Litigious Bukovina: Eugen Ehrlich’s ›Living Law‹ and the Use of Civil Justice in the Late Habsburg Monarchy

The Austrian jurist Eugen Ehrlich (1862–1922) is considered not only one of the founders of the sociology of law but also a pioneer of legal pluralism. As a matter of fact, he conceptually and empirically analysed the coexistence of different normative orders within one and the same society. Ehrlich was born the son of a Jewish lawyer in Czernowitz,

Today, Czernowitz is called Chernivtsi (Чернівці). It is the capital of a province of the same name in western Ukraine. For pragmatic reasons, I will mainly use the historical form of geographical names throughout this article. No judgement whatsoever about any ›national‹ claims is intended.

then capital of the Bukovina, a crown land of the Habsburg Empire at its eastern periphery, where he later worked as professor of Roman law.

On Ehrlich’s biography, see Isabell Hensel: Eugen Ehrlich (1862–1922). Verbindungslinien zwischen Leben und Recht, in: Kritische Justiz (ed.): Streitbare JuristInnen. Eine andere Tradition, Baden-Baden 2016, pp. 163–186, at pp. 166–167; Stefan Machura: Eugen Ehrlich’s Legacy in Contemporary German Sociology of Law, in: Knut Papendorf / Stefan Machura / Anne Hellum (eds.): Eugen Ehrlich’s Sociology of Law, Berlin 2014, pp. 39–68, at pp. 39–41; Manfred Rehbinder: Die rechts- und staatswissenschaftliche Fakultät der Franz-Josephs-Universität in Czernowitz. Ihr Beitrag zur Erforschung des Rechts in einer multikulturellen Gesellschaft, in: Gerhard Hohloch / Rainer Frank / Peter Schlechtriem (eds.): Festschrift für Hans Stoll zum 75. Geburtstag, Tübingen 2001, pp. 327–344; Manfred Rehbinder: Die Begründung der Rechtssoziologie durch Eugen Ehrlich, Berlin ²1986, pp. 13–28.

Like the Austro-Hungarian Monarchy itself – against whose dissolution Ehrlich passionately argued for pacifist reasons at the end of the First World War

Eugen Ehrlich: The National Problems in Austria, The Hague 1917.

– the Bukovina and Czernowitz were characterised by an enormous ethnic, cultural and social diversity.

In Czernowitz, which had around 90,000 inhabitants on the eve of the First World War, newspapers appeared in six languages (German, Ukrainian, Polish, Romanian, Yiddish and Hebrew) and three alphabets (Latin, Cyrillic and Hebrew). The cultural club life was unusually dense. Convivial gatherings took place in ›National Houses‹ or private saloons. The city had several theatres (among them the Stadttheater, which was designed by the well-known architects Fellner and Helmer) and Vienna-style coffee houses. There were churches of numerous Christian denominations (Orthodox, Catholic and Protestant in different varieties) and dozens of synagogues. See Peter Rychlo: Czernowitz als geistige Lebensform. Die Stadt und ihre Kultur, in: Helmut Braun (ed.): Czernowitz. Die Geschichte einer untergegangenen Kulturmetropole, Berlin ³2013, pp. 7–30. Ehrlich himself converted from the Mosaic faith to Catholicism. While some scholars felt the call to the – predominantly German-speaking – University of Czernowitz as an academic ›penal colony‹ in the back province, he was firmly established in his home town; cf. Rehbinder: Die rechts- und staatswissenschaftliche Fakultät, p. 330.

As Ehrlich noticed in his brief treatise »The Living Law of the Peoples in the Bukovina«, this pluralist situation also had implications for legal matters:

In the Duchy of Bukovina, nine tribes are currently living side by side, partly even still quite peacefully: Armenians, Germans, Jews, Romanians, Russians (Lipovans), Rutenes, Slovaks (who are often counted among the Poles), Hungarians, Gypsies. A legal expert of the traditional direction would undoubtedly claim that all these peoples have only one, and exactly the same, Austrian law, which is valid throughout Austria. And yet even a cursory glance could convince him that each of these tribes observes quite different legal rules in all legal relations of daily life. […] I have decided to survey the living law of the nine tribes of the Bukovina in my seminar for living law.

Eugen Ehrlich: Das lebende Recht der Völker der Bukowina, in: Eugen Ehrlich (ed.): Recht und Leben. Gesammelte Schriften zur Rechtstatsachenforschung und zur Freirechtslehre, ausgewählt und eingeleitet von Dr. Manfred Rehbinder, Berlin 1967, pp. 43–60, at p. 43 [first appeared in: Recht und Wirtschaft 1 (1912), pp. 273–279, 322–324].

Ehrlich coined the term living law for these »quite different« norms that are actually relevant to everyday action. As he theoretically outlined in his monograph »Fundamental Principles of the Sociology of Law«, this legal corpus is nothing else than the »inner order of the associations of human beings«.

Eugen Ehrlich: Fundamental Principles of the Sociology of Law, translated by Walter L. Moll, New Brunswick/London 2002 [1936], p. 37 [first appeared as: Grundlegung der Soziologie des Rechts, München/Leipzig 1913].

According to Ehrlich, however, associations are not only ethnic communities, but all groups of people »who, in their relations with one another, recognise certain rules of conduct as binding, and, generally at least, actually regulate their conduct according to them«

Ehrlich: Fundamental Principles, p. 39.

