Law, Time, and Sovereignty in Central Europe: Imperial Constitutions, Historical Rights, and the Afterlives of Empire
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Law, Time, and Sovereignty in Central Europe: Imperial Constitutions, Historical Rights, and the Afterlives of Empire Natasha Wheatley Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy In the Graduate School of Arts and Sciences COLUMBIA UNIVERSITY 2016 © 2016 Natasha Wheatley All rights reserved ABSTRACT Law, Time, and Sovereignty in Central Europe: Imperial Constitutions, Historical Rights, and the Afterlives of Empire Natasha Wheatley This dissertation is a study of the codification of empire and its unexpected consequences. It returns to the constitutional history of the Austro-Hungarian Empire — a subject whose heyday had passed by the late 1920s — to offer a new history of sovereignty in Central Europe. It argues that the imperatives of imperial constitutionalism spurred the creation a rich jurisprudence on the death, birth, and survival of states; and that this jurisprudence, in turn, outlived the imperial context of its formation and shaped the “new international order” in interwar Central Europe. “Law, Time, and Sovereignty” documents how contemporaries “thought themselves through” the transition from a dynastic Europe of two-bodied emperor-kings to the world of the League of Nations. The project of writing an imperial constitution, triggered by the revolutions of 1848, forced jurists, politicians and others to articulate the genesis, logic, and evolution of imperial rule, generating in the process a bank or archive of imperial self-knowledge. Searching for the right language to describe imperial sovereignty entailed the creative translation of the structures and relationships of medieval composite monarchy into the conceptual molds of nineteenth-century legal thought. While the empire’s constituent principalities (especially Hungary and Bohemia) theoretically possessed autonomy, centuries of slow centralization from Vienna had rendered that legal independence immaterial. Seeking conceptual means to manage the paradox of states that existed in law but not in fact, legal scholars and regional claim-makers alike cultivated a language of “historical rights” to serve as a placeholder for the suspended sovereignty of these sleeping states, swallowed up but not dissolved in the python of empire. Remarkably, “historical rights” became a kind of Trojan horse that smuggled the specter of international law into the internal workings of imperial constitutional law: the line between the two orders grew porous long before the formal sovereign rupture of 1918. Drawing on nineteenth- and early twentieth-century legal studies and government legislation as well as parliamentary debates and peace conference submissions, I thus show how imperial constitutional law — closely intertwined with the new academic discipline of constitutional law that emerged coterminously — provides an extraordinarily powerful vantage point from which to observe the construction of “modern” notions of statehood, rights, and sovereignty out of the raw materials of dynastic law. What is more, I reveal how the intellectual products of this constitutional tradition survived the empire’s dissolution in 1918: bodies of legal knowledge designed to capture and codify the fractured nature of imperial sovereignty eventually served as intellectual tools for managing its absence. When the empire collapsed under the pressure of four years of total war, a carefully cultivated discursive terrain lay waiting, well- stocked with tropes, arguments, and claims concerning the pre-existing statehood of many of the empire’s component parts. At the Paris Peace Conference and beyond, claim-makers redeployed the rhetorical arsenal of imperial constitutional debate on the world stage, arguing for the survival of these historic polities and their rights over the rupture of imperial collapse. The interwar settlement in Central Europe, I contend, cannot be understood outside a broader sweep of legal ideas forged in the cradle of imperial law. In this way, my dissertation offers a new pre-history of the interwar international order (often narrated as a Central European “year zero”), as well as a history and post-history of the empire’s legal worlds. Sensitive throughout to the co-implication of political and epistemological questions, this dissertation is not only a history of sovereignty but also a history of knowledge about sovereignty. At its heart lies a preoccupation with the relationship between law and time. By tracking law’s “persons” and their survival through time — especially their talent for both reinvention and continuity, and their capacity to carry rights through history — it sketches a more anthropological portrait of the particular tools and logics by which legal thought sets itself in history and resists the effects of time’s passing. In offering a new account of the transfer of rights and their subjects between old world orders and new, “Law, Time and Sovereignty” doubles as a study of the temporal life of states. Table of Contents Acknowledgements ii