Rescuing Living Law from Jurisprudence

Abstract

A key concept in Garrett Barden and Tim Murphy’s rich and intriguing book 'Law and Justice in Community' (OUP, 2010) is the concept of ‘living law’. Barden and Murphy indicate that their own general theory of law is informed by Eugen Ehrlich (1866-1922), but their attitude towards his work is somewhat ambivalent. The aim of this paper is to try and tease out some of the most important differences between both perspectives and to analyze some of their strengths and weaknesses. I will first discuss both approaches in greater detail and I will illustrate important elements of the living law in a short case study of the Dutch construction industry. I will then demonstrate that there are at least five fundamental differences between both perspectives. Moreover, I will argue that the most important contribution of Ehrlich’s approach to the living law is its central focus on the notion of ‘legal consciousness’; people’s own ideas of law and justice. However, in Barden and Murphy’s book this essential dimension of the living law only plays a secondary role. As a result, their book does not recognize the significance of pluralism as an inherent quality of law and society. Moreover, the book ultimately fails to explain why the living law is accepted and followed. Unfortunately, Barden and Murphy’s lack of interest in the subjective character of law (which helps us to understand ‘what law does’) is shared by most other scholars in jurisprudence (who are exclusively interested in ‘what law is’). As a result, the notion of legal consciousness has been moved into the background or has disappeared altogether. I will conclude, therefore, that the only way to maintain the important focus on the subjective and pluralistic dimensions of law, is to rescue living law from jurisprudence.

Keywords: law and justice in community, jurisprudence, Eugen Ehrlich, living law, legal consciousness, legal pluralism

JEL Classification: K10, K19, K40