Volume 4 Issue 4 CONTENTS

Petr Popelka

Business Strategies and Adaptation Mechanisms in Family Businesses during the Era of the Industrial Revolution The Example of the Klein Family from Moravia

 

Family businesses are a central topic in the history of business, especially in the early phases of the industrialization process. This case study attempts to identify the business strategies and the adaptation mechanisms used by a family business during the era of the Industrial Revolution. The main aim of the study is to explore which adaptation mechanisms and strategies were used during the Industrial Revolution by large family firms in the Lands of the Bohemian Crown. The study focuses on a model example, the Klein family, which ranked among the foremost entrepreneurial families in the Bohemian Crown Lands. The Kleins initially rose to prominence through their road construction business. They later built private and state railways and also diversified into heavy industry. I delineate the main stages in the development of the family firm, discuss a number of key microeconomic factors which influenced the Kleins’ business activities, and describe the factors which ultimately led to the downfall of this once-successful firm.

Volume 4 Issue 4 CONTENTS

András Schlett

The Socialist-Type Process of Innovation Lessons of Hungarian Agrarian Modernization between 1960 and 1990*

 

This article analyses the role and the possibilities of innovations in agriculture during the socialist era in Hungary between 1960 and 1990. The introduction of the established industrial-type production systems ushered in significant changes in Hungarian agriculture in the 1960s. The most spectacular changes were increasing outputs and improvements in the food supply. The spreading of high-yield stocks and the adoption of intensive technological procedures helped improve production.
The first part of the paper uses J. A. Schumpeter’s basic definitions of innovation as a guideline to examine the particularities and limitations of socialist innovations as illustrated by the example of the introduction of industrial-type production systems. It highlights and analyzes the factors that exerted a particularly decisive influence on the launch and progress of a new and distinctive form of organizing production. Since the innovation had been institutionalized because of political resolve through central control based on the planned economy, I analyze the features of the relationships between politics and the economy, which were shaped by the politicians and the innovators.
Finally, I examine how political resolve and the inability to revise policies created a kind of path dependence in the 1970s in the socialist countries, while economic and technological development showed much more flexibility within the capitalist countries during the economic crisis.

Volume 5 Issue 1 CONTENTS

pdfMartyn Rady

Nonnisi in sensu legum? Decree and Rendelet in Hungary (1790–1914)

 

The Hungarian “constitution” was never balanced, for its sovereigns possessed a supervisory jurisdiction that permitted them to legislate by decree, mainly by using patents and rescripts. Although the right to proceed by decree was seldom abused by Hungary’s Habsburg rulers, it permitted the monarch on occasion to impose reforms in defiance of the Diet. Attempts undertaken in the early 1790s to hem in the ruler’s power by making the written law both fixed and comprehensive were unsuccessful. After 1867, the right to legislate by decree was assumed by Hungary’s government, and ministerial decree or “rendelet” was used as a substitute for parliamentary legislation. Not only could rendelets be used to fill in gaps in parliamentary legislation, they could also be used to bypass parliament and even to countermand parliamentary acts, sometimes at the expense of individual rights. The tendency remains in Hungary for its governments to use discretionary administrative instruments as a substitute for parliamentary legislation.

Keywords: constitution, decree, patent, rendelet, legislation, Diet, Parliament

 

In 1792, the Transylvanian Diet opened in the assembly rooms of Kolozsvár (today Cluj, Romania) with a trio, sung by the three graces, each of whom embodied one of the three powers identified by Montesquieu as contributing to a balanced constitution.1 The Hungarian constitution, however, was never balanced. The power attached to the executive was always the greatest. Attempts to hem in the executive, however, proved unsuccessful. During the later nineteenth century, the legislature surrendered to ministers a large share of its legislative capacity, with the consequence that ministerial decree or rendelet often took the place of statute law. Deficiencies in the drafting of bills and calculated neglect left large areas of the law to the determination of government and its agencies, expanding the domain of administrative discretion (freie Verwaltung). Whereas in the French revolutionary tradition, where the law was silent the citizen was free, in Hungary the reverse circumstance applied. Where the law was silent, the executive and its surrogates retained the right to intrude, enacting measures that were potentially injurious to individual freedoms.2

The executive, in the sense of the royal government, historically claimed the right to legislative intervention in Hungary on two grounds. The first was through the plenitude of power that attached to the monarch by virtue of his office. The ruler’s right to alter the law was frequently invoked in the Middle Ages, but scarcely survived into the modern period.3 The royal plenitude was only used by way of justification in respect of land trusts, the grant of which by the crown ran contrary to the customary traditions of noble land holding. There emerged as a consequence a branch of equity jurisprudence, administered through the chancellery, which operated independently of the customary law practiced by the kingdom’s courts.4 Unlike the situation in Bohemia, in Hungary the royal plenitude was never invoked in the early modern period to support a superior ius legis ferendae belonging to the ruler (Leopold I ordered that a pamphlet suggesting this be publicly burnt).5 The second right of intervention derived from the so-called power of supervision or Aufsichtungsrecht, which was underpinned by the first article of the laws of 1526. This entrusted the monarch “to use the authority and power he has to do with mature deliberation all that concerns the governance of the realm, the proper collection, increase and correct spending of His Majesty’s revenues as well as everything else pertaining to the defense, liberty and other needs of the realm.6 The Aufsichtungsrecht, as deployed by Hungary’s rulers, made specific appeal to this provision for its justification.7

The right of supervision was manifested in a range of instruments, whereby the monarch influenced administration and justice—intimatoria, normalia, circulars, and so on. The two most important were patents and rescripts. The first of these was intended to make up for statute law where the existing law was deficient; the second to assist the implementation of statute.8 There was, nevertheless, considerable overlap between all of these instruments, on account of which they were frequently included together under the name of mandates or benignae ordinationes. On the whole, we may observe that patents and normalia dealt with matters of general significance and were communicated through the chancellery; rescripts involved the application of the law in specific instances; judicial mandates instructed court procedure; and intimatoria were published on the ruler’s behalf by the regency council.9

In the vast majority of cases, decrees of the monarch or of his surrogates were unexceptionable, treating either upon matters of temporary significance (the movement of prisoners, quarantine restrictions, signs of rabies, and so on) or of minor administrative import (the proper care of triangulation stations, the danger of lighting candles in stables, the lidding of tobacco pipes, and so on). Rescripts addressed to the courts were usually intended to speed up the judicial process, lifting cases to the highest court so as to close off subsequent grounds for appeal or transferring adjudication on the grounds that the judges were potentially partisan. Even when the ruler caused a case to be stopped or pulled it into the chancellery for adjudication, considered reasons were still given.10 Rescripts were emphatically not used, as was later claimed, to subvert the judicial process, for there were better ways of doing this, most notably through the appointment of special tribunals.11 Nevertheless, there were occasions when decrees were deployed as a substitute for statutory legislation. Having failed, therefore, to regulate seigneurial relations through a law agreed by the Diet, Maria Theresa imposed her urbarial reform by patent. Her reform of education undertaken in 1777 was similarly imposed by decree, without the agreement of the Diet, even though it trespassed beyond the sphere which customarily belonged to the monarch. The entirety of Joseph II’s legislation was enacted by decree.

Well before Joseph II’s reign (1780–1790), there had been considerable disquiet over the use of decrees. Statutes had, therefore, repeatedly stressed that mandates which contravened the kingdom’s liberties and laws should be neither enforced nor observed—Mandata contra Jura et Leges Regni non expediantur, Mandata contra Decreta Regni non observentur, and so on.12 The Revisionsklausel, included after 1687 in either the royal oath or the inaugural diploma (or both), likewise insisted that the monarch observe the political community’s “immunities, liberties, rights, privileges and approved customs as the king and the assembled estates shall agree on the interpretation and application thereof.”13 Nevertheless, the fundamental rights of the kingdom’s nobility were put beyond discussion, with the implication that they could not be altered either by decree or indeed by statutory law.14 Even monarchomaniacs, like the Judge Royal (országbí, Landesrichter) Antal Mózes Cziráky (1772–1852), who otherwise claimed a royal right of suprema inspectio that applied to all bodies within the kingdom, conceded that the royal power could only be exercised in accordance with the law.15

Monarchs might, nonetheless, ignore these constraints with impunity. Maria Theresa’s chancellor, Miklós Pálffy (1710–1773), opined that decrees which were not in conformity with the kingdom’s laws were likely to lapse on account of their “lack of weight,” but his appeal to the principle of desuetude hardly carried conviction.16 Accordingly, in the aftermath of the Josephinist experiment, the newly-convened Hungarian Diet sought to hem in the powers of Joseph’s successor by having Leopold II (1790–1792) formally commit himself to govern in accordance with Hungary’s laws and customs and not to publish decrees unless they were in conformity with the kingdom’s laws—nonnisi in sensu legum.17

The problem was that the content of the kingdom’s laws and customs was uncertain. Notwithstanding its reputation as the bible of the nobility, large parts of István Werbőczy’s Tripartitum were no longer relevant (indeed, chunks of its text had from the very first been ignored by the courts). The Corpus Juris Hungarici, in which the kingdom’s statutes were printed, was moreover known to be defective and also to include materials that had been superseded by practice. Hungary was still a customary jurisdiction, on account of which the efficacy of the written law rested upon the degree to which its provisions had themselves been customized by use. In view of this, the Diet that assembled in 1790 instructed that the entire body of the kingdom’s law be revised and published so that its content be henceforward known and rendered immutable, even by royal decree. The Diet accordingly appointed nine committees or Deputationes Regnicolares to work out a thorough legislative settlement, which was to include not only the elaboration of codes of criminal, civil, commercial and procedural law, but also public administration, taxation, peasant obligations, the national economy, mining, ecclesiastical matters, education and culture, and the miscellaneous complaints of the Diet.18 The plan, as originally envisaged, was for the committees to work together to produce a body of draft legislation that would be put to a future Diet for approval as “a single uniform scheme […] all parts of which should make up an orderly and coherent whole.”19

The committees were uncertain whether their task was to accomplish a concentration of the laws as currently found or to devise a program of legislative reform. Leopold pushed for the latter, hoping thereby to force the modernization of the kingdom’s institutions.20 Although the committees entrusted with overseeing economic and cultural policies were innovatory, the majority assumed a largely conservative stance. The committee entrusted with judicial organization managed, therefore, little more in respect of the civil law than a rewriting of the Tripartitum and of János Kitonich’s early-seventeenth-century manual on procedure.21 The committees completed their work in good time, with most of their drafts ready by 1793 (the judicial committee took longer, finishing only in 1795). Nevertheless, the drafts that the committees had composed languished. The Jacobin trials of the 1790s and the climate of repression that followed made all thought of change not only otiose but also dangerous. Although the drafts were occasionally dusted off, and in the 1820s published in an emended edition, only very little of their content was converted by the Diet into statutory legislation.22 In the legislative gap, decrees of the monarch continued to intrude. Ignác Kassics’s Enchiridion, which listed the decrees of the ruler that were considered to be of general application, ran to over 4,000 items for the period between 1790 and 1824.23

The April Laws of 1848 borrowed from the Belgian constitution the principle that decrees of the monarch required counter-signature by the relevant minister. The executive power was accordingly to be exercised by the monarch “through an independent Hungarian ministry, in accordance with the laws [a törvények értelmében].24 Hungary’s defeat in the War of Independence (1849) rendered these provisions redundant. Relying upon the doctrine of constitutional forfeiture (Verwirkungstheorie), Franz Joseph now administered Hungary in the manner of his other kingdoms, imposing legislation in the form of decrees. The Neo-Absolutist regime that he introduced may well have been radical and modernizing, carrying into effect the social revolution begun in 1848, but it relied upon instruments the constitutional validity of which had been previously voided by the terms of the April Laws. Neo-Absolutism proved, however, as unworkable in Hungary and the Habsburg Monarchy as in France. Military defeat and the refusal of the banks to extend loans to maintain the regime forced the retreat to constitutionalism begun by the October Diploma of 1860.

After several false starts, a constitutional solution was reached in Hungary in 1867. Legislative competence in most matters of domestic policy belonged to the legislature, which now became a recognizable parliament. The right of the monarch to legislate by decree was converted into a right that belonged to individual ministers, on the basis of which they might henceforward exercise executive power “on the basis of the laws and the constitution.”25 In the chaos surrounding the establishment of the new Hungarian government, ministerial decrees or rendelets took the place of statutory legislation, for there was simply no time to put through the parliament the bills necessary for the collection of taxes and military recruitment.26 The efficacy of rendelets was subsequently qualified by Law IV of 1869, “On the Exercise of Judicial Power,” which declared that the courts should proceed and judge according to the laws, rendelets that rest on the law and have been proclaimed, and on custom that has the force of law. They cannot call into doubt the validity of properly proclaimed laws, but the judge shall decide on the lawfulness of rendelets in individual cases.”27 Both this and the requirement laid in 1867 that the executive power be exercised in accordance with the laws and the constitution were filled with holes. There was no constitution in the sense of a set of rules that adumbrated the competences belonging respectively to the legislature, judiciary and executive. Nor was there any normative statement regarding the rights and duties of the citizen. The customary law to which the 1869 law made reference was contested and its provisions were far from settled.28 The status of rendelets that were lawfully proclaimed, but which rested on neither custom nor statute, being intended to make up for a legislative deficiency, was not addressed. Plainly, much was left to the courts to decide, and the 1869 law endeavored to ensure that these should be as free as possible from governmental interference. Nevertheless, the right of the minister of justice to appoint to the bench compromised judicial independence and ensured that the courts were usually led by reliable (and badly paid) placemen.29

Hungary’s parliaments were never less than busy. Altogether, between 1870 and 1890, one thousand bills became law, a number that would more than double by 1930.30 Some of these were intended to lay the liberal foundations of a modern civil society—regulating the rights of members of national minorities (less than half of the citizens of Hungary were native Hungarian-speakers in 1910), establishing religious toleration, renewing the kingdom’s commercial legislation, enacting a new criminal code, and so on. Nevertheless, the legislation that was passed tended to be piecemeal rather than comprehensive. Large parts of the law, particularly those affecting legal equality and the remaining encumbrances on peasant tenures, were dealt with in a fragmentary fashion.31 Still, at the beginning of the next century, there were categories of woodland where the rights of peasant usufruct had not been legally resolved.32 The overwhelming share of legislation passing through parliament was given over to measures of only fleeting significance, being nuts-and-bolts administrative and financial provisions. Possibly as much as 80 percent of parliamentary legislation fell into this category.33

Legislation was not only partial, it was also often derivative. It was much easier to borrow foreign legislative acts than to draft bills from scratch. The problem was that the importation of models from abroad introduced a vocabulary and distinctions in law that were not applicable to Hungary. In copying the German Strafgesetzbuch of 1871, the criminal code of 1878–79, devised by Károly Csemegi, introduced a threefold classification of crimes, dividing these between bűntett, vétség and kihágás (corresponding to the German Tat, Verbrechen and Vergehen), that had no basis in Hungarian practice.34 The commercial legislation of the late 1870s was similarly taken from German law and smuggled in provisions of consumer protection without establishing a context for their implementation.35 A further round of borrowing saw the eventual establishment in the 1880s of a financial-administrative court for the resolution of disputes over taxation, fines and exemptions. Its competence was extended to other branches of the administration in 1896 and included most cases for legal redress against excesses or derelictions of duty by organs of state and local government. The inspiration for this development came primarily from the examples of the Austrian Reichsgericht (1869) and Verwaltungsgerichtshof (1875). Even at the time, however, the introduction of administrative courts was considered contrary to established Hungarian practice.36

The establishment of administrative courts created an artificial division between public and private law that opened up new problems of jurisdiction and of the appropriate forum for adjudication. This is precisely what we might expect, given that the “continental distinction” between public and private law was as foreign to Hungary then as it is to England today.37 Rather than tackle the problems of competence head on, however, successive governments chose not to legislate at all. Whole areas of activity were thus not covered by legislative provision, particularly in respect to the rights that belonged to individuals and their relationships to the offices of state power. Of these, the most signal involved the rights of association and assembly.38 There was, however, a similar legislative void in respect of the burgeoning number of land trusts (an individual right gifted by the monarch on the advice of the Minister of Justice) and the post office (a public body trusted with the delivery of private communications).39 The law of mortmain (holtkéz), affecting the individual right to give property to the churches, which were conceived of as public bodies, remained notoriously without any guidance in modern statute. It was ultimately left to the courts to determine that the restrictions on mortmain inherited from the Middle Ages had lapsed through desuetude.40

Further difficulties attended the civil law. The April Laws (1848) had promised a civil code to regulate land ownership and inheritance following the abolition of the antique rules of entail, inherited from the Middle Ages. No code, however, had been forthcoming. During Neo-Absolutism, the Austrian Civil Code had been imposed by decree of the monarch. It had been replaced in 1861 by the Provisional Judicial Rules, drawn up by a specially-convened assembly of lawyers and former judges (the High Judge Conference, Országbírói Értekezlet). By referring back to the Austrian Civil Code, the Provisional Judicial Rules provided the means whereby chunks of the Code were readmitted into Hungarian law.41 Moreover, the Provisional Rules did not apply to Transylvania, as a consequence of which the Austrian Civil Code continued to operate there, notwithstanding the reunion of Hungary and Transylvania in 1867. No new civil code, however, was forthcoming. A committee established in 1869 produced a mishmash of provisions that satisfied no one. A second committee was formed in 1894 with the brief of “elaborating a unified and systematic draft of the Civil Code, taking into consideration Hungary’s statutes affecting the private law and its customary laws, the drafts that have been already compiled, Hungarian judicial opinion and literature, and legal developments in other civilized states.”42 The committee took five years to produce a text running to more than 2,000 paragraphs. This was then published in a five-part edition in 1901–2, and sent out for comment. A revised draft was commenced in 1909, which on account of the need to accommodate criticisms resulted in an expanded text—the section on inheritance law doubled to 1980 paragraphs. The amended version was put before the Lower House in 1913 and revised by a parliamentary committee in 1915, but on account of the war it never received legislative sanction.43

There were two responses to the deficit in the kingdom’s statutory law. The first was judicial activism. The courts filled in the gaps by publishing decisions that might serve to guide subsequent judgments.44 Since, however, Hungary did not have a tradition of case law jurisprudence, these anterior decisions were not compelling. It was only after 1912 that a full session of Hungary’s highest court, the Curia, was empowered to issue decisions that were binding on the lower courts.45 In respect of the civil law, the courts relied for the most part on the drafts published after 1901. These had no basis in statutory law, but were instead comprehended as customary (and thus within the terms of the 1869 act), insofar as they were considered to derive their authority from court practice.46 In a similar fashion, the courts relied for their knowledge of criminal procedure on Csemegi’s draft of 1871 (the so-called Yellow Book or Sárga könyv), which was only superseded by a parliamentary statute in 1896.47

The second response was to rely upon ministerial rendelet with the consequence that a good part of Hungarian law was not parliamentary or even judicial in origin, but derived instead from administrative fiat. From the very start, however, ministerial rendelet was abused. First, parliamentary law making was invariably sloppy and more concerned with establishing general principles than with providing a thorough explication of the ways in which the law should be applied. It was intended that ministerial rendelet should make up for deficiencies in the drafting process, fleshing out on an ad hoc basis the details that the legislative instrument lacked. The law of hunting illustrates this trend. The two statutes published in 1883 that regulated hunting and hunting grounds consisted of only a few pages of text, altogether just over a hundred short paragraphs. Within eight years their statutory content had been amplified by several hundred ministerial interventions and rendelets that ran to almost two hundred pages.48 Year after year, issues of the Woodland Gazette (Erdészeti Lapok) and the Hunter’s Almanach (Vadászati Zseb-Naptár) carried pages of further administrative orders with which the dutiful huntsman and forester should comply. He was well advised to do so. Csemegi’s criminal code of 1878–79 had not defined the offences that fell within the category of kihágás (Versprechen). These were left blank; to be filled in by ministerial rendelet as the occasion arose.49

Secondly, rendelet was used not only to supplement existing legislation but also in place of it.50 Where the law was silent, ministerial regulations might be applied, which almost always worked to the state’s advantage. Since ministerial decrees of this type were not explanatory of an existing legislative instrument, their legality could not be challenged in any court, which permitted all sorts of abuses. The ministerial requirement that associations fulfill only single purposes was therefore used to harass trade unions and to ban societies that promoted the cultural interests of national minorities.51 The ministerial right to disband associations on the grounds that their goals were contrary to public moral (erkölcsellenes) was recognized at the time as entirely discretionary, even by one of the leading advocates of the state’s expansive right of supervision.52 An Interior Ministry rendelet of 1898 provided for imprisonment and a fine for the continued participation in a disbanded association.53 Restrictions on assembly, imposed by the Interior Minister or on his behalf by local police chiefs, often led to violent confrontations and deaths.54 Parliamentary challenges to the arbitrary power wielded by ministers came to nothing.55

According to the Law of 1869, the courts were obliged to take heed of rendelets that were in accordance with statute law and properly proclaimed. Not only, however, were rendelets deployed in the absence of law, to fill in a void deliberately left open by government, but their efficacy did not depend upon their publication. Confidential circulars of the Interior Ministry laid down requirements necessary for meetings, with which the courts were bound to comply. The right, moreover, of ministers to adjust the application of rendelets on grounds of expediency was also affirmed, and this permitted the terms of a published ministerial rendelet to be altered without notice.56 A rendelet might on occasion even be used to overturn the provisions of statute law. In 1871, therefore, the Ministry of Commerce decreed that Hungarian was the only language that might be spoken in an official context on the railways, even though this regulation contradicted if not the letter then certainly the intention of the 1868 Nationalities Law.57 A series of ministerial rendelets further hemmed in the language rights previously accorded by statutory legislation to the nationalities.58

The reliance on extra-statutory instruments, which marked the Dualist period, continued into the twentieth century. It was characterized by such egregious nonsense as the Interior Ministry rendelet of 1927, “On the defense of public morals,” that, among much else, forbade the “chatting up” on the streets of “respectable” women and, later, by the disregard shown by the Communist government for any distinction between statutory legislation and ministerial instruction.59 In the consolidation of communist rule, statutory legislation took second place to ministerial decree, with often the most important measures being implemented by order of the presidential council.60 The Constitutional Court, which took office in 1990, accordingly demanded from the outset that gaps in the law, which might be exploited to the detriment of the rights of the citizen, be filled with statutory legislation. The Constitutional Court’s “jurisdiction of omission” forced governments to proceed through parliamentary acts rather than through ministerial instruments.61

Notwithstanding the Constitutional Court’s activism, a tendency remains for governments in Hungary to proceed through decree and administrative fiat. It was estimated in the late 1990s that 80 percent of the regulations currently then in force originated in administrative rather than parliamentary acts.62 Many of these measures consist of technical provisions that are explanatory of statute, but some plainly substitute for parliamentary legislation. Therefore, when a bill aimed at establishing regional governments was blocked in 2006, parliament was simply bypassed and the necessary implementation inaugurated by governmental decree.63 Likewise, after 2010, the details of legislation and its subsequent application were in areas of particular controversy devolved to agencies of government, rather than originating in statutory provision. If the rights of the citizen are to be protected, the executive branch needs to show forbearance in its use of administrative instruments, in which respect the will of the electorate, as translated into a government majority in parliament, is not the same as a democratic mandate. As György Schöpflin argued more than twenty years ago, a successful democracy requires “self-limitation, the readiness to exercise a self-denying ordinance on the part of all those who exercise power, in society as well as in the state.” Schöpflin’s conclusion is, however, as pertinent now as it was at the time: “There is considerable evidence to suggest that self-limitation is barely understood by the post-communist systems and only occasionally practiced.”64 In this respect, the concert of the three graces remains as discordant today as it was more than two hundred years ago in Kolozsvár.

 

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Palasik, Mária. A jogállamiság megteremtésének kísérlete és kudarca Magyarországon 1944–1949 [The attempt and failure to create the rule of law in Hungary 1944–1949]. Budapest: Napvilág, 2000.

Péter, László. “Die Verfassungsentwicklung in Ungarn.” In Verfassung und Parlamentarismus, vol. 7. of Die Habsburgermonarchie, edited by Helmut Rumpler and Peter Urbanitsch, 239–540. Vienna: Öst. Ak. d. Wiss., 2000.

Péter, László. “The Primacy of Consuetudo in Hungarian Law.” In Custom and Law in Central Europe, edited by Martyn Rady, 101–11. Cambridge: Faculty of Law, 2003.

Péter, László. “The Aristocracy, the Gentry and their Parliamentary Tradition in Nineteenth-Century Hungary.” In Péter, Hungary’s Long Nineteenth Century: Constitutional and Democratic Traditions in a European Perspective. Collected Studies, edited by Miklós Lojkó, 305–42. Leiden–Boston: Brill, 2012. First published in Slavonic and East European Review 70 (1992): 77–110.

Péter, László. “The Autocratic Principle of the Law and Civil Rights in Nineteenth Century Hungary.” In Péter, Hungary’s Long Nineteenth Century: Constitutional and Democratic Traditions in a European Perspective. Collected Studies, edited by Miklós Lojkó, 281–304. Leiden–Boston: Brill, 2012. First published in CEU History Department Yearbook, 1997–98. Budapest: CEU, 1999, 11–34.

Rady, Martyn. Customary Law in Hungary: Courts, Texts and the Tripartitum. Oxford: Oxford University Press, 2015.

Sajó, András. “Reading the Invisible Constitution: Judicial Activism in Hungary.” Oxford Journal of Legal Studies 15 (1995): 253–67.

Schöpflin, George. Politics in Eastern Europe, 1945–1992. Oxford: Blackwell, 1993.

Schwarz (Szászy-Schwarz), Gusztáv, Magánjogunk felépitése [The structure of our civil law]. Budapest: Magyar Jogászegylet, 1893.

Scotus, Viator (R. W. Seton-Watson). Racial Problems in Hungary. London: Constable, 1908.

Sólyom, László, “To the Tenth Anniversary of Constitutional Review.” In A megtalált alkotmány: A magyar alapjogi biráskodás első kilenc éve [Constitution found: The first nine years of Hungarian fundamental law jurisdiction], edited by Gábor Halmai, 21–47. Budapest: INDOK, 2000.

Stipta, István, A magyar bírósági rendszer története [The history of the Hungarian court system], 2nd edition. Debrecen: Multiplex Media, 1998.

Szijárto, István M. A diéta: A magyar rendek es az országgyűlés 1708–1792 [ The diet: The estates and the parliament of Hungary, 1708–1792]. Budapest: Osiris, 2005.

Szijárto, István M. “The Diet: The Estates and the Parliament of Hungary, 1708–1792.” In Bündnispartner und Konkurrenten der Landesfürsten? Die Stände in der Habsburgermonarchie, edited by Gerhard Ammerer et al., 119–39. Vienna: Oldenbourg, 2007.

Szilárd, Ferencz, “Az úrbéres erdők ügye” [The case of copyholder forests]. Erdészeti Lapok 49, no. 21 (1910): 809–20.

Turba, Gustav, Die Grundlagen der Pragmatischen Sanktion, 1. Ungarn. Leipzig–Vienna: Deuticke, 1911.

Varga, Endre and Miklós Veres, Birósági levéltárak 1526–1869 [Court archives 1526–1869]. Budapest: Akad. Kiadó, 1989.

Varga, János J., “Die Notwendigkeit einer neuen Einrichtung Ungarns nach die Türkenzeit.” In Einrichtungswerk des Königreichs Hungarn (1688–1690), edited by János Kálmár and János J. Varga, 9–83. Stuttgart: Steiner, 2010.

Vita, Emil, Egyesületi jog [The law of association]. Budapest: Gyakorlati Közigazgatási Könyvtár és Döntvénytár, 1906.

Zlinszky, János and B. Szabó, “Ungarn.” In Gedruckte Quellen der Rechtsprechung in Europa (1800–1945), edited by Filippo Ranieri, 953–64. Frankfurt a/M: Klostermann, 1992.

Zlinszky, János, “Hungarian Private Law in the 19th and 20th Centuries up to World War II.” In The Hungarian State: Thousand Years in Europe, edited by András Gergely and Gábor Máthé, 305–34. Budapest: Korona, 2000

Zlinszky, János. “Az ügyvédség kialakulása Magyarországon és története Fejér megyében” [The formation of advocacy in Hungary and its history in Fejér county]. Fejér Megyei Történeti Évkönyv 8 (1974): 7–147.

1 Sándor Eckhardt, A francia forradalom eszméi Magyarországon (Budapest: Franklin, 1924), 26–28. The diet met in the Reduta Hall, in what is now the Ethnographic Museum.

2 István Kovács, “A törvény és törvényerejű rendelet problematikájához,” Állam- és Jogtudomány 16, no. 3 (1973): 349–51.

3 Joseph Holub, “Ordinaria potentia – absoluta potentia,” Revue Historique de droit français et étranger 28 (1950): 92–99.

4 Mór Katona, A magyar családi hitbizomány (Budapest: Franklin, 1894), 32–61.

5 János J. Varga, “Die Notwendigkeit einer neuen Einrichtung Ungarns nach die Türkenzeit,” in Einrichtungswerk des Königreichs Hungarn (1688–1690), ed. János Kálmár and János J. Varga (Stuttgart: Steiner, 2010), 47–48.

6 Given in Decreta Regni Mediaevalis Hungariae: The Laws of the Medieval Kingdom of Hungary, 1490–1526, ed. János M. Bak, Péter Banyó, and Martyn Rady (Budapest–Idyllwild, CA: CEU–Schlacks, 2012), 265.

7 János Zlinszky, “Az ügyvédség kialakulása Magyarországon és története Fejér megyében,” Fejér megyei történeti évkönyv 8 (1974): 26.

8 Henrik Marczali, Magyarország története II. József korában, 2nd ed., 2 vols (Budapest: MTA, 1885–88), 1:333.

9 Endre Varga and Miklós Veres, Bírósági levéltárak 1526–1869 (Budapest: Akad. Kiadó, 1989), 42–46, 65–71; for judicial mandates, see also Ignácz Kassics, Tractatus de Mandatis Judicialibus (Pest: Trattner, 1828).

10 Magyar Nemzeti Levéltár Országos Levéltára (=MNL OL) O11, Rescripta Regia, Bundle 1, fols 6, 18, 29, 91, 109, 423, 429; ibid., Bundle 2, fols 106, 108, 114, 159, 275 etc.

11 For the alleged subversion of justice by mandates, see Béni Grosschmid, Magyar előadások: Jogszabálytan (Budapest: Athenaeum, 1905), 127; for delegated tribunals, see György Bónis, Alajos Degré, and Endre Varga, A magyar bírósági szervezet és perjog története, 2nd edition (Zalaegerszeg: Zala M. Bíróság, 1996), 86–87, 95.

12 1543: 31; 1563: 80; 1608: 6. The relevant statutes are rehearsed in Omnia ad Majorem Dei Gloriam, Academia Româna Filiala Bibliotheca Cluj-Napoca, MSS, U523F (1655). Despite its current location, this MS was intended for use in Hungary.

13 Gustav Turba, Die Grundlagen der Pragmatischen Sanktion, 1. Ungarn (Leipzig–Vienna: Deuticke, 1911), 63; Martyn Rady, Customary Law in Hungary: Courts, Texts and the Tripartitum (Oxford: Oxford University Press, 2015), 186.

14 László Péter, “The Primacy of Consuetudo in Hungarian Law,” in Custom and Law in Central Europe, ed. Martyn Rady (Cambridge: Faculty of Law, 2003), 104.

15 Antal Moses Cziráky, Conspectus Juris Publici Regni Hungariae ad annum 1848, 2 vols (Vienna: Wallishausser, 1851), 2:73–82.

