This Austrian Legal Scholar Thought Case Law Was the Key to Limiting State Power
[Adapted from "A Practical Approach to Legal-Pluralist Anarchism: Eugen Ehrlich, Evgeny Pashukanis, and Meaningful Freedom through Incremental Jurisprudential Change" from the Journal of Libertarian Studies.]
Born into a deracinated Jewish family in Czernowitz in the Austria-Hungarian province of Bukovina, Eugen Ehrlich did his habilitation on Roman law in Vienna in 1894. He was never able to rise above the post of rector at Franz-Josef University in Czernowitz, a second-rate appointment attributable largely to Ehrlich’s Jewish background. Taking advantage of his de facto exile in the hinterland, Ehrlich was among the seminal group of law-and-society thinkers at the turn of the century that launched the sociological turn in both jurisprudence and in legal philosophy. Ehrlich, along with Hermann Kantorowicz (1877–1940), founded the Freirechtsbewegung (Free Law Movement) in the first decade of the twentieth century and, together with Kantorowicz, Max Weber (1864–1920), Émile Durkheim (1858–1917), Hugo Sinzheimer (1875–1945), and Roscoe Pound (1870–1964), formed the nucleus of what would later become known as the law and society movement.
Disillusioned with state power for a variety of reasons both personal and intellectual, Ehrlich sought the legitimacy of the law in something other than the reigning corporatist-positivist state. Specifically, Ehrlich conducted extensive research in community custom, which he saw as a way to reform Austrian law by means of insisting on the validity of legal pluralism within the existing civil code jurisprudential system. For many thinkers in the German tradition, the state and its laws were seen as forming an unassailable edifice not open to reform. While some German thinkers had posited a distinction between Gemeinschaft, or community, and Gesellschaft, or civil society, the legal system itself conceptually “saw” only Gesellschaft. Most theorists admitted of a working identity between law and the state. Ehrlich, on the other hand, argued that the state and the law are not the same. In many ways, they are at odds with one another, if not opposites. German experience itself tends to prove this. Ehrlich’s groundbreaking Grundlegung der Soziologie des Rechts (1913), for example, offers clues to the ability of the law to endure even amidst political crisis, such as in the wake of the Second Reich’s defeat in World War I.
Ehrlich, along with Kantorowicz, observed that societies organically and spontaneously generate their own legal orders apart from the oversight of a state, and often in contradiction to the state’s Pandekten-style law (a centralized system of law based on the Pandects, a codification of Roman law) claiming a totality of legal sovereignty. The plurality of law in Ehrlich’s Bukovina region of Austria-Hungary was probably the source of his initial puzzlement over the gap between what the law in the books said, and what the people in the villages and towns actually did. While interpersonal disputes were meant to be adjudicated according to the Weberian scheme of the state’s monopoly of violence, in reality those disputes were often resolved according to customs and practices that often seemed to have very little to do with the codified positive law. For Ehrlich, the application of the law involved not the robotic matching of real-life happenings to an ethereal and abstracted civil code, but, rather, a great deal of human agency floating clear of the legal realm and drawing on norms better understood by the new discipline of sociology (Rottleuthner 1987, p. 5). Gemeinschaft, in other words, was not an ideal imposed from above by the Gesellschaftlich corporatist state, but a process of messy discovery taking place in actual lived society, far removed from state control.
Unlike his predecessors, Ehrlich was almost indifferent toward the existence of the state within the framework of actually existing legal practice. Ehrlich’s turn away from German legal idealism found expression in his theory of free-law:
As a Free-Law advocate […], Ehrlich criticized the ideal of the seamless web of a codified legal order, and made clear that the decision in an individual case could not be understood as a logical derivation from general norms (or even concepts), performed ‘with the aid of a hair-splitting machine and a hydraulic press’. Like Fuchs, he too emphasized the creative role, the personal moment, in the application of law. However, by this he did not intend that the private intuition of the judge be set free. Rather this is the point where his specific understanding of legal sociology came into play: when the law permits no orientation, the application of law should orient itself on social norms, on the norms of the law which was actually alive in society. In his legal sociology, Ehrlich stressed precisely the central role of society—as the totality of human associations—for the emergence and development of law. Legislation, jurisprudence, and judicial decision-making, by contrast, were considered secondary phenomena. The true legal science—understood as legal sociology—had to capture the law that was ‘alive’ in society. Traditional jurisprudence was blind to this sphere and only took into account laws and the norms of judicial decisions.
For Ehrlich, the central question of law was this tension between the people and the state. The Pandekten idealists and strong-state advocates had things precisely backwards. Increasing the power of the state—to legislate, regulate, and control ever-greater swaths of private life and to co-opt ever more nonstate institutions through promises of political inclusion—led only to greater corruption and a wider gulf between law and society. Left to their own devices, people actually fared much better without interference from the state. A political solution to social ills was therefore not even misguided; it was oxymoronic.
