Natasha Wheatley is an assistant professor of history at Princeton University. She is the author of The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty.
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My book is in some ways trying to help us see not only the kind of deep intermingling of pre-modern and modern ideas of sovereignty, but how we repeat some of those more fantastical attributes of sovereignty that we might otherwise presume to be long gone remnants of a more superstitious or religious age.
Natasha Wheatley
Key Highlights
- Introduction – 0:40
- The State as Modern and Pre-Modern – 2:52
- The Habsbug Empire – 9:21
- Collapse of an Empire – 24:09
- The State and International Law – 40:55
Podcast Transcript
About ten years ago Francis Fukuyama wrote a pair of books on political order. The first was called The Origins of Political Order. The second was Political Order and Political Decay. Both books cover a lot of topics, but among the most important was to emphasize the importance of the state for all forms of political governance including democracy. For some this was obvious, but for others it was a real wake up call. Since then, many writers have emphasized the importance of the state and quality governance for democracy.
Still, many important questions about the state do not get the attention they deserve. Perhaps the most fascinating questions involve how states come to life and how they die. Natasha Wheatley explores these questions in a new book called The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty. Natasha is an assistant professor of history at Princeton University.
This conversation explores how theorists in the Austro-Hungarian Empire grappled with the idea of the state in the nineteenth and early twentieth century. We discuss how the political environment raised difficult questions about the nature of the state and how those questions remain relevant for today. You’ll find this conversation has implications from how think about democracy to the War in Ukraine.
Now if you like this episode, please tell others about the podcast. Those listening on Apple or Spotify should leave a rating and review. You can also support the podcast as a monthly donor on Patreon or as a paid subscriber on Apple Podcasts. There is a full transcript of the episode at www.democracyparadox.com. But for now… Here is my conversation with Natasha Wheatley…
jmk
Natasha Wheatly, welcome to the Democracy Paradox.
Natasha Wheatley
Thank you so much, Justin. It’s a real pleasure to be here.
jmk
Well, Natasha, I really loved your book. I mean, it caught me completely off guard. Your recent book, The Life and Death of States: Central Europe and the Transformation of Modern Sovereigntytouches on a topic that I’ve come across, and brought into the podcast here and there – the idea of the state. What is it? How does it come to life? What does it mean? Your book touches on all of that in a context that I think most of the listeners would not expect at all, which is going to involve the Austro-Hungarian Empire. But in your book, you’ve got this just absolutely amazing quote that you start with. You write, “There exists no easy line between the modern and pre-modern, the mythic and the true.”
It helps us really kind of touch on this concept, because I think where the idea of the Austro-Hungarian Empire comes in is this idea of it bridging the line between the pre-modern and the modern. So why don’t we start with the abstract. Can you tell me a little bit about the state as a modern as well as a pre-modern concept?
Natasha Wheatley
That’s such a wonderful question, Justin, and it’s really lovely that you picked out that line. I mean, it can be very easy for us in the present to look back at earlier epochs and be a little bit dismissive of their irrationality or their superstitions and contrast them with our present, which is disenchanted and rational and explicable.
But, of course, modern life is full of all kinds of abstractions and projections and fantasies that we take for granted and that we presume are real. I mean, a classic one that people are writing new histories about is the idea of the economy in the singular, which is a collection of all kinds oferratically disparate phenomena that we lump together as a single entity and presume it has needs and known desires and attributes. But that’s our projection, our magic, in constructing that as a singular object. These histories of truth change and the state is such a good example of that.
Regarding the state, I guess there’s lots to say, but in earlier epochs people thought of monarchs as sovereign. As kings and queens, they possessed territories a little bit in the same way as one possesses property. They were the top of a feudal or aristocratic chain where rule was connected to ownership of land. So, it cascaded all the way down. Aristocrats administered justice and collected taxes and they in turn paid some of those to their sovereigns. It was a very different idea to that of what we now understand as the modern state, which came along and understood itself as a singular, abstract entity separate to the Monarch, separate to any particular group of people or any particular institution. But rather as an abstract entity that held sovereignty itself, and that persisted despite changes in a monarch or in a group of people. That persisted over time.
Actually, this whole idea about the relationship between sovereignty and time is one of the major features of the book, because it has its origins in one of these much earlier pre-modern ideas that comes out of medieval theology. There’s a really famous book by a fellow called Ernst Kantorowicz called The King’s Two Bodies, which shows how the idea that the king had two bodies: one that was mortal and that could die and another that was perpetual and lived on. That idea, the idea of the perpetual body of the king became the perpetual body of the state – something that persisted despite the death of a monarch or the fall of a particular government.
