ADMINISTORY

ZEITSCHRIFT FÜR VERWALTUNGSGESCHICHTE

BAND 5, 2020 SEITE 235–248

D O I : 10.2478/ADHI-2020-0015

Litigious : Eugen Ehrlich’s ›Living ‹ and the Use of Civil in the Late

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 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 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 «, 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 , 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, , , , 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 ), 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 , 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 – 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 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,

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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 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. What is more, by prudently Gunnar Folke Schuppert, has called this historical instructing his students »that it does not depend on regional entity »a virtual Mecca for legal sociologists«.28 what the interviewees say, because this will often Why should this territory, which was divided between only be their own moral conviction«18 and instead the Ukrainian Soviet Republic and after the advising them to carefully interpret the answers in the Second World War,29 still be of interest for present-day context of their own observations, he even anticipated social researchers with other than historical purposes? methodological principles of ethnographic and To answer this question, a distinct branch of Ehrlich’s qualitative social research.19 Nevertheless, the results reception has to be outlined. In general, the appraisal of the participants’ seminar papers were, as Ehrlich of his legacy in the field of socio-legal studies turned remarked in an expertise for the German Jurist’s out mixed.30 Since his polemical controversy with Hans Council in 1912, obviously quite modest. Apart from the Kelsen,31 Ehrlich was repeatedly accused of mixing up »difficulty of the task« and the »unfamiliar work«, his facts (is) and norms (ought) – or, to be more precise, the often-economically struggling students seemed to have tasks of a descriptive sociology of law and an ultimately much more interest in living a typical ›Austrian dream‹ normative, albeit empirically informed sociological rather than doing pioneering scientific fieldwork, jurisprudence. While his role as a founding figure for namely to succeed in getting a secure job in the state both intellectual enterprises is beyond doubt, many bureaucracy as quickly as possible.20 In any case, the scholars – often insisting on state-centred definitions – 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

exemplary research findings that Ehrlich reports – have questioned the validity and usefulness of his far-

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237 details of orally concluded lease agreements for arable reaching concept of law. Even , whose AD INISTORY 5/2020

notion of the society’s legal system (as encompassing had followed their own paths to the global village all acts of communication that refer to the difference seems to be the main source of global law.38 between lawfulness and unlawfulness) is also very broad, deemed it »unclear« and considered Ehrlich’s Stefan Kadelbach and Klaus Günther – obviously research »inadequately founded in theory«. According referring to Teubner – have even recently presented a to him, the Bukovinian professor’s work »has alarmed taxonomy of legal pluralist phenomena in which they jurists, yet not particularly impressed sociologists«.33 distinguish no less than three versions of ›Bukovina‹: However, it was precisely the fuzzy, fluid, open, a Bukovina (»private in a state«), chaotic and decentralised nature of Ehrlich’s concept of an exotic Bukovina (»societal law without the state in a living law that attracted a new generation of academics state«, e.g. indigenous law in colonial or postcolonial engaging in critical or postmodern discourses,34 who situations) and a global Bukovina (»law without the were interested in situations where »two or more legal state outside the state«, in the sense of Teubner’s systems coexist in the same social field«.35 In a seminal analysis of phenomena, such as the contemporary paper from 1986, the American jurist John Griffiths worldwide lex mercatoria).39 Interestingly enough, due presented Ehrlich as a forebear of what he called to the reception of Ehrlich’s work, the Bukovina has a »descriptive conception of legal pluralism« being finally become a metaphor for a law distant from the suitable to challenge dominant ideologies of »legal state in legal pluralist environments.40 Accordingly, centralism« underpinning »the moral and political portrayals of Ehrlich in the sociology of law textbooks claims of the modern « in favour of a better or overview articles usually ascribe his detection of understanding of legal reality as »an unsystematic living law to the actual insignificance of state structures collage of inconsistent and overlapping parts«.36 Ten in the easternmost province of the Habsburg monarchy. years later, the German legal scholar Gunther Teubner Following Stefan Machura, for instance, »the Austrian attracted international attention with an article named codified law, the topic learnt by students across the »Global Bukowina«. Given Luhmann’s rather derogatory vast empire, was an irrelevant ›dead‹ law« in the comments on Ehrlich, it is not without a certain irony Bukovina.41 To a certain extent, such depictions of this that the systems theoretician Teubner used the home of region inevitably mirror ›orientalistic‹ discourses from »the almost forgotten law professor from Czernowitz«37 the second half of the 19th century describing the then- as allegory for an innovative account of law beyond Austrian lands in today’s Poland, and Romania the state in a functionally differentiated and globalised as ›Half-Asia‹ (Karl-Emil Franzos),42 as a ›Far and Wild world society: East‹,43 a region where the cultural (or, for that matter, legal) achievements of Western civilisation have not Ehrlich, of course, is romanticizing the law-creating yet fully arrived. However, irrespective of Ehrlich’s role of customs, habits and practices in small-scale undoubtedly outstanding accomplishment of having rural communities but, in the current globalization discovered and studied crucial patterns of societal legal process, his living law seems to take on a different practice, is it really true that Austrian state law was of and quite dramatic significance relying on cold no importance at all in his place of activity at his times? technical processes, no longer on warm communal bonds. Since it is not politics but civil society itself that drives us toward a globalization of its The Demand for Civil Litigation various fragmented discourses, the globalization in the Late Habsburg Monarchy’s of law is bound to follow as a spill-over effect of Bukovina those developments. From this, the main thesis follows: global law will grow mainly from the social peripheries, not from the political centres of nation Given Ehrlich’s remarks concerning the relative 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

states and international institutions. A new living law meaninglessness of the Austrian Civil Code in the

238 growing out of fragmented social institutions which Bukovina and the metaphoric equation of the latter with AD INISTORY 5/2020

