The late Habsburg Empire spawned two brands of jurisprudence that refashioned legal science and came to be applied on a global level: Eugen Ehrlich's legal sociology and Hans Kelsen's pure theory of law. Regarded as antipodes, Kelsen and Ehrlich are rarely discussed in tandem. Hans Kelsen designed his pure theory as a universally valid analysis of norms that was neatly separated from the social and natural sciences. Cleansed of all culture-specific traits with surgical precision, Kelsen's concept of statehood complemented his scientific agenda: his state was identical with its legal order; it was law. Eugen Ehrlich, conversely, took great relish in sapping the foundations of Kelsen's sanitized science of norms. For Ehrlich, laws were inextricably woven into the fabric of society whose countless associations and corporate bodies lived their legal life largely unaffected by state legislation. According to Ehrlich, Kelsen's project was futile because every normative system that claimed to be universal and detached from its social and cultural context merely camouflaged its indelible conditions of existence.
My essay departs from the convention of treating Kelsen and Ehrlich as intrinsically opposed, seeking instead to bring out the common proclivities that their projects shared. It is true that Kelsen and Ehrlich did see themselves as antipodes, and the crushing repartees they exchanged possess all the pizzazz and panache of fin de siècle scholarly polemics. By looking at the local conduits and catalysts that made Ehrlich's and Kelsen's oeuvres possible I offer a fresh reading of their works as varieties of Habsburg legalism. Not only did Kelsen and Ehrlich study each other's works—Ehrlich's Foundations of Legal Sociology and Kelsen's vitriolic response will be discussed below—but they also both grappled with the practical challenges their Habsburg polity produced. Indeed it can be argued that Ehrlich's sociology and Kelsen's pure theory of law constitute the two most significant and broadly resonant vocabularies of late Habsburg jurisprudence.Footnote 1 Further, both have had a global following, and the international appeal of both Kelsen's and Ehrlich's work, as of other conceptual resources from the region, was due to their shared ability to grasp and shape the multilingual and multi-religious reality of Habsburg Central Europe in a manner that permitted them to scale their local insights up into global ones.Footnote 2 In what follows I seek to unravel the formative imprint the daily management of imperial diversity left on Kelsen's and Ehrlich's works and thereby to untangle their shared conceptual premises.
By countering the standard image of Kelsen and Ehrlich as opponents, my objective is to retrieve the shared substratum on which their projects rested. In reflecting on how the legal system of the Habsburg Empire worked, Ehrlich and Kelsen formulated a prescient ideology critique: Kelsen's pure theory debunked the myth of a substantive “will of the state” that tied the legal system together. Not only did Ehrlich fully share this line of attack; his sociology of law also subverted the nation whose organic unity and polity-founding agency he exposed as a sham. Taken together, Kelsen's and Ehrlich's works shattered the three dogmas that served as threshold prerequisites of statehood for most contemporary jurists: the state's impermeable territory, its homogeneous subject population, and its unitary authority based on an overarching state will.
What is the broader conceptual purchase of my enquiry? I believe that a specific constellation enabled Kelsen and Ehrlich to develop their insights. The period in which Ehrlich and Kelsen worked on their projects was a time when two crucial debates had begun to interact and cross-fertilize: the foundations of knowledge and the nature of Habsburg statehood were equally at stake.Footnote 3 It was this combination that turned Habsburg Central Europe into the workshop of world knowledge that it was.Footnote 4 The Habsburg realms are often conveniently grouped together with other allegedly gridlocked, ramshackle multinational conglomerates like the Ottoman and the Russian monarchies. Recent research, however, not only reevaluates these ostensibly “backward” polities but also calls for a recalibration of the terms of comparison that frame this juxtaposition. The study of the Habsburg Empire, then, is no longer a safely self-contained, antiquarian specialism; rather, it promises to rediscover a previously skirted fulcrum of “world making” that produced a portfolio of conceptual resources for the twentieth century.Footnote 5 The excavation of Kelsen's and Ehrlich's works enables me to lay bare the common local pedigree that shaped these two rival, yet co-original, visions of world legal order.
The title of my article features three concepts: imperial diversity, fractured sovereignty, and the brittleness of legal universals. Each of these three aspects can be found elsewhere in the world of the fin de siècle, but what made Habsburg Central Europe special was the coexistence and entanglement of all three dimensions: it was this specific configuration that gave rise to Ehrlich's and Kelsen's connected innovations. They both wove these three strands together, albeit each in his distinct way, making the problem of Habsburg statehood, with its smorgasbord of territories and highly differentiated population, produce original solutions for the study of legal universals.