– whether they are families, religious organisations, clubs, companies, professional or social classes, or even states. In its reference to observable social phenomena of multi-normativity, the concept of ›living law‹ goes far beyond the related socio-legal concept of law in action (as opposed to law in the books) by Roscoe Pound, with which it is sometimes confused:

Cf. Salif Nimaga: Pounding on Ehrlich. Again?, in: Marc Hertogh (ed.): Living Law. Reconsidering Eugen Ehrlich, Oxford/Portland 2009, pp. 157–175; Marc Hertogh: A ›European‹ Conception of Legal Consciousness: Rediscovering Eugen Ehrlich, in: Journal of Law and Society 31 (2004), pp. 457–481; David Nelken: Law in Action or Living Law? Back to the Beginning in Sociology of Law, in: Legal Studies 4 (1984), pp. 157–174.

Living law is not only – possibly inconsistently – applied statutory or case law, but it can refer to rules that need not have anything to do with the set, legitimised and enforced norms of the state. The state is only one of many social associations that are not afforded any priority whatsoever with regard to the emergence of effective legal rules. The »center of gravity of legal development lies« therefore, as Ehrlich writes in the foreword to his main work, »not in legislation, nor in juristic science, nor in judicial decision, but in society itself «.

Ehrlich: Fundamental Principles, p. lix.

Consequently, Ehrlich acknowledged the existence of societal legal norms, which he understood to be more than mere customs, even when they contradicted state laws – such as, e.g. certain patriarchal social structures in rural Bukovina:

The family law of the Austrian Civil Code, as is well known, is extremely individualistic […] Only so long as the child is a minor is it under the power of his or her father; but the father, the bearer of this 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 as in the other parts of Austria, the power of the father is an extremely serious matter. The Roumanian peasant, perhaps the only true Roman of our day, exercises a patria potestas, which seems strikingly familiar to the student of Roman law. There the children actually belong to the father […] And if one asks why the children submit so docilely, the answer is that resistance is something unheard of. Ever since I directed attention to this phenomenon […], I have again and again received the reply that those things that are in conflict with the Civil Code are ethical custom, not law. This reply is based on the same old idea, to wit that we are here dealing with a question of terminology, i.e. with the question just what it is to be called law. But we are here dealing with something quite different from this, i.e. with the fact that the Austrian Civil Code has not been able to root out this custom, which is in such decided conflict with the Code – irrespective of whether we call it law or ethical custom.

Ehrlich: Fundamental Principles, pp. 369–370.

Notwithstanding their intrinsic normative quality, Ehrlich regarded such social rules as, at any rate, a highly relevant subject matter of legal science.

Cf. Ehrlich: Die Erforschung des lebenden Rechts, in: Ehrlich (ed.): Recht und Leben, pp. 11–27, at p. 20 [first appeared in: Schmollers Jahrbuch für Gesetzgebung, Verwaltung und Volkswirtschaft im Deutschen Reich 35 (1911), pp. 129–147].

As the statement just quoted shows, he was not overly concerned with terminological issues. However, Ehrlich did propose a distinctive feature of legal norms. In order to ascribe a legal character to a rule, he considers the type of ›emotional tone‹ that its violation triggers: In contrast to mere reactions of anger, disapproval or ridicule, which follow transgressions of custom, tact or fashion, a breach of the law typically entails feelings of outrage.

Ehrlich: Fundamental Principles, p. 165.

Therefore, not the ›sources‹ of norms, but the psychological and social consequences of deviant behaviour, are decisive to differentiate law from other social norms. Meanwhile, Ehrlich considers the significance of the state’s coercive power, in which most legal theoretical approaches still see a necessary prerequisite – if not a key defining element – of the legal system, to be quite low. According to him, societal order is not based on the enforceability of legal obligations, but rather on the fact that these are mostly fulfilled – in economic life, for instance, simply in order to maintain one’s own creditworthiness.

Ehrlich: Fundamental Principles, pp. 61–82.

The Exploration of Living Law in the Bukovina

Ehrlich considered it one task of jurisprudence to empirically examine the law that is actually practised in society. From 1909 until the outbreak of the First World War, he held his »Seminar for Living Law« at the University of Czernowitz, in which he and his students researched – through excursions to farming villages and commercial enterprises and by analysing legal documents – those rules that were actually significant in legal transactions.

Cf. Rehbinder: Die Begründung der Rechtssoziologie, pp. 31–33.

In order to study the ethnically diverse legal customs of rural Bukovina, he designed a comprehensive questionnaire.

Ehrlich: Das lebende Recht, pp. 49–55.

Despite the fact that (or because) it was aimed at investigating »the law which dominates life itself even though it has not been posited in legal propositions«,

Ehrlich: Fundamental Principles, p. 493.

the topics of this survey instrument went far beyond legal matters in the narrower sense. Among other things, Ehrlich asked about the self-construction of the respective national identity, about rules of exogamy and endogamy, parenting styles, actual power relations within families, concrete matrimonial property regimes, legal relationships with regard to land and houses (including details concerning the handling of scattered fields, such as easements and rules of compulsory crop rotation), typical terms of labour and lease contracts (including whether the rent is paid in kind), practices of inheritance and the use of arbitration and litigation. A few selected questions may illustrate the style of the inquiry:

Whom does the people consider belonging to their nation? Is it the descent that counts? The creed? How does one behave towards baptized Jews? […] What does a man think he can do to his wife? Does he forbid her to go out, to visit the inn, to associate with friends, with male acquaintances? […] What does the woman think she is allowed to do to her husband? Does he obey her orders? […] Are there cruelties against the children? Does the neighbour intervene in such a case? […] What rights does the 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 any effectual oral wills?

Ehrlich: Das lebende Recht, pp. 49–54.

Ehrlich’s research programme can be regarded as an ambitious blueprint for cultural-anthropological and socio-legal field studies. What is more, by prudently instructing his students »that it does not depend on what the interviewees say, because this will often only be their own moral conviction«

Ehrlich: Das lebende Recht, p. 45.

and instead advising them to carefully interpret the answers in the context of their own observations, he even anticipated methodological principles of ethnographic and qualitative social research.

