Vlasta 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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Švoger, Vlasta. “Zagrebačko liberalno novinstvo o slobodi tiska i društvenoj ulozi novina od izbijanja revolucije 1848. do uvođenja neoapsolutizma 1851. godine” [Zagreb liberal press on the freedom of the press and the social role of the newspapers in the period between the revolution of 1848 and the introduction of neoabsolutism in 1851]. Povijesni prilozi 30 (2006): 204–23.

Švoger, Vlasta. Zagrebačko liberalno novinstvo 1848–1852. i stvaranje moderne Hrvatske [Croatian liberal press 1848–1852 and the building of modern Croatia]. Zagreb: Hrvatski institut za povijest, 2007.

Vrhovac, Maksimilijan. “Poziv na sve duhovne pastire svoje biskupije” [Call for all priests in his diocese]. In Hrvatski preporod: Temeljni programski tekstovi [Croatian national revival: The basic program texts], compiled by Ivan Martinčić, 1:29–33. Zagreb: Erasmus naklada, 1994.

Vukotinović, Ljudevit. “Ilirizam i kroatizam” [Illyrism and Croatism]. In Hrvatski preporod: Temeljni programski tekstovi [Croatian national revival: The basic program texts], compiled by Ivan Martinčić, 2:33–44. Zagreb: Erasmus naklada, 1994.

 

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

Áron 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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Sara 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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Jellinek, Georg. Das Recht der Minoritäten. Vienna: Hölder, 1898.

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Keller, Christian. Victor Ehrenberg und Georg Jellinek: Briefwechsel des 19. Jahrhunderts. Frankfurt: Vittorio Klostermann, 2005.

Kelly, Duncan. “Revisiting the Rights of Man: Georg Jellinek on Rights and State.” Law and History Review 22, no. 3 (2004): 493–529.

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Kersten, Jens. “Georg Jellineks System: Eine Einleitung zu System der öffentlichen subjektiven Rechte.” In Georg Jellinek. System der subjektiven öffentlichen Rechte, 7–51. Tübingen: Mohr Siebeck, 2011.

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András Cieger

National Identity and Constitutional Patriotism in the Context of Modern Hungarian History

An Overview*

 

Since the end of the eighteenth century, Hungarians have considered themselves a nation of the “millennial constitution” and a “nation of lawyers.” What meanings, identity-founding values, and interpretations of the past are associated with the concepts of constitution and constitutionalism in Hungarian public thinking and scientific discourse? Furthermore, to what extent is there any consensus concerning principles, and how coherent is the context of Hungarian constitutionalism as a product of national history? In this overview, I show how the political program of constitutionalism underwent a transformation from an elite-project to a common emotional foundation of constitutional patriotism in 1848. I also examine how, after the Austro-Hungarian Compromise of 1867 and in the interwar period, the emotional bonding of citizens to their political institutions weakened and several myths of the Hungarian exceptionalism gathered strength in scientific and political discourses. Four decades of socialism extinguished almost completely any sense of constitutional consciousness, already only flickering, among the people, as well as their trust in the world of politics. Finally, the many examples of embittered debates on symbolic questions after the regime change in 1989/90 and the much-criticized circumstances of the drafting of a new constitution in 2011 demonstrate convincingly that a constitutional patriotism based on broad societal consensus has not yet formed in Hungary. The successive political regimes used constitutional values and the memory of the struggles for constitutionalism only as symbols or slogans to reach their short-term political aims. The political elites in Hungary utilized the constitutional consciousness of the society instead of working to strengthen it.

Keywords: constitutional patriotism, national identity, Hungarian history, symbolic politics

Constitution, Identity, and History

The expression constitutional patriotism associated with Jürgen Habermas has undergone a number of modifications since it was coined in the 1970s, giving rise to significant professional and public debates. Originally, the term was meant to play a role in the formation of the new German national identity after World War II, flourishing again in the early 1990s in the countries of the former Soviet bloc in Central Eastern Europe and frequently used in the public discourse of the mostly leftist intelligentsia in connection with the processes of European integration and constitution-writing. Rather than examining the history of the uses of this term, I wish only to note that recently it has played a role in peeling the identity of the political community away from traditional national consciousness, imbued with nationalism and damaged multiple times, and linking communal identity to universally accepted human rights, democratic values, and constitutional institutions as integrational bases, thereby strengthening civic participation in public life and the development of tolerant, self-critical civic attitudes (a political culture of a citizenry).1 Habermas also linked this concept with the idea of forming a cosmopolitan solidarity, a “multicultural citizenship” (e.g. in the future European federal state).2 Later, however, he emphasized instead that “[d]espite a very common misunderstanding, ‘patriotism linked to the constitution’ means that the citizens wholeheartedly accept the principles of the constitution, not only in their abstract substance, but very specifically out of the historical context of the history of each nation.”3

What is important in the context of this inquiry is the fundamental hypothesis of the concept: “In a pluralistic society, the constitution expresses a formal consensus. The citizens want to regulate their living together according to principles that are in the equal interests of each and thus can meet with the justified assent of all.” That is to say, there exists a commonly accepted system of norms for constitutionality, a common stock of concepts and words, as well as an image of the past both in the actual political community (polity) and on a larger, for example European, scale.4