Hans Kelsen and Eugen Ehrlich in their Habsburg environment
The Habsburg Empire of Kelsen's and Ehrlich's days was no stubborn toehold of feudalism, no gristly medieval leftover in a modern world. Over the course of the nineteenth century, Habsburg jurists had modeled the empire into a constitutional state with functioning parliamentary and judiciary institutions that possessed a highly ramified, publicly accountable administration and a sprawling civil society. While historians have long feasted on the allegedly inexorable rise of national animosity that sealed the empire's fate, recent studies have begun to dispel this cliché. Indeed, nationalist politicians jostled cheek by jowl since the 1860s, seeking to enlist among their electorate the many still uncommitted citizens who refused to declare allegiance to either of the national groups in the making. Meanwhile, trailblazers of the region's nations deftly used Habsburg constitutional institutions to enhance their standing within the empire, rather than causing its collapse.Footnote 6
Kelsen and Ehrlich both came from Jewish families whose polyglotism, interregional marriage patterns and high mobility were characteristic of the late empire's social dynamics—like Sigmund Freud, Karl Kraus, Gustav Mahler and Ludwig von Mises they had come to Vienna from small towns in Bohemia, Galicia or the Bukovina.Footnote 7 Kelsen, the son of the modestly successful businessmen Adolf Kelsen, a trained belt maker from Galician Brody who dabbled in the production of water pipes, bronze flambeaus and candle holders, was born in Prague in 1881 and attended the Protestant elementary school in the Karlsplatz once his family had relocated to Vienna.Footnote 8 Kelsen's and Ehrlich's Jewish descent familiarized them with the empire's latticework of crownlands and local authorities, each of which possessed their jealously guarded competencies, as well as with the special matrimonial laws the Habsburg civil code prescribed for the faiths it recognized. Both factors were important for Kelsen: one of Kelsen's earliest publications dealt with the jigsaw of Austria's right of residency according to which a citizen's district of origin wielded authority over him and his spouses long after the respective person had moved elsewhere.Footnote 9 Kelsen's conversions, to Catholicism and then to Protestantism, were respectively motivated by his attempt to dodge invisible obstacles caused by confessional regulations. Jewish professionals were barred from high office, particularly at the universities, which were hotbeds of anti-Semitism, hence his Catholic conversion. Further, Catholics were precluded from divorce, leading to Kelsen's second conversion to Protestantism before he married Margarethe Bondi in 1912.Footnote 10
Ehrlich, whose father was a lawyer from the first generation of Jewish advocates, hailed from a multilingual Czernowitz family.Footnote 11 Born in 1862 in the capital of the Bukovina, the easternmost promontory of the empire, Ehrlich received his early education in Sombor/Samir.Footnote 12 After initial studies at the university of Czernowitz and at Lemberg/L'viv, Ehrlich went to Vienna, where he earned his juristic doctorate under the supervision of Anton Menger, whose interest in the social foundations of legal life he imbibed.Footnote 13 When Kelsen defended his habilitation Main Problems of the Doctrine of Public Law at the University of Vienna in 1911, Ehrlich had already begun to develop his fully fledged sociology of law at his native Czernowitz, whose religious and linguistic patchwork of inhabitants seemed particularly conducive to this project.Footnote 14
What were the common conceptual points of departure that Ehrlich and Kelsen shared? From very early on, both jurists rebelled against the jejune Pandectist jurisprudence of concepts (Begriffsjurisprudenz), scolding its practitioners for their focus on systematic architectures of norms which failed to reflect the grounds of validity that made laws binding.Footnote 15 Both jurists were equally sanguine critics of the étatist public-law positivism that flourished in the German Reich. Pioneered by Paul Laband, German positivist jurists made the state act as the pinnacle of rationality, as the supreme embodiment of a governing “will” that permeated all of its subordinate organs, a conception Kelsen and Ehrlich found feeble and baleful.Footnote 16
Ehrlich and Kelsen were not alone in their loathing of Labandian positivism, but it is revealing to contrast their misgivings with the comments of another young jurist who cut his teeth on the critique of Labandian state law, namely Carl Schmitt. Built on firsthand knowledge of the Habsburg polity, Kelsen's and Ehrlich's projects can be counted among the most potent twentieth-century counterblasts to Schmitt's apotheosis of racially grounded sovereignty.Footnote 17 If Laband's state-law positivism failed to make a splash among Habsburg jurists, the work of their compatriot Georg Jellinek did not fare much better.