16 Henrik Marczali, Gróf Pálffy Miklós emlékiratai (Budapest: MTA, 1884), 9.

17 Law X of 1790/91.

18 The remit of the nine committees is given in Law LXVII of 1790/91.

19 Elemér Mályusz, Sándor Lipót főherceg nádor iratai 1790–1795 (Budapest: MTT, 1926), 120.

20 Ibid., 74.

21 The civil law part of the committee’s work is given in Mária Homoki-Nagy, Az 1795. évi magánjogi tervezetek (Szeged: JATE Press), 2004.

22 George Barany, Stephen Széchenyi and the Awakening of Hungarian Nationalism, 1791–1841 (Princeton, NJ: Princeton University Press, 1968), 200, 282–85. Some of the committee’s Codex Cambio-Mercantilis subsequently entered into statute law (Law XVI–XXII of 1840 and IV of 1844).

23 Ignácz Kassics, Enchiridion seu Extractus Benignarum normalium ordinationum regiarum, 3 vols (Pest: Trattner, 1825).

24 Law III of 1848, §3.

25 Law III of 1867, §1.

26 Magyarországi Rendeletek Tára, 1867, 2nd edition (Pest: Ráth, 1871), 26–30, 55–58.

27 Law IV of 1869, §19: “A bíró a törvények, a törvény alapján keletkezett s kihirdetett rendeletek s a törvényerejű szokás szerint tartozik eljárni és ítélni. A rendesen kihirdetett törvények érvényét kétségbe nem veheti, de a rendeletek törvényessége felett egyes jogesetekben a bíró ítél.”

28 The inclusion of customary law as one of the sources by which the courts should judge was intended to give legal substance to the ‘Provisional Judicial Rules’ of 1861, which otherwise lacked any basis in statutory authority. Despite their ‘provisional’ character, the regulations of 1861 continued in force until the late 1940s.

29 Lajos Králik, A magyar ügyvédség: Az ügyvédi kar, 2 vols (Budapest: Budapesti Ügyvédi Kamara, 1903), 1:245–48, 255.

30 Zoltán Magyary, The Rationalisation of Hungarian Public Administration (Budapest: Athenaeum, 1932), 11.

31 László Péter, “The Aristocracy, the Gentry and their Parliamentary Tradition in Nineteenth-Century Hungary,” in idem, Hungary’s Long Nineteenth Century: Constitutional and Democratic Traditions in a European Perspective. Collected Studies, ed. Miklós Lojkó (Leiden–Boston: Brill, 2012), 311–13.

32 Ferencz Szilárd, “Az úrbéres erdők ügye,” Erdészeti Lapok 49, no 21 (1910): 809–20.

33 Magyary, The Rationalisation of Hungarian Public Administration, 11.

34 Law V of 1878 established the first two categories; Law XL of 1879 added the third. For a summary of the Csemegi code, see Krisztina Karsai and Zsolt Szomora, Criminal Law in Hungary (Alphen aan den Rijn: Kluwer Law International, 2010), 35–36; Tibor Király, “Das Strafgesetzbuch von 1878: Der Csemegi Kodex,” in Die Entwicklung der Österreichisch-Ungarischen Strafrechtskodifikation im XIX.–XX. Jahrhundert, ed. Gábor Máthé and Werner Ogris (Budapest: Unió Lap és Kk., n.d.), 221–36. The German terms have no meaningful English equivalents.

35 János Zlinszky, “Hungarian Private Law in the 19th and 20th Centuries up to World War II,” in The Hungarian State: Thousand Years in Europe, ed. András Gergely and Gábor Máthé (Budapest: Korona, 2000), 311; Gusztáv Schwarz (Szászy-Schwarz), Magánjogunk felépitése (Budapest: Magyar Jogászegylet: 1893), 14.

36 János Martonyi, A közigazgatási bíráskodás bevezetése, szervezete és hatékonysága Magyarországon (1867–1949) (Szeged: Acta Juridica et Politica, 20, no 2, 1972), 3–4. For the background and development of administrative courts in Hungary, see István Stipta, A magyar bírósági rendszer története, 2nd edition (Debrecen: Multiplex Media, 1998), 141–52.

37 See generally on this point, J. W. F. Allison, A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law (Oxford: Oxford UP, 2000).

38 See below.

39 Mór Katona, A magyar családi hitbizomány (Budapest: Franklin, 1894), 65–66; Gábor Kertész, “A magyarországi postaszabályozás fejlődése a kezdetektől a rendszerváltásig,” Jogtörténeti Szemle 23, no. 2 (2008): 33–34.

40 Magyar Jogi Lexikon, ed. Dezső Márkus, 6 vols (Budapest: Pallas, 1898–1907), 4:175–76; on the status of the churches, see Andor Csizmadia, Rechtliche Beziehungen von Staat und Kirche in Ungarn vor 1944 (Budapest: Akadémiai Kiadó, 1971), 26–28. The decision of the Curia was not legerdemain, for gifts to churches had been previously entered without objection into land registers. See Károly Csemegi, Az egyházi holtkéz a magyar törvények szerint (Budapest: Franklin, 1897), 46.

41 Schwarz, Magánjogunk felépitése, 10–12.

42 Helmut Coing, Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, 3 vols in 8 parts (Munich: Beck’sche, 1973–88), 2:2169.

43 Coing, Handbuch der Quellen, 2:2170–71.

44 The relevant compendia of decisions are given in János Zlinszky & B. Szabó, “Ungarn,” in Gedruckte Quellen der Rechtsprechung in Europa (1800–1945), ed. Filippo Ranieri (Frankfurt a/M: Klostermann, 1992), 953–64.

45 István Kónya, “A döntvényjog kialakulása,” Magyar Jog 44, no. 5 (1997): 268.

46 Coing, Handbuch der Quellen, 2:2155

47 Barna Mezey, Magyar jogtörténet, 2nd edition (Budapest: Osiris, 1999), 378–79.

48 Gyula Egervári Egerváry, Vadászati ügyben hozott kormány-rendeletek, 3rd edition (Budapest: Grill, 1891).

49 László Péter, “The Autocratic Principle of the Law and Civil Rights in Nineteenth Century Hungary,” in Péter, Hungary’s Long Nineteenth Century, 289–90. Analogous provisions applied to Law XXVII (§118) of 1876, on bills of exchange.

50 Gábor Máthé, A magyar burzsoá igaszágszolgáltatási szervezet kialakulása 1867–1875 (Budapest: Akadémiai Kiadó, 1982), 64–65.

51 Emil Vita, Egyesületi jog (Budapest: Gyakorlati Közigazgatási Könyvtár és Döntvénytár, 1906), 21–22, 27–38.

52 Ibid., 21, 38.

53 Péter, “The Autocratic Principle of the Law and Civil Rights,” 297.

54 Attila Horváth, “A gyülekezési jog elméletének és gyakorlatának története Magyarországon 1989-ig,” Jogtörténeti Szemle 22, no. 1 (2007): 10–11.

55 Péter, “The Autocratic Principle of the Law and Civil Rights,” 294–301.

56 Ibid., 301.

57 Rendelet 19.672/1871 of the Ministry of Commerce.

58 Some of these are given in Scotus Viator (R. W. Seton-Watson), Racial Problems in Hungary (London: Constable, 1908), 245–48.

59 Rendelet 151.000/1927 of the Ministry of Interior.

60 Mária Palasik, A jogállamiság megteremtésének kisérlete és kudarca Magyarországon 1944–1949 (Budapest: Napvilág, 2000), 319.

61 András Sajó, “Reading the Invisible Constitution: Judicial Activism in Hungary,” Oxford Journal of Legal Studies 15 (1995): 256; László Sólyom, “To the Tenth Anniversary of Constitutional Review,” in A megtalált alkotmány: A magyar alapjogi bíráskodás első kilenc éve, ed. Gábor Halmai (Budapest: INDOK, 2000), 34.

62 Attila Harmathy, Introduction to Hungarian Law (Budapest: Kluwer Law International, 1998), 40.

63 István Balázs, “The Readjustment of Public Administration from the Political Transformation to Today,” in Transformation in Hungarian Law (1989–2006), ed. Vanda Lamm (Budapest: Akadémiai Kiadó, 2007), 114.

64 George Schöpflin, Politics in Eastern Europe, 1945–1992 (Oxford: Blackwell, 1993), 281.

Volume 5 Issue 1 CONTENTS

pdfFerenc Hörcher

Enlightened Reform or National Reform?

The Continuity Debate about the Hungarian Reform Era and the Example of the Two Széchenyis (1790–1848)1

 

This paper returns to the problem of how to interpret the Reform Era, a constant issue of Hungarian historiography since the 1840s. While most master narratives continue, even today, to repeat that it actually began in 1830, there are compelling arguments that in fact the reform programs of the 1830s were deeply rooted in the earlier movements of the 1790s, or even in Joseph II’s reforms of the 1780s.
The paper offers an overview of some of the latest trends in the research of the problem (in the writings of Károly Kecskeméti and Gábor Vermes, viewed from the perspective of Ambrus Miskolczy), as well as a reconstruction of the ways in which contemporaries saw the issue during the Reform Era. In the second part, it compares two important aristocratic protagonists of the age, father and son, Counts Ferenc Széchényi and István Széchenyi.2 It will show that there are indeed close links between these two people, including their plans for reform and their anglophile political attitudes. As both of them played major roles in their own time and were often regarded as heroes by members of their respective societies, if the link between them is strong enough, their example can presumably be used as an argument for the continuity thesis between the two reform generations of the period, and thereby for an interpretation of the Reform Era in the context of the late Enlightenment.

Keywords: continuity, Hungarian Reform Era, historiography, István Széchenyi, Ferenc Széchényi, Enlightenment, liberalism

Preliminary Remarks

One of the key questions of narratives of political history is how to make sense of apparent historical ruptures or breaks. Although the issue is obviously present in all kinds of historical narratives, it is more pressing in the history of political thought, confined to specific cultural contexts. We know that the transition into modernity most often was accompanied by social unrest, political upheavals and frequent and abrupt changes of political regimes, resulting in a series of rather divergent political settings in a short span of time. In this respect, Central Europe certainly has one of the richest catalogues of problems: in the nineteenth and twentieth centuries, sharp historical turns were part and parcel of daily political life in the region.

This paper, an exercise in the history of political thought, will not use new primary resources. It will rely on the basic research that has been done by historians of the Reform Era to analyze a recurring debate in the discourse on the Hungarian past. In Hungarian historiography, the question of continuity versus rupture is a key issue. One particular manifestation of this is the debate about how to look at the period between 1790 and 1848 and how exactly to connect in a historical narrative the well-known political phases of this era. The historian’s choices are telling with regards to their professional and personal priorities, including their value-hierarchy. As soon as you claim, for example, that there is continuity between the 1790s and the 1830s, you can easily argue that what is called Hungarian Liberalism grew out of the spiritual fermentation of what is usually labeled Enlightenment. Also, it will represent the fathers’ generation (active at the turn of the century) as having been quite in tune with the spirit of its age, while the sons (who entered the public arena in the 1820s) will probably be characterized as latecomers. On the other hand, by disconnecting the 1830s from signs of change at the end of the previous century, one presents Hungarian Liberalism as a post-romantic phenomenon which has more to do with the rise of nationalism and turbulent social upheavals than with the European program of the Enlightenment.

Most researchers agree that the death of Joseph II in 1790 was a milestone in Hungarian history, a moment when perhaps for the first time the political elite as a whole directly confronted the challenges posed by modernization in the Habsburg Empire. 1848/9, the so-called “civic revolution” and later war of independence, is among the most influential dates of the country’s modern history. However, when historians of the so-called Hungarian Reform Era try to make sense of the troubled process which led from 1790 to 1848, they soon find themselves in one of two opposing camps. On the one side there are those who argue for a continuity of reform efforts among the Hungarian aristocracy, nobility and intelligentsia, which they claim began with the diet of 1790 and led in a more or less uninterrupted fashion to the reform agenda of the 1830s. This view is criticized by those who refer to two brutal attacks on real or supposed Hungarian enemies of Vienna, first around 1795, using as an alibi the so-called Hungarian Jacobin conspiracy and led by the state’s earlier secret agent, Ignác Martinovics, and later in 1812, when, after an unsuccessful negotiating process between the diet and the king, Francis I, inspired by the absolutistic tendencies of Joseph II’s rule, adopted an even more authoritative style of rule and decided not to summon the diet for 13 years.

If we look at the periods demarcated by these events, the following rather divergent time spans can be delineated during the six decades between 1790 and the outbreak of the Revolution: 1) 1790–1795, 2) 1795–1812, 3) 1812–1825/30, 4) 1825/1830–1848/9. I offer the following brief characterization of these dates:

1) 1790–1795: a period of intense reform efforts and public debate, which concluded with the public execution of the participants in the alleged Jacobin conspiracy of Ignác Martinovics and his small circle by the Court;

2) 1795–1812: a joint effort of Court and Country, Vienna and Pozsony (Bratislava), to counterbalance the effects of the French Revolution;3

3) 1812–1825/30: a period of arbitrary rule by the Habsburgs, when the Hungarian diet was not summoned by the king;4 and finally

4) 1825/1830–1848/9: The actual Reform Era in the narrow sense.5

Certainly the opposing political atmospheres of these four stages suggest a rather stormy climate, including the misguided, farce coup d’état, followed first by public executions and later by authoritarian and unconstitutional rule, which led through the unprecedented Reform Era to a bloodless revolution, to establish the first responsible Hungarian government, but led further into a rather bloody war of independence, and finally to a total surrender of the autonomous and constitutional Hungarian kingdom before the combined armies of the Habsburgs and the Russian Czar.

If we examine these four historical contexts in detail, we find interesting facts. First of all, one notes the obstinately non-modernist policy of Metternich’s Vienna, which determines the space for maneuver for Hungary.6 A far more interesting question, however, is whether the tyrannical moves were enough to put an end to both the intellectual fermentation, which was so characteristic of the spiritual climate of the early 1790s, and the actual social process of an awakening public, roused by the threat of royal absolutism on the one hand and the external danger of the French revolution and Napoleon’s European-wide warfare on the other.7 In the political environment of external and internal threats there is undoubtedly a perceptible calming down of political fever both on the level of the diet and on the level of the county assemblies, as well as a fast decline in the political pamphlet literature so characteristic of the political culture of the early 1790s.8

The creative energy of the national elite turned towards politically less sensitive fields, including the rather fervent but introverted movement aiming at linguistic neology and the polishing of the literary register of the language, the so-called language reform or “nyelvújítás,” the establishment of cultural institutions9 and the organization of literary workshops, journals and networks. The substantial question is how a historian is to evaluate this withdrawal of the political elite from direct political involvement and the decision to concentrate their powers on the cultural and interpersonal field. One could argue that this phenomenon proves that the tactics of the court were successful, keeping Hungarian nobles far from direct political participation, which bore an ever-present revolutionary potential. One could also argue, however, that this interim activity served indeed as a preparatory school for the next political elite, and—to use another metaphor—as a bridge to connect the fervent political activity of the early 1790s with those of the period of 1830–1848.

Before reconstructing the problem in a case study of the relationship of Ferenc Széchényi and István Széchenyi, this paper will first try to summarize the latest wave of scholarly literature. It will examine two prominent moments of the Hungarian historians’ debate in their contexts, showing the relevance of the issue for a general interpretation of Hungarian political culture and providing examples of how the interpretation of the problem may vary depending on the given historian’s perspective and context. After that, the case study of the father and son represents the micro-level of the analysis, still in a sketchy format, but suggesting a way to handle the issue in a reflective manner, learning from earlier professional practices.

The Latest Phase of the Discontinuity Debate

By now, there is an extended branch of historical literature directly addressing the problem of discontinuity.10 If one looks at the main protagonists of the last chapter of the historiographical debate, their geographic distribution is quite remarkable. Interestingly, the debate by now seems to be more relevant for those who work on Hungarian history outside of the borders of Hungary. The issue of continuity had a long prehistory in Hungarian historiography, but recently was first reconsidered by Moritz Csáky in his monograph on the relationship between Enlightenment and Liberalism.11 Perhaps the most articulate debating partners, however, were Károly Kecskeméti and Gábor Vermes, who both published a volume on their opposing views. Kecskeméti defended the continuity thesis in his French publication on liberal reformism in Hungary.12 Gábor Vermes, on the other hand, published a Hungarian language volume on the history of Hungary between 1711 and 1848, based on his research into this topic in the framework of a two-decade long research project.13 While Kecskeméti agreed with Csáky’s main thesis, according to which the Hungarian Reform Era was a direct continuation of the political climate of the early 1790s, Vermes’ long term panorama emphasized the traditionalist culture of the Hungarian political elite, which prompted them to take every opportunity to try to resist external influences of change and reform. His emphasis is less on the Enlightened nature of the Reform age and more on the causes of the dissolution of the traditionalist agenda and the discrepancies between the different types, periods and discourses of reform initiatives. He explicitly denies that the brave efforts of the Enlightenment could really have survived after 1795, and even less after 1812.

The significance of the debate is not simply historiographical. These authors, working respectively in a German, French and English speaking scientific environment, transmitted their respective views of Hungary and its role in early nineteenth-century Europe to their scientific community, which, of course, had no direct access to much of the source material in question.14 It was therefore of crucial importance how they translated the discourses of early nineteenth-century Hungarian politics into the languages and terminologies used by their reader. As for long periods of time Hungarian historiography was cut off from mainstream Western trends, these “translators” had and still have a huge impact in the fashioning of an adequate terminology to make Hungarian debates understandable for foreign readers.

It is crucial to understand how Western historians translate the terms of Werbőczy-based customary law of the country and the terms of the strategic games of grievances or gravaminal policy (sérelmi politika), which was so characteristic of the activity of Hungarian diets in the age. In this respect, Professor László Péter played an important role: he made tremendous efforts to develop an English terminology with which to talk and write about Hungarian political thought in a historical perspective. His efforts were not independent of the achievements of other British colleagues, including the two Seaton-Watsons, Professors Macartney, Cushing and Robert Evans among others, as well as Péter’s student, Martyn Rady, the major international authorities of eighteenth-century and nineteenth-century Hungarian political thought. These historians had a wide range of knowledge of Hungarian history, and they also made tremendous efforts to explain Hungarian historical ideas to foreign audiences. They were not involved in the political debates about historiographical positions, which were so characteristic of Hungarian intellectual life both in the Horthy and the Kádár eras, and this “spectatorial” position liberated them most of the time from the possible mistakes of direct political overtones in history writing. Yet perhaps none of them was or has been able to avoid taking a politico-philosophical position, as all historiographical problems have theoretical connotations. After all, as we have seen, the continuity debate itself seems to be connected to larger issues of the relationship between the Hungarian Enlightenment and the rise of nationalism. I cannot address this aspect of the debate in this essay in a more detailed fashion, and offer this observation only as a cautionary remark, provoked by the fact that the continuity question has been of interest to historians who lived or live outside the borders of Hungary.

In what follows I offer first a short glimpse of the early nineteenth-century Hungarian context. Then I give an assessment of some of the conclusions one can draw from the present turn of the debate.15 Finally, I provide a case study in which I examine the relationship between Count Ferenc Széchényi and his son, Count István Széchenyi. I wish to test the view according to which there is continuity between the Hungarian Reform age and the 1790s. I will also argue that one possible reason behind the common agenda (if there was one) of the father’s generation and the son’s generation is their common source of inspiration: the European (and more particularly, in a number of cases, the British) Enlightenment.16

Nineteenth-Century Views of the Issue of Continuity

I have already observed that the continuity debate began contemporaneously with the actual phenomenon it described. In fact, the idea of discontinuity was an important building block of the self-identification and the ideology of the members of the new generation of the Reform Era, who were keen to show that something unprecedented had begun with their début. According to their official doctrine or founding myth,17 it was Count István Széchenyi, who, first with his gesture of offering one year of his estate’s revenue for the establishment of the Hungarian Academy of Sciences and later with the publication of his book Credit (Hitel, 1830),18 woke the nation from its slumber—an idea which was in fact loudly promulgated by Széchenyi himself.19 In his A Kelet népe (The People of the East, 1841) he wrote, “as 10, 12 years ago, the deep sleeping-sickness of this order made awakening and agitation the most urgent necessity, so today, when we see all other phenomena except for a sleeping-sickness, we have to strive to calm down the passions.20 In other words, according to his own interpretation, in the 1830s he had been right to wake the nation, but by the 1840s his duty was rather to calm down its hot passions.

This myth was challenged as early as 1830. Baron József Eötvös, a key actor of the period, who was 10 years younger than Lajos Kossuth, in 1830 made the following remark to Ferenc Kazinczy:

 

How much my homeland (hazám) owes the honorable gentleman, I and all true Hungarians feel this deeply, for although in every nation a great power sleeps, it sleeps until culture will wake it. In my homeland, Mr. Kazinczy laid down the first stone of the temple of culture, out of which the genius emerges, who now awakens our still dormant national power and pulls it from ugly passivity to a noble life.21

This quote from Eötvös, 22 years younger than Széchenyi, is understandable if we recall that for some time he was rather critical of the count. He was even ready to join Kossuth in the debate about A Kelet népe, when Kossuth, later the most popular politician of the country, tried to answer the challenge of Széchenyi, the clarion of the nation. While Széchenyi positioned himself in opposition to his frightened, ageing father, thus presenting himself as the leader of a new and fresh generational revival, his debate partner, Kossuth, tried to show the ties connecting the prophet of the Reform age to the preceding generation in order to indicate a certain belatedness in his whole approach. In his counterargument Kossuth claims, and then came the diet of 1825, about which Count Széchenyi so truly said: “the counter effect of the momentary pressure clearly proved to the world that the prince of Hungary ruled a vivid and young nation, not an old and dead one.” Kossuth, the outstanding orator, concluded from this fact that “this does not suggest that our nation was already frozen at the brink of the tomb.”22

Interestingly, the two positions, Széchenyi’s self-fashioning presentation of himself as the biblical clarion for the whole nation on the one hand and Kossuth’s efforts to question Széchenyi’s role in the reform movement on the other, were addressed by Zsigmond Kemény in his historical essay about Széchenyi. Kemény, a journalist and political thinker, did not accept the view that the 35 years between the two generations’ heydays was “a sign of political death of the reforms.” In his view, it was only a “political slumber.” In Kemény’s historical narrative, the language reformers in fact almost directly prepared the way for the political reformers. In short, “Kazinczy was Széchenyi’s predecessor.23 Kemény was a close friend of Eötvös, and the two of them, together with their two further friends, tried to recount the founding myth by drawing a closer link between the generation of the 1790s and that of the 1830s. One of them was the lawyer-historian-publicist László Szalay, who made the following contention in 1844:

 

We, who do not belong to the youngest generation, who did not read Kossuth’s papers as adolescents, but rather read those by [István] Kultsár and [István] Márton,24 did not acquire our knowledge of journalism [publicisztikai ismeret] from the aforementioned, but rather acquired it at least partly from the pamphlet literature of 1790–92.25

The other one was the lawyer and journalist Ágoston Trefort, who in 1845 made the following claim: Our century is the offspring of the eighteenth century, and though its physiognomy is different, the basic capital of its operations is the intellectual treasure which was accumulated by its precursor, which we consume unconsciously, as if we had collected it.26 These and other quotes from the period between 1830 and 1848 by the leading generation of what is called the flourishing Reform Era provide ample evidence that some of the main protagonists of the 1830s worked hard to establish the principle of continuity between their historical moment and the 1790s. Of course, this reinterpretation of their recent past served very well-considered political purposes, and this topic is worth further consideration.

The Last Phase of the Continuity Debate

Given the focus and framework of this essay, I cannot expand on all of the aspects of the history of the debate. Ambrus Miskolczy’s recent thoughtful summary of it is rich in details, and it does not need to be retold. I would return rather to our specific context and examine some of the conclusions that can be drawn concerning “Hungarian revisionism in the West” with the help of Miskolczy’s narrative.

Ambrus Miskolczy seems to favor the positions of Moritz Csáky and Károly Kecskeméti.27 As mentioned, both of them published a volume about the period recently, introducing the problem for their language community. Csáky’s aims are obvious from the title of his book. His main thesis is that there was a gradual shift from Enlightenment to liberalism in Hungarian political thinking, and he finds the breakthrough in the 1810s. As he sees it, “the constitution of the estates served as the formal starting point of democratic representation.28 In Miskolczy’s interpretation, Csáky’s findings are in tune with those of literary historians, “as they basically try to seize the turning point between the two periods in changes of the public’s perception and less in the flips of the political-public sequels.29

Even more telling is Miskolczy’s reading of Kecskeméti’s book, which has since been published in Hungarian as well.30 Kecskeméti arrives at the following conclusion: “the Hungarian liberals of the nineteenth century were aware of what their country owed to Joseph.31 Miskolczy is not uncritical with regards to Kecskeméti’s narrative (for instance, he argues that Kecskeméti paints the narrow path which led from 1790 to 1830 as a wide and comfortable road, which certainly was not the case), and he digs into the historical details to weigh the merits of his arguments. He finds a bit counterproductive Kecskeméti’s main bit of evidence, the quote by Szalay mentioned above. According to Miskolczy, it only proves that the grandchildren of the great generation of the 1790s were ready to turn back to the examples of their grandfathers, thereby actually revolting against their own fathers. But it is more important for us, in the context of this inquiry that in Miskolczy’s reading Kecskeméti finds “the centralists” the real inheritors of the Hungarian Enlightenment.32 This closely tied group of politicians, intellectuals and journalists was also called the club of Hungarian doctrinaires, who in the sparkling rhetorical and political clash between Széchenyi’s supporters and those of Kossuth first chose Kossuth, but later got closer to Széchenyi. The circle included Eötvös, Trefort, Szalay, Antal Csengery, Dániel Irinyi and a bit further away also Kemény. Miskolczy seems to be again a bit ironical or sarcastic when he writes that, according to Kecskeméti, “they were the most perfect thinkers of the age.33 It should be clear: Kecskeméti’s claim about the centralists as the real successors to the Enlightenment is hardly questionable. I myself have also mentioned Eötvös, Szalay, Trefort and Kemény as people who had a lively interest in the ideas of the previous generation, and who were indeed well versed in their intellectual heritage. István Fenyő, the monographer of the centralists, also argued that there was a direct link between them and the Enlightenment.34 In the article about this theme, which he published independently as well, Fenyő demonstrated with ample philological apparatus their connections with the Theresian-Josephinist program, with Palatine Joseph, their readings of József Hajnóczy and Gergely Berzeviczy, and their links to Széchenyi, and perhaps even more importantly, to Ferenc Kölcsey. All these influences point to that narrow path which we need as a proof to establish the connection between this new generation and their (fore)fathers.

One more thing needs to be said however. In this longstanding historiographical debate about intellectual origins what is really at stake is not the simple factual question of whether a genuine Hungarian Enlightenment and a native Hungarian liberalism existed. These questions by now seem to be a bit outdated and scholastic as well (for what exactly would one mean by a “real” Hungarian Enlightenment and a “real” Hungarian liberalism), but the very existence and persistence of the question can be seen as symptoms of a well-formed political inferiority complex problem. Again, this is not something that history writing could directly tackle. But as historians of political thought we have to ask how and to what extent this complex captured the imagination of Hungarian historians as well, and how far it still distorts a real assessment of the Hungarian past, including perhaps even this very essay.

To be explicit, an equivalent of what is called Whig historiography in the Anglo-Saxon context is easy to detect in the Hungarian historiographic convention, mostly in its independence-oriented Protestant variation, but also in its progressivist-communist incarnation. István Bibó represented a combination of these two traditions. Bibó proceeded from the assumption that belatedness is a key issue of Hungarian modernization, and that all political thought and action should be judged in comparison with contemporary Western standards.

In fact, as I see it, the continuity thesis in this context is an argument that the reform movement was not as belated as we used to think, and that it is comparable to parallel efforts of the European Enlightenment. While I agree with a substantial part of the views of those who defend the continuity thesis, at the same time I endeavor to step out of the false dichotomy of Protestant-leftist values of independence and progress versus Catholic-conservative values of loyalty and order in order to provide a perspective which shows that what is regarded as the birth of nationalism is indeed closely connected to an earlier period of Cosmopolitan ways of thinking.

In what follows, I offer a case study: an analysis of the relationship of István Széchenyi to his father Ferenc, in order to see whether indeed the continuity thesis can be substantiated on the micro-level. My further aim is to reflect on the consequences of a substantiated thesis of continuity: to what extent and in what directions does it restructure our understanding of the Reform Era.

A Case Study: István Széchenyi and His Father

Hungarian aristocratic families in the late eighteenth century brought up their children in a spirit which suggested a close, sometimes sentimental, but not yet romantic relationship between parents and offspring. It preserved something of the patriarchal nature of family relationships so characteristic of the early modern period. One part of this sentimental upbringing was the expectation that children speak and write to their parents in a decent and proper way.35 If we read the early letters of István to his parents, we sense this sort of veneration, which was characteristic in their circle. Sometimes István sounds as if he regarded his parents as his idols: “It is my resolute intention to follow in the footsteps of my parents, who are beloved by everyone.”36 Although this good relationship became more troubled when the young man joined the army and was forced to request considerable financial support to cover the costs he incurred while fighting abroad, he seems to have taken to heart most of the final pieces of advice he received from his father. He carefully retained the letter of spring 1817, in which his dying father bid farewell to his son, and kept it with him as a talisman. In this letter, his father asked his son for pardon if he had caused him any pain with his “bad example.” He kept reminding István of his “Christian and civil obligations”37 and the importance of being liked by God and his fellow human beings. He warned him of the unreliability of public opinion: “Public opinion is a tribunal for all of us which we should never rule out, but which we are never obliged to accept unconditionally or search for as the only guideline.”38 He advises István to get rid of all readings that could seduce his “belief, heart and morals” and to collect books which have moral, historical, statistical or military subjects. But even more importantly, Ferenc encourages him to acquire the mental, moral and intellectual abilities necessary to “serve the state.” He is aware of the defects of István’s moral education, but he consoles him and himself that “what is necessary can still be supplemented (in order to let you govern a state, conduct an army, defend the rights of your family, serve your homeland, look after your stocks and felicitate your fellow human beings).39 He also wrote about the importance of learning foreign languages and travelling abroad (not distinguishing between the two), but he warns his son that these two things alone would not satisfy the need to be “useful to the state.40

Széchényi’s advice to his son, a gesture resembling that of Polonius to his son in Shakespeare’s Hamlet, does not fit the usual description of the father’s late views and the commonly supposed relationship between the father and son very well. For example, according to the notes of a pre-1990 edition of István’s diary, Ferenc Széchényi had been a supporter of Josephinist reforms, but after 1795 he had become an “unbending conservative,” and he had spent his last decades “as a recluse, in a sort of religious fervor.”41 The letter quoted above, in contrast, contains sober suggestions along a Christian stoical line, cherishing virtues like “modesty [szerénység], seclusion [visszavonultság] and propriety [illemtudás].42 His advice also includes reservations about material richness, and suggests the importance of a good relationship with servants and their stewards, “If they find in you science, justice, order, enduring industry and charity, they will also serve you honestly, with diligence, and justly, and they will handle your servants in a humane manner.43

This letter seems to support the idea that Széchényi was not a bigoted religious fanatic, not even in his old age, as he is presented in most of the simplified historical narratives. He surely must have lost many of his youthful hopes. He was indeed a radical idealist as a young aristocrat, and during the early years of the 1790s he served as one of the engines of the reform wing. He had a vision of the “impenetrable warrant of the constitution, because nine million people defend it, who have the same homeland and whose hearts beat with the same rhythm.”44 If this was his starting point in 1790, by 1792 he had arrived at a reform plan which indeed foreshadowed much of the guiding ideas of the son: security of person and property for the serfs, customs to be paid by nobles, industrial, commercial and credit allowances, etc., and the much vaguer hope that everyone in the country might join the political community.45

Having embarked on these high ideals, he had good reason to be frustrated at first in the second half of the 1780s, when the policies followed by Joseph II turned out to be hard for him to reconcile with Hungarian interests, and then after 1795, when his earlier secretary, the talented political thinker József Hajnóczy, got executed in the Martinovics trial. He himself was also rightly accused of having gone too far in his loyalty to his king at a time when the country was threatened by the monarch’s absolutist policies.46 But it is hardly acceptable to claim that he had given up his sense of national belonging, nor does it seem probable that he had given up his aspirations to serve his homeland, as the foundation of the national museum and library amply proves. Also, obviously, he brought up his children in a spirit of service to their nation, and there is no indication that he changed his views in this matter. The fact that this did not exclude his loyalty to an absolute ruler only reminds us to be careful with generalizations: even if there was a longstanding debate between the king and the country in the Hungarian political tradition, one of its key constitutional principles was and remained the need for a balance and ongoing cooperation between king and country, which might have been relevant for ardent patriots, like the elder Széchényi, as well. Certainly, with the Habsburgs, it was easier to respect this demand of the constitution if you were Catholic and an aristocrat than if you were Protestant or belonged to any other unprivileged denomination or minor social class, including the nobility as well.