Interestingly, the conservative philosopher Roger Scruton, who firmly rejects the ideas described above and insists on the importance of preserving national identity, also believes in the existence of common constitutional values inspiring the English nation, and the patriotism linked to them. That in his writings he worries about the cracking of the centuries-old cohesive force of the British system of legal and political institutions caused by the spread of consumer culture and not least the “patronage” of the European Union is another issue.5

Given the relevance the concept has acquired in contemporary political and theoretical discussions, it would seem justified to consider the meanings, identity-founding values, and interpretations of the past that have been and are associated with the concepts of constitution and constitutionality in Hungarian public and academic discourses. To what extent is there a consensus concerning principles, and how coherent is the context of Hungarian constitutionality as a product of the national history that the “old” and “new,” as it were, identities of the political community can both rely on?

Naturally, one cannot give precise answers to these questions, but rather can only venture conjectures, since exciting factors in political life such as loyalty, trust, pride, and identification are difficult to measure. Moreover, the available sources mostly allow only glimpses into scholarly debates and discourses defined by the political elite, and are usually silent about the political attitudes of society.

The Formation of Constitutional Consciousness as of the Second Half of the Eighteenth Century

The political program, starting from above, of building the nation and the development of the “national sciences” in the service of this project, and, later, the building up of the bourgeois state were processes that gradually, during the long nineteenth century, pushed autonomous legal life on the local level and various customary laws into the background through codified customary law and “official” written legislation, while, through the channels of education and the forums of the old and the new public spheres, new political values, sentiments, and interpretations, which could later be folklorized, were attached to this legal material. Thus, a general system of norms, a common stock of concepts, and shared ways of thinking came into being that could later serve as the basis for a wider communal identity associated with constitutionality.6 Naturally, a consciousness of this kind was basically shaped by the thinking, the public behavior and the political objectives of the prevailing political elite, especially in a country like the Kingdom of Hungary, which was very divided ethnically, culturally, and in terms of property. Still, as a result of these complex processes, which are difficult to map, a (self)image has taken deep roots, according to which the nation-building and state-building Hungarians are characterized, through their incessant struggle for independence, by strong public legal traditions and a legal turn of mind, adhering often perhaps to an irrational extent to its legal fictions (Hungarians are usually seen by foreigners as an ungovernable, rebellious people). Since the nineteenth century, Hungarians have often associated their national character with the terms “millennial constitution” and “nation of lawyers.” In 1939, a famous Hungarian poet, Mihály Babits, wrote the following in his tableau on the Hungarian character:

 

A similar ideal constant is the constitution, the moral territory and property, as it were, of Hungarians. This is again a fixed point in the universe. The constitution can be violated a thousand times, and it is possible to govern without it or against it. But even if this goes on for centuries, a true Hungarian will nevertheless regard the constitution as living and valid.7

The clearly perceptible strengthening of constitutional consciousness is basically linked with the intellectual impact of the Enlightenment and the struggles between the Hungarian Estates and the Habsburgs in the second half of the eighteenth century.8 Emperor Joseph II (1780–1790) broke with the centuries-old customs of dealing with the Estates: he did not have himself crowned king of Hungary, he did not summon the national assembly (Diet), etc. He set out to implement a program of modernization along the ideas of the Enlightenment, but the means he employed were absolutistic. The Estates opposed his efforts, in their struggle relying heavily on the arguments of the thinkers of the French Enlightenment. The works of Montesquieu, Rousseau, and Voltaire, soon after they had been written, became favorite readings (in the original, but often in Hungarian translations, too) of the political elite, providing the Estates with a far too practical set of arguments in their wrestling with the enlightened absolutism represented by Joseph II.

They set the model of representative constitutionalism still organized on the basis of Estates against the theory of centralized state. In their numerous plans, the Estates argued, drawing on the theory of natural law, that since the monarch had violated the ancient “social contract” with them, a totally new contract was needed. Referring to the principle of popular sovereignty (by people they meant themselves, of course) and the spirit of laws, they demanded that the Diet be summoned, and under the influence of the events in France they decided to make a written constitution which would significantly limit royal power. In 1790–1791, approximately five hundred pamphlets were published putting forth proposals for changes to the political situation and the constitutional conditions of the country.9 Furthermore, the ideas of the French Enlightenment concerning the division of powers, the social contract, and human rights appeared not only in official proposals and political pamphlets, but in popular plays and school verses as well.10

However, this Hungarian Enlightenment was rather peculiar, indeed, since as Ferenc Eckhart observed, “it held Montesquieu and Rousseau in one hand and the Tripartitum in the other.”11 That is to say, the Estates wished to apply only those principles of modern constitutionality to Hungarian conditions which upheld their privileges. And to support this effort, they used the Tripartitum, a work by István Werbőczy, who in addition to reviving and summarizing the cardinal laws and definitive legal customs of the country in 1514, complemented his work with the theory that the king and the (legally and politically equal) nobility are present together in the Holy Crown of Hungary, that is to say, they together practice sovereign power.12

The constitution-making fever, especially as a result of the increasingly frightening news from France and the countermeasures of the new king, Leopold II (1790–1792), soon abated, the monarch and the Estates returning to the time-honored rules of the game of the constitutionality of the estate system. It is undeniable, however, that a few important elements of modern-day constitutionality, which in the perception of both the Hungarian Estates and the sovereign could be reconciled with their interests and which did not violate the dualist system of the Estates, would become part of the Hungarian legal system.

