National-Cultural Autonomy and its Contemporary Critics (Routledge Innovations in Political Theory)

National Cultural Autonomy and its Contemporary Critics In his seminal 1899 essay Staat und Nation (State and Nation) Karl Renner presents his model for national-cultural autonomy, with a two-tier system of government that devolves considerable non-territorial autonomy to national communities, while sustaining the administrative unity of the Multination State. National Cultural Autonomy and its Contemporary Critics develops a discussion of how the model can be adapted to contemporary settings. From a variety of perspectives, the contributors discuss the contemporary validity of Renner’s arguments, paying particular attention to theories of state, liberal democracies, minority nationalism and multiculturalism, and models of regional integration. Making an important contribution to the literature on nationalism and ethnic conflict resolution, this volume will serve as a vital research tool for students and scholars of nationalism and political theory. Readers of this volume may also be interested in the forthcoming companion volume by Ephraim Nimni, Multicultural Nationalism. Ephraim Nimni is Professor in Politics and International Relations at the University of New South Wales, Sydney. He has published widely, books including Marxism and Nationalism, Theoretical Origins of a Political Crisis, The Challenge of Post Zionism, and edited the first English translation of Otto Bauer, The Question of Nationalities and Social Democracy.

Routledge innovations in political theory

1 A Radical Green Political Theory Alan Carter 2 Rational Woman A feminist critique of dualism Raia Prokhovnik 3 Rethinking State Theory Mark J.Smith 4 Gramsci and Contemporary Politics Beyond pessimism of the intellect Anne Showstack Sassoon 5 Post-Ecologist Politics Social theory and the abdication of the ecologist paradigm Ingolfur Blühdorn 6 Ecological Relations Susan Board 7 The Political Theory of Global Citizenship April Carter 8 Democracy and National Pluralism Edited by Ferran Requejo 9 Civil Society and Democratic Theory Alternative voices Gideon Baker 10 Ethics and Politics in Contemporary Theory Between critical theory and post-Marxism

Mark Devenney 11 Citizenship and Identity Towards a new republic John Schwarzmantel 12 Multiculturalism, Identity and Rights Edited by Bruce Haddock and Peter Sutch 13 Political Theory of Global Justice A cosmopolitan case for the world state Luis Cabrera 14 Democracy, Nationalism and Multiculturalism Edited by Ramón Maiz and Ferrán Requejo 15 Political Reconciliation Andrew Schaap 16 National Cultural Autonomy and its Contemporary Critics Edited by Ephraim Nimni

National Cultural Autonomy and its Contemporary Critics Edited by Ephraim Nimni

LONDON AND NEW YORK

First published 2005 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Ave, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group This edition published in the Taylor & Francis e-Library, 2005. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to http://www.ebookstore.tandf.co.uk/.” © 2005 editorial matter and selection, Ephraim Nimni; the individual contributions, the contributors All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data A catalog record for this book has been requested ISBN 0-203-50648-0 Master e-book ISBN

ISBN 0-203-56958-X (Adobe e-Reader Format) ISBN 0-415-24964-3 (Print Edition)

Contents

Notes on contributors Acknowledgements

1 Introduction: the national cultural autonomy model revisited EPHRAIM NIMNI 2 State and nation KARL RENNER PART I National cultural autonomy and contemporary theories of the state 3 Nations, states and the sovereign territorial ideal GENEVIÈVE NOOTENS 4 Karl Renner and the problem of multiculturalism JOHN SCHWARZMANTEL 5 Karl Renner, power sharing and non-territorial autonomy JOHN McGARRY AND MARGARET MOORE PART II National cultural autonomy and contemporary liberal democracies

ix xiii

1 13 42

43 54 64 82

6 Political autonomy or cultural minority rights? A conceptual critique of 83 Renner’s model RAINER BAUBÖCK 96 7 National autonomy and Indigenous sovereignty PAUL PATTON 106 8 Prospects for Romani national cultural autonomy ILONA KLÍMOVÁ-ALEXANDER PART III National cultural autonomy and contemporary dehates on minority

116

nationalism and multiculturalism 9 Renner and the accommodation of sub-state nationalisms WILL KYMLICKA 10 National cultural autonomy and liberal nationalism GEOFFREY BRAHM LEVEY 11 State and Nation versus liberal egalitarianism PAUL KELLY PART IV National cultural autonomy and contemporary models of regional integration 12 Territory, state and nation in the European Union: how relevant is Renner? MICHAEL KEATING 13 Burial and resurrection: Karl Renner’s controversial influence on the ‘national question’ in Russia BILL BOWRING 14 The politics of culture: the limits of national cultural autonomy WALTER A.KEMP 15 Towards cultural autonomy in Belgium MARY FARRELL AND LUK VAN LANGENHOVE 16 Conclusion: the sovereign predicament of dispersed nations EPHRAIM NIMNI Index

117 128 141 152

153

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176 189 202

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Contributors

Rainer Bauböck is a political scientist and senior researcher at the Institute for European Integration Research (EIF) of the Austrian Academy of Science. He is also vice-chair of the Academy’s Commission for Migration and Integration Research. His research interests are in normative political theory and comparative research on democratic citizenship, European integration, migration, nationalism and minority rights. His publications in English include Transnational Citizenship: Membership and Rights in International Migration (1994); Blurred Boundaries: Migration, Ethnicity, Citizenship (1998) (co-editor); The Challenge of Diversity: Integration and Pluralism in Societies of Immigration (1996) (co-editor); From Aliens to Citizens: Redefining the Legal Status of Immigrants in Europe (1994) (editor). He is also the author or (co-)editor of several books in German, most recently of Europas Identitäten. Mythen, Konstrukte, Konflikte (2003). Bill Bowring is Professor of Human Rights and International Law at London Metropolitan University and director of the Research Institute in Human Rights and Social Justice. He has published widely on international law and human rights. His special interest is minority rights, and he has researched and written on issues concerning the Crimean Tatars as well as national minorities and indigenous peoples in Ukraine, Russia and other countries of the former Soviet Union. He regularly advises the Council of Europe, the Organization for Security and Cooperation in Europe and the European Union on matters related to national minorities in Eastern Europe. He is a practising barrister, taking cases against Turkey, Latvia, Estonia and Russia to the European Court of Human Rights on minorities issues, and a member of the National Council for Civil Liberties. Mary Farrell is a Senior Researcher for the Comparative Regional Integration Studies Programme of the United Nations University (UNU-CRIS) in Bruges. Her recent publications include Spain in the EU (2001), with S.Fella and M.Newman, European Integration in the Twenty-first Century: Unity in Diversity (2002) and ‘Meeting the conditions of monetary union: the challenge to the Spanish model of regionalization’, Journal of Southern Europe and the Balkans, 4 (2), 2002. Michael Keating is Professor of Regional Studies at the European University Institute, Florence, and Professor of Scottish Politics at the University of Aberdeen. He has published widely on urban and regional politics and nationalism. Among his recent books are Plurinational Democracy: Stateless Nations in a post-Sovereignty Era

(2001) and The Government of Scotland: Public Policy Making after Devolution (2005). Paul Kelly is Professor of Political Theory at the London School of Economics and Political Science. He has written on a wide variety of subjects in the history of political thought and contemporary political theory. His most recent books include Multiculturalism Reconsidered (2002) and Liberalism (2004). He is completing a book on Ronald Dworkin and an introduction to political theory. Walter A.Kemp is Senior Adviser in the Office of the Secretary General of the Organization for Security and Co-operation in Europe. From 1999 to 2003 he was a Senior Adviser to the OSCE’s High Commissioner on National Minorities. He has a Ph.D in international relations from the London School of Economics. He is the author of Quiet Diplomacy in Action: The OSCE High Commissioner on National Minorities (2001), Nationalism and Communism in Eastern Europe and the Soviet Union: A Basic Contradiction? (1999), as well as a number of articles and chapters on the relationship between crime and conflict, conflict prevention and national minority issues Ilona Klímová-Alexander is an Associate Curriculum Development Project Leader at the Department of Public and Social Policy of Charles University, Prague, a member of the advisory board of the Association for the Study of Nationalities and a member of the editorial board of Nationalities Papers. Her chapter was written during her visiting fellowship at the Faculty of Arts and Social Sciences at the University of New South Wales. She has worked as a consultant for the World Bank, the Organization for Security and Co-operation in Europe, the Council of Europe, the European Union’s Monitoring Centre on Racism and Xenophobia and International Centre for Migration Policy Development. She has published on Romani issues and issues of human and minority rights, nationalism, political participation and migration. Her most recent publication is a monograph entitled The Romani Voice in World Politics: The United Nations and Non-state Actors (2005). Will Kymlicka is the author of five books: Liberalism, Community and Culture (1989), Contemporary Political Philosophy (1990; second edition 2002), Multicultural Citizenship (1995), Finding our Way: Rethinking Ethnocultural Relations in Canada (1998) and Politics in the Vernacular: Nationalism, Multiculturalism, Citizenship (2001). He is also the editor of The Rights of Minority Cultures (1995) and co-editor of Ethnicity and Group Rights (1997), Citizenship in Diverse Societies (2000), Alternative Conceptions of Civil Society (2001), Can Liberal Pluralism be Exported? Western Political Theory and Ethnic Relations in Eastern Europe (2001) and Language Rights and Political Theory (2003). He is the Canada Research Chair in Political Philosophy at Queen’s University, and a visiting professor in the Nationalism Studies programme at the Central European University in Budapest. His works have been translated into thirty languages. Luk van Langenhove is Director of the Comparative Regional Integration Studies Programme of the United Nations University (UNU-CRIS) in Bruges. He taught at the Vrije Universiteit Brussel and then was Deputy Secretary General of the Belgian Federal Science Policy Office; he also served as Deputy Chief of Cabinet of the Belgian Federal Minister of Science Policy. He has published articles on constructionism, identity and regional integration and edited in 2005 (with

F.Soderbaum) a special issue of the Journal of European Integration on ‘EU as a Global Actor: Interregionalism and the Making of the European Model’. Recent edited books include Integrating Africa (with H.Van Ginkel and J.Court, 2003) and Global Politics of Regionalism (with M. Farrell and B.Hettne, 2005). Geoffrey Brahm Levey is Senior Lecturer in Politics and International Relations, and foundation Co-ordinator of the Programme in Jewish Studies, University of New South Wales. He is co-editor (with Philip Mendes) of Jews and Australian Politics (2005) and has written extensively on issues in political theory, philosophy of social science, and Jewish political thought and behaviour. He has also contributed to several edited volumes, including Essential Papers on the Talmud (1994), Values, Interests and Identity (1995), Encyclopedia of American Religion and Politics (2003) and Identity, Self-determination and Secession (2005). He is working on a book on autonomy and the right to culture. John McGarry is Professor and Canada Research Chair in Nationalism and Democracy in the Department of Political Studies at Queen’s University, Kingston, Ontario. He is the editor, co-editor or co-author of several books, including The Future of Kurdistan in Iraq (2005); The Northern Ireland Conflict: Consodational Engagements (2004); Minority Nationalism and the Changing International Order (2001), Explaining Northern Ireland: Broken Images (1995) and The Politics of Ethnic Conflict Regulation (1993). He has also published several articles on ethnic conflict regulation in such journals as Ethnic and Racial Studies, Nationalism and Ethnic Politics, Nations and Nationalism, Political Studies, Government and Opposition, Political Quarterly, Parliamentary Affairs, Journal of Conflict Studies and the Journal of Commonwealth and Comparative Politics. Margaret Moore is Associate Professor in the Department of Political Studies, Queen’s University, Kingston, Ontario, where she teaches political philosophy. She received her Ph.D. from the London School of Economics and Political Science in 1989 and since then has taught at York University and the University of Waterloo in Canada. She is the author of Foundations of Liberalism (1993) and The Ethics of Nationalism (2001), the editor of National Self-determination and Secession (1998) and co-editor (with Allen Buchanan) of Nations, States and Borders: Diverse Ethical Theories (2003). She has also written articles in such journals as Review of Politics, The Monist and Political Studies on liberal nationalism, citizenship and the principle of national self-determination. She is working on philosophical problems raised by identity claims. Ephraim Nimni teaches ethnicity and theories of nationalism at the School of Politics and International Relations at the University of New South Wales, Sydney, Australia. He is a member the international board of the journals Nations and Nationalism and Politikon. He has been a Jean Monnet Fellow at the European University Institute, Florence. He has published The Challenge of Post-Zionism (2003). He is volume editor of the English translation of Otto Bauer, The Question of Nationalities and Social Democracy (2000) and Marxism and Nationalism: The Theoretical Origins of a Political Crisis (1991; second edition 1994). Geneviève Nootens is Professor of Political Theory at the Université du Québec, Chicoutimi. She is a member of the Groupe de recherche sur les sociétés plurinationales (Research Group on Plurinational Societies), and of the Centre de

recherche sur la diversité au Québec (CRIDAQ). She contributed to Enseigner et éduquer à la citoyenneté (2004), to Éthique et politique en contexte global (2004) and to Diversité des appartenances culturelles et réaménagement des institutions politiques et de la citoyenneté (2004). She also contributed to Rethinking Nationalism (Canadian Journal of Philosophy, supplementary volume 22, 1996). She has edited Philosophie et politique: réflexions québécoises sur la mondialisation et la diversité (Bulletin d’histoire politique, 12 (3), 2004). She has published Désenclaver la démocratie: des huguenots à la paix des Braves (2004). Paul Patton is Professor of Philosophy at the University of New South Wales. He has published widely in Continental political philosophy and on the rights of indigenous peoples. He is the author of Deleuze and the Political (2000); co-editor (with Duncan Ivison and Will Sanders) of Political Theory and the Rights of Indigenous Peoples (2000) and (with John Protevi) of Between Deleuze and Derrida (2003). Recent articles include ‘Colonisation and Historical Injustice: The Australian Experience’ in Lukas H.Meyer (ed.), Justice in Time: Responding to Historical Injustice (2004) and ‘Foucault’ in David Boucher and Paul Kelly (eds), Political Thinkers: From Socrates to the Present (2002). Karl Renner (1870–1950) was one of the most important leaders of Austrian social democracy. He twice became Chancellor of Austria (1918–20, 1945) and was President 1945–50. He was an accomplished constitutional jurist and first sketched the model for national cultural autonomy around the turn of the nineteenth and twentieth centuries. He wrote, partly under the pseudonyms of Synopticus or Rudolf Springer, a number of works on nationalism and the state, including Staat und Nation (State and Nation) in 1899, Der Kampf der Österreicher Nationen um den Staat (The Struggle of the Austrian Nations for the State) in 1902, Der deutsche Arbeiter und der Nationalismus (The German Worker and Nationalism) 1910, Das Selbstbestimmungsrecht der Nationen (The Right of Nations to Self-determination) 1918. John Schwarzmantel is Senior Lecturer in Politics at the University of Leeds and Director of the Leeds University Centre for Democratization Studies. Among his publications are Socialism and the Idea of the Nation (1991), The Age of Ideology: Political Ideologies from the American Revolution to Postmodern Times (1998) and Citizenship and Identity: Towards a New Republic (2003). He is also the joint editor of Democracy: a Reader (2001).

Acknowledgements

Many people have supported me in its preparation, and without their practical support and encouragement this book would have not been possible. Many thanks go to Nicole Schabus for her encouragement and bibliographical help, and the hospitality of the Schabus family in Gloggnitz, home town of Karl Renner in late life, and the staff of the Dr Karl Renner Museum in Gloggnitz for their support and much material. Many thanks to Wolfgang Maderthaner and the Verein für Geschichte der Arbeiterbewegung in Vienna for their kind permission to publish the first English translation of Karl Renner’s Staat und Nation, and to the Dr Karl Renner Institute in Vienna for support and material. Many thanks to my cousin, Susan Freeman, for her hospitality in Vienna and generous help. Many thanks to Rainer Bauböck for his generous help with the German text and many idiosyncratic Austrian words. I am also very grateful to The Lipman-Miliband Trust for Socialist Education and Research for a grant to help with the costs of translating Karl Renner’s text into English. I am also grateful to the Faculty Research Committee of the Faculty of Arts and Social Sciences of the University of New South Wales for its help with the cost of translating the Renner text and editing this book. Supporting colleagues are always a big bonus in the preparation of books, and I wish specially to thank John Schwarzmantel for his enthusiasm, encouragement as well as for his invaluable help in obtaining support for the publication of the book. I wish to thank Geoffrey Brahm Levey for many stimulating and thought-provoking discussions across the corridor. My friend and colleague Geneviève Nootens read drafts of the introduction and conclusion and provided me with generous feedback as well as much support and encouragement. I am also very grateful to the Centre for Comparative Regional Integration Studies (CRIS) of the United Nations University, in Bruges, Belgium, for the enthusiastic support and generous funding for the conference that set the stage for this book, ‘States, Regions and National Cultural Autonomy’, in September 2003 in Bruges. The very successful discussions in Bruges were of crucial importance for articulating the ideas formulated in the book. I am particularly grateful to the Director of CRIS, Luk van Langenhove, and to the Senior Research Officer, Mary Farrell, for her enthusiasm and dedication in the preparation of the conference. This book was again delayed by the shifting academic sandbanks of Oceania, which are particularly difficult to navigate to foreign-born sea pilots.

I am grateful to Joe O’Donnell, the translator of Renner’s article, for his dedication and professionalism. I am very grateful to Roslyn Cook for her dedication, enthusiastic help and support in the preparation of the manuscript. I am, above all, very fortunate in having such friendly, supportive and encouraging editors as Craig Fowlie and Heidi Bagtazo, who are always there to provide unflinching support, wonderful lunches and to manage crises. Finally, thanks to all the contributors, to their patience and tolerance of Renner’s idiosyncrasies and my unusual work habits. E.N.

1 Introduction The national cultural autonomy model revisited Ephraim Nimni The model for national cultural autonomy (‘NCA’) discussed in this volume is rarely mentioned in the West nowadays, even if it is debated and seriously considered in postcommunist states and in a diluted and perhaps distorted form has been recently implemented in post-communist Russia (Bowring below). The original model, which is explained in Karl Renner’s article State and Nation, first published in 1899 and published in English for the flrst time in this volume, represents an ingenious, daring and, some say, a complex and counter-intuitive model (Forman 1998:108) for managing persistent and obstinate national and ethnic conflicts within a single democratic state framework. The model has something important to say to many contemporary multinational and multiethnic societies governed in accordance with the canons of the nation state model but which show a glaring discrepancy between this model and their multinational and multiethnic composition. When first discussed, around the turn of the twentieth century within the Social Democratic Party of the collapsing Austro-Hungarian Empire, the model was designed to manage ethno-national conflicts and prevent secession by offering national and ethnic minorities constitutionally guaranteed collective rights, wide cultural autonomy and nonterritorial selfdetermination. A century later, and following the John Stuart Mill (1862/1976:361) dictum that ‘free institutions are next to impossible in a country made of different nationalities’ it is still widely accepted that sovereign states have to be nation states in order to legitimately represent their citizens. This deceptive assumption engendered states which are nation states only in name, an anomaly that motivates not only the tendency of many liberal democracies to be linguicidal, but countless internal wars and acts of ethnic cleansing when a nation in one such state wishes to live up to Mill’s unfortunate assertion. As the twenty-first century commences, there is a conspicuous discrepancy between the cultural and political borders of most nation states, in an international system that has 191 nation states represented in the United Nations, all of whom together contain 3,000 to 5,000 nations and 575 potential nation states (Ryan 1997:162). The majority of armed conflicts, and the most bloody, are between ethnic and national groups seeking some kind of independence or autonomy and those who want to prevent them from reaching that goal. The problem remains as urgent and perplexing as it was nearly 100 years ago, at the time of the collapse of the Habsburg Empire and the first formulation of the NCA model.

National cultural autonomy and its contemporary critics

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This shows how little we have advanced in the interim period in accommodating the collective rights of national minorities within a single state. In spite of this, a contemporary discussion of the NCA model elicits, as it will be seen in this volume, a diversity of objections that echo turn-of-the-century Austrian socialist debates. Sadly, by doggedly adhering to the model of the territorial nation state, we have made little progress over the last 100 years towards conceptualizing a multination state that offers collective rights and collective forms of representation to its constituent national and ethnic groups.

The origins of the NCA model On 24–29 September 1899 the All-Austrian Social Democratic Party (Gesamtpartei) met in the Moravian city of Brno (Brünn) to discuss what should be the nationalities programme of the young multinational Socialist Party. The central committee of the Socialist Party proposed to the congress the dissolution of the strong centralist tendencies that characterized socialist organizations and the creation of a confederation of nationally based parties. In an attempt to preserve the unity of the Austrian state, the congress also proposed the radical reform of democratic Cisleithanian Austria into a federation of nationalities, with no dominant language and with a complex web of autonomous arrangements for territorial and nonterritorial minorities. This proposal was not only daring and original, but also ran against the dominant idea that national communities should be organized according to the canons of the territorial nation state model. The period was the high point of nationalism, and the nation state was not only the emerging dominant model, but it was consolidated into the matrix of the twentiethcentury international system. The then dominant mixture of territorial ethno-nationalism, self-determination and nation state sovereignty signalled emancipation for some but also left a brutal trail of exile, pain and destruction for those national communities that resided in mixed areas of residence and could not therefore consummate a nation state without oppressing or dislocating others. The resolutions of the Brno conference incorporated a much diluted version of Renner’s NCA model, which was supported mainly by Czechs and Slovenes and was opposed by some German delegates, including the respected leader of the party, Victor Adler (Kogan 1949:204–17).1 However, the Brno resolutions incorporated important elements of the NCA model, which were not considered sufficient by Renner and Bauer as they disapproved of the dilution of the original argument that resulted from party negotiations. Why did the Austrian socialists decide on a course of action that blatantly contradicted prevailing models of state organization and territorial self-determination? The Austrian situation was an initial encounter with a problem that became endemic in the twentieth century, and its recurrence shows that we have few effective mechanisms to deal with it. Under these circumstances, it might be useful to reconsider the juridical and organizational principles proposed by Karl Renner and see if they help us navigate the very contemporary quagmire of demands for selfdetermination, secession, cultural recognition and collective rights.

Introduction

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Historical background At the turn of the twentieth century, the Habsburg Empire was a dual monarchy with a total population of 53 million made up of more than fifteen different nationalities, occupying an area smaller than the Iberian peninsula (Pauley 1972:23). After Prussia defeated Austria in 1866, the empire was divided into a dual monarchy through the Compromise (Ausgleich) of 1867, which remained the constitutional basis of the multinational empire until its dissolution in 1918. The Austrian part of the dual monarchy was called Cisleithanian Austria, because a significant part of its territory lay west of the Leithe river. Austria was a complicated mosaic of national, ethnic, religious, linguistic and social groups, and the two parts of the empire had separate parliaments and a significant degree of autonomy, even though foreign affairs, defence and finance were common concerns. The largest ethnic group in each part of the empire constituted a minority in the area that it controlled: Germans numbered only some 36 per cent of Cisleithania’s population, and Magyars slightly under half of Hungary’s. Czechs, the majority in Bohemia and Moravia, Poles and Ukrainians and Slovenes sought a greater say in Cisleithanian affairs. At the same time, and within the limitations of the period, Austria was a constitutional monarchy with periodical elections to its parliament through male universal suffrage. The Social Democrats had significant parliamentary representation. The circumstances of the dual AustroHungarian monarchy cemented the hegemony of the most powerful nation within each part, respectively the Austro-Germans and the Magyars (Hungarians). The main compromise was followed by minor ‘compromises’ between different ethnic and national communities and some unusual class alliances to protect local interests. This resulted in an intricate web of group coalitions that not only anticipated contemporary consociationalist models, but, according to Otto Bauer, amounted to an understanding among the ruling classes of the large nations (Germans, Magyars, Poles and Croats) to maintain their advantage over the mass of their disenfranchised fellow nationals and the newer nations—Czechs, Slovenes and Ukrainians in Austria, and Slovaks, Serbs and Romanians in Hungary. As the Austro-German rulers needed a working majority in parliament, they granted administrative autonomy and linguistic rights to the Poles of Galitzia, a region that also included other minorities. This concession to the Poles antagonized in particular the Czech nationalist leadership because the main demand of their movement was to recover for Bohemia the status of a historical kingdom (Staatsrecht) with a significant degree of autonomy. The parliamentary coalition between Austro-Germans and Poles effectively neutralized the political influence of Czech deputies. In Bohemia, the part of the empire that Czech nationalists considered Czech, there was a significant German-speaking minority. At the same time, industrialization and differential development fuelled internal migration within the empire and many Czechs and Germans resided outside their historical homelands. This situation resulted in the Czech nationalists resenting the German presence in Bohemia and Pan-Germanic nationalists resenting the presence of Czechs in the German part of the empire. In a situation that reminds of obstructions to the contemporary ‘Good Friday Agreement’ in Northern Ireland, Czech nationalists often blocked legislation in the Austrian parliament, and the Pan-Germans were equally bent on obstructing the provincial diet in Prague (Nimni 1994:120–1).

