251 Chapter IX Revolution And

251 Chapter IX Revolution and Law (1789 – 1856) The Collapse of the European States System The French Revolution of 1789 did not initialise the process leading to the collapse of the European states system but accelerated it. In the course of the revolution, demands became articulate that the ruled were not to be classed as subjects to rulers but ought to be recognised as citizens of states and members of nations and that, more fundamentally, the continuity of states was not a value in its own right but ought to be measured in terms of their usefulness for the making and the welfare of nations. The transformations of groups of subjects into nations of citizens took off in the political theory of the 1760s. Whereas Justus Lipsius and Thomas Hobbes1 had described the “state of nature” as a condition of human existence that might occur close to or even within their present time, during the later eighteenth century, theorists of politics and international relations started to position that condition further back in the past, thereby assuming that a long period of time had elapsed between the end of the “state of nature” and the making of states and societies, at least in some parts of the world. Moreover, these theorists regularly fused the theory of the hypothetical contract for the establishment of government, which had been assumed since the fourteenth century, with the theory of the social contract, which had only rarely been postulated before.2 In the view of later eighteenth-century theorists, the combination of both types of contract was to establish the nation as a society of citizens.3 Supporters of this novel theory of the combined government and social contract not merely considered human beings as capable of moving out from the “state of nature” into states, but also gave to humans the discretional mandate to first form their own nations as what came to be termed “civil societies”, before states could come into existence.4 Within states perceived in accordance with these theoretical suppositions, nationals remained bearers of sovereignty. The entire nineteenth century witnessed controversies about the question which rights nations arising from voluntary contracts should be entitled to claim for their members. On the one side, theorists argued that rule could be placed under the law only within states, so that nationals as citizens ought to have rights and obligations. For that reason, the nationals had to remain bearers of sovereignty.5 On the other side, a school of theorists formed itself, specifically in German-speaking areas, which was determined to equip nations with long histories leading back into the remote past and, therefore, were unwilling to derive the existence of nations from the past conclusion of contracts. Theorists opting for this doctrine argued that a nation determined the collective identity of its members6 and that, without belonging to a nation, persons would not even “have a name”.7 1 Justus Lipsius, De constancia libri duo (Antwerp, 1584) [English version, edited by John Stradling (London, 1595); new edn of the English version, edited by Rudolf Kirk and Clayton Morris Hall (New Brunswick, 1939), pp. 95-96; reprint of the edn by Stradling, edited by John Sellars (Exeter, 2006)]. Thomas Hobbes, Leviathan, chap. XXX [London 1651], edited by Richard Tuck (Cambridge, 1991), p. 244. 2 Johannes Althusius, Politica, chap. I/2, I/7, IX/12, XIX/12, edited by Carl Joachim Friedrich (Cambridge, 1932), pp. 15, 16, 90, 161 [first published (Herborn, 1603); further edn (Herborn, 1614); reprint of the original edn (Aalen, 1981); reprint of the edn by Friedrich (New York, 1979)]. 3 Jean-Jacques Rousseau, Du contrat social, chap. I/6 [printed version], edited by Simone Goyard-Fabre (Paris, 2010), pp. 129-132. 4 Adam Ferguson, An Essay on the History of the Civil Society (Edinburgh, 1966), pp. 81-96 [reprint, edited by Louis Schneider (New Brunswick, NJ, 1890); first published (London, 1773); reprint of the original edn (London, 1969)]. 5 John Austin, The Province of Jurisprudence Determined (London, 1832) [edited by Herbert Lionel Adolphus Hart (London, 1954), S. 306-308, 315; second edn of Hart’s edn (Burt Franklin Research and Source Works Series, 569 = Selected Essays in History, Economics and Social Science, 185) (New York, 1970); also edited by Wilfrid E. Rumble (Cambridge, 1995); and by David Campbell (Dartmouth, 1998)]. 6 Johann Gottlieb Fichte, ‘Reden an die Deutsche Nation. Erste Rede’ [Berlin, 1807], in: Fichte, Werke, edited by Immanuel Hermann Fichte, vol. 7 (Berlin, 1846), pp. 264-279 [reprint (Berlin, 1971)]. 