in the mediaeval European state. Until quite recently there
was in Europe one state, Turkey (or is it still there?), which
for this reason until the middle of the nineteenth century had
no legislation and could have none. The Turkish judge, the
Kadi, is an ecclesiastic who knows nothing but the sheriat law
made up entirely of Islamic juristic law. If the Sultan were
to send the Kadi a set of exchange regulations, the man would
certainly not know what to do with them. When Turkey,
after the Crimean War, began to Europeanize itself and pro-
vided itself with a modern code of commercial law, it was com-
pelled to establish its own commercial courts at the same time.
From this presentation, which in essentials follows that
which I worked out in greater detail in the Soziologie des Rechts,
it is clear that it is entirely wrong to believe, as so many do,
that social institutions, marriage, family associations, pos-
session, contracts, succession, have been called into existence

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 THE SOCIOLOGY OF LAW I39

through Legal Provisions, or, worse yet, through statutes.

Only state institutions are created through statutes, but the
great mass of Legal Provisions are made not through statutes
but in judicial and juristic law, and not through forethought
but through afterthought; for in order that the judges and
jurists may become occupied with a juristic dispute, the in-
stitution involved must already have its existence in life and
must have given rise to the dispute. Even in the compara-
tively rare cases in which the jurists have found Legal Pro-
visions not for actual but for academic legal instances, the
thought of such legal instances could only have come to them
after a foundation had already been laid for them in society.
The state is older than state law. The Legal Provisions of
marriage and family law pre-suppose the existence of mar-
riage and the family. The Legal Provisions that constitute
the law of possession could not possibly have been evolved be-
fore a system of possession was in existence. Provisions of
law with reference to contract could not possibly have come
about before the corresponding agreements had been made.
And people had already inherited property for centuries when
the first Legal Provisions with reference to the inheritance of
property were being formulated.
So it was not only in the gray past; so it is even today.
For the social order is not fixed and unchangeable, capable at
most of being refashioned from time to time by legislation.
It is in a constant flux. Old institutions disappear, new ones
come into existence, and those which remain change their
content constantly. Marriage today is not exactly what it
was formerly. Whoever can look back over fifty years needs
nothing but his own recollection to prove that the relation
between husband and wife, or that between parents and chil-
dren was in his youth something very different from what it
is now. Where modern intensive agriculture has been taken
up, it has displaced the old legal system of landholding with
something quite different. The needs of modern great cities
have brought with them the huge building enterprise of which
half a century ago no mention had ever been made, and this
is in process now of transforming the system of landholding
in cities. Altogether different kinds of contracts come to be

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 140 HARVARD LAW REVIEW

made. Who knew anything thirty years ago of the Arbeiter-

tarifvertrag (which Lothwar in Bern discovered in his celebrated
book on the workman's contract)? Who forty years ago had
thought of the competition clause in the contract of commercial
institutions which is now the source of so much worry for the
jurist? Who, a hundred years ago, had ever heard of a rail-
road freight contract, and where until recently were the trusts
and combinations? In the short period of a human life the
extent of such changes is only rarely recognizable, but in the
course of centuries, they assume the proportions of tremendous
revolutions. If modern society shows quite a different aspect
from that of the middle ages, we must remember that this
has come about for the greater part gradually, not, by any
means through legislation but through little readjustments which
were hardly noticed by contemporaries.
New conditions, moreover, means also new conflicts of in-
terests, new types of dispute, which call for new decisions and
new Legal Provisions. This need is served in large measure in
our times through legislation. But this comes about as an
afterthought, after the thing has become obvious enough to set
the legislative machinery into motion. For the greater part,
however, this work is even now being done by means of the Legal
Provisions of judicial and juristic law. This fact is generally
overlooked because the judges and jurists who decide a dispute
on the ground of a Legal Provision discovered by themselves
according to the modern fashion cite a number of sections of
a statute so as to give the appearance of deciding on the basis
of these sections. This is the nature of juristic sophistry which
I have described more fully in my Juristische Logik. The law-
giver can, by means of his statutes, render decisions only in
those types of legal cases which come to his attention. There-
fore no decisions can be derived from a statute as to legal
cases of which the legislator has never thought or been able
to think. The situation is clearly reflected in any edition of
a statute book with decisions, an annotated code. There in
connection with each section the judicial decisions bearing on
the section are noted. Such a decision is very likely to contain
as a matter of fact a new Legal Provision to which the courts
will hold exactly as if it had been included in the statute itself.