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In Vienna, internal migration caused dramatic changes. The population of the capital increased more than four times in fifty-three years. With the migration of people from all over the empire, Vienna became a lively cosmopolitan city. It experienced an unprecedented level of intellectual and artistic development, which was deeply resented by conservative PanGermans. This situation generated protracted controversies over schools instructing in languages other than German (particularly Czech), bilingual notices and place names. Victor Adler, the veteran socialist leader and founding member of the Socialist Party, was moved to say that even the names of railway stations had become an important question of principle in Austria (Joll 1974:122). The Austrian Socialist Party was one of the very few multinational organizations in late imperial Austria that survived this period of ethnic and national confrontation more or less intact. To avoid the threat of ethnic and national disintegration, the Austrian socialists made considerable efforts towards overcoming national and ethnic mistrust. This was first done within the Socialist Party, and subsequently by drafting pro grammatic proposals that attempted to maintain the unity of the Cisleithanian Austrian state, while giving maximum institutional, political and cultural recognition to the constituent national and ethnic minorities. The problems faced during this period have a clear contemporary resonance and the protocols of several congresses of the Socialist Party not only make fascinating reading, but also prove how little we have advanced in the last 100 years on the question of ethnic and national minority representation. For many delegates to the 1899 Socialist convention in Brno, the recognition of the equal value of minority cultures in the public domain was a key political demand, something that more than a century later continues to be the subject of a protracted political and academic discussion. For this reason, the study of late Habsburg history can help our understanding of the difficult relationship between ethnic and national identity, and help to illustrate how we may secure multination states, channel ethnic politics into a constructive direction, understand the complex relation between ethnicity and political democracy, and, not least, how we may develop (and discover) imaginative models of ethnic conflict resolution. The genesis of the NCA model discussed here must be understood against the backdrop of the very pressing nationalities problem faced by Austrian socialists. The process of rapid industrialization in Austria and the growing urban working class provided the conditions for the emergence of the socialist movement, which was deeply affected by national divisions from the outset. Several socialist organizations emerged among Czechs and other non-German communities, but these remained independent and suspicious of the German socialist organization at first. Finally, in 1889, and thanks to the intense efforts of Victor Adler, the socialists became a single organization, initially named the Gesamtöster-reichischen (‘All-Austrian’) socialist party and later referred to as the Gesamtpartei (‘whole party’). The name was carefully chosen to suggest the multinational character of the organization. The difficult nationalities problem of late imperial Austria and the need to counteract the claims of nationalist parties impelled the Socialist Party to relinquish the simplistic and misleading formulas that prevailed in most turn-of-the-century socialist parties. Austrian Socialists were obliged to evaluate difficult questions of minority rights, ethnic political representation and conflict resolution in great detail, and were compelled to

Introduction

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adopt more nuanced positions that displayed greater sensitivity to national demands than was normally the case in socialist organizations. In 1897 the biennial congress of the Gesamtpartei took place in the Wimberg Hotel in Vienna. Following Czech demands, the party decided to transform itself into a federative organization of six national parties (Ukrainian, Czech, Polish, German, Italian and Slovene), with a common executive committee. This new organizational arrangement gave way to an intense and prolonged discussion of theory and strategy in regard to the nationalities question, which culminated two years later in the historic 1899 congress in Brno. It is in this interim period that the NCA model took shape. Otto Bauer and Karl Renner developed the model of national cultural autonomy in a string of writings, and one of the most significant is Karl Renner’s State and Nation (1899, Chapter 2of this volume). Karl Renner (1870–1950) was a renowned constitutional jurist and one of the most important leaders of Austrian Social Democracy. He was twice Chancellor of Austria (1918–20, 1945) and he became President in 1945 (1945–50). He played a major role in re-establishing Austrian independence after the end of the German occupation in 1945. As an accomplished constitutional jurist he first sketched the model for national cultural autonomy around the turn of the twentieth century. As he was a civil servant and barred from political activity in his youth, he wrote under the pen names of Synopticus or Rudolf Springer, publishing a number of works on nationalism and the state. These included Staat und Nation (State and Nation) in 1899, Der Kampf der Österreicher Nationen um den Staat (The Struggles of the Austrian Nations over the State) in 1902, Der deutsche Arbeiter und der Nationalismus (The German Worker and Nationalism) in 1910, and Das Selbstbestimmungsrecht der Nationen (The Right of Nations to Self-determination) in 1918.2 A posthumous work was published in 1964, Die Nation. Mythos und Wirklichkeit (The Nation: Myth and Reality). Otto Bauer’s most significant work is the monumental 1907 tractus, Die Nationatitätenfrage und die Sozialdemokratie, translated into English by Joseph O’Donnell and edited by myself with an introduction to the English-reading audience as The Question of Nationalities and Social Democracy (1907/2000). While the writings of Bauer and Renner certainly influenced and inspired the position of the Social Democratic Party, the NCA model, much to the consternation of Bauer and Renner, was never made party policy.

National autonomy The singularity of the NCA model can be understood when contrasted to most other models of national autonomy. In most conventional theories, national autonomy requires a territorial base for the autonomous national community, or at least the intention to build some kind of ‘autonomous homeland’ that will serve as the territorial base. Federal systems are the most common form of territorial autonomy. A different, more imperial specific form of national autonomy is home rule, a form of restricted selfgovernment granted by a central authority to one or more of its political dependencies. Home rule mainly occurs in multinational empires such as the Roman or British empires. This

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system provides some recognition of minority cultures, if autonomous populations remain loyal to the imperial government. In contemporary terms, the autonomous governments in the Spanish state and the Italian region of Alto Adige/Sud Tyrol are yet another form of national autonomy. Here the Spanish constitutional arrangement stipulates a distinction between ‘historical’ and ‘non-historical’ autonomies. The historical autonomies are those that existed as autonomous regions before the Franco dictatorship. These are usually regions with a strong ethno-national identity (Catalonia, the Basque Country and Galicia). In the Soviet model, national autonomy reached levels of unprecedented complexity. The Soviet Union defined itself as a multinational state, and granted different levels of national autonomy to its large collection of ethnic and national minorities. In distinction to the Ottoman millet system, the principle was meticulously based on territorial administrative districts organized on an ethno-national basis. Here, over 100 different national and ethnic minorities were given differing levels of cultural autonomy in predefined territories. Those who did not have one, such as the Jews and Armenians, were simply administratively allocated one. The largest units, the ‘titular’ republics, were given the right to nominally secede from the Union in the Soviet constitution, despite constitutional cast iron safeguards to prevent secession. The idea was that every nationality should have its own territorial base from which it could develop its cultural life. The Yugoslav model of communism further expanded the MarxistLeninist model into a system that allowed an even greater degree of territorial national autonomy. Yugoslavia was more decentralized and the constituent autonomous republics had more autonomy than their Soviet counterparts. Yet, with the collapse of communism, the autonomous federal system became the basis for the ethnic disintegration of the federal state. The burning desire to create ethnically based independent nation states in place of the autonomous republics led to unparalleled acts of brutality and ethnic cleansing. Liberal democracies have considerable difficulty coming to terms with ethnic or national autonomy if it is not clearly expressed in territorial terms. Classical liberalism has difficulty conceptualizing national autonomy because it is committed to privileging equal individual representation and individual autonomy above any other right. Historically, the liberal normative tradition was suspicious of collective rights. National autonomy is a collective demand, requiring differentiated rights for a national group. Sometimes, demands for national autonomy clash with basic liberal beliefs about freedom and strict political equality of all individual citizens. Quebec, for example, enjoys considerable territorial autonomy within the Canadian state. It enacted legislation requiring the compulsory use of French in the public domain, and required French-speakers and immigrants to send their children to French schools. The Québécois government sees Quebec as a threatened linguistic island in an anglophone sea, and considers that Québécois culture will disappear if it is not protected. Here the compulsion to speak French in the public domain is considered a matter of cultural survival. Yet inflexible Canadian liberals consider this expression of cultural autonomy as violating the liberal principle that requires freedom of choice and political equality for all citizens. Affirmative action principles are of little help in such situations. In the case of disadvantaged groups, affirmative action principles and policies are designed to ultimately erase differences based on sex, gender and ethnicity. In sharp

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contrast, demands for national and cultural autonomy are designed not to erase but, on the contrary, to maintain and legitimize difference in the public domain. These demands clash with versions of liberalism that are, according to Charles Taylor (1994:60), inhospitable to difference. The demands of indigenous peoples in settler liberal democracies dramatically highlight the problem. Indigenous groups invoke centuries of displacement, settler invasion, cultural destruction and often genocide to justify their demands for national and cultural autonomy with differential rights. Indigenous demands for self-determination rarely request territorial sovereignty even if they draw their legitimacy from strong affinities with homelands. In states that are often violent intrusions into their ancestral homelands—an intrusion that made them scattered minorities—indigenous peoples demand national autonomy and public recognition of their way of life. Liberal democratic states deal comparatively well with ‘melting pot’ situations. Here individual members of minorities, usually immigrant minorities, simply desire nondiscrimination to allow full integration and assimilation to the national majority. In this situation the issue is not autonomy but individual choice, something that liberal democracies are particularly well suited to handle. However, the problem begins when, usually but not always, autochthonous national minorities demand recognition of their specific collective identity in the public domain, demanding rights and autonomous arrangements that are not applicable to all. The demand is for recognition of segmental and differentiated collective rights, and this offends the liberal notion of equality between sovereign and unencumbered individuals. Furthermore, as many consociationalist scholars have noted, liberal democracy is not well suited to societies that are divided by ethnic or national antagonisms, and this is when the NCA model can help to iron out and remedy these liberal democratic shortcomings. To some extent, the consociational model is also attempting to meet these challenges, and its findings merit further discussion.

Consociationalism Theories of consociationalism and consociational democracy play an important role in the discussion of ethnic and national conflict resolution and minority rights. Most contemporary applications of consociationalism take as a point of departure the seminal book by Arend Lijphart, Democracy in Plural Societies (1977). The aim of the model is a pattern of democratic representation in societies that are deeply divided, usually on ethnic grounds. According to Lijphart (1982:166), the consociational model is characterized by five principles, grand coalition government, power sharing, autonomy, minority veto and proportionality. McGarry and O’Leary (2004), in what promises to be a path-breaking work in consociationalist theory, dropped the grand coalition as the constitutive aspect of consociationalism.3 Favourable conditions are required for a consociational model to operate. These are: a balance of power between segments, a multi-party system, crosscutting cleavages and traditions of elite accommodation. Belgium is considered to be a very interesting case for consociationalism, and Lijphart has extensively discussed this. In addition, the recent federalization process and the idea behind the institutionalization of the Vlaamse Gemeenschap appear to justify the main tenets of the consociationalist

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model (Knappskog 2001:529). Particularly in the case of Brussels, the consociational arrangement is non-territorial and appears to be very close to the NCA model. Lijphart is not only well acquainted with the NCA model, but also shows considerable sympathy for it. He cites Bauer and Renner favourably because he considers that the NCA is an important variant of consociational, non-territorial federal democracy and because the model emphasizes the individual’s right to elect what community she or he wishes to belong to; furthermore, that these communities acquire a collective personality via the constitutional status—the status of the Kulturgemeinschaft. He argues that ‘where the segments are geographically too interspersed, segmental autonomy has been established on the personality principle, in the Netherlands, Austria…in Belgium’. From this he concludes that autonomy, a key ingredient in consociational democracy, has proved to be compatible with territorial autonomy and with the personality principle (Lijphart 1977:43, 1995:278). However, Lijphart does not discuss the other key dimensions of the personality principle, collective rights, segmental sovereignty and the challenge to the atomistcentralist doctrine that results from the organic implementation of a commonwealth of Kulturgemeinschaften, and these issues have been largely ignored by more contemporary consociational scholars. It is perhaps by considering the implications of these last three key aspects of the NCA that the consociational model can be enriched considerably from the multifaceted conceptual dimensions of NCA, while the NCA model can be enriched by the wealth of empirical work of consociationalist scholars on deeply divided societies. Consociationalism has been criticized for its excessive emphasis on elites, for consolidating ethnic and national cleavages, and focusing too much into closing communities, and not allowing trans-communal links to develop. McGarry and O’Leary argue that the original model also neglected questions of self-determination. However, because the model is better at creating comparative and empirical models than at developing an alternative conceptualization of the nation state and national sovereignty, it cannot easily defend itself from universalizing criticisms, and here the conceptual depth of the NCA model will come as considerable help, particularly on questions connected with state sovereignty, self-determination and community sovereignty and the atomistcentralist principle. The NCA model is better able to handle two arguments. First, the NCA model can counterbalance the excessive emphasis on elites through the need to develop organic communities with collective rights and collective juridical personae, something that will diminish the role of elites and allow a more inclusive pattern of internal democracy. Second, the emphasis on veto and consensus in the consociational models tends to suggest a model of deliberative democracy that is not compatible with societies with deep cultural or ethnic cleavages. Instead, the institutionalization of difference will permit a model of agonistic rather than consensual democracy, as a deliberative consensus is impossible in societies riddled with ethnic conflicts.4

National cultural autonomy Except for consociationalism, and in sharp contrast to most other forms of national autonomy, Renner and Bauer’s national cultural autonomy model rests on the ‘personality principle’, the idea that autonomous communities are organized as sovereign

Introduction

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collectives whatever their residential location within a multinational state (Renner 1899/2005, Chapter 2 below). As in the millet system in the Ottoman Empire, peoples of different ethnic identities can coexist in the same territory without straining the principle of national autonomy. The crucial difference from the Ottoman millet system is, however, that the autonomous communities are organized democratically and are based on individual consent to belong and internal democracy. The analogy used by Renner is that of religious communities. Much in the same way as Catholics, Protestants and Jews could coexist in the same city, Renner argued, so members of different national communities could coexist with their own distinct institutions and national organizations, provided they did not claim territorial exclusivity. The model of national cultural autonomy acknowledges that national communities require recognition of their specificity and difference in the public domain, and this is achieved through the existence of legally guaranteed autonomous and sovereign corporations. Unlike more conventional forms of autonomy and self-determination, it rejects the idea of ethnically or nationally exclusive control over territory. Renner derives the term ‘personality principle’ from the leading German historian Friedrich Meinecke. In his monumental work Weltbürgertum und Nationalstaat (1907/1970), he criticized the notion of the sovereign state as the embodiment of ethical values and of Realpolitik as justifying the breaking of moral laws. In his Right of Nations to Selfdetermination (1918) Renner specifically cites Meinecke when he argues that ‘personality is not only the highest form of autonomy, but that it is also the highest level of personal autarky and the harmonic unity of all forces and qualities’ (Agnelli 1969:96– 7).5 Drawing on Meinecke, Renner called the system he envisaged the ‘personality principle’ because it referred to the widest personal choice of its members to partake in a particular national association. Renner contrasted this with the ‘territorial principle’, which is characteristic of the modern nation state. Renner describes the territorial principle in the following way: if you live in my territory you are subjected to my domination, my law and my language. This, according to Renner, suggests domination and not equality of rights. It suggests the dominance of the ethnic majority over the ethnic minority, the dominance of settled populations over immigrants, and the dominance of settlers over indigenous peoples. The model proposed by Renner and Bauer is well suited to minorities that demand significant autonomy but for a variety of reasons cannot have separate states. A prime example of such minorities is indigenous peoples in liberal settler societies. In an argument that closely resembles Bauer and Renner’s ideas, James Tully (1995:197–8) argues that the political recognition of diversity is one of the most important ways to ensure constitutional allegiance in culturally diverse states. Renner is fond of comparing ethnic conflict with the religious wars that plagued early modern Europe, when absolutist German states imposed a particular religion on their subjects in the wake of the Peace of Augsburg. Here the organizational principle cuius regio illus religio (in this region, that religion—or, who governs the territory decides its religion) decided religious beliefs and led to countless wars. This problem was resolved, according to Renner, when religion was separated from territorial sovereignty and the right of religious groups to coexist side by side became the norm. In the modern nation state, however, Renner argues, the organizational principle is cuius regio illus lingua (in this region, that language—who governs the territory decides the language). The

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personality principle, according to Renner, would separate the question of governance from the issue of protecting national and cultural identities, just as religious freedom separated church from state. As explained in State and Nation below, Renner’s model requires that all citizens declare their nationality when they reach voting age. Members of each national community, whatever their territory of residence, would form a single public body or association endowed with a legal personality, collective rights, segmental sovereignty and competences to deal with all national cultural affairs in the context of a single multination state. The NCA model addresses weaknesses of other models of territorial autonomy: national territorial boundaries always create minorities and propensities to ethnic discrimination. In a world of migration and differential development, territorial boundaries are porous, and population movements tend to upset neat schemes for fortress states. This situation inevitably results in ethnic and national minorities constituting unwelcome pockets in any autonomous or sovereign territories. The second advantage of the model is that it does away altogether with the idea of national minorities and the need for specific minority protection. As argued earlier, the status of national minorities is the by-product of a national state that has a sovereign national majority. In the NCA model, even if the citizen inhabits a territory where the majority belongs to a different national group, on questions of national and ethnic interest citizens of different ethnic groups are not subject to the cultural practices of the majority, but can rely on their own transterritorial national organization, which has the status of a public corporation with sovereign areas of competence (Kann 1970:244). This is an important advantage of the Bauer-Renner model over contemporary liberal theories, as it obviates the need to pursue complex and invidious discussions on the rights and wrongs of minority communities, and, more important, it obviates the need for patronizing and controversial special cases. In this volume we revisit the NCA model as proposed by Renner’s important article, 104 years after it was first published, and contributors examine the contemporary validity of the model from their own experience and perspective on nationalism, multiculturalism and minority rights. Karl Renner in his 1899 article presents the model for NCA in the language of the period. Rainer Bauböck argues that the NCA idea must be regarded as a supplement and not as an alternative to territorial government rights for ethnic minorities. Bill Bowring analyses the curious resurrection of the NCA idea in the Russian Federation and discusses the controversial influence of Renner. Mary Farrell and Luk van Langenhove look at the vexed question of cultural autonomy in Belgium and draw analogies with the NCA model. Michael Keating looks at the NCA and its relevance to the project of European integration and finds that the Renner model can complement some aspects of regional integration. Paul Kelly analyses the NCA model in the context of the contemporary liberal debate on multiculturalism and finds that a few of Renner’s arguments hold ground against the attack of Brian Barry against multiculturalism. Walter Kemp argues that the NCA model is useful only in so far as it can contain extreme forms of minority nationalism and cultural politics. Ilona Klímová looks at the possibility of using the NCA model to advance Romani demands for self-determination. Will Kymlicka considers various possibilities for the implementation of NCA and concludes that territorial autonomy is preferable on normative and practical grounds. Geoffrey Brahm Levey argues that NCA is unlikely to satisfy national claims where identification with

Introduction

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land, language preservation and symbolic recognition are concerned. John McGarry and Margaret Moore argue that NCA might be useful for dispersed or intermixed populations but it will not suffice for nationally mobilized groups. Geneviève Nootens finds in Renner’s model an important challenge to the equation state-nation-sovereignty-territory and a useful model to rethink the concept of sovereignty. Paul Patton looks at the NCA in connection with indigenous sovereignty and finds that NCA does not address the complexities of indigenous sovereignty. John Schwarzmantel argues that Renner NCA addresses the contemporary concerns of the multiculturalism and the politics of identity and despite its weaknesses can contain extreme nationalist demands.

Notes 1 Kogan (1949) provides a summary of Protokoll über die Verhandlungen des Gesamtparteitages der sozialdemokratischen Arbeiterpartei in Österreich Brünn (1899). There is also a Spanish translation available (Ceretti 1978:181–217). 2 In The Struggles of the Austrian Nations…and The Right of Nations to Selfdetermination Renner elaborates in greater detail the NCA model. These books are not available in English. 3 I am grateful to John McGarry for allowing me to see a copy of the introduction in advance of publication. 4 For a discussion of agonistic democracy see Mouffe (2000), and for an interesting application of agonistic democracy to a deeply divided society see Little (2003). 5 My translation from Italian.

References Agnelli, A. (1969) Questione nazionale e socialismo: contributo allo studio del pensiero di Karl Renner e Otto Bauer, Bologna: Il Mulino. Bauer, O. (1907) Die Nationalitätenfrage und die Sozialdemokratie, trans. J. O’Donnell, in E.J.Nimni (ed.), The Question of Nationalities and Social Democracy (2000), Minneapolis, MN: University of Minnesota Press. Ceretti, C. (trans.) (1978) Protokoll über die Verhandlungen des Gesamtparteitages der sozialdemokratischen Arbeiterpartei in Österreich Brünn (1899), in ‘La Segunda Internacional y el problema nacional y colonial’, Cuadernos de Pasado y Presente No. 73, Siglo XXI (Mexico), 21:181–217. Coakley, J. (1994) ‘Approaches to the Resolution of Ethnic Conflict: The Strategy of Nonterritorial Autonomy’, International Political Science Review, 15(3):298–314. Forman, M. (1998) Nationalism and the International Labor Movement, University Park, PA: Pennsylvania State University Press. Joll, J. (1974) The Second International, 1889–1914, London: Routledge. Kann, R. (1970) The Multinational State, New York: Octagon Books. Knappskog, T. (2001) ‘Consociationalism: Theoretical Development illustrated by the Case of Belgium’, Res Publica, 43(4):529–50. Kogan, A.G. (1949) ‘The Social Democrats and the Conflict of Nationalities in the Habsburg Monarchy’, Journal of Modern History, 21:204–17. Lijphart, A. (1977) Democracy in Plural Societies, New Haven CT: Yale University Press. Lijphart, A. (1982) ‘Consociation: The Model and its Applications in Divided Societies’, in D.Rea (ed.), Political Co-operation in Divided Societies: A Series of Papers relevant to the Conflict in Northern Ireland, Dublin: Gill and Mcmillan.

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Lijphart, A. (1995) ‘Self-determination versus Pre-determination of Ethnic Minorities in Power Sharing Systems’, in W.Kymlicka (ed.), The Rights of Minority Cultures, Oxford: Oxford University Press. Little, A. (2003) ‘The Problems of Antagonism: Applying Liberal Political Theory in Northern Ireland’, British Journal of Politics and International Relations, 5(3): 373–92. McGarry, J. and O’Leary, B. (2004) ‘Consociational Theory and Northern Ireland’, in Essays on the Northern Ireland Conflict: Consociational Engagements, Oxford: Oxford University Press. Meinecke, F. (1970) Cosmopolitanism and the National State, trans. R.B.Kimber, Princeton, NJ: Princeton University Press. Mill, J.S. (1862) ‘Considerations of Representative Government’, in H.B.Acton (ed.), Utilitarism, On Liberty and Considerations on Representative Government (1976), London: Dent. Mouffe, C. (2000) The Democratic Paradox, London: Verso. Nimni, E. (1994) Marxism and Nationalism: Theoretical Origins of a Political Crisis, London: Pluto Press. Pauley, B.F. (1972) The Habsburg Legacy, New York: Holt Rinehart and Winston. Renner, K. (1918) Das Selbstbestimmungsrecht der Nationen, in besonderer Anwendung auf Österreich (The Right of Nations to Self-determination with special Reference to Austria), Leipzig: Franz Deuticke. Renner, K. (1964) Die Nation. Mythos und Wirklichkeit, trans. S.Pierré-Caps and C.Tixador (1998) La Nation: mythe et réalité, Nancy: Presses Universitaires de Nancy. Ryan, S. (1997) ‘Nationalism and Ethnic Conflict’, in B.Little and M.Smith, Issues in World Politics, London: Macmillan. Taylor, C. (1994) Multiculturalism: Examining the Politics of Recognition, Princeton, NJ: Princeton University Press. Tully, J. (1995) Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge: Cambridge University Press.