New words were added to the vocabulary of Hungarian politics in these decades. In the 1780s, the Latin constitutio and the Hungarian alkotmány and alkotmányozás began to be used with their present-day jurisprudential meaning.13 The Hungarian word alkotmány also appeared for the first time in Corpus Juris in Act 1791:X. According to studies in intellectual history, it was also during the constitutional struggles of the late eighteenth century that references to ancient, thousand-year-old constitutionalism became part of a definitive mode of discourse. According to this argument, there exists an ancient (legal and political) system of customs, handed down by generations, which would outline the nine-hundred-year old and, later, thousand-year old, organically and continuously developing unwritten constitution of Hungary. And this constitutional development was essentially identical with the history of the nation, which at that time meant only the political community taking part in governance, that is, the nobility. Thus, the protection and complete preservation of constitutional customs, rights and privileges was seen as a duty and a fundamental prerequisite of national existence. “The slogan, almost second to none in its ability to make Hungarian hearts beat more rapidly, was born.”14 So constitutionality became part of the national consciousness and a source of national pride, though only keeping in mind the following:

 

[A] number of identity variations interpreted themselves in the symbol of the Homeland, thus the patriotism of those days was a set of different and diverging phenomena and the use of the term patriotism in the plural would seem to be justified. This is the moment of coming into being, the time of narratives and symbols being reordered and organized into a new unity.15

 

Although there was a clearly perceptible shift in the meanings of the words haza (homeland), nemzet (nation), and alkotmány (constitution) in the nineteenth century, these concepts were put to a diverse array of political uses. The reference to ancient constitutionality, depending on the actual political interests, was invoked to serve either the maintenance of the stability of relations among the Estates and the given political structure, as in the case of the conservatives during the Reform Age (1825–1848), or it was used to justify the liberal program of the extension of rights and the uniting of interests, showing after significant reinterpretation the democratic spirit it represented. Or, finally, it was used to serve the aspirations for independence against Vienna. Those who, like the centralists of the Reform Age, did not wish to speak the language of the ancient constitutionality and preferred to use arguments of natural law to emphasize the need to create the conditions for civilization, progress and, within that, codification (of a scientifically constructed written constitution) found themselves playing a marginal role in Hungarian political discourse.16

The suggestion of a parallel between British and Hungarian constitutional developments had an important role in deepening the feeling of constitutional pride.17 By then, the view that with regard to rank and age the Hungarian constitution could be compared to British constitutionality had become a widely held conviction. Indeed, Lajos Kossuth, one of the leaders of the Hungarian liberals, thought that “Hungarian civic institutions are not only similar to, but in some respects better, more glorious than, those of Great Britain.”18

The proximity of two important dates in British and Hungarian constitutional history offered an attractive parallel to support this contention: the Magna Carta issued in 1215 and the Golden Bull in 1222. By the second half of the nineteenth century, another argument had been made: by that time Great Britain and Hungary were the only countries in Europe with no written constitutions. Although the British-Hungarian parallel generated by the national pride of the elite cannot be supported by facts of legal development, it has become part of the school curriculum and public consciousness.19

As was the case in so many other countries of Europe, the political system in Hungary was placed on new foundations in 1848. However, the liberal elite, upon coming into power, deliberately would not undertake open and comprehensive constitution-making in the midst of revolutionary events and limited itself to temporarily regulating the system of political institutions. They wished to leave the task of writing a constitution to a subsequent, popular representative parliament. This objective, however, was thwarted on account of the defeat of the war of independence. Nevertheless, the acts passed in April, 1848 came to be regarded, both with a view to the legal system and in a symbolic sense, as the fundamental laws of the country on the level of national memory, and that is how these acts are still discussed in Hungarian jurisprudence. The communal experience of 1848/49 and its subsequent memory created a common emotional basis, the integral parts of which were, on the one hand, the sense of freedom coming from laws (the introduction of general sharing of taxation, the abolition of socage and tithe, the termination of manorial courts, etc.) providing for equality before the law and, on the other, the pride and trust experienced in connection with newly created or renewed political institutions (such as responsible government and a representative parliament). The language of the April acts also clearly indicated the widening of the borders of the body politic: the old expressions of the estate system were replaced in Hungarian laws with terms like “all the inhabitants of Hungary,” “the whole Hungarian people,” “the citizens of the country,” and “fellow citizen.” These communal sentiments came to be symbolically embodied in the date of the Hungarian revolution of 1848: March 15. The differing interpretations with regard to the contemporary event were pushed into the background, and that date became the day of freedom and modern constitutionality.20

The Weakening of Patriotism and the Strengthening of the Myths
of Hungarian Constitutionalism (1867–1945)