Figure 1: Civil cases per 1,000 population in Bukovina and as a whole, 1858–1912; sources: see Appendix Fig. 1 a legal sphere beyond the state in contemporary socio- date, the Law on the Dunning Procedure (Gesetz über legal discourses, one would expect very little demand das Mahnverfahren). Interestingly, however, the latter for civil procedural remedies before state courts in statute was not enacted in , Dalmatia and the the easternmost crown land of the Austro-Hungarian Bukovina, because it was feared that the high level of Empire. Indeed, in an 1867 speech by Adolf Ficker, the illiteracy in these crown lands could trigger a misuse of later president of the Central Commission of Statistics the new procedural remedy.49 in Cisleithania, the Bukovina was mentioned (together Apart from these legal prerequisites for the growing with Galicia) as having by far the lowest civil trial rates mobilisation of courts, however, next to nothing is of the entire state territory.44 As a matter of fact, the known about the societal determinants of the Habsburg number of civil lawsuits per inhabitant in Ehrlich’s Empire’s spatially and temporally varying litigation home province was consistently below the Austrian rates. The Monarchy’s civil justice statistics – which average until 1871. However, as Figure 1 shows, from are, compared to later standards, astonishingly rich the 1880s onwards, the Bukovina’s civil litigation rates – have attracted hardly any scientific attention at all, were always considerably higher than in the rest of neither as a socio-legal data source nor as an object of Cisleithania.45 historical scholarship in its own right. Since 1898, the Whereas the kink in the time series between 1873 year in which the new Code of Civil Procedure came and 1874 might be attributable to the then financial crisis into force, the litigation rates in Bukovina were on (›Founders’ crash‹),46 the subsequent steep increase average 2.5 times higher than in the entire territory is most likely a consequence of the Law on the Small of the Austrian half of the empire. Figure 2 illustrates Claims Procedure (Gesetz über das Bagatellverfahren) the geographical distribution of civil cases per which came into effect in autumn 1873. This statute, population in 1910 by regional court districts. Apart which anticipated the central principles of the later from Bukovina, the demand for lawsuits was highest in Code of Civil Procedure of 1895 (such as orality, Galicia, parts of Dalmatia and the metropolitan areas of ex officio proceedings or free consideration of and Trieste. By contrast, civil courts were least evidence)47 significantly facilitated and accelerated utilised in Upper Austria, Southern and the 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 48

the enforcement of minor monetary claims. This also Italian-language part of Tyrol. When the data are not

239 applied to a second bill entering into force at the same classified by quantiles (left map), but by equal intervals AD INISTORY 5/2020

[16,30] [16,40.6] (30,36] (40.6,65.1] (36,42] (65.1,89.7] (42,48] (89.7,114] (48,53] (114,139] (53,63] (139,163] (63,97] (163,188] (97,131] (188,212] (131,237] (212,237]

Figure 2: Civil cases per 1,000 inhabitants by regional court districts (Cisleithania), 1910; left map: quantile (equal count) classification, right map: equal interval classification; sources: see Appendix

(right map), the Bukovina’s saliently high litigation Reasons for the High Demand for rate becomes all the more apparent. In 1912, a total Litigation in the Bukovina of 269 lawsuits per 1,000 inhabitants was filed, which is remarkable by both historical and international What were the reasons for the surprisingly high demand standards of comparison.50 for civil justice in the Bukovina? Although it is beyond However, the overall socio-spatial pattern of the scope of this article to address this question in a civil court use defies straightforward economic or comprehensive manner, a quick glance at contemporary ›cultural‹ explanations. Although small claims before discourses might provide some hints. First of all, it is courts made up a large part of the judges’ interesting to see that the official statistical publications business volume in the Bukovina, proceedings before themselves offered hardly any explanation for the its regional courts in Czernowitz and Suczawa (with regional disparities that they had so meticulously higher amounts in dispute) were also relatively heavily displayed in numerous tables. Rather, their focus was used. Only Vienna and Lemberg had higher rates of to prove the – politically intended – effectiveness and lawsuits before regional courts. In general, as Figure 3 expeditiousness of the new civil procedure.52 However, (left plot) shows, these rates were strongly correlated before the new Code of Civil Procedure came into force with the amount of civil cases before district courts in 1898, it was discussed whether one could now also per population. There is also a very clear statistical apply the Law on the Dunning Procedure in Galicia association between the regional court litigation rate and the Bukovina, which was ultimately denied.53 The and the density of attorneys (right plot in Figure 3).51 Permanent Committee on the Code of Civil Procedure The number of lawyers per population in the Bukovina pointed to the high caseload of these provinces, was no less than in many administrative and economic explaining it through unspecified »agrarian, social and centres of the Monarchy. This is certainly not least national conditions«, as well as »the character of the rural a consequence of the foundation of a University in population, which tends to litigiousness« (Prozesssucht, Czernowitz in 1875, at whose law faculty Ehrlich held literally meaning »addiction to litigation«).54 The his professorship since 1897. In any case, the law of the attribution of a litigious temperament to certain parts Austrian Civil Code, which after all had to be the legal of the population – usually to underprivileged peasants basis of any procedural enforcement of private claims, or Jews – in the Eastern lands of the 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

was definitely not entirely ›dead‹ or ›absent‹ in the was, often, rendered together with complaints about

240 Bukovina of his times. hack lawyers (Winkelschreiber), a topos also present in AD INISTORY 5/2020 16 16 ● Lemberg ● ● Lemberg ● Carpathian lands ● Czernowitz ● Carpathian lands Czernowitz ● Wien ● ● Southern lands Wien ● Southern lands ● ● ● Suczawa ● Suczawa Bohemian lands ● Bohemian lands ● Tarnow ● Stanislau ● Tarnow ● Alpine lands ● Alpine lands Krakau Triest ● ● Krakau ●● ● ● Stryj Stryj ● ● ● ● Triest 8 ● 8 ● Prag ● ● ● Sambor Prag ● Görz ● Tarnopol Görz ● ● ● Graz ● ● Graz ● ● ● ● Reichenberg ● ● ● ● ● ● ● ● Reichenberg ● ● Innsbruck ● ● Brünn Zloczow Brünn ● ● Innsbruck Zloczow ● ● ● ● 4 Salzburg ● 4 ● ● ● ● ● ● ● Leitmeritz ● ● ● ● ● ● ● ● ● ● ● Spalato ● ● ● ● ● Leoben ● ● ● ● ● ● Rovereto ● ● ● ● Rovereto ● ● ● Wadowice ● ● ● ●● ● ● ● ● ● ● ● ● ● ● ● ● ● Zara ● ●● ● ●

