MZUMBE UNIVERSITY

FACULTY OF LAW

COURSE: LLB III

SUBJECT: JURISPRUDENCE AND LEGAL THEORY II
CODE: LAW 321
LECTURER’S NAME: MISS. B. IMMACULATE
TASK: GROUP ASSIGNMENT
STREAMS: B
GROUP NO: 04
GROUP MEMBERS/PARTICIPANTS
STUDENT’S NAME REGISTRATION No.
EVINETH MWOMBEKI 1236107/T.22
DENIS BWIRE MNYOMBE 1236042/T.20
ABUBAKARI GEMBE 1236078/T.22
SEVIANA MAKUNDI 1236048/T.22
GLORY SEVERINE 1236083/T.22
ERNEST MKATALO 1236276/T.22
MARIA Y. MGHENYI 1838078/T.22

KARMELA ZACHARIA 1236067/T.21

QUESTION
Discuss the significance and applicability, if any, of the living law trend as propounded by
Eugen Ehrlich in light of Tanzanian legal system.
1.0 SCOPE OF THE QUESTION
The question presented demands us to discuss the significance and applicability, if any, of the
"living law" trend as propounded by Eugen Ehrlich, with specific reference to the Tanzanian
legal system. To adequately understand and answer this question, it is necessary to first
understand what is meant by the term "living law," explore its theoretical foundations as
developed by Ehrlich, and consider how this concept interacts with the practical realities and
development of legal systems especially one like that of Tanzania. It also requires reflection
on the Tanzanian context, including its legal history, societal structures, and contemporary
legal challenges, all of which will provide a necessary backdrop to determining whether the
living law has any real relevance or application in Tanzania.
1.1 INTRODUCTION
1.1.1 THE CONCEPT OF LIVING LAW AS PROPOSED BY EUGEN EHRLICH
Eugen Ehrlich, a legal scholar and sociologist of law, introduced the concept of "living law"
in the early 20th century. His ideas were developed in opposition to the dominant legal
positivism of his time, which held that law was solely what was declared by the state through
legislation and formal legal institutions. Ehrlich challenged this narrow view by arguing that
the true law the law that people actually live by is found not just in statutes or court decisions
but in the social practices, customs, and norms that regulate human behavior in everyday life.
In his book Ehrlich famously stated that
"at the present as well as at any other time, the center of gravity of legal development lies not
in legislation, nor in juristic science, nor in judicial decision, but in society itself" 1
Ehrlich's theory marked a shift from seeing law as a purely abstract, state-created system to
viewing it as a living, evolving entity that reflects the values and customs of a given society.
The "living law" is therefore the law that governs people's lives on a daily basis, irrespective
of whether it is recognized by formal legal institutions. This theory thus emphasizes the
importance of social norms, traditions, and community practices in shaping legal
consciousness and behavior. The significance of this approach is that it acknowledges the
pluralistic nature of law in society and opens the door for the recognition of customary law,
religious norms, and other informal legal systems that may coexist with or even challenge
formal state law.2