Cf. Christian Fleck: Rund um »Marienthal«. Von den Anfängen der Soziologie in Österreich bis zu ihrer Vertreibung, Wien 1990, pp. 58–59, 211.

Nevertheless, the results of the participants’ seminar papers were, as Ehrlich remarked in an expertise for the German Jurist’s Council in 1912, obviously quite modest. Apart from the »difficulty of the task« and the »unfamiliar work«, his often-economically struggling students seemed to have much more interest in living a typical ›Austrian dream‹ rather than doing pioneering scientific fieldwork, namely to succeed in getting a secure job in the state bureaucracy as quickly as possible.

Eugen Ehrlich: Gutachten über die Frage: Was kann geschehen, um bei der Ausbildung (vor oder nach Abschluß des Universitätsstudiums) das Verständnis des Juristen für psychologische, wirtschaftliche und soziologische Fragen in erhöhtem Maße zu fördern?, in: Ehrlich (ed.): Recht und Leben, pp. 61–79, at p. 73 [first appeared in: Verhandlungen des 31. Deutschen Juristentages, Vol. 2, Berlin 1912, pp. 200–220].

In any case, the exemplary research findings that Ehrlich reports – details of orally concluded lease agreements for arable land, hayfields and sheep pastures (with salt left over from cheese production for the cereal mash as a reward for shepherds)

Ehrlich: Das lebende Recht, p. 55–60.

– point to a pre-modern social and economic order. Consequently, Ehrlich has been blamed for having confused ›dying‹ with ›living‹ law.

Cf. Theodor Sternberg: Historische Methode und Historismus in der Rechtswissenschaft [1940], in: Theodor Sternberg (ed.): Zur Methodenfrage der Rechtswissenschaft und andere juristische Schriften, ausgewählt und eingeleitet von Manfred Rehbinder, Berlin 1988, pp. 137–162, at p. 160.

However, he was well aware that it would be more important to study »the viable seeds of a new law«

Eugen Ehrlich: Ein Institut für lebendes Recht, in: Ehrlich (ed.): Recht und Leben, pp. 28–42, at p. 38 [first appeared in: Juristische Blätter 33 (1911), pp. 229–231 and 241–244].

in modern life than the (then still practised yet vanishing) remains of an ancient customary law. His choice of study objects had mainly didactic reasons: As he considered »eyes to see and ears to hear«

Ehrlich: Die Erforschung, p. 23.

the most important ability of a jurist, he wanted to teach his students »to perceive the world with their own senses«.

Ehrlich: Die Erforschung, p. 25.

Had he worked on a different, economically more-advanced place, he would have let studied, for instance, the living law of »the grain trade or the shipping company, the large estate, the sugar or chemical industry«.

Ehrlich: Das lebende Recht, p. 46.

At »the site of a developed industry, a staple of world trade, a centre of banking transactions, it goes without saying that these areas should mainly be taken into account«.

Ehrlich: Gutachten, p. 72.

The Bukovina as ›Mecca for Legal Sociologists‹

More than a century after the publication of Ehrlich’s treatise on the Bukovina, the German legal scholar, Gunnar Folke Schuppert, has called this historical regional entity »a virtual Mecca for legal sociologists«.

Gunnar Folke Schuppert: The World of Rules. A Somewhat Different Measurement of the World, Frankfurt am Main 2017, p. 263.

Why should this territory, which was divided between the Ukrainian Soviet Republic and Romania after the Second World War,

It is not true that the Bukovina »now belongs to Ukraine«, as Schuppert (ibid) writes. Since 1947 (Paris Treaties), the southern part of the former Habsburg duchy forms a part of Romania.

still be of interest for present-day social researchers with other than historical purposes? To answer this question, a distinct branch of Ehrlich’s reception has to be outlined. In general, the appraisal of his legacy in the field of socio-legal studies turned out mixed.

Cf. Machura: Eugen Ehrlich’s Legacy, pp. 46–63; Klaus A. Ziegert: Beyond ›Living Law‹: Eugen Ehrlich’s General Theory of Law, in: Papendorf / Machura / Hellum (eds.): Eugen Ehrlich’s Sociology of Law, pp. 17–38; Knut Papendorf: A Voyage of Discovery: Eugen Ehrlich in Scandinavia, in: Papendorf / Machura / Hellum (eds.): Eugen Ehrlich’s Sociology of Law, pp. 115–132; David Nelken: Ehrlich’s Legacies: Back to the Future in the Sociology of Law?, in: Hertogh (ed.): Living Law, pp. 237–272.

Since his polemical controversy with Hans Kelsen,

See Hans Kelsen / Eugen Ehrlich (eds.): Rechtssoziologie und Rechtswissenschaft: Eine Kontroverse (1915/17). Mit einer Einführung von Klaus Lüderssen, Baden-Baden 2003.

Ehrlich was repeatedly accused of mixing up facts (is) and norms (ought) – or, to be more precise, the tasks of a descriptive sociology of law and an ultimately normative, albeit empirically informed sociological jurisprudence. While his role as a founding figure for both intellectual enterprises is beyond doubt, many scholars – often insisting on state-centred definitions – have questioned the validity and usefulness of his far-reaching concept of law.

Cf. Machura: Eugen Ehrlich’s Legacy, pp. 49–59. Klaus Röhl, for instance, labels Ehrlich‘s broad societal understanding of legal normativity as tautological ›Panjurismus‹; see Klaus F. Röhl: Rechtssoziologie. Ein Lehrbuch, Köln et al. 1987, p. 216; cf. recently also Peter Koller: Eugen Ehrlich, in: Karl Acham (ed.): Die Soziologie und ihre Nachbardisziplinen im Habsburgerreich. Wien 2020, pp. 480–488, at p. 483.

