Imperial Diversity, Fractured Sovereignty, and Legal Universals: Hans Kelsen and Eugen Ehrlich in their Habsburg Context

Abstract

This essay places Eugen Ehrlich and Hans Kelsen afresh in their common context, the late Habsburg Empire. It reframes Ehrlich's legal sociology and Kelsen's pure theory of law as co-original and connected responses to the problem of legal universals under conditions of fractured sovereignty and imperial diversity. At first glance, Kelsen and Ehrlich seem antipodes, an impression apparently confirmed by their prickly exchange in the 1910s: while Kelsen made universality reside in the formal features and sequences of imputation that held the normative order together, Ehrlich claimed that every normative system which purported to be meta-social and meta-cultural merely camouflaged its local conditions of emergence. Once resituated in their Habsburg environment, these strategies can be read as articulations of a broader set of common proclivities. Ehrlich's and Kelsen's proficiency in the empire's techniques of plurality management enabled them to demystify the state and to dismantle the nation: both perceived the state as a juristic construction, hence they unmasked its alleged social, cultural, and ontological unity as a delusion. The same held true for the nation: Ehrlich challenged its supremacy by showing that social relationships—“associations”—cut across national divides, while Kelsen delegitimized the nation's status as a rights-bearing collective and blurred the distinction between citizens and alien residents, working toward the civic enfranchisement of the latter. This dovetailed with Ehrlich's and Kelsen's unmaking of the distinction between private and public law: the false belief in the latter's superiority over the former served to license arbitrary rule. Both jurists deterritorialized state sovereignty by highlighting the brittleness of spatial dominion and the artificiality of political boundaries: Ehrlich and Kelsen discovered a gamut of sovereign authorities with overlapping spatial areas of jurisdiction that coexisted within the Habsburg polity. This in turn permitted them to effectively transcend the distinction between domestic and international law: while, according to Ehrlich, the state fizzled out on the local level, Kelsen redescribed it from a global perspective, turning it into a mere subordinate organ of world law. Ehrlich's legal pluralism and Kelsen's pure theory were the two most successful juristic legacies of the Habsburg polity whose imprint they bore. Both creatively reworked Habsburg constitutional reality into templates of legal order that survived the empire's demise.