After the defeat of the war of independence, constitutional patriotism became even stronger because the unwritten constitution absorbed and represented several well-known values (the desire for independence, anti-Habsburg habits, constitutional resistance) and new symbols (Kossuth’s cult, commemorative rituals of the 1848 revolution, etc.) during the period of Habsburg absolutism. However, the Austro-Hungarian Compromise of 1867 met with significant social rejection despite its rational political program. People were not enthusiastic about the new political system, yet in time the majority would prove loyal to it. But an extension of legitimacy that went beyond mere passive endorsement would have needed emotional identification and enthusiasm expressed in symbols. However, fifty years were not long enough for that change: the ruling powers failed in their attempt to create new community-forming symbols that would strengthen the established political regime, and they were prevented by the written and unwritten rules of the Compromise of 1867 from identifying with the symbols preserved by the nation. Thus, mutually exclusive traditions came into existence after the Compromise: a centrally formed state patriotism, relying on a measure of loyalty by the citizens on the one hand, and, on the other, a national patriotism with its own rites, surviving in the social public.21

It is also obvious that both traditions had reached a crisis by the early twentieth century. On the one hand, the legitimacy of the constitutional system of the Compromise, which was uncertain to begin with, had become considerably worn-out: the complicated legal and political system struggled with serious functional problems, constitutionality and individual rights never emerged, the prestige of the parliamentarism declined, and so on. On the other, the opposition forces regarding themselves as the true heirs to the legacy of 1848 had over the course of the decades gradually abandoned the program of consolidating constitutionality, their activity amounting increasingly to little more than empty show and ritual. And, finally and not least, throughout the period, the set of citizens who could legally (through their right to vote, for instance) participate in political decision-making remained very small: only six percent of the population could vote during the entire period. These factors had destructive effects on the pride felt for constitutional conditions and parliamentary institutions. It would seem that during the five decades of the dualist regime, various constitutional myths attempted to replace the political functions of the nearly unified interpretation of history and the legitimizing symbols. Harping on the millennial constitutionalism of the country, they tried to support the legitimacy of the compromise with Austria, and, on the other hand, they emphasized Hungarian supremacy in opposition to the political demands of national minorities.

While its cult was growing in the second half of the nineteenth century, constitutionality increasingly survived in memories. Constitutional institutions were not established and there were not real attempts to adapt to European norms. Rather, taking refuge in alleged national traditions became the rule. This is clearly indicated by the development of jurisprudential education in Hungary, which turned—comparatively late, but all the more bellicosely—into a propagation of constitutional myths. As late as in 1874, Hungarian constitutional and legal history was made an independent subject for primary examination in legal studies (prior to the Compromise, instruction in that subject was forbidden), and in 1892 it had a department of its own in Budapest only. Imre Hajnik, first commissioned to teach the subject, supported the idea of a parallel presentation of universal and Hungarian legal developments:

 

Thus legal historians must elevate themselves to a European standpoint when lecturing on the development of Hungarian legal life, following the changes and the significance of European ideas of the age, examining when and how and through the confluence of what factors these ideas influenced statal and social life of Hungary.22

By the turn of the century, however, in the wake of long internal discussions, the views of the so-called historical-nationalist legal school had triumphed. According to the leading professor of this school, Ákos Timon, “the Hungarian people arrived at the pure concept of statehood, of real public power before other European state-forming peoples,” and so it is not on the processes of reception but on the study of the independent organic development that attention must be focused; “we must have the national direction of legal history” prevail here, too.23 As a result of this attitude, the department of European legal history was terminated at the Budapest law school in 1912.24

Given all this, it is no wonder that the cult of Werbőczy flourished without interruption. The importance of his work survived in modern constitutional thought. The political message of his Tripartitum is perfectly summarized in the preface: it is to the credit of Werbőczy’s work that it stressed the importance of the cooperation of the crown and the nation, justified the monarch’s right of patronage, and enhanced “in the national consciousness the sense of public liberty, independence, and constitutionality.”25 The cult of this work, useful for political purposes in many ways, and of its writer in the nineteenth century is precisely indicated by that fact that after Tripartitum had been professionally translated under the aegis of the Hungarian Academy of Sciences in 1844, biographies of Werbőczy were published, a street was named after him in Budapest, and a statue of him was erected in a public square in 1908.26 Finally, in his two-volume work of legal history, Béni Grosschmid connected the two most important myths of Hungarian constitutionalism: he demonstrates at some length the relationship between British (proprietary) law and the Hungarian notion of law as recorded in Tripartitum.27

By the turn of the nineteenth and twentieth centuries, the new building of the Hungarian Parliament had been built in Budapest. It was modeled after Westminster, and its architect, Imre Steindl, called it “the Temple of Constitution.” It was intended as a proclamation of respect for Hungarian constitutionalism and parliamentarism. The politics taking place within, however, were less and less able to meet the values suggested by the building. It is sufficient to mention only the series of scandals in the early twentieth century that shook the Hungarian Parliament, which consequently gradually lost its dignity. “It is as if the traditions of Hungarian constitutionality had been lost during the move,” Ferenc Herczeg, a famous Hungarian writer and member of the Parliament, wrote in his memoirs.28