2 State and nation1 (1899) Karl Renner Inter arma silent leges. Amidst the din of weapons, the laws are silent. Moreover, it is not only the prevailing legal situation that is shaken in times of struggle; the formation of future law, the theoretical and codificatory elaboration of the issues of the time, is impossible as long as these remain questions of power. Now, however, it seems that two years of bitter struggle2 have given way to a brief period of calm, in which blazing passion has been replaced by a certain level of sobriety on both sides. The Königgrätz3 of our domestic politics lies behind us, a Königgrätz without a victor and yet entailing immense war reparations, which in a short time, according to paragraph 14, will be paid to the Hungarians.4 The defeat of the idea of governing Austria through the domination of one nation by another, one race by another, has been confirmed. The power question has been decided on the basis of mutual powerlessness. Thus only the path of compromise remains open. It is now only a question of the formulation of the agreement, of the principles according to which the national spheres of power are to be delimited. Until now the struggle has in no sense been a struggle over principles. In the beginning the quarrel was over Cilli [Celje],5 over Weckelsdorf [Teplice and Metují], over this or that post of Counsellor, over this school or that official post and finally over all official posts in Bohemia, Moravia and Silesia. The Czech civil service fought for the more or less exclusive right to occupy official posts. The German bourgeoisie in Austria, who only a few generations previously had appointed civil servants throughout the Habsburg domains and the Holy Roman Empire of the German nation, found themselves ousted from the empire, from Hungary, from Galicia, and finally from the lands of the Crown of St Wenceslas6 and the Slavic parts of the Alps, and restricted to the small sphere of the ancient hereditary lands.7 The material significance of this fact explains the vehemence of the defence mounted by the Germans. The nationality principle, the idea of the unitary state, and the postulate of equal rights and autonomy were the banners which were supposed to align and at the same time mask the underlying material interests. Throughout the struggle, these principles were barely discussed; not a single attempt was made to formulate them in terms of law, and journalistic commentary on this issue was simply ignored. The question of power was directly dealt with as such everywhere. Today, following the adjournment of the parliament and the consequent disarmament of all the combatants, it seems that the time has finally come to raise the question of

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rights and principles, to try to derive from the conceivable principles of a solution that which is possible and necessary, and to establish the legal prerequisites required to facilitate any such solution. This investigation can hardly be any less complex than the result it arrives at. The complicated and unprecedented nature of the relationships constituting the Austrian problem makes it perhaps the most difficult of all the problems of modern government. Here it is hard to have faith in the applicability of superficial remedies. Moreover, we must take into account the diversity of the individual national questions making up the nationalities question as a whole. The notion that a solution to this question can be achieved with a single measure—such as the language law soon to be enacted for the whole monarchy—hardly seems conceivable. For every legal system is also a system based on the maintenance of peace. It is either the result of a compromise following an inconclusive struggle, or the diktat, the sic volo of the victor. The German-Czech dispute has reached its climax. Here a compromise appears possible. By contrast, the GermanSlovene, Italian-German, Italian-Slavic and in particular the Polish-Ruthenian questions are still far from the point where compromise is possible. Here the parties want the struggle; here, one side is still hoping for victory, while the other finds the status quo unbearable and takes up the struggle against it. In these cases, the belief in voluntary reconciliation between the disputants is utopian; here either the sic volo of a powerful third party can decide the final outcome of the struggle, or an armistice can be concluded ad hoc. If the language law being proposed is now put into effect, then, except in the case of its being imposed, it will be only a provisional measure, and our future development a progression from one provisional measure to another until we arrive at the final form of the solution. While the solution itself, as the culmination of this developmental process, is not yet a reality, it is necessary to know in which direction we are steering, to infer the conceivable ultimate objectives— just as we do not take a path without first determining our destination. For this reason, it is necessary to inquire as to the modalities which allow the peaceful coexistence of several national groups. Only on this basis can we define the concepts which will guide our next course of action, and form an assessment of the expediency of our present arrangements. If it is not the case that all provisional measures are compatible with progress towards an ultimate solution, then by adopting them we are merely obstructing the path to our goal. For this reason, nothing is more relevant than this irrelevant, barely discernible, utopian final result. Without a clear understanding of this culmi-nating point, there can be no proposal for action. Using scholarly means to define the principles of a resolution of the nationalities question based on the rule of law is of the highest necessity. It is precisely the attempt to define these principles that constitutes the task of the following investigation, an attempt which, it seems, has until now barely been made. The following should not be regarded as a proposal for action but as a necessary means, as essential groundwork for the formulation of such a proposal. Faced with this task, the principle of the equality of nationalities, convenient as it may be as a political slogan, proves inadequate from the outset. Paragraph 5 of the imposed constitution of 4 March 1849 declares: ‘All national groups have equal rights’, and this sentence recurs in the first line of Article 19 of the basic law of the state concerning the

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general rights of the citizens. In order to show how inappropriate the expression of this slogan in legal form is, it suffices to quote Gumplowicz’s8 critique of this article: We know from jurisprudence how a corporation or association can be a bearer of rights and how it can exercise these rights. A national group, however, is neither an association nor a corporation, and certainly not a ‘moral’ subject in the sense employed by jurisprudence…. If we lack…the necessary prerequisite for all rights, that is, a clear and precise concept of the subject which is supposed to be the bearer of the right, then we are even further away from forming a concept of how such an indefinable national group could exercise a right to which it is entitled…. Thus, however we look at the matter, the March constitution of 1849 confronts us with a riddle in paragraph 5, a key to the solution of which is not provided anywhere. We do not know what the legislator understands by the term ‘national group’ [Volksstamm], nor do we have an authentic statement of how many national groups there are in Austria [whereas the number and size of the Crown lands9 have been constitutionally established], nor, finally, is it clear in what way a national group can be the bearer of rights. The only possible interpretation of the ‘equality of national groups’ with which we are left then is a negative one, in that we interpret this legal prescription as follows: the membership of a national group does not result in a diminution of the political rights of any citizen. This interpretation, of course, makes the whole prescription seem like a completely superfluous pleonasm, in that it merely repeats that which is already expressed by the prescription concerning the ‘equality of citizens before the law’. Thus, if this prescription refers to the national group as a whole, it is impossible because national groups are not legal entities; if it refers to individuals, it is superfluous because equality before the law is already established in the basic law of the state. It will now be objected that a general principle is never an autonomous legal provision. It is only a guideline for the regulation of concrete juridical relations through concrete legal provisions, which can only be derived on the basis of this general principle. However, even in this respect, the concept of ‘equality’ does not help us. For whatever the concrete cases to which this principle is applied, it never says anything other than: whenever the legal order grants a person a right, this right may not be made dependent on a particular national affiliation, but must be an entitlement of the citizen as such. This principle is a negative one. It never provides information as to what the content of these equal rights should be. And yet what is at issue here is the delimitation of the subject matter of rights, of giving to the state what belongs to the state and to the peoples [Völker] what belongs to the peoples. Furthermore, no one in the state has the right to hold office except the monarch. How, then, should the members of each nation be accorded equal rights, when even an individual does not have the right to hold office? And it is precisely the question of holding office that is an important issue of contention. How can one conceive here of a legal prescription on the basis of equal rights? Official sovereignty [Amtshoheit] is a prerogative of the Crown and will remain so in spite of all nationalities struggles. Every

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legal prescription of this type remains a request directed to the Crown, the fulfilment of which is dependent on ministries and majorities. Similarly, there are many nationally contentious issues regarding which there can be no talk at all of a right, and thus also no talk of equal rights. In the face of all this, can we even consider the possibility of a resolution of this issue based in law? The question has been given a different formulation by the only international party in the Chamber of Deputies—or at least the only one with the courage to declare itself as such, although the Clerical and Christian Social parties, by dint of the international quality of their opponents, are at least equally international—the Social Democratic Party. It demands the right of self-determination for the nations. However, in this, as we shall see, the principle is a positive one. However, the Social Democratic Party refrains from, indeed markedly avoids, a more detailed definition of the concrete legal entity to which this right applies, and of how the dividing line is to be drawn between the right of self-determination of nations and that of the state as a whole. The most convenient way of dealing with the issue is to attribute this right to the Crown lands instead of the nationalities, the Crown lands being, of course, a legal entity in terms of both public and private law. But the autonomy of the Crown lands is a long way removed from signifying the autonomy of the nations. What it does signify will be discussed later. However one aims to settle the nationalities question—whether within a centralist or a federalist framework, by way of the autonomy of the Crown lands or that of the nationalities—if this settlement is to be cast in legal, statutory terms, one must first ask: who is to be entitled to this right, what is its content, and what sanctio, what secure guarantee, is there of its inviolability? If the politicians have in mind that the nation as such should have a certain legal influence on public administration, an influence which is to be organized and guaranteed through the language law, they do not conceive of this as a law in the substantive sense, which sets forth grounds for the rights and obligations of the citizens, that is, of natural and juridical entities. Rather, it is conceived of as an aggregate of administrative regulations which delegate to administrative instrumentalities powers and tasks relating to a particular course of action. The latter are always regulations in the substantive sense. The regulatory approach has been contested. Is this to be understood only in the formal sense that the legislature alone is competent to make such regulations or in the deeper sense that we are dealing with here, involving not only questions of the internal organization of administrative instances but important interests of the individual citizen and entire nations? Is it not these which are at issue here? If so, ‘national’ rights must be the entitlement of those for whom they are intended, and may not assume the form of powers and obligations of administrative authorities. Or do the nations not want their rights guaranteed? But what guarantees are there for a legal course of action on the part of the authorities when the precisely formulated right of the citizen is lacking? In this case, neither the Supreme Court nor the Higher Administrative Court is competent. That leaves only ministerial responsibility. Today everyone knows that this does not provide any guarantee in relation to national questions. No one deludes himself that some national right is safeguarded when ordinances are enacted into law.

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A lasting solution is only possible by means of substantive laws, that is, by means of provisions which grant the citizens of a particular nationality as well as the nations subjective public rights with a quite specific subject matter, but do not constitute rules of conduct for the authorities. An exact specification of the holder and content of these rights is the essential preliminary juridical question. Already in the case of the first formal prerequisite, the determination of the holder of these rights, we encounter several different possible principles, and one must decide which of these is to form the basis of this determination. The registration of national affiliation has been the subject of many scholarly discussions; in particular it has proved a difficult task for statistical analysis. Ficker and Keleti make particular reference here to the St Petersburg international statistical congress held in 1874 and to the congress reports. There are three possible ways of determining nationality: (1) on the basis of ethnological features, (2) on the basis of the native language, (3) on the basis of the spoken language (langue parlée). The congress decided for the last of these on the basis of expediency with regard to the statistical comprehension of the problem. It is clear that none of these three features suffices for the constitutional regulation of the nationalities question. Before we attempt to arrive at a conclusion by deductive means, we will illustrate the facts by way of an analogy. Is there an area of state and social life which exhibits a degree of affinity with the struggles between the nationalities? One area has been little used for the purpose of clarifying the concepts we are dealing with here, despite the fact that it offers much that is instructive: relations between the religious denominations. After centuries of struggle, the stages of which in many ways resemble those of our nationalities struggles, our age, that of the modern constitutional state, has seen the interdenominational question reach a phase, if not of resolution, then of legally regulated compromise. Almost without friction, several denominations with their own administrative structures are now able to coexist at the parish, district and provincial [Land] levels. While the content of denominational and national existence and rights is entirely different, the formal legal delimitation—and only this is being considered here—between denominations, as well as that between church and state—yields fruitful analogies. How is denominational affiliation regulated? Each individual denomination tends to regard the membership of the individual to be irrevocable. Baptism, circumcision and so on stamp us with indelible features. Given that the denomination itself also plays a decisive role in public life, this constitutes a source of constant contradictions and struggles. The state, as an earthly community, cannot concern itself with mutually exclusive and feuding standpoints of the denominations, which are historically and economically forced to coexist. It stresses the expressly free declaration of will and confers on this act, which is in no way a religious-ritual act, the power to generate rights in the denominational sphere. Those who have come of age choose their denomination de jure freely, and in the case of minors the choice is made by those who hold authority over them; the declaration to the governing body of the religious community suffices for the state—and rightly so. The legal order as the collective will is everywhere directed only at the will of the individual. The declared will of the person, the juridical and the natural, is the soul of legal existence. All legal relationships assume the form of the relation of wills. The substance of law, the material and ideational interests, reveal themselves as contents of the will of individuals. In terms of its imperatives, the law does not refer to properties

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and buildings. It can only refer to the wills of persons. It is not capable of taking anything else into consideration. Nothing other than the free declaration of nationality by the individual before the competent authority can determine national affiliation. The individual’s right to self-determination constitutes the correlate of the nation’s right to self-determination. Breaking with one’s nation of origin may be just as offensive for the racially defined national as is a change of religious affiliation for the believer. The judgement of such events does not fall within the domain of constitutional law, but within that of national morals. Anyone who comprehends the concept of nationality correctly, that is, according to the conclusions of scholarly research up to now, must regard this event as unchallengeable. This is not the place to trace the development of the concept of nationality during our century, and those interested in doing so are referred to the overview of the literature on the subject provided at the end of this discussion. In any case, the terminological usage has been established according to which people [Volk] as a constitutional legal concept denotes affiliation with a state system with equality of rights, national group [Volksstamm], ethnological identity with uniformity of idiom, but nationality, a spiritual and cultural community with a not inconsiderable body of national literature as an expression of this cultural community. What criterion can there be for the affiliation with a spiritual and cultural community other than the consciousness of this affiliation? The ‘native language’ cannot fulfil the role. Chamisso,10 for example, belongs to the German nation in spiritual and cultural terms. Neither can the ‘spoken language’ fulfil this role. The Italian refugee in London remains an Italian, even if he uses only English in his dealings with others. But how else is national consciousness to be comprehensible for the juridical sphere if not by way of the express declaration of nationality? To be sure, national life is manifested mainly through the linguistic community. But this is not a fundamental manifestation of the common consciousness of nationality and race. Should, for instance, evidence for the feeling of solidarity among the Slavic nations in Austria be sought in the fact that they, when negotiating together, use German? In this connection, I would simply like to cite the words of Gumplowicz: If one can nevertheless speak of nationality as revealed merely through the use of the same language, the fact remains that in this sphere a distinction must be made between active and passive nationality. Only the educated classes can possess a consciousness of a common national culture, the expression of which they find in the written language of their nation. Nowhere do the uneducated masses possess this consciousness; they are incapable of a pure true national consciousness; they can only comprehend a common tribal [Stamm] or religious affiliation. The more elevated, true feeling of nationality, which presumes a certain level of culture, is always and everywhere alien to them. For them, the language is a mark of geographical, ethnic or denominational identity, but not an expression of cultural community. This distinction explains many phenomena characterizing the public life of the nations, for example the fact that national ardour and its aspirations originate everywhere from the educated middle class, and that the common folk are in most cases merely

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dragged along in its wake. The observation made by Eötvös in this regard is quite correct: ‘We see that however hard those leading national movements strive, however loud their claims in the name of the people, the concept remains alien to the people itself.’ However insightful these remarks may be, particularly the image of being dragged in the wake of a current, the factual bases of the critique have altered since the time of Eötvös.11 The lower classes of the people are today striving for culture; they are knocking at the gates of the temple of culture. However, their national question has a quite different formulation. It is directed at their own nation and demands from it the right of access to the nation’s cultural assets. The vanguard of the other, merely national movement directs itself against the other nations, who it regards as enemies. However, because the ruling groups within the nation show rare unanimity in barring the doors of the temple to the lower classes, the outlook of the latter is international. With the entrance of the proletariat on to the stage of Austrian political life, the national question is transformed from a question of power into a question of culture. What significance should a declaration of nationality in the above sense have? Article 19 of the basic law states: ‘All national groups have equal rights. Every national group has an inviolable right to the preservation and cultivation of its nationality and language.’ Rights—and moreover ‘inviolable’ rights—can, however, as already mentioned, be held only by a legal entity. Only a legal entity can lodge a complaint about the violation of such rights. A non-actionable, unenforceable legal clause is not a legal clause but a pipe dream. If there is to be a right of nationality at all, then it is necessary that the national affiliation based on the declaration referred to is a feature of the legal status of the individual, like Catholicism, majority, fatherhood, etc. This affiliation is the foundation of a subjective public right, the essential content of which is in summary form: 1 National affiliation, i.e. entitlement to access to the nation’s cultural assets and the obligation to help bear its burdens, thus a legal claim and a duty in regard to one’s own nation. The bourgeois parties see in the national question merely a relationship between state and nation, and between nation and nation. The object of their struggle is above all a passive official sovereignty [Amtshoheit]. It is precisely this point which holds the least interest for the masses. On the other hand, for the Czech worker who is forced to migrate outside the lands of the Crown of St Wenceslas by the laws of supply and demand—and there are many of them—it is of the greatest importance to be able to establish Czech educational associations and to claim legal protection that is free of charge from his own nation. But it would also be a matter of importance for the German officer garrisoned in a Galician town to be able to demand of his nation, to whose burdens he contributes, the provision of German school lessons for his children. There are also rights with regard to one’s own nation! 2 The lawful entitlement to the institution of action against individual nationals and the foreign nationality as a corporation in the case of the impairment of national rights, or in the case of national persecution and injury of individual legal assets based on national motives. The German who is looted by Czechs, the Czech who is looted by Germans, must have the right to claim compensation against the foreign nationality in a case where the individual guilty party cannot be identified, if the Austrian in Austria

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is not to be more defenceless than, say, the Englishman in Austria, who would receive satisfaction via diplomatic channels. 3 The lawful entitlement to the safeguarding of his national rights with regard to the state in the case of the extension of the state’s sphere of influence into the legal sphere reserved for the nationalities as such. The substance of national rights should be seen as only intimated by the aforementioned, which merely represents a schematic development of the subjective relationships involved. However, if the struggle is replaced by legal relationships, if the national question is to be regulated in law, it is clear that the legal entities must in the first place be determined on the basis of juridical features. It is thus this status quality, this subjective public right of the individual, that is the indispensable prerequisite for a legal solution of the question. Whether the aforementioned declaration is to be recorded in the existing registers or in specifically national or—in accordance with the principle aims of the system as a whole—in school registers is a question of expedience. The principal problem is the organization of the national groups as juridical persons. The national question is not solved when at this decisive point the nations are once again, as has been the case for fifty years, foisted on to the Crown lands. Such an approach can only be considered valid if prior proof is provided that national peace would certainly follow from the autonomy of the Crown lands. As long as this proof is not furnished, the language question cannot be replaced by the question of a greater or lesser decentralization of the state and provincial administration. Of course, the two questions are very closely related. However, a theoretical examination cannot exchange the objects of investigation at a certain point. If the nationalities are not to be feuding parties, political roughnecks, but influential yet peaceful legal factors, then it is necessary that they, like all creations of a legal system, are born as persons, and it cannot be tolerated that the Crown lands illegitimately assume their inheritance. This does not preclude the nationalities defining certain Crown lands—in terms of what they are, as territorial districts and nothing more—as their domiciles, as their homelands. There are fatalists—and their number within Austria has now reached shocking proportions—who regard as useless every effort, every form of organizational work, in view of the certain collapse of the empire. They excessively overestimate the number of the interests involved in the national question because they have been misled by our electoral system and its results and by the present outcry. They regard the aforementioned force of the middle-class current as unstoppable. On the other hand, one must fear that the potential of the current crisis—as is the Austrian way—will be missed. But today the focus should no longer be on the monolingualism or bilingualism of street signs and other such quarrels, nor on the civil service career prospects for members of the German, Czech and Polish upper and middle classes. Rather, the issue should now be that of organization, of the reconstruction of Austria following its descent into complete chaos. An Austria can be created in which all nationalities govern and administer themselves, in which they deal with their nationally specific affairs alone and their common affairs together. And if it is a law of organic development that a particular organ is produced from the general organism for each separate function, then the people as a constitutional unit, as a totality of material and social interests, and the nations as cultural and spiritual communities, also require separate organs for their separate functions. Are we not living in a time of the differentiation of the law in terms of social and cultural interest groups?