This is essentially a legal fiction and one that continues through today. We need this idea of the abstract, perpetual, legally immortal state. The idea of the state that persists as the same unchanging entity through time. We need it for things like state treaties, which aren’t dependent on particular governments, or state debt or all kinds of things. That’s another one of these classic fantasies that we have that are deeply embedded in modern life and we don’t think twice about, so my book is in some ways trying to help us see not only the kind of deep intermingling of pre-modern and modern ideas of sovereignty, but how we repeat some of those more fantastical attributes of sovereignty that we might otherwise presume to be long gone remnants of a more superstitious or religious age.
jmk
Now, I’ve had Anna Grzymala-Busse on the podcast few months ago and she has a similar theme to her book. It’s very different, but she comes from a much more political science tradition where she thinks of the state as something that’s a purely modern creation from that Charles Tilly kind of tradition, where Charles Tilly believed that the state was created, really out of the modern age, out of the creation of war. Grzymala-Busse obviously is making a case against Tilly, but she still adopts the idea that the state evolves out of medieval traditions, but very much becomes a modern concept. Do you see the state as a modern concept or did the state exist as a pre-modern concept as well?
Natasha Wheatley
Again, we historians don’t presume there’s some platonic idea of the state out there that then continues through epochs. We’d ask a different question. We might ask, ‘What did the state mean in these different periods?’ In answering that, you’d also have to ask, ‘Are we just following the term? Are we only interested in moments when that term is used or are we actually taking our own understanding of what a state is and are also interested in instances that perhaps were called other things? It’s a thornier question for historians than political scientists.
Political scientists do tend to come up with a definition that they see as theoretically the most persuasive and then measure history against it. Historians are much more interested in how there isn’t one place outside of time from which to define it. Each era is going to define these things themselves. Certainly, the attributes of the state that we consider now to be elemental and essential does coalesce in the modern period. Absolutely. But they all have genealogies. They’ve all got longer legacies, vestiges behind them. I think it’s a little bit naive to overlook those earlier threads that play into the modern state. So, one of the things that the book is interested in is excavating them and that idea of legal immortality is a good one.
jmk
One of the things I found so fascinating about the book was that you’re using the Habsburg Empire to really think through this idea of the state. But as I’m reading your book, I’m thinking of the Habsburg Empire as both being more than a state and also less than one. How did the Habsburg Empire really fit into this idea of the state, whether it be as a modern idea of the state or a pre-modern idea?
Natasha Wheatley
Another wonderful question, Justin. Thank you. I just really liked the way you put it that the Habsburg Empire was both more than a state and less than a state. I think that’s absolutely true. Yes, of course, in some sense, if we’re just talking in very general layman’s terms, of course it was a state of some sort. But as thinking about statehood and sovereignty became ever more formalized in the 19th century, the Habsburg Empire really did represent a massive quandary for these classical theories. If you take the classical theories, people like Thomas Hobbes or Rousseau, they all really stressed a particular view of sovereignty that held that sovereignty involves one centralized, superior, supreme power. That’s what you need to be able to guarantee order and the singularity of the state. But these ideas just didn’t fit the Habsburg Empire at all.
With the Habsburg Empire, you have to understand a little bit how it was formed in order to understand why those ideas didn’t apply here. It forms gradually over the medieval and early modern period as it assimilates or incorporates lots of different smaller medieval polities. These include most famously, the Kingdom of Bohemia and the Kingdom of Hungary, but also many smaller ones such as Tyrol and Moravia. As these different territories or principalities are incorporated, they’re not just melted down into some common entity. They are incorporated as themselves, so they retain a lot of autonomy. They retain their own legal orders.
The empire is everywhere governed differently according to the local laws in place. Most ,of the time, elites are left in place. The form that this association between all these different polities took was what we now call composite monarchy, i.e., the Kingdom of Bohemia elected the Habsburg as their own king. So, in Bohemia, the Habsburg King governed as the king of Bohemia, not as any of these other identities. Similarly in Hungary, he governed as the king of Hungary. By the time that you get to the mid 19th century, these sorts of state forms are no longer the norm, whereas they had been in earlier epochs.
Thus, we’ve got this conundrum whereby formally on paper, the empire remains this concatenation of these smaller polities. But of course, over the centuries, for different pragmatic and ideological reasons, most governing prerogatives had been gradually assumed by Vienna, by the central government. You have ever more robust governing institutions in Vienna. I call it a layer cake of sovereign history of the empire in that it’s both an older, medieval version of itself and a more modern, centralized version of itself at the same time. The problem is now you’ve got to try and work out what this means for questions of statehood and sovereignty. Where does sovereignty lie? Is the king of Bohemia a sovereign or only the emperor of Austria? It ties lots of the protagonists of these debates into conceptual knots as they try and figure this out.
