The theory of living law originated with a sociologist named Eugen Ehrlich. He elaborated on Savigny’s line of reasoning by developing an organic concept of the ‘living law’. A ‘living law’ is the law of society, which is not purely dependent on state institutions. The ‘living rule’ is a social phenomenon. It is an expression of the morality of a community and an essential part of society’s structure.
To be consistent with this theory, law must be a fact. According to Ehrlich, a legal rule must be observable in order to be considered valid. But the law is not always obeyed, and often the’regularity’ of what happens here should be applied to other situations. This concept of a living law is contradicted by Kelsen, who argues that the idea of a ‘living’ or ‘natural’ law is wrong. The “living law” is the ‘natural’ law that a society has created.
In Ehrlich’s theory, law is the rule that actually happens. This means that labeling a’regularity’ as law means that whatever happens here should also happen there. This concept is incompatible with the idea of a ‘living law’, which asserts that something should happen regularly. However, Kelsen’s conception of the living-law idea makes it hard to understand how it can be a law.