2 ● 2 ● ● ● ●● ● Rudolfswert ● ● ● ● Sebenico ● ● ●● ● ● Wels ● Wels ● ● Ried ●

Civil cases before regional courtsCivil cases before / 1,000 population (log.) ● regional courtsCivil cases before / 1,000 population (log.) ● Ried Steyr ● ● Steyr

1.3 Krems r = 0.83 1.3 Krems r = 0.64

15 25 50 100 200 5 10 20 40 55

Civil cases before district courts / 1,000 population (log.) Advocates / 100,000 population (log.)

Figure 3: Scatterplots showing correlations between the district and regional court litigation rates (left plot), as well as between the density of attorneys and the regional court litigation rate (right plot), Cisleithanian regional court districts, 1910; sources: see Appendix

parliamentary debates and newspaper reports of the farmers. For every wedding or funeral in their often- time.55 Aside from ethnic or (at least subtle) anti-Semitic large families, they had to raise a loan from private stereotypes,56 however, several media accounts also lenders on disadvantageous terms or sell a small piece of covered discussions of the Bukovina’s unfavourable land, which further contributed to the already-existing economic and social conditions that might have given inefficient fragmentation of real estate property. rise to the extraordinarily high numbers of lawsuits.57 The latter triggered numerous boundary disputes, In 1909, for instance, the Bukovinian the more so as many transactions were not properly daily newspaper Czernowitzer Tagblatt published a recorded in the land title register – following a ›living‹ five-pages-long article containing the results of a survey legal custom of oral land sales. This, in turn, could be among judges and advocates on the »overburdening« utilised by speculators who bought registered parcels of the courts.58 Judges in the districts of Czernowitz and in order to sue the unofficial owners. What is more, Suczawa indeed faced a heavy caseload, even though the high illiteracy rate59 offered business opportunities their number was relatively high in relation to the for middlemen, considerably complicating seemingly population size. As Figure 4 illustrates, the litigation simple economic and legal relations. Finally, the law rate was only moderately associated with the density of faculty in Czernowitz seemed to produce too many judges (left plot) but highly correlated with the number graduates, many of whom becoming attorneys faced of civil cases per judge (right plot). with fierce competition. The participants in the newspaper’s probe were From a sociological point of view, it is tempting to asked about the reasons for the judges’ high caseload. analyse these circumstances in (Durkheimian) terms Apart from obvious conditions of scarce human of anomie and thus interpreting the high litigation rate resources, some respondents mentioned socioeconomic as a sign of societal disintegration in times of rapid causes for the heavy reliance on civil justice and drew a socioeconomic change.60 However, even if such an vivid picture of pauperism in the Bukovina. According approach may provide a useful theoretical link between to them, many of the region’s inhabitants experienced certain types of legal behaviour and more general difficulty earning a living. The lack of any noteworthy social conditions in a specific historical situation, one 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

industrial structures obviously caused a massive should not overlook one apparently trivial yet crucial

241 shortage of capital mostly affecting the smallholding prerequisite for the massive mobilisation of civil AD INISTORY 5/2020

● Zara ● ● Carpathian lands Cattaro ● Carpathian lands Stryj Suczawa ● 1000 Stanislau ● ● ● ● Suczawa ● ● ● Southern lands Southern lands ● ● Brzezany ● Czernowitz ● Bohemian lands Ragusa Sebenico ● Bohemian lands Wien ● ●● 25 ● Tarnow ● Alpine lands ● Rudolfswert ● Alpine lands Przemysl ● Czernowitz ● Rzeszow ● ● Lemberg Salzburg Spalato Zloczow ●●● ● Krakau ● ● Rovereto ● ● ● Triest Bozen ● Wadowice ● Trient ● ● 500 Jaslo Innsbruck ● Tarnow Teschen ● Spalato 20 ● ● ●● Kolomea Prag Triest ● ● ● ●● Zara ● ● Sambor Olmütz ● ● Steyr ● ● ● ● ● ● ● Sebenico ● ● ● Prag Stanislau ● Graz ● ● Wiener Neustadt ● ● ● ● ●●● ● ● ● Pilsen ● ● ●● ● Wien ● ● Innsbruck ● Ried ● ● ● ● ● ● ● Budweis ● ● ● ●● ● ● ● ● ● ● Ragusa ● ● ● ● ● ● ● ● ● Sanok ● Civil cases / Judge (log.) Civil cases / Judge Krems ● ● ● 200 ● ● ● Zloczow Wels ● Pisek ● ● Cattaro ● ● ● ● ● ● Judges / 100,000 population (log.) Judges ● ● ● 15 Pisek ● Tabor ● ● Brzezany ● Trient ● ● ● Wels ● ● ●● Rovereto Steyr ● ● Pilsen Budweis ● ● ● Wiener Neustadt r = 0.36 100 Ried r = 0.95

20 50 100 200 20 50 100 200

Civil cases / 1,000 population (log.) Civil cases / 1,000 population (log.)