Even Niklas Luhmann, whose notion of the society’s legal system (as encompassing all acts of communication that refer to the difference between lawfulness and unlawfulness) is also very broad, deemed it »unclear« and considered Ehrlich’s research »inadequately founded in theory«. According to him, the Bukovinian professor’s work »has alarmed jurists, yet not particularly impressed sociologists«.

Niklas Luhmann: A Sociological Theory of Law, London ²2014 [1985], p. 18 [first appeared as: Rechtssoziologie, Reinbek 1972].

However, it was precisely the fuzzy, fluid, open, chaotic and decentralised nature of Ehrlich’s concept of living law that attracted a new generation of academics engaging in critical or postmodern discourses,

»Postmodern jurists love legal pluralism. They do not care about the law of the centralized state with its universalist aspirations. It is the ›asphalt law‹ of the Brasilian favelas, the informal counter-rules of the patchwork of minorities, the quasi-laws of dispersed ethnic, religious, and cultural groups, the disciplinary techniques of ›private justice‹, the plurality of non-State laws in associations, formal organizations, and informal networks where they find the ingredients of postmodernity: the local, the plural, the subversive«; Gunther Teubner: The Two Faces of Janus: Rethinking Legal Pluralism, in: Cardozo Law Review 13 (1992), pp. 1443–1462, at p. 1443.

who were interested in situations where »two or more legal systems coexist in the same social field«.

Sally Engle Merry: Legal Pluralism, in: Law & Society Review 22 (1988), pp. 869–896, at p. 870.

In a seminal paper from 1986, the American jurist John Griffiths presented Ehrlich as a forebear of what he called a »descriptive conception of legal pluralism« being suitable to challenge dominant ideologies of »legal centralism« underpinning »the moral and political claims of the modern nation state« in favour of a better understanding of legal reality as »an unsystematic collage of inconsistent and overlapping parts«.

John Griffiths: What is Legal Pluralism?, in: Journal of Legal Pluralism 24 (1986), pp. 1–55, at pp. 1–4.

Ten years later, the German legal scholar Gunther Teubner attracted international attention with an article named »Global Bukowina«. Given Luhmann’s rather derogatory comments on Ehrlich, it is not without a certain irony that the systems theoretician Teubner used the home of »the almost forgotten law professor from Czernowitz«

Gunther Teubner: ›Global Bukowina‹: Legal Pluralism in the World Society, in: Gunther Teubner (ed.): Global Law without a State, Aldershot 1997, pp. 3–28, at p. 3 [first appeared as: »Globale Bukowina. Zur Emergenz eines transnationalen Rechtspluralismus«, Rechtshistorisches Journal 15 (1996), pp. 255–290].

as allegory for an innovative account of law beyond the state in a functionally differentiated and globalised world society:

Ehrlich, of course, is romanticizing the law-creating role of customs, habits and practices in small-scale rural communities but, in the current globalization process, his living law seems to take on a different and quite dramatic significance relying on cold 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 various fragmented discourses, the globalization of law is bound to follow as a spill-over effect of those developments. From this, the main thesis follows: global law will grow mainly from the social peripheries, not from the political centres of nation states and international institutions. A new living law growing out of fragmented social institutions which had followed their own paths to the global village seems to be the main source of global law.

Teubner: Global Bukowina, p. 7.

Stefan Kadelbach and Klaus Günther – obviously referring to Teubner – have even recently presented a taxonomy of legal pluralist phenomena in which they distinguish no less than three versions of ›Bukovina‹: a Bukovina (»private law without the state in a state«), an exotic Bukovina (»societal law without the state in a state«, e.g. indigenous law in colonial or postcolonial situations) and a global Bukovina (»law without the state outside the state«, in the sense of Teubner’s analysis of phenomena, such as the contemporary worldwide lex mercatoria).

Stefan Kadelbach / Klaus Günther: Recht ohne Staat?, in: Stefan Kadelbach / Klaus Günther (eds.): Recht ohne Staat? Zur Normativität nichtstaatlicher Rechtsetzung, Frankfurt am Main 2011, pp. 9–48.

Interestingly enough, due to the reception of Ehrlich’s work, the Bukovina has finally become a metaphor for a law distant from the state in legal pluralist environments.

Cf. Lisa Hahn: Entgrenzte Bukowina. Was ist und leistet Recht in einer normpluralistischen Perspektive?, in: Ethik und Gesellschaft 2/2018, online: http://www.ethik-und-gesellschaft.de/ojs/index.php/eug/article/view/2-2018-art-2/578 (30. 12. 2019); for an overview and a critique of legal pluralist approaches, see Keebet von Benda-Beckmann / Bertram Turner: Legal pluralism, social theory, and the state, in: The Journal of Legal Pluralism and Unofficial Law 50 (2018), pp. 255–274; Ralf Seinecke, Das Recht des Rechtspluralismus, Tübingen 2015.

Accordingly, portrayals of Ehrlich in the sociology of law textbooks or overview articles usually ascribe his detection of living law to the actual insignificance of state structures in the easternmost province of the Habsburg monarchy. Following Stefan Machura, for instance, »the Austrian codified law, the topic learnt by students across the vast empire, was an irrelevant ›dead‹ law« in the Bukovina.

Stefan Machura: German sociology of law: a case of path dependency, in: International Journal of Law in Context 8 (2012), pp. 506–523, at p. 507.