One of the key figures in the book is a very important late 19th century jurist called Georg Jellinek.He’s the one who actually articulates one of the theses of the book in the 1880s when he says all these classical ideas of sovereignty don’t work here. They can’t explain what we have, not only in the Habsburg lands, but also in the German empire and in Switzerland, because all of these states don’t have a singular power. They’re all conglomerate entities. They’re plural entities. They’re not unified states. According to these classical theories, these conglomerate polities can only be understood as aberrations, as deviations from the norm and thus things that require correction. That’s the wrong way of seeing it. Why can’t we generate theories that work for our form of sovereignty? Why can’t we theorize and abstract from here?
I’m very interested in what happened with this whole legal tradition as the thinkers from these lands tried to theorize sovereignty from this much more complicated and delicately arranged corner of the world. One of my arguments is that it’s that reason that the Habsburg lands became such a central laboratory for modern legal thought, producing so many of the key protagonists of 20th century legal philosophy, because none of these questions could be taken for granted there.
jmk
Can you explain a little bit more about how the empire functioned? We have states today… In fact, many of the most powerful states today have autonomous regions that have their own legal codes. We have different forms of federalism. In the United States we have multiple states that all have a central government that is then superimposed over it. What made the Habsburg Empire so different from more federal republics that exist today?
Natasha Wheatley
Another great question, and yet you won’t be surprised to know that the same fellow I just mentioned, Georg Jellinek, when he begins to try and construct a more plurally anchored theory of sovereignty, looks out around the world and says any such theory would have to be able to deal with or assimilate all the global examples. Actually, when you look around the world, plural sovereignty remains the norm. He thinks US federalism is fascinating. He writes a lot about the US and actually has a lot of correspondence with a lot of key American theorists and politicians. He looks at the Roman Empire. He looks at all the empires who are governing the globe and who all have different forms of complex arrangements for sovereignty.
Essentially, he’s really calling out the double think that’s going on with classical discourses about sovereignty, where they preach one thing but are actually practicing something else and try in some ways to close that gap. I think he’s really kind of trying to provincialize Europe, a century before that became a more standard theoretical move, by showing how this is actually just something that exists everywhere. In terms of the particularities of how the Habsburg Empire was governed, the first follow up question to that would be, ‘Well, when?’ Because these things are in flux continuously. My book really opens with the revolutions of 1848, which was this huge crisis for the empire and really inaugurated the modern constitutional moment in Austro-Hungary, i.e., the liberals who are really driving those revolutions in 1848 demand a modern constitution.
They want modern constitutional rule. Of course, there were fundamental laws in place before, but there wasn’t a constitution in the modern sense of a single document that went through the empire in propositional form. So, it’s that process of trying to write a constitution because it gets written several times and revised and revoked and rewritten and so on over the following decades that actually means that we see several rearrangements of how the empire works, several rearrangements of sovereignty in the empire and what it settles into. One is a dual track administration, where essentially for every organ or office all the way down, you had an imperial version, relating to the imperial government as a whole, and a local equivalent.
So, administration was doubled leading to all kinds of terrible jurisdictional tangles and overlaps. But it meant that both forms… As I say, in a Bohemian city, you’d have a Bohemian form of administration and a general Austrian one in play at the same time with a complex distribution of powers between them. It’s this dual track administration that has many interesting afterlives. Some of your listeners may have heard of Quinn Slobodian’s book, Globalists, which was a big book on the birth of neoliberalism. So many of the key figures there – Ludwig von Mises, Friedrich Hayek, of course – came out of the Habsburg lands. Quinn has shown how it’s this experience of Habsburg dualadministration, or layered administration, that’s really crucial to the thinking of these early neoliberal thinkers as they begin to conceptualize a layer of international economic governance above the national.
They essentially scale up that model of imperial rule to the international sphere as a whole and see this layer of international governance constraining national choices. The most dramatic constitutional restructuring of the empire happened in 1867 and that’s a settlement or a brokered agreement that in German is called the Ausgleich. We used to translate it as the compromise, but now the favored translation is the settlement. That essentially creates the Austro-Hungarian Empire, the hyphenated empire. Before that, it’s really just either the Habsburg Empire or the Austrian Empire. This hyphenated state form is two states joined together. So, Hungary on the one side, the Kingdom of Hungary, and on the other side, all of the Habsburg’s remaining lands. There are lands to the West of the empire that include the Austrian lands proper, plus the Bohemian lands, Tyrol, Slovenia, so on and so forth.