Jellinek, son of Vienna's chief rabbi, had begun his career at the university of the Habsburg capital, but, being begrudged his promised full professorship after anti-Semitic intrigues, left for Basle before assuming a chair in international law at Heidelberg in 1889. When Jellinek described subjective rights as mere results of objective, state-sponsored law, and boldly envisaged a constitutional court for the Habsburg hereditary lands, he sowed for Kelsen to reap.Footnote 18 A spry and prolific public lawyer, Jellinek conceptually refurbished Laband's state-law positivism and famously defined three basic conditions of statehood: a neatly defined common territory, a clearly demarcated state people, and a unitary state authority that crystallized around a common will.Footnote 19 Making material from Habsburg constitutional reality grist to their mill, Kelsen and Ehrlich dismantled all three parts of Jellinek's theory.Footnote 20
Imperial diversity management
How did Kelsen and Ehrlich tackle the challenges of imperial diversity they faced, and how did they tweak and transform their shared conceptual resources? When Kelsen addressed the Viennese Sociological Association in 1911 with a nutshell summary of some aspects of his Main Problems, he pointed out that the “idea of a uniform will of the state” was simply an expression of the “uniformity of the law, of the logical coherence and required consistency of legal norms.” The “will of the state,” Kelsen explained, is a “normative construction established for the purpose of imputation,” having to do “nothing whatsoever with a social-psychological collective will.”Footnote 21 Kelsen traced this pathbreaking insight to two sources of inspiration, to the fin de siècle humanities and sciences in Austria, and to the pluricultural space of the empire. When delivering another lecture before the Viennese Psychoanalytical Association in 1921, Kelsen sought to show that his own project dovetailed smoothly with Ernst Mach's and Sigmund Freud's anti-substantialist, functional analysis of nature and society:
If it can be shown that the state as conceived by politics and differentiated in contrast to law, “behind” the law, as the “bearer” of the law, is just as much a duplicating “substance” productive of pseudo-problems like the “soul” in psychology, or “force” in physics, then there will be a stateless theory of the state, just as to-day there is already a psychology without a “soul” … and just as there already is a physics without forces.Footnote 22
In a later autobiographical essay, Kelsen links this depiction of a congenial milieu of Habsburg scholarship with a crisp sketch of the empire's diversity:
in the light of the Austrian state which was made of so many groups that differed by race, language, religion, and history, scientific approaches which tried to base the unity of the state on some form of socio-psychological or sociobiological connection between the people legally belonging to the state had clearly proven to be fictions. Inasmuch as this theory of the state is an essential component of the Pure Theory of Law, the Pure Theory can be regarded as a specifically Austrian theory.Footnote 23
Ehrlich displayed a fine eye for the Habsburg realms’ role as a sanctuary of positivist formalism when he described his homeland as a “paradise of the narrowest sort of worship of the letter of the law.”Footnote 24 Yet while Ehrlich denounced positivism, his basic premises bore a greater resemblance to Kelsen's than both were prepared to admit. As he developed his sociology of law in the Bukovina, Ehrlich noted how congenial this location was to his pursuits and invoked kindred legal ethnographers like Valtazar Bogišić, Bogdan Petriceiu Hașdeu and Stanislav Dnistrjans′kyj, all of whom worked at the interstices of empires.Footnote 25 As Ehrlich explained in an 1912 essay that presented his Seminary of Living Law at Czernowitz,
At present there are nine races (Volksstämme) who … live together in the duchy of Bukovina: Armenians, Germans, Jews, Romanians, Russians (Lipovanians), Ruthenians, Slovaks … Hungarians, Gypsies. A jurist of the old school would certainly claim that all these peoples have only one, and indeed the same law, the law valid in all of Austria. Yet a perfunctory glance would convince him that each of these races observes entirely different legal rules in all legal matters of daily life. The ancient principle of personality in law lives on here, although it has on paper been replaced by the principle of territoriality …Footnote 26
Ehrlich's sociology of law focused on the disparities between the statutory law, the civil code (Allgemeines Bürgerliches Gesetzbuch) and what he called “living law.” Ehrlich's churlish remark on the civil code's limited impact ruffled feathers at a time when the codification was celebrating its first centenary: enacted for all Austrian hereditary lands by Emperor Francis I in 1811, the code was widely praised throughout its jubilee as the apogee of enlightened liberalism, tailor-made for the aspiring and self-reliant bourgeoisie of the Habsburg lands.Footnote 27
By studying the intricacies of local practice, Ehrlich exposed the limits of the legal system devised by the imperial authorities. In doing so, Ehrlich did not merely scavenge for facts to satisfy his curiosity, piously recording a provincial past that threatened to melt into air. Instead, he sought to reassess the legal system in its totality: designing questionnaires on day-to-day legal practice to be completed in breweries and chaplaincies, at village fairs, on markets and in insurance companies, Ehrlich and his Czernowitz collaborators sought to encompass the entire social fabric of contemporary family, inheritance, labour and business law “in action.” This law, Ehrlich maintained, was not the product of the statutes enacted by the public authorities, but of a plethora of “associations,” each of which possessed a legal life of its own and created its own norms to regulate obligations that concerned the basic “legal facts” (usage, domination, possession and declarations of will).Footnote 28 It is crucial to note that Ehrlich's “associations” did not form a holistic overarching structure, a “society” with an internally consistent mechanism of self-reproduction: neither were they self-contained; indeed Ehrlich clarified that every person belonged to many associations simultaneously: to families, confessional congregations, factories, merchant guilds, leisure clubs and educational societies.