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From the body of the civil code we have cut commercial and exchange law, mining and maritime law, workers’ law and industrial law. The agricultural sector calls for its own rights. Everywhere we see group formation and group rights. And yet, as far as the legal system is concerned the most important groups for our state system, the nationalities, still constitute transcendental natural entities that do not fit into the civil garments of state legislation. It is thus time to abandon ineffective forms and to set the organized nations in their place! But is this not a mere phrase like all others? Does this not constitute an underestimation of the nationality principle? Is not the essential aspect of this principle the formation of nation states? Has not the history of the nineteenth century shown irrefutably that the tendency to nation state formation has become the most important factor of development? Is there a conceivable model for the organization of the nationalities other than in specific states? This brings us to the relationship between the state and the nation. It is not possible here for us to examine the diverse definitions of the state. It will suffice to outline the most significant features of these: The state is a sovereign territorial entity. The necessary conceptual requisites are: 1 Population. 2 The organization of this population such that it does not remain a mere aggregate of individuals. Apart from individual aims, there is an assertion of collective aims, which give rise to organs for the formation of the collective will and organs for its realization. This collective will does not coincide with the individual wills of all citizens, and is thus not the general will. Otherwise it would not require compulsory assertion against conflicting interests. It is the expression of the interest groups dominant at any one time. 3 Sovereignty of the collective will. 4 Exclusive rule by this sovereign entity over a territory. The nation is a cultural community. But which elements entail correspondence between the concepts of state and nation? Let us take the first element. The nation is a community of individuals. But it is a communio, rather than a societas. Here, the individuation principle is not a form of collective will. Mutuality is based, at least in the first instance and conceptually, not in the realm of volition, but in that of thought and feeling and the expression of thought and feeling: the national language and literature in which this unity is embodied. Where the will is left out of consideration altogether, there is also no ruling sovereign will, but only dominant orientations of thought and feeling. It is only these that give rise to national differences. Moreover, there is no necessary connection between the consciousness of nationality and a particular territory. What then is the basis of the nationality principle, as formulated by Mancini, Napoleon III and others, which calls for a special status for national communities entailing a national collective will, sovereignty and territorial sovereignty? The explanation lies in the existential conditions of the state and the nation. The state lives by virtue of the law: its life consists in the formation of the collective will to which it subjects the individual will through legal imperatives. However, the translation of the individual into the collective will and the collective into the individual will do not take

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place mechanically or automatically in the way natural forces function, but through the medium of people: in order to be effective, the collective will must acquire linguistic expression, which is itself conditioned by the human cognitive capacity. The cognition of the necessity and expediency of norms, the cognition of the futility of resistance to them, becomes one motive for the will of the individual and opposes here all other motives resulting from the entirety of mental and emotional life. And the relative strength of all these motives is decisive for the decision to act. Only by way of this long detour does the governmental and legal system attain a regulatory and determinative effect on human action. Whether a legal norm is effective or not does not ensue from that norm alone, but from the totality of all facts of cognition and emotion. The primitive state of the Middle Ages had few tasks and no direct relationship with the people as a whole, but only to the patrimonial nobility, a decreasing part of the people. It had to communicate with a small number of people about a small number of things. Today the actual relationships of people have become extraordinarily complex. The most competent political economist is barely capable of grasping the totality of economic relations. And the state regulates all these relationships and transforms them into legal relations: it has a specific designation for all of them. Legal terminology alone has become a conceptual system which can barely be managed. In this form, the orders issued by the state confront every single individual. They require an intellectual and cultural level which can only be achieved by a national culture. They presume a developed level of national existence. Conversely, it is only with these national cultural resources that the orders of the state can exert an effect on the individual. In order to live in the state, the national group with an undeveloped idiom must become a nation with a developed national literature or merge into such a nation. On the other hand, in order to have an effect within the nation, the state must make use of the national cultural resources. The simplest conclusion to be drawn from this is that state and nation must coincide in order to ensure that the machinery of state is confronted with the least possible resistance. For its part, the nation is a community of intellectual and emotional life, that is, a purely inward community. However, thoughts and emotions become shared only through expression and communication, through the national language. Thoughts and feelings do not emerge in us without cause. They are a reaction to the external occurrence, in particular to human actions. In almost all contexts these are today regulated by the state, i.e. determined in legal terms. National sentiment is influenced in the first instance by the state organization; it is promoted and inhibited by the governmental system. The more independent the governmental system is from national sentiment, the greater the threat to national life, the greater the hindrance to its unfolding. The simplest conclusion to be drawn from this is that state and nation must coincide if the nation is to experience the least possible level of resistance to its development. Both of these conclusions are drawn by the nationality principle, and they are undoubtedly correct. How is it then that in reality state and nation never completely coincide? Precisely because the state has other tasks than that of guaranteeing the best possible level of national intellectual culture, tasks that appear to the state to be so much more important that it patiently accepts the aforementioned frictional and development resistance merely to achieve other objectives. The state legal order is, as stated above, an expression of the

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will of the interest groups dominant at any one time. However, these interests, which are chiefly material in nature, are common to the dominant classes of all nations. Like all material, they exist in space and can be realized only within a particular territory. For this reason a state is not conceivable without exclusive territorial domination. State territorial development is dominated by the sphere of material interest of the dominant groups in the state. State and state territory are conceptually insep-arable, whereas the nations mingle within the territory while pursuing their material interests; the struggle for existence has the effect of mixing them together. In conceptual terms, the nation is not a territorial entity. It follows from this that the argumentation of the nationality principle goes too far, because it claims for the nation all sovereign rights of the state, whereas territorial sovereignty and material cultural sovereignty lie outside the sphere of national existence. Where nationalities are clearly separate within a territory the machinery of state is of course simpler, because the same organism can exercise all sovereign rights. However, where different small nations have been mixed together whose territory is neither adequately delineated nor large enough to afford the state-formative interests of the dominant groups an adequate material basis, the original relationship must be reconstituted and a system of separate organs created for the separate societal functions. In the sense, state and nation are antitheses of the same order as those of state and society. The state is legal territorial domination, the society factual personal association, an antithesis which has played a significant role in the developmental history of human society. The primeval polity is a personal association based on blood relations. The necessity of migration, of nomadic life, does not permit any fixed relationship to a territory. The sendentariness required by the state is absent. The great Oriental monarchies and the Roman Empire were the first great examples of territorial power, the first states in the modern sense, the only difference being that the dominant interest group was, at the outset, a nation and not an economic class. The defeated became slaves or peregrini dediticii,12 thus perishing in legal terms, or were absorbed into the state system as citizens, thus merging into the state as a whole. The Roman Empire was replaced by Germanic and Arabian tribal states, which were based on tribal affiliation. Here the phenomenon first emerged of the defeated tribes retaining their legal system and their language, of two peoples distinct in terms of law inhabiting a unitary territory. However, one tribe alone retained entitlement in the political sphere. The Carolingian Empire13 initially united many tribes without abolishing, suppressing or confining to a particular territory their national law, language and specificity. The dominant group was an economic class, the great landed proprietors, not a tribe: the Roman provincial retained his national law, even if he lived among Bavarians and Frisians, and the Frank, Alemannic or Chamaver retained his even if living among Romans. Before dealing with a dispute, the judge would ask him: ‘Quo jure vivis?’ Which law do you live by? The party thereupon made a declaration of nationality. The judge then knew according to which body of law he was to judge that party. Here, the so-called personality principle prevailed. Under its rule in the Carolingian Empire, ten nations coexisted not only with different national languages but also with different legal codes. The modern state replaces this principle with the territorial principle: if you live in my territory, you are subject to my domination, my law and my language! It is the expression of domination, not of equal rights; the domination by the established inhabitants of the

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newcomers, by the propertied, who is held fast by his property, of the propertyless, who must follow demand where it leads, at the least by the majority of the minority, if not by the settled minority of the majority. From this ensue the territorial struggles of the nation states, and also the territorial policies of the nationalities within the state. For this reason the Young Czechs support Staatsrecht14 for territory of the Crown of St Wenceslas, because it guarantees them domination of the minorities. For this reason the Young Germans support the independence of the former states of the German Confederation and the exclusion of Galicia and Dalmatia, that is, a Young German form of Staatsrecht. The territorial principle can never produce compromise and equal rights; it can only produce struggle and oppression, because its essence is domination. The nation as a whole gains nothing through this domination; as a consequence of internal migrations and the extensive economic contact linking the broadest possible circles of humanity no nation can limit itself to specific, narrowly defined frontiers. All elements that exist outside the confines of the home territory are, as foreigners, without rights. Consistent supporters of Staatsrecht must admit that a Czech in Vienna has no right to assert his nationality. The territorial principle implies the reckless abandonment of one’s own minorities, the reckless domination of foreign minorities to the advantage of the long-established propertied classes. It combines the national concept with patrimonial ideas and thus becomes in many ways anti-national. On the other hand, within the interaction between sovereign states, within international law, there exists a defence against the territorial principle. The Englishman has the diplomatic protection of his fatherland; he may display English inscriptions on the doors of his business in Prague; he may speak English in the street there if he so pleases. Yet he is a foreigner. However, the German-Austrian in Prague is without rights, for he is on ‘Czech soil’. He may not speak German, display German signs; otherwise he faces the threat of mistreatment or looting. If he is looted, against whom should he bring legal action? The Czech people? The Czech people do not constitute a juridical person! It is a curious thing that this nation, which has kept the whole of Austria on tenterhooks for three decades, does not exist at all within the legal system, that it is a metaphysical, transcendental object for the law and the courts. This also applies of course to the Germans with respect to the Czechs, to the Poles with regard to the Ruthenians and so on. In a word, each Austrian nationality is accorded greater protection abroad than within Austria, each foreigner among us greater protection than the native within his own land, because an intrastate existence does not provide a corrective to the territorial principle, because no one is protected by his nation, because a nation can protect no one except by means of reprisals, of revenge. This is not a lawful state of affairs, but one of nascent or open civil war. From this ensues the necessity of constituting the nationalities, of equipping them with rights and responsibilities, and of declaring that in every part of the empire every member of a nation enjoys—albeit subject to the grading referred to below—the protection of his nation and bears its burdens and obligations. In brief: the personality rather than the territorial principle should form the basis of regulation; the nations should be constituted not as territorial entities but as personal associations, not as states but as peoples, not according to age-old constitutional laws, but according to living national laws. Of course, no people exist without territory, and internal reconstruction cannot be independent of the geographical stratification of the population. If the personality principle forms the

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constitutive principle which brings about the separation of the nationalities and the union of individuals, then the territorial principle will have a significant role to play as an organizational principle. There are those who will assert from the outset that such a construction is impossible to realize. Nevertheless it is important to keep the following in mind. First, in the Frankish Empire the personality principle was dominant, not only in the more formal respect of the language, but also in regard to the gamut of private and public law—to an extent which does not appear applicable today—and made possible the coexistence of many nationalities. Second, this system was the legal system applied to all foreigners— the so-called ‘Franks’ in the Orient—and this was with reference not only to language, but also to private and criminal law. And since most people will be impressed neither by the Caroli Magni legal order nor by the situation in the Orient, third, in our own and indeed all highly developed states, this principle can be found applied in its purest form in the case of institutions whose almost unshakeable power over minds and whose vitality is doubted by no one: the religious communities. In one and the same parish, two and often three denominations are represented, each of which forms—or at least should form—a corporation under public law and a religious community. Each has its own board, its own property, its own institutions for instruction and charity, conducts state business as a self-administrative entity in its assigned sphere of activity (based on registers) and amalgamates with other communities in territorial terms to form parishes, deaneries and dioceses, etc., with some, such as the Catholic denomination, forming worldwide personal associations without any territorial sovereignty. Here the formula for the problem has been found: ‘Give to the Emperor (the state) what is the emperor’s, and to God what is God’s!’ Here it has become possible, for example, for three archbishops to reside in Lemberg, a Catholic, a Uniate and a nonUniate, without them and their subordinates being constantly at loggerheads with one another. To be sure, this was not always the case. When the principle of cuius regio illius religio15 still applied, that is, the pure territorial prin ciple (a present-day form of which is cuius regio illius lingua16) religious discord raged through the land. Through centuries of struggle it finally became clear that the issue was not one of entrusting the church with governmental functions and the state with ecclesiastical functions. Peace was immediately established when territorial sovereignty was removed from the church and cultural sovereignty entrusted to it, when it became solely that which in conceptual terms it solely is: a personal association of those sharing the same belief, just as the nation is a personal association of those sharing a way of thinking and speaking. This is not to say that the territorial principle is wrong in itself and untenable. On the contrary, it is the formula for nation state formation. As we have already acknowledged, the nation state is the form of state system with the least internal frictions; it is the inevitable ideal of every nation, or at least of those members who are granted ‘active’ nationality. It is one of the conceivable ways of solving the national question. However, it is not a formula for solving the Austrian nationalities question within the framework of the historically given, economically and socially necessary unitary Austrian state. For rather than eliminating national conflicts, the national territorial state produces and heightens them. It does not arbitrate these conflicts by means of law, but decides them by means of force; it facilitates prolongation and victory, but risks loss and destruction. It can never guarantee the peaceful, secure enjoyment of national rights in a

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multilingual, unitary state under the rule of law. It does not signify the solution of the Austrian problem, but the dissolution of Austria. The example of Hungary teaches us that no bond of international law can hinder the final separation. However strictly conceptual separation can and must be realized, the reality itself is not necessarily characterized by an irreconcilable opposition: the imminent GermanCzech armistice will probably represent a compromise between the two principles. This will be all the more lasting and advantageous the closer it comes to the personality principle. It is impossible on a purely territorial basis. Austria cannot tolerate any territorial Staatsrechte, any such Czech right for the lands of the Crown of St Wenceslas or such a German right for the former lands of the German Confederation; it cannot tolerate a ‘state party’ or an imposed state language. Just as religious discord flares up when a denomination seeks to play the role of state religion, so too is every state language a perennial source of strife. If the nations were constituted and organized, and national majority rule and repression, as well as national ‘baptism’ [Wegtaufen] through compulsory attendance of a foreign school, were ruled out, then the Slavic peoples, since they are historically and economically forced to live with the Germans, would still have to make use of the only possible means of communication, the German language, wherever they had to understand each other. No law is made requiring humans to mate. They do it anyway. The internal organization of the nationalities would naturally have to accord with the geographical density of settlement. The co-nationals inhabiting a parish or district would form a national community [Gemeinde], i.e. a corporation under public and private law with the power to issue decrees and levy taxes, as well as its own property. A territorially and culturally affiliated number of communities would form a national canton [Kreis] with corporate rights. The totality of the cantons would form the nation. It too would be a legal entity under public and private law. The administrative implementation of this form of organization would not require great effort or great cost: the receipt of the obligatory declaration of nationality by all citizens of age by the political authorities of first instance, the recording of the declarations in national registers, the identification of the communities and cantons through persons having the confidence of the national groups, the undertaking of elections for the three representative bodies (communal, cantonal and national councils) and their constitution. We would now have the nationalities as such: each for itself, represented according to its internal structure and actual power, each at the same time in a particular region a majority and in another region a minority, which in the interest of national unity it cannot abandon; each incapable of oppressing foreign minorities because the other nationality as a totality will respond with the repression of the former’s own minority, and thus prepared in advance to accept compromise with other nations; each nationality occupied with internal consolidation, with the close fusion of the economically differing, opposing classes, concerned about the promotion of its own education system, its national literature and its national art; each master of its members, master of its own resources. Who could doubt that national existence, rather than exhausting itself in the struggle with other nations, would necessarily look inward and deepen? Nothing can express its own specific effects if it is not regarded purely for what it is. If one wants to solve the nationalities question, one must focus on the nations! One must

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liberate them from political constellations, from the necessity of political barter, from feudal and clerical influences; one must call upon them as they are to prevent them from disguising themselves with sallow historical masks in order to frighten the others. The living have rights and will safeguard their rights. If this solution is not chosen, there is only one alternative. There is only a single dilemma: the personality or the territorial principle. One must opt for one or the other. I believe that the problem is more clearly delineated if a sharp distinction is made between the opposing possibilities. The question is not one of centralization or autonomy. The national question defined in terms of the personal association can be resolved in the context of the most strenuous centralization or the most far-reaching autonomy. Legislation can be centralist and administration decentralized. By the same token, it is possible to deal with certain state matters relating to legislation and administration on a unitary level, while differentiating others in the case of each province. How one is to make distinctions is dictated by the nature of state objectives and state resources. Here, too, clarity cannot be achieved as long as the centralization question is confused with the nationalities question. It is seldom the case that principles are realized in practice in a pure form. If one is made the basis of regulation, then certain concessions will also have to be made to the other. However, every combination of the two results in the abandonment of minorities and thus is an unsatisfactory resolution. Totalities of persons can be divided only according to personal, and not territorial, characteristics. Unsatisfied fragments of a people and points of conflict remain. The conflagration is localized, but not extinguished. In its pure form, the territorial principle—leaving aside the question of whether it is realizable in Austria—is the cruellest and most inappropriate solution. The position of the foreign nationalities included in a territory is contingent upon whether they are favoured or not, and they are forced to adopt a belligerent stance. It is the system of incessant squabbling, of never-ending disputes over assets. That the task of constituting the nations is a difficult one is obvious. Significant here is the fact that the difficulty is based on the idiosyncratic nature of our state system. Does anyone believe in an easy solution? The rule is not utopian. Czech and—to summarize the German radical programme—German aspirations to Staatsrecht are, apart from the fact that they continually explain the national question rather than resolve it, confirmed utopias, since they are utopias of the past which clearly will remain unrealizable. But the greatest utopia is the hope held by the Germans of the ‘Empire’. What role should our weak industry play in the German Empire when it is at present, despite the protective tariffs, hardly a match for German industry? What place would our intelligentsia, our civil service, for whom the struggle with allegedly ‘inferior’ national groups creates such difficulties, have in the German Empire? Rather than Habsburg foothills we would become a Hohenzollern hinterland.17 And has the Prussian Bohemian policy of 1866 been forgotten? The idea of a Chechovia, a Bojerheim and so on still remains. One thinks of the freedom of movement and internal migration, of modern transport, of the great tasks of economic administration. In the feudal age it was possible to administer separated regions and provinces on a unitary basis using the most peculiar of configurations; a system of small states was conceivable. Can it be desirable that the misery of dualism is multiplied again and again in detail?

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The land cannot be arbitrarily divided up and reconstituted. The territory is an inflexible, inert factor. However, it has become easier to bring together and link living people as a consequence of the development of the transport system. We have associations and parties whose reach extends over the whole Austrian half of the empire. Economic and cultural interests unite inhabitants of the most remote districts. The individual has become less tied to the soil: the patrimonial structure gives way to the social, the spatial association in the intellectual sphere. Of all possibilities, it is the personal association which is the least utopian. Once the first preliminary question, that of the juridical subject, has been resolved, then the juridical substance, the national law of these juridical subjects will be found; the national councils will be able to explain which sovereign rights they claim, which agendas they are to relieve the state of and administer as their own right, the exercise of which in transferred spheres of influence they find practicable; they will then be able to explain to what degree state administration must be national, and to what extent it must be international. How are we now to locate within the unending series of societal and state tasks those which affect national interests? What should be regarded as the national interest and legally guaranteed as the ‘national’ right of the members of the people and the people as a whole? What can serve as a heuristic principle in regard to this question? Seen in political terms, the nationalities struggle is the competition between national groups for the dominant influence within the state. The object of the struggle is thus the actual power of the national party over legislation and administration. Thus far, there is no reason for dealing with national aspirations in terms of constitutional law differently from those of political parties in general. The actual power of a faction lies outside the legal sphere. Since ‘power never remains without suitors’, it becomes an object of struggle between the parties. In constitutional states, this involves the opposition seeking to win the support of the majority by annunciating principles and formulating practical programmes. If the parties are national, this means of struggle is excluded. As a consequence, the struggle is not eliminated, but aggravated. The parties necessarily seek other means, as has been seen in the Austrian parliament. If these also prove ineffective, there remains only the ultima ratio of the party struggle, the streets. If the continuation of the struggle usque ad finem (until the end) is desired, then it suffices to leave to the national parties the safeguarding of national rights via political means, juridical regulation is not required. If the latter is desired, then it can have no other object than the state guarantee of the undisputed enjoyment of a certain type of power, which is otherwise the entitlement of political parties, of a limited level of influence over state power. The actual power must become power in law. The political problem thus becomes a juridical one. The actual influence over state power must become legal participation in the sovereign rights of the state. The jurist places these within a generally recognized scheme of sovereignties. If we examine these in turn as regards whether and to what degree they allow for a participation of the nation, an exhaustive, juridically clear overview of the rights of the nationalities necessarily emerges. We thus transform the political programme into the juridical category, just as each party programme, in the case of the party coming to power, is, if not qualified, then at least intended to assume legal force and juridical garments. We thus arrive at a conflict between state and nation. And

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this is the crux of the problem. Another form of juridical comprehension of the problem seems inconceivable. In Austria the sovereign rights of the state are divided between the empire and the provinces [Länder]. If we assumed that this division remained in effect, and only a part of the right to sovereignty was attributed to the national representative bodies, then the following spheres of competence would result: state, territorial and national legislation: state administration, territorial and national self-administration. A more precise model would incorporate the following: 1 Legislation at the level of the state as a whole: a central parliament with universal competence, but limited by the requirement of a qualified majority for the extension of competence once fixed. A bicameral system, with the second chamber being elected by popular vote, and the first composed of representatives of the nationalities and territories. State administration: a ministerial system with obligatory economic advisory bodies. The Austrian Imperial Council [Reichsrat] is the visible sign of a unitary state system on this side of the Leitha. We are after all referred to as the kingdoms and lands represented in the Imperial Council. It is here if anywhere that stateformative interests and factors must predominantly express themselves. The same force that overcame multi-state particularism in Germany must overcome multilingualism here: general, equal and direct suffrage. Here, it is the state totality, the people as political-social concept, and not nationality which must dominate discourse. This is the arena for the struggles of economic and social interests. These are common to all nations and more powerful than all national sentiment. They link together all Austrian national groups, which are of course economically reliant on one another. 2 Territorial legislation: one chamber, with the national registers of the territory acting as electoral registers. The national communities, or cantons, are electoral districts. The Personality Principle automatically solves the question of minority representation and the separate electoral curias. In my view these are only means of realizing the Personality Principle. They unite the people according to opinions and interests, not in terms of territorial electoral districts. The representative no longer represents his patrimonium, including its glebae adscriptus,18 like the feudal mediatized prince, but people who are no longer tied to the soil and who have varying interests. In national matters, proportional representation, minority representation and curial voting are incomplete forms of realizing the basic national idea. For they realize it merely through the electoral and procedural rules of the representative bodies. In this way, they guarantee the nation a legal influence only over legislation, not over administration (in the case of our provincial parliaments the situation is different), and this guarantee is itself an inadequate one. For a right is a complete one only if those for whom it is meant have direct access to it such that they are in a position to guard it, and when its inviolability is guaranteed. The three protective mechanisms referred to above are formal; they do not provide any material right; are not the entitlement of the nation. Putting them into effect depends on the will of the elected or the voter, and legal

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protection in matters of electoral and procedural rules is well known to be the most unreliable thing in the world. However, as the most immediate source of information they are of great value. Their significance becomes clearer if they are seen in relation to their ultimate justification. This counters the erroneous belief that a language law of this formal type signifies the solution to the nationalities question. Territorial self-administration: collegial administration through the narrower proportionally elected provincial committee. 3 National legislation: a national council, elected on the basis of the national registers, with the national communities or cantons acting as electoral districts. National self-determination: collegial administration through a narrower national committee, with the national canton and community committees acting as executive organs. In monolingual regions there is an extensive surrender of state and national agendas to the territorial self-administrative bodies. In contrast, multilingual regions surrender state and territorial agendas to the national self-administrative bodies as a delegated sphere of activity. This is the most important point at the level of practice and would prevent the pointless proliferation of government agencies. In monolingual regions, the entire reform process would be manifested only as an increase in the number of self-administrative powers. In multilingual areas, it would mean complete reconstruction: just as some provincial towns are made up of two communities, a Christian one and a Jewish one, so too in multilingual areas the two nationalities would have their own communities which as national communities would carry out all nationally relevant agendas of the delegated state and territorial sphere of activity with respect to the members of their nation. The business of the political municipality [Gemeinde], of the political district, would be distributed in part to the committee of the national community or district, and in part would be conducted by the joint colleges, both under the chairmanship of the state functionary. A system of extensive self-administration based on these principles would ensure that, in regard to almost all of its functions, the state would communicate with the citizen only in the latter’s own language, that administrative authorities in multilingual regions would retain a national character in regard to every individual. However, the fact that in one parish two administrative authorities would exist with the same powers relating to the entire parish but whose competence would be defined according to the national affiliation of the party would constitute an unfamiliar phenomenon. We still cannot rid ourselves of the patrimonial approach to the state constitution, according to which an administrative authority is above all attached to a region to which in turn—to the chagrin of the civil servant—people belong. If the affairs which concern the entire parish and the people as social and constitutional concept, as well as the cases in which both nations confront one another as parties, remain assigned to the joint colleges, then it is not easy to understand why the division of competence should not be realizable. However, it is certain that the adaptation of the state administration to the national one, the delegation of state business to national self-administrative bodies could only proceed step by step and would be fully realizable only in the distant future. However, forming the cadres that should soon assume responsibility for all national administration is the most imperative task.

