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Zessner_SpitzenbergLegitimitat

By Dr. Hans Karl von Zeßner-Spitzenberg

Translated by M. T. Scarince

Translator’s note: This is the final part in a series of posts translating the work of Austrian Legitimist philosopher Hans Karl Freiherr von Zeßner-Spitzenberg (1885-1938), an active member of the Kaiser-Karl-Gebetsliga and a martyr for the cause of Austrian independence from the National Socialist occupation. Read Part I, Part II, Part III

II. Let us now apply these principles to the situation in Austria today.

For such an application to the Austrian situation to be of any use, everything else will be self-evident when there is clarity as to whether or not a lawful, legitimate acquisition of power is found at the infancy of today’s public authorities, or a breach of law, the moral wrong of violating existing authorities and better rights of rule. After that, the question of whether we are dealing with a merely legal power, or whether this power is free from any restitution obligation due to foreign violation of rights and therefore can be called a legitimate authority, is decided. 

A.) Can it claim derivative legitimacy? No! The violation of law is clearly evident, especially on November 12, 1918. The proclamation of the Republic and the new proclamation of powers on that day was a conscious and purely revolutionary act. It was clearly and unequivocally directed against the previous state authority and judicial order – putting in its place, by its own authority, something completely new and establishing completely new bearers of authority. The attempt later made by one side to see in the Imperial Manifesto of November 11, 1918, a bridge of legitimacy by which German Austria had become the “most legitimate of all republics” fails hopelessly because of the following facts:

  1. The Manifesto contains no renunciation of the throne. Such a renunciation had even been expressly removed from the text, otherwise Emperor Charles would never have signed it. This fact of a lack of renunciation of the throne was perfectly clear to the leading social-democratic parliamentarians. It was later expressly recognized in the motive report of the expulsion law and mentioned as a motive for the expulsion. Emperor Karl even expressed orally concerning the manifesto a statement that it was not a renunciation of the throne, even though this was not necessary in itself but nevertheless made by him personally; this statement was suppressed at the moment of its announcement against his wishes that it be made known publically.

  2. Even in its present form, this manifesto was signed only under duress.

  3. Even a real and valid renunciation of the throne would have put aside only the momentary bearer of state power, not the whole complex of dynastic succession rights. A total renunciation by the House of Austria, however, could have been bindingly pronounced only in a formally sanctioned state constitution.

  4. Even as an emergency law, the Manifesto did not build a bridge to the State Powers of November 12, 1918, because it was founded on the October Manifesto concerning the transformation of the Monarch into a federation of peoples, whereby the work of the National Councils operating outside of the present constitution was to be approved by later sanction on the part of the old constitutional factors. However, on November 12, 1918, nobody adhered to it. Moreover, at that time German Austria was even constituted as a member of the German Republic. The Manifesto recognizes in advance only the form of state of German Austria, but not its detachment from the union of the Pragmatic Sanction, which was to be transferred to the new federation of peoples, in which the common crown could also sit enthroned over republican constituent states – a union which in a certain sense, the Crown Lands had always been.

    In fact, only the act of November 12, 1918, by eliminating the dynasty in the center of the old Empire, finally destroyed this possibility.

  5. Finally, even if this manifesto had formed a possible bridge for a legal succession under emergency law, this was not used by the new powers, indeed it was fundamentally avoided, since in the birth law of the Republic of November 12, 1918, they solemnly rejected any legal continuity and succession, and it was expressly revoked by Emperor Charles both in the Feldkirch Manifesto and during his final illness.

The revolutionary character of the statehood of the Republic of Austria was also openly acknowledged on the Christian side by the former Federal Chancellor Dr. Seipel, in a speech at Mariazell in 1925. The jurist and even the actual leaders of the Revolution of 1918 themselves have never doubted this, Only those who had been talked or coerced into going along with their revolution persuaded themselves that they had not noticed it. 

B.)  But may we not assume an original legitimacy? Did not the rump parliament have to act in this way on November 12, 1918, since the monarchy had disintegrated, the old Austrian powers had been eliminated, there was a void of rights, a constitutionlessness in which the common good – also in the sense of Pope Leo XIII – imperiously demanded new authorities, especially since the emperor withdrew? Didn’t Pope Leo XIII also state in an encyclical to the French Catholics that a new state power was originally justified for the sake of the common good when the legitimate holders of authority had been eliminated and no longer existed, chaos had ensued and the establishment of new powers was necessary to restore order? Does not precisely this case fully apply to the situation of November 11 and 12, 1918?
The answer to this is:

  1. Such an emergency power has original legitimacy only when the old holders of authority and their legally appointed successors are not only removed from power but actually no longer exist. Then there is a clear path, indeed a necessity, for new, original powers to be established. As long as the legitimate holders of power are merely disabled and incapable of action, the emergency order is permissible only as an emergency order, like a curatorship or guardianship, that is, as long as the displaced legitimate authority is prevented from returning. It may not, however, be in opposition to the latter. It is therefore merely legal.