To a certain extent, such depictions of this region inevitably mirror ›orientalistic‹ discourses from the second half of the 19^th century describing the then-Austrian lands in today’s Poland, Ukraine and Romania as ›Half-Asia‹ (Karl-Emil Franzos),

Karl Emil Franzos, Aus Halb-Asien. Culturbilder aus Galizien, der Bukowina, Südrußland und Rumänien, Erster Band, Leipzig 1876.

as a ›Far and Wild East‹,

Bernd Weiler: E Pluribus Unum? The Kakanian Intellectual and the Question of Cultural Pluralism (conference paper, Oxford 2002), online: http://users.ox.ac.uk/~oaces/conference/papers/Bernd_Weiler.pdf (30. 12. 2019), p. 1.

a region where the cultural (or, for that matter, legal) achievements of Western civilisation have not yet fully arrived. However, irrespective of Ehrlich’s undoubtedly outstanding accomplishment of having discovered and studied crucial patterns of societal legal practice, is it really true that Austrian state law was of no importance at all in his place of activity at his times?

The Demand for Civil Litigation in the Late Habsburg Monarchy’s Bukovina

Given Ehrlich’s remarks concerning the relative meaninglessness of the Austrian Civil Code in the Bukovina and the metaphoric equation of the latter with a legal sphere beyond the state in contemporary socio-legal discourses, one would expect very little demand for civil procedural remedies before state courts in the easternmost crown land of the Austro-Hungarian Empire. Indeed, in an 1867 speech by Adolf Ficker, the later president of the Central Commission of Statistics in Cisleithania, the Bukovina was mentioned (together with Galicia) as having by far the lowest civil trial rates of the entire state territory.

Adolf Ficker: Rechtspflege. Vortrag, gehalten am 17., 21., 24. und 28. Januar 1867, in: Statistisch-administrative Vorträge auf Veranstaltung der k. k. Statistischen Central-Commission, Wien 1867, pp. 145–180, at p. 178.

As a matter of fact, the number of civil lawsuits per inhabitant in Ehrlich’s home province was consistently below the Austrian average until 1871. However, as Figure 1 shows, from the 1880s onwards, the Bukovina’s civil litigation rates were always considerably higher than in the rest of Cisleithania.

Following the common usage of the term in socio-legal texts, ›litigation rate‹ here always denominates the number of (incoming, or, if not available, finished) contentious civil cases of first instance per population size.

Civil cases per 1,000 population in Bukovina and Cisleithania as a whole, 1858–1912; sources: see Appendix

Whereas the kink in the time series between 1873 and 1874 might be attributable to the then financial crisis (›Founders’ crash‹),

Cf. Christian Wollschläger: Die Arbeit der europäischen Zivilgerichte im historischen und internationalen Vergleich. Zeitreihen der europäischen Zivilprozeßstatistik seit den 19. Jahrhundert, in: Erhard Blankenburg (ed.): Prozeßflut? Indikatorenvergleich von Rechtskulturen auf dem europäischen Kontinent, Köln 1988, pp. 21–114, at p. 64.

the subsequent steep increase is most likely a consequence of the Law on the Small Claims Procedure (Gesetz über das Bagatellverfahren) which came into effect in autumn 1873. This statute, which anticipated the central principles of the later Code of Civil Procedure of 1895 (such as orality, ex officio proceedings or free consideration of evidence)

Cf. Peter G. Mayr: Erster Teil: Einführung, Grundlagen und Grundsätze, in: Peter G. Mayr / Georg E. Kodek (eds.): Zivilprozessrecht, Wien ⁴2018, pp. 43–44.

significantly facilitated and accelerated the enforcement of minor monetary claims.

See Josef Kaserer (ed.): Das Gesetz vom 27. April 1873 über das Verfahren in geringfügigen Rechtssachen (Bagatellverfahren) mit Materialien, Wien 1873, p. 42.

This also applied to a second bill entering into force at the same date, the Law on the Dunning Procedure (Gesetz über das Mahnverfahren). Interestingly, however, the latter statute was not enacted in Galicia, Dalmatia and the Bukovina, because it was feared that the high level of illiteracy in these crown lands could trigger a misuse of the new procedural remedy.

Cf. Kaserer (ed.): Das Gesetz vom 27. April 1873 über das Mahnverfahren mit Materialien, Wien 1873, pp. 33 and 38.

Apart from these legal prerequisites for the growing mobilisation of courts, however, next to nothing is known about the societal determinants of the Habsburg Empire’s spatially and temporally varying litigation rates. The Monarchy’s civil justice statistics – which are, compared to later standards, astonishingly rich – have attracted hardly any scientific attention at all, neither as a socio-legal data source nor as an object of historical scholarship in its own right. Since 1898, the year in which the new Code of Civil Procedure came into force, the litigation rates in Bukovina were on average 2.5 times higher than in the entire territory of the Austrian half of the empire. Figure 2 illustrates the geographical distribution of civil cases per population in 1910 by regional court districts. Apart from Bukovina, the demand for lawsuits was highest in Galicia, parts of Dalmatia and the metropolitan areas of Vienna and Trieste. By contrast, civil courts were least utilised in Upper Austria, Southern Bohemia and the Italian-language part of Tyrol. When the data are not classified by quantiles (left map), but by equal intervals (right map), the Bukovina’s saliently high litigation rate becomes all the more apparent. In 1912, a total of 269 lawsuits per 1,000 inhabitants was filed, which is remarkable by both historical and international standards of comparison.