1
Eugen Ehrlich, Fundamental Principles of the Sociology of Law (Harvard University Press 1936) p 493
2
Sally Falk Moore, "Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of
Study" (1973) 7 Law & Society Review 719.
The relevance of Ehrlich’s theory becomes especially apparent in legal systems like
Tanzania’s, which are marked by a plurality of legal traditions. Tanzania’s legal system is a
hybrid, drawing from African customary law, Islamic law, and English common law due to
the country’s colonial history and multicultural society. The interaction of these legal systems
provides a fertile ground for evaluating whether and how the concept of the living law
manifests in practice. In many Tanzanian communities, especially rural ones, customary law
continues to play a central role in dispute resolution, inheritance matters, land ownership, and
family issues. These customary practices may not always be recognized by formal legal
structures but nonetheless wield significant influence over people's lives.
2.0 MAIN BODY
2.1 SIGNIFICANCE OF EUGENE EHRLICH´S CONCEPT OF “LIVING
LAW” IN TANZANIA LEGAL SYSTEM.
Eugene Ehrlich´s concept of law as a living entity plays the following significance;
i) Recognizes the importance of social context in which legal norms operate.
The concept of Eugen Ehrlich as law as living plays a significance role by recognizing and
enforcing the importance of taking into consideration the social contexts in which the legal
norms operate. In his analysis he argued that law is just not what is written in statutes but
what people actually follow in their daily lives. In his analysis he considered that that society
consists of intermingling normative and official associations which operate through an inner
order, Ehrlich concluded that it was in this inner order that one could find ‘living law’. The
inner order is controlled by four specific Tatsache des Rechts or facts of the law from which
legal propositions are derived. Therefore, the order of such associations consists of an
operative structure which allows associations to give effect to norms within the organized
structure itself. Going beyond functionalism towards constructivism it is the operation of the
inner order within a time reference that gives it the identity of ‘law’; irrespective of
acceptance of this normative order by the state.3 The legal norms do not exist in isolation they
are shaped by economic and historical realities of a society, therefore through his concept
enable law to remain effective, just and adaptable in the society through recognizing the
social context.4
ii) Emphasizes customary laws and traditions
The concept of Eugen Ehrlich recognizes the significance of customary laws and traditions of
a particular society. In Tanzania there are various customs in which each custom has its laws
3
Moore, Law and Social Change, The semi-Autonomous Social Field ( 7th edn Law and Society Review, 1973)
719
4
ibid
through which it operates. Tanzanian law recognizes customary law which is a crucial aspect
of living law, thus the concept proposed by Ehrlich supports the recognition of these informal
legal systems as legitimates sources of law even if they are not codified. 5 He considers
customary law as living law, as it what people follow in their daily lives. Therefore through
this concept in Tanzania it supports the co-existence of various customary laws which is a
reflection of social life rather being imposed solely by the state.6
Also in his analysis he focuses that customary law evolves as society norms change aligning
with his concept of living law, thus the adaptability ensures the legal system remain relevant
to the contemporary society.
iii) Enhance legal development and reforms.
The concept proposed by Eugen Ehrlich advances and promote the changes and amendments
of various legal reforms so as to meet the life of the people in the society. He argues that law
should evolve based on societal needs rather being dictated solely by state legislation. This
perception encourages legal reforms that align with align with social norms ensuring that
laws remain relevant and effective.7 Through his theory supports the recognition of multiple
legal systems including customary, religious and statutory laws, this situation creates legal
pluralism which foster reforms to integrate traditional practices into formal legal framework. 8
Also integrating religious laws into the legal framework. Through this process it forces the
development and changes in the legal framework of the country to meet the desire and life of
the society in enhancing proper legal system that reflects the life of the people that they are
living. Hence the concept promote and enhance the development and reforms in the legal
sector in the country.
iv) Assists in judicial interpretation and flexibility
Ehrlich´s concept encourages judges to interpret laws in way that reflects contemporary
social realities. Courts can adapt legal principles to fit evolving societal values, ensuring that
legal decisions remain just and applicable. Thus court should interpret laws in a way that
reflects the actual practices and expectations of the society. This supports judicial flexibility
to adapt legal principles to contemporary social conditions rather than rigidly relying the
statutes. In Tanzania the judicial interpretation benefits from this approach by considering
how laws function in practice rather than relying solely on formal legal texts. 9 Ehrlich´s
5
Eugene Ehrlich, Fundamental Principles of the Sociology of Law, (1st edn, Routledge, 2001)112
6
ibid
7
Aleck, J. Beyond Recognition Contemporary jurisdiction, ( Vol. 7 Queensland University of technology law
journal, 1997) 143
8
ibid
9
Allot, A, Towards Unification of Laws in Africa, ( International and Comparative Law Quarterly 1965) 366
theory encourages judges to interpret laws dynamically ensuring that legal rulings remain
relevant to evolving social norms. This flexibility is particularly evident in areas such as
family law, land rights and human rights where courts adapt legal principles to contemporary
social values.

v) It bridges the gap between formal law and reality.