The communist ideology and political arrangements of the Hungarian Soviet Republic of 1919 brought about a sharp and spectacular break. Its leaders wished to create the ideal communist state, transcending nations and classes, by means of the dictatorship of the proletariat. This attempt, however, lacked broad social support, so lasting loyalty could not develop in favor of the new political regime. The leaders of the Soviet Republic, following the Leninist example, applied open terror and used the means of “monumental propaganda” to deepen the civic consciousness of the working class and propagate communist constitutionalism.29

The bourgeois legal order of earlier days was immediately restored after the fall of the communist regime. Creating a real civic constitutional patriotism, on the other hand, proved much more difficult because the losses of territory, citizenship, jobs, family ties (and so on) on account of the Trianon peace treaty caused a general identity crisis on national, local and individual levels. Prime Minister István Bethlen, the emblematic figure of the interwar period, made an attempt during his term in government to recreate constitutional consciousness. He made the following remarks in his speech outlining the program of his government:

 

The Hungarian nation lived retired into its own shell, so to speak, in the Hungarian globe, allowing itself to be led by self-delusion regarding its strength and tasks. There was another consequence: it developed a practically one-sided legal turn of mind. In accordance with this legal turn of mind, we have come to regard the whole world as if we were able to combat every difficulty holding the Corpus Juris and a bunch of contracts. […] We have overestimated state life in the role of the national life.

 

According to Bethlen, the way out of the crisis could be through a careful democratizing of nineteenth-century parliamentarism (suffrage reform, and the reform of the Upper House, etc.), and especially through the strengthening of national self-consciousness and cohesion.30 One small slice of that program was the integration of more modern knowledge of the constitution in the system of education. This meant, on the one hand, more efficient teaching of civics in public education, and, on the other, breaking the hegemony of the historico-nationalist legal school in training lawyers. The aim of the first effort was “to plant” “civic sentiment in the soul of the next generation,” the formation of civic behavior, which was conscious, socially sensitive, and loyal to the established regime.31 Reforms to the teaching of legal history at the university aimed at critically reviewing pseudo-scientific dogmas, which were nevertheless deeply embedded in the national consciousness. Ferenc Eckhart, appointed head of the department of legal history in Budapest in 1929, declared war on the legal historical view which insisted on the existence of an ancient Hungarian constitutional genius. He rejected the myth of millennial constitutionalism which traced the roots of modern legal and political institutions to the ancient homeland. He later wrote:

 

I conceived it to be my calling to have the completely chauvinistic Hungarian legal history, according to which Hungarian legal and state development is something quite special, replaced with teaching legal history based on economic and social development. And since the economic and social development of the neighboring Slavic peoples are similar to the people of Hungary, in the discipline and the teaching of legal history a comparison with the Slavic peoples instead of British analogies should serve as the basis.32

 

At the same time, the lengthy public debate over the scholarly position of Ferenc Eckhart indicates that there was no consensus at the time concerning the interpretation of constitutionalism.33 On the one hand, the regime itself encouraged a number of cults reinforcing national pride and the community of fate, closely linking them to the widely supported program of revisionism (in order to regain the millennial borders, for instance). The elite in power practically used (and reinterpreted) everything from the glorious past that could serve that purpose. The significance of symbolic politics increased even compared to the second half of the nineteenth century, as is evidenced by the number of commemorative laws for national heroes, holidays and historical events: their number prior to 1848 was one, during the five decades of the dualist monarchy, thirteen, but between 1920 and 1944, fifteen such acts were passed and included in Corpus Juris.

However, by the late 1930s, references to constitutional traditions tended increasingly to provide arguments for restricting equality before the law and parliamentarism. The glorious past of Hungarian political life and ancient Hungarian laws were equally suitable as justifications for stripping the Jewish citizens of the country of their rights34 or for that matter introducing a corporate, authoritarian state model promising a new estate system. Prime Minister Pál Teleki justified his proposal for a constitutional reform in the following way:

 

Europe’s form of life in terms of world power, democratic liberalism, has ceased to exist along with its public, political and parliamentary forms. Our parliament, despite the changes, is still like that, and cannot meet the requirements. It discusses too much and too long, gets lost in details, lives its life in party struggles, and is a workshop of spectacle and not life. What is more, its form is not originally Hungarian.35

This kind of argument went so far that a number of authors began to question whether the liberal achievements of the revolution of 1848 could be included among the constitutional traditions of the Hungarian nation, since they believed that the sudden introduction of legal and political constructions in a revolutionary situation, borrowed mostly from abroad, went against organic Hungarian legal development. Therefore, parliamentary government, according to this idea, must be replaced by a model of a corporate state.36