7 Giuseppe Mazzini, The Duties of Man, edited by Thomas Jones (London and New York, 1955), S. 53 [first 252 However, both schools of theorists agreed on the assumption that nations did not everywhere and always have to exist in states. By consequence, nations could be older than states and might even continue to exist after their states had been destroyed.8 Furthermore, according to the same doctrine, if states had external borders that did not overlap with the areas of settlement of nations and were composed of groups of subjects not appearing to be nations, demands to adapt states to the nations could arise. Hence, the theory of the priority of nations over states placed states at the disposal of national sentiments. Specifically, this was the case within the Holy Roman Empire of the German Nation, in the Italian Peninsula and in the Balkans. Although the Empire had the word “nation” in its then official name, it had once been the holder of claims to world rule and could therefore not be derived from a government or social contract, but seemed to owe its existence to divine will. Consequently, at the turn towards the nineteenth century, theorists, rejecting as purely speculative the derivation of the Empire from divine will in the tradition of Pufendorf’s thought, were then unable to recognise the Empire as a state.9 Moreover, theorists then not merely denied sovereignty to the Imperial Estates but even doubted their statehood, thereby reducing them to executive agencies of the Empire.10 By contrast, there was widespread consensus throughout the nineteenth century about the criteria determining a nation as the population of a state. Already during the 1760s, language obtained priority as the dominant criterion allowing national identification, ahead of other criteria such as religious faith and the existence of a long-term community of communication.11 The French revolutionaries politicised the concept of nation in June 1789, when they renamed the third chamber of the legislative body traditionally called “Estates General” (États Généraux) into “National Assembly” (Assemblée Nationale) and positioned it as the representation of the French nation as a whole. This new, political concept of the nation as the group of ruled bearing sovereignty and holding inalienable legal titles rapidly spread beyond the boundaries of the Kingdom of France. Already in 1791, Edmund Burke who was then looking favourably at the revolutionary activities in France warned of the dangerous impacts that these activities might have of the entire ‘system of balanced power in Europe’: “It is in these [ecclesiastical] electorates [inside the Holy Roman Empire] that the first impressions of France are likely to be made, and if they succeed, it is over with the Germanic body12 as it stands at present. A great revolution is preparing in Germany; and a revolution, in my opinion, likely to be more decisive upon the general fate of nations than that of France itself; other than as in France is to be found the first source of all principles which are in any way likely to distinguish the troubles and convulsions of our age. If Europe does not conceive the independence and the equilibrium of the empire to be the very essence of the system of balance power in Europe, and if the scheme of public law, or mass of laws, upon which that independence and equilibrium are founded, be of no leading consequence as they are preserved or destroyed, all politics of Europe for more than two centuries have been miserably erroneous.”13 When taking into consideration the activities of Jacobins in the ecclesiastical Electorates west of the Rhine14 and published (Biblioteca democratica settimanale, 13-16) (Genua, 1851)]. 8 Arnold Hermann Ludwig Heeren, ‘Ueber Mittel zur Erhaltung der Nationalität besiegter Völker [1810] ’, in: Heeren, Historische Werke, vol. 2 (Göttingen, 1821), pp. 3-32 [reprint (Frankfurt, 1987)]. 9 Georg Wilhelm Friedrich Hegel, ‘[Die Verfassung Deutschlands, c. 1802] ’, in: Hegel, Frühe Schriften (Hegel, Werke, vol. 1) (Frankfurt, 1971), pp. 461-581., at p. 461. 10 Adam Christian Gaspari, Der Deputations-Receß mit historischen, geographischen und statistischen Erläuterungen und einer Vergleichstafel, vol. 1 (Hamburg, 1803), pp. 62, 64 [reprint, edited by Hans-Jürgen Becker (Hildesheim, Zurich and New York, 2003)].] 11 Friedrich Carl von Moser, Von dem Deutschen National-Geist (Frankfurt, 1765) , p. 5 [reprint (Selb, 1976)]. 12 Kurt von Raumer, ‘Absoluter Staat, korporative Libertät, persönliche Freiheit’, in: Historische Zeitschrift 183 (1957), pp. 55-96, at p. 76, has called attention to the fact that the phrase ‘Corps Germanique‘ was part of eighteenth-century diplomatic jargon denoting the Holy Roman Empire. 13 Edmund Burke, ‘Thoughts on French Affairs [1791]’, in: Burke, The Works, vol. 3 (London, 1903), pp. 347-393, at p. 358 [partly printed in: Paul Seabury, ed., Balance of Power (San Francisco, 1965), pp. 98-123]. 14 See: Jörn Garber, ed., Revolutionäre Vernunft (Kronberg, 1974). Lucien Jaumes, Les discourse Jacobins et la démocratie (Paris, 1989). Axel Kuhn, Jakobiner im Rheinland (Stuttgart, 1976). Kuhn, ed., Linksrheinische deutsche Jakobiner (Stuttgart, 1978). 253 elsewhere in the Empire15 as well as the then conventional perception of the Empire as the core factor of stability in Europe, Burke’s skepticism does not appear to have been unfounded.

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