Cf. the statistical data in: Marc Galanter: Reading the Landscape of Disputes: What We Know and Don’t Know (and Think We Know) about Our Allegedly Contentious and Litigious Society, in: UCLA Law Review 31 (1983), pp. 4–71, at pp. 35–52; David S. Clark: Civil Litigation Trends in Europe and Latin America since 1945: The Advantage of Intracountry Comparisons, in: Law & Society Review 24 (1990), pp. 549–569, at pp. 559–564; Wollschläger: Die Arbeit der europäischen Zivilgerichte, p. 104; Christian Wollschläger: Exploring Global Landscapes of Litigation Rates, in: Jürgen Brand / Dieter Strempel (eds.): Soziologie des Rechts. Festschrift für Erhard Blankenburg zum 60. Geburtstag, Baden-Baden 1998, pp. 577–588, at pp. 587–588; Walter Fuchs: Prozessebbe: Wo liegen die Gründe? Das Sinken der Klagezahlen aus rechtssoziologischer Sicht, in: Österreichisches Anwaltsblatt 2019, pp. 451–460.

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

However, the overall socio-spatial pattern of civil court use defies straightforward economic or ›cultural‹ explanations. Although small claims before district courts made up a large part of the judges’ business volume in the Bukovina, proceedings before its regional courts in Czernowitz and Suczawa (with higher amounts in dispute) were also relatively heavily used. Only Vienna and Lemberg had higher rates of lawsuits before regional courts. In general, as Figure 3 (left plot) shows, these rates were strongly correlated with the amount of civil cases before district courts per population. There is also a very clear statistical association between the regional court litigation rate and the density of attorneys (right plot in Figure 3).

The (log-log) correlation between the density of advocates and the overall litigation rate (^r = 0.46) is somewhat less impressive, but also clearly visible.

The number of lawyers per population in the Bukovina was no less than in many administrative and economic centres of the Monarchy. This is certainly not least a consequence of the foundation of a University in Czernowitz in 1875, at whose law faculty Ehrlich held his professorship since 1897. In any case, the law of the Austrian Civil Code, which after all had to be the legal basis of any procedural enforcement of private claims, was definitely not entirely ›dead‹ or ›absent‹ in the Bukovina of his times.

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

Reasons for the High Demand for Litigation in the Bukovina

What were the reasons for the surprisingly high demand for civil justice in the Bukovina? Although it is beyond the scope of this article to address this question in a comprehensive manner, a quick glance at contemporary discourses might provide some hints. First of all, it is interesting to see that the official statistical publications themselves offered hardly any explanation for the regional disparities that they had so meticulously displayed in numerous tables. Rather, their focus was to prove the – politically intended – effectiveness and expeditiousness of the new civil procedure.

Cf. K.k. Statistische Zentralkommission (ed.): Österreichische Justiz-Statistik. Ein Handbuch für die Justizverwaltung, Dritter Jahrgang 1912, Wien 1915, pp. 134–145; Hugo Forcher: Die theoretischen Grundlagen der Verwaltungsstatistik im engeren Sinne nebst einem praktischen Anhange, Statistische Monatsschrift XX (1915), pp. 76–156.

However, before the new Code of Civil Procedure came into force in 1898, it was discussed whether one could now also apply the Law on the Dunning Procedure in Galicia and the Bukovina, which was ultimately denied.

K.k. Justizministerium (ed.): Materialien zu den neuen österreichischen Civilprocessgesetzen, 1. Band, Wien 1897, p. 643.

The Permanent Committee on the Code of Civil Procedure pointed to the high caseload of these provinces, explaining it through unspecified »agrarian, social and national conditions«, as well as »the character of the rural population, which tends to litigiousness« (Prozesssucht, literally meaning »addiction to litigation«).

K.k. Justizministerium (ed.): Materialien, p. 764.

The attribution of a litigious temperament to certain parts of the population – usually to underprivileged peasants or Jews – in the Eastern lands of the Austrian Empire was, often, rendered together with complaints about hack lawyers (Winkelschreiber), a topos also present in parliamentary debates and newspaper reports of the time.

See, e.g., the following newspaper articles whose full text is available at the Austrian National Library’s digital archive ANNO (http://anno.onb.ac.at): Salzburger Chronik, 17. 1. 1884, p. 6 (»Jüdische Winkelschreiber«); Bukowinaer Rundschau, 19. 11. 1885, p. 5 (courtroom reportage); Neues Wiener Tagblatt, 16. 2. 1893, p. 3 (quote of the minister of justice Schönborn); Neue Freie Presse, 18. 10. 1904, p. 6 (report on a session of the Galician parliament); Czernowitzer Tagblatt, 18. 11. 1905, p. 4 (letter to the editor); Bukowinaer Post, 24. 10. 1907, p. 1 (speech by deputy Straucher); Bukowinaer Post, 2. 6. 1908, p. 1 (mention of the high usage of revenue stamps); Czernowitzer Tagblatt, 30. 5. 1909, p. 4 (response by Jakob Wachtel); Allgemeine österreichische Gerichts-Zeitung, 1. 1. 1910, p. 2 (article by Ignaz Freiherr von Ruber); Der Volksfreund, 9. 1. 1913, p. 5 (»Streitsucht«).

Aside from ethnic or (at least subtle) anti-Semitic stereotypes,

On litigiousness and prejudices against Jews cf. Marc Galanter: The Conniving Claimant: Changing Images of Misuse of Legal Remedies, in: DePaul Law Review 50 (2000), pp. 647–666.

however, several media accounts also covered discussions of the Bukovina’s unfavourable economic and social conditions that might have given rise to the extraordinarily high numbers of lawsuits.

See also the statistically well-documented proposal to the Parliament by the Bukovinian deputy Benno Straucher, which is quoted in full length in: Czernowitzer Tagblatt, 16. 7. 1909, pp. 3–4; 17. 7. 1909, pp. 3–4; 18. 7. 1909, pp. 4–5; 20. 7. 1909, p. 3; 21. 7. 1909, pp. 3–4; 25. 7. 1909, pp. 4–5.