Figure 4: Scatterplots showing correlations between the litigation rate and the density of judges (left plot) as well as between the litigation rate and the judges’ civil caseload (right plot), Cisleithanian regional court districts, 1910; sources: see Appendix

courts: As the lawyers interviewed by the newspaper must have had a significant impact on daily social life? also stressed, it was ultimately the civil procedural law First of all, it is important to note that some features itself that enabled its widespread application. Although of the ancient rural customary law may in fact have the introduction of quick and cheap proceedings in amplified the mobilisation of state courts, at least Austria is often seen as a decisive step away from a against the background of economically deteriorating ›liberal‹ towards a ›social‹ model of civil procedure,61 circumstances, namely the habit of purely oral its establishment most likely yielded unintended and transactions (even on land sales) in a widely illiterate rather adverse societal consequences in the monarchy’s yet multilingual society. Furthermore, even though eastern provinces. After all, the Bukovina was not Ehrlich mentioned litigation and arbitration in his simply a multi-tribal ›wild east‹ but rather, as Klemens questionnaire, it had a relatively strong focus on family Kaps has argued for Galicia,62 a culturally and legally matters, which in fact could hardly be controlled by sufficiently integrated – ›semi-peripheral‹ – zone whose the state’s enlightened liberal statutory civil law at all – economic backwardness nevertheless served a function probably not only in the Bukovina, but also on Dalmatian within the Habsburg Empire’s division of labour. islands or in the Upper Austrian hills, in Tyrolian side valleys or, for that matter, in aristocratic palaces or in the crowded proletarian outskirts of Vienna. Moreover, Litigation and Living Law – a due to his theoretical focus on actually practised private Contradiction Missed by Ehrlich? law, Ehrlich may simply not have been very interested in the enforcement of rights before state courts. When At first sight, the strikingly high civil litigation rates dispute arises in one out of hundred transactions in the Bukovina of the Austro-Hungarian Monarchy’s and a lawsuit is filed during one out of hundred latest decades are difficult to reconcile with Ehrlich’s justiciable disputes,63 99.99% of all transactions and simultaneously developed findings on the indigenous 99% of all justiciable disputes are handled without living law of the region’s different peoples. When any judicial intervention. Even if the mobilisation of Ehrlich dismissed the law of the Austrian Civil Code courts quintuples, 99.95% of all transactions and 95% 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

as relatively meaningless in his home province, did of all justiciable conflicts resulting out of them still run

242 he overlook an important aspect of legal practice that without any involvement of a judge. Having directed AD INISTORY 5/2020

scientific attention to this overwhelming majority had any idea that a lawyer in the district town as of legal reality is unquestionably one of Ehrlich’s his curator had been filed with a quite mischievous great sociological achievements. Nevertheless, the lawsuit? Does any scholar of civil procedural law care concretistic and private-law-oriented character of his that the exclusion of the appeal against the default understanding of law’s role in society may have led him judgment has already produced an own litigation to underestimate both the material and symbolic force industry, that usurers and instalment dealers in of state law.64 Even if transactions gone wrong were Austria carefully select the time for the lawsuit certainly rather exceptional cases in the Bukovina as so that it is as uncomfortable as possible for the well, they resulted in >125,000 execution procedures defendant to appear within a day’s drive?70 in a province of 800,000 inhabitants in 1910.65 It should be borne in mind that incidents of conflict and unlawfulness are constitutive elements of how law is Conclusion perceived and experienced.66 However, Ehrlich was well aware of the difficult In this paper, Eugen Ehrlich’s notion of living law was social conditions that most likely gave rise to the introduced as a concept of multi-normativity. The enormous penchant for litigation in the Bukovina. In culturally pluralist character of his home province, one of his political essays,67 he relentlessly analysed Bukovina, led Ehrlich to empirically explore the legal the region’s economic and political predicaments and customs of its different ethnic groups as actually complained about the career aspirations of privileged practised. With his approach to the study of law’s role young people, who, in his opinion, all too often sought to in society, Ehrlich is rightly considered a pioneer not become lawyers instead of enriching the national wealth only of the sociology of law but also of legal pluralism by productive entrepreneurship. Although he devoted and qualitative social research. As Ehrlich stressed the several pages to what he explicitly called »the Jewish role of private societal legal transactions, his place of question«, he sharply rejected the explanations for the activity became a metaphor for a law beyond the state. harsh living conditions of the Bukovina in general, and However, the textbook narrative that Austrian state law its Jewish population in particular, that relied on any has been ›dead‹ in the easternmost crown land of the racial, religious or national character.68 Passionately Habsburg Empire does not stand up to closer historical protesting against anti-Semitism (»this not very clever and sociological scrutiny. In fact, the Bukovina, in student’s prank«69) and arguing for industrialisation of which a law faculty was established in 1875, witnessed the province, he insisted on historical and economic an extraordinarily high litigation rate during the reasons for the challenges that many rural and Jewish monarchy’s last decades. Apart from precarious inhabitants faced. What is more, Ehrlich also knew about economic conditions, this situation was most likely an the emergence of litigious legal practices. Interestingly unintended consequence of civil procedural reforms. enough, in a 1911 treatise on living law (the text of which Plaintiffs actually used the new opportunities for the he partly included in his »Fundamental Principles«), enforcement of legal claims, »often appropriating he mentioned them in the context of a critique of the them for their own purposes or reinterpreting them official legal statistic’s epistemological interest: to fit their interests«,71 as Pieter Judson has generally observed for the relationships between the Habsburg The statistics of justice only give bare figures, what monarchy’s imperial institutions and its various local they mean would have to be researched by a science societies. Given the Bukovina’s figurative meaning in of living procedural law. The swift justice that Austria current socio-legal discourses on law and globalisation, owes to the new civil procedure is reflected splendidly a proper understanding of such dynamics, as well as in the justice statistics; who talks about that many their coexistence with multiple societal normativities, is a Polish smallholder or cottager owes it to it when not only of historical interest. In this way, the Bukovina 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

his house and farm were sold before he, in a foreign might continue to be a ›Mecca for legal sociologists‹.

243 country condemned to harvest work, could have AD INISTORY 5/2020

Appendix

Data sources for Figures 1–4

1858–1865: Direction der administrativen Statistik (ed.), Tafeln zur Statistik der österreichischen Monarchie, Wien. 1866–1881: K.k. Statistische Central-Commision (ed.): Statistisches Jahrbuch der Oesterreichisch- Ungarischen Monarchie, Wien. 1882–1909: K.k. Statistische [C]Zentral-[C]Kommission (ed.), Österreichische Statistik der im Reichsrat[h] e vertretenen Königreiche und Länder, Ergebnisse der [C]Zivilrechtspflege, Wien. 1910–1912: K.k. Statistische Zentralkommission (ed.), Tafelwerk zur österreichischen Justiz-Statistik. Ein Quellenwerk für justizstatistische Forschungen, Wien.

