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Eugen Ehrlich's ›Living Law‹ and the Use of Civil Justice in The ADMINISTORY ZEITSCHRIFT FÜR VERWALTUNGSGESCHICHTE BAND 5, 2020 SEITE 235–248 D O I : 10.2478/ADHI-2020-0015 Litigious Bukovina: Eugen Ehrlich’s ›Living Law‹ and the Use of Civil Justice in the Late Habsburg Monarchy WALTER FUCHS Ehrlich’s Living Law as a Concept of Multi-normativity of the traditional direction would undoubtedly claim The Austrian jurist Eugen Ehrlich (1862–1922) is that all these peoples have only one, and exactly considered not only one of the founders of the sociology the same, Austrian law, which is valid throughout of law but also a pioneer of legal pluralism. As a matter Austria. And yet even a cursory glance could convince of fact, he conceptually and empirically analysed him that each of these tribes observes quite different the coexistence of different normative orders within legal rules in all legal relations of daily life. […] I have one and the same society. Ehrlich was born the son decided to survey the living law of the nine tribes of of a Jewish lawyer in Czernowitz,1 then capital of the the Bukovina in my seminar for living law. 5 Bukovina, a crown land of the Habsburg Empire at its eastern periphery, where he later worked as professor Ehrlich coined the term living law for these »quite of Roman law.2 Like the Austro-Hungarian Monarchy different« norms that are actually relevant to everyday itself – against whose dissolution Ehrlich passionately action. As he theoretically outlined in his monograph argued for pacifist reasons at the end of the First World »Fundamental Principles of the Sociology of Law«, this War3 – the Bukovina and Czernowitz were characterised legal corpus is nothing else than the »inner order of the by an enormous ethnic, cultural and social diversity.4 associations of human beings«.6 According to Ehrlich, As Ehrlich noticed in his brief treatise »The Living Law however, associations are not only ethnic communities, of the Peoples in the Bukovina«, this pluralist situation but all groups of people »who, in their relations with one also had implications for legal matters: another, recognise certain rules of conduct as binding, and, generally at least, actually regulate their conduct In the Duchy of Bukovina, nine tribes are currently according to them«7 – whether they are families, living side by side, partly even still quite peacefully: religious organisations, clubs, companies, professional Armenians, Germans, Jews, Romanians, Russians or social classes, or even states. In its reference to (Lipovans), Rutenes, Slovaks (who are often counted observable social phenomena of multi-normativity, among the Poles), Hungarians, Gypsies. A legal expert the concept of ›living law‹ goes far beyond the related © 2021 Walter Fuchs. Published by Sciendo. This work is licensed under the Creative Commons Attribution 4.0 license (https://creativecommons.org/licenses/by/4.0/). AD INISTORY 5/2020 socio-legal concept of law in action (as opposed to Notwithstanding their intrinsic normative quality, law in the books) by Roscoe Pound, with which it is Ehrlich regarded such social rules as, at any rate, a sometimes confused:8 Living law is not only – possibly highly relevant subject matter of legal science.11 As inconsistently – applied statutory or case law, but it can the statement just quoted shows, he was not overly refer to rules that need not have anything to do with concerned with terminological issues. However, Ehrlich the set, legitimised and enforced norms of the state. The did propose a distinctive feature of legal norms. In state is only one of many social associations that are order to ascribe a legal character to a rule, he considers not afforded any priority whatsoever with regard to the the type of ›emotional tone‹ that its violation triggers: emergence of effective legal rules. The »center of gravity In contrast to mere reactions of anger, disapproval of legal development lies« therefore, as Ehrlich writes in or ridicule, which follow transgressions of custom, the foreword to his main work, »not in legislation, nor tact or fashion, a breach of the law typically entails in juristic science, nor in judicial decision, but in society feelings of outrage.12 Therefore, not the ›sources‹ of itself «.9 norms, but the psychological and social consequences Consequently, Ehrlich acknowledged the existence of deviant behaviour, are decisive to differentiate law of societal legal norms, which he understood to be more from other social norms. Meanwhile, Ehrlich considers than mere customs, even when they contradicted state the significance of the state’s coercive power, in which laws – such as, e.g. certain patriarchal social structures most legal theoretical approaches still see a necessary in rural Bukovina: prerequisite – if not a key defining element – of the legal system, to be quite low. According to him, societal order The family law of the Austrian Civil Code, as is well is not based on the enforceability of legal obligations, known, is extremely individualistic […] Only so but rather on the fact that these are mostly fulfilled – in long as the child is a minor