It is also obvious that there was a very outspoken religiosity in Széchényi’s late years, but it would be hard to characterize it as a sign of provincial traditionalism, opposed to the trendy ideas of his age. His religiosity was closely linked to the most popular trend in contemporary Vienna, one which had Europe-wide support, in the form of the Romantic movement in art and thought. His close relationship to Klemens Maria Hofbauer (1751–1820), originally a hermit but later a celebrated Catholic priest and preacher and member of the Redemptorist Congregation, is just one sign of the fact that Széchényi’s religious fervor was not a delirium that bordered on madness, as it was sometimes described, even by his son.47 Certainly, the circle of which he was the centre was open to seemingly inexplicable mystic experiences, and the rituals followed by them might have seemed sometimes even embarrassing from the outside, but all this was quite in tune with the Catholic revival characteristic of Restoration Vienna.48 This atmosphere attracted spiritual celebrities and artists to Vienna, including Adam Müller, Dorothea and Friedrich Schlegel, Friedrich Gentz and others. Széchényi himself became a minor star in Vienna’s social and religious life, providing a home for the informal gathering of his socially well-positioned and cultured friends and fellows in his apostolical and evangelizing activity. Although Széchényi withdrew from public activity and concentrated on this sort of charity work, his son’s accounts of him seem to be a bit exaggerated and tendentious. They were no doubt based on his own personal recollections, but they were perhaps also colored by political motivations and at times influenced by his attempts to position himself. The characteristic presentation of their common story, in which he describes the decline and death of his father as an allegory of the decline and death of eighteenth-century Hungarian patriotism and his own embarkation as the birth of a new kind of national awareness, is telling. The story is an important part of his argument against Kossuth, and it includes the following confession: “since my father, whose civil virtues were shining, as ‘Hungarian’, had fallen into his grave hopelessly, I kept comparing the life signs of other nations with the thread of the life of the Hungarian, to find out if there is still hope for resurrection, or if it has gone forever. This was the deepest task of my life.”49 This play of counterpoint, according to which his father was sacrificed on the altar of national renaissance, serves to emphasize the unprecedented significance of his own role in awakening the “Hungarian.” The book in which he poses in this role was published at the very moment when he sensed that his role as the first pioneer of the Hungarian reform movement was challenged by the leading voice of the next generation, his main rival, the rhetorically talented and charismatic young lawyer, Lajos Kossuth. And it is exactly this sort of self-fashioning by István Széchenyi that provoked Kossuth to fashion an oration against it, which builds up the following way.

In Kossuth’s reading, the whole point of Széchenyi’s book was to show that “this nation is a weakened patient,” and he (Széchenyi) is the dedicated physician, who with his assistants has been healing the patients for 15 years.

According to Kossuth, however, the nation is and was not as old and ill, and it was not standing so close to the brink of the grave, as Széchenyi painted it. To argue in support of this second point, Kossuth referred back to the diet of 1790, of which he claimed that in it, the Enlightenment was joined by patience. He also referred especially to the workings (munkálat) of the committees of the diet, of which even “the children of the nineteenth century” could be proud, and to the zeal and self-sacrifice that characterized the next quarter of a century. He defended even the periods of stagnation (presumably the absolutist phase between 1812–1825), because it was during that time that the champions of the Reform Era were brought up. The fact that the nation was so enthusiastic about Széchenyi’s suggestions was, in Kossuth’s assessment, a sure sign that it was the living-dead entity painted by Széchenyi.50

The important point of this fine pamphlet is that Kossuth attributes a special significance to the apparently inactive period of the early nineteenth century, explaining it as a time for preparation. Of course the language reform is often interpreted as a necessary step in preparation for the Reform Era, but Kossuth seems to be more sensitive to an issue which failed to catch the phantasy of most mainstream representatives of the earlier generation who took part in national politics: the close connection between institutionalized culture and reform politics. Generally, historians describing this period continue to stress the frustration caused by the Viennese Court’s de-politicizing strategy among the Hungarian nobility and intellectuals, but in fact cultural institutional innovations, following in the footsteps of the two Széchenyis, played a major role in the project of nation-building, and should themselves be taken as substantial forms of political self-expression. Museum, library, educational institution, academy, theater, casino—these were all envisioned and realised by Széchényi and his son as tools with which to organize and educate the political elite of the day, thus widening the circle of those involved in the affairs of the nation and their political armor.

As Ferenc Széchényi’s example shows, the practice of cultural institution building grew out of the aristocratic habits of patronizing the arts. However, very soon it turned into indirect support for the cause of the nation.51 Ferenc Széchényi’s strategic moves to establish the National Museum and Library grew out of the traditional practice of his own social standing, and yet it came to be seen by his nation as foundational work for long-term national progress.

István Széchenyi quite naturally followed this example, but added to it an extra dimension by combining the Hungarian version of the aristocratic ideology of politeness and refinement with the new insight that the nation’s real strength lies in a strong middle class (középesülés), which needs a quality education and the possibility to refine their minds.52 Széchenyi’s stunningly brave claim is that the real resource of a state is the “cultivated mind” (kiművelt emberfő) among its citizens. The argument of the present paper is that this claim does not come out of the blue. It is closely connected with the practice of cultural sponsorship developed in the Enlightenment and popularized by members of the previous generation. Széchenyi’s program is easily decoded if one uses the vocabulary of the Enlightenment as the code of interpretation.

The end of the eighteenth and the beginning of the nineteenth century witnessed the evolution of an institutional infrastructure for the arts and sciences all over Europe, which laid the way for the (more) middle class culture of the industrial revolution and the birth of what is called “commercial society” in the British and French traditions. The connections between sociability, commerce and culture were developed by the theorists of the Scottish Enlightenment, including Hume, Smith, Millar, Ferguson and Robertson. They became heroes of Central European “anglophilia” and important in particular as reference points for both Ferenc Széchényi and his son, István.53 The ideas of the Scots were immediately well-received in Germany, in particular through Göttingen and other major university centers, as well as in key scientific and cultural journals, in the form of reviews, excerpts and translations, as well as debates and pamphlets criticizing British authors.54 No doubt, the German discussion of the bürgerliche Gesellschaft profited from this reception history. The German term is used to describe a social organization based on the hard-working, disciplined, ethical and innovative spirit of the middle classes, but one which also depends on the culture and education of its individuals and communities, as the term Bildungsbürger (educated middle class citizen) so tellingly expresses.

Certainly, the aristocratic status of the Széchenyi family did not allow István to identify directly with the ethos of the ordinary citizenry. The way in which children of the aristocracy at the turn of the century were brought up offered them a much wider intellectual and social panorama and a much more luxurious lifestyle. Yet the real merit of Széchenyi’s program was closely connected to a new, urban Lebensform experienced by the middle classes in major cities. In fact, Széchenyi’s aim, inspired by eighteenth-century Britain’s example, was to domesticate the rural nobility of Hungary to the social standards of urbanized high culture. His efforts to establish institutions which provoked refined but large-scale social gatherings on a regular basis, including the horse race and the Casino, his building project of the Chain bridge between Buda and Pest to connect the chief trade routes of the two sides, his support for the establishment of the national theatre, and even the simple fact that he applied for citizenship in both Pest and Buda, all of these can prove his conscious effort to propagate city life and urbanized manners.

Conclusion

The main issue of this paper is not to question the originality of the entrée of István Széchenyi. Rather, it tried to show how and to what extent Enlightenment thought and practice was still part and parcel of early nineteenth-century Hungarian intellectual life and to point out that István’s “practical philosophy” and that of his father, in spite of the differences between them alleged by István Széchenyi, had common roots in the thought of the earlier Josephinist era and in the Continental fashion of Anglophilia. As we have seen, the son’s attempt to distance himself from his father was of an “ideological” nature, but it was adopted by the public opinion of the period, and this strengthened the position of the discontinuity thesis.

The close relationship between Ferenc Széchényi’s and István Széchenyi’s respective acts (the establishment of the national Museum and Library in the case of the former and the establishment of the Hungarian Academy of Sciences in the case of the latter) supports the validity and relevance of the continuity thesis and reveals how broadly the ideas of the Reform Era could be interpreted in the context of the discursive framework of the Enlightenment. In other words, this case study seems to support the continuity thesis, which, once accepted, casts the Reform Era in a different light. It differs both from the picture that participants themselves preferred and from the way in which the Whig-style national historiographical tradition usually characterized it. If the birthdate of the Reform Era is in fact neither 1825 nor 1830, but rather it is to be looked for somewhere around the 1780s–1790s, this might have consequences concerning not only the periodization of the first half of the nineteenth century, but also the narrative and the evaluative content of the historiographical category of the Reform Era itself. In other words this conclusion reinforces the view according to which the reform movement was born in the Cosmopolitan atmosphere of the Enlightenment and the nationalist turn was only a later development, effectively introduced only around the 1840s.

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Hörcher, Ferenc. “‘Soft power’ a reformkorban? A Széchenyiek tudománypolitikai céljai” [‘Soft power’ in the reform age? The goals of the Széchenyis’ scientific policy]. Korall 52 (2016): 5-28.

Kecskeméti, Károly. La Hongrie et le reformisme libéral: Problèmes politiques et sociaux (1790–1848). Rome: Klincksieck, 1989.

Kecskeméti, Károly. Magyar liberalizmus 1790–1848 [Hungarian liberalism 1790–1848]. Budapest: Argumentum Kiadó–Bibó István Szellemi Műhely, 2008.

Kemény, Zsigmond. “Széchenyi.” In idem. Sorsok és vonzások [Fates and attractions], edited by Gyula Tóth and János Győri, 115–310. Budapest: Szépirodalmi Kiadó, 1970.

Kossuth, Lajos. “Felelet gróf Széchenyi Istvánnak” [Reply to Count István Széchenyi]. In A “Felelet” és más vitairatok Széchenyi István A’ Kelet népe című könyvére [“Reply” and other polemical writings on István Széchenyi’s A’ Kelet népe]. Pest: Landerer and Heckenast, 1841. Reprinted in Budapest: Közgazdasági és Jogi Könyvkiadó, 1986.

Kurucz, György: Keszthely grófja: Festetics György [Count of Keszthely: György Festetics]. Budapest: Corvina, 2013.

Miskolczy, Ambrus. A felvilágosodás és a liberalizmus között: Folytonosság vagy megszakítottság? Egy magyar történészvita anatómiája [Between Enlightenment and liberalism: Continuity or rupture? The anatomy of a Hungarian historians’ debate]. Budapest: Lucidus Kiadó, 2007.

Miskolczy, Ambrus. “Egy történészvita anatómiája. 1790–1830/1848: folytonosság vagy megszakítottság? (avagy mit üzent Kossuth Lajos?)” [The anatomy of a Hungarian historians’ debate. 1790–1830/1848: Continuity or rupture (Or what did Lajos Kossuth say?]. Aetas 20, no. 1–2 (2005): 160–212.

Pajkossy, Gábor. “A reformkor (1830–1848)” [The reform era (1830–1848)]. In 19. századi magyar történelem 1790–1918 [Nineteenth-century Hungarian history 1790–1918], edited by András Gergely. Budapest: Korona Kiadó, 1998, 197–246.

Pajkossy, Gábor, “Az abszolutizmus és a rendiség utolsó küzdelmei: Az első reformtörekvések (1790–1830)” [The last struggles between absolutism and feudal society: The first reform efforts]. In 19. századi magyar történelem 1790–1918 [Nineteenth-century Hungarian history 1790–1918], edited by András Gergely, 127–58. Budapest: Korona Kiadó, 1998.

Poór, János. Kényszerpályák nemzedéke 1795–1815 [The generation of paths of compulsion 1795–1815]. Budapest: Gondolat Kiadó, 1988.

Szalay, László. Publicisztikai dolgozatok II [Journalistic writings II]. Pest: n.p., 1847.

Széchenyi, Ferenc, “Pártatlan gondolatok az 1790-ben megtartandó országgyűlésről” [Unbiased thoughts about the diet to be convened in 1790], March 10, 1790. Vienna, excerpt. In Magyarország története a 19. században: Szöveggyűjtemény [Hungary’s history in the nineteenth century: Collection of texts], edited by Gábor Pajkossy, 34–38. Budapest: Osiris, 2006.

Széchenyi, István: Hitel [Credit]. Pest: Petrózai Trattner J. M. és Károlyi István Könyvnyomtató Intézetében, 1830. Accessed February 10, 2016. https://ia800502.us.archive.org/25/items/hitelist00sz/hitelist00sz.pdf.

Széchenyi, István. A Kelet népe [People of the East], 2th edition. Pozsony: Wigand Károly Fridrik, 1841. Accessed February 10, 2016. http://mek.niif.hu/05500/05533/05533.htm.

Széchenyi, István. Napló [Diary], ed. Ambrus Oltványi, 2th edition, Budapest: Gondolat, 1982.

Szűcs, Zoltán Gábor. “Kontinuitás és diszkontinuitás a 18–19. század fordulójának magyar politikai kultúrájában: Politikaidiskurzus-történeti esszé” [Continuity and discontinuity in Hungarian political culture at the turn of the eighteenth and nineteenth centuries: A historical essay on political discourse]. Századvég, no. 55 (2010): 19–42.

Szűcs, Zoltán Gábor. “Burke és a magyar ‘protokonzervatívok’: Politikai diskurzus­történeti esettanulmány” [Burke and the Hungarian “protoconservatives”: A case study on the history of political discourse]. In Edmund Burke esztétikája és az európai felvilágosodás [The aesthetics of Edmund Burke and the European Enlightenment], edited by Ferenc Hörcher and Márton Szilágyi, 248–70. Budapest: Ráció, 2011.

Szűcs, Zoltán Gábor. “Magyar protokonzervatívok” [Hungarian proto-conservatives]. Kommentár 4, no. 4 (2009): 17–31.

Trefort, Ágoston. “XVIII. század” [The eighteenth century]. Pesti Hírlap, February 6, 1845.

Vermes, Gábor.A tradicionalizmus és a felvilágosodás keveredése a tizennyolcadik század második felében Magyarországon” [The mixture of traditionalism and enlightenment in the second half of the eighteenth century in Hungary]. Sic Itur Ad Astra 17, no. 3–4 (2006): 87–112.

Vermes, Gábor. Hungarian Culture and Politics in the Habsburg Monarchy, 1711–1848. Budapest: Central European University Press, 2014.

1 This essay was written as part of the research project no. K 108 670 with the support of the National Research, Development and Innovation Fund, entitled Művészetek és tudomány a nemzetépítés szolgálatában a 19. századi Magyarországon [Arts and Sciences Serving the Building of the Nation in Nineteenth-century Hungary].

2 The two Széchenyis, father Ferenc Széchényi and son István Széchenyi used different ways of spelling their names.

3 For further details, see: János Poór, Kényszerpályák nemzedéke 1795–1815 (Budapest: Gondolat, 1988).

4 For further details see: Gábor Pajkossy, “Az abszolutizmus és a rendiség utolsó küzdelmei: Az első reformtörekvések (1790–1830),” in 19. századi magyar történelem 1790–1918, ed. András Gergely (Budapest: Korona Kiadó, 1998), 127–58.

5 For further details, see: Gábor Pajkossy, “A reformkor (1830–1848),” in 19. századi magyar történelem: 1790–1918 (Budapest: Korona Kiadó, 1998), 197–246, and András Gergely, “A forradalom és az önvédelmi háború (1848–1849),” in 19. századi magyar történelem, 247–91.

6 On the relationship between Metternich and Széchenyi, see Ferenc Hörcher, “Trust, Credit and Commerce: Count Széchenyi’s Vision of How to Build Social Cohesion in 19th Century Hungary,” in A bizalom, ed. Sándor Laczkó (Szeged: Pro Philosophia Szegediensi Alapítvány–Magyar Filozófiai Társaság–Státus Kiadó, 2015), 102–18.

7 See Gabriella Gáspár, A polgári nyilvánosság kezdetei Magyarországon (Budapest: Agroinform Kiadó, 2002).

8 Perhaps the first account of this pamphlet civil war (and by now this account has become the classic account) is Győző Concha, A kilenczvenes évek reformeszméi és előzményeik (Budapest: Franklin, 1885, present edition: 2005).

9 See my paper on this issue: Ferenc Hörcher, “‘Soft power’ a reformkorban? A Széchenyiek tudománypolitikai céljai,” Korall 52 (2016): 5–28.

10 In addition to the literature quoted below, see for example Folytonosság vagy fordulat? A felvilágosodás kutatásának időszerű kérdései, ed. Attila Debreczeni (Debrecen: Kossuth Egyetemi Kiadó, 1996); Gábor Zoltán Szűcs, “Kontinuitás és diszkontinuitás a 18–19. század fordulójának magyar politikai kultúrájában: Politikaidiskurzus-történeti esszé,” Századvég 55 (2010): 19–42.

11 Moritz Csáky, Von der Aufklärung zum Liberalismus: Studien zum Frühliberalismus in Ungarn (Vienna: Verlag der Österreichischen Akademie der Wissenschaften, 1981).

12 Károly Kecskeméti, La Hongrie et le reformisme libéral: Problèmes politiques et sociaux (1790–1848) (Rome: Klincksieck, 1989).

13 Gábor Vermes, Hungarian Culture and Politics in the Habsburg Monarchy, 1711–1848 (Budapest: Central European University Press, 2014). For an earlier publication by this scholar of the eighteenth-century context see Gábor Vermes “A tradicionalizmus és a felvilágosodás keveredése a tizennyolcadik század második felében Magyarországon,” Sic Itur Ad Astra 17, no. 3–4 (2006): 87–112.

14 Although Latin was the official written language produced at the Hungarian diet until the late 1830s and the use of German was also accepted in the public sphere, knowledge of Hungarian is a standard requirement if one wishes to study Hungarian history in the eighteenth and nineteenth centuries.

15 See especially the writings of Ambrus Miskolczy and Zoltán Gábor Szűcs: Ambrus Mickolczy, “Egy történészvita anatómiája: 1790–1830/1848: Folytonosság vagy megszakítottság? (avagy mit üzent Kossuth Lajos?,” Aetas 20 (2005): 160–212; Idem, A felvilágosodás és a liberalizmus között: Folytonosság vagy megszakítottság? Egy magyar történészvita anatómiája (Budapest: Lucidus Kiadó, 2007); Zoltán Gábor Szűcs, “Magyar protokonzervatívok,” Kommentár 4, no. 4 (2009): 17–31; Zoltán Gábor Szűcs, “Burke és a magyar ‘protokonzervatívok’: Politikai diskurzustörténeti esettanulmány,” in Edmund Burke esztétikája és az európai felvilágosodás, ed. Ferenc Hörcher and Márton Szilágyi (Budapest: Ráció, 2011), 248–70. See also the last author’s work quoted above.

16 For a comparative view of the legal thought of different national Enlightenments, see Ferenc Hörcher, “Beccaria, Voltaire, and the Scots on Capital Punishment: A Comparative View of the Legal Enlightenment,” in Scotland and France in the Enlightenment, ed. Deidre Dawson and Pierre Morère (London: Associated University Presses, 2004), 305–30.

17 Mihály Horváth, Huszonöt év Magyarország történelméből 1823-tól 1848-ig, 2nd edition (Pest: Ráth, 1868), 1–3.

18 My interpretation of Széchenyi’s Hitel is summarized in Ferenc Hörcher, “Ahol a politikai és a gazdasági eszmetörténet metszi az irodalomtörténetet: A Hitel tudományközi kontextusai,” in Jólét és erény: Tanulmányok Széchenyi István Hitel című művéről, ed. Sándor Hites (Budapest: Reciti Kiadó, 2014), 9–27.

19 According to Horváth, Széchenyi was “the Moses of our new age.” Horváth, Huszonöt év, 44.

20 “[V]alamint 10, 12 évvel ezelőtt ezen rendnek mély álomkórsága a’ felébresztést, a’ felrázást tette legsürgetőbben szükségessé: úgy ma, midőn minden jelenség mutatkozik inkább mint az álomkórságé, ismét azon kell iparkodni mindenek felett, hogy a’ szenvedelmek csilapítassanak.” István Széchenyi, A Kelet népe, 2th edition (Pozsony: Wigand Károly Fridrik, 1841), 69. Accessed April 12, 2016, http://mek.niif.hu/05500/05533/05533.htm.

21 “Mennyit köszönhet hazám a tekintetes úrnak, én és minden igaz magyar mélyen érzi, mert alszik nagy erő minden nemzetben, de alszik, csak a míveltség ébreszti fel, hazámba Kazinczy úr tette míveltségünk temploma első kövét, melyből kilép majd a géniusz, ki most még szunnyadó nemzeti erőnket felébreszti, s csúf nyugalomból nemes életre ragadja.” Baron József Eötvös to Ferenc Kazinczy, December 30, 1830, in József Eötvös, Levelek, edited and the foreign language letters translated by Ambrus Oltványi (Budapest: Magyar Helikon, 1976), accessed April 12, 2016, http://mek.oszk.hu/05400/05480/05480.htm, letter 3.

22 Lajos Kossuth,“Felelet gróf Széchenyi Istvánnak,” in István Széchenyi, A Kelet népe, ed. Zoltán Ferenczi (Budapest: Magyar Történelmi Társulat, 1925), 419–20.

23 Zsigmond Kemény, “Széchenyi,” in idem, Tanulmányai I (Pest: n.p., 1870), 325–26, cited in Miskolczy, A felvilágosodás, 88.

24 István Kultsár (1760–1828) was a turn-of-the-century secondary school teacher, writer, journalist, publisher and theatre director. István Márton (1770–1831) was a pastor in the Calvinist church, theology and philosophy professor.

25 “[M]i, kik a legújabb ivadékhoz nem tartozunk, kik serdülő korunkban nem Kossuth lapjait olvastuk, hanem Kultsáréit vagy Mártonéit, bizony nem ezekből, hanem legalább részben – az 1790–92-diki pamfletirodalomból – merítgettük publicisztikai ismereteinket.” László Szalay, Publicisztikai dolgozatok II (Pest: n.p., 1847), 17.

26 “Századunk a XVIII. századnak gyermeke, s bár physiognómiája más, működésének alaptőkéje azon eszmekincs melyet előde szerzett, s melyet mi öntudatlanul fogyasztunk, mintha önmagunk gyűjtöttük volna.” Ágoston Trefort, “XVIII. század,” Pesti Hírlap, February 6, 1845, cited in Kecskeméti, Magyar, 10.

27 Miskolczy, A felvilágosodás, 59–66.

28 Ibid., 60.

29 Ibid., 61.

30 Károly Kecskeméti, Magyar liberalizmus, 1790–1848 (Budapest: Argumentum Kiadó, 2008).

31 Ibid., Magyar liberalizmus, 24.

32 Miskolczy, A felvilágosodás, 65.

33 Ibid.

34 See his monograph: István Fenyő, A centralisták: Egy liberális csoport a reformkori Magyarországon (Bu­dapest: Argumentum, 1997). The specific article about this topic is: “A centralisták hazai előzményei 1848 előtt,” Irodalomtörténeti Közlemények, 96, no. 3 (1992): 295–319, accessed April 30, 2016, http://epa.oszk.hu/00000/00001/00369/pdf/itk00001_1992_03_295-319.pdf.

35 For a reader on aristocratic and middle class family life from this period, see A művelt és udvarias ember: A társas viselkedés szabályai a magyar nyelvű életvezetési és illemtankönyvekben (1798–1935). Szöveggyűjtemény, ed. Anna Fábri (Budapest: Mágus Kiadó, 2001).

36 “Eltökélt szándékom szüleimnek, kik mindenki szeretetét kivívták, nyomdokaiba lépni.” István Széchenyi, June 5, 1809, cited in Vilmos Fraknói, Gróf Széchényi Ferencz, 1754–1820 (Budapest: A Magyar Történelmi Társulat Kiadása, 1902), 313.

37 Cited in ibid., 338.

38 Ibid., 340.

39 Ibid., 342.

40 Ibid.

41 István Széchenyi, Napló, ed. Ambrus Oltványi, 2nd edition (Budapest: Gondolat, 1982), 1514–15. This description follows István’s own description of his father, narrated from the viewpoint of the old Viczay: “My good old father was seen by the senior Viczay as atheist, as a patriot in flames, as an ardent royalist, as a bigot, and so on. That’s how the waves have carried him, how shall they carry me?” November 21, 1820, Napló, 180. See also the characterization given by Csorba: “limitless honoring of authority, inflexible loyalty to the court, and an intensive catholic commitment almost bordering on bigotry.” László Csorba, István Széchenyi (Budapest: M-Érték Kiadó, 1991, 2010), 17. Unless otherwise noted, all translations are mine.

42 Quoted by Fraknói, Gróf Széchényi, 343.

43 Ibid., 344.

44 Ferenc Széchenyi, “Pártatlan gondolatok az 1790-ben megtartandó országgyűlésről,” March 10, 1790, Vienna, excerpt in Magyarország története a 19. században: Szöveggyűjtemény, ed. Gábor Pajkossy (Budapest: Osiris, 2006), 34–38, 38.

45 Csorba, István Széchenyi, 153. Csorba argues that this reform plan might have had a direct influence on the son, when he wrote Stadium. Ibid., 152–54.

46 László Csorba is right to claim that “the turn separating the early and the late phase of his career is not yet fully disclosed.” Ibid., 13.

47 István wrote that his children were frightened that perhaps “his mind would be wholly muddled up, and the last period of his life, for all those who surrounded him with love and honor, will become embarrassing.” Cited in Fraknói, Gróf Széchényi, 348.

48 For a detailed account of this part of Ferenc Széchényi’s life, including an account of other members of this spiritual circle, see: Katalin Gillemot, Gróf Széchényi Ferenc és bécsi köre (Budapest: Türk-Nyomda, 1933).

49 “[M]ióta annyi polgári erényekkel fénylő atyám, mint «magyar» reménytelen szállott sirjába, azóta meg nem szünőleg hasonlitgatám más nemzetek’ életjeleit a’ magyarnak életfonalával össze; mikép kiismerném: van-e még feltámadása körűl remény vagy nincs-e többé. Életem’ legmélyebb feladása ez vala.” Széchenyi, A Kelet, second edition, 6.

50 Lajos Kossuth, “Felelet gróf Széchenyi Istvánnak Kossuth Lajostól,” in idem, A “Felelet” és más vitairatok Széchenyi István A’ Kelet népe című könyvére (Budapest: Közgazdasági és Jogi Könyvkiadó, 1986), 8–9.

51 For a similar project of a patron of arts, a contemporary, friend and relative of Széchenyi, see: György Kurucz, Keszthely grófja: Festetics György (Budapest: Corvina, 2013).

52 “Whatever collects the patriots, even if because of an insignificant cause, is useful and good, and its blessed consequences are numerous. From concentration—middling (középesülés)—comes—as we said—nationality, and from that national virtue.” (Minden, ami a hazafiakat nyilván gyűjti össze, még ha legcsekélyebb ok lenne is, hasznos és jó, s áldott következési számlálhatlanok. Koncentrációbúl – középesülésből – foly – mondottuk – nemzetiség s ebbűl nemzeti erény.) István Széchenyi, Hitel (Pest: Petrózai Trattner J. M.–Károlyi Ostván Könyvnyomtató Intézete, 1830), 176. Accessed April 12, 2016, https://ia800502.us.archive.org/25/items/hitelist00sz/hitelist00sz.pdf.

53 For an overall assessment of this paradigm see István Hont: “The Language of Sociability and Commerce,” in The Languages of Political Theory in Early Modern Europe, ed. Anthony Pagden (Cambridge: Cambridge University Press, 1987), 253–76. Ferenc and István both traveled in Britain. Ferenc met with Adam Smith, and István returned to Britain on a regular basis. His first trip to London in 1815 was a strange and reversed grand tour, in the course of which he was anxious to learn not only the language but also all the layers of British culture, including journals, novels, mechanical discoveries, theatre, and to visit “the temple of English poetry,” Shakespeare’s oeuvre. He planned to travel around Scotland, as his father had done, but he was also interested in Ireland. (See his letter written on 15. October, 1815, from London to his father, in Ezt köztünk! Isten áldja! Széchenyi István válogatott levelei, ed. and trans. Henriett Kovács et al. (Budapest: MTA Bölcsészettudományi Kutatóközpont, 2014), 35–37. At the end of this tour he famously declared, “There are only three things in England that in my opinion one has to learn, and all the others are nothing: the constitution, the machines, and horse breeding.” István Széchenyi, Napló, December 13, 1815, 63. For Anglomania as a historical phenomenon in general, see Ian Buruma, Anglomania: A European Love Affair (London: Weidenfeld and Nicolson, 1998).

54 See Ferenc Hörcher, “Sensus Communis in Gellert, Garve and Feder: An Anglo-Scottish element in German Popular Philosophy,” in idem, Prudentia Iuris: Towards a Pragmatic Theory of Natural Law (Budapest: Akadémiai Kiadó, 2000), 137–57.

Volume 5 Issue 1 CONTENTS

pdfVlasta Švoger

Political Rights and Freedoms in the Croatian National Revival and the Croatian Political Movement of 1848–1849

Reestablishing Continuity

 

Based on an analysis of chief programmatic texts from the period of the Croatian National Revival and the Croatian Political Movement of 1848–1849, as well as articles published in Zagreb liberal newspapers, this paper illustrates how the Croatian intellectual elite advocated political rights and freedoms in the first half of the nineteenth century. Following the tradition of the Enlightenment, the elite interpreted them as natural rights. While the focus in the first decades of the nineteenth century was on the idea of enlightening the people and the right of the people to nurture their native language, in the 1840s other rights were also included. In the revolutionary year of 1848, the formulation of political rights and freedoms was most complete.

Keywords: political and civil rights and freedoms, Croatia, first half of the nineteenth century, Croatian National Revival, Croatian Political Movement of 1848–1849, Zagreb liberal newspapers

 

Introduction

This paper presents the manner in which the idea of natural law was received and then gradually concretized through the advocacy of political and civil rights in Croatia in the first half of the nineteenth century. Leaning on the political ideas of the late Enlightenment and debates of Enlightenment philosophers and thinkers on the concept of natural law, the Croatian liberal intellectual elite introduced political and civil rights and freedoms as an important subject of political discourse in 1830s and 1840s, a period marked by the movement called the Croatian National Revival (in Croatian, Hrvatski narodni preporod) and the Croatian Political Movement (Hrvatski politički pokret) of the revolutionary years 1848–1849. Both movements thus reestablished the continuity of the discourse on social reforms in Croatia after several decades of quiescence.