Discovering a new world of lawgiving beyond the state, Ehrlich also traced the historical pedigree of abstract legal provisions, arguing that all state-enacted law had originally arisen from concrete, informal and local decision norms.Footnote 29 Ehrlich hoped that his studies would furnish courts with material on legal transactions beyond jurisdiction and state ordinances, supplying judges with evidence on the inner life of society. This chimed nicely with Ehrlich's advocacy of judges’ free finding of the law,Footnote 30 and with his withering critique of the Roman-law idolatry of the unification of free wills. Ehrlich's argument matched Kelsen's, who castigated the belief that the “will” that jurists ascribed to norm addressees corresponded to an actual psychological fact.Footnote 31 While Kelsen developed his far-flung theory of imputation from this kernel, Ehrlich's aim was to unveil social injustice: used to design contract and obligations law, the figure of the “free will” according to Ehrlich served as a smokescreen that concealed glaring inequalities and legitimized enforceable property claims against the socially disprivileged.Footnote 32
Seeking to throw Ehrlich's conception of law and empire into relief, we may turn to his insistence on every person's affiliation with multiple associations. Ehrlich postulated the universality of legal facts that undergirded the diverse transactions every association chose to regulate according to its own standards. By endorsing the principle of “personality” quoted above, Ehrlich conceived every individual's membership in an association as situation-dependent—very much like the situational usage of different languages that Ehrlich observed in his daily life—and thereby also effectively deterritorialized the law. To amplify this point we may explore Ehrlich's discussion of a Romanian merchant's legal life. This Romanian tradesman from the Bukovina belongs to the community of Romanian Orthodox believers whose places of worship were scattered all over the monarchy, while he submitted to the different market rights of the trading places of Lemberg, Vienna or Odessa that he wished to access. Our merchant may also have contracted an insurance with a pan-monarchic company whose provisions on premium refund, turnover calculation and seizure exemption varied for each crownland according to the local social structure; further, he may possess a plot of arable land and contribute to a loan fund of his manorial lord that settles his subjects’ tax arrears; at the same time our merchant could also submit to the inheritance laws of his village, and to the norms of family conduct of Romanian Orthodoxy which diverged from the regulations designed by other Orthodox churches. This brief sketch alerts us to the fact that Ehrlich deprioritized ethnic affiliations in his studies, showing the permeability and brittleness of this type of association. Incisively arguing that professional status was crucial for the ascription and changing self-perceptions of ethnicity, Ehrlich also highlighted the significance of religion, e.g. when noting that the various Orthodox and Greek–Catholic priesthoods of the monarchy, with their special customs, privileges of hereditary office, proprietary rights and tax exemptions, existed as “nations” within their respective nations.Footnote 33
As a denizen of Czernowitz, Ehrlich by no means felt marooned in a gritty, dodgy place, nor did he envy Kelsen for his role as a blazing light of Viennese jurisprudence. Ehrlich did not intend to celebrate the fringes of the empire; indeed his entire project aimed at undoing the disparity between “centre” and “periphery” in a manner that paralleled young Kelsen's rigorous claim that jurisprudence knew no above and below.Footnote 34 It was not only in the ostensibly peripheral Bukovina that ideas about the benign percolation of the civil code to all strata and segments of society proved an illusion; the very same applied to the core of the Austro-Bohemian hereditary lands. Already during his time as an advocate and freelance juristic author in Vienna and Lower Austria, Ehrlich had devoted important essays to the self-regulation and self-obligation of stockbrokers at the Vienna exchange and their arbitration procedures, as well to “gaps in the law” and their significance for jurisdiction.Footnote 35 Ehrlich continued to pursue these enquiries in Czernowitz, bringing them to fruition with his 1913 Fundamental Principles of the Sociology of Law.
A reappraisal of the Kelsen–Ehrlich debate
Previous scholarship has devoted much attention to the skirmish between Ehrlich and Kelsen, whose high-pitched, bellicose tone occluded the lines of reasoning that the contestants shared. The theoretical approaches may seem irreconcilable, prima facie: while Kelsen sought to turn jurisprudence into a science of norms unmoored from sociological, natural-science-based and cultural modes of enquiry, Ehrlich regarded the law as an assemblage of social facts. When Ehrlich released his hefty Fundamental Principles of the Sociology of Law in 1913, Kelsen greeted it with a hatchet-job review.Footnote 36 Rankled by Ehrlich's failure to explain what distinguished legal norms as elements of a coercive order from other types of moral and social injunctions, Kelsen found fault with Ehrlich's psychological theory of a common-sense-based opinio necessitatis rooted in popular conceptions that decided over the validity of norms. The lack of this opinio among the norm addressees entailed the derogation of laws through disuse. Ehrlich even went so far as to assign distinctive emotions, i.e. affective correlates to different types of norms, which to Kelsen seemed a relapse into fumbling psychologizing.Footnote 37 Sociologists like Ehrlich remained ensnared in metaphysical concepts when they professed to ascertain quasi-natural laws of development instead of analysing values and aggregates of evaluative acts. While Kelsen never denied that “all lawgiving unfolds as a social process in society,” he took issue with Ehrlich's approach for three reasons that may seem purely theoretical at first glance but were in fact saturated with tangible problems posed by the rule of law in the Habsburg realms.Footnote 38
First, Ehrlich diluted the singularity and specific character of legal norms. By doing so, he made it impossible to ascertain the validity and gapless deduction of rights whose universality consisted in the fact that they were indifferent to the origin, social status and religious belief of their bearer. Ehrlich's approach imperilled the administration of justice. Second, by dissolving society into a maze of associations with unclear relationships of subordination between each other, Ehrlich also made it impossible to recognize the state as a legal order that created its norm addressees. As a consequence, Ehrlich tacitly disenfranchised the citizens called upon to mould and control the state.Footnote 39 Ehrlich's distinction between “state law” and “real law” was nonsensical. Third, when appealing to the “legal consciousness” of his “associations” as guideline for judicial finding of the law, Ehrlich failed to supply conflict rules for collisions between them.
