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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La Torre, Massimo. Constitutionalism and Legal Theory: A New Paradigm for the Concept of Law. Dordrecht: Springer, 2007.

Manning, David John. Liberalism. London: J. M. Dent & Sons Ltd, 1976.

Marra, Realino. La religione dei diritti: Durkheim, Jellinek, Weber. Turin: Giappichelli, 2006.

Mastellone, Salvo. Storia del pensiero politico europeo: Dal XV al XVII secolo. Turin: UTET, 2004.

Mill, John Stuart. On Liberty. London: John W. Parker, 1859.

Palici di Suni, Elisabetta. “Introduzione a Una Corte costituzionale per l’Austria.” In Georg Jellinek. Una Corte costituzionale per l’Austria, 1–35. Turin: Giappichelli, 2013.

Paulson, Stanley, ed. Beiträge zu Leben und Werk. Tübingen: Mohr Siebeck, 2000.

Paz, Reut. Constructing a Gateway between a Distant God and a Cruel World: The Contribution of German-speaking Scholars to International Law. Leiden–Boston: M. Nijhoff Publishers, 2013.

Plamenatz, John, ed. Readings from Liberal Writers: English and French. Everyday Handbooks. London: Barnes & Noble Inc., 1965.

Quaglioni, Diego. “Sovranità e autolimitazione (Rileggendo la Dottrina generale dello Stato di G. Jellinek).” In Crisi e metamorfosi della sovranità: Atti del XIX Congresso nazionale della Società italiana di filosofia giuridica e politica. Trento 29–30 settembre 1994, 56–78, edited by Maurizio Basciu. Milan: Giuffrè, 1996.

Roshwald, Aviel. Ethnic Nationalism and the Fall of Empires. London–New York: Roudledge, 2005.

Schönberg, Christoph. Das Parlament im Anstaltsstaat: Zur Theorie der parlamentarischen Repräsentation in der Staatsrechtslehre des Kaiserreichs (1871–1918). Frankfurt am Main: Klostermann, 1997.

Sked, Alan. The Decline and the Fall of the Habsburg Empire 1815–1918. London: New York, Longman, 1989.

Stirk, Peter. Twentieth Century German Political Thought. Edinburgh: Edinburgh University Press, 2006.

Tocqueville, Alexis De. De la Démocratie en Amérique. 2 vols. Paris: C. Gosselin, 1835–1840.

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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Vörös, Boldizsár. “A múltat végképp eltörölni”? Történelmi személyiségek a magyarországi szociáldemokrata és kommunista propagandában, 1890–1919 [“Of the past let us make a clean slate”? Historical personalities of the social democrat and communist propaganda in Hungary]. Budapest: MTA Történettudományi Intézete, 2004.

* 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

Ádám Bollók

Excavating Early Medieval Material Culture and Writing History in Late Nineteenth- and Early Twentieth-Century Hungarian Archaeology1

 

In this essay, I examine the initial stages in the nineteenth century of the study of material finds from the Middle Ages in the Carpathian Basin. I offer a brief overview of the history of the scientific work that led to the identification of archaeological findings from the Avar era and the era of the Hungarian Conquest, and I also shed light on some of the reasons underlying the failure to identify properly findings from the Hun era (i.e. the fifth century) and the late Avar era (i.e. the eighth century). I examine the principal considerations that shaped the research endeavors of historians and archaeologists in the nineteenth century, and I present the primary methodological approaches according to which historians drew on archaeological findings in support of their conclusions. I focus in particular on the works of Miklós Jankovich, Flóris Rómer, Ferenc Pulszky, Géza Nagy, József Hampel, Géza Supka, and Zoltán Felvinczi Takács, though I also consider the writings of less influential representatives of scholarly life.

Keywords: archaeology, late antique and early medieval history, historiography, Carpathian Basin, Avars, ancient Hungarians

Filip Tomić

The Institutionalization of Expert Systems in the Kingdom of Croatia and Slavonia

The Founding of the University of Zagreb as the Keystone of Historiographic Professionalization, 1867–1918

 

In this paper, I analyze the founding of the University of Zagreb as the “top of the pyramid” in an attempt to create a modern national educational system within the framework of the general process of building a modern social order in the Kingdom of Croatia and Slavonia in the second half of the nineteenth century. I focus in particular on the founding of the Faculty of Philosophy at the University of Zagreb and its history chairs. The establishment of these chairs was crucial for the legitimate scientific grounding of Croatian national historiography. Through its sanctioned expert systems, these chairs then had the potential to exert a decisive influence on narratives of “Croatian” history and the creation and reproduction of discourse on the Croatian nation.

Keywords: University of Zagreb, nineteenth century, historiography, modernization, expert system