LIVING LAW This collection of essays is the first edited volume in the English language which is entirely dedicated to the work of Eugen Ehrlich. Eugen Ehrlich (1862–1922) was an eminent Austrian legal theorist and professor of Roman law. He is considered by many as one of the ‘founding fathers’ of modern sociology of law. Although the importance of his work (including his concept of ‘living law’) is widely recognised, Ehrlich has not yet received the serious international attention he deserves. Therefore, this collection of essays is aimed at ‘reconsidering’ Eugen Ehrlich by bringing together an interdisciplinary group of leading international experts to discuss both the historical and theoretical context of his work and its relevance for contem- porary law and society scholarship. This book has been divided into four parts. Part I of this volume paints a lively picture of the Bukovina, in south-eastern Europe, where Ehrlich was born in 1862. Moreover, it considers the political and academic atmosphere at the end of the nineteenth century. Part II discusses the main concepts and ideas of Ehrlich’s sociology of law and considers the reception of Ehrlich’s work in the German-speaking world, in the United States and in Japan. Part III of this volume is concerned with the work of Ehrlich in relation to that of some his contemporaries, including Roscoe Pound, Hans Kelsen and Cornelis van Vollenhoven. Part IV focuses on the relevance of Ehrlich’s work for current socio-legal studies. This volume provides both an introduction to the important and inno- vative scholarship of Eugen Ehrlich as well as a starting point for further reading and discussion. Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW General Editors Johannes Feest Judy Fudge Founding Editors William LF Felstiner Johannes Feest Board of General Editors Rosemary Hunter, University of Kent, United Kingdom Carlos Lugo, Hostos Law School, Puerto Rico David Nelken, Macerata University, Italy Jacek Kurczewski, Warsaw University, Poland Marie Claire Foblets, Leuven University, Belgium Roderick Macdonald, McGill University, Canada Titles in this Series Social Dynamics of Crime and Control: New Theories for a World in Transition edited by Susanne Karstedt and Kai Bussmann Criminal Policy in Transition edited by Andrew Rutherford and Penny Green Making Law for Families edited by Mavis Maclean Poverty and the Law edited by Peter Robson and Asbjørn Kjønstad Adapting Legal Cultures edited by Johannes Feest and David Nelken Rethinking Law Society and Governance: Foucault’s Bequest edited by Gary Wickham and George Pavlich Rules and Networks edited by Richard Appelbaum, Bill Felstiner and Volkmar Gessner Women in the World’s Legal Professions edited by Ulrike Schultz and Gisela Shaw Healing the Wounds edited by Marie-Claire Foblets and Trutz von Trotha Imaginary Boundaries of Justice edited by Ronnie Lippens Family Law and Family Values edited by Mavis Maclean Contemporary Issues in the Semiotics of Law edited by Anne Wagner, Tracey Summerfield and Farid Benavides Vanegas The Geography of Law: Landscapes, Identity and Regulation edited by Bill Taylor Theory and Method in Socio-Legal Research edited by Reza Banakar and Max Travers Luhmann on Law and Politics edited by Michael King and Chris Thornhill Precarious Work, Women and the New Economy: The Challenge to Legal Norms edited by Judy Fudge and Rosemary Owens Juvenile Law Violators, Human Rights, and the Development of New Juvenile Justice Systems edited by Eric L Jensen and Jørgen Jepsen The Language Question in Europe and Diverse Societies: Political, Legal and Social Perspectives edited by Dario Castiglione and Chris Longman European Ways of Law: Towards A European Sociology of Law edited by Volkmar Gessner and David Nelken Crafting Transnational Policing: Police Capacity-Building and Global Policing Reform edited by Andrew Goldsmith and James Sheptycki Constitutional Politics in the Middle East: With special reference to Turkey, Iraq, Iran and Afghanistan edited by Saïd Amir Arjomand Parenting after Partnering: Containing Conflict after Separation edited by Mavis Maclean Responsible Business: Self-Governance and Law in Transnational Economic Transactions edited by Olaf Dilling, Martin Herberg and Gerd Winter Rethinking Equality Projects in Law edited by Rosemary Hunter Living Law Reconsidering Eugen Ehrlich Edited by Marc Hertogh Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW OXFORD AND PORTLAND OREGON 2009 Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: Acknowledgements The history of this volume started in 2004, when Marc Galanter and I decided to organise a panel on the life and work of Eugen Ehrlich at the Law and Society Association Annual Meeting in Chicago. The lively discus- sions at this event led to the idea to publish a collection of essays which would be entirely dedicated to Ehrlich’s sociology of law. In May 2006, we organised a very stimulating and enjoyable two-day workshop on ‘Living Law: Rediscovering Eugen Ehrlich’ at the International Institute for the Sociology of Law (IISL) in Oñati, Spain, with a group of leading interna- tional scholars. The results are published in this book. I would like to thank Marc Galanter for his advice and encouragement in setting up this project. I am also grateful to the participants of this workshop who, besides the contributors to this volume and several master students, included Bernie Trujillo (who replaced Marc Galanter) and Martin Krygier. Their creativity and commitment made this volume possible. I would also like to thank Malen Gordoa Mendizabal and the other staff members of the Oñati Institute, who were the perfect hosts for this workshop and contrib- uted a great deal to its success. Finally, I wish to thank the General Editor of the Oñati International Series in Law and Society, Johannes Feest, and two anonymous reviewers for their comments and assistance in preparing the manuscript for publication. Marc Hertogh Contents Acknowledgements .................................................................................. vii List of Contributors ................................................................................. xi 1. F rom ‘Men of Files’ to ‘Men of the Senses’: A Brief Characterisation of Eugen Ehrlich’s Sociology of Law .......................... 1 Marc Hertogh Part I: Eugen Ehrlich: Life, Work and Context ....................................... 19 2. G overning in the Vernacular: Eugen Ehrlich and Late Habsburg Ethnography ........................................................ 21 Monica Eppinger 3. V enus in Czernowitz: Sacher-Masoch, Ehrlich and the Fin-de-siècle Crisis of Legal Reason ....................................... 49 Assaf Likhovski Part II: Ehrlich’s Sociology of Law .......................................................... 73 4. E hrlich at the Edge of Empire: Centres and Peripheries in Legal Studies ................................................................................... 75 Roger Cotterrell 5. E ugen Ehrlich’s Linking of Sociology and Jurisprudence and the Reception of his Work in Japan ............................................. 95 Stefan Vogl Part III: Ehrlich and his Contemporaries ............................................... 125 6. F acts and Norms: The Unfinished Debate between Eugen Ehrlich and Hans Kelsen ........................................................ 127 Bart van Klink 7. P ounding on Ehrlich. Again? ............................................................ 157 Salif Nimaga 8. T he Social Life of Living Law in Indonesia ...................................... 177 Franz and Keebet von Benda-Beckmann