The Croatian National Revival (also known as the Illyrian Movement) was a national, cultural and political movement in Croatia, the main stage of which was the period between the launching of the newspapers Novine horvatzke (Croatian Newspaper) and Danicza horvatzka, slavonzka y dalmatinzka (Croatian, Slavonian and Dalmatian Morning Star) in 1835 and the outbreak of the revolution in the Habsburg Monarchy in 1848. The movement emerged out of the political, social and economic development that had been underway in the Croatian lands since the late eighteenth century and was related to the nation-building processes in Europe, in particular the shaping of Slavic nations and the Hungarian nation. The initial stage of the Croatian National Revival can be associated with the political, social and cultural influence of Enlightened intellectuals in several Croatian lands around 1790, including Maksimilijan Vrhovac, Nikola Škrlec Lomnički, Ivan Lovrić, Josip Voltić, Tomo Bassegli (Baseljić) and Antun Mihanović. At the time, Croatian lands were politically divided between the Habsburg and Ottoman Empires, the Venetian Republic and the Republic of Ragusa. Although united by the beginning of the nineteenth century under Habsburg rule, Croatian lands remained subject to various jurisdictions in the Austrian (Dalmatia, Ragusa and Military Frontier) and Hungarian parts of the Monarchy (Croatia and Slavonia). Thus, in decades following 1790, the political and social discourse of the Croatian intelligentsia, especially in Croatia and Slavonia, which at the time was considered the main integrative factor, was imbued with the political disintegration of Croats living in the Monarchy. The specific political position of Civil Croatia within the Lands of the Hungarian Holy Crown was defined by the so-called municipal rights (iura municipalia). According to these rights, Croatia was entitled to a certain degree of autonomy, which included its own legislative and administrative bodies, i.e. the Croatian Diet, the Banus (governor), and the county administrations and courts. Since the Hungarian Diet of 1790, as a result of the experiences of absolutistic rule under Emperor Joseph II, Croatia became more dependent on the Hungarian public administration and tax system, which exerted a considerable influence on Croatian-Hungarian political relations in the first half of the nineteenth century. In that period, the Croatian nobility was faced with pressure exerted from two sides: centralistic and even absolutistic tendencies of the Court in Vienna on the one hand and the efforts of the Hungarian nobility to build a strong Hungarian national state within the Monarchy on the other. In this complicated situation, the Croatian nobility was not able to create and implement its own policy, and gradually it gave way to the Hungarian policy of social, political and cultural reforms, concerning in particular the introduction of the Hungarian language into civic life and educational institutions. In the 1830s, a generation of young Croatian intellectuals emerged, mostly of common origin, which started the movement that was originally oriented around various cultural issues as integrative factors of the Croatian nation (standardization of the Croatian language, newspapers on the Croatian language, cultural societies), but later grew into a comprehensive national and political movement. The Croatian language was initially intended to be standardized under the Illyrian name (hence the Illyrian movement). This name was chosen in an effort to overcome local particularisms and create literary unity among Croats, which at the time was undermined by the wide array of dialects, as well as the similar languages and similar dialects of other Southern Slavic peoples. The idea was formulated by Ljudevit Gaj in his book Kratka osnova horvatsko-slavenskoga pravopisanja (A short draft of Croatian-Slavic orthography, 1830). A group of young intellectuals gathered around Gaj, and with the support of Count Janko Drašković became a leading group in the Croatian National Revival.1

By the spring of 1848, the movement achieved its main goals: the integration of different social groups in the Croatian nation (although this process was not complete in all Croatian regions or among all social groups), the adoption of Croatian as the official language in Croatia, and the organization of various cultural, economic and political institutions regarded as necessary for the transformation of a feudal society and economy into a civil society and capitalist economy. In the revolutionary years of 1848 and 1849, most of the Croatian political elite—Banus and Banus’ Council (in Croatian Bansko vijeće), Croatian politicians, officials and intelligentsia gathered around liberally oriented Croatian newspapers, with the exclusion of so-called mađaroni or pro-Hungarians—supported the politics formulated in 1848 in the document Zahtijevanja naroda (People’s Demands) and consequently in the Croatian Diet. Its main goals were the territorial integrity of the Croatian lands, an independent Croatian government, wide autonomy within the Monarchy, transformation of the Croatian Diet into a modern parliament, and federalization of the Habsburg Monarchy with all nations enjoying equal political rights. Some members of the political elite, especially the intellectuals gathered around liberally oriented Croatian newspapers, requested the legislation of political and human rights. In Croatian historiography, this phenomenon is called the Croatian (Political) Movement of 1848–1849.2

The analysis of the discourse on political rights and freedoms in the Croatian National Revival and the Croatian Political Movement of 1848–1849 is based on the most influential programmatic writings of the period in question (the document Zahtijevanja naroda from 1848 being the most important one), as well as the articles published in the Zagreb liberal newspapers Novine dalmatinsko-hèrvatsko-slavonske (Dalmatian-Croatian-Slavonian Newspaper), Danica horvatska, slavonska i dalmatinska/Danica ilirska (Croatian, Slavonian and Dalmatian Morning Star/Illyrian Morning Star), Agramer Zeitung, Saborske novine (Parliament Gazette), Slavenski Jug (The Slavic South), Südslawische Zeitung and Jugoslavenske novine (The South-Slavic Newspaper) in the late 1840s and early 1850s. I have a few reasons for having chosen these newspapers as the focus of the analysis. Before 1848, the few journals that were published in Croatian lands were not politically colored and were allowed to publish only articles previously published in some of the censored newspapers of the Monarchy. In 1848, due to increased interest in political events, twelve new journals were published in Croatian, though they lasted only a few months. Most of them were locally-oriented and did not address the issues discussed in this paper. Some newspapers that had been published earlier (for example, Agramer Zeitung and Novine dalmatinsko-hèrvatsko-slavonske) began to write on political issues. Unlike other journals published in the late 1840s in Croatia, the newspapers on which I focus in this paper were political newspapers with a wide range of topics and were distributed all over Croatia. They advocated Croatia’s territorial integrity and broad autonomy, equal status of all nations in the transformed, federalist Habsburg Monarchy, and the implementation of moderate liberal ideas in Croatia. Editorial boards and contributing authors of these newspapers argued for the implementation of constitutionalism and parliamentarianism, as well as the affirmation and protection of political and civil rights.3 They exerted a relatively strong influence on the views of the politically involved public in the Croatian lands.4

The ideas of Enlightenment thinkers, and in particular the idea of natural law,5 the notion of the people as the source of power in a state, the right of the people to rebel against the authorities with whom they were discontent, and the principles of separation of power, constitutionality and parliamentarianism, were made concrete in the early liberalism of the first half of the nineteenth century, and had considerable impact on political thought in the countries of Western, Central, and South-Eastern Europe.6 Also important was the idea of universal prosperity and the conviction of (some) Enlightenment thinkers that all people are born equal; this idea, together with the idea of natural law, became the basis for an understanding of the natural rights of humankind: the right to life, liberty, property, and the pursuit of happiness. Natural rights are inalienable and universal, valid for all people, regardless of their race, gender, mother tongue, religious belonging, social background, or other differences.7 After World War II, the concept of human rights as a synonym for natural rights came into everyday usage. There is no universally accepted definition of human rights, but the most common is a division by French jurist Karel Vasak, who divided human rights into three generations. Each generation is related to one of the concepts deriving from the chief motto of the French Revolution. Of relevance to this article is the first generation of human rights, i.e. civil and political rights, which he links to the concept of liberté: the right to life, liberty, the security of the individual, freedom from gender, racial or other forms of discrimination, freedom from slavery or involuntary servitude, freedom from torture or inhuman and degrading punishment, freedom from arbitrary arrest and exile, the right to a fair and public trial, freedom from interference in privacy and correspondence, the right to resistance and asylum from persecution, freedom of thought, conscience and religion, freedom of opinion, the right to free assembly and association, and the right to participate in government, directly or through free elections. Linked to the concept of égalité are economic, social, and cultural rights, and in Vasak’s classification the term fraternité refers to various group or solidarity rights.8 The first American codifications of political and civil rights in the 1776 Declaration of Independence9 and declarations of rights (the 1776 Virginia Declaration of Rights and the 1791 Bill of Rights), which influenced the French Revolution, and the revolutionary codification of political and civil rights in the 1789 Declaration of the Rights of Man and of the Citizen, had a direct or indirect impact on all subsequent codifications of political and civil rights.10 However, negative aspects of the French Revolution (primarily related to various forms of violence) added negative connotations to the concepts of natural rights and brought about some form of regression. Accordingly, in the 1799 French Constitution, there was no explicit reference to natural rights or the rights of man. Similarly, there were no references to natural rights in the constitutions of German states drafted in the first decades of the nineteenth century. Instead, references were made to the rights of subjects, or rights of citizens.11 Revolutionary turmoil in the spring of 1848 marked a great comeback of civil and political rights on the political scene.

Enlightenment Ideas in Croatia at the End of the Eighteenth Century and the Beginning of the Nineteenth

Concepts developed by thinkers of the Age of Reason questioning the existing social order and proceeding from the ideas of liberty, reason, a return to nature, the enlightenment of people, universal prosperity, the concept of natural law and the principal ideas of the French Revolution also had a significant influence in Croatia. Based on (not very extensive) research conducted thus far, it can be stated that the ideas of thinkers of the Enlightenment and French revolutionaries were, in Croatian lands, known to a relatively small circle of intelligentsia from within the ranks of the nobility and the wealthy citizenry, in spite of tightened censorship and a ban on distribution of texts promoting revolutionary ideas. These ideas were disseminated by individuals who were either studying abroad or for some other reason spent time beyond the borders of the Habsburg Monarchy for longer periods, those who secretly read prohibited and smuggled papers and newspapers, and in coastal areas sailors who heard of them during their voyages. The breakthrough of revolutionary ideas in the Habsburg Monarchy coincided with a U-turn in the conservative trend of the home policy following Emperor Joseph II’s death (1790), who, under very complex political, diplomatic, and military circumstances and pressured by the nobility, had had to withdraw practically all of his reforms. The strengthening of reactionary forces in ruling circles, and the Monarchy siding in the war against revolutionary France provoked on the one hand stricter censorship with respect to manuscripts intended for publication, while on the other it encouraged the activities of secret societies, mainly Freemasons (which had previously existed in Croatia), striving to pave the way for progressive ideas in the Hungarian and Croatian societies. Former Franciscan friar Ignác Martinovics founded two secret societies in Hungary. Among their members were individuals from Croatia (Chamber auditor Josip Kralj, officer in the Military Frontier Baron Siegfried-Heribert Taufferer and others; even the Bishop of Zagreb Maksimilijan Vrhovac was mentioned as a member). Two songs appearing in Zagreb in 1794 and 1796 called for equality among people in the common fight with the French in spreading revolutionary ideas. In Dalmatian towns, resistance was growing among individuals against the monopoly of the nobility to govern the Dalmatian communes. It is in this context that one should interpret three satires appearing in Split public places in 1792, which, following the French model, invited common people to join an armed struggle against the nobility and the clergy.12 In Croatia, the ideas of the Enlightenment were propagated by learned individuals who promoted them in their works; for example Nikola Škrlec Lomnički, Ivan Lovrić, Josip Voltić, Tomo Bassegli (Baseljić), and they can, in this regard, be considered precursors of the Croatian National Revival. Škrlec, the spiritus movens of Croatian politics in the last decades of the eighteenth century, contributed to laying the foundation for the subsequent, more concrete advocacy of political and civil rights in Croatia through his theoretical and practical work. His contribution in particular referred to advocating the principle of natural law and ideas of the Enlightenment in public welfare. He proposed a gradual reform of the feudal system based on the marginalization of all particular interests and the introduction of universal rights including the protection of state institutions, education, public health services or fair trial.13

In the last decades of the eighteenth century, Ivan Drašković VIII, founder of the Freemasonry in Croatia, promoted the idea that all people are by nature equal, regardless of social status and origin (but not before the law, and for this reason, members of the fraternity were encouraged to do humanitarian work). In Masonic lodges he founded principles of social equality, and national/ethnic and religious equality were implemented because their members belonged to different social groups (peers, military officers, Catholic and Orthodox priests, as well as Jews and common people), such as servants of peers who were members of the fraternity. Following the disclosure of Martinovics’s conspiracy and the arrest of its leaders, the ruler put a ban on all secret societies in 1795, thus terminating the work of Masonic lodges in Croatia.14

The reforms of Enlightened absolutism paved the way for the rise of the middle social groups (citizens), in particular on the basis of education, placing the educational system under state jurisdiction. In Croatian Lands, they took advantage of new opportunities for education and the king’s bursaries, and the late eighteenth century saw the emergence of educated citizens. They could take part in the political life of the towns in which they lived, and the educated and well-off individuals from among them, the so-called “honorati” (from the German Honoratioren), were able to participate in politics informally through their professional advice and other, similar means.15 It was at this time that the citizens demanded that their representatives take part in the work of the Croatian Diet. In 1790, the citizens of Zagreb claimed this right from Emperor Leopold II.16 However, after Emperor Joseph II, under coercion, withdrew his reforms, political life in the Habsburg Monarchy in the following decades was characterized by conflicts between the monarch’s Absolutist government practices and the nobility’s endeavors to preserve not only its privileges, but also a special political status. Consequently, in 1791, the Lands of the Hungarian crown were defined by the Estates as a free and independent kingdom within the Monarchy, enjoying its own laws and customs. In such a political atmosphere, a positive climate for implementing the idea of political participation of commoners could not emerge until the 1840s, even among the (few) liberally oriented peers in Croatia, and even distinguished representatives of the intelligentsia did not advocate it. It was only in 1844 that commoners were given the right to be employed by public bodies by resolution of the Hungarian Diet (1843/44:5). An 1845 debate in the Croatian Diet on the criteria for selecting deputies for the Croatian Diet from the Royal Academy of Science in Zagreb testifies to the fact that the implementation of this decision did not go smoothly.17

Political and Civil Rights and Freedoms in Croatia in the First Half of the Nineteenth Century

In the first decades of the nineteenth century, the political and social climate in Croatia was strongly marked by the resistance of the Croatian aristocratic elite (together with the Hungarian nobility) to conservative politics of the Court of Vienna on the one side and Hungarian endeavors to spread the use of the Hungarian language to Croatia and Slavonia on the other. Under such circumstances, the Croatian nobility acted defensively, and their political work was oriented mostly towards the protection of their own privileges. This situation was reflected in the major programmatic texts of the Croatian National Revival in the 1830s and 1840s, written mostly by young educated men of common origin. For this reason, most political texts by Croatian authors appearing in the periods mentioned contained only slight indications of Enlightenment ideas, primarily the awareness of the need to enlighten broad social groups and reason as the chief method with which to evaluate human progress and achievements. The idea of the need to enlighten the population and nurture the native language as a reflection of the nation’s spirit in accordance with Herder’s ideas,18 as a natural right of the people and, at the same time, a prerequisite for progress and development in the political, economic, social, and cultural sphere was a Leitmotif of all of the texts under discussion here from the period of the Croatian National Revival written in Croatian,19 with the exception of the brochure De municipalibus iuribus et statutis,20 which enumerates Croatian municipal rights in detail. All these writings came into being primarily as a response to contemporary political controversies on the Croatian political scene, which largely determined the conflict between Illyrians—members of the Croatian Revival Movement (the Illyrian Movement)—and mađaroni (pro-Hungarians)—members and supporters of the Croatian-Hungarian Party,21 which closely collaborated with the Hungarian liberal opposition during the reformist period22—and the conflicts on the Hungarian political scene and in the Hungarian Diet. Their authors primarily responded to current political disputes and did not present a comprehensive view on important political and social issues. An exception in this regard was Disertacija (Dissertation) by Janko Drašković from 1832, the first political paper written in the Croatian Štokavian dialect and the single programmatic text of the Croatian National Revival containing a comprehensive program of development of the Croatian society in the political, economic, cultural, and social spheres, frequently following reform models implemented in Hungary at the time.

Like other members of the Croatian National Revival and their precursors in the late eighteenth century, Count Janko Drašković in his Dissertation advocated enlightenment of the people, and the right of the people to nurture their mother tongue and literature in that tongue,23 claiming explicitly that no nation is entitled to impose its language on another nation; he proposed that the right to work for public institutions be based on education and intellectual capacity, regardless of origin or social affiliation, and believed that raising the quality of public education was a prerequisite; he advocated improvements to the material and political position of Orthodox priests, but this was not actually a step towards the introduction of religious equality, since he supported the ban on Protestant settlement in Croatia.24 He advocated that the noblemen treat serfs more humanely (as Škrlec had done in the eighteenth century) and proposed reforms to the feudal social system whereby the ruler would raise educated and honorable commoners to the rank of nobility at the proposal of peers (something similar was proposed by Tomo Bassegli in the late eighteenth century in Dubrovnik),25 whereas peers convicted of crimes would lose their status and privileges.26 In his view, this was the way to preserve the feudal system while introducing some elements of civil society. This was a program for the “conservative modernization” of the Croatian society,27 which was at first only partially accepted by the Croatian nobility, but was accepted by younger intelligentsia, which turned it into a program of the Croatian National Revival Movement.

Some ideas of Drašković were more precisely formulated in the National Party’s Draft Manifesto written by Ljudevit Vukotinović in late 1846, which was not officially accepted for reasons that have yet to be fully researched.28 In this document emphasis was placed on defining the state, legal, and political position of the Triune Kingdom of Croatia, Slavonia, and Dalmatia within Hungary. Invoking constitutional freedom, the Manifesto called for the equality of Croatia and Hungary and for the achievement of Croatia’s territorial integrity; it announced the introduction of Croatian as the official language, and demanded reciprocity in accepting official documents written in Hungarian and Croatian, as well as the implementation of political and social reforms “in a peaceful and legal way,” in particular the introduction of parliamentarianism, and the separation of the administration from the judiciary. The Party objective was the achievement of “overall national prosperity,” expansion of constitutional freedoms to all members of the nation, universal taxation, the adoption of laws on education of the people, abolition of the corvée upon redemption, and adoption of better laws on universal civil rights.29

The spread of the revolutionary wave in the spring of 1848 and a revival of the French revolutionary motto “Liberté, Egalité, Fraternité” encouraged the emergence of more concrete demands for the introduction of civil and political rights in Croatia. Demands for civil and political rights and freedoms culminated in Croatia in 1848 as well. This was evident in the Želje naroda (The People’s Wishes), which was adopted by the Great Assembly of the City of Zagreb on 22 March 1848. In addition to state and legal requirements, it also contained the following political rights: freedom of the press, the right to political participation for all social groups, equality before the courts, introduction of public, oral and jury trials, universal taxation, and repurchase of serfs’ levies by the state.30 In the most notable programmatic text of the Croatian Political Movement of 1848–1849—Zahtijevanja naroda (The People’s Demands), which was adopted by the National Assembly on 25 March 1848 in Zagreb—the list of civil and political rights was much broader. In addition to various state and legal, political, cultural, and economic demands, there were also demands for freedom of the press, religion, instruction and speech, the right of political participation based on equality without social distinction, introduction of universal taxation, equality before the courts, public and oral court proceedings, jury and accountability of judges, abolition of corvée and servitude, introduction of the right of assembly, association, and submission of petitions, introduction of equal rights and freedoms for the (male) population in the Military Border as enjoyed by the residents in Civil Croatia, and the introduction of the native language in church affairs. (In October 1847, the Croatian Diet issued a resolution on the introduction of the Croatian language, the “native language,” as the official language in schools, administration, and the judiciary.)31 The People’s Wishes and the People’s Demands were formulated under the influence of the People’s Wishes from Pest, however, adjusted to Croatian political, social, and economic circumstances.32

“Liberté, Egalité, Fraternité” was the chief motto and starting point in debates on contemporary political and social affairs in Croatia during the revolutionary years of 1848–1849. In his brochure Hèrvati Madjarom (Croats to Hungarians), Ivan Mažuranić demanded equality of all nations, states, languages, and religions recognized by law under the Hungarian Crown, using as a starting point the concept of natural rights and the aforementioned motto. He drew a link between personal and collective/national freedom, considering that one is not complete without the other.33

Acting in a similar fashion, the Croatian political elite, assembled around liberally oriented Zagreb newspapers, linked the idea of liberty from the French Revolution to the ideas of the Enlightenment and made them the basic starting point in their campaign for the introduction of civil and political rights and freedoms. The starting premise was that the natural rights of man are inalienable, moral, and above the law. They are rights, rather than an act of the ruler’s grace. They were most frequently referred to as “fundamental rights” (Grundrechte) or freedom-loving institutions of the West, and very rarely as civil and political rights.

The concept of “fundamental rights” was used for the first time in German speaking countries in 1848, and from there came into use in Croatian political culture. In German lands, fundamental political and civil rights and freedoms were first codified in 1848. The Constitution of the German Confederation, adopted on 20 December 1848 in Frankfurt am Main, made a reference to “the fundamental rights of the German nation” (die Grundrechte des deutschen Volkes), which were elaborated in detail and were supposed to serve as a standard when the individual German lands adopted constitutions.34 The Constitution of the Austrian Empire of the same year, the so-called Pillersdorf Constitution of 25 April 1848, provides for “civic and political rights of countrymen” (staatsbürgerliche und politische Rechte der Staatseinwohner).35 The draft of the Austrian Constitution made by the Constituent Assembly in Kroměříž (in German Kremsier, today in the Czech Republic) in late December 1848 and early January 1849 defined “the fundamental rights of the Austrian People” (Grundrechte des Österreichischen Volkes).36 This Draft Constitution differs from the other aforementioned codifications of civil and political rights in that it explicitly introduced the principle of the sovereignty of the people and the principle that all people have equal, inborn, and inalienable rights, and these rights are the right to self-preservation, personal freedom, honesty, and advancement of one’s own spiritual and material welfare. This Draft Constitution was never adopted because the Constituent Assembly was dispersed by military force and the Emperor issued the Constitution by decree on March 4, 1849. The Austrian March Constitution Issued by Decree did not make any reference to fundamental civil rights and freedoms. In paragraph 5 a reference was made only to the fundamental right of nationalities (das Nationalitätengrundrecht), free movement of persons (das Recht auf Freizügigkeit), equal access to public services (gleiche Ämterzugänglichkeit), and the abolition of servitude (Aufhebung des Untertänigkeitsverbandes). The catalogue of “political rights”—narrowed down in comparison with the political rights provided for in the 1848 Constitution and the Kremsier Draft Constitution—was promulgated in the form of a special patent37 applicable to the lands represented in the Austrian Parliament. “Fundamental rights” were mentioned only two years later in the New Year’s Eve Patent (Silvesterpatent), when they were abolished.38

In the late 1840s and early 1850s, the Zagreb press referred to civil and political rights and freedoms as “civil, public, and people’s rights” (Novine dalmatinsko-hèrvatsko-slavonske);39 “free institutions, which other free nations considered life-saving” (Saborske novine);40 “human and civil rights” (Slavenski Jug);41 “Western political ideas” (Slavenski Jug);42 “freedoms and political rights” (Slavenski Jug);43 “March achievements” or “fundamental rights” (Südslawische Zeitung)44 and freedom-loving institutions of the West.45 In the newspaper Jugoslavenske novine civil rights were discussed as belonging to one of four categories: human rights, rights of a man as a member of a municipality, as a member of the state and as a member of a nation.46

In the Zagreb newspapers Novine dalmatinsko-hèrvatsko-slavonske, Danica ilirska/Danica horvatska, slavonska i dalmatinska, Agramer Zeitung, Saborske novine, Slavenski Jug, Südslawische Zeitung and Jugoslavenske novine, one could not find a precise definition of what was understood under fundamental rights, or civil rights and freedoms. The rights and freedoms most frequently referred to as such were personal freedom and freedom of property, freedom of opinion and expression of thoughts in oral or written form, freedom of the press, freedom of research and teaching, freedom of assembly and association, equality before the law, religious and national equality, the right to nurture one’s mother tongue and nationality, and development and preservation of one’s identity, personal security and security of property, as well as self-government of municipalities.47 These rights and freedoms were not systematically enumerated within the same article, rather individual rights were mentioned in different articles, or were generally referred to as the “March achievements” or “freedom-loving institutions,” which turned out to be the basis of a free state in the West. When the March Constitution Issued by Decree was promulgated, an anonymous author in the Südslawische Zeitung wrote that stable political institutions could not exist if civil rights and freedoms were not guaranteed; he proposed that Croats should demand that the so-called Grundrechte, i.e. a catalogue of political rights promulgated by means of a special patent on March 7, 1849, be promulgated in Croatia as well.48 Editorial boards of the Zagreb liberal newspapers considered that civil rights and freedom played an important role in the development of political culture and civil society. This is indirectly witnessed by the fact that in late 1848 some of the aforementioned newspapers published a list of civil rights and freedoms from the Austrian Draft Constitution, the Patent on Political Rights of Austrian Citizens promulgated on 7 March 1849, and a speech of the Czech deputy in the Austrian Parliament named Ladislav Rieger on the debate on fundamental rights, who emphasized the sovereignty of peoples.49 While presenting the program of the newly established newspaper Saborske novine in its first editorial, its editors Eduard (Slavoljub) Vrbančić and Nikola Krestić emphasized activities on the introduction of civil and political rights and freedoms as its constituent part:

 

We believe in the almighty spirit of our age, and therefore we shall struggle for all those opinions, which will direct it so that social and political relations in our Homeland be established on the basis of equality, liberty, and fraternity. We declare that the state organism of our lands is rotten and decayed and requires a life force to refresh it and strengthen it. Therefore, we shall fight for the free institutions which other free nations have considered life-saving. We believe in the unlimited freedom of the press, the right to assembly, and the right to self-government as the sole foundations of the freedom of the state. We declare that we shall struggle for these abovementioned principles and do everything possible to ensure that these principles be preserved until the end of time.50

Although civil and political rights and freedoms were not presented in their entirety in any of the newspapers under discussion in a single article, it is beyond dispute that part of the Croatian public assembled around these newspapers considered civil freedoms and rights the basis for progress in all fields of life. The public saw an inseparable link between the freedom of the individual and the freedom of the nation, in other words between individual and collective rights and freedoms, and considered them to be complete only if guaranteed by law. The concept of a free individual as the basis of society was transferred to nations and, in doing so, emphasis was placed on the protection of rights and freedoms of nations as collective bodies made up of free and legally equal individuals.51 Croatian liberals resolved the dilemma as to whether individual or collective rights and freedoms should have priority on the basis of the German model—the idea of a state based on the rule of law. According to this concept, the basic interest of the state is to protect and develop a community, rather than individuals. The state is only relatively restricted by the subjective public rights of its citizens, which are aimed at satisfying the individual interests of citizens, and the basic interest of the state is to protect and develop a community, not individuals. Rights of citizens are not put before the state, but rather derive from it, and therefore one of the most important functions of the state is the legal and actual protection of the civil and political rights of individuals.52 Members of the National Party accepted the idea of the state based on the rule of law as a basis for the legal regulation of rights and freedoms of citizens, and other modern constitutional and legal institutions in Croatia, which were (partially) accomplished in the second half of the nineteenth century.

The Croatian liberal elite advocated the introduction of religious freedoms and implementation of religious equality,53 as well as freedom of private and public practice of faith for members of all religious communities in the Monarchy, including Protestants, although they were not strictly mentioned. At that time there was no unique attitude among the politically involved Croatian public or members of political life toward some religious communities. As already mentioned, in March 1848 the document Zahtijevanja naroda codified the demand for the freedom of faith and equality before the law, regardless of religion. But only two months later, the electoral law for the Croatian Diet granted passive suffrage only to members of legally recognized religious communities (the Catholic and the Orthodox Church). That meant that the members of all others religious communities, including Protestants and Jews, were denied the right to vote. The legal position of some religious communities improved after 1849, especially after the promulgation of the Octroyed Constitution and the introduction of the respective Austrian legislative regulations. The imperial edict issued on 1 September 1859 defined Protestants as a legal religious community with autonomy in religious and educational affairs and it strictly abolished Article 26 of the Croatian Diet of 1791, which limited the rights of the Protestants in Croatia and Slavonia. Legislative regulations considering civil and religious rights of the Protestants in Hungary were introduced in Croatia, Slavonia and the Military Border by the same edict.54 The social and political discrimination of the Protestants in Croatia was then abolished for the first time. In the context of advocating of religious equality, one needs to underline efforts for granting civil and political rights to Jews, including the right to the free practice of their faith.55 It should be mentioned here that, at least until the second half of the nineteenth century, the discrimination endured by the Protestants in Croatia had more to do with their political orientation or/and nationality than with their religious beliefs and could be regarded as a more or less direct consequence of the complex and dynamic Croatian-Hungarian political relationships. Slovak Protestant Bogoslav Šulek could be mentioned here as an example. Šulek came to Croatia in early 1840s and became one of the prominent publicists of the Illyrian Movement. He then became a political writer and the most distinguished lexicographer in nineteenth-century Croatia. Because of his political orientation, his religious beliefs did not obstruct his professional success or public acceptance. Even more, in February 1850 he was proclaimed the honorable citizen of Zagreb.56 The situation with Jews was similar, and their social position was strongly influenced by their political views. Some of the Croatian Jews became distinguished members of Croatian society in the first half of the nineteenth century. One of them was Moritz (Mavro) Sachs, the first Croatian Jew to graduate in medicine at the University of Vienna. He became a city physician in Zagreb, military doctor of the Banus Josip Jelačić’s army 1848/49, and then professor of forensic medicine at the University of Zagreb. He was the first Jew to become a citizen of Zagreb (in March 1850).57

The Croatian liberal elite advocated the implementation of reforms within the Catholic Church in the spirit of liberal Catholicism58 and vehemently opposed the privileged position of the Catholic Church in the Habsburg Monarchy, the absolute power of hierarchy over lower clergy, and the strengthening of its influence on the school system.59 Some of the Croatian liberals advocated similar liberally orientated reforms within the Orthodox Church.60 Other religious communities were not discussed among the politically involved or interested Croatian public.