The first pioneers of the so-called populist movement (népiek) turned sharply against the interpretations discussed so far when formulating their relation to the constitutionalism of the past. Breaking with the dominant discourse, they denied that the millennial constitutionality formed and mythicized by the political leadership at the time was an integral part of the identity-consciousness of Hungarians. István Győrffi elaborated, after Károly Tagányi, the program of a comprehensive study of Hungarian legal life in local legal affairs because he believed that only the customs of pure, unimpaired Hungarian peasant culture could represent a true national legal system, in contrast with foreign, alien laws, which were tolerated under the pressures of necessity. Their more distant aim was to use their conclusions to lead “legislation separated from the popular outlook” back to true national traditions, and thereby create “more Hungarian law.”37 The same idea was formulated in literary terms by Dezső Szabó, for instance, who provided a new interpretation of Hungarian history by identifying Hungarians with peasants—enslaved, exploited, but bearing pure Asian character:

 

[T]he past thousand years has been a chamber of tortures for Hungarians […] And it was this past that created the glorious ancient constitution, which has been a procurative and protective mechanism for all those who created the Hungarian people from themselves. It is precisely this past and this ancient constitution that we want to make history irreversibly, and build in its place a totally new world, new constitution, new law and order.38

Thus, those who expressed their views between the World Wars seemed to have agreed that there was no palpable unified civic consciousness and no constitutional patriotism, but they significantly differed with regard to the causes and the potential solutions. The general identity crisis typical of the period caused serious problems in interpreting constitutionalism and history.

The Period of Constitutional Ignorance – The Age of Socialism

The four decades of socialism almost completely extinguished the constitutional consciousness of the people, which was uncertain anyway, and their trust in the world of politics. When the Constitution of the Hungarian People’s Republic (Act 1949:XX) had been made, an era of flagrant defiance of laws began. Although the communist constitution stipulated that “all power belongs to the working people,” securing broad social and cultural rights for citizens in principle, the violation of human rights assumed massive proportions, and the rule of law no longer functioned. In this period of pseudo-constitutionalism, it made no sense to refer to the text of the constitution, and it was dangerous to evoke constitutional values.39

In the parliamentary debate on the constitution, which lasted hardly two days, the participants, surprisingly, often mentioned the millennium-long history of Hungary favorably. “We, Hungarian communists and the people’s democracy with us, guard and nurture with the utmost possible care all the living traditions of the thousand-years-old history of Hungary, capable of development,” said the General Secretary of the Hungarian Workers’ (Communist) Party, Mátyás Rákosi, for instance.40 However, as secretary of state for public education Géza Losonczi said, “Hungary has two pasts.” “We regard ourselves as the successors and inheritors not of Zápolya, but Dózsa, not of the Habsburgs but of Rákóczi and Kossuth, not of Bethlen and Horthy, but of Ságvári and Bajcsy-Zsilinszky.” That is to say, while the constitution broke with the history marked by exploiters and traitors, it professed to have a fate in common with heroes representing revolutionary traditions of independence.41

The comments quoted above notwithstanding, the Preamble of the final text of the 1949 constitution did not include any reference to the traditions of the Hungarian people. Instead, the text marks a deliberate and sharp break with the past. The socialist constitutionalism’s own “time,” according to the introduction, began in 1945, with the liberating maneuvers of the Soviet army, and there is only one brief reference, by way of precedent, to the experiences of the Hungarian Soviet Republic of 1919.

In the propaganda publications of the Rákosi era (1948–1956) and the early Kádár period, the constitution appeared not as a catalogue of rights, but rather as a system of obligations. Propaganda materials highlighted the ideologically important passages in the constitution, while denouncing the earlier political regime and legal system of Hungary. In the 1950s, it was the responsibility of party activists and librarians singled out for propaganda activities to distribute publications popularizing the principles of the constitution in workers’ hostels and waiting rooms at railway stations, build “constitution corners” in libraries and factories, and organize literary readings in connection with the constitution.42

August 20, the celebration of the first King of Hungary, Stephen (Saint) I, was desacralized and appropriated. The new constitution, passed on August 20, 1949, was regarded as a second foundation of the state, as the beginning of the building of the ideal communist state. According to the memoirs of a communist cultural politician, József Darvas:

 

[the decisive factor in picking the date was] to demonstrate the historical will to break with, to dispute, to turn against the state ideal of Saint Stephen, which over the course of the centuries has been distorted and become reactionary, the state ideal, which in its own time, a thousand years ago, was progressive, yes it was progressive because it helped Hungarians survive and find a place in Europe, but this state ideal has become an instrument against progress in the hands of the ruling classes, [...] an instrument in the oppression of the Hungarian people and the other peoples living in the territory of Hungary at the same time.43

 

Overt propaganda from the 1960s, the period of consolidation of the Kádár regime, was replaced by a conspiracy of silence about the fundamental values. Knowledge of the constitution had grown threadbare. The celebration of the constitution on August 20 had gradually turned into a nondescript public festival. The “soft” dictatorship of Kádár no longer wished to change the old traditions completely. Rather paradoxically, a reference to the thousand-year-old history of Hungarians found its way into the introductory text when the constitution was amended in 1972: “Hungary has been kept alive and sustained by the people’s work, by their willingness to make sacrifices, and by their society-forming power.” (Act 1972: I.) According to a later account, the changes were made because they wished to transcend the old, communist interpretation of the past, according to which Hungarian statehood had essentially come into being only in the wake of the liberating military maneuvers of the Soviet army.44 It was at this time that the word “citizens” replaced “workers.”