It’s a really complex arrangement because the whole idea is that Hungary wants to insist that it is sovereign, equally sovereign. That we’ve got these two imperial halves and they’re both sovereignand that they only share certain common ministries. Foreign affairs are conducted in common. War is conducted in common. Finance is conducted in common. Otherwise, everything else is separate. It means that they’ve got different parliaments. It also means there’s different citizenship. You can imagine then, what this means about the state of sovereignty. If you don’t even have a common citizenship, can this conglomerate entity really be called or understood as a state?
So, you’ve got very vociferous debates where the Hungarians think, definitely not. There’s nothing above the Hungarian state. We’re entirely sovereign and the Austrian jurists getting ever redder in the face, say no, no. There is still this overarching empire that encompasses both halves. This is another line where the mythic and the truth comes in because there’s evidence to argue it in both ways. So those questions remain to some extent unsettled when the empire collapses in 1918.
jmk
I think on a surface level it comes across to a modern reader, a contemporary reader, as if this is just federalism. The same system that we have in many parts of the world today. But as you’re explaining it, it’s so much more complicated.
Natasha Wheatley
Yes.
jmk
I mean, it’d be as if in the United States, Texas said that it was a sovereign country, even though it was aligned with United States, and so every other state worked together in union, but Texas had its own system that functioned on its own and only cooperated with the United States on foreign policy and maybe a handful of other issues. It’s so mind boggling to try to wrap your head around. Just the way that people then, in those different parts of the empire, whether we’re talking about Hungary or whether we’re talking about Bohemia, which is now the Czech Republic, or used to be Czechoslovakia, thought of their own place in the empire.
I’m also curious how people outside of the Austro-Hungarian Empire thought of it. If you’re in France, or you’re in England, as somebody who’s intellectual, maybe even in the diplomatic service, so that you understand how that country functions. What’s your perspective on the Austro-Hungarian Empire?
Natasha Wheatley
That’s another great question, Justin, thank you for all these perceptive roads into the book. Yes, at different points, a lot of the foreign powers really try and play on these divisions within the Habsburg Empire for their own effects. So, we can trace this back. A classic example is Napoleon on his way in conquering Europe. He says to the Hungarians, ‘You’ve never consented to being part of the Habsburg state fully. Now is the time, rise up! I’ll support you.’ He’s using that as a classic way to try and undermine an enemy. There’s a lot of foreign consciousness in that sense about these lingering legal distinctions and different identities that structure the empire and it does lead to some very funny moments and interactions, because in the 19th century, we can think of it as a period of ever greater cross imperial consciousness.
All these empires are looking at one another, comparing themselves, learning techniques, trying to understand what is what, and there are many reasons for this process. One is the ever greater integration of the world as everyone comes into contact for all kinds of new technological and economic and other material reasons. But you’ve also got this global expansion of empires around the world. This is the age of the scramble for Africa and questions of statehood, sovereignty, and modern governance are really integral both to the operation of those endeavors, but also to the ideological justification. There’s ever greater awareness about these things and it pushes to modernize, so in the 1860s you have these huge constitutional restructurings. The Habsburg Empire has this big period of constitutional reformulation. The Ottoman Empire does. You have the same thing in Japan.
In all of these cases they’re often borrowing ideas and looking at each other, so there is a really high degree of consciousness of one another. It does lead to some funny analogies. At one point in the Irish Home Rule Bill debates in the British Parliament, Gladstone draws an analogy. He says,‘Ireland is like our Hungary.’ A subsidiary, but connected power. The Hungarians say, ‘We are not Austria’s Ireland. They say Croatia is our Ireland.’
Even the Hungarian side of the empire thinks of itself as a kind of empire of sorts, in that it’s got these subsidiary lands that are subsumed into the Hungarian kingdom, but also retain their own legal identity. So, Hungarians want to make clear that Budapest is an imperial capital and Croatia is the local one, the satellite state. They definitely don’t want to be likened to a colony. You can see identities being developed through those sorts of analogies and observations that are being traded between empires.
jmk
That’s so fascinating because Croatia is a country that exists today. To think of that as a component part of the Hungarian aspect of an empire, which again, we think of as a component part of an even larger empire.
Natasha Wheatley
Yes, exactly. Exactly. These sovereignties that collapse ever on down into themselves.
jmk
So, the Austro-Hungarian Empire collapses after World War I. Its collapse brings up a lot of different questions that you deal with in the book. But before we get to that, what’s the reaction globally. Were people surprised? Was it expected? Because we talk a lot about Turkey, or rather the Ottoman Empire, as the sick man of Europe, I don’t remember hearing anything about that regarding the Austro-Hungarian empire.