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Now that we have the three great spheres of competence—as it were, the streams along which the current of social and national life flows—only one question remains, and this is the most important and the most difficult one: which concrete matters are the province of the state as a whole? Which are territorial and which are national? Which of them constitute the substance of these spheres of competence? Examining the large number of state agendas in detail and assigning them according to their usefulness regarding concrete economic and cultural needs to this or that organ is something for which only the statesman, the politician, the representative of these economic and cultural interests are qualified. It is their task to govern the states, not the task of philosophers in the tradition of Plato. The jurist is as such not a politician. It is his task to clothe given political postulates in a juridical form, to strip the slogans appealing to the emotions of their mystificatory quality and to translate them into bare relations of will. I will nevertheless attempt to locate general criteria for state and national matters and to examine several important national questions with regard to the possibility of regulating them in law. Here, the theoretician can employ only the aforementioned method. All practical-political aspirations aim to realize their ideals in law. Defining political postulates in terms of the corresponding categories of constitutional law can only contribute to the understanding and clarification of day to day politics. Those interests shared by individuals the realization of which is a state objective, and to which certain sovereign rights of the state must correspond, are: 1 The interest of the polity in being regarded as a unitary entity and represented as such. This interest corresponds to representative sovereignty. The state has this sovereignty within and beyond its borders. It is obvious that the nation also has this interest in being regarded as a unitary entity, and that representative sovereignty must also be granted to it within the framework of the state as a whole, as well as with respect to the other nationalities of the state and to its own nationals. Here, the method referred to already offers us the advantage that it enables us to directly express that which the nations instinctively pursue, that which forms the more or less undefined intention of the political parties. The Polish Club [Polenclub], the Czechs, the Southern Slavs, etc., seek to form a party within the Imperial Council which is as unitary in character as possible; the Germans want common suretyship [Gemeinbürgschaft]. In national matters, the nations want to be represented as unitary entities, whereas economic differences, which are more powerful than national ones, divide them. Thus, the most highly developed and powerful people always has the weakest national representation, because the economic classes within it are the most highly differentiated. This is why the political party can never be a substitute for what the nations lack: representative sovereignty. The most recent fate of the Germans proves this clearly. In an allGerman representative body, the Clericals and the Christian Socials would have had to take a firm position from the outset, or their vote would have disappeared into the majority—and they probably with it. A regulation against the BohemianMoravian Germans would have appeared from the beginning as directed against the entire nation, and as a result such a regulation would not have been introduced without very careful consideration. Where national matters are concerned, one turns a blind eye to a party that represents certain economic interests cleverly and courageously. The same applies to politicians of the middle class and the

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proletariat. For all these reasons the political party is not a satisfactory substitute for representative sovereignty. 2 The interest of the polity in having available the physical force required for the forcible realization of the will of the state within and beyond its borders. This corresponds to military sovereignty. The nation as cultural community will require this only if the means necessary for cultural development are unlawfully denied. Here, as in the case of the religious communities, the right to the bracchium saeculare19 suffices. 3 The interest of the polity in its members living together in peace. This corresponds to judicial sovereignty. Withdrawing this from the state still lies outside the sphere of national aspirations. 4 The interest of the polity in certain dangers to the general welfare being averted (policing sovereignty) and in the welfare of the individual being promoted (provisional policing, cultural sovereignty). The first interest can be realized effectively only by the state, whereas in the case of the second the state competes with the nation. The separation of spheres of interest is inherent in the nature of the state and that of the nation. The former promotes material culture, the latter intellectual culture. It is proper that the nations control schooling, art and literature. But since national education is itself an essential prerequisite for material culture, the state determines the educational minimum to be guaranteed by the nations for all levels of the education system, but also guarantees for the poorer, undeveloped nations the resources required to achieve this minimum; otherwise it leaves the education system completely to the nations, who must themselves come to an understanding with the religious denominations. 5 The interest of the polity in acquiring and deploying the material resources required to pursue the above four primary interests. This corresponds to financial sovereignty. The nation also requires this. Many conflicts arise today from the fact that no nation is the master of its resources. If the Bohemian provincial assembly finances a Czech theatre or a Czech school then the Germans cry: ‘Our taxes are being used to nourish our enemies!’ Each sees itself as being continually cheated. Let every nation build theatres and schools, as many as they want—the more, the better—but let each pay for its own. It is precisely here that division according to the personality principle can contribute the most to maintaining peace. In order to realize the above five interests, the polity requires instruments of power and sovereign rights which relate to the above like means to ends. These instruments of power are: 1 Territorial sovereignty as the right of disposal over the area settled by the polity. This is the least important with regard to the nationality concept. It is precisely this sovereignty that the nationality does not require for its development—as proved above—and it can remain completely in the hands of the state. However, for the internal organization of the nation and the state, the fact that an area has always been settled by a particular nation is of the utmost importance. National rights apply fully in the areas that are the historical and present residences of the nations, and the extent of applicability is graduated according to the density of settlement. The Czechs may regard the lands of the Crown of St Wenceslas as their homeland, enjoy their rights there in full, but they are not bereft of power and rights outside that region. The Germans shall be at home in the former lands of the German Confederation (by dint of

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the personality principle one region can be the homeland of two national groups), but shall be guests—neither foreigners nor foes—in Galicia and Dalmatia. Agreement between the constituted nations on this point is possible and necessary, for each nationality has foreigners in its own territory and members in foreign regions. The nation must accord the foreigner rights in order to have rights itself in foreign parts. If it is not the Vienna district council but the German nation as a unitary entity that has to decide on the question of whether a Czech school (which is of course maintained by the Czech nation) should have the right to public status, it will take into consideration the situation of the Germans in Prague and consequently decide differently from a body which has no responsibility for the declining German population in Prague. 2 Asset sovereignty [Sachhoheit] as the right of disposal over the assets located in the shared territory. Whether, in the context of exercising its financial sovereignty, the nation requires the instruments of its asset sovereignty depends on whether it participates in direct or in- direct taxation. 3 Personal sovereignty as the right of disposal over the individuals belonging to the polity. This is the chief instrument of state power. It enables the state to command individuals, to recruit and imprison then, to levy personal taxes on them. This sovereignty must be accorded the state in law without reservation. But it is also the most important, almost the only, instrument of power available to the nation. It is required in all national matters, and here personal sovereignty must be the entitlement of the nation by law and exclusively. However, if it is to be understood, if its orders are to be followed, the state can give orders to the individual only in the latter’s language if it is to be understood. From this it follows that personal sovereignty should be the de jure entitlement of the nation in national matters, in all others of the state by law. In terms of its exercise this sovereignty should be transferred by the state to the nations: the national self-administrative bodies levy direct taxes, carry out recruitment, and so on. The nations publish the laws of the state for their members in their own language; they communicate the directives of state authorities to their members; they guarantee their members national legal protection free of charge. The national representative body appointed by the Czech nation in Vienna, by the German nation in Prague, communicates claims and summons to its co-nationals, and is its interpreter or representative before the courts. In short, state personal sovereignty is in principle and in all cases where this is possible exercised by national bodies in the transferred sphere of activity. However, the individual person also has the legally protected, enforceable right to the help of his nation in cases where that person deals with the state authorities of a foreign nationality. What a rich, productive internal sphere of activity for the nations! 4 Official sovereignty [Amtshoheit] as the right to entrust individuals with the power to represent collective interests. Although the nationalities question, as our analysis proves, incorporates a good deal more, the struggle for public office is at the core of the struggle over language in Austria. Here, the natural relation between all things has been shifted. Seemingly afraid to see the facts as they are, we construct a system of refracting prisms and then accept the picture which is thrown on the wall before us as reality to the extent that we take a brush and repaint the distorted image in order to make reality different. The great societal interests

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of the time, which are inherent in the facts, are so ‘refracted’ that only a small ‘red’ strip is visible on the left edge of the wall. The interests of our industry, which will soon be the source of the livelihood of the majority of our population, appear within the spectrum of represented interests only as a pale blue haze. The honourable glove maker, the small general shop and the boutique with their limited perception are the most powerful sources of light within the spectrum: a single large Jewish nose. Everything else is black: the reflection of 5,000 large-scale landowners and the clergy. This spectrum is in turn reflected by public opinion. If one is outraged by this, or at least by a nuance of colour, then one takes a blue pencil and crosses out the offending part of the reflection of public opinion—and so, that is better! The blame for our political situation has been placed on the imperative mandate, which, however, does not exist in legal terms. However, something similar does exist. But it is precisely that which is now being lamented that was previously desired: the parliamentary deputy clings to his mandate and to the interests of the narrow stratum of voters, irrespective of whether the state is eroded as a result. Here you have the fruits of the representation of interests: this is what you wanted! There is not a representative in the world who does not represent interests. Yet the representative of a general electoral district, who represents only the dominant interests, is nevertheless not blind to the interests of the minorities in this district. For, as soon as he accords more importance to the individual interest of a social stratum than to the totality, the opposing minority becomes the majority. Within him the prevailing interests continually come to a compromise; he is also capable of coming to a compromise with the interests of others for the sake of the collective advantage. If he loses one stratum of voters then he will win the other. Here the egotistical advantage always tends—apart from the effective hoodwinking of the people—in the direction of the interest of the totality. But what is the case if the deputy represents only a single, narrow stratum of interest? Then he stands and falls with these interests; then there is no compromise, but only the struggle between victory and defeat! Is our parliamentary history of the last two decades anything other than an uninterrupted sifting process in which all those parliamentary representatives who have not placed themselves at the service of extreme and exclusive special interests have been relentlessly sifted out, with the result that only immediate and irreconcilable oppositions remain? Here you have a system for bringing out the contradictions, for blasting apart the whole! It is what you wanted—now it has been realized. From the great number of constantly changing material and intellectual interests, our electoral system takes a few, gives them a fixed form and positions them in direct conflict with one another. Even if in the meantime the industrial sector throughout Austria has been reconstructed, what does that change? Almost the whole of the parliament has an agrarian character; even Vienna has basically agrarian representation. But this does not concern us here. We need only note that only those strata of the nationalities are effectively represented who never want to reach agreement, whose material interests are hostile to others, who are not quick to excuse any bourgeois conscientiousness on the part of their representatives in the national struggle (see the case of Steinwender20). For them, there is only one side to the national question, the struggle for public office. They are prepared to sacrifice everything for this struggle, since their other material interests are

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well protected. The constitution gives nothing to them and takes nothing from them. In this respect, the constitution is a Hecuba to them. The only way of overcoming this crisis lies in restoring the natural influence of all interests, creating a genuine representation of interests by eliminating the prevailing form of representation. The greater proportion of all peoples are certainly not interested in governmental posts. Only a disinterested party can settle the dispute; otherwise it can only end in victory, defeat or mutual exhaustion. In the latter case, there is no guarantee that it will not be rekindled. It is possible that, in the period of mutual exhaustion, the disinterested party will be given the chance to speak and to exercise power. However, the likelihood is small. We must nevertheless discuss the most difficult issue within this constellation, that of the regulation of the question of public office. This question can be formulated as follows: every nation wants to be governed by its own members and despises foreign rule. This is certainly understandable. But how is this problem to be solved in a way that is juridically possible and effective? As stated above, the official sovereignty [Amtshoheit] is a prerogative of the Crown, one which it exercises through the ministries. However, ministerial responsibility does not provide a guarantee of the impartial exercise of this sovereignty. On the contrary, ministries are dependent on parliamentary majorities. The support of the majority allows them to go further than actually permitted. Devolving official sovereignty to the nationalities would mean removing it from the Crown. This has not even been attempted. The banner of democracy is displayed in this country merely for the purpose of winning votes. Once these have been won, the banner is packed away and concessions are exchanged for principles. Rather than exercising one’s right—one accepts gifts. The most justified and beneficial demands here become the most necessary, because what is demanded is not struggled for, but obtained in an underhand way. Success does not bring satisfaction here. For at some stage one must say like Job: ‘What the Lord has given, the Lord has taken away. Praise be the Lord!’ Thus one does not claim that each nation should fill the official posts befitting it, and that each nation should be governed in its region by its own members. Rather, one demands that the officials speak one or two languages. However, this does not represent any gain at all in national terms. A government which has an enduring preference for the Germans can fill the most important official posts with Germans who also speak Czech, while a government with an enduring preference for the Czechs can appoint Germanspeaking Czechs. In this way, bilingualism can—in both cases—become the most effective organ of foreign domination. Bilingualism is at least a subjective quality, one which can be framed in legal terms and is thus amenable to codification. That is its advantage. But it does not provide protection against foreign domination; it is in fact the latter’s most effective vehicle. What can be put in its place? Let us imagine that all government positions are divided up as prescribed by the rules of the old Imperial Supreme Court: so many councillors must be Catholic, so many of the Helvetic and so many of the Augsburg confession. However, the confession is more firmly fixed in the individual than in the nationality. One cannot belong to two confessions, but it is possible not to know what nationality one is, as in the case of a Swiss person whose father is French, whose mother is German and who has been raised

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in both traditions. It is possible to intellectually accept two cultures and to unite them within oneself. Even if, as we have suggested, the nationality has status under public and private law, it can be disowned and exchanged for another, and national sentiment can be questioned. What are convictions? In the glow of ministerial favour they melt like butter, as we have so often seen. This favour changes with the ministries, and they with the election results. But how is the proper influence of each nationality on the public office to be established in terms of the constitutional law of the state? Here, too, the only remaining possibility is to state openly what one wants, to formulate concrete legal postulates instead of general phrases: the nationalities want official (administrative) sovereignty—not alone, but in association with the Crown, which in fact today exercises this sovereignty only in association with the feudal nobility. The Crown’s preroga-tives will not be diminished if the place of the nobility is taken by the nations. In the old German Empire, the Catholic and Protestant imperial estates nominated and presented the Imperial Supreme Court and imperial court councillors, and the emperor appointed the most suitable and invested him. And today this is still the model used in the case of church positions. Here, too, official sovereignty is divided between the state and the church. A concealed version of this practice was also seen recently, when political parties nominated senior juridical and administrative officials, who were then proposed by the ministries and appointed by the Crown. In Austria, bargaining for rather than conquering is the political morality. The only resolution of the question which guarantees lasting peace, excludes foreign domination and is amenable to codification involves the granting of proportional access to office to the organized national councils or canton councils, whether it be in the form of elections, in that, as outlined above, the national self-administrative bodies are entrusted with governmental functions in the transferred sphere of activity, or in the form of the majority proposal, on the basis of which the Crown or the ministry makes an appointment. And just as the return to reason always suddenly reveals a whole range of undreamt of advantages in the prevailing state of affairs, so is this the case here. If each nation has filled the posts to which it is entitled with its national deputies, then it can no longer do any harm if those deputies make use of the German language as a general means of communication in regard to matters concerning the entire state. The leading personages of the nationality are not stripped of their national identity through the use of a foreign language. The German language as the language of state thus ceases to be a means of national oppression and the improper extension of German influence! If each nation is in a position to use its resources to promote its education system and to establish universities, then it will naturally in the first place provide for the graduates of its institutions. There is a measurable relation between school and civil office, a factor that does much to limit national utopias of expansion. If a nation produces a larger intelligentsia than it can provide for—and soon all nations will do this—then that nation will have to promote bilingualism in its schools in order to open a further sphere of employment for this group. This applies to all nations, including the Germans. Under these circumstances, bilingualism constitutes neither a burden, since it represents a means of support, nor the danger of foreign domination and the erosion of nationality. This applies to the elementary school as well as to the university. There is no better instrument

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for reaching agreement and eliminating conflict than that of playing with one’s cards on the table. Resolving the nationalities issue thus entails the following elements. The official language of interaction between parties (the external official language) is in the vast majority of cases the national language. Where this is not the case, then, as outlined above, the representative body appointed by the nation mediates between the office and party at no charge. The internal official language ensues from the nationality of the proposed official. Where nationality is mixed, bilingualism is a requirement for appointment. The area in which bilingualism applies is significantly reduced, and bilingualism itself now manifests its advantages and loses its nationally threatening character. The language of correspondence between governmental offices of different nationalities is German. This model resolves the problem of the final and most important sovereign right of the state, official sovereignty. We now have before us an outline of the basic rights which make up the substance of the national spheres of competence, the right to national selfdetermination, without this entailing the elimination of state sovereignty. A definitive language law would constitute a detailed implementation of this model. What now remains to be discussed briefly are the school and the court. Within this model, national communities are school communities, and the national registers at the same time electoral and school registers. The nation maintains the schools. Where the national communities are too sparsely structured to be able to maintain an independent school, they are incorporated into the local school communities, but retain their proportional representation in the local school council, since here too the national registers are electoral registers. They appoint teachers who move from place to place for the purpose of cultivating their mother tongue, and for this purpose school premises and the necessary time are made available to them. Where the numbers forming national communities are so low that they are even unable to organize this, they retain their other functions which serve the preservation of their nationality, principally their function regarding legal protection. We thus come to the organization of the courts. It is here if anywhere that the patrimonial way of viewing things is an obstacle to development. The Roman praetor travelled from place to place and held court sittings, as did the English justice of the peace. However, in our case Mahomet does not go to the mountain, but the mountain to Mahomet. Numerous witnesses travel long distances to attend the seat of a court to account for themselves before the judge. The judge has his officium residendi, similar to the church benefice. The new law for the organization for the courts already proceeds from this basis in that it extends the institution of the court day and appoints functionaries who move from place to place and who are made use of throughout the provincial high court district, where court business accumulates. Could these institutions not be used for larger districts containing scattered minorities by ensuring that, along with the local monolingual courts, bilingual functionaries would hold court days for legal matters concerning the minority and the two nationalities according to a particular rotation within a correspondingly larger area? However, for those who hold this solution to be impractical, it would suffice that the national communities are also organizations for legal protection, who mediate the interaction of the governmental office with the party in the

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latter’s language, that each nation, wherever it is represented by minorities, appoints interpreters at its own cost for the protection of those minorities, above all at central points. We believe that we have now honestly attempted to solve the task of the theoretician with reference to jurisprudence. And the theoretician cannot aim for or achieve anything more than the delineation of the constitutional legal principles according to which a solution is conceivable. He chooses from what is conceivable that which is realizable in terms of law. More he cannot do. An overview of the end result of the investigation makes us first aware of the difficulty of the Austrian question. To be sure, the dimensions of this difficulty as we have presented it here are not necessarily evident in the current state of affairs. However, our electoral system, our system for working out irreconcilable oppositions, will ensure that we will have to drain the bitter cup. Until then, what is necessary in scholarly terms, which must at the same time be useful in terms of practice, remains fantasy, utopia. However, as such, it has infinite value for the present. For it provides us with a standard by which to judge the party programmes, by which we can measure the value of goals and achievements. It represents the image of the Austrian state as it could be. If we see a goal at all, then we will be able to take the first steps in the direction of that goal. A clear goal is the first and most important requirement of a strong and stable policy. We are lacking such a goal, and locating it by the only appropriate means, that of the scientific comprehension of the problem, has been the task of this work. Whether I have correctly utilized these means, I will leave to the judgement of others qualified in such matters. Their assessment will not have any great bearing on this first attempt of its kind.

Notes 1 Karl Renner [Synopticus]: Staat und Nation. Zur österreichisten Nationalitäten-frage. Staatsrechtliche Untersuchung über die möglichen Principien einer Lösung und die juristischen Voraussetzungen eines Nationalitätengesetzes. Wien: [Eigenverl.] 1899 (State and nation. On the Austrian nationalities question. An investigation in constitutional law of possible legal principles for a solution and conditions of a nationality law.) Translated from German by Joseph O’Donnell especially for this volume and published in English for the first time. 2 The Austrian Prime Minister, Count Badeni, appointed in 1895, believed he could settle the Czech-German language conflict in Bohemia and Moravia by two language ordinances of 1897, which provided for the conduct of business in both languages. Badeni ordered that all public officials in Bohemia and Moravia would have to acquire a sufficient command of both national languages within three years. Otherwise they would lose their office. In a situation that resembles contemporary Quebec and Catalonia, while most Czech officials had a sufficient knowledge of German, few Germans had a commensurate knowledge of Czech, and many took Badeni’s decrees as an insult and a challenge to their feeling of national superiority As a result, German nationalists and liberals started filibustering in parliament, which Badeni attempted to counter by introducing a new order of parliamentary procedure. The filibuster then turned to open violence in parliament, and spilled from there into the streets of Vienna and Graz as well as the German towns of Bohemia. Early German nationalist and liberal oppositions were now supported by Christian Socials and Social Democrats, who faced support for the decrees by almost all Czechs, southern Slavs and some Ruthenian and Polish deputies. With police dragging scores of deputies from the parliament and rioting in the streets, the emperor was forced to dismiss Badeni. Subsequent cabinets

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modified and in 1899 rescinded the decrees. As a consequence, Czech filibustering replaced the German filibuster practically to the end of the empire. 3 The battle of Königgrätz, or the battle of Sadowa, was the decisive military confrontation between Austrian and Prussian forces during the Seven Weeks’ War in 1866. Prussia’s victory effected the exclusion of Austria from a Prussiandominated Germany and, it has been argued, doomed the leadership of the Germans as the dominant national group in the Habsburg Empire and ultimately helped shape the empire’s multinational character. It may be that Renner’s citing of Königgrätz as a metaphor for the situation within Austria after the fall of the Badeni cabinet is based on such an interpretation (R.A. Kann, A History of the Habsburg Empire, 1526–1918, 1980, Berkeley, CA: University of California Press, 162 ff.). 4 Here Renner is presumably referring to the effect of the total obstruction of the Austrian parliament by all German parties in 1897 (above, note 1) on attempts to renegotiate the compromise (Ausgleich) which formed the basis of economic unity between Austria and Hungary. The end result of Badeni’s failure to get parliamentary consent for a provisional compromise—a measure designed to maintain unity while differences over draftee quotas were ironed out—was the collapse of a common legal basis for the economic alliance and a weakened agreement to maintain the customs union independently, a development which worked economically in Hungary’s favour. On the Austrian (Cisleithanian) side, this new, weaker version of the economic compromise was imposed by emergency decree under paragraph 14 of the basic law by Badeni’s successor Gautsch in 1898. 5 In 1895 the Austrian cabinet, headed by Prince Alfred Windischgrätz, fell because of German national opposition to Slovene parallel classes in a high school in Cilli (Celje) in southern Styria, an illustration of the significance of the language question in nationally mixed areas in Austria at the time. 6 Lands of the Bohemian crown. 7 The hereditary lands refer to the Alpine domains from the spurs of the Alps in the north to the shores of the Adriatic in the south, from the Bavarian frontier in the west to the Hungarian plains in the east. 8 Ludwig Gumplowicz (1838–1909) was an Austrian sociologist, political scientist and jurist who maintained that social development arose out of conflict, first among races, then among states, then among social groups. 9 The fifteen crown lands making up Cisleithanian Austria. 10 Adelbert von Chamisso, or Louis Charles Adélaide Chamisso de Boncourt, was born in 1781 in Champagne and died in 1838 in Berlin. After fleeing the French Revolution with his family, he served as a page to the Queen of Prussia and later as a Prussian officer. From 1815 to 1818 he was director of the Botanical Gardens in Berlin and subsequently of the Herbarium. Apart from his studies in the natural sciences, he wrote both prose and poetry, including the song cycle Frauenliebe und -leben for which Robert Schumann composed the music. 11 Lóránd Eötvös was professor of experimental physics at the University of Budapest. He researched gravitation and showed that gravitational mass and inertial mass are equivalent. 12 Peregrini dediticii were a special category of non-citizens in ancient Rome. In general, they were those that belonged to towns that, having initiated a war against Rome, had surrendered unconditionally. They were not protected by community laws and lacked citizenship. 13 The term Carolingian Empire is used to refer to the realm of the Franks. The Franks formed one of several west Germanic tribes who entered the late Roman Empire from Frisia and established a lasting realm in an area that covers part of today’s France, and Germany (Franconia), forming the historic kernel of both these two modern countries. The Carolingians were a dynasty of rulers that eventually controlled the Frankish realm and its successors from the eighth century to the tenth. The name Carolingian itself comes from the dynasty’s most prominent figure, Charles the Great, better known as Charlemagne (in Latin: Carolus Magnus).

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14 The term Staatsrecht, or state rights, usually translated as constitutional law, is closer in meaning here to the concept of the right to constitute a state, specifically to the principle of the indivisibility of the lands in question as a separate historical body under the Austrian crown, a goal of both the Young Czech and Young German movements. 15 In this region, that religion. This is taken to mean that the religion of the monarch is the obligatory religion of the subjects. 16 In this region, that language. Renner is indicating here that in modern states the principle of the obligatory religion was replaced with the principle of the obligatory official language. 17 The Hohenzollerns were a European royal family that came to rule Brandenburg after 1415. They ruled the Duchy of Prussia from 1525 to 1701 and the Kingdom of Prussia from 1701 until 1918. They also ruled the German Empire from 1871 to 1918 and were deposed following World War I 18 Glebae adscriptus. In medieval terms, serfs attached to the soil. 19 Secular arm, the civil power invoked by the medieval church to punish offenders. 20 Otto Steinwender, a leading middle-class radical, was the founder of the German People’s Party. He argued that in a multinational state parliamentary government on the British model ‘that ignored doctrine’ could and would not work because no nation would be content to be ruled by others. His alternative was a government above party (and nation) that would have to work with changing minorities.