At the same time, civic knowledge concerning constitutional values and institutions continued to fade. A survey in 1965 already indicated that the legal knowledge of the population was rather uncertain, especially with regards to the field of constitutional law.45 Even official propaganda did not try to hide this deficient knowledge in the late Kádár era. In 1986, people in the street were asked as part of a television program, in connection with August 20, about what the constitution said, what the function of the national assembly was, and what the form of government of the country was. In general, people either gave ill-informed replies or embarrassed smiles.46

Contradictory Traditions of Constitutionalism after 1989

After the transition in 1989/90, long and desperate debates began within the new political elite on alternative interpretations of the past and parallel historical traditions in connection with, for instance, the new coat-of-arms of Hungary, the new state holidays and the legal standing of the president of the republic, and, later, the reburial of various figures of history.47

To sum up these debates one could say that despite the immense energies which collided, no coherent or consensual historical concept of Hungarian constitutionality emerged, leaving us with vying and to some extent conflicting interpretations of history. At the same time, even public figures speaking the same political language could rely on significantly differing traditions when justifying their positions. This is especially true of the language of “national history.”48 Nevertheless, the fact that the political elite of the Kádár era was unable expunge this discourse from public discussion and imagery clearly indicates its deep roots (one need only see the debate on the constitution in 1972). Neither have public figures today managed to shed this discourse, though they definitely do not wish to speak this language. They sometimes produce texts that refer (with evasive vagueness) to the “close texture of constitutional customs.”49

In 1996, it became obvious that the plan of the regime-changing forces to return to the program of making a constitution after the disturbed and transitional period of the transformation had failed. The new constitution, having been promised many times, had not materialized in the political meetings or in the codification process, and the moment of grace of the change of regimes had passed in that respect, as well. The parliamentary parties could not work out a consensus on certain issues and values (e.g. constitutional symbols, historical traditions), thus no final draft was prepared.50

The collective identity associated with constitutionality did not develop in Hungary after the democratic transition. As András Arató claims,

 

[w]e have a constitution and a Constitutional Court, but the constitution has failed to become the focus or have the political consciousness of the people and the political class organized around it, thus constitutional patriotism has failed to develop.51

 

In the decade following the change of regimes several of the “founding fathers” who had created the new political setup shared this view: “Since the change of regimes, respect for the constitution, which was weak in the first place, has been gradually weakening,” philosopher János Kis wrote.52 Political analyst Péter Tölgyessy explained this with his contention that “Hungarian parliamentarism is difficult to like.”53 Even those few who stood firmly for upholding constitutional conditions unchanged were obliged to speak of a certain deficit of legitimacy and place their trust, for want of a better alternative, in “invisible constitution-making,” i.e. in the normative function of the Constitutional Court.54

Thus, most critics think they have found the main cause of the lack of constitutional patriotism in the script of the change of regimes in 1989. The main cause of the lack of social consensus, according to the interpreters, was that the political transformation and the shaping of the constitutional framework took place essentially way above the head of society and was realized through a compromise between the feebly legitimate old and the new political elite, and there was no symbolic act of social approval, such as a referendum. The method of a political settlement chosen at the time, that is, the much-praised bloodless, negotiated transition, made a sharp confrontation with the past impossible and even accepted a certain legal continuity with the previous regime.55

The former political leadership never had to answer for what it had done, and no restitutions were made in terms of property or information, an approach that was justified with reference to the values of continuity in the rule of law and the practical considerations of the manageability of the state. In the years following the transition, the Constitutional Court supported this script with its interpretations of law in the name of reconciliation. These measures were probably in accordance with constitutional norms and could be justified with rational arguments, too (it is customary to point a finger here to the state of the budget as well as to national security considerations), but they greatly hindered emotional identification with the new constitutional structure.56

Constitutional identity was not reinforced by the passing of the new Hungarian fundamental law in the spring of 2011, either, although the legislators attached a lengthy preamble to it, which can be interpreted as a catalogue of national pride and constitutional patriotism. The Avowal of the National Faith evokes the Christian and European roots of the country, its alleged freedom-fighting tradition, and the “outstanding intellectual achievements of the Hungarian people.”57 It emphatically mentions the “achievements of our historical constitution” and the Holy Crown, which is expressive of the ancient history and legal continuity of the Hungarian state, but at the same time the legislation sharply separates its “own past” from the months of occupation by Nazi Germany and the decades of communism (1944–1990). However, this hasty constitution-making was not preceded by any serious social, professional or political discussion. The final text is not the result of compromises and thus cannot be haloed by any broad consensus. Several social and political groups have regarded certain formulations in the National Avowal and the Fundamental Law as direct assaults against them,58 and a large section of the legal profession felt insulted, and pointed out a number of assumed and/or real faults in the document. The politicians celebrating the new fundamental law in the Hungarian State Opera were obliged to leave through the back door because thousands of people were protesting against the fundamental law in the street. The fundamental law, described as “hard as granite,” has been amended five times since its passage, which “did not really enhance the social legitimation of the Fundamental Law under attack by the opposition anyway.”59 Even commentators looking upon the circumstances of the birth of the new fundamental law with understanding eyes are obliged to admit that the text is struggling with a legitimation deficit, and they can only hope that in practice it could be made acceptable for as large a part of society as possible by “refined interpretative maneuvering” and “creative constitutional interpretation.”60

Conclusion: The Period of Private Constitutionalism

This essay has discussed only one apparently small, symbolic question among the many complicated problems of constitutionalism and constitution making. The sketchy survey above, however, wished to point out how inextricably the issue of the past is interwoven with the relationship between constitutionality and identity. For the image formed of the past affects the actual program of constitution making, interfering with the respective arrangements of power factors, with the choice of legal solutions relating to political institutions, and so on.