Natasha Wheatley
It’s interesting, you do have a lot of that same rhetoric that you get about the Ottoman Empire about the Habsburgs as well. It’s true. It’s not considered quite as backward as the Ottoman Empire in those contemporary Western European, Eurocentric perspectives. But it is on that gradient. There is thatkind of slope eastwards is a slope backwards in a very problematic understanding of the time. Part of that assumption or assessment is precisely the legal complexity of the empire. The fact that it remains this conglomerate of older, smaller polities that is considered this anachronism in modern Europe by a lot of contemporary observers.
Overlaid with that, you’ve got these rising national movements that by the 19th century are very strong and an empire with some 11, 12 different language groups. That’s also considered the high point of nation state ideology. The late 19th century is the period where you have the unification of the German states and the Italian states and the ideal that everyone is holding up is a nationally unified or nationally homogenous state. For that reason, too, some people see the Habsburg Empire as out of step with the modern world. But we need to be very careful about taking that contemporary perspective, not only as the only one at the time, but also as ours, because as historians of empire have increasingly emphasized multinational empires are overwhelmingly the norm throughout history.
It’s a very narrow and modern idea that our states need to only have one sort of people in them. In this case a lot of people, already in the 19th century, are making normative cases in the opposite direction and saying, ‘No, modernity is about these ever greater units, bringing ever wider diversity of peoples together. This is a strength of our state, not a weakness.’ That the states of the future will all be multi-ethnic and to some extent, I think, their viewpoint has been born out even though we still hold on to the ideal of the nation state in many kinds of discourses. Look at the US. Look at any of these polities where we have different understandings of citizenship and belonging that ideally, or hopefully at least, aren’t too ethnically inflected.
But look, the whole idea of how this plays into the collapse of the empire is these different national movements, even though they are getting stronger in the late 19th century, essentially, right up until the end, right up until the First World War and even the late First World War, all those national movements are not campaigning for independence. They’re not campaigning to actually secede and break away and form their own states. They’re all campaigning for different forms of autonomy and rights within the empire. That’s in part because that was how things had been done forever. But also, because they knew, ‘How are you going to make all these small polities viable in themselves?’ It was considered that would be a weak answer to the question.
All of these territories were so ethnically intermingled, it wasn’t like these national groups lived conveniently bundled together in ways that you could easily draw a new border around them and say, ‘Here we have Czechoslovakia, we have Slovenia we have Hungary.’ No, they’re all living cheek by jowl with many others. As people already observed in the mid 19th century, if you want toorganize this part of the world nationally, you’ve essentially got to have either ethnic cleansing or genocide. You have to move people or remove people. If you want to divide things territorially, there’s no clean way of doing that between these national groups. Of course, that has to some extent been born out over Europe’s 20th century.
On the eve of the First World War, the empire was very robust. It had actually faced a greater challenge in 1848 with the Revolutions. It goes into World War I in a relatively strong position, but four years of total war are brutal on any regime. It really does come undone through that process. That’s when, especially very strongly from 1917 onwards, you have Czechs and Hungarians and others really beginning to campaign to actually be independent. The Czechs have a very successful propaganda campaign in the UK and elsewhere. The empire breaks down at the end of the war into a series of successor states. We conventionally narrate this as the decline of empire and the rise of the nation state.
But it’s really important to keep in mind that these smaller polities, in general, remain as ethnically diverse as the empire. What is Czechoslovakia contains not only Czechs and Slovaks, but a huge German minority, especially in the Western lands, a territory called the Sudetenland, which some historians of modern Europe may have heard of once or twice, because of the fact that all these Germans, who if they’d been granted the right of self-determination, would’ve wanted to join Germany. It denied that choice and incorporated it into Czechoslovakia against their will. That becomes one of the pretexts for Hitler’s invasion of Czechoslovakia just two decades later in saying that, ‘We are reuniting all these Germans. We’re completing the nation state ideal by bringing all of these Germans into the fold of the German state.’
So, this difficulty of aligning national group and state borders, remains a huge problem after the empire collapses through the 20s and 30s and is really at stake in a lot of the dramas of World War II and its aftermath. Just to follow even that example through, it’s after the Second World War that you have the mass expulsion of Germans out of Czechoslovakia. You’ve got the quote unquote return of a lot of ethnic Germans to post-war Germany, even though they’d never lived there before, because they’re actually at that point kicked out by the Czech state.
jmk
You mentioned that the revolutions of 1848 were actually more strenuous on the Austro-Hungarian Empire than World War I, but one of the reasons why when the collapse happens, the different countries that are formed exist the way that they do is in some ways based on negotiations and agreements that are based on traditions. But also traditions that were put into law during those constitutions that were formed in 1848 and processes after that. The reason why it was so strenuous, why there was so much strain during that constitutional process, according to your book, was that there were so many contradictions that were exposed through the Constitution process. Can you explain how those contradictions in the Habsburg Empire in their legal entity and existence were really shown through a constitutional process?