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 THE SOCIOLOGY OF LAW 14I

From this it is clear why Legal Provisions cannot possibly

cover the entire law. Judicial decisions flow only from those
cases which are brought before the court. And even the jurists
deal in their writings usually with only those legal questions
which occupy the courts. But only a very few matters come
before the court. Most affairs work themselves out without
any dispute. There are unnumbered persons who stand or have
stood in innumerable legal relations without ever having any-
thing to do with courts or officers. But even if a dispute has
arisen, it is often settled in a friendly manner either because
the parties have reached a compromise or because they have
renounced their claims because they dreaded the costs in time
and money, or, as so often happens today, because farmers,
day-laborers, working men have no hope of winning a vic-
tory in court against a powerful and influential antagonist.
In addition to this we must remember that in general only the
decisions of the highest and most respected courts operate to
create Legal Provisions, and inasmuch as many kinds of dis-
putes in which only negligible sums are involved never reach
these courts, it comes about that there are no Legal Provisions
for them. This is all the more true because juristic writers
until recently have not deigned to concern themselves with
such affairs of insignificant persons. From a business point
of view, these matters are quite unremunerative, though from
the point of view of society they are often extremely important.
Finally, it must be borne in mind that Legal Provisions are
naturally lacking for new legal situations because it necessarily
takes some time until a sufficient number of legal disputes in-
volving them reach the point of judicial decision and until
they are forced upon the attention of juristic writers.
There is hardly a legal matter of greater import to the mass
of the people than the contract of work and services, and yet
the French Code Civil contains on this subject but two mea-
ger articles: one forbids any work or service contract for the
period of a lifetime; the other (repealed in France under Napo-
leon III) grants the privilege to the one who furnishes the
service or gives the work to prove the payment of wages
through his oath. No one will assume that with this the con-
tract of work and services is in any way regulated. The ex-

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I42 HARVARD LAW REVIEW

planation of the matter is manifestly that the compilers of

the Code had no Legal Provisions at hand for the simple rea-
son that at that time the contract of work and services had
been dealt with only in the lower courts and had not been de-
veloped in the literature. Today this contract swarms with
Legal Provisions which in part have been included in the stat-
utes promulgated up to this time and which in part are founded
upon legal decisions. This change was introduced by reason
of the rising social significance of the great masses.
The Legal Provision is thus dependent upon society both
for its existence and for its content. It cannot come into ex-
istence until there are present in society the institutions to
which it pertains, and it takes its content from the decision of
conflicts of interests which come up in society and which for
the most part have already found judicial solutions. Like-
wise a law is generally first promulgated after the conflicts of
interests in society have become so sharp that state interfer-
ence becomes inevitable. The Legal Provision is applicable,
on the other hand, only so far and so long as its presupposi-
tions endure in society. If the conditions for which it is rele-
vant fall away, if the conflicts of interest to which it pertains
do not repeat themselves, then the Legal Provision becomes a
dead letter even if it is not expressly repealed. In the states
which in the last three years have become free states, the pro-
visions concerning lse majeste and offering affronts to the mem-
bers of the reigning houses have become obsolete. This is not
true, however, of the stipulations concerning the offending of
members of foreign reigning houses for the conditions presup-
posed in the former proposition have ceased; those in the latter
still remain. Indeed it is quite sufficient if a former belief in
the existence of a conflict of interests has been lost. The pro-
visions in the criminal code of Emperor Carl V (the so-called
Carolina) concerning witchcraft were not applied in Germany
from the time that people ceased to believe in witches and
wizards.
Several facts may seem in conflict with this theory. It is
well known, for example, that in Italy, Spain, France, Germany
and the Netherlands in the late middle ages, Roman Law, or,
more accurately, the Justinian Code, the Corpus Juris, was