In 1909, for instance, the Bukovinian German language daily newspaper Czernowitzer Tagblatt published a five-pages-long article containing the results of a survey among judges and advocates on the »overburdening« of the courts.

Czernowitzer Tagblatt, 30. 5. 1909, pp. 2–6.

Judges in the districts of Czernowitz and Suczawa indeed faced a heavy caseload, even though their number was relatively high in relation to the population size. As Figure 4 illustrates, the litigation rate was only moderately associated with the density of judges (left plot) but highly correlated with the number of civil cases per judge (right plot).

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

The participants in the newspaper’s probe were asked about the reasons for the judges’ high caseload. Apart from obvious conditions of scarce human resources, some respondents mentioned socioeconomic causes for the heavy reliance on civil justice and drew a vivid picture of pauperism in the Bukovina. According to them, many of the region’s inhabitants experienced difficulty earning a living. The lack of any noteworthy industrial structures obviously caused a massive shortage of capital mostly affecting the smallholding farmers. For every wedding or funeral in their often-large families, they had to raise a loan from private lenders on disadvantageous terms or sell a small piece of land, which further contributed to the already-existing inefficient fragmentation of real estate property. The latter triggered numerous boundary disputes, the more so as many transactions were not properly recorded in the land title register – following a ›living‹ legal custom of oral land sales. This, in turn, could be utilised by speculators who bought registered parcels in order to sue the unofficial owners. What is more, the high illiteracy rate

Although illiteracy rates quickly dropped in the Carpathian lands (1890: 69.3%; 1900: 56.9%; 1910: 41.9%), according to the official censuses, more than half of the Bukovinian population (53.9%, as opposed to 16.5% in the entire Austrian half of the Habsburg Empire and 3.9% in the Alpine lands) >10 years old still could neither read nor write in 1910. See k.k. Statistische Zentralkommission (ed.): Die Ergebnisse der Volkszählung vom 31. Dezember 1910 in den im Reichsrate vertretenen Königreichen und Ländern. Die Bevölkerung nach der Gebürtigkeit, Religion und Umgangssprache in Verbindung mit dem Geschlechte, nach dem Bildungsgrade und Familienstande; die körperlichen Gebrechen; die soziale Gliederung der Haushaltungen, Wien 1914, pp. 41–42.

offered business opportunities for middlemen, considerably complicating seemingly simple economic and legal relations. Finally, the law faculty in Czernowitz seemed to produce too many graduates, many of whom becoming attorneys faced with fierce competition.

From a sociological point of view, it is tempting to analyse these circumstances in (Durkheimian) terms of anomie and thus interpreting the high litigation rate as a sign of societal disintegration in times of rapid socioeconomic change.

Cf. Emile Durkheim: Suicide. A Study in Sociology, New York 1951.

However, even if such an approach may provide a useful theoretical link between certain types of legal behaviour and more general social conditions in a specific historical situation, one should not overlook one apparently trivial yet crucial prerequisite for the massive mobilisation of civil courts: As the lawyers interviewed by the newspaper also stressed, it was ultimately the civil procedural law itself that enabled its widespread application. Although the introduction of quick and cheap proceedings in Austria is often seen as a decisive step away from a ›liberal‹ towards a ›social‹ model of civil procedure,

Cf. Rudolf Wassermann: Der soziale Zivilprozeß. Zur Theorie und Praxis des Zivilprozesses im sozialen Rechtsstaat, Neuwied/Darmstadt 1978, pp. 52–57; Walter H. Rechberger: Die Ideen Franz Kleins und ihre Bedeutung für die Entwicklung des Zivilprozessrechts in Europa, in: Ritsumeikan Law Review 28 (2008), pp. 101–110; Mayr: Einführung, pp. 43–44.

its establishment most likely yielded unintended and rather adverse societal consequences in the monarchy’s eastern provinces. After all, the Bukovina was not simply a multi-tribal ›wild east‹ but rather, as Klemens Kaps has argued for Galicia,

Klemens Kaps: Ungleiche Entwicklung in Zentraleuropa. Galizien zwischen überregionaler Verflechtung und imperialer Politik (1772–1914), Wien/Köln/Weimar 2015.

a culturally and legally sufficiently integrated – ›semi-peripheral‹ – zone whose economic backwardness nevertheless served a function within the Habsburg Empire’s division of labour.

Litigation and Living Law – a Contradiction Missed by Ehrlich?

At first sight, the strikingly high civil litigation rates in the Bukovina of the Austro-Hungarian Monarchy’s latest decades are difficult to reconcile with Ehrlich’s simultaneously developed findings on the indigenous living law of the region’s different peoples. When Ehrlich dismissed the law of the Austrian Civil Code as relatively meaningless in his home province, did he overlook an important aspect of legal practice that must have had a significant impact on daily social life? First of all, it is important to note that some features of the ancient rural customary law may in fact have amplified the mobilisation of state courts, at least against the background of economically deteriorating circumstances, namely the habit of purely oral transactions (even on land sales) in a widely illiterate yet multilingual society. Furthermore, even though Ehrlich mentioned litigation and arbitration in his questionnaire, it had a relatively strong focus on family matters, which in fact could hardly be controlled by the state’s enlightened liberal statutory civil law at all – probably not only in the Bukovina, but also on Dalmatian 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, due to his theoretical focus on actually practised private law, Ehrlich may simply not have been very interested in the enforcement of rights before state courts. When dispute arises in one out of hundred transactions and a lawsuit is filed during one out of hundred justiciable disputes,

These proportions are admittedly arbitrary, yet not completely unrealistic, in the light of socio-legal insights; see e.g. Herbert M. Kritzer: Claiming Behaviour as Legal Mobilization, in: Peter Cane / Herbert M. Kritzer (eds.): The Oxford Handbook of Empirical Legal Research, Oxford 2010, pp. 260–284.