Kelsen also charged Ehrlich with foolishly mixing up “is” and “ought” by appealing to the binding force of social facts. Yet according to Kelsen, ties of subordination and obligation can only be understood as ought-relations. These ought-relations were constituted by norms that served as “mental constructions,”Footnote 40 which is why Ehrlich's conflation of the form and content of the law was so wrongheaded and perilous: “Law is the form under which economic and political life unfolds or should unfold. Legal science therefore has to appraise the forms, but, due to the intrinsic limitations of its specific means and object, cannot say anything about the content supposed to happen [sich abspielen] within these forms.”Footnote 41
What follows from this brief juxtaposition of Ehrlich's and Kelsen's varieties of jurisprudence? Ehrlich's reparticularized legal universals, while Kelsen's sought to buttress their validity by generalizing their formal features and by fleshing out the recursive sequences of norm deduction. Both strategies constitute salient examples of the conceptual management of imperial diversity and they reflect the specific conditions of statehood that Ehrlich and Kelsen encountered in the Habsburg Empire. Neither of the two jurists treated nations as inexorable glaciers, as powerful pressures that smoothed whatever lay in their path.Footnote 42 Kelsen's purified conceptualization of the state as law, as the only scientifically ascertainable “form of social unity,” was shaped by the imbricated structure of sovereignty that characterized the Habsburg polity.Footnote 43
Kelsen supplemented his doctrine of the state with an elaborate theory of democracy, with judicial norm control, and with strong safeguards of minority protection, which is why he found Ehrlich's separation of state and society so misguided.Footnote 44 Yet Ehrlich's legal sociology intersected with Kelsen's approach in one highly significant regard: Ehrlich charted the overlaps of public and private governance functions (e.g. in manorial lordshipFootnote 45) and the residual special private laws (for the peasantry, for the nobility and for religious confessions) that continued to shape the daily legal life of different social strata in the Habsburg Empire.Footnote 46
While Kelsen pleaded for a meta-social and meta-cultural system of law, Ehrlich showed that any system that makes pretences to this effect is, even if deracinated from its context of emergence, inevitably rooted in a specific sociocultural constellation. For Ehrlich the state was a mere larger-scale private authority, cut from the same cloth as the patrimonial and clerical dominions that still existed within it.Footnote 47 Hence Ehrlich's effort to decentralize lawgiving, dislodging the state's omnipotence and supremacy, was in unison with Kelsen, but he drew different conclusions: Kelsen reduced the state to law, whereas Ehrlich refused to reduce law to the state.
In the following sections of my article I will show how Kelsen's and Ehrlich's concepts were embedded in a set of contemporary juristic squabbles over the “dispersed and qualified sovereignty” of the Habsburg polity.Footnote 48 I do so in order to bring out two shared dimensions exhibited by Ehrlich's and Kelsen's work, namely the blurring of the divide between private and public law and the deterritorializing of sovereignty that entailed a slew of corollaries: chief among them was the obliteration of the frontier between municipal and international law.
Unmaking the divide between public and private law
Kelsen's and Ehrlich's caustic remarks about the benignly bamboozling metaphysical master concepts of state law are no isolated statements; rather, they form the tip of an iceberg. Many Habsburg jurists dismissed the idea of a separate realm of public law that was distinct from and superior to private law as a piece of absolutist subterfuge. They did so for several reasons: Habsburg private law had been the engine of imperial unification since the promulgation of the 1811 civil code. While the old self-government of the Habsburg lands was never entirely effaced but rather baked into the imperial constitutions after 1848, the civil code's validity for all realms with the exception of Hungary remained sacrosanct.Footnote 49 When the civil code received its finishing touches during the Napoleonic wars, its authors, the jurists around Franz von Zeiller, adjusted to Habsburg anti-Revolutionary intellectual realignment, cleansing their code of any public-law ingredients redolent of French models. They exalted eternal, ostensibly antipolitical private law over slipshod, fickle and spasmodic public law.Footnote 50
While the empire's official moniker remained a “composite body of states” until the Revolution of 1848, the textbooks taught at the Habsburg universities were predicated on natural law, basing public authority in the social contract.Footnote 51 Not only was there a patent mismatch between contract theory and the chequered constitutional reality of the empire, but also natural law lost its prestige in the Revolution of 1848 for which it was held responsible by the educational reformer of the 1850s, minister Leo Thun-Hohenstein.Footnote 52 Thun-Hohenstein's campaign to eradicate natural law from Habsburg jurisprudence gave leverage to the antimetaphysical knowledge regime that suffused the empire's humanities from the 1850s. Like scientists and scholars from adjacent fields, jurists realized that it was they who created their object of enquiry as they studied it.Footnote 53 While Habsburg public-law education in the second half of the nineteenth century remained playfully promiscuous, the twenty years of post-1848 constitution giving which finally culminated in the Austro-Hungarian compromise and the so-called December Constitution of 1867 did little to make jurists stop worrying and love the state.Footnote 54 The Austrian part of the empire had absorbed its lands without dissolving their status as sovereign entities, and the normative substance, territorial scope and grounds of validity of the imperial constitution remained bones of contention. Consequently there was no tendency to venerate public law as an emanation of the quasi-sacred, inscrutable state will.Footnote 55