Source of geographical data for Figure 2

The author created the choropleth maps using a shapefile provided by the following: Max Planck Institute for Demographic Research (MPIDR) and Chair for Geodesy and Geoinformatics (CGG; University of Rostock) 2012: MPIDR Population History GIS Collection (slightly modified version of a GIS-File by Rumpler and Seger 2010) – Rostock. Helmut Rumpler / Martin Seger, Die Habsburgermonarchie 1848–1918. Band IX: Soziale Strukturen. 2. Teilband: Die Gesellschaft der Habsburgermonarchie im Kartenbild. Verwaltungs-, Sozial- und Infrastrukturen. Nach dem Zensus von 1910, Wien 2010. 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

244 245 Walter Fuchs — Litigious Bukovina: Eugen Ehrlich’s ›Living Law‹ and the Use of Civil Justice in the Late Habsburg Monarchy 11 10 Ehrlich:Fundamental Principles,p. lix. 9 8 Ehrlich:FundamentalPrinciples,p. 39. 7 Eugen 6 5 In 4 EugenEhrlich:TheNationalProblemsinAustria,Hague1917. 3 On 2 Today, 1

Ehrlich:FundamentalPrinciples,pp. 369–370. Cf. Ehrlich:DieErforschung des lebenden Rechts, in: Ehrlich (ed.): Sociology Papendorf /StefanMachura /AnneHellum(eds.):EugenEhrlich’s Ehrlich’s Baden Justiz (ed.):StreitbareJuristInnen.EineandereTradition, Baden- 1922). ›national‹ claimsisintended. throughout thisarticle.Nojudgementwhatsoeveraboutany reasons, I will mainly use the historical form of geographical names of a province of the same name in . For pragmatic Deutschen Reich35(1911),pp. 129–147]. Jahrbuch fürGesetzgebung,Verwaltung undVolkswirtschaft im Recht (1984), pp.157-174. Law? BacktotheBeginninginSociologyofLaw,in:LegalStudies4 Society Consciousness: RediscoveringEugenEhrlich,in:JournalofLawand 2009, (ed.): LivingLaw.ReconsideringEugenEhrlich,Oxford/Portland München/Leipzig 1913]. 37 p. translated [first eingeleitet Rechtstatsachenforschung undzurFreirechtslehre,ausgewählt Eugen Ehrlich(ed.):RechtundLeben.GesammelteSchriftenzur Die rechts-undstaatswissenschaftlicheFakultät,p. 330. province, University of Czernowitz as an academic ›penal colony‹ in the back scholars felt the call to the – predominantly German-speaking – himself convertedfromtheMosaicfaithtoCatholicism.Whilesome untergegangenen ihre Peter Rychlo:CzernowitzalsgeistigeLebensform.DieStadtund and churches ofnumerousChristiandenominations(Orthodox, Catholic Fellner the Houses‹ orprivatesaloons.Thecityhadseveral theatres(amongthem was unusually dense. Convivial gatherings took place in ›National three alphabets(Latin,CyrillicandHebrew).Thecultural clublife (German, Ukrainian, Polish, Romanian, and Hebrew) and of the First World War, newspapers appeared in six languages Eugen Ehrlich, Manfred Rehbinder: Die Begründung der Rechtssoziologie durch für Hohloch /RainerFrank /PeterSchlechtriem(eds.):Festschrift des Rechts in einer multikulturellen Gesellschaft, in: Gerhard Franz-Josephs-Universität in Czernowitz. Ihr Beitrag zur Erforschung Rehbinder: Die rechts- und staatswissenschaftliche Fakultät der Cf. SalifNimaga:PoundingonEhrlich.Again?,in:MarcHertogh Eugen Ehrlich:DaslebendeRechtderVölker derBukowina,in: Czernowitz, Stadttheater Hans Ehrlich’s Protestant Kultur, appeared pp. 157–175; und [first Verbindungslinien 2016, Ehrlich: Czernowitz 31 and Legacy he Stoll of von (2004), Leben, by in: appeared Helmer) was biography, pp. 163–186, Law, Walter in: Dr. Helmut in zum which Fundamental in , which was designed by the well-known architects firmly Recht different pp. 457–481; Manfred pp. 11–27, Kulturmetropole, Contemporary Berlin is Marc 75. 2 L. and called 1986, pp. 13–28. as: Braun had und established Moll, Geburtstag, Hertogh: see 2014, zwischen Grundlegung Vienna-style Rehbinder, varieties) Wirtschaft at around (ed.): at Isabell New pp. 166–167; Principles David p. 20 p 39–68, pp. German A Czernowitz. Brunswick/London in 90,000 ›European‹ Leben Berlin and Hensel: 1 Nelken: Tübingen [first Berlin his (1912), (Чернівці́). coffee der dozens home of Sociology appeared 3 und inhabitants Stefan 1967, 2013, at the Soziologie Law Eugen pp. 273–279, Die houses. p 39–41; pp. town; 2001, Conception Recht, of Sociology pp. 43–60, in pp. 7–30. Geschichte synagogues. Machura: It Action of Ehrlich in: cf. is p 327–344; pp. Law, 2002 in: There des on Schmollers Rehbinder: the 322–324]. Kritische Manfred or of the of in: at Rechts, Ehrlich [1936], (1862– capital Eugen Living Legal einer were p. 43 Knut Law, See eve