Eugen Ehrlich’s living law theory bridges the gap between formal law and reality by
emphasizing that law is not solely derived from statutes and judicial decisions but is deeply
embedded in social practices and norms. In Tanzania the existence of formal laws must
reflect the social phenomenon and reality of the society that they live. Thus Ehrlich bridges
the gap between formal law and reality by ensuring that legal systems remain adaptable,
inclusive and responsive to social changes.
In bridging this gap he emphasized on the importance of understanding legal consciousness
and the way people perceive and apply law in daily life. Thus his approach ensures that legal
reforms and interpretations of formal law align with social expectations rather than being
disconnected from reality.10
2.2. THE APPLICABILITY OF EUGENE EHRLICH´S CONCEPT OF “LIVING
LAW” IN TANZANIA LEGAL SYSTEM.
The following is the applicability of Eugene Ehrlich´s concept of “living law” in Tanzania
legal system.
i) CUSTOMARY LAW AND LEGAL PLURALISM
Customary law is central to the Tanzanian legal system and is a prime example of Living
Law. It continues to play a critical role in regulating relationships and resolving disputes,
particularly in rural and semi-urban areas. The Judicature and Application of Laws Act 11
provides that courts may apply customary law in civil matters such as marriage, divorce,
inheritance, and land rights, provided those customs are not repugnant to justice or
inconsistent with written law.
Legal pluralism refers to the existence of multiple competing legal system with a single
society or geographic area. This can include state law, customary law, and religious laws. 12
Through the concept of living law the existence of multiple laws in the state it is essential to

10
Steven Vago, Law and Society: An Introduction (9th edn, Pearson 2012)

11
[CAP 358 R.E. 2002]
12
Geoffrey Swenson, Legal Pluralism in Theory and Practice. (Vol. 20 International studies review, 2018) 438-
462
take recognition of these laws that exist in the society even if they are not codified. Therefore
in Tanzania customary law governs various aspects pf life such as land tenure, family law and
dispute resolution, hence the existing laws such as land law must take into consideration the
existence of customary laws that fits and applies in the state.13
The recognition of customary laws in Tanzania reflects the social values of the society for
example the recognition of forms of marriage under the Law of Marriage Act 14, reflects the
reflection of marriage based on the existence social values of the people in the society. For
example the life of Muslim communities is based on polygamous marriages, therefore the
recognition of such form of marriage in the laws signifies the application of the theory by
taking into consideration of the application of legal pluralism.
Through his analysis he considered customary law as living law, as it reflects the true and
ongoing life of the society, therefore this theory emphasizes that the real law governing
society is not always found in statutes or court decisions, but rather in practices, norms and
customs that people live in daily life. Therefore customary laws in Tanzania reflects is a
prime example of living law, as it reflects social norms such as marriage, inheritance, land
tenure and conflict resolution.
ii) POLICY AND LEGAL REFORMS
The concept of living law as proposed by Eugene Ehrlich proposes that law is dynamic
influenced by social change.15 Therefore since the society is changing and evolving from time
to time the laws also must reflect the demands and needs of the society so as to avoid
isolation between the society and the legal framework. 16Thus in Tanzania various reforms
are made and policies are initiated so as to meet the demand and reflection of the society.
Such reforms include the following;
a) Educational law reforms; Tanzania has made various reforms in the education sector
by improving their laws in order to ensure improving access to education from
primary level and efforts to reduce gender discrimination in the country, for example
due to existence of low economic status of many people in the country, there was a
need of introducing free education in secondary level. Various laws improved include
The National Education Act and introduction of the new education structure of
(1+6+4+2/3+3).