Natasha Wheatley
Yes. In some ways this takes us back to some of the earlier topics. When these delegates sat down to try and draft a constitution in 1848 and ‘49 and the years afterwards, you were faced with at least two, but more than two in some senses, possible versions of the empire. One is the state that was centralized with all the significant powers collected in Vienna. Another was that it was this concatenation of smaller polities. Again, the former was closer to how the empire was actually administered and yet the legal architecture of these different smaller polities had never been formally removed or overridden.
It left a lot of room for different claim makers from these territories, especially Bohemia and Hungary, to come and say, ‘No. We’ve never assented to a diminution of our status. We remain these autonomous entities that we were when we entered the Habsburg fold several centuries ago.’ The other more centralist, protagonists, politicians, jurists said, ‘Well, don’t be silly. These are these old medieval things. They’re just fantasies now or relics.’ You’ve got a very interesting discourse that evolves where the counter argument to that is, ‘No, these entities still exist legally or on paper. They’re just slumbering. They’re just suspended under the imperial umbrella for now and they’re just awaiting renewed recognition and you can’t prove that those laws or those sovereignties have been actually erased.’
They’re making an argument that a state can exist in law, even if not in material fact. It was quite hard to prove them wrong for all kinds of interesting reasons. What makes the story even more interesting is that when the empire does collapse, all of those same discourses acquire a new vocation on the world stage or have new uses on the world stage.
Essentially the Czechs say the new state of Czechoslovakia is not actually a new state. ‘What we are doing is simply continuing the legal self of the kingdom of Bohemia. So, we’re not creating something radically new here. You don’t need to be scared about this. You don’t need to be scared about the precedent that this sets to the breakup of your own empires or the problems of self-determination that is a kind of creation of something out of nothing. No, we’re already an international legal entity. We’ve been sovereign before and now we’re simply reclaiming the sovereignty we had earlier.’
The Hungarians make the same argument. Essentially the only one of these successor states that claims no past and that is very keen to shut off all legal inheritance, is this rump Austrian state, which wants to maintain that it’s not the legal heir to the Habsburg Empire for very obvious strategic reasons, because it doesn’t want to inherit the empire’s war debt and other disadvantageous terms and conditions. It’s a funny turnaround where for a long time the Austrian jurists had been saying, ‘Well, it’s all just a fantasy. These ideas of the survival of the Bohemian state.’ Now they’ve become very invested in the idea that that was the case. There’s lots of twists and turns in this story in unexpected ways.
jmk
There’s something you said that I thought was interesting, because I’m not quite sure that it’s correct. When you said that these states, like Bohemia and Hungary said, we have these rights that were often by their detractors called relics, they said, no, they exist, even if it’s just on paper. The paper part is where I’m objecting a little bit because I think the whole constitutional process, the reason why it was so difficult, was because none of these rights and privileges were on paper.
Putting it onto paper and trying to figure out how things worked out seems to be where the contradictions were exposed. That once you put everything down on paper, it didn’t necessarily make sense because everybody just finagled their way through these rights and traditions. Then when they wrote them down, it no longer seemed to make sense anymore. That was the impression that I had in terms of reading through your book.
Natasha Wheatley
No, that point is well made, Justin. To some extent when I said on paper then, I was speaking figuratively or metaphorically in the sense that something that exists in the abstract or as a principle rather than something that has a fully fleshed material three-dimensional existence. The places that those old rights and prerogatives and autonomies did exist are in the legal equivalents of earlier periods, so in things like coronation oaths. The coronation oath that you had to make involved a pledge to uphold the traditional laws and customs of the land in question. Representatives from these lands point to these continual affirmations of these old rights and say these old rights have been continued through time and preserved in these rituals and legal agreements that might not look like your modern form, but that doesn’t make them any less legal.
You’re right that it’s the contradiction between all those older forms of legality that have persisted and these newer imperatives to write up or write down the constitution into a single document that raise all kinds of problems about how to reconcile those two.
jmk
What I think is so fascinating about the birth of all these new states after World War I is that their justification always has to come from some form of precedent. It’s the idea that they’re using law for the creation of these new states into the future. That if they didn’t have that argument, that sense of precedent, from both the debates and dating back to 1848 through the Constitution, but even before that, those rights and traditions, if they didn’t have that argument to base their claim on, it wasn’t going to be enough just to say that, ‘Well, we’re a group of people that are self-determining. We’re going to form our own state.’ It had to have some kind of basis in the law. At least that was my understanding. I thought that was fascinating.