  2. Under no circumstances, however, can anyone claim such subsidiary legitimacy of the right of necessity who himself performs the revolutionary act of revolt and thereby first eliminates or disables the legitimate authority. Otherwise, the theory of the law-creating power of the fait accompli would be easily helped to victory again by this little detour, despite the explicit rejection of it in the Syllabus of Error. In October-November 1918 the situation was such that the rump parliament in Vienna,  initially quite apart from the others as the German National Assembly, although apparently working in the spirit of the imperial October Manifesto, but then more and more in the revolutionary spirit, pushed back lawful authority step by step, and then openly and solemnly put itself in the place of the authority that had been pushed aside de facto, but not legally, by cunning and threat. Even destroying and undermining the last remnants of the old order, the leaders of that time had no moral justification to refer retrospectively to chaos, to a legal void, or to the lack of a public authority whose expressions of life they themselves were busily at work to suppress. It would also be quite wrong to say that the Supranational Monarchy had disintegrated, all the others had broken away, the old state was in dissolution, and the House of Representatives and the House of Lords were no longer possible to legitimately consult, so a new state authority had to be created. This would be fundamentally wrong since in this fermenting process the Supranational Monarchy still had the possibility of existence as long as the legitimate dynasty kept a firm foothold in its ancestral land. In 1848, too, there were similar, perhaps in part more critical moments. And the apostasy of the others did not entitle the Austrian ancestral lands to do the same, even if the end of the Monarchy was at hand. The formal legal inability of the Chamber of Deputies and the House of Lords to pass resolutions could have been overcome by emergency law in the joint action of the dynasty and the rump parliament. After all, this rump House of Representatives had made itself the proclaimer of the new order alone and unilaterally, completely without the people. And finally, even if the monarchy of the 1867 constitution was hopelessly destroyed, finally finished, the provincial powers of the Crownlands stood intact, which actually caught and maintained order in the collapse. However, each Crownland had been indivisibly and inseparably linked with the sovereign for centuries and – practically at least with the other Crownlands remaining loyal – since the Pragmatic Sanction. If the order of 1867 was finally terminated and the forms of its constitution shattered, these authorities still existed. This bond still existed as a moral state-preserving force and had to suffice for the time being for all those who wanted to maintain a legitimate loyalty. November 12, 1918, was thus a revolution, a breach of law, a breach of loyalty, against the emperor as emperor, against him as a territorial prince, and at the same time a revolution against the Crownlands and Crownland authorities.

The deed of November 12, 1918, therefore, cannot be objectively judged in any other way. It lacks any derivative or original legitimacy; it created usurpatory powers. They have established themselves as the legal state, and are to be respected as legal powers, but they have not eliminated the moral right of the legitimate displaced authority to return, any more than they have eliminated the moral duty of all those who are in positions of responsibility today to attempt a reconnection to the legitimate order within the bounds of possibility, and whereby, even in times of the impossibility of a restoration, weight is to be placed on the duty of commitment to eventual restoration. 

For the restoration, however, there is still a reconciling and facilitating element to be considered, which, if not before strict formal jurisprudence, at least before the moral demands of legitimacy. We mean a connection to the ideals of the imperial Manifestos of October 16, 1918. Here, imperial emergency law directly called for the formation of national states and national councils, which were to be the bearers of the new Austrian community of people united under the crown. So it is not the national states per se that are undoubtedly revolutionary, illegitimate, and contrary to authority. This illegitimacy lies rather in the rejection of the Austrian idea of federation and the federal subordination under the common crown, both conditions for the right of independent reorganization. The revival of the Bohemian-Moravian-Silesian state system is even a compensation for the long unjust deprivation of these Crownlands of their legitimate state law, as it was re-established for Hungary in modern times. These are indeed fundamentally important facts for realpolitik, since they make it much easier to redress the 1918 breach of law and to legitimize the forms that exist today, be it only for the rump-Austria, or also for the other national states if levelheaded reason returns in the old Austrian area.

***

The final result of this study is that the existing powers are legal and therefore to be respected, but that in the absence of the legitimacy of their authority, a duty of restitution must be recognized in the legitimate bearers of authority, and restitution must be sought as a moral postulate.¹ In view of the soon-approaching 10th annual commemoration of the 1918 Revolution, let this be a solemn and fundamental declaration since unfortunately so many are silent on this matter.

¹An analogy to the conceptualization and moral postulate of this study is also shown by modern positive constitutional law. It is not unfamiliar with the idea that certain acts which are technically illegal (= “illegitimate”) are nevertheless legally valid (= “legal”) and remain effective until the illegal act is remedied by a competent body on the grounds of its illegitimacy and the state corresponding to the legal order (= “legitimate”) is restored (= “restoration”). (Thus Art. 180 and 140 of the Austrian Constitution). There is no statute of limitations: the annulment can take place at any time.