Habsburg jurisprudence produced several harbingers of law as a “purely constructive science” that dismantled the divide between public and private law.Footnote 56 Chief among them was Kelsen's friend František Weyr, who, in an essay of 1908 on the unity of the legal system, debunked the idolatry of the state as a heritage that divine law had bequeathed to natural law.Footnote 57 Born in Vienna to a Czech-speaking couple, Weyr studied under Kelsen's mentor, administrative lawyer Edmund Bernatzik,Footnote 58 before becoming the founding figure of the Brno school of legal theory in post-1918 Czechoslovakia, which took up many of Kelsen's tenets.Footnote 59 Weyr emphasized that “it is through the constructions of the jurist” that the associations of public law are “created” and they are “bound to perish with this creation.”Footnote 60 Noting the feebleness of the distinction between private debtor–creditor relationships and public-law liabilities, Weyr reminded his readers that “there are no transcendental–immanent purposes [Zwecke], let alone interests.”Footnote 61 In unison with Kelsen and Ehrlich, Weyr's study of the sequence of imputation that impelled liable subjects of the law to enforceable transactions whittled away the difference between state prerogatives and private-law claims. Weyr's strategy aimed at substantive civic enfranchisement. Prefiguring Kelsen's famous statement that “the state is us,”Footnote 62 Weyr stressed that citizens were no longer “passive objects of the arts of statecraft practiced by others.” The polity had long ceased being ruled by a monarch or a president but was instead governed by “every juristic person entitled to demand or prohibit any action of another juristic person on the basis of a legal rule.”Footnote 63 Weyr invoked Habsburg administrative justice established in 1876 to drive home his key point: “In the sphere of law there are only fellow norm addressees [Rechtsgenossen] with equal rights, and no relationships of force or of any other extralegal nature obtain in this realm.”Footnote 64
While, according to Ehrlich, the state fizzled out on the local level, deducing it from the congeries of social arrangements, pre- and preterlegal arrangements and parochial authorities, Kelsen targeted the very category of public law itself. It was, Kelsen claimed, a capacious residual category invented by nineteenth-century constitutional monarchy and used by its jurists to vest arbitrary acts of power in the garb of lawfulness.Footnote 65 “Public law” was designed to curb parliamentary control and the judicial review of monarchical statecraft.Footnote 66
Imperial precedents: from the deterritorializing of sovereignty to the world legal order
A last conspicuous aspect that deserves to be highlighted is the deterritorializing of sovereignty. Here again Ehrlich's and Kelsen's initiatives tallied with earlier advances of Habsburg jurists who knew the empire's tessellated structure inside out. Once viewed afresh, both projects reveal that the deterritorializing of sovereignty hinged on Central Europe's constitutional reality: mirroring the empire's internal structure, it also triggered a conceptual refashioning of the global legal order.
Above I have quoted Eugen Ehrlich's remark that in the Habsburg Empire the older “principle of personality” persisted under the superimposed pattern of territoriality.Footnote 67 Legal personhood, be it of the empire's Austrian and Hungarian components, of the historical lands each of them contained, or of the region's self-enhancing “nations,” was a prickly issue in the Habsburg state assemblage.Footnote 68 Since 1867 the old contenders for legal personhood, the empire's multilingual historical crownlands, were slowly turning into vessels for the self-assertion of national groups. Squeezing every citizen into the Procrustean grid of the nation, the system of pacification through segregation split the inhabitants of every crownland into parallel monolingual groups with separate national electoral curias for the local diet, with language-segregated schools and associations.Footnote 69 Nations seemed to enjoy skyrocketing success as new legal entities nested in the empire's old lands, but both Ehrlich and Kelsen were skeptical of their corporate personality.
While Ehrlich studied human associations—families, churches, mercantile networks—that cut across political boundaries, Kelsen spoke of the flimsy commonalities among the citizens of a given state: “If we ask ourselves why an individual belongs to a certain state together with other individuals,” the only criterion was “that he and the others are subjects to a certain, relatively centralized, coercive order.” It was evident, Kelsen added, that “individuals belonging to different states may be connected spiritually much closer than those who belong to the same state.”Footnote 70
Habsburg jurists poked fun at their earthbound colleagues whose territorialist view of sovereignty they found shaky: “No state can exist without a territorial realm,” František Weyr remarked half-jokingly in 1908, “but to this statement another one should be added: no state can exist without air, either. The last remark may well give rise to a promising new theory about the essence of statehood.”Footnote 71 Kelsen's doctoral supervisor, Leo Strisower, and Ernst Radnitzky, a public servant at the Austro-Hungarian Ministry of Finance, divested sovereignty of its territorial pivot.Footnote 72 In an article from 1906, Radnitzky projected intra-imperial modes of governance onto the planetary order. Radnitzky drew on Habsburg administrators’ proficiency in bridging the individual crownlands’ different legal regimes, and clarified its significance for global law as he depleted the distinction between “citizens” and “aliens.”Footnote 73 By making his approach crystallize around “residency,” Radnitzky elided the essential difference between domestic and international law.Footnote 74 Radnitzky positioned the Habsburg state as the germ of the international legal system he predicted, as it simultaneously encapsulated the present and (desirable) future of that global order: a malleable agglutination of crownlands with a liberal, pliable citizenship law, the empire was also a constitutional state that should be “governed exclusively in the interest of its members.”Footnote 75 Radnitzky's scheme eased the peaceful turnover of people and territories: “residents” could be enfranchised, and the cession and acquisition of spatial dominion was equivalent to the redistribution of territorial competences within a composite empire.Footnote 76 The state was no omnipotent juggernaut; it was the template of a global legal order modeled after its Habsburg archetype.