Part I National cultural autonomy and contemporary theories of the state

3 Nations, states and the sovereign territorial ideal Geneviève Nootens1 L’ennemi, c’est la souveraineté! Car elle promet la guerre perpétuelle entre les nations, la guerre économique perpétuelle, la mutilation et la paupérisation de tout le genre humain. (Renner 1937/1998:122)

Two sets of considerations make Renner’s model of cultural national autonomy interesting in the current context of debates on the multinational state. First, Renner’s reflection is rooted in background assumptions that are still true of our times. For example, he insisted that the most contentious issues between national groups concern language, education and the recognition of cultural rights in the public domain (Nimni 1999:298). He also believed that globalization processes would lead to a new oikoumenê: he referred to the globalization of the means of transport, economic interdependence, and the impact of the global market on economic successes, as ‘the most basic reality of the world’; he stressed that such processes would shape individuals’ private lives (Renner 1937/1998:54–5). In my view, Renner’s greatest contribution to issues of peaceful relationships between national groups lies in the way he tied national struggles and the assimilation of minorities to the very form and imperatives of the modern sovereign state. He believed that global peace would be possible through the free federation of nations, and that the world surface may be covered by ‘a precious patchwork, characterized by an infinitely heterogeneous spirit and mankind’ (Renner 1937/1998:121). However, this can only be achieved, according to Renner, through a critique of the model of the nation state, and through the integration of the nations as distinct juridical subjects in a higher (supranational) legal order. Whereas many contemporary liberals do not challenge the sovereign territorial ideal, Renner’s model is built on a critique of the territorial principle. This is why my first section will address the issue of the historical relationship between liberalism and the sovereign territorial ideal, which is characteristic of the modern state. In the second section I will outline some consequences of this model for minority rights. I will then stress that Renner’s critique of the territorial principle may contribute significantly to smooth the issues raised by the coexistence of nationalities within the multinational state and abroad.2 Since I am sketching a large theoretical argument, specific cases of nation building won’t be detailed here. I intend to stress some features of the dominant liberal

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paradigms (national as well as multinational) which may work to restrict the recognition of minority rights, and to argue that Renner’s model, although not a panacea, can be helpful in decentring the liberal viewpoint.

Liberalism and the sovereign territorial ideal The process of territorialization which accompanied state building and framed the spatial dimension of citizenship has been analysed by many scholars. However, most of recent liberal work in political theory has not challenged the territorialization of political space in modernity as the functional feature which structures conceptual and normative political categories. Liberal nationalists (such as D.Miller) still look for a coincidence between some form of the nation and the territorialized sovereign state; this may lead only to a dead end, since if their arguments are to apply to minority nationalism as well, it would create an insolvable political puzzle. For their part, people like Tamir and Kymlicka are well aware that liberals have taken for granted the existence of the territorialized national state. But however sophisticated their accounts are, they do not sufficiently address the consequences of the fact that nationalism helped to solidify a commitment which was already in motion, namely the commitment to the sovereign territorial ideal. It is precisely at this level that Renner’s contribution to the current debates on the multinational state may be the most significant, since it is through the critique of the territorial principle that Renner worked out his model of the multinational state. The issue of the links between liberal thought and values, on the one hand, and the territorially delineated form of modern political community, on the other one, seems to me to be a central one. I suggest (building on Q. Skinner’s work) that in order to fully grasp the relationship between liberalism and the modern state we have to sketch the following argument: although territorialization does not necessarily entail liberal forms of state and government, it soon appeared to European rulers and political writers (in the context of the religious wars of the sixteenth and seventeenth centuries) that a common government did not necessarily require a common religious faith, and that in fact, the peace of the commonwealth may rather require setting aside matters of faith. At first, with the Treaties of Westphalia (which symbolized both the establishment of a stateterritorial order and the will to subject religious conflicts to state jurisdiction) we can of course hardly talk of toleration at all. The cuius regio, eius religio principle is rather axiomatic of the right of the ruler of a sovereign political entity to impose religious uniformity on his people. But it soon appeared to some people that this system would be rather instable, since it could not warrant the peaceful coexistence of Catholic and Protestant faiths within the state. Two moments in the evolution of modern political thought on this matter are of utmost significance: the one in which we can ‘read’ an explicit defence of the commonwealth at the price of religious uniformity (e.g. in Bodin’s work), and the one that witnessed the elaboration of a theory of popular sovereignty which asserts the moral/political right of individuals to resist an unlawful ruler.3 This latter moment, together with the denial of the papacy’s jurisdiction on ‘national’ territories (especially in England), prefigured the modern theory of political obligations, since it conveys the assumption that the individual’s duty is towards a state, which protects a cluster of rights issued from man’s

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fundamental condition of natural liberty (Skinner 1978).4 Liberalism inherited from these developments a theory of political obligations which claims that these are owed to a state which protects fundamental rights (including religious freedom), and which is to be the sole object of people’s political allegiance. This took shape through the functional structure of a state built in the wave of absolutism, a structure that provided for a direct, unmediated, relationship with individual citizens. Liberal democratic societies inherited a state erected by absolutism (as Tocqueville so brilliantly argued in L’Ancien Régime et la Révolution). The modern theory of political obligations is therefore closely linked with the organizational form of the unified state, of which two characteristics must be stressed for the purposes of this chapter. First, it is in essence adverse to constitutionally enshrined, intermediate entities. It rules out, a priori, alternative (competing) political identities and allegiances, as well as patterns of diffused authority (for example, the sharing of sovereignty between a ruler and intermediate categories), which are presented by state historiography as pre- or non-modern (Keating 2001:11; Nimni 1999:299). Second, this model of the state is characterized by the sovereign territorial ideal, which attracted increasing commitment from the Westphalia Treaties and onwards (even if, as Murphy explains, there has been volatility in the historical understandings of sovereignty as a principle governing relations among states). That ideal crowded out competing conceptions of how power might be organized (Murphy 1996). As Agnew (1999:513) stresses, it is ‘the tight connection between sovereignty and territory that has underwritten the conceptual bonding of political power to statehood’. That ideal eventually shaped many social practices (among other things through the homogenization of populations), and weighed heavily on the subsequent transformations of the inter-state system. Of course, states did not consolidate in the same way, nor are they characterized by the same degree of centralization. Some multinational states and former empires have more diffused forms of (internal) sovereignty (for example, the cases of France and Canada are quite different). And a democratic nation state need not take upon itself popular sovereignty. Just as there are alternatives to the conventions of modern constitutionalism (Tully), a republican tradition that runs counter to the juridical ideology of the individual subject (Pocock, Skinner), and some stateless nations that invoke their historical rights against the central state, there are historical alternatives to the idea of the sovereign state. Hence, for example, K.Endo (2003) recasts subsidiarity as an age-old concept against excessive centralization of power by the sovereign state. Nonetheless, the myth of the nation state is still very powerful. Once the modern idea of the nation was introduced (in the nineteenth century), the functional requirements of territorialization interacted with moral principles and identity models (the nation) to frame the political and legal model of the nation state. Among other things, the idea of the nation fills in for the fact that, normatively, the social and territorial boundaries of the constitutional state are contingent (Habermas 1996:131–2). The modern idea of the nation represents, from the point of view of the state, a powerful tool of political mobilization and normative justification for the territorial delineation of the state. Since the territory is the functional support of the main categories of the modern state, the significance of this normative justification should not be neglected.5 The point I want to stress here (following Pierré-Caps) is that the principle of nationality has been stated in such a way as not to challenge the unity of the state: it

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rather challenged the origin of power within the state, thus providing the state with a new basis of legitimacy. The definition of sovereignty as an absolute and indivisible characteristic of the sovereign independent from the body politics reached a peak with the advent of the nation state, since in this model the state claims to be the embodiment of the nation (Pierré-Caps 1998:41). The shift from a democratic justification based on the right of citizens to self-determination to a nationalist one (a shift which led to identify the nation with the body politics) (Tamir 1993:60–1) is explained by the fact that the consolidation of the state is accomplished around a majority nation.6

The nation state model and minority rights The argument sketched above helps to demonstrate why the state model can hardly accommodate the recognition of collective rights for national minorities. On the one hand, the language of human rights is underpinned by the sovereign territorial ideal and the unmediated relationship with citizens that the state claims and monopolizes. Hence, Kymlicka and Straehle (1999:74–5) rightly emphasize that state nation building can be minority nation-destroying even if it fully respects individual civil and political rights (for example, through large-scale settlement policies in the historical territory of a national minority, through the redrawing of the boundaries of internal political sub-units so as to disempower national minorities, or through adopting the majority’s language as the one ‘official language’). On the other hand, states want to retain the monopoly of what constitutes the normative grounding of political independence in the modern interstate system, namely nationhood. This is why states would rather have the issue of (national) minority rights rephrased in the larger language of human rights. As Jackson Preece (1998:43) suggests, recognizing individual rights of citizenship alongside state rights is no threat to any existing nation state’s sovereignty; however, an international system of national minority rights would not only limit states’ sovereignty but would ‘grant international status of some kind…to national units that could come to rival the power or authority of the nation states affected’. After the First World War, as is well known, the principle of nationality was applied inconsistently, following economic and strategic considerations. Macartney (1934/1968:211) estimates that: the number of persons left as, or made into, minorities by the Peace Treaties was probably not less than some 25–30 millions, constituting the substantial proportion of some 20–25 per cent of the populations of the states to which they were assigned. In the peace negotiations that ended the Second World War, British and American representatives opposed the granting to minorities of rights such as those that were provided for in the League treaties. The Allies agreed to huge (inhuman) population transfers, believing that the best way to deal with minorities was to get rid of them one way or another (Macartney 1934/1968:506). For example, Churchill (speaking of the shift westward of Poland) told the House of Commons that ‘expulsion was the method which, so far as we have been able to see, will be the most satisfactory and lasting. There

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will be no mixture of populations to cause endless trouble… A clean sweep will be made’ (ibid.: 506). The UN charter was framed with the idea that the protection of minorities should rather take the form of the defence of human rights; national minority rights ‘were subsumed within the newly created universal human rights regime’ (Jackson Preece 1998:95). The right of self-determination has been since essentially confined to a right to decolonization, a move that benefited the nation state model (Pierré-Caps 1997:33).7 Hence, coupled with the principle of nationality through the claim to sovereign statehood, the territorial principle contributed to hinder fair organization of the relationships between majority nations and national minorities.

Territorial and non-territorial autonomy It is precisely through the critique of the territorial principle that Renner worked out his model of the multinational state. As Pierré-Caps stresses in the preface to the French translation of Renner’s Die Nation. Mythos und Wirklichkeit, Renner considered the political and juridical model of the nation state as conflicting with the working out of a fair juridical framework for national minority rights. Renner held the nation state model as largely liable for the persistent struggles between national groups and for the assimilation of minorities. In order to pacify the relationships between nations and to avoid the assimilation of minorities, he and Bauer suggested intro ducing the personality principle and organic regulation of the relationships between the nations and the state. Their model mixed personal and territorial federalism, challenging the conception of sovereignty as unitarian and indivisible with territory as its functional support. Whereas the liberal paradigm does not challenge the sovereign territorial ideal, Renner argued that the democratic relationship between peoples might be better ensured by the personality principle than by the territorial one. I do not mean that Renner’s model would be a panacea for all problems raised by the coexistence of nationalities. Territorial autonomy may be more appropriate for minorities which are territorially concentrated; personal autonomy may be an interesting solution for those groups which are not (or only partly) territorially concentrated but which claim some degree of institutional separateness and self-administration. (It should not be seen as a substitute for territorial autonomy for the former.)8 It may be particularly useful in cases where nations are closely intermingled on a territory or for scattered minorities. Indeed, it seems likely that no case could be solved by an application of a pure personality principle, and that any solution would require combining the territorial and the personality principles.9 There had been such initiatives before 1918 in the Austrian Empire, as well as in the inter-war period, the most significant being the Estonian Cultural Autonomy Law of 1925.10 The failure of the League of Nations, the rise of fascism, and then the war, wrecked those efforts and did much to discredit minority rights. But more recently there have been some initiatives based on principles similar to those of Renner’s principle of personal autonomy; we may think, for example, of the Russian system of national cultural autonomy and of the Hungarian Minority Protection System (Krizsan 2000). Last year, negotiators of the Quebec government and of some Innus communities came to an agreement that should lead to a treaty between Quebec and those First Nations. Although

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not inspired by Central and Eastern European experience with minorities, the agreement contains some elements of personal autonomy and does not make the possession of the territory a zero-sum game; for example, the Innus get full property in some land (including the territory of their reservation) as well as the right to exercise some ancestral rights on a much larger territory (considered as their ancestral territory) which would not be, stricto sensu, their ‘property’. Since the agreement is based on their recognition as distinct nations on the territory, it also allows for the adoption by the First Nations of their own citizenship rules, and delimits what would be the competences of their executive and legislative powers. Four compelling objections can be raised to Renner’s models. First, one may object that it conveys a view of society as made of sealed, merely con-tiguous, national groups. Such a view would neglect the sometimes thick networks of interaction linking individuals, as well as the plural character of identities characterizing our era. It is not clear to me how deep this compartmentalization is in Renner’s thought. However, I agree that Renner’s model does not provide for a plurinational state, namely one in which the concept of nationality is itself plural and takes different meanings in different contexts (Keating 2001:19–20). The current context makes it necessar to integrate a more flexible view of identities and of their politicization, as well as the possibility of multiple, overlapping political communities. Also, it would be neither normatively justifiable nor politically desirable to organize political representation in a way that would lead to increased ethnic polarization and compartmentalization within the state. (We should, however, welcome the development of civic allegiances even if they were to compete with state nationalism.) I do not mean that increased ethnic polarization would necessarily follow from the implementation of mechanisms of personal autonomy. But those mechanisms should be carefully designed in order not to produce such a result. At this level, Renner’s work is not clear enough on how national belonging and citizenship are to be articulated; mechanisms regulating relationships between communities and sustaining the individuals’ participation to the common political life of the state (if there is to be one) must be clarified (Nimni 1999:297). A second objection follows directly from the first. The model is both highly individualistic (recall that the right to self-determination is to be exercised exclusively by the individual, and is based on a free, individual and extraterritorial decision) and highly constraining, since it requires some form of minority registration. Such registration is necessary to secure the legitimacy of self-government structures and to ensure the provision of special minority education, as well as financial support; it is also necessary to establish who is going to be subject to the taxation power of the nation as a public corporation. But some persons could either identify with several groups (Kemp below) or refuse to declare an identity (Krizsan 2000). Paradoxically, then, the most individualistic feature of the model may also be the less desirable and applicable one. A third significant objection comes from the fact that personal autonomy may not help nations to escape the ‘minoritization’ trap. Couture (2003:311) stressed to me that the source of the problem of minoritization is in fact twofold: it lies both (1) in the difficulty to delimit the culturally ‘neutral’ public sphere, and (2) in the coupling of democratic processes (run by majority rule) with the coexistence of some nations in a society, a coupling which automatically associates numerical minority and national minorities. National self-determination also requires some institutions, and therefore that people

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concentrate in some place where they contribute to the vitality of those institutions. However, Couture recognizes that some of those problems can be lessened if we challenge the interstate system (based on the sovereign territorial ideal), and develop supranational institutions in which nations (territorial or not) could be represented.11 Finally, one may object, as Bauböck (2002:9) does, that ‘in the institutional environment of a liberal democratic federation TA [territorial autonomy] offers strong incentives for nationalist leaderships to strengthen their political home base by attempting to include internal minorities in their vision of the nation’. It thus would provide for a more inclusive nationalism, as well as for some accountability to the federal state concerning the treatment of minorities in regions. He also argues that with cultural autonomy the institutions in charge of protecting the minority are external to the regional majority and thus reinforce political alienation between communities. It must be stressed, against this objection, that a territorially concentrated minority nation can, in a federal system, have the control of some competences, but for the ones that are the domain of the central government, it nonetheless constantly risks being in a minority. Even when there are institutional mechanisms designed to counter the consequences of this conception for minorities (for example, through the voting system or conventions on the participation of members of minorities to the government), some groups will never be able to constitute a majority, even in federal systems. Notwithstanding those problems, Renner’s model is still helpful because it argues that the sovereign territorial ideal cannot provide those issues with a satisfactory solution, leading instead to powerful trends towards assimilation, which are both unfair from the standpoint of minorities and based on power politics. The fact that the model had been ignored by both liberal democracies (at the time still blinkered by the myth of their national cultural neutrality as well as contemptuous of Central European experiments) and eagerly opposed by Lenin and Stalin is not insignificant. In fact, it may precisely point to the fact that Renner’s insight was sound when he said that to develop an ‘authentic law of minorities’ we had to go beyond the model of the nation state. That task requires us to challenge the conjunction state-nation-sovereignty-territory, and the building of a powerful international regime of minority rights (Organization for Security and Co-operation in Europe 1999). Self-government certainly requires some territorial basis. However, the current territorial order does not exhaust all possible ways of organizing political communities; there are more flexible, less monolithic ways to do this, provide we work to develop multi-level democracies and practices of diffuse sovereignties (Keating 2001; below).12 Also, there is a whole range of possibilities, between purely territorial and purely personal solutions (Coakley 1994:311). And even if territory is to remain in some way a significant support of authority, multinational and plurinational societies should seek to lessen the claims on it. A territory may be perceived differently and inhabited in various ways (provided these are not mutually exclusive) by the peoples which share it. This requires, however, that we overstep the territorialist epistemology which underlies the modern state.

Conclusion

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Renner’s model has been marginalized because it challenged the nation state model in its golden age, when it was seen as the standard criterion of modern political association. In the first part of the twentieth century a model worked out in a multinational empire, reasserting the previous traditions of shared sovereignty between the state and some sovereign intermediate categories with legal rights, and challenging the all-powerful sovereign territorial ideal, could hardly come to the forefront of political debates on the organization of multinational states and the fate of minorities. Neither liberalism nor state socialism would integrate a fully fledged scheme of personal autonomy that seemed to run counter to the logic of the state. Pervading national conflicts, as well as the long history of the forced assimilation of minorities which accompanied state consolidation, makes it highly desirable that we look closer to personal autonomy. The current context is favourable to a pluralization of allegiances, participation and authority. It also seems favourable to the working out of more flexible institutional mechanisms. The model of personal autonomy could be fruitfully combined with notions of post-sovereignty and legal pluralism to develop transterritorial and extraterritorial modes of political organization. Implementing such systems requires, however, a more diffused conception of sovereignty, since it has to be dispersed among several normative orders (among them non-state normative orders) (Keating 2001; MacCormick 1999). The way power relationships can be organized on a non-territorial basis raises many practical problems (how much power is to be devolved, and how are these powers to be exercised), theoretical ones (the predominant conceptual framework can hardly makes room for personal autonomy) and moral ones (it is not enough to elaborate new mechanisms or theoretical arguments, since their implementation would also require a good deal of recognition, solidarity and co-operation between peoples and nations). However, I can hardly see how we may reorganize the relationships between peoples without escaping the classical model of the sovereign territorial state. Renner’s work is of great value in investigating those issues, despite its limits.

Notes 1 I wish to thank E.Nimni, M.Keating, M.Seymour and J.Couture for discussions and comments on previous versions of this chapter and topics related to it. I am also grateful to the Fonds québécois de recherche sur la culture et la société, for the research grant which allowed me to work on that paper, and to the CRIS. 2 In order not to make the chapter cumbersome, I will talk of national minorities to designate minority nations as well. Stricto sensu, however, there is a difference between the two phenomena: national minorities are the extension of contiguous nations or of a neighbouring national majority; this is not the case with minority nations. This has consequences on the claims they can make regarding self-determination (Seymour 1999; Keating 2001:5), but those consequences will not be discussed here. 3 It sketched a ‘fully political theory of revolution founded on a recognizably modern, secularized thesis about the natural rights and original sovereignty of the people’ (Skinner 1978:338). 4 A third ‘moment’ would be the defence of religious toleration in Locke or Voltaire, whose epistemological and moral arguments were already embedded in the territorialized state, and pointed to liberal forms of government.

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5 Hence, we should rather be asking not only ‘Why do nations have to become states?’ (as did C.Taylor), but in fact ‘Why do most states want to become nations?’ 6 Again, the argument is oversimplified, since I am looking for huge theoretical systematization and do not consider peculiar cases. There are significant variations in those respects between countries, in Western Europe as elsewhere. However, whatever case we consider, the nation state has been a very powerful myth, used among other things to mobilize citizens and to sustain a common, overarching identity. 7 There is, however, according to Pierré-Caps, a ‘subterranean’ law which does not fit in with this dominant view, and which originated in the special report of the subcommittee in charge of the writing of section 1 of the UN charter. The subcommittee suggested that the right to self-determination should apply to states, nations and peoples; therefore, non-colonized peoples and peoples which are represented in the government of plurinational or multinational states but nonetheless claim complete autonomy would not have been excluded from the application of the principle (Pierré-Caps 1997:34). Pierré-Caps also refers to resolution No. 1541 of the General Assembly, which presented statehood as but one of three possible paths of evolution for non-autonomous territories (hence the right of selfdetermination would not be confined to accessing statehood). 8 I agree with Keating (2001:4) that ‘self-determination is part of the normative content of nationality’. Recognition of a national minority as well as its participation in a larger community are to be negotiated on that ground, and not as a mere devolution from the central, consolidated state. It must also be recalled that many of those minorities are not looking for integration stricto sensu in a larger, majoritarian society. Of course, the members of those minorities must be granted the status and rights related to citizenship, especially since some states link the possibility of being recognized as a national minority to being a citizen. Estonia, for example, has restricted the ambit of the Council of Europe’s Framework Convention for the Protection of National Minorities by stating that only citizens of Estonia can be considered a national minority, hence depriving large numbers of Russians living in that country but formerly citizens of the Soviet Union, and thus stateless, of the ability to claim that status (Bowring below). 9 I do not think we shall conclude that personal autonomy is always preferable because of some intrinsic worth. However, the prevailing territorial principle has overshadowed the possibilities opened by the personal one, and not enough attention has been paid to that type of arrangement, as the experts who worked on the Lund Recommendations (Organization for Security and Co-operation in Europe 1999) have stressed. 10 The Cultural Autonomy Law of 1925 empowered any ethnic group numbering at least 3,000 to establish for itself a separate legal identity. (Membership in the group was to be selfdefined, and there were criteria demanding substantial consensus within the group on this course of action.) The group could then elect a cultural council which would be authorized to levy taxes on the members of the group and which would be entitled to assume control of certain functions from the state and communal authorities. Education, culture, libraries, theatres, museums, sport and youth affairs were the most important such areas. The two principal non-territorial minorities, the Germans and the Jews, took advantage of this legislation to establish their own cultural councils (Coakley 1994:307). In territories where a population of Estonian origin was in situation of a minority, Estonians could also claim to organize themselves on the basis of the law. 11 Although Renner retained the conventional definition of the state, his challenging of the territorial principle as the functional structure of national self-determination could sustain a powerful critique of the state itself. Indeed, since he viewed the state mainly as a space of economic governance, there are reasons to think that in the current context he might well have challenged the Weberian definition. 12 The main challenge, for non-territorially concentrated groups, is to build systems of functional autonomy.