Natasha Wheatley
Yes, I agree. Part of this is the law’s general preference for the past, for the continuation of old forms. We could say law, in the most general sense, has a preference for the status quo. It preserves what exists. That’s its function and it tames a lot of revolutionary energies. It’s served that function in many ways and shapes and forms. It was doubly sensitive when you’re talking about the creation of a new state because this ideal of self-determination had just become this huge new catch cry during the war. As we know, both Lenin and Wilson used it in their war propaganda and in their announcements of plans for a post-war peace. At the same time, the European imperial powers, especially Britain and France, were very nervous about this.
Why? Because they’ve got these huge globe spanning empires, and they don’t want to acknowledge any general principle of self-determination that might mean they’re going to lose these territories. They’re not going to sign up to that at all. It leads to a lot of very delicate navigation of these problems and self-determination, especially in that moment, never becomes a clear legal principle. It remains a kind of political catch cry and it’s for those political reasons I mentioned. But it’s also because there’s a legal problem involved and that goes like this: Who has rights in international law? It was traditionally just states. They are things that are recognized in international law as international entities and who can have a right in international law? Only entities that exist in international law, i.e., states.
To say that there’s something like international law guaranteed an international right to self-determination – Who does that right belong to, if not to an already existing state? It would be like otherwise trying to say that this entity that doesn’t exist in international law somehow now does because we’re giving it a right to self-determination. It’s this whole question of how can international law see an entity or a nation, a new group or so on, before it actually is one in law. It’s essentially asking it to anoint some social cultural formations as legal entities before they are, and of the fact, and it’s a logical problem. The claim makers in 1918 and 1919 were aware of these difficulties.
Beneš and Masaryk, the key Czech statesmen of the period, are very clear that they are going to invoke a natural law inspired claim of self-determination as a political resource and they do that as well. They talk about their natural right to independence and self-determination, but at the same time, they really want to make sure there’s a strong legal foundation for their claims. They marry that together with an historic claim that says, ‘We are just continuing the legal existence of the Bohemian Kingdom, so you don’t need to worry about whether this is a negative precedent. We’re not trying to create anything radically new here. We’re only trying to claim what is rightfully ours that is something that even the Habsburgs had in a funny way preserved all the way through the empire.’
Again, I’m really fascinated by the way in which these older imperial legal cultures of debate and claim making and sovereignty actually migrate out of the empire and persist even after the empire itself has died and become features of the international debate and the new post-war settlement that we have in the 1920s. Because I think for a long time we narrated this as a clean break, of central Europe’s year zero, where all these old archaic empires are washed off the map and we start again. Actually, history never works like that. When you were faced with a challenge and especially a political crisis and a new vacuum of power like you were in central Europe in 1918 and 1919, you’re going to look for new ways of anchoring legitimacy and power. These older forms of legality really serve that function.
jmk
It’s also turning a lot of our ideas about sovereignty upside down, because when we think about the tradition, the social contract tradition of Locke, Hobbes, and Rousseau, the social contract is a very domestic idea. That people come together and form a government. They create the state domestically, internally. What you’re saying is the state comes together within the context of an international community with an international law, which makes the state very much an international institution rather than a domestic one, in a lot of ways. The existence of the state depends in some ways less on the people that they’re going to govern than on the recognition of other states in the international community.
Natasha Wheatley
You’ve really hit on a really juicy point there, Justin. It is interesting how in our imaginary, and this is a very 19th century imaginary, the state precedes anything international. I’ve got this polity. It’s exactly as you say. It’s formed amongst us in that kind of social contract way. Then states may come together to make international agreements. They may consent to have these treaties that then regulate international affairs. But that happens only on the basis of sovereignty existing first in this domestic sense. Certainly, in the 19th century that’s how we understood both sovereignty and international law. This is the high point of a sovereign ideology. There’s no power above the sovereign state and international law perhaps isn’t even a real form of law because it remains something that’s only at the discretion or at the will of these particular states.
But when we think about it, the vast, vast majority of the world states have come into being in the 20th century, and all of them have come into a very thickly regulated international environment where there can be no illusion of being prior to international law or somehow having some formation that isn’t already integrated into that order. It raises all kinds of philosophical and practical or political problems and it is a real feature then of the struggles of decolonization in the 1950s and 60s and 70s where the new states of the Global South of the decolonizing world say we want a radically new existence.