AD 22 21 20 19 18 17 16 15 14 13 12 34 33 32 31 30 29 28 27 26 25 24 23 Ehrlich:DaslebendeRecht,p. 55–60. Ehrlich:DaslebendeRecht,p. 45. Ehrlich:DaslebendeRecht,pp. 49–54. Ehrlich:FundamentalPrinciples,p. 493. Ehrlich:DaslebendeRecht,pp. 49–55. Cf.Rehbinder:DieBegründungderRechtssoziologie, pp. 31–33. Ehrlich:FundamentalPrinciples,pp. 61–82. Ehrlich:FundamentalPrinciples,p. 165. Cf. See Cf. Gunnar Ehrlich:Gutachten,p. 72. Ehrlich:DaslebendeRecht,p. 46. Ehrlich:DieErforschung,p. 25. Ehrlich:DieErforschung,p. 23. Cf. TheodorSternberg: HistorischeMethodeundHistorismusin Eugen Ehrlich:GutachtenüberdieFrage: Was kanngeschehen,umbei Cf. Christian Fleck: Rund um »Marienthal«. Von den Anfängen der »Postmodern juristslovelegalpluralism. Theydonot careabout Niklas Luhmann:ASociologicalTheoryofLaw,London It isnottruethattheBukovina»nowbelongstoUkraine«, as Eugen Ehrlich:EinInstitutfürlebendesRecht,in:Ehrlich(ed.):Recht Berlin 1988,pp. 137–162,atp. 160. Schriften, ausgewählt und eingeleitet von Manfred Rehbinder, Methodenfrage derRechtswissenschaftundanderejuristische der pp. 200–220]. Verhandlungen (ed.): soziologische Fragen inerhöhtemMaßezufördern?,in:Ehrlich das Verständnis desJuristenfürpsychologische,wirtschaftlicheund der Ausbildung (vor oder nach Abschluß des Universitätsstudiums) 59, 211. Soziologie of ›privatejustice‹,theplurality ofnon-Statelawsinassociations, ethnic, religious, and cultural groups, the disciplinary techniques rules ofthepatchworkminorities, thequasi-lawsofdispersed is the›asphaltlaw‹ofBrasilian the lawofcentralized state withitsuniversalistaspirations. It p. 18 [firstappearedas:Rechtssoziologie, Reinbek1972]. pp. 480–488, atp. 483. und ihreNachbardisziplinenimHabsburgerreich. Wien2020, also Rechtssoziologie. normativity instance, labelsEhrlich‘sbroadsocietalunderstandingoflegal Einführung vonKlausLüderssen,Baden-Baden2003. Rechtswissenschaft: Hertogh (ed.):LivingLaw,pp. 237–272. Ehrlich’s Legacies: Back to the Future in the Sociology of Law?, in: Eugen Ehrlich inScandinavia,in:Papendorf/Machura /Hellum(eds.): of Papendorf /Machura /Hellum(eds.):EugenEhrlich’sSociology Beyond ›LivingLaw‹:EugenEhrlich’sGeneral TheoryofLaw,in: part oftheformerHabsburg duchyformsapartofRomania. Schuppert Measurement oftheWorld, Frankfurt amMain2017,p. 263. 33 (1911),pp. 229–231and241–244]. und Law, Machura: Machura: Leben, Rechtswissenschaft Peter Hans Recht Ehrlich’s Folke pp. 17–38; INISTORY 5/2020 in Koller: (ibid) Kelsen pp. 28–42, Österreich und as Schuppert: Eugen Eugen des tautological Sociology writes. Eugen Ein Leben, / Knut 31. Ehrlich’s Lehrbuch, Ehrlich’s Eugen Eine at Deutschen bis Ehrlich, Since Papendorf: [1940], The p. 38 p 61–79, pp. zu of Kontroverse Ehrlich World ihrer Legacy, ›Panjurismus‹; [first Legacy, 1947 Law, Köln in: in: Juristentages, Karl Vertreibung, of appeared favelas Theodor A et (Paris p 115–132; pp. (eds.): at p 46–63; pp. Rules. Voyage p 49–59. pp. al. Acham . 73 p. 1987, (1915/17). , theinformalcounter- Treaties), A Rechtssoziologie in: Sternberg see of Somewhat (ed.): [first Wien Vol. p. 216; Juristische Discovery: Klaus Klaus Klaus David 2, Die the 1990, appeared 2 2014 Berlin cf. Mit A. Soziologie (ed.): Röhl, southern Different F. recently Nelken: Ziegert: pp. 58– [1985], Blätter Eugen 1912, einer Röhl: und Zur for in:

246 Walter Fuchs — Litigious Bukovina: Eugen Ehrlich’s ›Living Law‹ and the Use of Civil Justice in the Late Habsburg Monarchy 50 49 48 47 46 45 44 43 42 41 40 39 38 37 36 35 Cf. See Adolf Bernd Karl Stefan Teubner: GlobalBukowina,p. 7. John Cf. thestatisticaldatain:MarcGalanter: ReadingtheLandscape Cf. PeterG.Mayr:ErsterTeil: Einführung,Grundlagen Cf. ChristianWollschläger: DieArbeitdereuropäischenZivilgerichte Following the common usage of the term in socio-legal texts, Stefan Machura: Germansociologyoflaw:acasepath Cf. LisaHahn:EntgrenzteBukowina.Was istundleistetRechtineiner Gunther Teubner: ›GlobalBukowina‹:LegalPluralism intheWorld Sally EngleMerry:LegalPluralism, in:Law&SocietyReview22 Aldershot Society, in:GuntherTeubner (ed.):GlobalLawwithoutaState, 24 (1986),pp. 1–55,atpp. 1–4. (1988), pp. 869–896,atp. 870. p. 1443. Pluralism, Gunther Teubner: The Two Faces of Janus: Rethinking Legal ingredients formal about Our Allegedly Contentiousand Litigious Society, in: UCLA of Mahnverfahren mitMaterialien,Wien 1873,pp. 33and38. Materialien, Wien1873,p. 42. Verfahren ingeringfügigenRechtssachen(Bagatellverfahren)mit Zivilprozessrecht, Wien und pp. 21–114, atp. 64. Rechtskulturen Erhard europäischen im historischenundinternationalenVergleich. Zeitreihender per populationsize. or, ›litigation rate‹ herealwaysdenominatesthenumberof(incoming, 1867, pp. 145–180,atp. 178. Veranstaltung derk.StatistischenCentral-Commission, Wien und Weiler.pdf online: Question ofCultural Pluralism (conferencepaper,Oxford2002), Bukowina, SüdrußlandundRumänien,ErsterBand,Leipzig1876. pp. 506–523, atp. 507. dependency, in:InternationalJournalofLawinContext8(2012), Tübingen 2015. 255–274; pp. state, Beckmann /Bertram Turner: Legalpluralism, socialtheory,andthe a article/view/2-2018-art-2/578 online: http://www.ethik-und-gesellschaft.de/ojs/index.php/eug/ normpluralistischen Perspektive?, in: Ethik und Gesellschaft 2/2018, nichtstaatlicher Rechtsetzung,Frankfurt amMain2011,pp. 9–48. Kadelbach Rechtshistorisches Journal15(1996),pp. 255–290]. Bukowina. ZurEmergenz einestransnationalen Rechtspluralismus«, critique Disputes: if Kaserer Josef Emil Griffiths: 28. not Grundsätze, in: Ficker: Weiler: Kadelbach organizations, Blankenburg The available, Januar Kaserer (30. 12. 2019),p. 1. Franzos, / 1997, in: of http://users.ox.ac.uk/~oaces/conference/papers/Bernd_ of Klaus What Journal (ed.): What legal E postmodernity: Cardozo Rechtspflege. Zivilprozeßstatistik Ralf Pluribus auf 1867, p 3–28, pp. Günther We / (ed.): in: finished) Aus is pluralist Das Seinecke, Klaus of dem Legal (ed.): and Know Peter Legal 4 Law in: Halb-Asien. 2018, pp. 43–44. Das Unum? Gesetz (eds.): Günther: informal Pluralism?, Statistisch-administrative europäischen contentious Prozeßflut? at and Pluralism Review approaches, Gesetz Vortrag, G. 3. 2 2019); 12. (30. the Das . 3 p. Recht The Don’t Mayr vom local, seit Recht networks Culturbilder Recht 13 vom Kakanian [first and ohne in: gehalten Know 27. the / (1992), den civil Indikatorenvergleich Journal 27. Georg see Unofficial des Kontinent, appeared ohne plural, Staat? April cases (and 19. for April where Keebet Intellectual Rechtspluralismus, p 1443–1462, pp. am of Staat?, aus an E. Jahrhundert, Zur 1873 Think the of Legal 1873 Law Kodek overview they 17., Vorträge first Galizien, as: Normativität subversive«; von Köln We in: über 50 Pluralism über »Globale instance 21., find and Benda- (2018), Stefan Know) (eds.): 1988, and von das das der the the auf 24. in: at

AD 54 53 52 51 61 60 59 58 57 56 55 K.k.Justizministerium(ed.):Materialien,p. 764. K.k. Cf. Cf.EmileDurkheim:Suicide.AStudy inSociology,NewYork 1951. CzernowitzerTagblatt, 30. 5. 1909,pp. 2–6. The (log-log) correlation between the density of advocates and the Cf. Rudolf Wassermann: Der soziale Zivilprozeß. Zur Theorie Although illiteracy rates quicklydroppedintheCarpathianlands See alsothestatisticallywell-documentedproposaltoParliament On litigiousnessandprejudicesagainstJewscf.MarcGalanter:The See, e.g., the following newspaper articles whose full text is österreichischen Civilprocessgesetzen,1.Band,Wien1897,p. 643. 156. praktischen Grundlagen der Verwaltungsstatistik im engeren Sinne nebst einem 1912, JahrgangStatistik. Ein Handbuch für die Justizverwaltung, Dritter clearly visible. overall litigationrate ( 2019,pp. 451–460. Österreichisches Anwaltsblatt Das at Blankenburg Dieter Strempel(eds.):Soziologie desRechts.FestschriftfürErhard Exploring Global Landscapes of Litigation Rates, in: Jürgen Brand / der 24 Advantage ofIntracountry Comparisons,in:Law&SocietyReview Litigation Law und Praxis des Zivilprozesses im sozialen Rechtsstaat,Neuwied/ der Haushaltungen,Wien1914,pp. 41–42. Familienstande; in Verbindung mitdemGeschlechte, nachdemBildungsgrade und Bevölkerung nachderGebürtigkeit,ReligionundUmgangssprache in (ed.): read Empire as censuses, (1890: 25. 7. 1909, pp. 4–5. pp. 3–4; length by the Bukovinian deputy , which is quoted in full in: DePaulLawReview50(2000),pp. 647–666. Conniving Claimant:ChangingImagesofMisuseLegalRemedies, Volksfreund, 9. 1. 1913,p. 5(»Streitsucht«). Zeitung, (response usage Straucher); the parliament); Presse, 3 p. 5 p. (»Jüdische ( digitalarchiveANNO available attheAustrianNationalLibrary’s http://anno.onb.ac.at pp. 587–588; den opposed K.k. (1990), editor); Review europäischen Sinken (courtroom nor (quote Die Justizministerium Wien of 69.3%; in: Statistische and im 8 1. 1904, 10. 18. 18. 7. 1909, INISTORY 5/2020 1. 1. 1910, revenue write Czernowitzer Trends Ergebnisse by Winkelschreiber«); more Reichsrate p 549–569, pp. Bukowinaer 3.9% Bukowinaer Anhange, 31 1915, to der zum Czernowitzer of Jakob 1900: 16.5% (1983), Walter die in the in than reportage); Klagezahlen 60. stamps); in p 134–145; pp. Zentralkommission the 1910. Zivilgerichte, körperlichen