Of all the political rights and freedoms analyzed in Croatian liberal newspapers in the mid-nineteenth century, freedom of the press was the one that was given the most scrutiny. This is understandable because following the abolition of (preventive) censorship in March of 1848, it was necessary to regulate the new situation by law. The majority of Croatian liberal journalists in Zagreb newspapers advocated freedom of the press and its legal regulation as a prerequisite for the effective functioning of institutions of civil society—civil and political rights and freedoms, constitutionality, and parliamentarianism. Freedom of the press was, as a rule, associated with freedom of thought, speech, and expression of thoughts in writing, and these freedoms quickly merged into the concept of freedom of the press and were only rarely referred to separately. The freedom of the press was associated with the principle of publicity and interpreted as protector of liberal constitutional institutions and guarantor against abuse and violation of civil and political rights of individuals and nations.61

Freedom of the press and the phenomenon of publicity related to it were treated most comprehensively in a series of articles published in Danica horvatska, slavonska i dalmatinska. In two articles published in several successive issues of the paper, an anonymous author analyzed—in a systematic and well-argued way—the function of the general public and of public opinion in political and social life, and freedom of the press, with all its positive and negative aspects. He corroborated his views by invoking, inter alia, relevant French and German authors. His starting premise was that freedom of the press was closely associated with freedom of thought and expression of thought, and that these freedoms were elements of non-transferrable and inalienable natural rights of man as an individual and community member. In his text, he analyzed the pros and cons of freedom of the press and determined that the benefits of freedom of the press were incomparably greater than the potential risks of abuse of the press. He concluded that freedom of the press was one of the cornerstones of constitutional states, an important tool in enlightening the people and also in the fight against mediocre laws and abuse by civil servants, and the indicator of the people’s mood. Therefore, the author advocated complete freedom of the press and opposed its restriction by means of special laws on the press or censorship. He clearly opted for the regulation of press offences in civil and penal laws with public and oral trials and juries.62

Most authors writing about freedom of the press in the Croatian newspapers under discussion felt that an individual has a natural and inalienable right to express his opinion freely orally, in writing, or in the newspapers, and advocated unrestricted freedom of the press. However, there were other views as well. Dragutin Kušlan, editor of Slavenski Jug, in his commentary on Ferdinand Žerjavić’s article in issue no. 63 expressed the view that there can be no unrestricted freedom of the press in civil society, just as there is no unrestricted freedom of the individual, because such freedom is restricted by the freedoms of others. In an article written just before the promulgation of the Provisional Press Law (enacted by Banus Josip Jelačić in early May 1849), Kušlan reiterated this view, but opposed the adoption of a special law on the press because he believed that freedom of the press had been regulated by civil and penal laws. In his view, special laws on the press in fact restricted freedom of the press and reintroduced censorship under a new name. An anonymous author of the article entitled Političke iskrice (Political Sparkles) also advocated regulation of freedom of the press through civil and penal laws, like Bogoslav Šulek, editor of Novine dalmatinsko-hèrvatsko-slavonske. The only Zagreb newspaper in favor of adopting a special law on the press in the spring of 1849 was Agramer Zeitung. In the course of 1850, the editorial boards of Südslawische Zeitung and Jugoslavenske novine championed the adoption of a quality law on the press, which would have put an end to arbitrary acts of official authorities towards the press. This view was a consequence of deteriorating political circumstances and conditions under which the press operated in the Habsburg Monarchy and Croatia, as well as the failure to implement Jelačić’s Press Law (except its provisions about bail).63

Although Croatian journalists in the mid-nineteenth century were aware that freedom of the press could be abused, according to prevailing opinion its positive aspects were more important: it played an important role in enlightening the people, in furthering acceptance of democratic models of conduct and modern institutions, as a tool in the defense against poor quality legislation and cases of abuse in the public service, and as a tool with which to establish trust between the government and the people.64

The following quotation by Dragutin (Dragojlo) Kušlan, editor of Slavenski Jug, illustrates how in the mid-nineteenth century the Croatian liberal press understood the role of civil rights and freedoms:

 

As nations gradually began to develop their conscience and remove the fetters which had been put on them by some individuals and a crowd of their courtiers solely for their own personal benefit, human and civil rights were gradually being introduced. They belong to man by nature, and they are for example: freedom of thought and religion, freedom of speech, of the press, of trade, crafts and teaching, personal freedom, and freedom of property etc. Yet, rulers, still holding some power in their hands, supported either by the aristocracy or by military force, struggled for power, and whatever freedom they gave to the people was granted bit by bit, and much more out of necessity than of their own good will. Therefore, they first granted the people only those freedoms, which somehow ensured personal freedom and freedom of property.65

Conclusion

Following the ideas of the Enlightenment propagated by Croatian thinkers of the late eighteenth century and the positive reception of the ideas of moderate liberalism in Croatia, the concept of civil and political rights of individuals gradually spread among educated people in the first half of the nineteenth century and reached its culmination in 1848. During the first three decades of the nineteenth century, the Croatian nobility (as the only representative of official Croatian politics) was faced with the strengthening conservative politics of the Court of Vienna on the one side and the pressures of Hungarian politics on the other. Under these circumstances, the nobility acted defensively, and their political work was oriented mostly towards the protection of their own privileges. The social changes were not in the focus of political discourse at the time. The situation, however, changed in 1830s with the emergence of a young generation of educated intellectuals, mostly of common origin, who introduced various topics of social and cultural reforms into the political discourse. Within the framework of the Croatian Revival Movement and the Croatian Political Movement of 1848–1849, the Croatian liberal intelligentsia considered civil and political freedoms and rights—freedom of the press, of opinion and speech, the right to assembly and association, the right to petition, personal safety and security of property, freedom of learning, and equality of religions, nations, and languages, equality before the law, oral and public court proceedings and jury—prerequisites for the creation of a constitutional monarchy and the foundations of civil society.66 The intelligentsia demanded political and civil rights which were somewhat less ambitious in scope than the “fundamental rights” formulated in the German and Austrian Constitutions of 1848 and in the Kremsier Draft Constitution. They advocated the concept of a state based on the rule of law and believed that the role of the state was to ensure the rights and freedoms referred to, but also to control the exercise of these rights and freedoms under the law and in line with the freedoms and rights of others, placing emphasis on collective rights and freedoms.67 In practice, however, the same political elite did not respect the personal rights and freedoms of those who did not share their political views. This became most evident in their relationship towards pro-Hungarians (mađaroni) during the revolutionary years of 1848/49 and the propaganda war waged then.68 Advocating the idea of natural rights, civil and political freedoms, other liberal ideas, and ideas of the Enlightenment, the Croatian liberal political elite, acting as a part of the European liberal movement, reestablished the temporarily lost continuity in the spiritual heritage of the Enlightenment and laid the groundwork for the development of civil society in Croatia. In spite of the fact that many of those advocating the introduction of civil and political rights participated in the work of the Croatian Parliament of 1848 (and in later Parliaments) and that the Parliament’s work was based on the People’s Demands, the emphasis of the Parliament’s work was on the creation of a state and legal framework for the modern autonomy of Croatia within the Habsburg Monarchy. Due to this and an early cessation of the Parliament’s session in July of 1848, these ideas—except for the abolition of serfdom and introduction of equal taxation69—were implemented in legislation only at the time of far-reaching legislative activities on modernization during the rule of Banus Ivan Mažuranić (1873–1880).70

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1 For more on the Croatian National Revival cf. Nikša Stančić, ed., Hrvatski narodni preporod 1790–1848: Hrvatska u vrijeme Ilirskog pokreta (Zagreb: Muzej za umjetnost i obrt, 1985) and Jaroslav Šidak, Vinko Foretić, Julije Grabovac, Igor Karaman, Petar Strčić, and Mirko Valentić, Hrvatski narodni preporod – ilirski pokret (Zagreb: Školska knjiga–Stvarnost, 1990).

2 For more on this political phenomenon cf. Nikša Stančić, “Das Jahr 1848 in Kroatien: Unvollendete Revolution und nationale Integration,” Südost-Forschungen 57 (1998): 103–28; Tomislav Markus, Hrvatski politički pokret 1848–1849: Ustanove, ideje, ciljevi, politička kultura (Zagreb: Dom i svijet, 2000); Tomislav Markus, Hrvatski politički pokret 1848–1849. godine: Izabrani dokumenti na njemačkom (Zagreb: Hrvatski institut za povijest, 2009).

3 On the newspapers under discussion cf. Josip Horvat, Povijest novinstva Hrvatske 1771–1939, ed. Mirko Juraj Mataušić (Zagreb: Golden marketing–Tehnička knjiga, 2003), 58–156, and Vlasta Švoger, Zagrebačko liberalno novinstvo 1848–1852. i stvaranje moderne Hrvatske (Zagreb: Hrvatski institut za povijest, 2007).

4 The politically involved public in Croatia (including politicians, officials, members of the intelligentsia, officers and clergy) mostly came from urban areas. It is, however, worth mentioning that many teachers and priests acted as promotors of (political) ideas among their illiterate countrymen in rural areas (inter alia, by reading them newspapers), and that one copy of the newspaper was read by not only by the owner, but by at least a few other people. On the influence of the liberal newspapers in the Croatian public cf. Švoger, Zagrebačko liberalno novinstvo, 151–5, 167–75. In the eighteenth century the term “public opinion” meant the opinion shared by many people. However, in the Vormärz period, this term was ideologized by the liberal bourgeoisie and interpreted as the oppositional voice of educated citizens of common origin demanding to be represented in the parliament. They identified their own interests with the public interest in a constitutional monarchy and demanded freedom of the press. During the revolution 1848–1849, they legitimized their political demands by relating to public opinion. Lucian Hölscher, “Öffentlichkeit,” in Geschichtliche Grundbegriffe: Historisches Lexikon zur politisch-sozialen Sprache in Deutschland, ed. Otto Brunner et al. (Stuttgart: Klett-Cotta, 1978), 4:413–67. Andreas Schulz defined the public at the middle of the nineteenth century as the educated, politicized and elitist public, who, with the help of education, intend to become a general civil public. Andreas Schulz, “Der Aufstieg der ‘vierten Gewalt’: Medien, Politik und Öffentlichkeit im Zeitalter der Massenkommunikation,” Historische Zeitschrift, no. 270 (2000): 65–97.

5 Karl-Heinz Ilting, “Naturrecht,” in Geschichtliche Grundbegriffe, 4:245–313.

6 On the influence of the Enlightenment in Central and South-Eastern Europe cf. László Kontler, “The Enlightenment in Central Europe?,” in Discourses of Collective Identity in Central and Southeast Europe (1770–1945): Texts and Commentaries, vol. 1, Late Enlightenment. Emergence of the Modern ‘National Idea’, ed. Balázs Trencsényi and Michal Kopeček (Budapest–New York: Central European University Press, 2006), 33–44; Paschalis M. Kitromilides, “The Enlightenment in Southeast Europe: Introductory Considerations,” in ibid., 45–53.

7 Micheline Ishay, The History of Human Rights: From Ancient Times to the Globalization Era (Berkeley–Los Angeles–London: University of California Press, 2004) 3.

8 Encyclopaedia Britannica, accessed December 5, 2014, http://www.britannica.com/EBchecked/topic/275840/human-rights.

9 Only life, liberty and the pursuit of happiness were mentioned in the 1776 American Declaration of Independence as the inalienable rights of human beings.

10 Gerd Kleinheyer, “Grundrechte: Menschen- und Bürgerrechte, Volksrechte,” in Geschichtliche Grundbegriffe (Stuttgart: Klett-Cotta, 1975), 2:1061–82; Dalibor Čepulo, “Francuska revolucija i Deklaracija o pravima čovjeka i građanina 1789. godine: problemi političke demokracije,” Časopis za suvremenu povijest 21, no. 1–3 (1989): 161–78.

11 Kleinheyer, “Grundrechte,” 1070–75.

12 Cf. Vaso Bogdanov, Jakobinska zavjera Ignjata Martinovića (Zagreb: Novinarsko izdavačko poduzeće, 1960); Olga Šojat, “O dvjema revolucionarnim kajkavskim pjesmama s kraja osamnaestog stoljeća,” in Croatica 1, no. 1 (Zagreb, 1970): 211–36; Šidak et al., Hrvatski narodni preporod, 7–57; Jaroslav Šidak, “Hrvatske zemlje u Vrhovčevo doba 1790.-1827,” in Maksimilijan Vrhovac, Dnevnik, ed. Dragutin Pavličević (Zagreb: n.p., 1987), 1:9–51; Dragutin Pavličević, “Maksimilijan Vrhovac: Život i djelo,” in Maksimilijan Vrhovac, Dnevnik, 1:52–79; Josipa Dragičević, “Maksimilijan Vrhovac i slobodno zidarstvo u 18. stoljeću,” Croatica Christiana periodica 66 (2010): 49–60. On the Enlightenment in Croatian Lands cf. Teodora Shek Brnardić, “Intelektualni razvoj,” in U potrazi za mirom i blagostanjem: Hrvatske zemlje u 18. stoljeću, ed. Lovorka Čoralić (Zagreb: Matica hrvatska, 2013), 195–218; Ivan Golub, ed., Barok i prosvjetiteljstvo, vol. 3. of Hrvatska i Europa: Kultura, znanost i umjetnost (Zagreb: Školska knjiga, 2003).

13 For their work cf. Eugen Pusić et al., Nikola Škrlec Lomnički 1729–1799, 4 vols. (Zagreb: Hrvatska akademija znanosti i umjetnosti, Pravni fakultet Sveučilišta u Zagrebu, Hrvatski državni arhiv, 1999–2007) and papers by Teodora Shek Brnardić on Lovrić, Voltić, and Bassegli in Balázs Trencsényi and Michal Kopeček, Late Enlightenment: Emergence of the Modern ‘National Idea’, vol. 1. of Discourses of Collective Identity in Central and Southeast Europe (1770–1945): Texts and Commentaries (Budapest–New York: Central European University Press, 2006), 57–61, 223–27, 312–15.

14 Ivan Mužić, Masonstvo u Hrvata, 6th amended edition (Split: Laus, 2001), 17–23; Dragičević, “Maksimilijan Vrhovac,” 53, 59.

15 On “honorati” cf. Stančić, “Hrvatski narodni preporod,” 4–7.

16 Emilij Laszowski, “Zagrebački građani traže god. 1790 pravo glasa na saboru,” Vjesnik Kr. Državnog arkiva u Zagrebu 6 (1934): 201–04.

17 Proposals concerning the election of “einen adeligen Deputirten” in the Academy were dismissed during the debate and, pursuant to the new law, it was decided that the Academy should be requested to send “den Würdigsten.” Die Vollständigen Landtagsverhandlungen der vereinigten Königreiche Kroatien, Slavonien, Dalmatien im Jahre 1845 nebst dem Operat über Turopolje und der neuesten königlichen Resolutionen an das Agramer Comitat, compiled by J. P. Jordan (Leipzig: Expedition der slavischen Jahrbücher, 1846), 32. This fragment is based on a paper of Ivana Horbec, “Arme Diener des Königs und ihre (verpassten) Chancen: Existentielle Herausforderungen des kroatischen Kleinadels im 18. Jahrhundert,” presented at the conference Soziale Abstiegsprozesse im europäischen Adel, Tübingen, September 17–19, 2014.

18 On the acceptance of the idea of the German philosopher and writer Johann Gottfried Herder in Croatia cf. Nikola Ivanišin, “J. G. Herder i ilirizam,” Radovi Filozofskog fakulteta u Zadru 2, no. 2 (1963): 196–225; Wolfgang Kessler, “Die Südslawen und Herder: Einige Anmerkungen,” in Festschrift für Wolfgang Gesemann, Beiträge zur slawischen Sprachwissenschaft und Kulturgeschichte, 3 (Munich: Hieronymus Verlag Neuried, 1986), 157–75; Vlasta Švoger, “Recepcija Herdera u hrvatskome narodnom preporodu na temelju Danice ilirske,” Časopis za suvremenu povijest 30, no. 3 (1998): 455–78.

19 Maksimilijan Vrhovac, “Poziv na sve duhovne pastire svoje biskupije,” (originaly in Latin, 1813) in Hrvatski preporod: Temeljni programski tekstovi, compiled by Ivan Martinčić (Zagreb: Erasmus naklada, 1994), 1:29–33; Antun Mihanović, “Reč domovini od hasnovitosti pisanja vu domorodnom jeziku,” in Hrvatski preporod, 1:42–56; Ivan Derkos, Genius patriae super dormientibus suis filiis, seu folium patrioticum, pro incolis regnorum Croatiae, Dalmatiae, & Slavoniae in excitandum, excolendae linguae patriae studium (Zagreb, 1832; reprint: Karlovac: Matica hrvatska, 1996); [Janko Drašković], “Disertacia iliti razgovor, darovan gospodi poklisarom zakonskim i budućem zakonotvorcem kraljevinah naših, za buduću Dietu Ungarsku odaslanem, držan po jednom starom domorodcu kraljevinah ovih,” (original printed in Karlovac in 1832), in Hrvatski preporod, 1:96–141; Janko Drašković, Ein Wort an Iliriens hochherzige Töchter (Zagreb: K. p. ilir. Nat. Typographie von Dr. Ljudevit Gaj, 1838); Dragutin Rakovac, “Mali katekizam za velike ljude,” in Hrvatski preporod: Temeljni programski tekstovi, compiled by Ivan Martinčić (Zagreb: Erasmus naklada, 1994), 2:9–28; Ljudevit Vukotinović, “Ilirizam i kroatizam,” in Hrvatski preporod, 2:33–44; Bogoslav Šulek, Šta naměravaju Iliri? (Belgrade: n.p., 1844).

20 [Josip Kušević, Valentin Kirinić, and Ladislav Žužić], De municipalibus iuribus et statutis Regnorum Dalmatiae, Croatiae et Slavoniae (Zagreb: Typis Franc. Suppan, 1830).

21 Arijana Kolak Bošnjak, “Horvatsko-vugerska stranka 1841–1848” (PhD thesis, University of Zagreb, 2012).

22 For political activities of the leading Hungarian reformist politicians in the nineteenth century, in particular in the context of their relationship to Austria, cf. István Fazekas et al., Széchenyi, Kossuth, Batthyány, Deák: Studien zu den ungarischen Reformpolitikern des 19. Jahrhunderts und ihren Beziehungen zu Österreich (Vienna: Institut für Ungarische Geschichtsforschung in Wien, 2011).

23 To this issue, he dedicated a special piece of writing to Croatian women inviting them to raise their children in their mother tongue. This was the brochure entitled Ein Wort an Iliriens hochherzige Töchter.

24 One of the major constants in Croatian politics of the first half of the nineteenth century and earlier was the insistence on the right of the Croatian Diet, as provided for by Article 1608:5, to determine its religious policy as one of the municipal rights; this policy was manifested in maintaining the ban on the settlement of Protestants in Croatia. Behind it, inter alia, was the fear of the Croatian nobility from the possible settlement of Hungarians, who would have represented strong competition for domestic nobility when competing for positions in the public institutions and offices.

25 Shek Brnardić, “Tomo Bassegli.”

26 Drašković, Disertacija, 109–10, 130–31, 138–40. He advocated gradual amendment of obsolete laws following the English model and opposed precipitate changes that happened in France in the several decades prior to it. Ibid., 125.

27 Nikša Stančić, “Disertacija Janka Draškovića iz 1832. godine: samostalnost i cjelovitost Hrvatske, jezik i identitet, kulturna standardizacija i konzervativna modernizacija,” Kolo 17, no. 3 (2007): 137–67.

28 Jaroslav Šidak, “Stranački odnosi u Hrvatskoj prije 1848,” in J. Šidak, Studije iz hrvatske povijesti XIX. stoljeća (Zagreb: Sveučilište u Zagrebu, Institut za hrvatsku povijest, 1973), 146–50.

29 Tihomir Cipek and Stjepan Matković, Programatski dokumenti hrvatskih političkih stranaka i skupina 1842–1914 (Zagreb: Disput, 2006), 118–20, citations on 119 and 120.

30 Jaroslav Šidak, “‘Narodna zahtijevanja’ od 25. ožujka – program hrvatske Četrdesetosme,” in J. Šidak, Studije iz hrvatske povijesti za revolucije 1848–49 (Zagreb: Institut za hrvatsku povijest, Centar za povijesne znanosti, 1979), 46–47.

31 Ibid., 51–52; Dalibor Čepulo et al., ed., Croatian, Slovenian and Czech Constitutional Documents 1818–1849, vol. 9 of Constitutions of the World from the late 18th Century to the Middle of the 19th Century: Sources on the Rise of Modern Constitutionalism, ed. Horst Dippel (Berlin–New York: De Gruyter, 2010), 39–46.

32 Dalibor Čepulo, “Razvoj ideja o ustroju vlasti i građanskim pravima u Hrvatskoj 1832–1849,” Pravni vjesnik 16, no. 3–4 (2000): 44.

33 Ivan Mažuranić, “Hèrvati Madjarom: Odgovor na proglase njihove od ožujka mieseca i travnja 1848,” in Hrvatski preporod, 2:75–76, 79–85.

34 The fundamental rights of the German nation were as follows: freedom of immigration and emigration; equality before the law; the abolition of all privileges, public services were made accessible according to abilities, equal military service was introduced; personal freedom was guaranteed (there were detailed provisions for cases where a person can be deprived of freedom); the death penalty as well as the punishments of clubbing and branding were abolished; inviolability of the home was guaranteed (search of the home permitted only with a court warrant), as was the secrecy of correspondence; freedom to express thoughts in words, in writing, in pictures, or in the press; freedom of the press must not be restricted by measures such as censorship, concessions, restrictions on the work of printing-houses or shops selling the press, prohibition of distribution through the post or similar; complete freedom of religion and conscience was guaranteed, as well as the public profession of faith, civil marriage was introduced, and it was provided that public registers would be kept by civilian authorities; freedom of research and teaching was proclaimed, the right to free choice of one’s profession, the state took over control of the school system, and teachers in public schools were put on an equal footing with civil servants; furthermore, the freedom of assembly and association (even in the army and the navy, if this is not contrary to military discipline regulations); inviolability of property, every form of servitude is abolished (some taxes and obligations were abolished against no compensation, others against compensation); the entire judiciary was placed under jurisdiction of the state, equality of all before the courts was introduced, as well as public and oral court proceedings, trials by jury for serious criminal offences and for all political offences, the administration was separated from the judiciary, and the final court judgements of German courts were valid in all German lands. Cf. “Die Grundrechte des deutschen Volkes,” Wiener Zeitung (WZ) no. 345, December 28, 1848, 1514–15 and no. 346, December 29, 1848, 1527–28.

35 The first Constitution of the Austrian Empire/Habsburg Monarchy provided for the following civil and political rights: complete freedom of religion and conscience was guaranteed to all citizens, and the right of worship was recognized to all Christian religious communities recognized by law, to Jews, personal freedom was guaranteed (arrest was regulated by law), freedom of speech and the press, secrecy of correspondence; the right to petition and association; freedom of emigration; free access to services; freedom of land acquisition and practice of crafts permitted by law; equality before the law, in taxation and military service; public and oral court proceedings as well as jury trials for criminal offences. Cf. “Staatsbürgerliche und politische Rechte der Staatseinwohner,” WZ no. 115, April 25, 1848, 551.

36 The Constitutional Draft provided for the following fundamental rights of the Austrian nation: equality before the law, abolition of all privileges; universal accessibility of public services; guarantees of personal freedom; abolition of privileged and extraordinary courts, public and oral court proceedings, jury trials were provided for criminal offences, political, and press offences; abolishment of death penalty for political crimes, as well as the punishments of participation in public works, branding, corporal punishment, deprivation of property, as well as the loss of civil and political rights; inviolability of the home (search of a house and seizure of documents were possible only with a court warrant); secrecy of correspondence; the right to petition; freedom of assembly and association; freedom of religion and public profession of faith, equality of all religious communities; introduction of civil marriage; freedom of movement for persons and property within state borders, freedom of emigration; freedom of research and teaching; compulsory primary school education at the state’s expense; freedom of expression of one’s thoughts verbally, in writing, in pictures as well as in the press; this freedom was not to be restricted by censorship, concessions, bails, or restrictions on printing and distribution of printed matter or any other restrictions; equality of all national groups, each national group was entitled to nurture its own nationality and language; equality of all languages that were customary in the state (landesüblich) in the school system, administration, and public life; inviolability of property; freedom to dispose of one’s property by testament; universal taxation and universal military service. Cf. “Entwurf der Grundrechte des österreichisches Volkes,” Extra Blatt zur Abend-Beilage der Wiener Zeitung no. 238, December 23, 1848, [1–3].

37 Wilhelm Brauneder, “Die Verfassungsentwicklung in Österreich 1848 bis 1918,” in Verfassungsrecht, Verfassungswirklichkeit, zentrale Repräsentativkörperschaften, ed. Helmut Rumpler and Peter Urbanitsch, vol. 7., bk. 1 of Die Habsburgermonarchie 1848–1918 (Vienna: Verlag der Österreichischen Akademie der Wissenschaften, 2000), 127. The Patent guaranteed the following political rights for nationals: personal freedom (arrest possible only with a court warrant or during the commission of an offence), complete freedom of religion, religious communities recognized by law were granted the right of free practice of faith, freedom of research and teaching, the right of national minorities to nurture their language, the right to freely express one’s thoughts in oral or written form and in pictures, freedom of the press which was not to be restricted by censorship, secrecy of correspondence, freedom of assembly and association, inviolability of the home (the search of a flat was allowed only with a court warrant). Südslawische Zeitung (SZ) no. 29, March 9, 1849.

38 G. Kleinheyer, “Grundrechte,” 1047, 1079.

39 I. S., “Današnje stanje pravah dèržavnih,” Novine dalmatinsko-hèrvatsko-slavonske (NDHS) no. 53, May 27, 1848.

40 “Věroizpovědanje,” Saborske novine (SN) no. 1, June 6, 1848.

41 [Dragutin (Dragojlo) Kušlan], “U Zagrebu 22. svibnja,” Slovenski Jug (SJ) no. 61, May 24, 1849.

42 B. Š. [Bogoslav Šulek], “Mèržnja Zapada,” SJ no. 80, July 4, 1849.

43 Gustav Dollhopf, “Narodnost i Demokracia,” SJ no. 16, September 10, 1848.

44 SZ no. 146, September 15, 1849.

45 SZ no 89, July 7, 1849.

46 “Obćine. I,” Jugoslavenske novine (JN) no. 105, August 12, 1850.

47 In his book Prava građana i moderne institucije: Europska i hrvatska pravna tradicija (Zagreb: Pravni fakultet Sveučilišta u Zagrebu, 2003), Dalibor Čepulo analyses political rights in Croatia in the nineteenth century and puts them in a broader European context. He makes a detailed analysis of the right to citizenship and the right to domicile, the right to vote, the right to public assembly, the right to association and petition, freedom of the press, jury trials and equality of religions. See: 73–180.

48 “Grundrechte (Constitution) der östr. Staatsbürger,” SZ no. 1, January 3, 1849 and no. 3, January 8, 1849;

49 Patent of March 7, 1849 about political rights in Austrian countries represented in the Parliament in Kremsier, SZ no. 29, March 9, 1849; Editorial, SZ no. 89, July 7, 1849; “Unsere Lage,” SZ no. 146, September 15, 1849. Rieger’s speech in the Parliament was published in several instalments: “U Zagrebu 26. Siečnja,” SJ, no. 12, January 27, 1849, “Riegerov govor o souverenstvu naroda,” SJ no. 13, January 30, 1849, no. 14, February 1, 1849, no. 15, February 3, 1849 and no. 16, February 6, 1849. The civil rights and freedoms this paper deals with were relatively fully formulated in just three articles. Those were: “Věroizpovědanje,” SN no. 1, June 6, 1848, “Was ist eigentlich die Konstitution?,” SZ no. 214, September 18, 1850, and no. 215, September 19, 1850, and “Obćine. I,” JN no. 105, August 12, 1850.

50 “Věrujemo u svemogući duh věka našega, i zato će mo se boriti za sva ona mněnja, koja će ju tamo směrati, da se na temelju jednakosti, slobode i bratinstva osnuju družtvena i politična otnošenja domovine naše. Izpovědamo, da je dèržavni organizam zemaljah naših gnjio i trul, i da trěba životvorne snage, da se okrěpi i učvèrsti, zato će mo se boriti za sve one slobodne inštitucie, koje su kod inih slobodnih narodah za spasonosne nadjene. Věrujemo u neograničenu slobodu tiska, pravo sdruženja, pravo sebe sama vladanja (selfgovernment), kao u jedite poluge slobode dèržavne. Izpovědamo, da će mo se za ova višestavljenja načela boriti, i sva moguća učiniti, da ona mejdan odèrže, na věke věkovah.” “Věroizpovědanje,” SN no. 1, June 6, 1848.

51 This is also visible in “Manifest naroda hrvatsko-slavonskoga,” which was adopted by the Croatian Parliament in early July 1848. Printed in Tomislav Markus, “Hrvatski politički pokret 1848–1849: Izabrani dokumenti,” Fontes 12 (2006): 116–23.

52 In his work Prava građana, 31–36, Čepulo presents the process of shaping the idea of a state based on the rule of law in German political-legal theory and literature.

53 Advocacy of religious equality as one of the prerequisites for realizing a constitutional Habsburg Monarchy was most clearly expressed in two articles published in Südslawische Zeitung: sr, “Klagenfurt, den 5. Juni 1850.,” SZ no. 131, June 10, 1850; A.[ndrej] E.[inspieler], “Der national- und religiös-indifferente Staat,” SZ no. 120, May 27, 1850 and 121, May 28, 1850.

54 Čepulo, Prava građana, 167–68.

55 “Věroizpovědanje,” SN no. 1, June 6, 1848; “Bratinstvo,” SN no. 12, July 4, 1848, no. 13, July 10, 1848 and no. 14, July 18, 1848; “Zagreb 27. ožujka,” NDHS no. 27, March 29, 1848; “Agram. 28. März,” Agramer Zeitung (AZ) no. 31, March 28, 1848; “Offenes Sendeschreiben an die Israeliten Kroatiens, insbesondere der Gemeinde zu Warasdin,” AZ no. 51, May 13, 1848; SJ no. 32, March 15, 1849; A. T. B. [Andrija Torkvat Brlić], “Iz Zagreba,” SJ no. 20, January 24, 1850.

56 Državni arhiv u Zagrebu [State archives in Zagreb], HR-DAZG-1 Poglavarstvo Slobodnog kraljevskog grada Zagreba, Knjige građana, Protokoli, no. 24, February 4, 1850.

57 Vladimir Dugački, “Dr. Mavro Sachs (1817–1888) – prvi medicinski docent zagrebačkoga sveučilišta,” Acta Medico-Historica Adriatica, 8, no. 2 (2010): 377–80.

58 Jedan iz kola mladih svetjenikah, “Iz Zagreba,” NDHS no. 39, April 25, 1848; B.[ogoslav] Š.[ulek], “Cèrkva i naša doba,” NDHS no. 88, August 17, 1848.; [Adolfo Weber Tkalčević], “Robstvo duhovnikah,” NDHS no. 64, June 22, 1848; [Adolfo Weber Tkalčević], “Odgovor na dvanaest lažih opovèrgnjenih,” NDHS no. 90, August 22, 1848, no. 91, August 25, 1848. For liberal Catholicism in Croatia in the mid-nineteenth century cf. Mirko Juraj Mataušić, “Odnos Katoličke crkve prema novim idejnim strujanjima u hrvatskim zemljama 1848–1900.,” Bogoslovska smotra LV, no. 1–2 (1985): 196–215; Iskra Iveljić, “Katolička crkva i civilno društvo u Hrvatskoj 1848. godine,” Časopis za suvremenu povijest, 25, no. 2–3 (1993): 19–42; Vlasta Švoger, “Liberalni katolicizam u Hrvatskoj i Strossmayer,” Zbornik 7. i 8. Strossmayerovih dana (Đakovo: Grad Đakovo, 2011), 77–123.

59 SJ no. 23, February 22, 1849 and no. 26, March 1, 1849; SZ no. 40, February 18, 1850; A., “Die geistlichen Gerichte,” SZ no. 102, May 3, 1850; “Die Kirchenfrage,” SZ no. 101, May 2, 1850; “Die Kirchenfrage,” SZ no. 104, May 6, 1850; “Stimmen über die neuesten Regierungsordonanzen in Angelegenheit der katholischen Kirche,” SZ no. 106, May 8, 1850; [Imbro Ignjatijević Tkalac], “Politische Rundschau. III.,” SZ no. 109, July 31, 1849.

60 SJ no. 73, June 21, 1849 and no. 77, June 30, 1849; “Prošnje i želje klera eparkie pakračke,” NDHS no. 46, May 11, 1848.

61 Vlasta Švoger, “Zagrebačko liberalno novinstvo o slobodi tiska i društvenoj ulozi novina od izbijanja revolucije 1848. do uvođenja neoapsolutizma 1851. godine,” Povijesni prilozi, 30 (2006): 204–23.

62 “Sloboda štampe,” Danica horvatska, slavonska i dalmatinska (DHSD) no. 44, October 28, 1848, no. 45, November 4, 1848, no. 46, November 11, 1848 and no. 47, November 18, 1848.; “Javnost,” DHSD no. 49, December 2, 1848, no. 50, December 9, 1848, no. 51, December 16, 1848, no. 52, December 23, 1848 and no. 53, December 30, 1848. Petar Korunić wrote about publicity and freedom of the press as foundations of the civil society in “Osnovice građanskog društva u Hrvatskoj za revolucije 1848–49. godine,” Radovi – Zavod za hrvatsku povijest, 32–33 (2001): 69–104.

63 A. Z., “Niekoliko riečih o namienjenom nam štamparskom zakonu,” SJ no. 61, December 23, 1848; F. Žerjavić, “Niekoliko riečih o slobodi štampe,” SJ no. 63, December 30, 1848; Einladung zum Abonnement auf die Südslawische Zeitung, December 14, 1848, National and University Library in Zagreb, Manuscripts and Old Books Collection, R VII.-2º-6.; [Avelin Ćepulić], “Iz Hrelin-grada 22. svib.,” JN no. 50, June 7, 1850; editorial, JN no. 186, November 18, 1850; “U Zagrebu 22. svibnja,” SJ no. 61, May 24, 1849; A. Z., “Političke iskrice,” SJ no. 58, December 16, 1848; B.[Bogoslav] Š.[Šulek], “Najprěčji zakoni,” NDHS no. 56, May 10, 1849; “Das Preßgesetz,” AZ no. 54, May 5, 1849; Stephan Moyses, “Agram, 13. Mai,” AZ no. 58, May 12, 1849; “Iz Zagreba,” JN no. 136, September 19, 1850 and leading article, SZ no. 33, February 9, 1850. The 1849 Law on the Press as well as related laws on court proceedings in cases of press offences was published by Tomislav Markus, “Dokumenti o hrvatskom pokretu iz 1849. godine,” Časopis za suvremenu povijest, 30, no. 3 (1998): 577–95.