99.99% of all transactions and 99% of all justiciable disputes are handled without any judicial intervention. Even if the mobilisation of courts quintuples, 99.95% of all transactions and 95% of all justiciable conflicts resulting out of them still run without any involvement of a judge. Having directed scientific attention to this overwhelming majority of legal reality is unquestionably one of Ehrlich’s great sociological achievements. Nevertheless, the concretistic and private-law-oriented character of his understanding of law’s role in society may have led him to underestimate both the material and symbolic force of state law.

Cf. the sociological account of law’s power by Pierre Bourdieu: The Force of Law: Toward a Sociology of the Juridical Field, in: Hastings Law Journal 38 (1987), pp. 805–853.

Even if transactions gone wrong were certainly rather exceptional cases in the Bukovina as well, they resulted in >125,000 execution procedures in a province of 800,000 inhabitants in 1910.

Source: see Appendix; K.k. Statistische Zentralkommission (ed.), Tafelwerk zur österreichischen Justiz-Statistik. Ein Quellenwerk für justizstatistische Forschungen, Erster Jahrgang 1910, Wien 1913.

It should be borne in mind that incidents of conflict and unlawfulness are constitutive elements of how law is perceived and experienced.

Cf. Niklas Luhmann’s argument against Theodor Geiger’s empiricistic concept of legal effectivity; Luhmann, A Sociological Theory of Law, p. 22.

However, Ehrlich was well aware of the difficult social conditions that most likely gave rise to the enormous penchant for litigation in the Bukovina. In one of his political essays,

Eugen Ehrlich: Die Aufgaben der Sozialpolitik im österreichischen Osten (Juden- und Bauernfrage), München/Leipzig ⁴1915 [1909].

he relentlessly analysed the region’s economic and political predicaments and complained about the career aspirations of privileged young people, who, in his opinion, all too often sought to become lawyers instead of enriching the national wealth by productive entrepreneurship. Although he devoted several pages to what he explicitly called »the Jewish question«, he sharply rejected the explanations for the harsh living conditions of the Bukovina in general, and its Jewish population in particular, that relied on any racial, religious or national character.

To a certain extent, such a stance is mirrored in a passage of Robert Musil’s famous chapter on Kakania in his »Man without Qualities«: »In this country one acted – sometimes to the highest degree of passion and its consequences – differently from the way one thought, or one thought differently from the way one acted. Uninitiated observers have mistaken this for charm, or even for a weakness of what they thought to be the Austrian character. But they were wrong; it is always wrong to explain what happens in a country by the character of its inhabitants. For the inhabitant of a country has at least nine characters: a professional, a national, a civic, a class, a geographic, a sexual, a conscious, an unconscious, and possibly even a private character to boot.«; Robert Musil: The Man Without Qualities, London 1995, p. 30.

Passionately protesting against anti-Semitism (»this not very clever student’s prank«

Ehrlich: Die Aufgaben der Sozialpolitik, p. 30.

) and arguing for industrialisation of the province, he insisted on historical and economic reasons for the challenges that many rural and Jewish inhabitants faced. What is more, Ehrlich also knew about the emergence of litigious legal practices. Interestingly enough, in a 1911 treatise on living law (the text of which he partly included in his »Fundamental Principles«), he mentioned them in the context of a critique of the official legal statistic’s epistemological interest:

The statistics of justice only give bare figures, what they mean would have to be researched by a science of living procedural law. The swift justice that Austria owes to the new civil procedure is reflected splendidly in the justice statistics; who talks about that many a Polish smallholder or cottager owes it to it when his house and farm were sold before he, in a foreign country condemned to harvest work, could have had any idea that a lawyer in the district town as his curator had been filed with a quite mischievous lawsuit? Does any scholar of civil procedural law care that the exclusion of the appeal against the default judgment has already produced an own litigation industry, that usurers and instalment dealers in Austria carefully select the time for the lawsuit so that it is as uncomfortable as possible for the defendant to appear within a day’s drive?

Ehrlich: Ein Institut für lebendes Recht, pp. 32–33.

Conclusion

In this paper, Eugen Ehrlich’s notion of living law was introduced as a concept of multi-normativity. The culturally pluralist character of his home province, Bukovina, led Ehrlich to empirically explore the legal customs of its different ethnic groups as actually practised. With his approach to the study of law’s role in society, Ehrlich is rightly considered a pioneer not only of the sociology of law but also of legal pluralism and qualitative social research. As Ehrlich stressed the role of private societal legal transactions, his place of activity became a metaphor for a law beyond the state. However, the textbook narrative that Austrian state law has been ›dead‹ in the easternmost crown land of the Habsburg Empire does not stand up to closer historical and sociological scrutiny. In fact, the Bukovina, in which a law faculty was established in 1875, witnessed an extraordinarily high litigation rate during the monarchy’s last decades. Apart from precarious economic conditions, this situation was most likely an unintended consequence of civil procedural reforms. Plaintiffs actually used the new opportunities for the enforcement of legal claims, »often appropriating them for their own purposes or reinterpreting them to fit their interests«,

Pieter M. Judson: The Habsburg Empire: A New History, Cambridge, MA 2016, p. 4.

as Pieter Judson has generally observed for the relationships between the Habsburg monarchy’s imperial institutions and its various local societies. Given the Bukovina’s figurative meaning in current socio-legal discourses on law and globalisation, a proper understanding of such dynamics, as well as their coexistence with multiple societal normativities, is not only of historical interest. In this way, the Bukovina might continue to be a ›Mecca for legal sociologists‹.

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