Wachtel); p. 2 56.9%; pp. 4–5; minister Europe r Geburtstag, ): Statistische vertretenen der

in half = Alpine pp. 4–71, . 6 p. Fuchs: Tagblatt, Post, Post, 0.46) Salzburger (article at the See (ed.): Volkszählung Czernowitzer Tagblatt, of p 559–564; pp. 1910: (report entire 20. 7. Neues Bukowinaer and lands) 2. 6. 1908, Allgemeine is 24. 10. 1907, Prozessebbe: k.k. of the aus somewhat by Gebrechen; Hugo at 16. 7. 1909, Baden-Baden . 104; p. justice Monatsschrift Materialien 41.9%), Latin Königreichen Statistische Bukovinian 1909, Ignaz rechtssoziologischer pp. 35–52; Austrian >10 on Wiener Chronik, 8 1. 1905, 11. 18. (ed.): Forcher: years a America vom Tagblatt, p. 1 p. 3; österreichische Schönborn); Freiherr Rundschau, Wollschläger: according session less Christian p. 1 Wo Österreichische Tagblatt, die half (mention pp. 3–4; old 31. 21. 7. 1909, 7 1 1884, 1. 17. impressive, David population Zentralkommission 1998, liegen (speech soziale XX zu Die und still of since 30. 5. 1909, Dezember von of (1915), . 4 p. the theoretischen to Wollschläger: S. could Ländern. den pp. 577–588, 19. 11. 1885, the 6 2 1893, 2. 16. die 17. 7. 1909, Ruber); Neue of Gliederung the Clark: 1945: Die by Habsburg Sicht, (letter Gerichts- Gründe? the pp. 3–4; Galician but pp. 76– (53.9%, neither deputy official neuen Arbeit Justiz- Freie 1910 . 6 p. high Civil also p. 4 The Der Die in: to

247 Walter Fuchs — Litigious Bukovina: Eugen Ehrlich’s ›Living Law‹ and the Use of Civil Justice in the Late Habsburg Monarchy 71 70 69 68 67 66 65 64 63 62 Ehrlich:EinInstitutfürlebendesRecht,pp. 32–33. Ehrlich:DieAufgabenderSozialpolitik, p. 30. Source: Klemens Pieter M.Judson:TheHabsburg Empire:ANewHistory,Cambridge, To a certain extent, such a stance is mirrored in a passage of Eugen Ehrlich:DieAufgabenderSozialpolitik imösterreichischen empiricistic Cf. NiklasLuhmann’sargument againstTheodorGeiger’s power by Pierre Bourdieu: The Cf. the sociological account of law’s arbitrary,These proportions are admittedly yet not completely Research, Oxford2010,pp. 260–284. Herbert Kritzer: unrealistic, 1914), Wien/Köln/Weimar 2015. zwischen Mayr: Einführung,pp. 43–44. in Kleins Darmstadt MA 2016,p. 4. Man WithoutQualities,London1995,p.30. and civic, aclass,geographic, asexual,conscious,anunconscious, country hasatleastninecharacters: aprofessional,national, country bythecharacter ofitsinhabitants.Fortheinhabitanta they weakness ofwhattheythoughttobetheAustriancharacter. But Uninitiated observershavemistakenthisforcharm,orevena one degree Qualities«: »Inthiscountryoneacted–sometimestothehighest Robert undBauernfrage), München/Leipzig Osten (Juden- p. 22. concept justizstatistische Forschungen,ErsterJahrgang 1910,Wien1913. Tafelwerk zurösterreichischenJustiz-Statistik.EinQuellenwerkfür Law Journal38(1987),pp. 805–853. Force of Law: Toward a Sociology of the Juridical Field, in: Hastings Europa, possibly thought, were und of Musil’s Claiming M. of see überregionaler Kaps: passion ihre wrong; legal 1978, Kritzer in in: Appendix; even or the Bedeutung Ritsumeikan famous Ungleiche effectivity; one pp. 52–57; Behaviour it and light a (eds.): is private thought always its of chapter K.k. Verflechtung The consequences für socio-legal Entwicklung Luhmann, as Walter character Law Statistische die Oxford wrong differently Legal Entwicklung on Review H. Kakania Mobilization, to Handbook A insights; und Rechberger: to Sociological in explain – boot.«; from Zentralkommission 28 differently imperialer Zentraleuropa. des (2008), in see the what his of Robert Zivilprozessrechts 4 in: Die 1915 [1909]. e.g. way Empirical Theory »Man Politik p 101–110; pp. from happens Peter Ideen Herbert one Musil: Galizien the without of (1772– Cane acted. Franz Legal (ed.), Law, way in The M. a /

AD INISTORY 5/2020 AD INISTORY 5/2020

Abstract About the Author

In this paper, Eugen Ehrlich’s notion of living law is presented Walter Fuchs is senior researcher at the Institute for the as a concept of multi-normativity. The culturally pluralist Sociology of Law and Criminology (IRKS) in Vienna and lecturer character of his home province, Bukovina, led Ehrlich – at the Institute for Sociology, . Apart rightly considered a pioneer not only of the sociology of law, from criminological topics like white-collar crime or urban but also of legal pluralism and qualitative social research security, his research interests have increasingly focussed on – to empirically explore the legal customs of its different sociological questions of mobilising civil law. He recently also ethnic groups as actually practised. As Ehrlich stressed the examined the drastic decline in civil proceedings that can role of private societal legal transactions, his place of activity currently be observed in several European countries. During became a metaphor for a law beyond the state. However, his work on different cultures of guardianship for adults, the textbook narrative that Austrian state law has been he became interested in historical civil court statistics. ›dead‹ in the easternmost crown land of the Habsburg Among his latest publications are an introductory text on Empire does not stand up to closer scrutiny. In fact, as classical socio-legal theories (Springer 2019) and an article shown by an analysis of the monarchy’s legal statistics (that on the antidemocratic ‘Reich Citizens’ movement in the are hitherto practically unused for historical or sociological German Journal of Law and Society (together with Andrea studies) and contemporary media accounts, the Bukovina Kretschmann, Zeitschrift für Rechtssoziologie 2019). Since witnessed an extraordinarily high litigation rate. Apart from 2020, he is editor-in-chief of the latter journal. precarious economic conditions, this was most likely an unintended consequence of civil procedural reforms. Given the Bukovina’s figurative meaning in current socio-legal discourses on law and globalisation, a proper understanding of this demand for state justice, as well as its coexistence with multiple societal normativities, is not only of historical interest. 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

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