By Marieke Hopman - 21 September 2021
What is law?
A very theoretical part of our current research project on the child’s right to development in unrecognised states, is the study of “norm pluralism” (see also this blog). The idea is that to understand why not all children’s rights are protected in practice, we need to understand the different norms according to which people behave. In other words: we want to understand which ideas about good and bad behavior make people behave the way they do. For example, why do some parents hit their children? Do they think this is a good way of educating them, or do they think it is not good but they simply loose control when overcome with emotion? There are many different types of norms (ideas about good and behavior), and one subcategory is “legal norms”, or “laws”. A law may be a reason why you do or don’t do something. For example, you may not hit your child because you think it is against the law.
To determine what law is in a certain societal context is not always easy. In a Western country like the Netherlands for example, you may think it’s pretty straightforward: you study what is written in lawbooks. But what about things that are said in a courtroom, the interpretation of laws? Is that included? The issue gets even more complicated in societies where there are different legal systems, for example where there is national law, religious (e.g. Shari’a) law and where different tribes also have their own laws (see for example this blog for an example of how this works in the Sahrawi refugee camps).
In the past, many scholars have debated what law is exactly and how you can study it. Recently, I published a journal article about the debate on this subject between two great legal scholars: Hans Kelsen and Eugen Ehrlich. You can read the complete article here. In this blog I will give a short summary.
Ehrlich’s definition of law
Eugen Ehrlich was a jurist and an academic teacher in law. What he saw around him in the law schools of early 20th century, of his students and colleagues, was that their education and research were aimed at what he thought was only a part of the legal field. Law students, according to Ehrlich, studied only state law. But according to Ehrlich there are many more kinds of law in society than only state law!
His theory is as follows. Human beings live together in social groups, or “associations”. In most cases they regulate their behaviour within the group according to certain rules. Of these rules, there are legal rules and non-legal rules. Non legal rules are non-normative rules (language, rules of hygiene) and non-legal normative rules (ethical custom, tact, etiquette). Legal rules are “a certain kind of normative rule of human conduct, that human beings within human associations (in relation to one another) recognize as binding and that generally regulates their conduct.” The state is only one of these associations, but not the only one. Others might for example be the family, the tribe, a corporation.
Therefore, someone who studies law should study the total legal field: all law that we can find in society. This study should be done through a sociological method, by studying society through observation and/or experience. This means that legal scientists should study law of different associations, both written and non-written law, state and non-state law.
Kelsen vs. Ehrlich
In 1915, a young legal scholar named Hans Kelsen published a lengthy critique of Ehrlich’s book. Although Kelsen at the time was a junior researcher in relation to Ehrlich, both in position and in age, his critique is quite ruthless. Kelsen accuses Ehrlich of having written a book without structure, of messing around with his most fundamental conceptions, and of failing to provide a foundation for the sociology of law. His critique is reluctantly answered by Ehrlich in the same journal, resulting in a back-and-forth debate between the two.
In short, Kelsen argues that there are two types of law:
Because of this distinction, it is not possible to study law in society as Ehrlich proposes, because if we study what we observe in society this is the study of something that “is” and not something that should happen (“ought”). So what Ehrlich proposes to study are not proper legal laws.
Other points of critique are that Ehrlich does not present a clear definition of law, that he doesn’t distinguish clearly between legal rules and other social rules, and that he distinguishes between the law and the state (this according to Kelsen is not possible).
Ehrlich reluctantly replies to Kelsen’s critique. In general, Ehrlich feels that throughout his critique, Kelsen imposes his own terminology and then proceeds to qualify that what Ehrlich writes as nonsense. He writes:
“Did anyone ever hear of such a critique? Kelsen confronts my statements with his own, arbitrary – incidentally, scientifically completely worthless (the legal proposition as “stipulated consideration”!) – terminology, and then he claims, that [my statements] are meaningless, because they do not fit his terminology.”
He also disagrees with the is/ought argument, arguing that in his whole book he has only considered laws as ought-rules and never as is-rules of nature. Laws, that are ideas in the minds of people, are in fact perceptible and observable. According to Ehrlich, this should also be the object of legal science.
To summarise, Ehrlich and Kelsen think that they are on opposite sides regarding their answer to the question “what is law?”. Ehrlich on the one hand believes that law can be found through the study of society by observation, conversation and/or experience, while Kelsen believes that law can be found by studying what is written in (state) legal codes.
Kelsen’s definition of law
Kelsen has written several books about the question “what is law?”. According to Kelsen, legal laws are external rules that tell someone how they should behave. These rules are laws if three criteria are met:
According to Kelsen, there are two ways to study the law: either through psychology and sociology, when you study how laws affect the behaviour of people (do they follow the rules or not, and why?), or how jurists study law: studying a system of laws as found in lawbooks, irrespective of how people behave.
I personally believe that if we combine the theories of the two bickering professors, their theories can be reconciled. In fact, I think that to truly understand law, both theories need each other. By combining them, we end up with a more comprehensive framework for the study of law and society.
In short, there are two main gaps in their respective theories, that could be remedied by inserting elements of the other’s theory: Ehrlich’s work lacks clear definitions of concepts such as law, a legal order, a legal proposition, etc. These conceptual definitions can be provided by Kelsen: they are the three criteria for law mentioned above. Kelsen on the other hand needs to also study law through observation and/or experience. How else can you determine whether people believe a certain rule is created by someone who is authorized to create laws? How else can you know if people generally follow the rules that are created by the legislator? In other words: how else do you know what law is?
Therefore, Kelsen’s idea of the basic norm should not be considered “scientifically completely worthless” (as Ehrlich argued), and Kelsen would have to admit that to identify law, legal science will need to have, as Ehrlich argues, “a feeling with reality”. If we combine both theories, science of law can – as Ehrlich argued it should - study the total legal field, all law that we can find in society.