is it under the power of economic life, for instance, simply in order to maintain his or her father; but the father, the bearer of this one’s own creditworthiness.13 power, is not much more than a guardian. […] In Bukowina, however, although it is a part of Austria, and although the Civil Code is in force there as well The Exploration of Living Law in as in the other parts of Austria, the power of the the Bukovina father is an extremely serious matter. The Roumanian peasant, perhaps the only true Roman of our day, Ehrlich considered it one task of jurisprudence to exercises a patria potestas, which seems strikingly empirically examine the law that is actually practised familiar to the student of Roman law. There the in society. From 1909 until the outbreak of the First children actually belong to the father […] And if one World War, he held his »Seminar for Living Law« at the asks why the children submit so docilely, the answer University of Czernowitz, in which he and his students is that resistance is something unheard of. Ever since researched – through excursions to farming villages I directed attention to this phenomenon […], I have and commercial enterprises and by analysing legal again and again received the reply that those things documents – those rules that were actually significant that are in conflict with the Civil Code are ethical in legal transactions.14 In order to study the ethnically custom, not law. This reply is based on the same old diverse legal customs of rural Bukovina, he designed idea, to wit that we are here dealing with a question a comprehensive questionnaire.15 Despite the fact of terminology, i.e. with the question just what it is to that (or because) it was aimed at investigating »the be called law. But we are here dealing with something law which dominates life itself even though it has not quite different from this, i.e. with the fact that the been posited in legal propositions«,16 the topics of this Austrian Civil Code has not been able to root out survey instrument went far beyond legal matters in the this custom, which is in such decided conflict with narrower sense. Among other things, Ehrlich asked about Walter Fuchs — Litigious Bukovina: Eugen Ehrlich’s ›Living Law‹ and the Use of Civil Justice in the Late Habsburg Monarchy Fuchs — Litigious Bukovina: Eugen Ehrlich’s ›Living Law‹ and the Use of Civil Justice in Late Habsburg Walter the Code – irrespective of whether we call it law or the self-construction of the respective national identity, 10 236 ethical custom. about rules of exogamy and endogamy, parenting AD INISTORY 5/2020 styles, actual power relations within families, concrete land, hayfields and sheep pastures (with salt left over matrimonial property regimes, legal relationships with from cheese production for the cereal mash as a reward regard to land and houses (including details concerning for shepherds)21 – point to a pre-modern social and the handling of scattered fields, such as easements and economic order. Consequently, Ehrlich has been blamed rules of compulsory crop rotation), typical terms of for having confused ›dying‹ with ›living‹ law.22 However, labour and lease contracts (including whether the rent he was well aware that it would be more important to is paid in kind), practices of inheritance and the use of study »the viable seeds of a new law«23 in modern life arbitration and litigation. A few selected questions may than the (then still practised yet vanishing) remains of illustrate the style of the inquiry: an ancient customary law. His choice of study objects had mainly didactic reasons: As he considered »eyes Whom does the people consider belonging to their to see and ears to hear«24 the most important ability of nation? Is it the descent that counts? The creed? a jurist, he wanted to teach his students »to perceive How does one behave towards baptized Jews? […] the world with their own senses«.25 Had he worked What does a man think he can do to his wife? Does on a different, economically more-advanced place, he he forbid her to go out, to visit the inn, to associate would have let studied, for instance, the living law of with friends, with male acquaintances? […] What »the grain trade or the shipping company, the large does the woman think she is allowed to do to her estate, the sugar or chemical industry«.26 At »the site of husband? Does he obey her orders? […] Are there a developed industry, a staple of world trade, a centre of cruelties against the children? Does the neighbour banking transactions, it goes without saying that these intervene in such a case? […] What rights does the areas should mainly be taken into account«.27 leaseholder have? Can he grow what he wants or only certain types of crop? […] Who draws up wills in the country? The village scribes? The priest? Are there The Bukovina as ›Mecca for Legal any effectual oral wills?17 Sociologists‹ Ehrlich’s research programme can be regarded as an More than a century after the publication of Ehrlich’s ambitious blueprint for cultural-anthropological and treatise on the Bukovina, the German legal scholar, socio-legal field studies.
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