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 THE SOCIOLOGY OF LAW I43

received and remained in force until the end of the eighteenth

and to some extent to the middle or end of the nineteenth
century. Likewise in many European and other states codes
have come into force which are only reworkings of the French
codes, especially the Code Civil. Similar phenomena can be
adduced from other sources. One may jump to the conclu-
sion that none of these codes is related to the society for which
it is brought into operation in this manner. But this contra-
diction is only an apparent one. The fundamental institu-
tions of civilized society agree, as was remarked at the out-
set, in the main points. We find wherever we go marriage,
the family associations, possession, contracts, succession. To
this extent the society which created the Legal Provisions re-
sembled that which adopted them, and the Legal Provisions
of the one were thus to a certain extent applicable to the other. If
this were not the case, if the two societies differed as widely
as let us say the original societies of uncivilized and semi-
civilized peoples, or the Bolshevistic societies of modern civi-
lized peoples, then a similar transfer of Legal Provisions would
have been utterly impossible. The differences are limited to
details, but even these details bring it about that the trans-
planting of laws is possible only within the narrowest
limits. A Legal Provision may be utterly useless for condi-
tions and legal cases for which it has never been formed. A
Legal Provision is none the less a new one created by the
judge or the jurist, even though another Legal Provision is
cited from the old code to serve as its basis. It would be a
mistake to believe that the common law which was in force in
Europe since the end of the middle ages was simply Roman
law. It was an entirely new law propped up on the old Corpus
Juris. No truer is it that the French code is in force in Rou-
mania. Roumanian jurists have created for Roumanian legal
situations their own Roumanian law for which they have, of
course, drawn inspiration from the Code Civil.
Down to the most recent times jurisprudence has seemingly
concerned itself almost exclusively with Legal Provisions.
This phenomenon is easily understood for it has been over-
whelmingly a practical science calculated to serve the needs
of the practical jurist, the judge, the lawyer, the notary, and

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I44 HARVARD LAW REVIEW

for them the Legal Provision is the thing of primary interest.

But the Legal Provision is, as we have seen, only one form
and at that a late derivative form of law. The great mass of
law which originates with social institutions comes into being
and develops not, as one might suppose, only in primitive
times, but also in the living present as the natural offspring
of society itself. With this jurists have at best been only col-
laterally concerned when they asked the question which Legal
Provisions were applicable in connection with disputes arising
from existing social institutions, - as I have shown in my
Juristische Logik, a futile undertaking unless the institution or
at least the conflict of interests which led to the legal dispute
is met by an already formulated Legal Provision.
The modern science of society, sociology, looks upon law as
a function of society. It cannot limit itself to the Legal Pro-
vision as such. It must consider the whole of law in its social
relations and must also fit the Legal Provision into this social
setting. For this purpose obviously the greatest possible
knowledge of the whole structure of society, of all its institu-
tions, and not only those regulated by statutes, is prerequisite.
Such a task is far beyond the powers of the individual. Just
as the cartographers for many thousands of years and, at least
for the last hundred years, in every country with the aid of
support from the state, have been working on the record of
the surface of the earth, so now a record of society must be
made through organized work. So far as social phenomena
are capable of being expressed in figures, capable of being
counted, capable of being weighed and capable of being meas-
ured, this is already being done in the statistical institutes;
but it is necessary to free ourselves from such limitations, for
those social phenomena which cannot be expressed in figures
are also of the greatest scientific and practical value.
I have pointed out the necessity for such a study of society
in numerous works. They have attracted attention, particu-
larly in the United States. In June, I9I4, I received an invi-
tation from the Association of American Law Schools to
present my plans at their general meeting in December, I9I4,
and I had hoped to accomplish this purpose. The war that
broke out in the meantime unfortunately prevented me from

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 TIHE SOCIOLOGY OF LAW 145

acting on the invitation.' Since that. time I have to my great

satisfaction found a very keen understanding of the importance
of such endeavors in Roumania. The great Roumanian scholar,
Professor Jorga, has placed at my disposal his East European
Institute for a lecture. The lecture which I held there has
since been published in Neamul Romanesc. The Society for
the Investigation of Living Law was thereupon founded. In-
dependently Professor Gusti has established an Institute
Social Romanesc according to the charter of which (Statutele
Institutului Social Romanesc, Bucure?ti, I92i) a juridical sec-
tion will be included.
Eugen Ehrlich.
Translated by Nathan Isaacs.

[1 Professor Ehrlich's views were summarized by Professor William Herbert

Page at the meeting of the Association of American Law Schools held in Chi-
cago in December, I9I4. See PROCEEDINGS OF THE I4TH ANNUAL MEETING
OF THE ASSOCIATION OF AMERICAN LAW SCHOOLS, 46-75. -TRANSLATOR.]

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