LJUBLJANA CASE: The development of the Carniola Bar Association​: the Rights of Attorneys and the Legal Profession during the Time of National Awakening

Introduction 

To continue this journey through legal history with a truly legal topic, this study shall concern itself with the development of the Carniola Bar Association. From it’s humble beginnings in the middle of the 19th century, it quickly became a major force in Carniolan public life, fighting for the rights of its members, the legal profession and even the Slovene nation itself.  

A brief history of the attorney’s profession in the Habsburg monarchy 

From time immemorial, if one wanted to become an attorney, he had to be appointed by the state. This fact was painfully felt by Slovenia’s most celebrated poet and jurist, Dr. France Prešeren, who was denied the appointment five times, before finally having his request approved in 1846.  

This all changed in 1868 with the passing of a new law called Advocatenordnung, or Advokatski red. In stark contrast to established practice, it prescribed criteria, which anyone could fulfil and become a registered attorney. What’s more, the fulfilment of these criteria would not be done by an organ of the state, but rather by an autonomous association of the applicant’s soon-to-be peers. Despite this generous concession to the legal profession, the state did not let this process slip its hand completely; in the final instance an applicant could still file a complaint with the Supreme court of the Empire.

The Carniola Bar Association 

Probably founded between 1849 and 1854, the earliest beginnings of the Bar remain shrouded in mystery, as no founding document is preserved. It is for this reason, and due to the tectonic change in status and importance the Advocatenordnung brought to the fledgeling young institution, that we regard 1868 as its year of founding. It was then, that the Bar became, not merely a private association of some attorneys, but a chamber with obligatory membership. It was given the power to register new attorneys, and had its new internal structure prescribed: with the plenary assembly making the most important decisions, and an elected committee to run the Bar day-to-day. In 1872, the Empire issued a Disciplinary statute, which conferred upon the Bar the powers of disciplining its members, via an independently elected disciplinary council, though here, too, the state did not let go of its powers completely, but retained a final appeal to the minister of justice. It is also worth mentioning, that the standing orders of the Bar had to be approved by the same minister of justice, as they were in 1874. 

Unprecedented autonomy accorded to the Bar 

Despite these instances of the state wishing to retain some level of control, it has to be said, that the Advocatenordnung was quite generous in the level of autonomy it afforded the Bar. Sometimes radically so, for instance, §. 22 provided that the altering of the districts of the Bars, or establishing of new chambers, could only be done in agreement with the existing chamber. Even today it would be hard to imagine anything more than a consultation being provided for. In the same vein §. 27, e) conferred upon the Bar the competence to draft legislative proposals, to offer expert opinions on draft laws, to report on the state of the judiciary, as well as to communicate on its perceived shortcomings and wishes regarding the same. In an era still marked by censorship of political criticism, this was no small thing. And as if this paragraph was not explicit enough, in point c) of the same it authorises 'the Bar to elect examination commissioners for the state bar exam, belonging (sic) to the attorney’s estate'. This term “estate”, I believe, merits some explanation: I chose to translate the Slovene word “stan” (or in German “Stande”) as “estate”, to capture the double meaning of it. On the one hand it means simply a profession, a walk of life. But on the other hand, it also denotes a politically relevant class (it is the same word as used in the term “estates general”; Slovene “generalni stanovi”, German “Generalstände”). Thus, the attorneys’ estate saw itself, and was perceived even by the powers that be, as political class onto itself, and that is why they felt those examination commissioners belonged to their estate – because they were very careful who they let join their ranks. A testament to this are some documents I found in the Bar archive: the Bar seems to have requested the same man, one Johan Killer, to provide not only his diploma, confirming his doctorate in law, but also proof of having passed two specific exams: jurisprudence and legal history – the hardest exams at the time.  

Resolution of 1899 

These, however, were not the only noteworthy documents, hiding in the Bar archives. One, which gives particularly clear insight into the self-perception of the attorneys’ estate is the Resoluion of 1899, in which the Bar formally complained to the Justice ministry, regarding a dangerous precedent set by the appelate court in Graz, which issued a binding order to all courts under its jurisdiction, regarding the recovery of legal fees from the defeated party. The Bar set itself up at once as defenders of the attorneys’ estate and of the independent judiciary. The resolution delves into the errors in the court’s interpretation of material law, and simultaneously condemns the hostility of the court towards attorneys. In the end there is also a perfect summary of the foundational rights of the attorneys’ estate. It says, that the law gives each individual attorney the right to represent in court and be rewarded for it. Here we see that the true origin of collective rights, at least in this case, were in fact individual rights of attorneys. Coupling this fact with the provisions of the Advocatenordnung, we can see that free association of these individuals gave rise to the ability of the estate to fight for their collective rights as a block.

