Transfer of Legal Thought through Migration

In 1938 the Anschluss triggered a veritable wave of migration of Austrian academics to the Americas, which lasted until the end of WW II. Among the thousands who left Austria were also legal scholars. However, due to the different legal system and the language barrier, only very few managed to resume an academic career in the field of law in their new home. The research project in question undertakes the attempt of telling the story of transfer of legal thought, Austrian legal constructions maybe even Austrian norms and Austrian legal culture to the Americas. It does so by analyzing and discussing the life and the scientific oeuvre published in exile by three selected legal scholar who were educated at an Austrian Law School before World War II and who all continued their academic career in one of the major legal fields of law (Civil Law, Public Law and Legal Jurisprudence) in their new American homes after 1945. In International Law and Legal Philosophy, the focus of my research project will be on the representative of the Vienna School Josef Kunz, researching his contribution to the spread of Kelsens Pure Theory in the field of international law in the U.S and Latin America. The focus will shift to the presumably first female professor of criminal law in the United States, Helen Silving, for the criminal-law component. Given that Silving was asked to draft a Penal Code for Puerto Rico, it is of vital interest to establish the extent to which she remained indebted to the approach towards criminal law, that was taught at the University of Vienna in the 1930s when Silving studied there. As a member of the Puerto Rican Penal Code Reform Commission, she suggested the adaption of the Austrian legislation in several areas of criminal procedural law, not only for Puerto Rico, but also in US-federal law. As far as Civil Law is concerned, I am planning to concentrate my research on the oeuvre of the expert in civil law Albert Armin Ehrenzweig, whose Treatise on the Conflict of Laws is still considered a reference work of International Private Law even today. By putting the scientific work of these three emigrés in context with their lives and networks in exile, the goal of the project is to trace the transfer and development of legal thought, which in some fields of law might stretch right up to the present day. Thus, the story of transfer of legal thought through migration equally becomes the history of three forgotten legal scholars and their impact on legal thought in their new home and beyond. While the paths to emigration of most Austrian legal scholars to the Americas have already been made the subject of research, the lives, networks and scientific work done by them in their new home has received comparatively little attention. My research project will therefore continue at a point where the already existing research stopped.

After the Anschluss and the Nazis' seizure of power in Austria, hundreds of Austrian lawyers emigrated to the United States. Due to the different legal system and the language barrier, only a few succeeded in pursuing a career in law; the number of those who managed to obtain a permanent (teaching) position at US law schools was even smaller. For those Austrian legal scholars who did succeed, the teaching of (comparative) jurisprudence became a door opener to the American academic community. However, the fact that most emigrés focused on those contemporary, continental-European legal theories, they had gotten to know firsthand in the old world, does not automatically mean that those theories also gained foothold in the U.S. A case in point is Kelsen's Pure Theory of Law, which unlike the legal theories of an older generation of "Habsburg legal scholars" (e.g. Eugen Ehrlich with his concept of a "living law" or Karl Georg Wurzel with his sociological-psychoanalytic approach to law) remained "a path not taken" in US-exile. Kelsen's Pure Theory of Law shared its fate with the legal theories developed by a younger generation of Austrian émigrés in their new homeland: Although Albert Armin Ehrenzeig's psychoanalytic jurisprudence or Helen Silving's concept of a positive natural law perfectly aligned with the American zeitgeist, they remained little-noticed "marginal products" that were primarily studied by other European migrants. Unlike in the field of jurisprudence, Austrian émigrés exerted a lasting influence in sociology of law: Hans Zeisel deserves special mention here, as his studies on the American jury system and the death penalty had a lasting impact on U.S. sociology of law.