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References Agnew, J. (1999) ‘Mapping Political Power Beyond State Boundaries: Territory, Identity, and Movement in World Politics’, Millennium: Journal of International Studies, 28(3):499–521. Bauböck, R. (2004) ‘Territorial or Cultural Autonomy for National Minorities?’ in Alain Dieckhoff (ed.), The Politics of Belonging: Nationalism, Liberalism and Pluralism, Lanham, MD: Lexington Books. Bauer, O. (1907) Die Nationalitätenfrage und die Sozialdemokratie, trans. J. O’Donnell, in E.J.Nimni (ed.), The Question of Nationalities and Social Democracy (2000), Minneapolis, MN: University of Minnesota Press. Bowring, B. (2002) ‘Austro-Marxism’s Last Laugh? The Struggle for Recognition of National Cultural Autonomy for Rossians and Russians’, Europe-Asia Studies, 54(2):229–50. Coakley, J. (1994) ‘Approaches to the Resolution of Ethnic Conflict: The Strategy of Nonterritorial Autonomy’, International Political Science Review, 15(3): 297–314. Couture, J. (2003) ‘Commentaire’, in S.Courtois (ed.), Enjeux philosophiques de la guerre, de la paix et du terrorisme, Quebec: Presses de l’Université Laval. Endo, K. (2003) ‘Subsidiarity and its Enemies: To what Extent is Sovereignty Contested in Europe?’, paper presented at the nineteenth IPSA World Conference, Durban, 2 July. Habermas, J. (1996) ‘The European Nation State, its Achievement and its Limitations: On the Past and Future of Sovereignty and Citizenship’, Ratio Juris, 9(2): 125–37. Haupt, G., Lowy, M. and Weill, C. (1974) Les marxistes et la question nationale, 1848–1914, Montreal: L’Étincelle. Jackson Preece, J. (1998) National Minorities and the European Nation-States System, Oxford: Clarendon Press. Keating, M. (2001) Plurinational Democracy: Stateless Nations in a post-Sovereign Era, Oxford: Oxford University Press. Krizsan, A. (2000) ‘The Hungarian Minority Protection System: A Flexible Approach to the Adjudication of Ethnic Claims’, Journal of Ethnic and Migration Studies, 26(2):247–62. Kymlicka, W. (2000) ‘Nation-building and Minority Rights: Comparing West and East’, Journal of Ethnic and Migration Studies, 26(2):183–212. Kymlicka, W. and Straehle, C. (1999) ‘Cosmopolitanism, Nation-States, and Minority Nationalism: A Critical Review of Recent Literature’, European Journal of Philosophy, 7(1):65–88. Macartney, C.A. (1934) National States and National Minorities, repr. 1968, New York: Russell and Russell. MacCormick, N. (1999) Questioning Sovereignty: Law, State, and Nation in the European Commonwealth, Oxford: Oxford University Press. Murphy, A.B. (1996) ‘The Sovereign State System as Political-Territorial Ideal: Historical and Contemporary Considerations’, in T.J.Biersteker and C.Weber (eds), State Sovereignty as Social Construct, Cambridge: Cambridge University Press. Nimni, E. (1999) ‘Nationalist Multiculturalism in Late Imperial Austria as a Critique of Contemporary Liberalism: The Case of Bauer and Renner’, Journal of Political Ideologies, 4(3):289–314. Organization for Security and Co-operation in Europe (1999) The Lund Recommendations on the Effective Participation of National Minorities in Public Life, The Hague: Foundation for Interethnic Relations. Pierré-Caps, S. (1994) ‘Karl Renner et l’État multinational: contribution juridique à la solution d’imbroglios politiques contemporains’, Droit et société, 27:421–41. Pierré-Caps, S. (1997) ‘L’autodétermination: d’un principe de création de l’État à un principe de constitution de l’État’, in O.Audéoud, J.Mouton and S.Pierré-Caps (eds), L’État multinational et l’Europe, Nancy: Presses Universitaires de Nancy.

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Pierré-Caps, S. (1998) ‘L’Union européenne, demos et légitimité: de l’État-nation à la multination’, Civitas Europa: Revue juridique sur l’évolution de la nation et de l’État en Europe, 1(1):35–54. Renner, K. (1937) Die Nation. Mythos und Wirklichkeit, trans. S.Pierré-Caps and C.Tixador, La Nation, mythe et réalité (1998), Nancy: Presses Universitaires de Nancy. Symour, M. (1999) La Nation en question, Montréal: L’Hexagone. Skinner, Q. (1978) The Foundations of Modern Political Thought, Cambridge: Cambridge University Press. Tamir, Y. (1993) Liberal Nationalism, Princeton, NJ: Princeton University Press. Weill, C. (1987) L’Internationale et l’Autre: les relations inter-ethniques dans la IIe Internationale, Paris: Arcantère.

4 Karl Renner and the problem of multiculturalism John Schwarzmantel The purpose of this chapter is to explain the views of Karl Renner and his concept of ‘state’ and ‘nation’, and to assess their significance for our own time. In what sense can Karl Renner be called a ‘multiculturalist’, and does his ingenious solution of the national question in the context of the Austro-Hungarian Empire have anything to offer for contemporary political analysis? The nub of Renner’s analysis is obviously the relationship between ‘state’ and ‘nation’, as the title of his pamphlet implies. It is certainly true that this remains a topic of current significance, even though the context in which we approach it is very different from that of Renner’s time. He was writing in the context of the multinational AustroHungarian Empire, at a time when national rivalry threatened to undermine the unity of the social democratic movement, and to paralyse attempts at social and economic reform. The purpose of Renner’s work was to attempt to solve this impasse by separating out the different concepts of ‘state’ and ‘nation’, and by explaining at the same time how each needed and complemented the other. Renner’s analysis is a very optimistic one in that he believed that the national question could be settled and its negative impact overcome. This he sought to achieve by making the nation into a juridical subject, an organization recognized by law, with its own rights and duties. For Renner the nation had to be formed as a non-territorial societal association which should be legally constituted. Once this had been achieved and the nation legally created as an association, then the nation could function as a cultural grouping which would be an intermediary between the state and the individual. This optimistic belief suggests that once the national question was regulated by law through the legal constitution of nations as cultural associations, national conflicts could be tamed. In that way, Renner thought, the sterile nationalist rivalries which were tearing apart the Austro-Hungarian Empire could be transcended. Each nation would be satisfied by its control over its own cultural, linguistic and educational affairs. From a socialist or social democratic perspective this would be highly advantageous. It would put an end to the nationalist quarrels which took up parliamentary time and which diverted attention from questions of economic and social reform. Solving the national question in this way would allow co-operation between national groups, and permit joint action between the national sections of the Social Democratic Party on those more general topics of shared

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interest and class struggle. It was such topics which should form the agenda of a modern political system. If issues of national culture could be kept in their place, Renner argued, then fruitful collaboration between nations would result in a more progressive agenda of political action unhampered by nationalist division. To echo the title of Hechter (2000), Renner believed in the possibility of ‘containing nationalism’. Hechter argues that the course of nationalism ‘ought to be substantially affected by social institutions’, and that ‘institutions which increase the central state’s accountability to national minorities should reduce the demand for sovereignty and hence the potential for nationalist conflict’ (2000:136). While Hechter’s rational choice approach is far removed from Renner’s Marxist terminology, they both share the twofold assumption that nationalist conflict can be contained or tamed, and that the means to achieve such containment involve institutional reform. In Renner’s case this institutional reform was above all a matter of making nationalist conflict a legal issue, of turning questions of irreconcilable conflict into matters regulated by law. It was thus an explicitly reformist agenda, designed to clear the way for the modern issues of social change within the framework of a multinational state. (Butterwege 1991:119, argues that Renner’s proposed solution to the national question was doomed to failure since it neglected the impossibility of reforming the state form of the Hapsburg monarchy.) This agenda was based on the optimistic belief that the national question could be solved, or ‘contained’ by a process of institutional change, or the legal regulation of matters of national conflict. The discussion of Renner’s argument and assessment of its adequacy has to focus on his analysis of the relationship of ‘state’ and ‘nation’. He sees these terms as fundamentally antithetical, and yet as needing each other and hence being complementary. The state for Renner is essentially a legal association, in the sense that it is the state’s function to make the law, and to assert the general interest of society. At first sight this concept of the state seems to echo Rousseau’s idea of the general will, formed through the democratic participation of all citizens, a general will which is superior to individual wills and to their mechanical aggregation in the shape of ‘the will of all’. However, Renner gives it a Marxist twist when he insists that the state cannot, at least in present-day society, constitute or create a general will. He declares that the collective will formed by the state is not a general will, but that ‘[i]t is the expression of the will of the interest groups dominant at any one time’ (Renner above: 25). This, in Marxist language, would be the economically dominant ruling class. For Renner the state exercises sovereignty: it imposes this collective, though not general, will over a particular area, and on those living within it. The state is thus necessarily territorial, it exercises its domination over the population of a given geographical area. Indeed, one could say that Renner is almost anticipating Max Weber’s famous 1918 definition of the state as ‘a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory’ (Weber 1919/1970:78). Weber, like Renner, insisted that ‘“territory” is one of the characteristics of the state’. This seems very close to Renner’s statement that the state exercises ‘exclusive rule [Herrschaft] by this sovereign entity over a territory’ (Renner above: 25). Renner’s definition of the state thus seems to be a blend of Marx and an anticipation of Weber: the state is a sovereign body, necessarily territorial, expressing a collective interest which is that of the dominant class, or interest groups, as Renner puts it.

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For Renner the antithesis of ‘state’ and ‘nation’ is an antithesis of the same kind as that between state and society. The opposition is between the state as territorial domination and society as the sphere of personal association. The Herrschaft, or domination of the state, is contrasted with the principle of society as that of voluntary association. This is Renner’s famous antithesis between the territorial principle and the ‘personality principle’, which is constitutive of the nation. He sees the nation as cultural, as a community of individuals who are linked by a common way of thinking and feeling. This finds expression in a shared language and literature, not in the ruling sovereign will of the state but in what Renner calls dominant ways of thought and sentiment. This idea of the nation as a cultural community is the distinctive element of the Austro-Marxist approach to nationalism. It was shared by Renner and his colleague Otto Bauer (1907/2000:54) who wrote that ‘the nation exists only in virtue of a cultural community which, however, is restricted to the ruling class’. For Bauer, the task of socialism was to give the working masses access to this cultural community and in that way integrate them into the nation. Both Renner and Bauer developed the concept of the nation as essentially involving a shared culture. The nation was therefore not necessarily or primarily a territorial concept. Was Renner’s concept of the nation a ‘voluntaristic’ one? His definition of the nation seems to bypass any idea of a political concept of the nation as a community of citizens sharing political rights and based on the will to associate in civic terms. One does not have to accept without qualification the binary opposition between ‘civic’ and ‘ethnic’ definitions of the nation to note that Renner’s cultural definition is more ‘deterministic’ than based on will. For him the nation has nothing to do with Renan’s idea of a daily plebiscite resting on the will of individuals to continue living together (Renan 1992:55). Renner describes the nation as not a ‘societas but a communio’, whose solidarity is primarily in the realm not of the will but of common cultural characteristics. Nor is Renner’s definition an ethnic one, since for him the nation is not a racial or an ethnic community. However, his emphasis on shared, and presumably inherited, characteristics makes the nation a community much more of descent than of voluntary choice. Of course, it is true that people can come to adopt a new language and assimilate to a new culture, so a cultural definition of the nation is voluntaristic in that sense. Yet the fact that for the Austro-Marxists national identity was not necessarily territorially based suggests that once people were part of a shared cultural community they would take it with them wherever they went. Change of culture and assimilation seem unlikely events in this perspective. Indeed, the policies of national cultural autonomy favoured by Renner seem more likely to fix people’s cultural and national identity, and to make cultural change or assimilation an improbable choice. Of course, Renner’s main argument was in favour of the legal recognition of the nation as a corporate entity. As for the membership of this national association, it was indeed the free will of the individual that decided which nation they belonged to: ‘[n]othing other than the free declaration of nationality by the individual before the competent authority can determine national affiliation’ (Renner above: 20). In this respect Renner seems on impeccably liberal and voluntarist ground when he writes that ‘the individual’s right to self-determination constitutes the correlate of the nation’s right to self-determination’ (ibid.: 20). However, this individualist and even self-determining perspective sits uneasily with his definition, a much more ‘deterministic’ one, that

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nationality denotes a ‘Spiritual and cultural community with a not inconsiderable body of national literature as an expression of this cultural community’ (ibid.: 21). In existing society, wrote Renner, it might be the case that the uncultured masses did not share in this cultural community, and possibly did not even speak the same language as the educated and cultured classes of ‘their’ nation. Yet the masses were demanding access to the cultural community of their own nation. The point remains, however, that Renner’s definition of the nation is both individualistic and voluntaristic, on the one hand, while remaining more deterministic on the other. He makes membership of the nation depend on the freely expressed and declared will of the individual to form part of the nation, and, as we shall see, to share in the rights and duties of the national association. Yet at the same time the emphasis on shared cultural characteristics and cultural community makes nationality more of an inherited quality. This is all the more true since the concept of shared political rights belongs to the sphere of the state and not of the nation. Renner’s very sharp distinction between state and nation raises as many problems as it solves. While what Renner calls the ‘primitive state’ of the Middle Ages exercised power over a limited range of matters and impinged on a narrow section of the population, the same is not true of the modern state. The modern state regulates the economy, and seeks to impose legal norms on the complexity of economic exchanges. In so doing it addresses every individual in the society, and calls for their collaboration. In order to do this effectively the state needs to speak their language, in both a metaphorical as well as a literal sense. The state needs to communicate with its citizens in order to have its legal norms accepted, so that its sovereign power can be effective. This can happen only if the state appeals to the emotions and linguistic understandings encapsulated in the national cultural community. The corollary of this is that a fully developed national culture has to be formed for a people to live in the state, to be part of the state-regulated community which presupposes an elevated national life. So the state needs the nation, it needs a mature and full national culture in order to carry out its tasks and to impose its legal sovereignty and ordering of economic life. This is reminiscent of Gellner’s well-known argument in his Nations and Nationalism concerning the relationship between culture and polity in industrial society. For Gellner an industrial society, unlike an agrarian one, needs a homogeneous culture, which is given a ‘political roof’ by the state. An industrial society requires the congruence of state and nation which was not needed in an agrarian society (Gellner 1983). Renner seems to agree with this analysis. His argument is that, from the point of view of the state, a shared high culture is necessary for the state to secure its sovereignty and perform its tasks with the least possible resistance. This echoes Tom Nairn’s line that ‘the new middle-class intelligentsia of nationalism had to invite the masses into history; and the invitation-card had to be written in a language they understood’ (Nairn 1981:340). Renner (above: 26) implies that, in order to benefit from the services and regulation which a modern state can provide, the masses have to form part of a high culture: ‘[i]n order to live in the state, the national group [Volksstamm] with an undeveloped idiom must become a nation with a developed national literature or merge into such a nation’. This sentence has echoes of Engels’s famous (or infamous) distinction between ‘historical’ and ‘historyless’ peoples. Renner seems to hold out no hope for a mere Volksstamm or national group. In Gellner’s

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terminology ‘wild’ cultures have to become ‘high cultures’. If they cannot manage this task, they should be absorbed by a group that has developed a high culture or can do so. The state needs the nation, in order to exercise its sovereignty effectively. But equally the nation needs the state in order to secure its status as a cultural association and have its legal rights protected. Here is the essence of Renner’s theory of the nation as a cultural association which can function only if it is constituted by the state as a juridical subject with its rights and duties. It is this legal regulation of the nationalities problem that is his main contribution to the question (Stourzh 1991:68). It was through public law that he thought the problem of nationalism could be solved—indeed, for him this was the only way forward: ‘[a] lasting solution is only possible through substantive laws’ (Renner above: 19). These laws would fix the juridical status of the nation. In terms of political ideas Renner’s ideas can be linked with two strands of thought: the legal positivism of Bentham, on the one hand, and on the other a pluralist view of the state, according to which state sovereignty is shared with a variety of associations and exercised in partnership with them. Both these themes must be explored in this analysis of Renner’s ideas on state and nation. The Benthamite strand is seen in his insistence that the nation, constituted by the free declaration of individuals who register themselves as members of that nation, must have definite rights enforced and secured by law. Otherwise these rights would be pious wishes, as long as they were not guaranteed through legal sanction. Individuals’ right to culture, to the protection of their national traditions—for example, education in the national language—would be secured by the nation. But this could happen only if the national association was recognized as a legal corporation, with rights against the state and against other nations. The free declaration of individuals had to be given legal recognition as conferring on those persons a particular legal status, with corresponding rights and duties, comparable to the legal status of ‘father’ or adult, or member of a religious community. It should now be clear why Renner believed that his analysis showed the way forward to a reconciliation of national conflicts, or if not a reconciliation at least a way of limiting their impact by giving each nation guarantees of its culture and education. The state rested on the territorial principle. As Renner (above: 27) put it in unusually (for him) lively style, ‘[i]f you live in my territory, you are subject to my domination, my law, my language!’ This territorial principle could afford no safeguard for minority rights, and would lead to a situation in which the state became the organ of the dominant nationality, of the Staatsvolk (Ra’anan 1991:26). The territorial principle, thought Renner, found expression in an ‘atomistic centralist’ view of the state, which had two consequences. It allowed no space for minority or intermediary groups. Furthermore, it only exacerbated the hostile dynamic of nationalist conflicts because each national group tried to secure state power for itself, in order to protect its interests. This led to what could be called a ‘zero-sum’ view of politics, in which compromise and equality of rights between national groups could have no place. If the state became the vehicle for the dominance of one national group then minority rights could never be secured: ‘[t]he territorial principle can never produce compromise and equal rights; it can only produce struggle and oppression, because its essence is domination’ (Renner above: 28). This is akin to Brubaker’s idea of a ‘field of forces’ which contributes to the intensification of nationalism and its conflicts. Brubaker (1996) talks of nationalizing

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states, external homelands and national minorities. What Renner calls the ‘territorial principle’ makes the state a ‘nationalizing state’, which is in Renner’s words an ‘expression of domination [Herrschaft] not of equal rights [Gleichberechtigung]’ (Renner above: 28). The state becomes the instrument through which the dominant national group defends itself against immigrant groups (‘the domination by the established inhabitants of the newcomers’, ibid.). The only response of such national minorities or immigrant groups who are victimized in this way is to seek a state of their own. This could lead to secession and in turn to the victimization of minorities within the territory of the newly established dominant national groups, an all-too-familiar perspective which the passage of time since Renner’s analysis has exemplified very often. No nation could benefit from such a situation, Renner argued. In an area of mixed nationalities like Austria-Hungary this territorial principle could not safeguard national minorities who lived in areas outside those where they formed the majority of the population. In a state of many nationalities, and in an era of movement in search of work, national homogeneity based on the territorial principle could not be the way forward. For Renner the only solution was the constitution of national groups on the basis of the ‘personality principle’. Nationalities would be constituted as juridically recognized corporations, with their rights and duties guaranteed, on the model of religious or confessional associations. Just as these religious associations managed their own affairs in matters of religion, and had their own officials and structure, so too could nations be entrusted with matters of national concern. There were two ways in which this represented a solution to nationalist conflict: first, it secured the rights of national minorities wherever they lived. The members or co-nationals of a particular area would form an association to protect their culture and arrange their educational affairs. These associations would be legally recognized and empowered to manage their own concerns, and would be supported by the ‘parent’ national association throughout the whole AustroHungarian Empire, which Renner wanted to preserve. Hence, a Czech group in a German area or a German minority in an overwhelmingly Czech area would not be the helpless victims of the majority of a different national group. Each minority would have group rights, backed up by the state, and defended by their fellow nationals throughout the entire multinational state. Furthermore, the national groups would have cultural autonomy but would not have state power or full political self-determination, which they would not need. Each national group could safely abandon the futile pursuit of full state power since they would be able to defend their members’ interests throughout the empire as legally recognized entities. In the present state of affairs the relation of nationalities was a competitive struggle for dominant influence in the state. This was a fight where there could be no compromise. In a normal situation of constitutional politics the aim was to gain the support of the majority of the population through expounding one’s principles and policies based on them. But this could not work with regard to the politics of nationalism, since there could be no hope of winning people of a different nationality over. The attempt to capture state power would just lead to an impasse and to the politics of blind force. It ended up in the politics of the street with consequences of violent confrontation. Only a legal settlement could provide a way forward, turning the political problem into a juristic one, regulated by law.

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The aim of Renner’s solution was to achieve a new settlement between state and nation, to overcome the conflict (Auseinandersetzung) between them. The tension between state and nation would have to be replaced by an agreement or mutual recognition by the state and nation of their respective spheres. In areas of mixed nationality the national organs of self-administration, i.e. the national associations, would carry out the tasks of state administration. They would so to speak mediate between the state and the individual. This would be an example of the nation facilitating the tasks of the state. The sovereignty of the state would be exercised and imposed through national associations, since legal commands would be transmitted through the organs of the nation. But this was not a one-way process in which the nation was the mere instrument of the state. It was a reciprocal interaction between nation and state. The national associations did not merely issue state law in the language of their members, thus functioning as a sort of ‘transmission belt’. Individual members of the nation were helped and defended by the national associations when they came into contact with members of the state administration who did not speak their language. So the national associations transmitted state sovereignty to the members of their nation, but also represented the individual members of the nation in their dealings with the state. As Renner (above: 40) puts it, ‘What a rich, productive, internal sphere of activity for the nations!’ Have the views expressed in this pamphlet, first published in 1899 under the nom de plume of ‘Synopticus’, anything to say to us, over a century later? The first problem is precisely that of multiculturalism, a word unknown in Renner’s time. Renner’s analysis is a pluralist one in that he wishes the state to devolve some of its sovereignty on to other bodies, to share sovereignty with them, and to create a form of ‘associative democracy’ (Hirst 1994). Renner can also fairly be classified as a ‘multiculturalist’ because he respects each national group’s right to manage its cultural affairs, and he is to that extent a theorist of group rights. His argument rests on a separation between two sorts of concern: cultural and educational rights, on the one hand, which are the preserve of the nation, and on the other hand matters which, as he sees it, are common to all the nationalities and are thus in the sphere of the state, not of the nation. Renner’s hope was to ‘hive off’ the national question so that economic and social reform could be fought for by all the nationalities in a common fight. In his socialist perspective this was the terrain of class struggle within a multinational state, unhampered by nationalist attempts to control the state. This emerges clearly from his reference to the Austrian Imperial Council, which he refers to as the visible sign of the unitary essence of the state. Here, says Renner (above: 34), ‘state-formative [staatbildenden] interests and factors must predominantly express themselves’. Through universal equal and direct suffrage the interests common to all the nationalities of the empire could find expression. The question to be asked here is whether it is possible to maintain this strict separation between cultural matters, on the one hand, as the sphere of the nation, and on the other hand economic and social concerns supposedly shared by members of all nations, especially the working class. It could be said that Renner’s cultural politics and his view of the tasks of the nationalist associations make less rather than more probable the unified social action he hoped for. These debates are still very much with us in the current controversies about multiculturalism and the relation of multiculturalism to questions of social equality. Critics hostile to ideas of multiculturalism suggest that the recognition of group rights in the cultural sphere will undermine any common overarching concept of

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citizenship, or at least make it more difficult to realize. Brian Barry (2001:89), for example, is critical of ideas of ‘parcelling out public functions to ethnic communities’. If education is left in the sphere of the nation, as Renner intends, then this makes it more difficult to instil ideas of common citizenship, or indeed foster a common national identity open to citizens of varying cultural and national backgrounds. Renner’s legalistic solution to the problem would deepen rather resolve it. He suggests a two-tier programme of institutional reform: on the level of the nation cultural and educational issues are settled by the national associations, which have a clearly recognized juridical status, as explained above. Over and above these national questions come the concerns of general supranational interest, which in Renner’s case related to matters of economic and social interest. But is it possible to make such a hard-andfast division? The creation of the national associations or corporations, and the devolution on to them of certain state functions, would make it more difficult to move on and up to the next and higher level of concerns of common interest. Renner says that state sovereignty is, at least in areas of mixed nationality, left to the national bodies of self-administration. He advocates that ‘multilingual regions surrender state and territorial agendas to the national self-administrative bodies as a delegated sphere of activity’ (Renner above: 35). This suggests that it may be difficult to achieve any consciousness of common citizenship and overarching political identity if state policies are mediated through institutions of ethnic or national composition. Renner shares the demand of modern multiculturalists, as summarized by van den Berghe (2002:442), that ‘the state must be denationalised, much as it was secularised in most Western-style democracies’. Indeed, it is Renner himself who makes exactly this parallel between denationalizing the state and secularizing it. In his defence of the ‘personality principle’ Renner notes the historical separation of religious belief from citizenship or membership of the state: give to Caesar what is Caesar’s, and to God what is God’s. Renner notes that in the period when the principle of cuius regio, illius religio was dominant such religious pluralism was not accepted. Only when church and state were separated could religious peace be secured. In this new situation, the church was relieved of its function of territorial authority (Gebietshoheit) and left to carry out its true task of religious observance, and organizing the ranks of its believers. The church then became ‘a personal association of those sharing the same belief, just as the nation is a personal association of those sharing a way of thinking and speaking’ (Renner above: 30). Both churches and nations should become voluntary personal associations of those who share the belief, or the culture, of the particular church, or nation. Each association becomes a private association regulated by law, and concerns itself with its religious or national tasks, though we have noted how the nation for Renner functions as an organ of local self-government in areas of mixed nationality. The problem is whether it is possible to decouple ‘state’ from ‘nation’ in the way Renner and modern multiculturalists envisage. For example, Renner noted the constant source of tension and conflict represented by the question of an official or state language. Yet his way of dealing with this seems almost evasive. His argument was that once the nations had been organized on the lines he advocated, national oppression and Majorisierung (majority domination) would no longer be possible. Yet he then followed this statement by writing that the Slav peoples would have to use the German language in communication with other nations in the multinational Habsburg Empire, since, in

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Renner’s words, the German language was ‘the only possible means of communication’ (Renner above: 30). Furthermore, Renner’s policy of cultural autonomy is hard to reconcile with a policy or ethos of common citizenship. A policy of cultural autonomy and the self-administration by cultural or national groups of educational matters would make a unified consciousness of political community more difficult. What then is the conclusion of this analysis of Renner’s essay on State and Nation? It should be clear from the above that the questions Renner poses in his essay remain of central concern to the politics of today, whether in post-communist societies, with their tangled multinational past and present, or in established liberal-democratic societies with the growth of ‘identity politics’ and problems of multiculturalism. The problem raised by the preceding analysis of Renner’s argument is that, while his analysis of the dangers of nationalist politics is acute and highly relevant today, there is a weakness in his attempt to ‘contain’ nationalism through his separation of state and nation. His predominantly cultural definition of the nation, as well as the legalistic nature of his solution to nationalist conflict, both underestimate the way in which questions of national and cultural identity can erect barriers to common citizenship and to the shared socioeconomic agenda which Renner himself wanted to take precedence over what he saw as sterile questions of national honour and prestige. It is a tribute to his analysis that it remains relevant to the very different circumstances of the politics of the twenty-first century. However, its weakness remains that his attempt to satisfy nationalist demands in the cultural and educational sphere could weaken, rather than strengthen, a common awareness of shared political rights and duties. How this is to be achieved without falling into the opposed danger of excessive uniformity and the disregarding of difference is perhaps the greatest problem which contemporary liberal-democratic systems have to face.