Introduction 1 Historical and Historiographical Prologue: The History of Habsburg Imperial Sovereignty, and When Such a Thing Became Thinkable 26 PART ONE Constitution as Archive: The Codification of History Introduction 77 1. Imperial Description: Legal Pluralism as Temporal Pluralism 87 2. The Mathematics of Late-Imperial Sovereignty: Finding the Line Between Imperial and International Law 148 PART TWO The Art of Having Rights Introduction 188 3. Juridical Survival Beyond Sovereignty: The Legal Persons of the Empire 195 4. Rights Cultures under Imperial Rule: Legal Fictions and Legal Continuity 255 Coda: Nations as Juridical Persons between Imperial and International Law 288 PART THREE 1919 in the History of the Austro-Hungarian Empire Introduction 320 5. Old States and New World Orders 331 6. Old Rights and New World Orders 378 Bibliography 433 i Acknowledgements Over the last seven years, I’ve often had the feeling that I enjoyed graduate school more than was proper. The intellectual and human geography of that happiness cannot be pried apart. The first vote of thanks belongs, then, to Chris Hilliard, who suggested graduate school before the notion of a PhD had crossed my mind. In his lectures, I glimpsed the deep pleasures of this world, and wanted in. His way of being an historian — and, I confess, his stories of qualifying exam meetings with Stephen Greenblatt — readily sold me on the idea of a North American PhD; Sidra Ezrahi and Robert Aldrich also helped me get there. The undeserved blessing of turning up at Columbia to study modern European history with Mark Mazower, Sam Moyn, Susan Pedersen, and Deborah Coen is almost unseemly in its magnitude. The opportunity to think with, through, and against European history with Mark — especially in those intensive meetings leading up to my oral exam — profoundly shaped my interests as well as my understanding. The rigor of his analysis, so immune to the normativity of ostensibly self-evident truths, is a lasting inspiration and guide. Sam’s way of handling and rearranging ideas, and the precision and power of his critique, was exhilarating as well as intellectually liberating: one glimpsed a vast new horizon of all the different sorts of arguments one might make. In talking to him I felt (and feel) the inexhaustible creativity that can come with the life of the mind. Most of what I know about being an historian I learned from Susan. No one I know possesses such a deep and intuitive understanding of the historian’s craft: her facility with historical arguments (both in building them and laying bare how they work), and her academic ii integrity, serve as both model and unattainable goal. Since my first semester of graduate school, Debbie has been enormously generous with her time, expertise, and intelligence: her interest in histories of knowledge and scientific methodology helped shape my questions at crucial moments. I could not have undertaken this project at Columbia without her. My debts to the wonderful Columbia faculty run both broad and deep. I am grateful to Volker Berghahn for his kindness and guidance, and to Betsy Blackmar for her help with funding and administrative questions. Working for Fritz Stern proved immense fun, as did my orals field with the Sheldon Pollock. Matthew Jones’ 2008 seminar “Epistemic Order/Social Order” was the best class I ever took, anywhere, and one that was profoundly formative for me methodologically. I only wish I could take it again every year, and with more presence of mind than I had in that first, wide-eyed semester of graduate school. I am so lucky to have shared the last seven years with an extraordinary cohort and community at Columbia. It’s hard to overstate how much Seth Anziska has enriched my life, and how happy I was in our shared apartment on 112th St. Best friend and partner- in- crime, his counsel, solidarity, and companionship have been a source of strength and solace when I needed it most. I owe thanks also to Don and Enid Anziska and the rest of the Anziska clan, who welcomed me into their family with open arms, and to the incomparable Tareq Baconi. Simon Taylor announced himself as a friend for life when, a mere fortnight into our acquaintance, he helped me assemble Ikea flatpack furniture. It proved only the first of innumerable occasions in which his help, care, and company made all the difference. If my friendship with Stephen Wertheim began more slowly over iii dessert and floundering attempts to learn French, it has become one of my most treasured. I am likewise grateful to Jude Webre, Simon Stevens, Adam Eaker, Isabel Gabel, Kristen Loveland, Liz Marcus, Alex Bevilacqua, and to the dearest of friends, Maria John. For their expertise, invitations, collaborations, and comradeship, I thank fellow travelers Nathan Kurz, Gil Rubin, Ananda Burra, Simon Jackson, Alanna O’Malley, George Giannakopoulos, Jamie Martin, Dan Lee, Matthew Kelly, Emanuela Grama, and especially Tehila Sasson. Sally Davies, Emily Baughan, and Brigid von Preussen are the most precious of friends: I cannot now imagine my life without the nourishment of their conversation and the warmth of their care.