64 F. Žerjavić, “Niekoliko riečih o slobodi štampe,” SJ no. 63, December 30, 1848; “Od Drave 18. lip.,” JN no. 71, July 3, 1850; “Iz Pariza 9. sèrp.,” JN no. 84, July 18, 1850.

65 “Kada su se narodi pomalo počeli osvješćivati i skidati okove u koje ih sapeše pojedini ljudi sa družbom dvorjanika svojijeh, jedino svoje osobne koristi radi, onda su se sve pomalo uvadjala prava čovječja i gradjanska, koja idu čovjeku po naravi, kao što su: sloboda mnjenja i vjerozakona, sloboda govora, štampe, trgovine, zanata i naučanja, sloboda osobe i imetka i.t.d. Ali vladari, imajući još ponešto sile u rukuh podkrijepljeni koje aristokraciom, koje vojničkom silom, otimali su se koliko moguće za vlast dojakošnju i što su godj davali slobode narodom, to je išlo sve kap po kap i više s nevolje no s dobre volje. Zato i nijesu oni izprva narodom rado davali do jedino onakove slobode, kojima se je nekako osigurala sloboda osobe i imetka.” [Dragutin (Dragojlo) Kušlan], “U Zagrebu 22. svibnja,” SJ no. 61, May 24, 1849.

66 Korunić, “Osnovice građanskog društva,” 69–104 and Švoger, Zagrebačko liberalno novinstvo, 470–86.

67 These principles were most clearly formulated by the anonymous author of the article “Was ist eigentlich die Konstitution?,” SZ no. 214, September 18, 1850 and no. 215, September 19, 1850.

68 Arijana Kolak, “O Mađarima i mađarskoj politici u javnosti banske Hrvatske 1848–49” (MA thesis, University of Zagreb, 2006), 80–93 and Švoger, Zagrebačko liberalno novinstvo, 320–30.

69 Articles 1848:27 and 1848:29, in Čepulo et. al., ed., Croatian, Slovenian and Czech Constitutional Documents 105–12.

70 Čepulo, “Razvoj ideja o ustroju vlasti,” 46–53.

Volume 5 Issue 1 CONTENTS

pdfÁron Kovács

Continuity and Discontinuity in Transylvanian Romanian Thought An Analysis of Four Bishopric Pleas from the Period between 1791 and 1842

 

Based on the analysis of four Romanian bishopric pleas, the article examines the connection between the reform movements of the 1790s and 1830s. The subject of the analysis is the political and intellectual-historical background of the 1791 Supplex Libellus Valachorum and the pleas of 1834, 1838 and 1842, with particular focus on how the authors of the pleas formulated their concepts of the future and the relationship between the pleas and concepts of natural law.
If one examines the pleas side by side, the key concept in each of them, with the exception of the plea of 1838, was repositioning (reponere, repositione, repunere), but the meaning of this concept changed significantly over time. In the case of the Supplex Libellus Valachorum, the argumentation based on social contracts and the customary law definition of feudal rights was replaced with a positive legal argumentation built on actual acts of laws. On the other hand, in the plea of 1838 the concept of handling nations as living beings is unmistakably recognizable, together with the idea of their rise through civilization and culture. This change of paradigms caused a change in the aims of the pleas as well. Eventually, their main aim was not merely to secure rights, but to establish auspicious circumstances for the development of a nation conceived of as a living being. The goal became to prepare for cultural development and establish the conditions necessary for culture to flourish. Thus, although at first glance the argumentations of the documents seem to have a lot in common, in fact one can clearly discern how the community-related concepts of Transylvanian Romanian Romanticism started to gain ground, while at the same time the tropes appearing in the Supplex Libellus Valachorum started to undergo a transformation.

Keywords: Transylvania, Transylvanian Romanians, Supplex Libellus Valachorum, social contract, natural law, eighteenth century, nineteenth century, political thinking, Romanian Enlightenment, Romanian Romanticism

 

 

The debate regarding whether the end of the eighteenth century and the reform movements of the 1830–1848 period are one single concept or two separate events has not been as thoroughly discussed in the case of Transylvanian Romanians as it has in the case of Hungarian history. David Prodan’s work the Supplex Libellus Valachorum1 and Ladislau Gyémánt’s Mişcarea naţională a românilor din Transilvania între anii 1790 şi 1848 (The national movement of Romanians in Transylvania between 1790 and 1848)2 conceive them as one single set of events. Even when other works on Romanian history contend that there was a sharp border in this period (and this typically done only in works that offer narratives of the whole history of the Romanian people), the borderline is 1821, the Wallachian revolution of Tudor Vladimirescu. For instance, the book series Istoria Românilor (History of the Romanians)3 and the History of Romania: Compendium4 divide these two periods like this; at the same time, the relevant chapters of these works often refer back to the events of the 1780s and 1790s when discussing the 1830s.

This essay examines the connection between the two reform movements based on four Romanian bishopric pleas between 1791 and 1842. The subject of this analysis is the political and intellectual-historical background of the abovementioned documents, with a particular focus on how the authors of the pleas formulated their concepts of the future and the relationship between the pleas and concepts of natural law. Under the latter term, I mean a branch of legal philosophy which draws a sharp distinction between a priori existing natural law considered as a norm and the conventions determined by people and society. According to this view, the goal of the latter is to approach natural law and thus arrive at a perfect state of law and order.5

The importance of the sources used in this essay is established by the contexts in which they came into existence. The Transylvanian Romanians did not have collective rights in the political system of the Grand Principality. Transylvania, in the first half of the nineteenth century, still existed within the legal-political framework that had been established in the late medieval and early modern times. Three privileged groups, or natios, (the nobility, the Saxons and the Székelys) formed different territorial and administrational units within the country. The most numerous among them was the nobility, the so-called Natio hungarica, which was found in 11 noble counties of Transylvania and Partium (a region to the west of Transylvania often conflated with it today). Although most of the nobles were of Hungarian ethnic origin, the nobility cannot be considered an ethnic category. It included every noble family of Transylvania, regardless of ethnicity and mother-tongue. Due to this, the noblemen of Romanian origin in the districts of Fogaras (today Făgăraş, Romania) and Hátszeg (today Haţeg) were represented by the Natio hungarica. Alongside them, two other major political groups participated in the governance of Transylvania: The Saxon Universitas, an administratively autonomous group of German ethnic origin living in the region called Fundus Regius, based on the 1224 privilege of Andrew II, called Andreanum, and the Székelys, a Hungarian-speaking ethnic group of contested origins who had served as frontier guards since the Middle Ages. These three natios, as political bodies, had the right to send representatives to the Diet, the parliament of the estates, the origins of which also lay in the Middle Ages.6 The Romanians as a community were not part of the political system of Transylvania. Until the end of the 1830s, the appearance of the secular clerisy and their political representation was practiced by their bishops, the Greek Catholic bishop of Fogaras (Făgăraş) and the Orthodox bishop of Nagyszeben (Sibiu). The political pleas written in the name of the whole community could only reach the royal court through them. For a long time, these documents were the only way to represent the political interests of the Romanians in national political life. The abovementioned pleas also represented the final stage of a long-lasting political tradition. With the clerisy being laicized and the Transylvanian Romanian press being born, a political practice was beginning to emerge that was much more public and different radically from the one that had existed before, in part because the role of the two church leaders significantly decreased.

Eighteenth-century East Central Europe, with the age of the Supplex Libellus Valachorum, a petition submitted to Leopold II in 1791, serving as the starting point of this analysis, bore witness to a unique headway of the different social contract theories. As pointed out by Sándor Pruzsinszky in his analysis, the different social and political groups derived the rightfulness of their often opposing goals from basically the same principles. Enlightened absolutism, the enlightened estates of the realm, and the bourgeois and Jacobin direction of the Enlightenment all drew arguments and philosophical support from the same axioms of the natural law of the Enlightenment. Martini7 used the social contract theories in favor of the court, while the diet of 1790 applied them in opposition to the deceased ruler, Joseph II. These same ideas also provided an important foundation for the Hungarian Jacobin Movement in the 1790s. As has also been noted by Gábor Zoltán Szűcs, the modern Protestant theories of natural law became an integral part of Hungarian political thinking in the eighteenth century. Szűcs does not consider them to have been ideas mechanically imported from Western Europe, but rather regards them as ideas that were adapted to the local specifications of the political system and society. Their aim was to try to reposition individuals and social groups to their erstwhile perfect status dreamt up by the authors of social contracts, and in doing so, to restore the natural rights they actually never had. In their argumentation, there was a sharp distinction between natural and manmade law. They regarded natural law as an unattainable, absolute truth, which transcended social conventions. The main purpose of the actual laws (conventions) was to approach this state of perfection. Thus, through this distinction, when referring to the natural law, they were actually asking for the restoration of their imagined natural rights based on eternal truths that stand above laws.8

Thinking based on this concept of natural law had significant influence on the Transylvanian Romanians as well, as highlighted by both David Prodan and Zoltán I. Tóth. They found one of the most important bits of evidence of this in the Supplex Libellus Valachorum, a central text of Transylvanian Romanian political thinking, formulated in 1791.9 With the help of this plea, utilizing the legal methodology of the period, the Greek Catholic, Orthodox and laical Romanian intellectuals tried to establish an elite in the eighteenth century which would have the same legal and governmental status as the Hungarians, Saxons and Székelys.10 For this reason, the authors worked out a historical argument that bore many of the characteristics of the social contract theories. The assessments of David Prodan and Zoltán I. Tóth to the contrary,11 this argumentation had an important role in supporting the plea both from the perspective of the Tripartitum-based12 feudal rights and from the perspective of natural rights: it proved the existence of a social contract between the Hungarians and the Romanians and the existence of the neglected but still existing rights of the Romanians.13 On the other hand, the feudal judicial argumentation of the plea sought to assert the claim that the rights of the Romanian people were common rights, based on the customary law definition of the Tripartitum. Thus, the authors of the plea could support their political ambitions from two sides with the help of historical argumentation.

The authors of the petition expressed the ideal, taintless state of the society with the concept of civil society. In their interpretation, this meant a monarchy in which the main objective of the monarch is to establish social balance. This balance can be achieved through the development of civil rights and the establishing of a kind of equality before the law. Thus, no group of citizens can acquire a position in which it can deprive the others of their rights by force or oppress them. According to the authors of the Supplex Libellus Valachorum, such a perfect social order had once already been established in Transylvania, allegedly in the age of the Hungarian Conquest of the Carpathian Basin, when a religious and legal equality was established between the Romanians and the Hungarians.14 But how did this founding act of Transylvanian society look? The Supplex built its arguments on the Gesta Hungarorum, a twelfth-century cronicle written by an anonymus author. According to the plea, at the time of the Hungarian invasion of Transylvania in the ninth century, Gelou, the leader of the so-called Wallach people, who held themselves to be descendants of the Romans, was killed in the defensive battles. The Wallachs stopped fighting after his death; they rather “shook hands in free will, choosing Tuhutum, the leader of the Hungarians as their lord.”15 “The rights of the citizens of the two nations [the Hungarians and the Wallachs] were melded in one company”16 from the beginning of the reign of Tuhutum. If this is considered from the perspective of social contracts, this means, that the two groups of people established a collective society.17 After the Romanians accepted the Hungarians “into a common homeland,”18 the two nationes had the same exemptions and civic freedoms.19 Thus, the Supplex sees the agreement between Tuhutum and the Wallachs as a contract. With the mutual acknowledgement of each other’s rights, it established perfect isonomy and the taintless, almost paradisiac state of society.20 According to the interpretation of the petition, the religious equality can also be dated back to this period, to the tenth and eleventh centuries. Transylvania turned to Eastern Christianity in the tenth century with the conversion of Tuhutum’s grandson, Gyula. Western Christianity gained ground in the province only after the fall of Gyula. This took place at a rapid pace, and soon only the Wallach population remained in the Eastern Church, although they were able to practice their religion undisturbed.21

This historical summary was used to assert the existence of a social contract and equality before the law and strengthen the feudal judicial argumentation. This is based on the customary law definition of Werbőczy. The Tripartitum defines this legal institution as a set of rights with moral origins, which act as a law when there is no applicable law. For the purposes of my analysis, its main significance is that it does not need to exist in a written form. As long as it serves the common good and is a long-standing practice, it must be considered equal to written law.22 As according to the interpretation of the plea given above all the previous points were realized, in the Middle Ages the customary laws of the Romanians functioned concepts of a status equal with the status of written law.

There was a huge difference between the allegedly ideal historical age and the lack of rights endured by the Romanian-speaking communities in their own age. The connection was established by the authors of the Supplex Libellus Valachorum by stating that the rights of the Romanians had never been legally abolished. Rather, they had been taken away23 by “the cruel ages.24 The plea explained the history of this in two steps. First, laws had been established that did not affect the Romanians; thus, those laws did not mention the Romanians. Later, since the customary laws were built on written laws that did made no mention of the Romanians, their rights were seriously limited. This process allegedly began with the Unio Trium Nationum and the Reformation. The plea saw the union as an alliance between the Hungarian, Saxon and Székely nationes forged in 1437, and not as an agreement determining the governmental form of the country. According to this interpretation, the union of the three estates of the realm was their own private matter, and it did not affect the legal status of Romanians, as it existed only in the form of customary law. The authors used the same analogy regarding religions as well: the changes that took place in Western Christianity in the sixteenth century did not affect the situation of those belonging to the Orthodox church, including the Romanians. According to the plea, the church-related acts of law established in 1540–1563 were not intended to define the religions accepted in the country. The authors interpret these regulations as providing a legal description for the Roman Catholic Church, the legal state of which had undergone a change at the time, and the Lutheran, Calvinist, and Unitarian Churches, which were gathering ground in Transylvania at the time. The regulations had been intended merely to secure the legality of these four Churches. If we examine this from the perspective of the Orthodox Church, there was no change in its situation because of the Reformation, so it was unnecessary to mention it in these laws.25 The authors are trying to prove via leading cases that the above method of interpreting the law is perfect and that Romanians did not have to face any kind of disadvantageous legal discrimination after the union and the acceptance of the Church-related acts. They recall that the Romanian people gave several high ranking people to the Kingdom of Hungary, including kings, governors and archbishops of Esztergom in the ages before the Supplex Libellus Valachorum.26

The authors believe that the misinterpretation of the abovementioned acts started with the introduction of the Approbatae Constitutiones.27 The authors of this document carelessly or deliberately included several regulations among the acts that had severe effects on the situation of the Romanians. Forgetting about their equality granted by customary law but never registered in written form, the Approbatae Constitutiones categorized them as received, tolerated people. Their deprivation of rights was not declared in a separate act, it only appeared in the preamble of other acts.28 One of the sections in the legal code about which they had a grievance was the introduction to the chapter concerning Romanian priests. “Though the Walachian nation does not belong to the Estates in this land nor does its religion belong to the recognized religions, yet it is further tolerated for the advantage of the kingdom (propter emolumentum Regni), subject to its priests observing certain conditions.”29 According to the authors, this new approach swiftly made its way into customary law, and it found support among “many citizens of the Homeland,”30 thus establishing a legally flawed practice.31

Thus, the reasons for the situation of the Romanians were not to be found in the acts, but in customary law based on the preambles of the acts and in “the cruelty of the ages.32 The Supplex Libellus Valachorum, in accordance with the natural rights-based thinking widespread in eighteenth-century Hungary, considers it to be the Sovereign’s task to grant an order to the community, which would make morality possible.33 Therefore, the predecessors of monarch Leopold II—including Leopold I, Maria Theresa and Joseph II, who fully understood “the natural and real rights of men and citizens”34—were trying to change the situation of the Romanians. According to the authors of the plea, their charters, orders and commands were useless, because the diets openly opposed them.35

The authors emphasize in their arguments that since the rights had never been lost, they were still in effect. Based on this claim, the aim of the plea was not to achieve new rights and overthrow the constitutional order of the country, but to reestablish the Romanians into their earlier position of equal rights. They wanted to achieve this with the help of the monarch. Alternatively, there was the declaration of their deprivation of rights, which could only be interpreted according to the authors as the dismissal of the agreement. They thought it meant the restoration of the relationship between the two nations before the agreement, and this relationship was war. In such a case—six years after the Horea revolt36—they foresaw the danger of a new peasant rebellion, which could be started by the Romanian peasantry if they continued to be treated differently than the peasants of other nationales.37

The authors of the Supplex phrased their actual requests in five points. These were the following: First, the phrases “received,” “tolerated,” and “does not belong to the Estates of this land” had to be withdrawn once and for all, and the Romanians had to be repositioned to citizens of the country with equal rights. Second, the old-established equality of the Romanians had to be restored. Third, all groups of Romanian society, regardless of religion, had to enjoy equal treatment to the other nationales. Fourth, in the parishes, seats, districts and counties the officers must ensure that the Romanians get representation in proportion to their numbers. And finally, the counties, seats and parishes that had a Romanian population must be allowed to use a Romanian name, too.38

As can be seen, the requests aimed to reestablish rights and achieve equal legal status with the Hungarians, and not to acquire additional rights. As an example, they followed the continuous grievance policy of the Hungarian estates that were present until 1838. The reference basis in this case was “the truths of nature,” “the basic laws of civil society” and the “agreements bound,”39 i.e. the norms and conventions of customary law. The use of the argumentation based on the concept of social contracts made it possible to refer to an imaginary status based on natural law interpreted as supreme truth. The plea was consequential in using the terms restoration and reestablishing, trying to draw the Romanians near this status. Thus, the words restoration and reestablishment do not refer to the past; the authors used the legal methodology of the period to describe their demands regarding the future political situation of the Romanians.

Another key characteristic of the Supplex Libellus Valachorum is that although we cannot yet speak of nationalism in its modern form, the document bears the first signs of the evolution of a new group identity that was not Church-based. One of the main arguments of the plea was the primordiality of the Romanians. It finds evidence in support of the view according to which the Wallach people were the oldest inhabitants of Transylvania and the descendants of the veterans settled by Traianus in the region in historical sources and similarities in language, morality and customs. This can be considered the first sign of a cultural-national model, but it appeared only among the intellectuals at the time. The identity of the Romanian peasantry consisted of totally different elements.40

In the plea, there another idea emerges that was going to be very important later, and that was the need for the education of the Romanian people:

 

Nothing can be expected from the education of this nation while its clergy and nobility are kept in squalor, and because of this there is no accession in diligence; rather, ignorance, indolence, and slothfulness come from it, together with those greater sins to which it usually gives birth, for the destruction of the province.41

The clergy and nobility, as the two determinant groups of Transylvanian Romanian society, were given an extraordinary role in this statement. Thus, the enrichment of the whole nation, expressed with the phrase “accession in diligence,” depended on their education. Their ignorance and indolence led to the failure of progress. This endeavor, since there was no organic concept of the nation as a living being, was, implicitly, in the interests of the state.42

The Supplex Libellus Valachorum was followed by several petitions from the circles of the Orthodox and Greek Catholic prelacy. In these, the methods of argumentation and the principles from the pleas of 1791 and 1792 return; however, they are now parts of a partially or totally different system of concepts.43 The document handed over to the monarch in 1834 by Ioan Lemeni44 and Vasile Moga,45 with a reassurance from commissioner Ferenc Wlassits,46 also fits into this tradition. The plea itself was completed only some months before the reopening of the diet, which had been a burning demand for about a quarter of a century. It was supported by commissioner Wlassits because he considered it as a tool for the weakening of the liberal opposition, which was gaining ground. The plea consciously relies on the traditions of the documents written in the beginning of the 1790s, and its aim was to renew the pleas of the Supplex Libellus Valachorum. The authors based their work on the monarch’s reply to the Supplex Libellus Valachorum, dated 21 July, 1792. This reply made a declaration of intent to eradicate the grievances of the Romanian people; however, as the authors pointed out, this had not been realized in the 41 years that had passed between the two pleas. As they emphasized, this was in spite of the fact that during this time there had been two attempts47 to start a rebellion, while the Romanians had been waiting in peace to have their rights restored and to join the other nationales in an alliance of mutual cooperation.48

The authors tried to support their contention that the Romanians possessed rights in two ways: they referred to the Transylvanian acts and the natural laws, as in the case of the Supplex Libellus Valachorum. However, the demonstrative argumentation already differed from the plea of 1791: the social contract theory was no longer part of the argumentation, which was based on concepts of natural law, and its arguments concerning public law did not try to present Romanian legal equality on the basis of customary law anymore. Its fundamental idea was that the Romanians were not to be excluded from the national rights and monarchical benefits, neither through nature nor by law.49 On the contrary, nature guaranteed them the same rights as the other nationales and all the benefits of the law. Via this formula, the plea of Lemeni and Moga delimits the acts of laws rooted in human nature”;50 that is, the natural laws and the acts that are ideally codified based on this law. Since it saw the Romanians as entitled to equal rights “designated by nature,”51 indirectly it declares that all acts that deprive Romanians of such rights and benefits are contrary to natural law. The same formula is repeated by the authors again at the end of the plea in a different way. Here, in order to prove the just nature of the requests, the basis of reference was the fact that they are rooted in nature, so “they can never be ripped out of their hearts.”52

In addition to the arguments based on natural law, the plea used other methods as well to try to achieve the restoration of former rights.53 Alluding to the fact that the Romanian nobility and also the free men had the same rights as the respective groups among the Hungarians, Saxons and Székelys, the latter three could not demand any privileges over the Romanians. According to the plea, the determination of the three estates of the realm, the three nationales, constituted such a privilege, so the plea sought recognition of the Romanian community as the fourth natio.54 At the same time, the plea rejected the idea that the epithets related to tolerated legal status could be applied to the Romanians and that the Romanians would not count as a part of the constitutional system of the Grand Principality of Transylvania. The plea approached the problem along the logical system of cameral economics: as long as they are not part of the constitutional system, they should leave the country. In this case, the country would not find enough people to compensate for their absence, people who would take on the same burdens without the rights and privileges of the people living in the country, and without being treated as a constitutional factor.55

Thus, the plea of 1833/34 bears strong affinities with the Supplex Libellus Valachorum in two respects. The norm-based argumentation concerning natural laws was partially taken from the Supplex, together with the expression repositioning (repositione), the technique aiming at the delineation of future political positions. The real difference between the two documents is that the historical argumentation that supported the social contract concept of the Supplex Libellus Valachorum was neglected. While the Supplex elaborates on the whole history of the social contract as the foundation of Transylvanian society, it is not mentioned in the plea of 1834. The cardinal referential basis of this plea is natural law and concrete acts of law, and not a hypothetically established contract. Apart from these changes in the legal sources, the logical structure was similar to the one introduced in the Supplex Libellus Valachorum. The Romanians have always had these rights, they only needed to be recognized again. The bishops continued to phrase their requests in the name of the natio, and they wanted to achieve a status for all social groups that the respective groups with same legal standings had. Thus, the plea adhered to the conceptual framework outlined in the 1790s. The aims for the region did not include changing the structure of society, which would remain within the framework of the estates.

The plea of 1834 was sent out for assessment by the court to the Transylvanian chancellery, which replied with its 1792 rejection of the Supplex Libellus Valachorum as an answer and forwarded the plea itself to the diet. This latter could not discuss it because it was dissolved. After the failure of this document, the next plea was handed over to the monarch by Vasile Moga, acting alone, in July, 1837.56 In this, one discerns a significant change in strategy compared to the former pleas. The set of questions were narrowed down to Fundus Regius by the authors with the open aim of exploiting the disagreements between the Hungarian nobility and the Saxons. Of its five points, three concerned only the Romanians living in that region. The plea submitted in 1837, like the one submitted three years earlier, lacked the historical introduction related to the social contract. The most important difference was that even the elements functioning as norms disappeared from the plea, and their place was taken by a positivist legal approach. The only legal source here is the codified acts of law.57 In addition to references to these acts, instead of allusions to natural truths, the authors introduced elements in the plea that played important roles in the coming years, such as morality and culture. This theme appears at the beginning of the document, in a part clarifying the role of the clergy:

 

All the clergy of a religion, consequently also the not united Greek clergy, are considered educators and promoters of religion, morality, as well as evanescent and eternal happiness, and for this progressive force to have the desired effect, they must have the necessary authority to educate the common people.58

In the citation, the clergy is presented as the leading group of social life. According to the authors, the role of the clergy is to educate the common people and be a “progressive force” through religion and morality. They are the ones who guide the people in the direction of evanescent and eternal happiness.

If we read this plea while considering the future positions at which it is aiming and the intended manner of reaching these goals, the citation is significantly different from what we have seen previously. Both its goals and the concepts describing the processes that will lead to them have changed. The goal of innaintare (progress), as opposed to the concepts of restoration and reestablishment, is not a concrete concept anymore, hidden behind the restoration of an imagined ideal state, as it was in the case of the earlier pleas, the goal of which was to achieve equal legal status and legal rights. This has been replaced by the state of evanescent and eternal happiness, which is at a transcendent distance. At the same time, some new key elements emerge that are, purportedly, essential to the quest to reach future positions, such as morality and culture, the spread of which is a prerequisite of progress. All of this points to the appearance of the humanistic ideal of Herder and the impacts of historicism. Herder described nations as human beings with a soul and a limited lifetime. However different they are, they each bear a universal humanity and some kind of nobility and dignity. The aim of their existence is to improve their humanity, which can be achieved via improving morality and culture.59 The requests of the authors served this purpose as well. Improving the living conditions of the clergy meant, in their eyes, the promotion of morality and culture. That is one of the reasons why they request the establishment of an Orthodox Seminary in Nagyszeben (Sibiu) and the release of clergy from the onerous burdens of corvee, tithe and taxa. They also wanted the clerics to receive canonica portio, and they requested that the Orthodox clerics in Fundus Regius should be entitled to allowances from the cassa allodialis. Their last request was that the Romanians in Fundus Regius have the right to hold public office, learn trades and be accepted by guilds.60

The authors defined the above requests based on the “justice and rights of the poor Romanian people.”61 Their public legal argumentation is similar to that of the 1833/34 plea, leaving speculative legal interpretations behind. They refer accurately to acts and rescripts in each case. 32 of the 34 acts referred to in the plea were created after 1791. In addition to all of the above, securing progress through culture also appeared as an aim in the justification of the requests. The document supports the request for the release of the clergy from the burden of paying the tithe with the 60th Articulus Novellares62 of the year 1791, and argues that the Romanians are superior in numbers within the population and that their request concerning the tithe is in accord with the monarchial will, that is, with “improving the culture of the people through the clergy.”63 They use the same arguments for the entitlement to allowances from the allodial funds as well: the Saxon villages finance their clerics, teachers and village schools from the allodial funds, from the incomes of allods, mills, taverns, lands and funds. According to the authors of the plea, the Romanian communities in Fundus Regius must do the same, and their investments will be paid off by in the form of cultural progress: “but those as beatific consequences would fall back to them because of the proper talent of the clergy, and through the progress of culture,”64 they write. Since according to the authors of the petition the Romanian people did not or (for an unspecified reason) could not consider this goal significant enough, such support must be ordered by the government.65

Thus, the petition of 1838 differs from the earlier ones both in form and legal argumentation. In comparison to the Supplex Libellus Valachorum and the petition of 1833/34, the greatest change can be found in its legal philosophical foundations. The references to social contracts, natural laws, and phenomena functioning as norms are replaced by a positivist legal approach. The authors cite concrete acts of law and monarchial orders. They support their requests with exterior, not legal, but moral and religious arguments, such as the preponderance of Transylvanian Romanians and the need to spread morality and culture. Parallel with the shifts in the arguments, the aim of the plea changed as well. The main goal was not to secure rights, although this still played an important role, but rather to establish the right circumstances for the development of an organic nation.

Shortly after beginning the discussion of the plea, the diet of 1838 established a committee to examine the document. It had a mandate until the next diet to clarify the grievances of the Romanian people. The Saxon Universitas used the time thusly won to begin collecting materials as early as June, 1838 in order to refute the arguments of the plea, so by January, 1842, when the plea was presented to the new diet, they had a complex argument against it. The only declaration of the committee appointed by the previous diet, which was in favor of the Romanians, was related to the practicing of trades. It recommended rejection of the request for tax exemption for the clergy and advised that the document itself be handed over to the Systhematica Deputatio. This decision meant that the plea had failed.66

The opportunity for a further plea came with the draft bill of 1842, which aimed to change the official language of Transylvania to Hungarian, and the debates concerning it.67 Bishop Vasile Moga wanted to exploit the disagreements between the Saxons and the Hungarians, and he hoped to get the support of the Hungarian estates for his plea. The compilation of the document was started by Aron Budai,68 who belonged to the circles of Moga. The first version of the plea produced at the time was sent to the Greek Catholic bishop Ioan Lemeni by Moga. Lemeni commissioned Alexandru Bohăţel, a lawyer in Kolozsvár (Cluj), to finalize the document. It was presented on 20 January, 1842.69

This plea differs from the others in many aspects. Its subjects are defined as the citizens (cetăţenii), and it is addressed to the diet, not the monarch. The context of its preparation included in the text is also different compared to the earlier pleas. The authors put major emphasis on the question of the changing of times. This served as the starting point of their argumentation as well. They considered their own age as an age of the extension of rights, and they based the whole plea on this idea. “Now, when the voice of freedom and liberty is heard in the whole enlightened world,” the authors characterize their age, “people not free are liberated, and those who were outside of the shield of the constitution will be taken in.”70 In the age of an extension of constitutional rights, the writers of the plea referred to “the holy voice of freedom” as well, the words of which, in their view, should be understood by the lawmaking establishment.71

The concept of freedom, which is a focal part of the argumentation, played a key role in the Romanian literature of the period. Gheorghe Bariţiu, the most influential Romanian publicist of the 1840s, stated in one of his early program articles, entitled Scriitori classicii (Classical Authors), that cultural development is the measure of the state of a nation. Thus, when writing about classics, he went beyond its interpretation as the highest stage of literature and described it as the desirable state of nations. Using Herder’s analogy, he saw it as the adulthood of the nation, which he considered to be a living entity, and the pinnacle of its development. He declared freedom to be the most important precondition of achieving this state, which made the “development of the forces” and the work of the genius possible. Considering this from the opposite point of view, he interprets the loss of freedom as the extinction of the medium providing for the flourishing of the nation and as the starting point of the nation’s death.72

The authors of the plea see the state as the depositary of freedom interpreted in this way. The diet, as a “representative establishment,” has the task of guaranteeing this to the people governed by forming law and order and contributing to the material and intellectual welfare of the people,73 which is the most important long-term aim of the plea itself. The authors also consider that its task is to bind outsiders to the country and lift up people who have been deprived of their rights to the status of active practitioners of rights. They think that acting this way ensures that all of the people can enjoy the benefits of the constitution and the delights provided by it, which indirectly strengthens the security of the homeland.74

One finds another positive legal argument in the plea, in addition to the one concerning the spirit of age and freedom. This one is a method familiar from the Supplex Libellus Valachorum, referring to existing but neglected rights. The authors of the plea of 1842 were also asking for the restoration of these rights and, through this restoration, the improvement of the situation of the Romanians. The real difference between the two documents is that in the plea of 1842 the demand for the restoration/reestablishment of rights is not an integrated part of the framework of a social contract anymore. The authors simply used the trope according to which the Romanians of Fundus Regius, as the oldest inhabitants, had these rights when the Hungarians invaded the Carpathian Basin as a historical argument. This situation, according to their interpretation, was not changed by the Hungarian conquest of the Carpathian Basin or by the arrival of the Saxons. Their rights were confirmed upon the arrival of the Hungarians and the Saxons, so they considered all privileges on the land of Fundus Regius valid for the Romanians as well. They interpret the Andreanum of Andrew II in this way, but they also refer to several monarchial decrees from the eighteenth century.75

Based on all of this, the authors question even the notion that Fundus Regius should be called Saxon Land. They support this idea with the argument that according to the census of 1838, most of the inhabitants of the region were Romanians, and the privileges of the territory had not been granted exclusively to the Saxons by Andrew II. They also tried to annul the argument of the Saxons, according to which, although they only rule one-sixth of the country, they pay one-third of its taxes. The authors consider it a false argument, since most of these taxes were paid not by Saxons, but by the Romanians of Fundus Regius.76 Thus, they introduce the Romanians as legal equals to the Saxons, but superior in numbers and representing greater economic power.