Through the travails of Radnitzky and jurists of his ilk, a process of sustained conceptual engineering unmoored the state from its territorial hinges; likewise, the obvious absence of a unified “state will” in the Habsburg setting made theories about the self-obligation of the state as foundational moment of international law seem insufficient.Footnote 77 Rather, it would seem that the international order was a replica of the empire's palimpsest-like sovereignty: conflicts of competence in international law should no longer be perceived in analogy to disputes between individuals—as the hackneyed anthropomorphism of international lawyers suggested—but as disagreements among organs of the same state that could be solved through judicial decisions.Footnote 78
Kelsen's pure theory emerged from the murky smithies of Habsburg imperial governance: this applies to his claim that the state is identical with the law as much as to the theory of imputation that posited a presumptive “basic norm” at the roots of the legal order.Footnote 79 When Kelsen designed the constitutional court of the post-1918 federal republic of Austria, assigning it the key tasks of norm control and norm revision, Kelsen again created an analogy between the confederacy of Austria and the global community of states, showing the indispensability of norm-reviewing courts for peaceful life in either.Footnote 80 Habsburg jurists had learnt to analyze their imperial salmagundi of legal materials as emanations of a unified normative system. Casting antagonisms that arose within this system as conflicts of competence between offices of the same administration, jurists from Habsburg Central Europe entrusted supranational judiciaries with the arbitrational capacity to decide in these conflict situations. This is why the empire proved fertile soil for concepts of the global legal order that stressed its cognitional unity and superiority over municipal law.Footnote 81 Seen in this light, Kelsen's interwar theory of international law should be read as a global solution for vexatious local problems: new composite states arose from the embers of vilified Austria–Hungary after 1918, reproducing the defunct empire's diversity while territorial disputes were left smouldering and citizens remained disenfranchised, displaced or stateless.Footnote 82 When Kelsen highlighted the supremacy of international over municipal law, he turned the former into a filter of validity for the latter. Its judicial organs could repeal discriminatory norms in municipal law that contradicted its overarching principles.
Conclusion
A strange lopsidedness marks the history of legal science: while its students have extensively dealt with Western European public law, as well as with the ever-intoxicating Carl Schmitt and the tussles of German interwar state lawyers, the reconceptualization of statehood that issued from the Habsburg intellectual milieu of the fin de siècle has remained a Cinderella subject.Footnote 83 Indeed, Joseph Redlich, the shrewd constitutional and administrative expert, opened his brilliant 1920 history of Austria's problematic statehood by deploring the baleful impact of German public law on Habsburg jurisprudence. Adopting “rigid” German “theories of empire and statehood” to measure domestic political developments, Austrian jurists failed to “do justice to the historically given, special nature” of the Habsburg polity, as well as to its basic predicaments.Footnote 84 By assuming an unchecked seepage of German state law into imperial Austria, Redlich overlooked that it was precisely Habsburg jurists like Kelsen and Ehrlich who turned its key assumptions to shambles. True, what Redlich yearned for, an “organic remedy” for what he dubbed the “Habsburg imperial problem,” failed to materialize, but Austria–Hungary's meltdown in 1918 reinforced the global circulation of its conceptual resources. Sticking with Redlich's terminology one might say that both the problem and the proposed solutions survived the demise of the Habsburg polity, and they did so in the guises of the global legal order as well as of the small-scale replicas of multinational empires that emerged from the bankruptcy assets of Austria–Hungary. As Holly Case and Natasha Wheatley have noted, the empire's sovereignty problems were turned “inside out” with its demise.Footnote 85
My article has reframed Eugen Ehrlich's legal sociology and Hans Kelsen's pure theory of law as products of their Habsburg polity. Both sought to conceptually encompass the legal order of a multireligious and multilingual state, and they grappled with the epistemic and political purchase of universals in a heterogeneous society. Previous research has tended to focus on the allegedly insurmountable rift that separated Kelsen from Ehrlich. Indeed, while Hans Kelsen based his framework of legal universals on the generality of formal features and sequences of imputation, Ehrlich reparticularized universality: despite the inbuilt obfuscation of its conditions of emergence, all statutory law was inevitably the product of a specific cultural configuration and of relationships of social domination.
