Living Law, Normative Pluralism, and Analytic Jurisprudence

Abstract

This article elaborates on the account of 'living law' in 'Law and Justice in Community' 'by Garrett Barden and Tim Murphy (Oxford University Press, 2010) by placing that account in the context of a distinct living law approach in jurisprudence. It is argued that the book advances the living law approach by clarifying and supplementing aspects of the work of the Austro-Hungarian jurist, Eugen Ehrlich (1862-1922). The approach proposes that communities generally, as well as social groups and associations within communities, have ‘laws’ that exist separately from all forms of 'official' law, including state law, systems of professional self-regulation, institutional rules and regulations, etc. The 'law' in the living law approach is not law as posited or laid down in the way a constitution, statute, code or other set of rules is posited or laid down; rather it denotes the idea of normative or social ordering, of 'the way things are done' or 'what is generally accepted and approved'. The living law approach proposes therefore that there are two modalities of 'law': it can denote state or official law and living or customary law. A broad understanding of law as a form of normative or social ordering that embraces both of these modalities endorses ultimately the place of customary law in the jurisprudence of normative pluralism rather than of legal pluralism. The connections between living law and the ideas of natural law, natural justice and natural rights in the Aristotelian-Thomist tradition are discussed also, as are ‘legal consciousness’ jurisprudence and the insights into questions of legal authority provided by the living law approach.

Keywords: living law, Eugen Ehrlich, customary law, legal pluralism, normative pluralism, analytic jurisprudence, natural law, natural justice, ius gentium, authority of law