We don’t want to be already bound by all these imperial structures and existing economic frameworks that have been created in a period of empire and imperial rule that don’t suit us and are all about enriching these companies and others from the Global North. It’s very hard for them to make that case stick because there’s so much entrenched self-interest in the legal framework that exists. But it leads to these philosophical questions. What happens if you don’t have any choice about the law that applies to you? What if international law actually is prior to sovereignty now? It’s actually only a handful of these states in the Global North who can have the illusion of having a sovereignty that precedes international law and that isn’t already bound by all of these more collective agreements.
One of the arguments the book makes is that this whole problem, which we can really see structuring the international reformulation of the world through decolonization in the second half of the 20th century, really begins to unfold over the collapse of the Habsburg Empire because it’s precisely with this problem, of the collapse of the empire and the rise of these new states that follow it, that the jurists of the area have to try and sort out this problem. They have to try and work out whether there is a legal order that precedes these states that can actually seal over the vacuum, seal over the rupture in the legal order, that the collapse of a state represents.
In the 19th century, people tried to replace natural law, an idea that law is anchored in God or reason or nature, with a positivist idea of law that essentially said law is only that which humans have made and which states have made. It anointed the state as the key fountain and anchor and creator and guarantor of law. That seemed like the modern, scientific, rational way of understanding where law came from. But then you have a problem. If states make the law, what happens when the state itself goes or collapses? It takes the legal order with it. Then you have this whole problem of a legal vacuum, which was also legally intolerable.
It leads these Habsburg jurists – and I spend a lot of time on the most famous one, Hans Kelsen, who some of your listeners may have heard of. He’s one of the most important legal philosophers of the 20th century. He begins to say in precisely that moment, ‘Well, actually no. We are going to have to think of international law as higher than sovereignty, as prior to sovereignty, as something that doesn’t require sovereign consent necessarily, at least in its most basic suppositions or principles, so that we can think of it as continuing over, continuing despite a state collapsing or dying.’ This moment leads to a restructuring of the hierarchy between sovereignty and international law or an attempted one at any rate that we can see as an ongoing fault line in debates about sovereignty over the rest of the 20th century.
jmk
As we look to wrap up, what I found so interesting about your book was that these ideas that you’re tracing back to the collapse of the Austro-Hungarian Empire continue to reverberate. You’ve alreadymentioned how decolonization raises all kinds of questions about the birth of new states. The collapse of the Soviet Union raises all kinds of questions about the death of a state and the birth of new states. It raises questions about when is it that the international community respects sovereignty and when is it that the international community ignores the right to self-determination. A great example is in terms of Russian aggression. The international community has come together to help Ukraine defend itself, but the international community did nothing when Chechnya, in two different wars, tried to assert its right to self-determination. It stepped aside and said that that’s an internal matter.
It really is a decision of the international community as to whether or not they think that it fits into the international legal framework. So, what I’d like to know is, in all these different cases that you’ve looked at throughout history, obviously not as in depth as the Austro-Hungarian Empire, but do you feel like international law is applied inconsistently based on the circumstances or do you think thatwe’ve applied international law fairly consistently to the birth and death of states?
Natasha Wheatley
In some ways, that’s an easy one. Inconsistently. That’s very, very clear. International law is interesting. There’s a lot of interesting methodological debates going on right now about the extent to which it’s merely a function of power and geopolitical interests or not. One of the things about law is that, yes, it’s always an expression of power, but it also provides a space for trying to contest power. That’s the ambiguity of it. We were talking about writing things down before. This is the thing about law. You write down a principle which usually suits those who are in power as that principle is formed. But it means that others can pick up that principle and say this can also mean that or we should apply this uniformly in this case as well. Even if law can’t radically constrain power in most or a lot of cases, it does provide a language for contesting power that does have different effects.
Someone who’s very interesting, who can trace concretely how a lot of those operations work is Martti Koskenniemi, who was a former Finnish diplomat and has since become probably the most prominent scholar of the history of international law. He is interested in this workman-like way in which power has to articulate itself through law. Even when you’re invading Ukraine, you still stand up at the UN and offer your justifications or your head of state writes a long essay explaining his views. That opening to discourse is always an opening for others to come in and contest it on those bases and to wrangle over those legal propositions.
Power remains absolutely front and center. But power has always come with ideas of its own legitimacy, essentially come with different forms of law and legal justification and the way in which those two things operate. Intention is the ongoing feature of history with always fascinating new iterations and examples.
jmk
Well, Natasha, thank you so much for joining me today. I want to plug the book one more time. It’s called The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty. It’s a really fascinating read that touches on subjects that I did not know so much about. Thank you so much for educating me. Thank you so much for joining me for this conversation.
Natasha Wheatley
Justin, it’s been such a pleasure. I’m so grateful for your careful reading and all your insightful questions. Thank you so much.
Key Links
The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty by Natasha Wheatley
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