On the basis of this, they request that they be repositioned into their existing civil liberties, which had been taken away from them by some “egotist elements”77 of the Saxon nation. As opposed to earlier pleas, the authors do not simply avoid mentioning the deprivation of rights; there is no discussion of the corruption of acts either, the only problem supposedly being the execution of these acts. As a consequence, when the administration acknowledges these rights again and ensures their execution, the situation of the Romanians will be reestablished.78

What practical steps did they consider taking in order to reestablish the status of the Romanians? One of the aims of the plea was to solve the administrative and religious representation of the Romanian inhabitants, since the Romanians did not delegate any of the representatives of Fundus Regius to the Diet. The gravity of this issue derived from the privileged role of the representatives of interests. The authors, as was noted at the beginning of the plea, considered the representatives to be the depositary of the financial and intellectual welfare of the people through their ability to establish justice, law and order, which were seen as the preconditions of the flourishing of an organic nation. Without representation, their “misfortunes” would not be heard, and no one would attempt to remedy them. According to the petitioners, the Saxons, who were in control of the political and administrational institutions, worked only to secure their own interests. Their aim was to reap all the benefits of the administration and, since there were no proper regulations, to exclude the Romanians from every level of administration, even including the administration of the villages.79 Although according to the authors of the plea the Romanians had a youth “properly trained for all intents and purposes,” they were never given access to positions within the administration. Like the sons of lesser nobility, they were not welcomed by the Saxons to work with their magistrates. The administration tried to discourage them from pursuing professions, and if they do not succeed, there is no hope of any kind of magisterial promotion.80

The other significant question for the Romanians was the matter of the county and town bursaries. Since the Saxons reserved the right to manage these institutions themselves, the incomes of the bursaries were used for the benefit of the financial and intellectual welfare of the Saxons. They helped further the education of Saxon students with scholarships from these bursaries, and they also came to the aid of the Saxon churches with significant amounts of money, while the Romanians were excluded from these benefits. According to the Romanians, this was done deliberately in order to ensure that the Romanians remained uneducated. Education, they believed, was the only path to cultivation, which was important for the development of the nation. The authors thought that this was motivated by fear: “If they are denied ways to earn their bread, then the great things born of the genius, the spirit, go into a deep sleep. A dream falls over them, and they are suffocated if their body has no ailment.”81 Thus, according to the authors of the plea, the Saxons were afraid of the awakening national consciousness and national spirit of the Romanians. From the Romanian point of view, funds were available to finance education, and the development and spread of culture would lead to works of genius so that the nation would be able to fulfil its fate and reach its classical state.

These demands were justified with the mention of several other financial grievances. According to the authors, this fear is the reason why the Saxons excluded the Romanians and the Hungarians from the guilds, and this is why the Romanians of Fundus Regius did not have the right to engage in forestry or tavern keeping and had no share of the yields from the common lands.82 Another disputed issue in the plea is the question of the tithe, since the Romanians had to pay the tithe to the Saxon clergy instead of their own Orthodox clerics. The latter had to do their own husbandry, and, as the plea puts it, even the Greek Catholic clerics get only a small amount of money as a favor.83 Similarly, the issue of boundaries arose after the agricultural transformations of the age. The bishops complained that the Saxons held back the related documents, and in cases of disputes, the Romanian communities could not prove that they had owned certain lands for several generations. According to them, the Saxons used legal acts to take away these lands, thus stealing the ancient heritage of the Romanians. As far as the petitioners knew, the Saxons established special committees to control the boundaries and drive away the Romanians or impoverish them in Fundus Regius. In their assessment, this practice was possible because the first level of jurisdiction was in Saxon hands, as was the highest judiciary forum.84

The fate of the document did not differ much from the fate of the earlier documents. It was sent to committee after a short debate at the diet; the committee asked the Saxons to give an assessment, and the Saxons refused to discuss the plea. It surfaced again in February, 1843. This is when it was sent to the Systhematica Deputatio, which rejected it.85

If one examines the pleas side by side, the key concept in each of them, with the exception of the plea of 1838, was repositioning (reponere, repositione, repunere), but the meaning of this concept changed significantly over time. In the case of the Supplex Libellus Valachorum, the argumentation based on social contracts and the customary law definition of feudal rights was replaced with a positive legal argumentation built on actual acts of laws. On the other hand, in the plea of 1838 the concept of handling nations as living beings is unmistakably recognizable, together with the idea of their rise through civilization and culture. This change of paradigms caused a change in the aims of the pleas as well. Eventually, their main aim was not merely to secure rights, but to establish auspicious circumstances for the development of a nation conceived of as a living being. The goal became to prepare for cultural development and establish the conditions necessary for culture to flourish.86 Thus, although at first glance the argumentations of the documents seem to have a lot in common, in fact one can clearly discern how the community-related concepts of Transylvanian Romanian Romanticism started to gain ground, while at the same time the tropes appearing in the Supplex Libellus Valachorum started to undergo a transformation.

Together with the conceptual changes, significant changes can be detected both in the structure of Transylvanian Romanian society and in its relationship with the public spheres. By the end of the 1830s, a clerisy had been formed, which was low in number, but together with the foundation of the Transylvanian Romanian press, it acquired significant cultural influence. Beginning in the 1820s, the Transylvanian press began to quicken, and with the establishment of the Hungarian Erdélyi Híradó in 1831, a liberal newspaper came into existence, which aimed not only to report news, but also to form public opinion. The Romanians followed this trend with a bit of a delay. In 1837, after the unsuccessful attempts of Ioan Barac, George Bariţiu founded the papers Foaie pentru minte, inimă şi literatură and Gazeta de Transilvania, which soon became the central media of the Romanian clerisy. The importance of the two newspapers is eloquently illustrated by the fact that at its first appearance the former had about one hundred subscribers, but by 1842 this number had grown to 630 and by 1848 it had grown to 820.87 The press became a part of everyday life and the most important opinion shaper by the 1840s, as was true in the case of Hungarian politics. Organs of the press involved groups of people in political life who earlier had had only shallow contact with it; with the establishment of new genres, it altered the frameworks of the expression of political opinion; and by furthering the emergence of a new terminology, it changed the linguistic elements of politics as well.88 In this aspect, the two Romanian papers of Brassó (Braşov) can be considered exemplary. Thanks to the work of Bariţiu, these papers added huge intellectual energies to some of the political debates. Their significance is further enhanced by the fact that through translation of the most important Hungarian and Saxon writings, the papers created opportunities for Romanian intellectuals to join these debates in their own language. As intellectuals were beginning to gain ground in this way, the influence of the bishops as political leaders was weakening, and with the publicity of the press, the role of the pleas as the only forum for the demonstration of public political opinion was over. In light of all this, the 1830s bore witness to radical changes in the ideological foundations of political thinking, in the ways and scope of political activity, and in the social status of the participating entities. Taking this into consideration, we can say that although the Transylvanian Romanian political movements of the 1790s, 1830s and 1840s are intricately intertwined, they cannot be discussed as part of a single movement or period.

 

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1 David Prodan, Supplex Libellus Valachorum (Bucharest: Editură Ştiinţifică, 1967).

2 Ladislau Gyémánt, Mişcarea naţională a românilor din Transilvania între anii 1790 şi 1848 (Bucharest: Editură Ştiinţifică şi Enciclopedică, 1986).

3 Dan Berindei, Constituirea României Moderne (1821–1878), vol. 7/1 of Istoria Românilor, (Bucharest: Editură Enciclopedică, 2003).

4 Ioan-Aurel Pop and Ioan Bolovan, eds., History of Romania: Compendium (Cluj-Napoca: Romanian Cultural Institute, 2006).

5 Sándor Pruzsinszky, Természetjog és politika a XVIII. századi Magyarországon: Batthyány Alajostól Martinovicsig (Budapest: Napvilág Kiadó, 2001), 79–83.

6 For further information about the medieval political order of Transylvania see: László Makkai, “Transylvania in the medieval Hungarian Kingdom (896–1526),” in The History of Transylvania, Hungarian Electronic Library, accessed April 15, 2016, http://mek.oszk.hu/03400/03407/html/75.html.

7 Karl Anton von Martini, “Philosopher of Law: The Professor of Natural Law and Public Administration at the University of Vienna,” in Late Enlightenment, ed. Balázs Trencsényi and Michal Kopeček, vol. 1 of Discourses of Collective identity in Central and Southeastern Europe (1770–1945): Texts and Commentaries (Budapest–New York: Central European University Press, 2006), 129.

8 Ibid., 79–83; Sándor Eckhardt, “A contract social,” Minerva 2 (1923): 135–61; Zoltán Gábor Szűcs, “Természet, jog, teológia: Egy fejezet a politikai diskurzus történetéből a 18. századi Magyarországon,” Aetas 26, no. 2 (2011): 99–114; Ernst Cassirer, A felvilágosodás filozófiája (Budapest: Atlantisz Könyvkiadó, 2007), 299–322.

9 The Supplex Libellus Valachorum movement, according to Zoltán I. Tóth, began in 1789 in order to secure rights for the Romanian people in Transylvania. The list of the participants and the authorship of the plea is still a question. Zoltán I. Tóth suspects Iosif Méhesi and Samuil Micu to have been the authors, but several other personalities of the Transylvanian Romanian Enlightenment participated in the work. The first version of the plea was submitted to the court on 11 March, 1791. After its failure, it was followed by a second Supplex Libellus Valachorum in 1792. Zoltán I. Tóth, Az erdélyi román nacionalizmus első százada 1697–1792 (Máriabesnyő–Gödöllő: Attraktor, 2005), 259–66.

10 Victor Neumann, Essays on Romanian Intellectual History, trans. Simona Neumann (Timişoara: Editura Universităţii de Vest, 2008), 28. For further information regarding the national movements of the period in the region of the Hungarian Kingdom see: R. J. W. Evans, Austria, Hungary and the Habsburgs: Essays on Central Europe c. 1683–1867 (New York: Oxford University Press, 2006), 156–69.

11 Prodan called the historical argument of the plea a naive interpretation (Prodan, Supplex Libellus Valachorum, 459–62), while Zoltán I. Tóth considers it a “constrained and perfectly erroneous historical concept” I. Tóth, Az erdélyi román nacionalizmus első százada, 260.

12 Tripartitum: the collection of the customary laws of the Hungarian Kingdom, compiled by István Werbőczy, published for the first time in Vienna in 1517. István Werbőczy, Hármaskönyve (Budapest: Magyar Tudományos Akadémia, 1894), V–XXXII.

13 Regarding history becoming a tool of politics in the case of the Transylvanian school, especially in the case of Ioan Budai-Deleanu, one of the presumed authors of Supplex Libellus Valachorum, see: Neumann, Essays on Romanian Intellectual History, 16–17.

14 Károly Köllő, ed., Supplex Libellus Valachorum (Bucharest: Kriterion Könyvkiadó, 1971), 75.

15 “Propria voluntate, dexteram dantes, Dominum sibi elegerunt Tuhutum, Hungarorum Ducem, ac fidem iureiurando firmaverunt.” Ibid., 49.

16 “Utrique genti, Hungaricae scilicet et Valachicae, a tempore quo sub Duce Tuhutum in unam societatem coaluere communia erant.” Ibid., 50.

17 “Hungaricae scilicet et Valachicae, a tempore quo sub Duce Tuhutum in unam societatem coaluere communis erant.” Ibid., 50

18 “Ad concivilitatem.” Ibid., 58.

19 Ibid., 49–51, 57–58.

20 Ibid., 62–64.

21 Ibid., 48–50.

22 Werbőczy, Hármaskönyve, 27–28.

23 Ibid., 47.

24 “Iniqua duntaxat temporum illorum sorte” Köllő, Supplex Libellus Valachorum, 47.

25 Ibid., 52–54, 58–61.

26 Ibid., 50–53; Werbőczy, Hármaskönyve, 27–28.

27 Approbatae Constitutiones regni Transylvaniae et Pratium Hungariae eidem annexarum: the law corpus of the Transylvanian legislation, codified between 1541–1653, compiled on the order of Prince György Rákóczi II in 1653. (Sándor Kolosvári and Kelemen Óvári, trans., Magyar Törvénytár: 1540–1848. évi erdélyi törvények (Budapest: Franklin Társulat, 1900), 1.) The use of Approbatae Constitutiones as an argument is not unique to the Supplex. As highlighted by Victor Neumann, starting with Inochenţie Micu-Klein, the herald of the Romanian Enlightenment, this played an important role in the political struggles of the Romanians. Victor Neumann, Tentaţia lui homo europaeus (Bucharest: Polirom, 2006), 139–40.

28 Köllő, Supplex Libellus Valachorum, 53–57.

29 Approbat. Const. P: I. T: VIII. Art.: I, in Kolosvári, Óvári, Magyar Törvénytár. 1540–1848. évi erdélyi törvények, 22. “Quamvis Valachica Natio in Regno inter Status reputata non sit et ipsius religio e receptis non sit, nihilominus tamen, donec illae propter emolumentum Regni tolerabuntur, sequentia ecclesiastici observabunt etc.” Köllő, Supplex Libellus Valachorum, 54–55.

30complures Patriae cives” Ibid., 56.

31 Ibid., 55–58.

32 Ibid., 60–61.

33 Szűcs, “Természet, jog, teológia,” 103.

34 “qui equidem pura et simplicia tum hominis, cum civis iura intellexit” Köllő, Supplex Libellus Valachorum, 64.

35 Ibid., 62–69. The myth that the monarch did everything to help the people of the monarchy and his orders were hindered locally was widespread among the people. For further information: Gyöngy Kovács Kiss, A Habsburg-uralom erdélyi kiteljesedésének folyamata a korabeli magyar emlékirodalom láttatásában, 17. század vége – 19. század eleje (Kolozsvár: Erdélyi Múzeum-Egyesület, 2000).

36 A revolt of Transylvanian Romanian peasants at the turn of 1784–1785. Its leaders were three serfs: Horea, Cloşca and Crişan. I. Tóth, Az erdélyi román nacionalizmus első százada, 222–28.

37 Köllő, Supplex Libellus Valachorum, 62–64, 68–69.

38 Ibid., 69–72.

39 “aequitati naturali principiisque societatis civilis pactisque conventis inniti petita haec e supradictus abunde patet” Ibid., 70.

40 Ibid., 47; On the identity elements of the Romanian peasants of the Apuşeni Mountains at the end of the eighteenth century see: Áron Kovács, “A magyarellenesség és a nacionalizmus kérdése a Horea-felkelés kapcsán,” in XI. RODOSZ Konferenciakötet, ed. Tünde Székely (Cluj-Napoca: Romániai Magyar Doktorandusok és Fiatal Kutató Szövetsége, 2010), 209–21.

41 “nulla Nationis huius quamdiu eius Clerus et Nobilitas in abiecto statu conservabitur sperari possit cultura, proinde nec industriae ulla accessio, sed potius ignorantiam, desidiam et ignaviam cum omnibus quae abinde generari solent vitiis maiora adhuc apud ipsam, in desolationem Provinciae” Köllő, Supplex Libellus Valachorum, 69.

42 On the Viennese government’s educational policy in the Enlightenment age and the connection between education and state interests, see: Iacob Mârza, “Conceptul de educaţie în gândirea iluminist-romantică a românilor din Transilvania,” in Istoria României prin concepte: Perspective alternative asupra limbajelor social-politice, ed. Victor Neumann and Armin Heinen (Iaşi: Polirom, 2010), 81–98.

43 For the pleas written between 1792 and 1834 see Gyémánt, Mişcarea naţională a românilor din Transilvania între anii 1790 şi 1848, 119–29, 250–68.

44 Ioan Lemeni was Greek Catholic bishop of Făgăraş from 1833 until 1850. Szinnyei József, Magyar írók élete és munkái (Budapest: Hornyánszky Viktor Könyvkiadóhivatala, 1900), 7:1017–18.

45 Vasile Moga was Romanian orthodox bishop of Transylvania from 1811 until 1845. Nicolae Iorga, Istoria Bisericii Româneşti şi a vieţii religioase a românilor (Bucharest: Editura Ministeriului de Culte, 1930), 2:221, 238.

46 Ferenc Wlassits was lieutenant-general, the Ban of Croatia. In 1833 he was appointed as plenipotentiary commissioner of the court of Transylvania, a position from which he was displaced in November of the same year. Ambrus Miskolczy, “Társadalom, nemzetiség és ellenzékiség kérdései az erdélyi magyar reformmozgalomban (1830–1843),” Századok 117 (1983): 1077.

47 The authors may be referring to the peasant movements of 1819 and 1831 in the Apuşeni Mountains.

48 Ioan Lemeni and Vasile Moga, “Memoriului episcopilor Lemeni şi Moga 1833/1834,” Published as an annex of László Gyémánt, “Memorilor românilor ardeleni din 1834,” Anuarul Institutului de Istorie şi Arheologie Cluj-Napoca 17 (1974): 113–14. Zoltán I. Tóth, Az erdélyi és magyarországi román nemzeti mozgalom (1790–1848) (Budapest: Akadémiai Kiadó, 1959), 66–67; László Gyémánt, Mişcarea naţională a românilor din Transilvania între anii 1790 şi 1848, 130; Berindei, ed. Constituirea României Moderne, 174–75.

49 “Quod supplicans natio Vallachica nec a natura, neque etiam per Leges a Juribus et Beneficiis regnicolaribus exlusa sitc” Lemeni and Moga, “Memoriului episcopilor Lemeni şi Moga 1833/1834,” 111.

50 “Jure […] in ipsa natura humana radicentur” Ibid., 113.

51 “natura enim eandem quoque qualificatam esse, quo juribus concivitatis”

52 “illa ex animis ejus numquam evelli poterunt ita” Ibid., 114–15.

53 “Cum ergo per santionandam publicam Legem super Repositione Valachorum in Statum avitum systema Transilvaniae non modo turbaretur” Ibid., 112.

54 Ibid., 114–15.

55 Ibid., 114. Beginning in the second half of the eighteenth century, a new, agrarian-centered mercantilist economic policy began to emerge in the Habsburg and Hohenzollern monarchies. Its representatives Johann Heinrich Justi (1720–1771) and Joseph Sonnenfels (1733–1817) united the economic principles of the Austrian cameralism with the economic control principles of Western Europe of the eighteenth century. Sonnenfels, who had a greater impact on the Habsburg state and the establishment of the Josephinist views than Justi, made a case for the expansion of cultivated lands, technical innovation, and an increase in the number of producers, that is, for the settling of peasants, whose role was becoming increasingly important as a result of this. János Barta, Ifj., A felvilágosult abszolutizmus agrárpolitikája a Habsburg- és Hohenzollern-monarchiában (Budapest: Akadémiai Kiadó, 1982), 148–60.

56 Endre Arató, A magyarországi nemzetiségek nemzetiségi ideológiája (Budapest: Akadémiai Kiadó, 1983), 181. The plea was first published among the documents of the 105th assembly of the diet under number 77, with the title “The Plea of the Not United Greek Bishop,” in the documentary book of the Diet: Erdély Nagyfejedelemség 1837ik esztendőben Aprilis 17én N. Szeben szabad királyi várossában ki-hirderett országgyűlésének iromány könyve (Szeben: Hochmesiter Márton, n.d.) 203–11. The Romanian translation of the text was published in the 1840 volume of the journal Foaie pentru minte, inimă şi literatură.

57 Georg G. Iggers, The German Conception of History (Middletown: Wesleyan University Press, 1983), 14–17.

58 Vasile Moga, “Rugamintea episcopului Grecesc neunit,” part 1, Foaie pentru minte, inimă şi literatură 3, no. 44 (1840): 345.

59 Iggers, The German Conception, 61–73. The ideas of Herder have been present in the cultures of the Hungarian Kingdom and Transylvania since the end of the eighteenth century. For the responses to these ideas see: János Rathmann, Filozófia és irodalom határán (Budapest: Kalligram, 2014), 135–45.

60 Moga, “Rugamintea episcopului Grecesc neunit,” part 1, 345–46.

61 Idem., “Rugamintea episcopului Grecesc neunit,” part 2, Foaie pentru minte, inimă şi literatură 3, no. 45 (1840): 353.

62 The person preparing the legal argumentation of the plea cites the first sentence of the 60th articulus novellares of 1791 (De libero relgionis Graeci ritus dis-unitorum exercitio) only partially: “Religio orientalis graeci ritus non-unita, quae juxta leges hujus provinciae hactenus inter tolleratas religiones recensita fuit” and referring to its past tense, it considers the Romanians as a people of accepted and not just tolerated religion. The whole of the article does not say that Orthodoxy is an accepted religion, but it supports the Orthodox people in their free practice of religion and orders that they must be treated properly according to their feudal state. Concerning public taxation and other services, they should not be encumbered more than others. Kolosvári and Óvári, Magyar törvénytár: 1540–1848. évi erdélyi törvények, 546.

63 Moga, “Rugamintea episcopului Grecesc neunit,” part 2, 353.

64 Ibid., 354.

65 Ibid.

66 Gyémánt, Mişcarea naţională a românilor din Transilvania între anii 1790 şi 1848, 256–59.

67 The draft itself was met with an intense response among Romanians. Several of the most important Romanian program articles of the first part of the nineteenth century were formulated at this time, for example the Românii şi maghiarismul by Bariţiu and the O tocmeală de ruşine şi o lege nedreapta by Simion Bărnuţiu.

68 Aron Budai was the secretary of the Gubernium, the central government of Transylvania. He also served as a notary of the Romanian Orthodox Diocese of Nagyszeben (Sibiu). His brother was Ioan Budai-Deleanu, a prominent figure of the Transylvanian Romanian Enlightenment. Annalile Societatei Academiei Romane: Sessiunea annului 1870 (Bucharest: Noua Typographia a Laboratoriloru Romani, 1871), 3:115.

69 Ibid., 259–62.

70 Ioan Lemeni and Vasile Moga, “Rugămintea episcopilor Moga şi Lemeni,” in T. V. Păcăţian, Cartea de aur (Sibiu: n.p., 1902), 1:159–60.

71 Ibid., 150–51.

72 G. Bariţiu, “Scriitori clasici,” Foaie pentru minte, inimă şi literatură 1, no. 16 (1838), 123–28.

73 Similarly to the plea of 1837, in this document the contention is also made that the spread of morality and culture and the “intellectual welfare” of the people are the key to the nation’s development.

74 Lemeni and Moga, “Rugămintea episcopilor Moga şi Lemeni,” 151, 154–55.

75 Ibid., 151, 153–54. Moga started to collect the legal arguments in 1840, when he asked the Orthodox clergy to send all old documents that could be used for national purposes to the archives of the commissary. Gyémánt, Mişcarea naţională a românilor din Transilvania între anii 1790 şi 1848, 140.

76 The question of the economic roles and influence of the Saxons was brought up by the Saxons during the debate concerning the official national language in 1842. The authors were reacting to this. Ibid., 260. For example, David Prodan presents the commercial data of the period between 1830 and 1832 to demonstrate the role of the Romanian traders. In this period, the Romanian and Greek traders paid seventeen and a half times as much in tolls as the whole Saxon trading community. Prodan, Supplex Libellus Valachorum, 429.

77 Egotism as a concept also appears later in the article Unele pregătiri of Gheorghe Bariţiu. In this work, the author names rationality as the only source of just law and the foundation of the relationships among people. Egotism is the counter-concept of a just law. It is “a passion outside of the realm of the intellect.” Georgie Bariţ, “Unele pregătiri,” part 2, Foaie pentru minte, inimă şi literatură 7, no. 5 (1844): 33–35.

78 Lemeni and Moga, “Rugămintea episcopilor Moga şi Lemeni,” 151–54.

79 Ibid., 154–55.

80 Ibid., 156–57; in the 1840s, it resulted in serious responses when the Saxon authorities declined the application of three young people from Brasov, who graduated from the Piarist Lyceum of Cluj, for an internship, referring to the state of their religion as “tolerated.” Ambrus Miskolczy, A brassói román levantei kereskedőpolgárság kelet-nyugati közvetítő szerepe (Budapest: Akadémiai Kiadó, 1987), 140.

81 Lemeni and Moga, “Rugămintea episcopilor Moga şi Lemeni,” 157.

82 Ibid., 156–58.

83 Ibid., 159.

84 Ibid, 160.

85 Gyémánt, Mişcarea naţională a românilor din Transilvania între anii 1790 şi 1848, 262–68.

86 The primarily literal and cultural programs and ideas that aim to build the foundations of the national culture are very prevalent among the Romanian intellectuals of the period. These are present in the press until 1848. A non-exhaustive list of examples: A din Ungaria, “Romănii în privinţa literaturei,” Foaie pentru minte, inimă şi literatură 6, no. 25–26 (1843); Bariţiu, “Scriitori clasici”; Bariţiu, “O încercare de traducţie,” Foaie pentru minte, inimă şi literatură 8, no. 33 (1845); Timotei Cipariu: “Critica si redactorii,” Organulu Luminarei 1, no. 2 (1847); Ioan Rusu, “Ceva despre ortografia latino-românească,” Foaie pentru minte, inimă şi literatură 1, no. 10 (1838); Ioan Rus, Icoana pamentului sau carte de geografie, vol. 1 (Blaj: Tipografica Seminarului, 1842); J. J. Mány, “Idei despre creşterea poporului,” Gazeta Transilvaniei 9, no. 57 (1846).

87 George Em. Marica, Studii de istorie şi ideologie culturii române ardelene din secolul al XIX-lea (Cluj-Napoca: Ed. Dacia, 1977), 1:19–44.

88 For further information on the Hungarian context see János Veliky, “A programalkotó politikai viták nyelvi-kulturális kerete a reformkor második évtizedében,” Irodalomtörténet 42, no. 3 (2011): 291–320.

Volume 5 Issue 1 CONTENTS

pdfSara Lagi

Georg Jellinek, a Liberal Political Thinker against Despotic Rule (1885–1898)*

 

Georg Jellinek is commonly thought of as one of the most prominent representatives of German legal positivism. In this article I look at Georg Jellinek not only as a legal theorist, but also as a political thinker of liberal inspiration. In this sense, I seek to show some key continuities and connections between the fundamental aspects of his legal, positivistic theory and his political vision of liberal inspiration, and between his stay in Vienna and his move to Germany.

Keywords: legal positivism, liberalism, sovereignty, fundamental rights, limits of power.

Georg Jellinek as a Political Thinker: Introducing the Personage

“We hope and believe that society will be able to find and implement something that can preserve it from the lowly moral and spiritual leveling: the recognition of the rights of minorities!”1 This quote, which one might easily attribute to John Stuart Mill or Benjamin Constant, is taken from the work of Georg Jellinek (1851–1911), a legal theorist who deserves the attention of scholars of the history of political thought. In this essay, I examine how this prominent thinker,2 commonly associated with German legal positivism and the positivistic foundation of the law, can be seen and considered as a political thinker of strong liberal inspiration.

With this purpose, I analyze the period between 1885 and 1898,3 when Jellinek published a series of scholarly works on legal and political theory and the history of political ideas in which he identifies two capital (legal and political) problems: the problem of granting fundamental rights and the problem of neutralizing and combating despotic rule, notably the tyranny of the majority. These are both issues belonging to the tradition of European liberalism. John Gray proposes a general definition of liberalism, observing that

 

common to all variants of the liberal tradition is a definitive conception, distinctively modern in character, of man and society […] [i]t asserts the moral primacy of the person, […] it confers on all men the same moral status, […] it affirm[s] the moral unity of the human species and […] [i]t is meliorist in its affirmation of the corrigibility and improvability of all social institutions.4

Yet when focusing our attention more precisely on the nineteenth century, we observe that the “map” of liberalism at the time was complex. When we use the term, we are referring to a complex tradition of political thought characterized by a variety of authors, approaches, and shades of nuance: from Benjamin Constant to Alexis de Tocqueville, from Madame de Staël to Sismondo de Sismondi, from J. S. Mill to T. H. Green, from the German state-centric liberalism to the English one.5 Nonetheless, within this variety, we can identify some key “shared principles.” As D. J. Manning clearly explains in his popular work on Liberalism,

 

the liberty that the nineteenth-century liberal believed his intellectual ancestors to have secured for the citizen, indeed, the liberty that made a man a citizen, is liberty defined in law. Liberty is the creation of legal restraint. It is to be found where restraint is justly imposed on government by constitutional law. […] Liberty thus understood is not a power over others […] the power of a master over his slave. It is security from interference which makes a man free.6

This implies a view of power as limited in order to protect individual freedom, minorities and “society’s dynamism.”7 At the same time, Manning reminds us that nineteenth-century European liberalism also thought that “individualism and the energy it generates were threatened by the tyranny of social conformism.”8

A particular vision of power and a kind of fear begins to emerge, for example, in the writings of people like Constant, Mill, and Tocqueville. In his reflections on the French Revolution Constant clearly criticized the crowd and the conforming masses. Both Tocqueville and Mill denounced the “tyranny of prevailing opinion” and the issue of “massification.”9

Thus, the question arises, in what sense can Jellinek be situated within nineteenth-century liberalism? He was a liberal thinker because he believed in the necessity of limited power—in the necessity of establishing boundaries of governmental power by means of a constitution and guarantees of public law in order to avoid despotic rule—and he feared social conformism and the negative implications it could have in terms of social progress and development.

The attention Jellinek paid to the problem of limited power and the issue of social conformism represents a point of political and ideological affinity between him and thinkers such as Constant, Tocqueville, and Mill, an affinity Jellinek recognized himself. In all his works, including for instance Das System der subjektiven öffentlichen Rechte (System of Subjective, Public Rights, 1892), Die allgemeine Staatslehre (General Theory of State, 1900), Die Erklärungen der Menschen und Bürgerrechte (The Declaration of the Rights of Man and of the Citizen, 1895), and Das Recht der Minoritäten (The Right of Minorities, 1898), he referred to the ideas of these three prominent authors, whom he regarded as personal, important points of reference.10

As Manning writes, the protection of fundamental rights is central to nineteenth-century liberalism, a protection which is based on the “existence of legal restraints.” This is true for Jellinek too, in the sense that in all his works, and notably in his Das System der subjektiven öffentlichen Rechte, he delineates a system of legal protection of fundamental rights: legal protection which implies, as I will illustrate, a particular way to establish and justify conceptually fundamental rights within a theory of law and state which is positivistic.

This means that Jellinek’s liberal inspiration and belief cannot be separated from his legal reflections on the nature and components of the state and law. In other words, it cannot be separated and isolated from his idea that sovereignty belongs to the state alone. How did Jellinek balance his belief in a power that had to be limited with his idea of sovereignty? And what kinds of connections exist between Jellinek’s liberal inspiration (according to the definition of nineteenth-century liberalism outlined above) and his legal positivistic theory? In order to respond to this question, I will begin with a discussion of the period Jellinek spent in Vienna.