This works in reverse, too: someone who discusses individual legal or political scientific issues of constitution making will often express opinions on national history (looking for institutional precedents, siding with old values, or rejecting certain traditions).

If there is not at least a minimum of consensus regarding the interpretation of the past and fundamental constitutional values, this will eventually weaken the democratic political system.

The gaps between the different interpretations are rather wide even today: the various political forces from time to time leave traces of the constitutional principles to which they adhere in parliamentary documents, the legal code (in the form of resolutions, proposals, memorial acts), or as part of official ceremonies, but these gestures are not backed up by the constitutional patriotism of the political body in the larger sense.

The content of constitutional patriotism is always shaped definitively by those above, through, for example, education, certain cults or the public discourse thematized by them. At the same time, the above survey has shown that the interpretations concerning the constitution, from its taking shape in the eighteenth century, have never been unified, thus constitutional patriotism could derive its force from a number of traditions. That patriotism, however, had finally disintegrated by the early twentieth century at the latest. It had become dishearteningly polyphonic, and was then centrally withered for decades. After the democratic transition, the new content of constitutional patriotism has not crystallized. What we have instead is a chaotic mixture of traditions and values.

It would seem that as long as there is no rapprochement on the level of political elites and the functioning of Hungarian constitutional institutions continues to falter it is hopeless to expect a consolidation of the constitutional knowledge of society at large and the development of conscious civic mentality. More precisely, this consciousness is capable of revival in situations of crisis: on such occasions, the individual citizen or assorted smaller groups of society will conjure up their incompletely acquired and confused knowledge of the history of centuries of constitutional struggles and will attempt to apply the experiences drawn from them to the political happenings of the present. Thus, Hungarian constitutional consciousness is not progressing toward the post-national level envisioned by Habermas, nor is it going to find renewal in the national framework desired by Scruton, but instead survives on a local level, in the form of the “private constitutionalism” of associations, civic movements, occasional organizations, and petition drives. And then it speaks not the language of pride, but rather that of discontent.

 

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* 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].

Gábor Almási

Faking the National Spirit: Spurious Historical Documents in the Service of the Hungarian National Movement in the Early Nineteenth Century

 

In 1828, two Latin historical documents were published in the German-language Viennese journal Archiv für Geschichte, Statistik, Literatur und Kunst. Both concerned the age of Prince Gabriel Bethlen. One was a supportive letter written by James I King of England addressed to Bethlen with references to the deep affinity between Hungary and Transylvania, promising financial help for Bethlen’s war against the Habsburgs. The other was a report on the meeting of the Viennese secret council, during which the decision was reached to resolve “the Hungarian-Transylvanian question” by killing the Hungarian-speaking adult population. My goal in this essay is to prove the spurious nature of these documents through a historical analysis and point out anachronistic elements that throw into question their authenticity. As is often the case with forged texts, these documents reveal more about their own age and the political-ideological agenda of the national movement of the early nineteenth century than of early seventeenth-century Transylvania. By examining how these documents ended up in the Austrian journal of Baron Joseph Hormayr, I offer an opportunity to reflect not only on the ways in which history was used for nationalist agendas, but also on the paradoxes of contemporary Austrian patriotism.

Keywords: nationalist historiography, patriotism, Joseph Hormayr, Gabriel Bethlen

Miloš Řezník

The Institutionalization of the Historical Science betwixt Identity Politics and the New Orientation of Academic Studies

Wácslaw Wladiwoj Tomek and the Introduction of History Seminars in Austria1

 

In this essay I examine the conceptual foundations of history seminars in Austria as they were developed by the Czech historian Wácslaw Wladiwoj Tomek at the beginning of the 1850s at the behest of the Viennese Ministry for Culture and Education. These conceptual premises were developed before the foundation of the Austrian Institute of Historical Research, so I discuss the indirect influence of Tomek’s ideas on the Institute when it was founded. I also touch on interconnections between politics and educational and university reform, the concept of a supra-national Austrian patriotism, and the situation within the Monarchy after 1849. I consider in particular the link between Tomek’s political loyalty to the Austrian state and his attachment to the Czech national movement, as well as the Czech and Bohemian political backdrop. From Tomek’s perspective and the perspective of the Ministry, this link seemed to involve an ambivalent tension between federalism and centralism. I examine Tomek’s engagement with the issue of instruction in history in the Austrian grammar schools and his “synchronic” method against this backdrop.

Keywords: historiography, nationalism, patriotism, politics of history