With the theories of Eugen Ehrlich we have a blueprint for foregrounding communities and communal custom and practice as the “groundwork” for an entirely new kind of law. But how can this new law be animated and deployed to challenge the power of the state? The answer lies in the works of American sociologist and historian William Sewell Jr. In chapter four of Logics of History, for example, Sewell posits a relationship between structure and agency that is open to interventions and contingencies. Sewell’s kinetic view of the interaction between people and institutions expands on Anthony Giddens’s “duality of structure” and Pierre Bourdieu’s habitus to envision complex of social, political, cultural, and economic influences that more closely approximates the reality of human life amid structural patterning. (“By this [i.e., ‘duality of structure’] he [i.e., Giddens] means that [structures] are ‘both the medium and the outcome of the practices which constitute social systems’ (Giddens 1976, 1979, 1981, 1984). Structures shape people's practices, but it is also people's practices that constitute (and reproduce) structures. In this view of things, human agency and structure, far from being opposed, in fact presuppose each other.” (Sewell 2005, p. 127)) This approach “(1) recognize[s] the agency of social actors, (2) build[s] the possibility of change into the concept of structure, and (3) overcome[s] the divide between semiotic and materialist visions of structure.” Sewell’s rethinking of structural malleability is the key to setting legal-pluralist anarchy against the existing state, chipping away at the state one small interaction at a time. The dialectic is the key to the ongoing existence and substantive autonomy of the Gemeinschaft vis-à-vis the Gesselschaft, and especially the Gesselschaft writ large, the state.
The absence of a state short-circuits this dialectic, destabilizing the legal-pluralist Gemeinschaft and inviting reprisal, such as Stalin’s against his enemies (including Evgeny Pashukanis). Giving up the notion that structures themselves are negotiable, pliable, and subject, at least partially, to human agency—or, as Sewell put it, that structures (such as law) are “continually evolving outcome[s] and matri[ces] of process[es] of social interaction”—leaves a Gemeinschaft with no partner in the dialectic diminishment of the state. Gemeinschaftlich autonomy via legal-pluralist anarchy is much better accomplished by means of case law interactions with state authorities. Case law trials, even in the state’s courts, are small-scale legal skirmishes, as it were, that afford small Gemeinschaften a fighting chance of winning small victories against state power and incrementally undermining the state’s power.
This tension among law, society, and the state was summed up by Ehrlich himself, although in the context of legislation and not case law. The important point, however, is that, for Ehrlich, law was a means of attenuating state power, not augmenting it:
Legislation is commonly considered the oldest, the original, the peculiar task of the state. In reality, however, the state becomes a law-giver only late in its existence. The original state is a purely military center of might and is concerned neither with law nor with courts. The original state, so far as it is not yet Europeanized, knows no legislation. We speak, it is true, of the legislation of Moses, of Zarathustra, of Manu, of Hammurabi, but these are only collections of judicial and juristic laws together with numerous religious, moral, ceremonial and hygienic provisions such as we can see in popular or popular-scientific writings. An oriental despot can, if he pleases, level a city to the earth or condemn a few thousand human beings, but he cannot introduce civil marriage into his kingdom.
The more central planners work to bind up law and society through executive power, the farther law and society drift apart from one another. Local communities can achieve a measure of autonomy from state interference by acknowledging and reflecting the spontaneity and unpredictability of social order under the banner of legal pluralism, with jury trials as a key feature of this arrangement.
Also, when communities or their members have no choice but to interact with the state’s courts, this helps to ensure that the state’s judges will be forced to divorce their decisions from statist ideological presuppositions. Legal-pluralist decentralization and the promotion of antistatist jurisprudence are both effective at carving out spheres of autonomy for local Gemeinschaften. The gradual “withering away,” one case at a time, of the state’s monopoly on the justice process, along with the championing of legal pluralism and spheres of law separate from the state’s legislative prerogative, are the two abiding promises of Ehrlichian jurisprudence.
An Ehrlichian legal order unique to a given community and evolving from within it, such as the English common law or Germanic tribal law did, is a virtually ready-made way to ensure stability in an anarchical community. Jury trials are the best way to ensure that law does not become tyranny over society. Furthermore, state courts should, and can, be avoided at all costs in order to maintain Gemeinschaflich autonomy as far as possible.
[W]hen it becomes necessary to interact with state courts, a case law method is best. Case law forces judges to think using synderesis and not statist ideology, prying them away from their code-based justifications and entangling them in the limiting skeins of the natural law. As a bonus to case law, each case becomes a precedent that, ideally, incrementally undermines code law, thus attenuating the power of the state while also injecting more of the “living law” into the jurisprudential corpus of a given state.