This article has sought to show not only that Ehrlich and Kelsen developed their respective theories within the same Habsburg framework, but also that their shared experience of imperial diversity supplied them with a set of common premises and proclivities. Taking up the cudgels against German public-law positivism, both Ehrlich and Kelsen demystified the state, dismantling assumptions about its supreme rational and moral agency, as well as about its desirable homogeneity based on culture, race or religion. Ehrlich dissolved the state into a plethora of self-regulating associations whose interactions he studied, while Kelsen reduced it to a legal order that created its norm addressees. Both refused to see the nation-state as the apogee of world history; instead they deprived it of its pivot and purveyor of coherence, the nation. Kelsen was an incisive critic of nationalist strategies of self-enhancement and antidemocratic power bargaining, while Ehrlich resolutely deprioritized the nation: he showed it to be less life-suffusing and all-permeating than the families, churches and mercantile networks studied by himself and his Bukovinian grassroots research team.
Ehrlich's and Kelsen's demolition of the state's supremacy had two important corollaries: it culminated in the unmaking of the divides between private and public law as well as between municipal and international law. According to Kelsen and Ehrlich, public law was no sacrosanct order foisted on the state's citizens to preserve the eternal purpose of the polity. On the contrary, it should serve the citizens who were subjects to nobody else but their own elected organs. For Ehrlich the state was a mere larger-scale private authority, cut from the same cloth as the patrimonial and clerical dominions that still existed within it. Ehrlich's unmaking of the state from below dovetailed with its global de-limiting proposed by Kelsen. Kelsen treated the state as an intermediary point of imputation in a sequence that led up to the world legal order whose superiority over municipal law he ardently defended.
By the same token, Kelsen and Ehrlich managed to deterritorialize lawgiving. They documented the myriad sources of nested public authority in the Habsburg composite state: older laws, treaties and conventions remained in force for lands by now absorbed into the empire, making the distinction between domestic and foreign law a moot one. The interregional economic, social and religious associations studied by Ehrlich preexisted political boundaries, which he showed to be extremely artificial and brittle.
Ehrlich's and Kelsen's theories were results of and responses to specific Habsburg predicaments. Ehrlich's and Kelsen's distinct but connected strategies entailed a deterritorializing of lawgiving and, by consequence, of sovereignty. Once sovereignty was divested of its previous linchpin, the state territory, it was transformed from a foundational moment of international law into a subordinate competence bestowed upon the state by the world legal order. Thereby, as had been the case in the history of Habsburg empire building, the distinction between citizens and foreign nationals was effectively blurred; instead all residents should enjoy the same rights as native subjects. In Kelsen's case, this led to a program of radical enfranchisement when he envisaged democracies’ extension of suffrage to all their permanent residents.
Ehrlich midwifed global legal pluralism: curtailing the significance of state-enacted norms for human transactions, he saw social life as the crucible of “living law” that was produced by self-governing “associations.” Developed to grasp the crazy-quilt sociocultural composition of the easternmost crownland of the Habsburg Empire, this Bukovinian legal sociology was amenable to globalization because Ehrlich jettisoned territorialism and methodological nationalism: Ehrlich's associations straddled political frontiers and cut across national divides. Every person belonged to a multitude of associations defined by her workplace, religious creed, family ties and further social relationships. By showing that both the Bukovinian peasant and the Viennese stockbroker used local sets of non-codified and socially authorized, but by no means haphazard, customs for their legal transactions, Ehrlich forcefully challenged spatial and civilizational hierarchies.
Habsburg Central Europe spawned a distinct brand of domestic plurinational law whose architects deftly mapped it onto the globe. The empire provided the archetype for the Kelsenian vision of world law: a conglomerate structure with different bodies of norms that were molded into an integrated normative system by a common supreme judiciary. Here again Kelsen refracted the model of intra-imperial unification through law. Very much as in the Habsburg setup, it was through the constructive effort of jurists that all humans would be treated as citizens of one state in the sense that they were subjected to the same global legal system. Kelsen believed that world law could ideally resolve the abiding post-1918 dilemmas of plurinational statehood that its imperial predecessor had left to the novel micro-empires that emerged from Austria–Hungary's breakup. His world law should serve as a safeguard of democracy, human rights and equality before the law; it would invalidate the discriminatory clauses of national legislation that defied these firmly ensconced principles.
By way of concluding, then, I would like to suggest that Ehrlich's legal sociology and Kelsen's pure theory of law were answers to the same problem, namely the validity of legal universals under the conditions of Habsburg imperial diversity and fractured public authority. This shared substratum enabled Kelsen and Ehrlich to develop conceptions of legal life and rights bearing that acquired fame and lasting significance in the respective guises of legal pluralism and the world legal order. Kelsen's and Ehrlich's programs were rival, yet co-original and congenial, responses to the challenges of their Central European polity. The salient features their theories have in common, namely the unmaking of statehood and territorial sovereignty in their traditional senses, explain Ehrlich's and Kelsen's planetary resonance. The empire's constitutional heritage bifurcated into Kelsen's and Ehrlich's works. Austria–Hungary's legal legacy survived the shipwreck of the empire in 1918, precisely because these two jurists had carved it into templates for legal relationships on a global scale.