13
Eugene Ehrlich, Fundamental Principles of the Sociology of Law, (1st edn, Routledge, 2001)112
14
Law of Marriage Act [ CAP. 29 R.E 2019]
15
Marc Hetogh, Living law, ( Hart Publishing 2008) 36
16
ibid
 b) Land Laws reforms; The government has improved the land laws and customary
tenure of owning land and facilitating land registration in Tanzania. For example the
introduction of the new land polices of the country so as to meet with the demands of
the current social situation in land management and acquisition. Village Land Act 17
recognizes customary rights of occupancy and enables villages to manage land based
on local practices.² This statutory recognition of community-based norms shows how
Living Law operates alongside the formal legal structure.

c) Social sector policies; the government has implemented a National Poverty Strategy
initiated in 1998 to address the reduction of poverty and promote inclusive growth.
d) Employment law reforms; The Employment and Labour Relations Act,18 is
improved and reformed in order to improve the welfare of workers. For example an
amendment has been done in regulating maternity leave to employed woman to
ensure the rights due to rapidly growing labour market.
e) Judicial System Reforms; Focuses on reducing court backlogs and improving
efficiency nd Introduces measures to enhance access to justice for ordinary citizens
such legal aid providers.
iii) DISPUTE RESOLUTION MECHANISMS
The concept of living law as proposed by Eugene Ehrlich, is applied in Tanzania in dispute
resolution mechanisms, which are traditional mechanisms such as mediation and
reconciliation, which align with alternative dispute resolution mechanisms. The enhancing
and recognition of these traditional mechanisms that were already practiced in the society
enhances efficiency and reduces court congestion.19
Ehrlich’s theory finds practical expression in the way Tanzanians resolve disputes through
Alternative Dispute Resolution (ADR) mechanisms. Illustration The Ward Tribunals
Act20establishes tribunals that emphasize informal procedures and community-based dispute
resolution, often applying customary principles. these tribunals serve as “popular forums for
justice” and reflect local understandings of fairness21.
These informal structures operate under legal frameworks but rely heavily on community
norms and customs, thus embodying Living Law. The Tanzania Commission for Human

17
[CAP,114 R.E 2019]
18
The Employment and Labour Relations Act [CAP 366 R.E 2019]
19
Shamir, Alternative Dispute Resolution Approaches and the Application ( UNESCO, New York) 2
20
The Ward Tribunals Act [CAP 206 R.E. 2002]
21
Chris M Peter, Human Rights in Tanzania: Selected Cases and Materials (Rudiger Kopppe 1997) 203.
Rights and Good Governance (CHRAGG) has also recognized the role of informal
mechanisms in promoting access to justice 22 These mechanisms reflect community-based
legitimacy rather than top-down imposition of law, aligning with Ehrlich’s assertions.

iv) APPLICATION IN LEGAL EDUCATION

Also, through this theory has a significant in legal education in Tanzania particularly in
shaping how law is taught and understood and applied in real world contexts. This involves
through conducting various activities like; Research, Social field interactions and Data
collecting from social problems and disasters.
All these activities are applied in legal education by examining the life of the society and
preparing research and those research are in turn essential in generating laws of the country.
Also Ehrlich’s theory promotes the study of law as a social phenomenon rather than just a set
of rules. Tanzanian legal education includes courses on legal sociology, helping students
analyze how law functions in everyday life. This approach ensures that future lawyers and
judges consider social realities when interpreting and applying legal principles. Applicability
of Living Law in Legal Education in Tanzania
Also the Recognition of Customary and Religious Law in the Curriculum is one of the most
visible ways in which Tanzanian legal education reflects the application of Living Law is
through the inclusion of customary law and Islamic law in the core law curriculum. These are
taught not as electives but as core foundational components in universities By including these
fields in legal training, Tanzanian law schools acknowledge the reality that millions of
Tanzanians live under customary or religious norms and that these norms often function as
the actual legal rules people follow in areas such as land tenure, inheritance, marriage, and
dispute resolution." In Africa, where legal pluralism is the norm, legal education that
excludes living customary law fails to prepare students for real-world legal challenges." 23
v) APPLICABILITY OF LIVING LAW IN FAMILY AND INHERITANCE
SYSTEMS.
Family relationships and inheritance matters in Tanzania often reflect the application of
Living Law. The Law of Marriage Act and Probate and Administration of Estates Act allow

