Naturalism and Agency in the Living Law

Fundamental Principles of the Sociology of Law, trans. by Walter L. Moll (New York: Arno Press, 1975 [1936]) (hereafter simply ‘Ehrlich’). I am grateful to Alex Ziegert for my first substantial introduction to Ehrlich: K. Alex Ziegert, "A Note on Eugen Ehrlich and the Production of Legal Knowledge" (1998) 20 Sydney Law Review 108.

3 Clifford Geertz, "Local Knowledge: Fact and Law in Comparative Perspective" in Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic Books, 1983) 167 at 221-225.

4 This invocation of both ethnographic description and juristic literature in this paragraph obscures an important difference between them. They both involve simplified, one might even say idealised, portraits of the normative order, and it is in this respect that they are cited together in this paragraph. But the juristic accounts do so precisely in order to bring more consistency to the legal order. Part of jurists’ role is consciously to define an order that only imperfectly exists; they actively promote the goal of consistency and justice in the law. In terms I have coined elsewhere their role is exhortative rather than merely descriptive: Jeremy Webber, "Legal Pluralism and Human Agency" (2006) 44 Osgoode Hall Law Journal 167 at 192-194. Ethnographers, on the other hand, are more clearly in the descriptive camp. They necessarily simplify in order to communicate – the desire to defend a subaltern order can lead them to simplify still further, in order portray that order as more consistent and unified than in fact it is – but they nevertheless seek to describe rather than refashion.

5 In some ways, the argument in this paper runs parallel to debates that have occurred in anthropology over how history and process should be incorporated into ethnography, instead of presenting a unified and fundamentally static vision of cultures. See, for example, George Marcus &Michael Fischer, Anthropology as Cultural Critique: An Experimental Moment in the Human Sciences (Chicago: University of Chicago Press, 1986) at 77-110; Sally Falk Moore, "Explaining the Present: Theoretical Dilemmas in Processual Ethnography" (1987) 14 American Ethnologist 727.

6 Simon Roberts, "After Government? On Representing Law Without the State" (2005) 68 Modern Law Review 1. Compare Lon Fuller’s cogent criticisms of approaches to customary law that see them as located in simple habit: Lon L Fuller, "Human Interaction and the Law" (1969) 14 American Journal of Jurisprudence 1 at 3-5. Perhaps the strongest claims of spontaneous ordering are not in the localist or culturalist mode of this and others but of a more universalist cast, marked by a strong commitment to market ordering. The prime example is the work of Friedrich Hayek: Friedrich A. Hayek, Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy (London: Rouledge & Kegan Paul, 1973-1979).

7 For an excellent discussion of these themes, see George Woodcock, Anarchism: A History of Libertarian Ideas and Movements (Harmondsworth: Penguin, 1962), especially at 20, 22, 106-9, 123-25, 130, and 187ff.

8 The papers resulting from the group’s research were published in the collection, Jean-Guy Belley, ed. Le droit soluble: Contributions québécoises à l'étude de l'internormativité (Paris: Librairie générale de droit et de jurisprudence, 1996).

9 Hayek, above note 6.

10 See David Nelken, "Using the Concept of Legal Culture" (2004) 29 Australian Journal of Legal Philosophy 1; Jeremy Webber, "Culture, Legal Culture, and Legal Reasoning: A Comment on Nelken" (2004) 29 Australian Journal of Legal Philosophy 27. To be fair, I may be overstating the defects of our research group’s work for rhetorical effect. The resulting collection, above, note 8, is very fine indeed.

11 See the discussion of the descriptive versus the exhortative mode in Webber, above, note 4.

12 Fuller, above, note 6.

13 See, for example, Ehrlich, at 162, 488 and 497-498. See also Fuller, above, note 6.

14 Ehrlich, at 20-23 and especially 64ff.

15 Ehrlich, at 43.

16 Ehrlich, especially at 44ff.

17 Ehrlich, especially at 137ff.

18 Ehrlich, at 38.

19 Ehrlich, at 24.

20 Ehrlich, at 39.

21 Ehrlich, at 118, 120 and 140-141.

22 Ehrlich, at 123-124.

23 Ehrlich, at 444 and generally throughout chapter 19.

24 I explore some aspects of this challenge in Jeremy Webber, "Rapports de force, rapports de justice: la genèse d'une communauté normative entre colonisateurs et colonisés" in Belley, above, note 8, 113 , published in English as Jeremy Webber, "Relations of Force and Relations of Justice: the Emergence of Normative Community between Colonists and Aboriginal Peoples" (1995) 33:4 Osgoode Hall Law Journal 623.

25 Ehrlich, at 166-168.

26 Ehrlich, at 167.

27 Ehrlich, at 40.

28 Ehrlich, at 62-63, 167 and 61-62. See also 27-28 and 214-215.

29 Ehrlich, at 41.

30 Ehrlich, at 122.

31 Ehrlich, at 123-124.

32 Ehrlich, at 125-126.

33 See, for example, the heavy emphasis on consent in the living law in Ehrlich, at 126-127, 140-141.

34 Ludwig Wittgenstein, Philosophical Investigations, 2d ed., trans. by G.E.M. Anscombe (Oxford: Blackwell, 1958).

35 Ehrlich, at 172. See also 460-461, where he talks of scientific labour in law being productive, ‘but its productivity consists in discovering the content of existing law, not in creating new law.’

36 Ehrlich, at 171.

37 Karl N. Llewellyn & E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (Norman: University of Oklahoma Press, 1941).

38 Gerald J. Postema, "Classical Common Law Jurisprudence (Part I)" (2002) 2 Oxford University Commonwealth Law Journal 155; Gerald J. Postema, "Classical Common Law Jurisprudence (Part II)" (2003) 3 Oxford University Commonwealth Law Journal 1.

39 Philippe Nonet & Philip Selznick, Law and Society in Transition: Toward Responsive Law (New York: Octagon Books, 1978); H.W. Arthurs, "Understanding Labour Law: The Debate over 'Industrial Pluralism'" (1985) 38 Current Legal Problems 83; H.W. Arthurs, "Without the Law": Administrative Justice and Legal Pluralism in Nineteenth-Century England (Toronto: University of Toronto Press, 1985); Ian Ayres & John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (New York: Oxford University Press, 1992).

40 Ehrlich, at 155-156; 175-180, 289 and 449-451; 444 and 446.

41 Ehrlich, at 124-125.

42 Ehrlich, at 81.

43 Ehrlich, at 452 and 456.