Jellinek in the Austro-Hungarian Empire (1879–1889): The Problem of Minorities

Georg Jellinek (1851–1911) was born in Leipzig into a Jewish family of German culture and language. His father, Adolf Jellinek, was a rabbi and one of the most important scholars of Jewish theology of hist period. Georg Jellinek studied history, philosophy and law in Germany. In 1879, he became associate professor at the University of Vienna, where he lived and taught until 1889, when he decided to resign because of growing anti-Semitism and personal hostility towards him. In 1891, he moved to the University of Heidelberg, where he “inherited” the Chair of International Law, previously held by Johann Kaspar Bluntschli.11

In Heidelberg Georg Jellinek published his most relevant and innovative works on the doctrine of law and the state, while also paying attention to politics and political changes in Germany and in the Austro-Hungarian Monarchy. Even after Jellinek moved to the University of Heidelberg, he kept studying the Austro-Hungarian political and juridical system.12

Jellinek spent intense and problematic years in Vienna, where he had firsthand experience of the complex political reality of the Austro-Hungarian Monarchy. Here he was particularly struck by the numerous and often violent political contrasts characterizing the Austrian Imperial Council. Jellinek dedicated to this particular issue an interesting essay entitled Ein Verfassungsgerichtshof für Österreich (A constitutional court for Austria, 1885), with the declared purpose of understanding how better to stabilize the Cisleithanian part of the Empire after the Settlement of 1867.13

In his opinion, the crucial component of the contrasts was the unsolved Austrian national question (Nationalitätenfrage) and, more precisely, the fact that the Austrian parties residing in the Reichsrat were not political but “national.”14

Jellinek stresses how most of the Austrian political parties embodied precise and defined national identities. Behind these parties there were specific national groups whose interests often conflicted.15 The Austro-Hungarian Monarchy was in fact a multinational state, made up of Germans, Hungarians, Czechs, Poles, Ruthenians, Romanians, Italians, Croats, Serbs, Slovaks, and Slovenes. As a result of the Settlement of 1867, the Habsburg Empire became the Austro-Hungarian monarchy. The Settlement was between two states which remained, respectively, “united” as political entities, though people of numerous different nationalities resided in each.16

In Jellinek’s opinion, the national connotations and attachments of the Austrian parties made the relationship between parliamentary minority and majority particularly controversial and difficult. The impact of this complicated situation on the legislative process was often disastrous. Sometimes a minority felt mistreated or abused by the majority, and sometimes the majority vehemently opposed bills that would have given more rights or freedoms to a national minority.17

In legal terms, in Jellinek’s opinion, the Austrian Imperial Council, which was the main and most important legislative body of the Empire, was characterized by widespread instability and “parliamentary illegality” (Unrecht).18

As a professor of law living in Vienna, Jellinek identified the Verfassungsgerichtshof (the Constitutional Court) as a perfect, legal solution to that problem. Jellinek’s proposal can be better understood and clarified if we briefly take into account the Habsburg legal-political tradition embodied by the Imperial Court (Reichgerichtshof).

The Imperial Court was officially established in 1867 on the occasion of the Settlement, which transformed the Austrian Empire into the Austro-Hungarian constitutional dual monarchy. The Imperial Court was given relevant powers and tasks. It served to protect the rights of citizens, although it was not a court of cassation, i.e. it was not charged solely with the task of verifying the interpretation of the law given by a court of lower instance. It acted to neutralize potential conflicts between the Länder (the crownlands) and the central authority, and it could act to supervise the boundaries between administrative and judicial authorities, as well as between regional and state administrative authorities.19 According to Jellinek, the main challenge was to improve the traditional Austrian Imperial Court by transforming it into a true Constitutional Court.

He called for a Constitutional Court to make decisions about: 1. potential conflicts of competences between ordinary legislation and constitutional legislation; 2. conflicts of competences between the imperial legislation and the legislation of the crownlands.20

More precisely, as far as the potential conflict of competences between ordinary and constitutional legislation was concerned, Jellinek clearly proposed an interesting legal mechanism which would impact, for example, one of the most important twentieth-century jurists and scholars of constitutional law, Hans Kelsen.21

Jellinek’s plan for an Austrian Constitutional Court recognized the right of a minority to submit bills to the Constitutional Court that could be considered detrimental to the constitutionally granted minority’s rights and freedoms.22 In this sense, Jellinek’s plan for a Constitutional Court had two main purposes: it aimed at improving and enforcing the division of competences between the imperial and crownlands authorities (which Jellinek judged to be utterly unclear and insufficient) and, moreover, it aimed at better defending the constitution from potential excesses and transgressions committed by the parties, parliamentary organs and, more notably, aggressive majorities. Through better protection of the constitution, better protection of minorities could be granted, and in Jellinek’s opinion this was particularly useful and vital within the complex context of the Austrian Imperial Council, which was characterized by tensions between conflictual national parties.23

Jellinek’s plan for a Constitutional Court was based on a substantial mistrust of the legislative body, in this specific case the Austrian Imperial Council, because the majority residing in the legislative body could abuse its power by imposing its will to the detriment of the minority. In this sense, the transformation of the Imperial Court into a Constitutional Court was the only way, in Jellinek’s opinion, to make the Austro-Hungarian monarchy a solid “constitutional state.” The idea itself is perhaps not groundbreaking, but one truly interesting aspect is to observe how profoundly political this plan was.24

In his 1885 work, Jellinek sought to arrive at a legal solution to an eminently political problem. This problem dealt with the protection of minorities from potentially illiberal laws wanted and pushed by the majority: the danger represented by a tyrannical majority was one of the major political issues with which Jellinek grappled all his life. As previously mentioned, in 1891 he moved to Heidelberg to teach international law. In Germany he continued to reflect on the problem of minorities; a problem that he had experienced firsthand in Austria. If in the Austro-Hungarian monarchy Jellinek mainly focused on the concept of minorities with a national and ethnic connotation, in Germany his attention shifted to political minorities. Yet, a fundamental political problem remained: to Jellinek, the protection of minorities was profoundly connected with the question of granting fundamental rights in order to combat any form of despotic rule.

Jellinek in Germany: His Jus-political Vision and His Rejection of Despotic Rule

While living in Vienna, Jellinek was struck by the effects of having a parliament made up of many different national groups. This complex reality might have stimulated his interest in the problem of minorities. He never forgot the Austrian experience, which is apparent in his work Das Recht der Minoritäten, in which he referred to the national component of the Austrian parties and the instability of the Austrian Imperial Council.25

Jellinek’s focus on minorities and the importance of providing them with concrete and efficient protection recalls nineteenth-century liberalism. Like many other prominent liberal thinkers, such as Constant, Tocqueville, and Mill, Jellinek considered the protection of minorities (both national and political) as a value per se, as prerequisite of every truly liberal society based on respect for personal and human dignity and recognition of a “space of freedom” that no government could abuse or limit.26

In terms of the history of political thought, Jellinek’s concern with the problem of minorities and their protection (which in my view must have been influenced by his Austrian experience) was profoundly connected with his idea of Selbstbeschränkung (self-limitation), which is the core concept of his theory of law and the state.27 What were the political foundations of this theory, and might we better understand these foundations if we take into account the definition of nineteenth-century liberalism given above?28

In 1892, when Jellinek was in Heidelberg, he published one of his major works: Rechtslehre: Das system der subjektiven öffentlichen Rechte. On the one hand, Jellinek proposed the classical concepts previously elaborated by Carl Friederich von Gerber and Paul Laband.29 Like his predecessors, Jellinek recognized sovereign power as belonging to the state alone. Also, he reaffirmed that only positive law exists. At the same time, he distanced himself from the traditional German legal doctrine when he wrote that the state limits itself by recognizing and providing fundamental rights.30 To better understand the difference between Jellinek’s legal conception and that of his predecessors it is worth noting that Gerber considered “individual rights as ‘objective’ reflections of the legal order,” and Laband defined rights and more precisely as “rights to liberty” and “norms for state power, which the state gives itself […] but they do not establish subjective rights of the citizens.”31 In other words, both Gerber and Laband actually theorized the principle that rights had to be understood correctly and considered a mere “reflection” of “the state-determined legal system.”

Unlike Gerber and Laband, Jellinek envisioned the state as a subject capable of limiting itself and, consequently, capable of granting a “space of freedom” to individuals by establishing “subjective rights.”32 In his works on legal theory, and most notably in Das System der subjektiven öffentlichen Rechte, Jellinek elaborates a compromise between the sovereignty of the state and fundamental rights by theorizing the legal protection of such rights by means of an act of state self-limitation with regards to individuals. In doing so, Jellinek conceptually ends up situating one of the capital principles of nineteenth-century liberalism within a legal positivistic theory, according to which these rights “are regarded and secured because of the existence of the state as the personified sovereign.”33

In this sense, there is profound link between Jellinek’s liberal spirit and his legal doctrine. I insist on this point because I think that even his work Das system der subjektiven öffentlichen Rechte (1892) can be considered, from the perspective of the history of political thought, a work of political theory and an excellent example of Jellinek’s political thought and attitudes.

While living and teaching in Austria, Jellinek proposed a legal solution to an eminently political problem. As we have seen, this particular solution, consisting in the creation of a Constitutional Court, had a clear and undeniable liberal connotation because it was based on the idea that minorities should be respected and protected. The Constitutional Court, in Jellinek’s view, could be a perfect antidote to the tyranny of the majority. In Das system der subjektiven öffentlichen Rechte, Jellinek theorized a positivistic foundation of fundamental rights based on the idea that the state was capable of limiting itself. In both cases, i.e. in his work on the Constitutional Court and his work on the subjektiven öffentliche Rechte, Jellinek was convinced, as a legal theorist and a political thinker, that granting and preserving fundamental rights implied protecting minorities and individuals from the abuses of despotic rule.

The central role played by this kind of problem in Jellinek’s intellectual and academic production is also clear in three of his writings dedicated to the history of political ideas and published in the 1890s, namely Hobbes und Rousseau (Hobbes and Rousseau), Adam in der Staatsrechtslehre (Adam in the theory of the state) and, primarily, Die Erklärungen der Menschen und Bürgerrechte (The declaration of the rights of man and the citizen).34

In the first two essays, Jellinek critically analyzed the tradition of natural law and its impact on European political thought and state organization, whereas in the third work he made a direct comparison between the Bill of Rights and the Declaration of the Rights of Man and of the Citizen. Despite evident differences in terms of content, all these essays shared the same questions: “is state power unlimited?” and “does the majority have absolute power?” I examine how Jellinek responded to these crucial questions.

In the first of the three abovementioned works, Jellinek outlined a history of political and juridical concepts with a strong focus on the tradition of natural law. As a positivist, Jellinek was vehemently anti-jusnaturalist, but the truly interesting aspect emerging from his analysis, particularly from his work on Hobbes und Rousseau, is that he considered natural law mere philosophy, a Weltanschauung, a dream, a vision, with no historical basis, and characterized by undeniable elements of despotism.35

The tradition of natural law had elaborated and justified the idea of state organization through the “paradigm” of the state of nature and the concept of a “contract” by means of which men would establish and legitimize political institutions. First and foremost, Jellinek criticized the tradition of natural law as a product of the imagination. He stressed that all natural law arguments were false because they were not based on historical experience.36

Yet, in Jellinek’s opinion there was something even more dangerous in the teachings concerning natural law than their “falsehood.” He thought that they would inevitably “open the door” to despotic rule as a necessary and logical consequence of the idea that the only way to leave the state of nature with all its dangers and lack of safety is to give up one’s fundamental rights and liberties to a “third subject,” which is the state itself. From the perspective of the history of political ideas and ideologies, there was no difference between the author of Leviathan and the father of the Social Contract. Their use and legitimation of the “paradigm” of the state of nature inevitably would lead, in Jellinek’s assessment, to an illiberal, despotic political system.37

His critique of the natural law tradition of thought was functional to his foundation and legitimation of law and the state in positivistic terms. But if jusnaturalism was nothing but a “philosophy,” a potentially dangerous dream, how could one explain his attachment to the Bill of Rights and the Declaration of the Rights of Man and of the Citizen, which seemed to have been inspired by the tradition of natural law? As a legal theorist and political thinker, Jellinek responded to this question in his work Die Erklärungen der Menschen und Bürgerrechte. In this essay, Jellinek offers his reply to those who contended that the Bill of Rights and the Declarations of the Rights of Man and of the Citizen were the logical consequences of the intellectual tradition of natural law by explaining how, for example, the Bill of Rights—which he considered the “source” of the Declaration of the Rights of Man and of the Citizen itself—were nothing but the “historical product” of the very particular, unique American experience, characterized by the development of small communities of people who moved to the New World to profess their religious beliefs freely.38

Despite his Jewish background, Jellinek studied Christian theology and the history of Christianity in depth.39 His main interest was the history of the Reformation and Protestantism. In his essay Die Erklärungen der Menschen und Bürgerrechte he also emphasized the religious roots of the Bill of Rights in America and the influence that the Protestant spirit and culture had had on the history of the former British colonies. His idea was that some of the fundamental freedoms included in the Bill of Rights had a religious—and more precisely a Christian—origin.40

Over the years, according to Jellinek, Americans had created a society based on the values of freedom and emancipation, and when they had gathered to establish a new political order against their former motherland, they had written the Bill of Rights in order to ensure protection of the freedoms and rights they had experienced before the revolution against England had broken out.41

As far as the Declaration of the Rights of Man and of the Citizen is concerned, Jellinek stressed the “debt” that the French revolutionaries owed to the American Bill of Rights. He also denounced the French revolutionaries, who—unlike the American revolutionaries—had been inspired by the tradition of natural law and more exactly by Rousseau and his theory of volontè générale, for having applied the philosophical concept of “people’s sovereignty” to the French political reality without seriously analyzing whether or not this kind of concept could be successfully transformed into a functioning political institution.

The “sin” of the French Revolution had been to apply the very abstract and intrinsically absolutistic political concepts elaborated by the tradition of natural law—and notably by Rousseau—to the French reality, a reality whose complexity, in Jellinek’s opinion, went beyond “natural law philosophy.” The American revolutionaries had been successful because they had established their new independent political institutions on historical experience. The French revolutionaries had been unsuccessful because they had wanted to break radically with the past, introducing a totally new political system based on ideas and values people had never seriously experienced before.

In other words, under the French revolution one passed from a despotic rule embodied by the king to a despotic rule embodied by the people, and the people, as Jellinek stresses, meant the state.42

Some questions arise: is there any connection between these works of the 1890s (Hobbes und Rousseau; Die Erklärungen der Menschen und Bürgerrechte) and, for example, Jellinek’s essay on the Austrian Constitutional Court? Moreover, what can we learn about Jellinek’s political views from his reflections on the American and French revolutionary legacy? First, I am convinced that a sort of intellectual continuity does exist between Jellinek’s essay of 1885 and the works he published when he was already in Germany. This continuity consists in the fact that his plan for the Austrian Constitutional Court and his writings on and against the tradition of natural law, the Declaration of the Rights of Man and of the Citizen, and the comparison between the American and French revolutions share the conviction that there is a profound difference between “good rule” and “bad rule”: a good rule is based on an intrinsically limited power, constitutional guarantees, and rights—that is, on a “space of freedom” that is to be protected—whereas bad rule is the opposite: it is despotic rule consisting of an unlimited kind of power and, according to Jellinek, this unlimited kind of power can sometimes be used in the name of the people.43

All the writings I have discussed so far contain clear elements of a truly classical liberal political view according to the definition of liberalism I offered in the first paragraph of this paper. Jellinek emphasized the importance of limited power, a concept he elaborated further in Das Recht der Minoritäten.

Here Jellinek clearly drew a connection between individual rights and minority rights: the protection of minorities within and outside of legislative organs was functional to the protection of individuals and fundamental rights. Nonetheless, the protection of minorities and individual rights embodied an excellent limit to despotic rule, and the guarantees of the rights of minorities and individuals could also prevent the process of “massification” and growing social conformism, which in Jellinek’s opinion was characteristic of modern democratic societies.44

Jellinek directly and openly referred to Tocqueville when writing about the dangers of massification and social conformism within a democratic system. Tocqueville was always one of the main points of reference for the German jurist. Like Tocqueville, Jellinek spoke about the tyranny of the majority, and like Tocqueville, Jellinek thought that an efficient way to neutralize despotic majorities (inside and outside the legislative body) was to create and develop a political system based on fundamental rights, minority rights, efficient limits to power, and the creation and preservation of a lively civil society.45 Jellinek concluded his work on the Rights of Minorities by mentioning Tocqueville’s Democracy in America.46

There is a common thread linking Jellinek’s work on the Austrian Constitutional Court, on the one hand, and his writings published in the 1890s: the connection is his focus on the problem of minorities and liberty. In Austria and in Germany Jellinek always examined ways in which to avoid despotic rule.

Some Concluding Remarks on Jellinek’s Liberal Political View

If we take into account Jellinek’s intellectual trajectory from the 1880s until the publication of Die allgemeine Staatslehre, we can observe how the principle of limited power was central and crucial both to his legal doctrine and to his political view.47

In terms of legal thought, Jellinek affirmed the pillars of legal positivism, while elaborating the idea that the state had both “a sociological and legal character.” In his opus magnum, Die allgemeine Staatslehre, he distanced himself from Gerber and Laband. Whereas Gerber and Laband had tried to develop a merely legalistic understanding of the state, Jellinek insisted on the two-sided nature of the state: it should be considered not only a legal construct but also a “social fact,” and therefore it had “legal functions” and “social functions.”48

The two-sided conception of the state implied a two-sided theory of the state. Staatslehre had to be divided into a “social theory of the state” and a “legal theory of the state.”49 From a social perspective, the state—as it was conceived by Jellinek—relates to individuals by limiting its own will and therefore establishing fundamental rights. From his work System der subjektiven öffentlichen Rechte to his Allgemeine Staatslehre, Jellinek continuously sought to present a balanced idea of the state which did not reduce the state to “the ruling subject, and there is nothing else to be said.”50 As Peter M. R. Stirk correctly stresses,

 

His [Jellinek’s] opposition to any veneration of power is evident in his approach to the concept of sovereignty and in his theory of the autolimitation of the state. Jellinek argued that the concept of sovereignty was too often treated as a claim to unconstrained power rooted in the idea of sovereignty as ‘summum imperium, summa potestas’.51

Against any sort of hypostatisation of the state, Jellinek emphasized that sovereignty does not mean “lack of limitation,” but rather the capacity for self-limitation.52

This continuous conceptual and legal framework which took shape between the 1880s and the early 1900s has to be taken into account when discussing Jellinek as a political thinker, because his defense of fundamental rights and minority rights is connected with his legal and political idea of state self-limitation.

Nonetheless, if we focus on Jellinek’s political view and spirit as it takes shape and emerges from the writings discussed so far, we observe how the defense of minority rights and individual freedoms seems to represent a value to protect and preserve per se, because, as Jellinek states in Das Recht der Minoritäten, some of the best innovations in human history were initiated by minorities, and minorities can exist and contribute positively to the development of society only if individual rights and freedoms are granted. These rights and freedoms, in Jellinek’s view, can act as a powerful bulwark against massification and social conformism.53 At the same, granting minority rights represents a capital issue not only within society, but also within the legislative body. It is in this sense that we can better understand why, once again in Das Recht der Minoritäten, Jellinek dedicates so much attention and such thorough analysis to the American insistence on the importance of the protection of fundamental rights. This attitude, as Jellinek stressed, was based on the centrality of the Constitution, and it was characterized by “the hypertrophy of constitutional legislation, since when a provision was included in the constitutional text, the parliamentary minority is provided with a powerful tool to prevent the majority from abusing its legislative power.”54

Jellinek’s sensitivity to the questions of fundamental rights and the rights of minorities may well have been due in part to his having been part of a minority and also to the years he spent in the Austro-Hungarian monarchy, a multinational state made up of numerous ethnic minorities. His life-experience might have had an influence on his Weltanschauung, and his personal sensitivities, but the aforementioned works demonstrate clearly how, behind Jellinek’s interest in minority rights, liberty and fundamental rights, there was an actual attempt to understand how to avoid despotic rule, how to avoid the tyranny of the majority, how to establish a constitutional state, and how to create a true “liberal society.”

In this sense, from the perspective of the history of political thought, I agree with the distinguished European scholar of the history of political thought, the Italian Salvo Mastellone, who decided, in his book on Storia del pensiero politico europeo (History of European political thought), to include Jellinek among the “spiritual fathers” of nineteenth-century European liberalism.55

 

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1* This article is based in part on a paper presented at the Institute of Philosophy, the Research Centre for the Humanities, Hungarian Academy of Sciences, on January 27, 2015.

Georg Jellinek, Das Recht der Minoritäten (Vienna: Hölder, 1898), 47.

2 The literature on Jellinek is vast. See: Christoph Schönberg, Das Parlament im Anstaltsstaat: Zur Theorie parlamentarischen Repräsentation in der Staatsrechtslehre des Kaiserreichs (1871–1918) (Frankfurt am Main: Klostermann, 1997); Stephan Breuer, Georg Jellinek und Max Weber: Von der sozialen zu soziologischen Staatslehre (Baden: Nomos Verlag, 1999); Stanley Paulson, ed., Beiträge zu Leben und Werk (Tübingen: Mohr Siebeck, 2000); Jens Kersten, Georg Jellinek und die klassische Staatslehre (Tübingen: Mohr Siebeck, 2000); David Kelly, “Revisiting the Rights of Man: Georg Jellinek on Rights and State,” Law and History Review 22, no. 3 (2004): 493–529; Andreas Anter, Die normative Kraft des Faktischen: Das Staatsverständnis Georg Jellineks (Baden: Nomos Verlag, 2004); Olivier Jounjan, Le pensée juridique en Allemagne (Paris: Presses universitaire de France, 2005); Christian Keller, Victor Ehrenberg und Georg Jellinek: Briefwechsel des 19. Jahrhunderts (Frankfurt: Vittorio Klostermann, 2005); Klaus Kempter, Die Jellineks 1820–1955: Eine Familienbiographische Studie zum deutschjüdischen Bildungsbürgertum (Düsseldorf: Droste Verlag, 2005); Massimo La Torre, La crisi del Novecento: Giuristi e filosofi nel crepuscolo di Weimar (Bari: Edizioni Dedalo, 2006); Realino Marra, La religione dei diritti: Durkheimer, Jellinek, Weber (Turin: Giappichelli, 2006); Dagmar Drüll, Heidelberger Gelehrtenlexikon 1803–1932 (Berlin–Heidelberg: Springer Verlag, 2012); Reut Y. Paz, Constructing a Gateway between a Distant God and a Cruel World: The Contribution of German-speaking Scholars to International Law (Leiden–Boston: M. Nijhoff Publishers, 2013).

3 Between 1879 and 1889, Jellinek lived and taught in Vienna. From 1889 until he died in 1911, he lived and taught in Germany.

4 John Gray, Liberalism (Suffolk: Open University Press, 1986), X.

5 Ibid.

6 David J. Manning, Liberalism (London: J. M. Dent & Sons Ltd, 1976), 15.

7 Ibid.

8 Ibid., 18.

9 This is an aspect of political liberalism stressed by Manning, Liberalism, 17–18. Benjamin Constant, Des réactions politiques (Paris: n.p., 1797); Idem, Des effets de la Terreur (Paris: n. p., 1797); Alexis De Tocqueville, De la Démocratie en Amérique. 2 vols. (Paris: C. Gosselin, 1835–1840); John Stuart Mill, On Liberty (London: John W. Parker, 1859). See also: John Plamenatz, ed., Readings from Liberal Writers: English and French, Everyday Handbooks (London: Barnes & Noble Inc., 1965).

10 See: Georg Jellinek, Das System der subjektiven öffentlichen Rechte, 1892, 2nd ed. (N.p.: n.p., 1905); Die all­gemeine Staatslehre, 1900, 2nd ed. (N.p.: n.p., 1905); 3rd ed. (N.p.: n.p., 1914).

11 Christian Keller, Viktor Ehrenberg und Georg Jellinek im Spiegel ihres Briefwechsels 1872–1911, in idem, Viktor Ehrenberg und Georg Jellinek, 22.

12 In the 1880s and the 1890s, Jellinek wrote and published relevant works on the legal structure of the Austro-Hungarian Monarchy, and more specifically on the Settlement of 1867, while focusing on the Hungarian half of the empire. These works included: Die rechtliche Natur der Staatenverträge: Ein Beitrag zur juristischen Konstruktion des Völkerrechts (1880); Das rechtliche Verhältnis Kroatiens zur Ungarn: Mit einem Anhange das ungarisch-kroatische Ausgleichgesetz enthaltend (1885); Ungarn und die österreichische Verfassung (1897); Ungarisches Staatsrecht (1897).

13 Georg Jellinek, Ein Verfassungsgerichtshof für Österreich (Vienna: Alfred Hölder, 1885), 35.

14 Ibid., 6–8 ff. In the use of the term “national party” as opposed to “political party,” he claimed to have been inspired by Adolf Fischhof’s work on the Austrian national question. Jellinek, Das Recht der Minoritäten, 35. Adolf Fischhof, Österreich und die Bürgschaften seines Bestandes (1869).

15 Jellinek, Ein Verfassungsgerichtshof für Österreich, 6–8 ff.

16 Aviel Roshwald, Ethnic Nationalism and the Fall of Empires (London–New York: Routledge, 2005), 8–11. On the history of the Austro-Hungarian Monarchy and notably on the complex relationships between its nationalities there is a vast body of scholarly literature. Richard J. Evans, Austria, Hungary and the Habsburg: Central Europe 1683–1867 (Oxford: Oxford University Press, 1979); Alan Sked, The Decline and the Fall of the Habsburg Empire 1815–1918 (London–New York: Longman, 1989); Mark Cornwall, The Undermining of Austria-Hungary: The Battle for Hearts and Minds (London: MacMillan Press, 2000); Idem, The Last Days of Austria-Hungary (Exeter: University of Exeter Press, 2001); Maureen Healy, Vienna and the Fall of the Habsburg Empire: Total War and Everyday Life in World War I (Cambridge: Cambridge University Press, 2004).

17 In the 1880s, for example, the Austro-German deputies residing in the Austrian Central Parliament violently opposed decrees aimed at giving more “linguistic rights” to the Bohemian community. Gerald Stourzh, “Ethnic Attribution in Late Imperial Austria: Good and Evil Consequences,” in The Habsburg Legacy: National Identity in Historical Perspective, ed. Ritchie Robertson and Edward Timms (Edinburgh: Edinburgh University Press, 1994), 71–74.

18 Jellinek, Ein Verfassungsgerichtshof für Österreich, 6.

19 See: Sara Lagi, “Hans Kelsen and the Austrian Constitutional Court (1918–1929),” Co-herencia 9, no. 16 (2012): 275–77.

20 Wilhelm Brauneder, Österreichische Verfassungsgeschichte: Einführung in Entwicklung und Struktur (Vienna: Manzsche Verlag, 1992), 38–739.

21 Sara Lagi, El pensamiento politico de Hans Kelsen: Los origines de “De la esencia y valor de la democracia” (Madrid: Biblioteca Nueva, 2007).

22 Jellinek, Ein Verfassungsgerichtshof für Österreich, 8 ff.

23 Ibid.

24 Elisabetta Palici di Suni, Introduzione to Georg Jellinek, Una Corte costituzionale per l’Austria (Turin: Giappichelli, 2013), 1–35.

25 Jellinek, Das Recht der Minoritäten, 35–36.

26 Ibid., 17–40.

27 Massimo La Torre, Constituionalism and Legal Theory: A New Paradigm for the Concept of Law (Dordrecht: Springer, 2007), 20.

28 On the concept of “self-limitation” see: Jens Kersten, Georg Jellineks System: Eine Einleitung zu Georg Jellinek, System der subjektiven öffentlichen Rechte, 2. Auflage von 1905, ed. and intr. Jens Kersten (Tübingen: Mohr Siebeck, 2011); Jens Kersten, Georg Jellinek und die klassische Staatslehre (Tübingen: Mohr Siebeck, 2001); Michael Stolleis, Geschichte des öffentlichen Rechts in Deutschland, vol. 2 (Tübingen: Mohr Siebeck, 1992). Also: Diego Quaglioni, “Sovranità e autolimitazione (Rileggendo la Dottrina generale dello Stato di G. Jellinek),” in Crisi e metamorfosi della sovranità: Atti del XIX Congresso nazionale della Società italiana di filosofia giuridica e politica. Trento 29–30 settembre 1994, a cura di Maurizio Basciu (Milan: Giuffrè, 1996), 276 ff; Massimo La Torre, Disavventure del diritto soggettivo: Una vicenda teorica (Milan: Giuffrè, 1996), 144–45.

29 See: Carl Friedrich von Gerber, Grundzüge eines Systems des deutschen Staatsrechts (1876); Paul Laband, Das Staatsrecht des Deutschen Reichs (1876–1882).

30 Fabrizio Fabbrini, Fundamental Rights in Europe: Challenges and Transformations in Comparative Perspective (Oxford: Oxford University Press, 2014), 17–18.

31 Peter C. Caldwell, Popular Sovereignity and the Crisis of German Constitutional Law: The Theory and Practice of Weimar Constitutionalism (Durham–London: Duke University, 1997), 30–31.

32 Jellinek, Das System der subjektiven öffentlichen Rechte, 67 f.

33 Fabbrini, Fundamental Rights, 17.

34 Georg Jellinek, Die Erklärungen der Menschen und Bürgerrechte: Beitrag zur Geschichte des Verfassungsrechts (Munich–Leipzig: Duncker & Humblot, 1895). In this article, because the original text was unavailable, I refer to the Italian translation: Georg Jellinek, Le dichiarazioni die diritti dell’uomo e del cittadino, ed. G. Bongiovanni (Rome–Bari: Laterza, 2002). And also Georg Jellinek, “Die Politik des Absolutismus und Radikalismus (Hobbes und Rousseau): Vortrag gehalten in der Aula des Museums zu Basel am 10. Februar 1891,” in idem., Ausgewählte Schriften und Reden (Berlin: 1911), vol. 1 (Aalen: Scientia Verlag, 1970); Idem, “Adam in der Staatsrechtlehre: Vortrag gehalten in der historisch-philosophischen Verein zu Heidelberg (1893),” in idem, Ausgewählte Schriften und Reden (Berlin 1911), vol. 1 (Aalen: Scientia Verlag, 1970); Idem, Allgemeine Staatslehre (Berlin: O. von Häring, 1905).

35 Jellinek, “Die Politik des Absolutismus und Radikalismus.”

36 Ibid., and idem, “Adam in der Staatsrechtlehre.”

37 Ibid., chiefly Georg Jellinek, “Die Politik des Absolutismus und Radikalismus.”

38 Georg Jellinek, Le dichiarazioni dei diritti dell’uomo e del cittadino, 44.

39 Jellinek converted to Christianity a few years before his death. Klaus Kempter, Die Jellineks 1820–1955: Eine Familienbiographische Studie zum deutschjüdischen Bildungsbürgertum (Düsseldorf: Droste Verlag, 2005).

40 Georg Jellinek, Le dichiarazioni dei diritti dell’uomo e del cittadino, 44–50.

41 Ibid.

42 Ibid.

43 On this last aspect see: Georg Jellinek, “Die Politik des Absolutismus und Radikalismus”.

44 Idem, Das Recht der Minoritäten, 42–44.

45 Ibid.

46 Ibid., 46–47.

47 Idem, Allgemeine Staatslehre (1900), 3rd ed. (Darmstadt: Wissenschaftliche Buchgesellschaft, 1960), 180.

48 Ibid.

49 Ibid.

50 Andreas Anter, Max Weber’s Theory of the Modern State: Origins, Structure and Significance (New York: Palgrave Macmillan, 2014), 50.

51 Peter M. Stirk, Twentieth Century German Political Thought (Edinburgh: Edinburgh University Press, 2006), 22.

52 Jellinek, Allgemeine Staatslehre, 180.

53 Idem, Das Recht der Minoritäten, 26.

54 Ibid.

55 Salvo Mastellone, Storia del pensiero politico europeo: Dal XV al XVIII secolo (Turin: UTET, 2004), 167.

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