22
CHRAGG, Annual Report on Human Rights and Good Governance in Tanzania (2019).
23
Kameri-Mbote P, ‘Legal Education and Legal Pluralism in Africa’ (2007)
parties to choose between statutory, customary, or religious law. In Ephrahim v Pastory24,
the High Court invalidated a custom that denied women inheritance rights, affirming
constitutional equality.⁵ However, many communities still apply customary rules despite
court rulings.
This persistent community practice reflects the living nature of customary law, even when it
conflicts with formal law. legal pluralism allows room for local legitimacy, but also creates
tensions with constitutional norms25 Tanzania’s experience illustrates Ehrlich’s theory by
showing that law lives not only in statutes but in societal norms and expectations.
3.0 CONCLUSION
Generally, Ehrlich’s theory of living holds important significance in Tanzania, particularly
due to its legal pluralism and wide spread application of customary law. The idea that law is
found in social practices and norms that govern daily life rather than fixed statutes or court
decisions perfectly reflects the reality in Tanzania legal context. By bridging the gap between
formal law and reality, Ehrlich’s theory ensures that legal systems remain responsive to
societal needs, fostering access to justice, legal development, and meaningful law reforms.
Tanzania’s ongoing legal transformations such as land rights reforms, gender equality
initiatives, and alternative dispute resolution mechanisms reflect the enduring relevance of
living law in shaping a more inclusive and effective legal system.

24
[ 1990] TLR 105,
25
Patricia K Mbote, 'Gender, Customary Law and Legal Pluralism in Africa' (2007) 21(1) UNDP-UNIFEM
Report.
 REFERENCES
CASES
Ephrahim v Pastory [ 1990] TLR 105
STATUTES
The Employment and Labour Relations Act [CAP 366 R.E 2019]
The Ward Tribunals Act [CAP 206 R.E. 2002]
Law of Marriage Act [ CAP. 29 R.E 2019]
Village Land Act [CAP,114 R.E 2019]
BOOKS
Aleck, J. Beyond Recognition Contemporary jurisdiction, ( Vol. 7 Queensland University of
technology law journal, 1997)
Allot, A, Towards Unification of Laws in Africa, ( International and Comparative Law
Quarterly 1965)
Chris M Peter, Human Rights in Tanzania: Selected Cases and Materials (Rudiger Kopppe
1997)
Eugen Ehrlich, Fundamental Principles of the Sociology of Law (Harvard University Press
1936)
Eugene Ehrlich, Fundamental Principles of the Sociology of Law, (1st edn, Routledge, 2001)
Geoffrey Swenson, Legal Pluralism in Theory and Practice. (Vol. 20 International studies
review, 2018
Marc Hetogh, Living law, ( Hart Publishing 2008
Moore, Law and Social Change, The semi-Autonomous Social Field ( 7th edn Law and
Society Review, 1973)
Sally Falk Moore, "Law and Social Change: The Semi-Autonomous Social Field as an
Appropriate Subject of Study" (1973) 7 Law & Society Review
Shamir, Alternative Dispute Resolution Approaches and the Application ( UNESCO, New
York)
Steven Vago, Law and Society: An Introduction (9th edn, Pearson 2012)
REPORTS
CHRAGG, Annual Report on Human Rights and Good Governance in Tanzania (2019).
Patricia K Mbote, 'Gender, Customary Law and Legal Pluralism in Africa' (2007) 21(1)
UNDP-UNIFEM Report.