The appeal of attorneys-to-be 

But perhaps the most interesting piece from the archive was this hand-written appeal, by men who identified themselfs as “the future members of this estate”. Presuably these were the candidates awaiting the bar exam. They were upset that the government was considering lowering the legal fees tariff, and were worried what that might mean for the material independence of their future profession. So they turned to the Bar, which – despite not being its members, and despite not having any legal links with it whatsoever – they felt was the representative of their interests. As such, they expected it to heed their pleas to take a strong stance against these government proposals. Here we see clearly how the Bar transcended it’s narrow function as an ersatz administrative organ, and became a true voice for the estate it was representing. Not merely a voice for the narrow circle of its de jure members, but for the entire estate as a de facto reality in its entire life cycle as it were.  

Certain other controversies 

Beyond what I could find in the archives, secondary sources tells us of a couple controversies that defined the legal profession in the late 19th and early 20th century. Certainly the most pivotal of these was the so called “Graz ruling”. 

The Graz Ruling was a decission, which denied Slovenes their legaly guaranteed right to procede before the superior court in his mother tounge. This caused outrage amongst Slovene attorneys and split the Carniolan Bar Association itself. The German-friendly president of the Bar did not wish to sign the protest petition, which the majority of the members wanted to send to the ministry of justice. This culminated in his resignation and the election of an administration of the Bar, which took a firm stance on issues of national rights. As their first act, they declared Slovene to be the exclusive language of the Carniolan Bar. From that moment on, the Bar remained one of the foremost advocates of the Slovene national cause. 

Another controversy unfolded in 1915, when, due to the war, many attorneys were fleeing the eastern lands of the Empire, and settling in the west. Fearing oversaturation of the legal profession, the authorities in Vienna abrogated the by then well established freedom of movement of attorneys, and bound each attorney to practice only in the district of his own Bar. The Carniolan Bar once again voiced its strong opposition to this, however, possibly due to the war conditions, their protests fell on death ears. 

I chose to conclude with the uniform dress code controversy, since that, too, offers a fine insight into the mindset of attorneys of that day. When the uniform was prescribed for attorneys, as it had been for any magistrates of the courts, the attorneys were quite simply not having it. While uniforms are commonly accepted by attorneys in Slovenia today, they saw it as subjugation of their estate to the judicial bureaucracy. Their feelings towards it are best summerised by the quote by Dr. Ivan Šušteršič – a prominent attorney and future governor of Carniola (so no rebbel by any means) – “Be it the pride of the attorney to appear in a simple burgeois suit, which represents his independence from bureaucratic bonds.”  

By Benjamin Marenče

This contribution is part of the Ljubljana students' collective project The rights of association and assembly between assertion and resistance among Slovenes with an outlook to Spain in the long 19th century: villagers, workers, academics, lawyers, gymnasts, citizens at large (curated by Prof. dr. Katja Škrubej).

Primary sources 

Arhiv Odvetniške zbornice Slovenije (1869, 31. July) Diploma of Johan Killer 

Arhiv Odvetniške zbornice Slovenije (1864, 22 July) Certificate of examination; legal history; Johan Killer 

Arhiv Odvetniške zbornice Slovenije (1868, 12. July) Certificate of examnation; jurisprudence; Johan Killer 

Arhiv Odvetniške zbornice Slovenije (1899, 7. October) Resolution of 1899 

Arhiv Odvetniške zbornice Slovenije (1901, 9. May) Appeal of future attorneys 

ALEX Historische Rechts- und Gestztexte (1868, 3. July) Advocatenordnung 

Image sources 

Image 1: ALEX Historische Rechts- und Gestztexte Reichs – Gesetz – Blatt, Jahrgang 1868, page 275 

Image 2: Close-up of a seal on one of the documents in Arhiv Odvetniške zbornice Slovenije, font 1 

Image 3: Arhiv Odvetniške zbornice Slovenije (1864, 22 July) Certificate of examination; legal history; Johan Killer 

Image 4: Arhiv Odvetniške zbornice Slovenije (1899, 7. October) Resolution of 1899 

Image 5: Arhiv Odvetniške zbornice Slovenije (1901, 9. May) Appeal of future attorneys 

Image 6: Wikipedia commons Ivan Šušteršič; https://commons.wikimedia.org/wiki/File:Ivan_sustersic.jpg