References Barry, B. (2001) Culture and Equality: An Egalitarian Critique of Multiculturalism, Cambridge: Polity Press. Bauer, O. (1907) Die Nationalitätenfrage und die Sozialdemokratie, trans. J. O’Donnell, in E.J.Nimni (ed.), The Question of Nationalities and Social Democracy (2000), Minneapolis, MN: University of Minnesota Press. Brubaker, R. (1996) Nationalism Reframed: Nationhood and the National Question in the New Europe, Cambridge: Cambridge University Press. Butterwege, C. (1991) Austromarxismus und Staat. Politiktheorie und Praxis der österreischischen Sozialdemokratie zwischen den beiden Weltkriegen, Marburg: Verlag Arbeit. Gellner, E. (1983) Nations and Nationalism, Oxford: Blackwell. Hechter, M. (2000) Containing Nationalism, Oxford: Oxford University Press. Hirst, P. (1994) Associative Democracy: New Forms of Economic and Social Governance, Cambridge: Polity Press. Nairn, T. (1981) The Break-Up of Britain: Crisis and Neo-Nationalism, 2nd edn, London: Verso. Ra’anan, U. (1991) ‘Nation and State: Order out of Chaos’, in U.Ra’anan, M. Mesner, K.Armes and K.Martin (eds), State and Nation in Multi-ethnic Societies, Manchester: Manchester University Press. Renan, E. (1992) Qu’est-ce qu’une nation? et autres essays politiques, Paris: Presses Pocket.

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Stourzh, G. (1991) ‘Problems of Conflict Resolution in a Multi-ethnic State: Lessons from the Austrian Historical Experience, 1848–1918’, in U.Ra’anan, M. Mesner, K.Armes and K.Martin (eds), State and Nation in Multi-ethnic Societies, Manchester: Manchester University Press. van den Berghe, P.L. (2002) ‘Multicultural Democracy: Can it Work?’ Nations and Nationalism, 8(4):433–50. Weber, M. (1919) ‘Politics as a Vocation’, trans. H.H.Gerth and C.Wright Mills (eds), From Max Weber: Essays in Sociology (1970), London: Routledge.

5 Karl Renner, power sharing and nonterritorial autonomy John McGarry and Margaret Moore1 Karl Renner wrote at a time when nationalism was threatening to break apart the AustroHungarian Empire and the Austrian Socialist Party. He recognized that the national selfdetermination model, which assumes the coincidence of nation and state, was wholly inappropriate for the demographic reality of the Austro-Hungarian Empire, with its intermixed populations of Germans, Magyars, Czechs, Slovaks, Poles, Serbo-Croats, Jews, Ruthenians and others. Hungarians were not an absolute majority in the lands of the Hungarian Crown, nor were Germans a majority in the western part of the empire (Kemp below). Renner sought to deal with the problem of nationally mobilized groups by some means other than breaking the empire apart into different nation states, because he understood that any attempt to draw borders between groups would create significant pockets of minorities, who would be disadvantaged by the new arrangement.2 Renner also recognized the futility of hoping that people will naturally, over time, become detached from their national community and adopt instead an overarching socialist or internationalist identity, or even an Austrian one. He writes: The complicated and unprecedented nature of the relationships constituting the Austrian problem makes it perhaps the most difficult of all the problems of modern government. Here it is hard to have faith in the applicability of superficial remedies…we must take into account the diversity of the individual national questions making up the nationalities questions as a whole…belief in voluntary reconciliation between the disputants is utopian.3 (Renner above: 16) This part of Renner’s argument for the need for accommodation is an important rejoinder to many people who object to his proposals—or indeed, any proposals that involve the institutional recognition and accommodation of minority groups—on the grounds that it potentially entrenches divisions and reifies contingent identities. In almost all cases, such criticisms fail to offer a way to address national aspirations, and offer no concrete proposals that address the very real difficulties he describes.4 In many cases, they are

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based on the idea of a transformative politics, where people become transformed into non-nationalists and normal politics follows. It is not clear, however, how people are so easily transformed; indeed, this hope seems to be nothing more than wishing away the problem.5 In view of these dual realities, Renner outlined a model of institutional accommodation of various different national identities to both preserve the territorial integrity of the state, and move beyond divisive nationality based politics. The accommodation of nationalism is not presented as required by justice,6 but rather as a necessary step to allow people to move beyond their particular identities, as German or Hungarian or Slovene, and to recognize common interests, en route to a global socialist or communist order.7 In this respect, Renner’s strategy is quite different from the standard Marxist or socialist reaction to the institutional recognition of national identity, which is almost uniformly critical of it, on the grounds that nationalism is reactionary, romantic and superficial, and that accommodating it through consociational or ethnofederal institutions is inimical to the development of socialism (Hobsbawm 1990; Kieve 1881; Taylor 2001). This chapter begins with an overview of Renner’s model and then discusses the moral and practical merits and limitations of its two key components: non-territorial autonomy over important functions, of particular interest to national groups, by democratically elected national associations; and proposals for power-sharing (or consociational) institutions at the level of the central government.

Overview of Renner’s model Renner’s approach to the ‘nationalities problem’ is structured by three conceptual moves. First, his definition of nation and state makes it clear that they have complementary and yet separable functions. He clearly distinguishes nation from state, emphasizing throughout that nations are not co-extensive with states.8 In Renner’s view, the nation is a cultural community. He writes, ‘mutuality is based, at least in the first instance…in the realm of…thought and feeling’, and is based on the cultural and linguistic affinity of conationals. By contrast, Renner emphasizes that the state exercises coercive political sovereignty over a territory. The distinction between nation and state, and especially the description of the nation as a cultural community, allows Renner to identify those areas of jurisdiction that should be in the hands of the different national communities that make up the AustroHungarian Empire. In his view, the nations ‘as cultural and spiritual communities’ (Renner above: 24–5) should govern over cultural matters. He identifies language, education, literature and art as clearly within the domain of the national groups (ibid.: 31). According to Renner’s model, co-nationals inhabiting a particular district or parish would form a ‘national community’ (Gemeinde), which is a legal corporation with the power to issue decrees over its members and levy taxes. A number of such communities would make up a canton, which would then look after a number of administrative functions, such as education or language, and ‘the totality of cantons would form the nation’ (ibid.: 31). The jurisdictional authority of the national group would be in

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accordance with national membership rather than on a territorial basis. Here, Renner employs analogies with the structure of churches. Just as in each parish there are a number of different denominations, so there would also be a number of different legally constituted national communities. Each national community would have affiliations with co-nationals in other regions, just as, say, the Anglican church in one parish has affiliations with Anglican churches in other parishes, and policy with respect to the Anglicans is made in more encompassing Anglican organizations.9 In this way, the state is removed as an arena of conflict from contentious cultural areas, as each group exercises jurisdictional authority over its own collective life. The underlying insight here is that institutional separation can facilitate peaceful relations between different national communities and the state. Second, since Renner’s solution to the problem of nationality conflict involves giving rights to national communities, it faces the immediate difficulty of how to define a nation. To put this another way: since Renner’s proposal involves placing self-government over some areas of life in the hands of the nation, the question is not only what areas of life, but who is the self that is to be self-governing? How do we distinguish nations from other types of communities? This is a significant hurdle, since it is very difficult to enumerate a list of characteristics that are shared by all examples of what we would normally regard as national communities, mainly because every list has at least one exception to it. Moreover, an important line of objection to giving rights to national communities is the argument that we cannot give rights to nations when the criteria of nationhood are themselves disputed and potentially mutable. One cannot specify a right to national selfdetermination, or a right to any kind of political autonomy for nations, unless one can clearly specify who is to count as a nation, who is to be a right holder. Renner addresses these potential concerns by adopting a subjective definition of nationhood, according to which the central—indeed, only—criterion of nationhood is the feeling of attachment to one’s particular national community. A subjective concept of nation, albeit differently expressed, is also espoused by Ernest Renan (1996). Yael Tamir (1995) has argued that we should distinguish between communities whose distinguishing features are independent of the perceptions and feelings of the agent and those that are not. If we follow this distinction, it is apparent that the category ‘nation’, like ‘friends’ and ‘lovers’, falls into the second group. It is contingent on its members sustaining a certain image of it based on their perceptions and feelings (although of course there are a number of conditions which lead to the construction of an image of a nation, such as shared religion, language, law, geographical isolation, colonial policies, bureaucratic decisions, and the like). In line with his subjective conception of nationhood, Renner argues that each adult would be expressly required to register his or her national membership. This would avoid the possibility of one national group foisting a particular national identity on another—as some Turks do, when they declare that there are no Kurds in Turkey, only ‘mountain Turks’. In this way, he transforms what might be thought an ascriptive feature of the person, based on ethnicity or what in the nineteenth century was called ‘race’, into a voluntary act of self-identification.10 Renner does not address the possibility that the voluntarist, or subjective, definition of nationhood will not coincide with his cultural definition of nationhood. He thinks that nations are primarily cultural communities, not political ones, and this gives him a criterion to demarcate which areas of jurisdiction should fall to nations. However, he

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eschews an objective or cultural definition of nationhood in the sense that he doesn’t want to specify which particular nation a person belongs to. He leaves that to individuals, as part of their individual self-definition.11 It is probable that he is operating on the assumption that, as a matter of empirical fact, people will identify with those communities with which they share objective cultural features. On the basis of people’s self-identification, Renner proposes that communal electoral lists should be drawn up, and associations to govern the cultural life of the national community should be democratically elected and accountable to all members of the national community. Each of the associations would be legitimated by a democratic vote; and the associations established in this way would have legal personality, and so be an appropriate holder of rights. Democratic elections are to function as an important mechanism of accountability, ensuring that the administration and decision-making powers are exercised in accordance with the will of the national group. It is worth noting that none of this assumes that national communities are monolithic.12 Renner is clear about the need for democratic voice and accountability, which presupposes that no one automatically ‘represents’ the group, and that mechanisms must be in place to ensure that elites are accountable. Indeed, for him, democracy represents a legitimate method of governance for a group of people who may be diverse in all kinds of ways, and have different sorts of preferences, interests and ideals. The third element of his proposal, partially implicit in his separation of the functions of nation and state, concerns the need for inclusion of different national communities at the level of the central government. Unlike many modern discussions of autonomy arrangements (both territorial and non-territorial), Renner recognized that it was necessary not only for groups to have jurisdictional authority over areas that they find important but also to see themselves reflected in, and have ‘voice’ and some control over, the institutions at the centre. He elaborated a system of curial voting, which was aimed at ensuring not only that the nation was democratically governed and accountable within its areas of jurisdiction, but also that each group had its own representatives, guaranteeing its interests, in the central, overarching institutions of the state. Since Renner’s system depended on the conceptual separation of state and nation, he defines not only the nation but also the proper area of jurisdiction of the state. Although he is clear that defining different spheres of competence is a political task, something which has to be worked out by the democratically elected representatives, and not in the ambit of the philosopher, as Plato thought, he identifies a number of principles to assist in this task. He argues that the state has four interests, which follow his definition of the state as a ‘sovereign territorial entity’, which ‘lives by virtue of the law’ (Renner above: 25). The life of the state, Renner (above: 25) argues, ‘consists in the formation of the collective will to which it subjects the individual will through legal imperatives’. It is a ‘sovereign territorial entity’, asserting collective aims, and expressing, not a Rousseauian general will, but the will of the ‘interest groups dominant at any one time’ (Renner above: 26). The state, Renner argues, has interests in (1) being regarded as a unitary entity, as a state with sovereign power within and beyond its borders; (2) having available the physical force for the realization of the will of the state within and beyond its borders; (3) its members living together in peace; and (4) the general welfare of its members, an interest which it shares with the different national communities (ibid.: 37–8). This

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suggests a number of different functions for the state—policing, defence, the setting of welfare standards and the maintenance of peace and stability through the rule of law. It is clear from this brief outline that the two dominant elements of Renner’s institutional prescription are (1) non-territorial autonomy and (2) power-sharing. Renner anticipated a version of non-territorial federalism or political autonomy in which different functions are under the control of the different national communities on a non-territorial basis, and a version of consociational democracy in which different constituent units share power at the centre. We will argue that the non-territorial autonomy component of his model is problematic mainly because it is generally insufficient for nationally mobilized groups, although it may be the best on offer for dispersed and intermixed populations. The other proposal—of guaranteed power sharing—is problematic for the opposite reason, viz. that majorities are reluctant to be fully inclusive of minorities in the central government, but Renner correctly saw that it is required for a fair and stable multinational democracy. The merits and limitations of each of these elements will be discussed in turn, with an emphasis on the particular insights of Renner’s model.

Non-territorial autonomy Renner’s proposal that jurisdictional control over functions should be in accordance with ‘the personality principle’ is a version of non-territorial autonomy. Autonomy, from the Greek, means self-rule. In modern political usage, it refers to a form of self-rule that gives ethnic and national minorities substantial powers to govern their own affairs but falls short of independence.13 Non-territorial autonomy is also referred to in the political science literature as ‘cultural autonomy’, ‘segmental autonomy’, ‘functional autonomy’, ‘corporate autonomy’ and ‘corporate federalism’ (Lijphart 1984:183–5). It refers to selfrule of a group of people over all members of the group but not over a geographical area. In practice, most attempts at non-territorial autonomy arrangements have involved control over a narrow range of matters, including aspects of culture (education) and family law (marriage and divorce). Non-territorial autonomy implies state-created or ‘official’ institutions. It goes beyond the ‘associational autonomy’ allowed in all liberal regimes, where groups enjoy the freedom to establish their own private associations.14 Renner’s institutional solution represents a standard type of non-territorial arrangement: he conceives of autonomy as attaching to the nation, and he defines nations as primarily cultural-linguistic groups. His reference to legal autonomy is more far-reaching than is usual, but not markedly so: Lebanon, Israel and India have group-based family law. Like territorial political autonomy (federalism), non-territorial autonomy involves some degree of institutional separation and collective self-government. Although non-territorial autonomy has not been as common or as frequently discussed in the political science literature as its territorial cousin, there have been a number of cases where non-territorial arrangements have been employed, with varying degrees of success. These are useful to gauge both the merits and limitations of this aspect of Renner’s proposed institutional design. Non-territorial autonomy was used by the Ottomans originally to manage religious diversity (Coakley 1994:299). From the fifteenth century, Greek Orthodox, Armenian Catholic, Jewish and Muslim communities administered their own affairs in religion,

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education and family law. With the growth of national sentiment, these religious millets later split into linguistically based units (Laponce 1993:62). An equivalent of the millet, the kahal, was introduced in the old Polish-Lithuanian Commonwealth, where it was used to give autonomy to the Jewish community. The millet system has contributed to the current legal systems in India, Israel and Lebanon, where different religious communities have autonomy over family law. In most Western liberal democratic jurisdictions, nonterritorial autonomy for religious communities is generally restricted, as in Canada and the United Kingdom, to limited control over their own publicly funded school system. Although Renner’s proposals were not put into practice in AustriaHungary, there were limited attempts to implement them in Moravia, Galicia and Bukovina (Coakley 1994:300). A much more significant application of non-territorial autonomy occurred in inter-war Estonia, where a Cultural Autonomy Law was passed in 1925. This enabled ethnic groups numbering at least 3,000 to establish cultural councils capable of taxing group members and exercising jurisdiction over a wide range of cultural activities, including education, culture, libraries, theatres, museums and sport (ibid.: 307). Cyprus’s consociational constitution of 1960 also provided non-territorial autonomy for the interspersed Greek and Turkish Cypriot communities. These were given separately elected communal Chambers with exclusive legislative powers over religious, educational and cultural matters.15 Other consociational systems—in Belgium, the Netherlands and Lebanon—have allowed degrees of non-territorial (or segmental) autonomy to various religious and secular communities (Lijphart 1977:41–4). More recently, Belgium has sought to manage its ethno-linguistic communities through a mixture of consociational power sharing, federal or territorial autonomy, and nonterritorial autonomy. The French and Flemish-language communities have non-territorial jurisdiction over French and Flemish-speakers in Brussels (ibid.: 184–5). In New Zealand, the Māori Council supervises matters of interest to Māoris (Coakley 1994:309). In Canada, francophone communities outside Quebec and anglophone minorities inside Quebec enjoy control over their own school boards. Nonterritorial autonomy has been proposed as a way of accommodating the significant proportion of Canada’s indigenous population that lives in urban regions (Royal Commission on Aboriginal Peoples 1996). The demise of Marxism-Leninism in Eastern Europe has led to a resurgence in the popularity of non-territorial autonomy. Unlike Lenin, the new rulers of the region appear to view it as preferable to what they see as more dangerous and destabilizing forms of territorial autonomy. In 1993, Estonia reintroduced its inter-war arrangements for nonterritorial autonomy. In the same year, Hungary passed an Act ‘On the Rights of National and Ethnic Minorities’ (Krizsan 2000:248). In 1996, the Russian parliament adopted the National Cultural Autonomy Act, which allows individuals to form National Cultural Associations with rights over culture, language, education and the media as well as the right to represent the interests of minorities to state (federal, republic and local) institutions. By mid-1999, 227 National Cultural Associations (‘NCAs’) had been registered (160 local, sixty regional and seven federal) (Codagnone and Fillipov 2000:280). Other non-territorial autonomy arrangements have been implemented in Ukraine, for Russians in eastern Ukraine and for Hungarians in Transcarpathia (Kymlicka 2001:68).

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Renner’s principal normative argument for preferring non-territorial autonomy to territorial autonomy is connected with the problem of imposition. Although at one point he suggests that territorial autonomy is the ideal, but that it is not appropriate to the circumstances of AustriaHungary (Renner above: 30), elsewhere he suggests that the very idea behind territorial autonomy is problematic. He suggests that the logic of territorial autonomy, which involves creating homogeneous units, cannot be achieved, and that it will always leave some minorities. The personal principle is preferred because the rule applies only to people who have accepted that they are members of the group in question. The normative argument for non-territorial autonomy arrangements most frequently employed by state elites is of the peace-and-stability sort. They involve a negative judgement about the secessionist dangers of territorial autonomy, while recognizing the need to go some way to accommodating the linguistic, ethnic or religious diversity of the population. Estonia, Slovakia and Croatia have all rejected schemes of territorial autonomy, but have implemented schemes of non-territorial autonomy. Israel’s Menachem Begin was also prepared to consider cultural autonomy, but not territorial autonomy, for the Palestinian citizens of Israel. In Russia, where there is a system of territorial autonomy, critics promoted nonterritorial autonomy as an alternative or at least as a countervailing force. The first politician to recommend it in the post-communist era, Gavril Popov, linked it with a proposal for scrapping Russia’s system of ethnofederalism and restoring the Tsarist system of ethnically neutral administrative regions (Codagnone and Fillipov 2000:275). Some have speculated that the country’s adoption of ‘national cultural autonomy’ s aimed at replacing ethno-federalism over the long run (Goble 2000).16 The idea that non-territorial autonomy will suffice as a way to manage the concerns of national minorities has become, apparently, a ‘veritable mantra’ among East European intellectuals (Kymlicka 2001:365). These arguments are not restricted to eastern Europeans. Western states have also expressed a preference for non-territorial autonomy in Eastern Europe because of concern about stability or because they fear that, as in France and Greece, accommodation through territorial autonomy will give rise to similar demands from their own minorities. Since the Copenhagen Document of 1990 suggested territorial autonomy as an option for the accommodation of minorities there has been a steady retreat in support for it in international documents, in part as a result of the conflicts arising from the break-up of Yugoslavia and the Soviet Union. These documents are now more likely to stress nonterritorial methods of accommodation than the territorial sort.17 The High Commissioner on National Minorities at the Organization for Security and Cooperation in Europe (‘OSCE’) has warned minority groups that: Even though the [OSCE’s] Copenhagen Document mentions territorial autonomy as an option, minorities should take into account the fact that such a demand will probably meet maximum resistance, whereas they might be able to achieve more if they concentrated on legislation that enabled them to have a greater say in fields of special interest to them, such as education and culture. (Kymlicka 2001:382)

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He then added ‘in my view, insufficient attention has been paid to the possibilities of non-territorial autonomy’ (ibid.). The OSCE has been engaged, apparently, in an ‘almost ritual invoking of “non-territorial autonomy” as a way of accommodating national minorities’ (ibid.; van der Stoel 1999). Non-territorial autonomy does have some advantages over territorial autonomy. As Renner emphasizes, it ensures that only those people who identify with the group are governed by the group. It mitigates the problem associated with nationalizing states, which create laws and policies with which minorities do not identify, and which are contrary to their culture and interests, although, as we argue below, this advantage comes at a price, and there are other institutional mechanisms to cope with the problem of nationalizing states. Non-territorial autonomy is useful for national minorities that are too dispersed or few in number to exercise or to aspire to territorial autonomy. There is some evidence that Estonia’s inter-war arrangements for non-territorial autonomy improved the position of its dispersed minorities. In Coakley’s view, ‘its existence did much to reconcile the Germans to life within the Estonian state’ (Coakley 1994:307).18 Jews also appear to have been happy with Estonia’s autonomy arrangements. Dispersed groups, like the Roma of Hungary and Russia, stand to benefit from those countries’ arrangements for nonterritorial autonomy, as these will provide the Roma with institutions and resources that they lack. In Canada, nonterritorial autonomy has enabled francophones outside Quebec to maintain some control over their own schools. The over 50 per cent of natives who live in Canada’s cities would also benefit from a scheme of nonterritorial autonomy, as it is difficult to see how plans for giving selfgovernment to native reserves addresses their situation. However, it is probable that such schemes for dispersed minorities, who do not have the demographic basis to reproduce their culture and identity, are a way to make assimilation more gentle rather than a way to stop it.19 It may also be the case that large minorities that are territorially concentrated will find non-territorial autonomy better than the alternatives on offer. The Kurds in Turkey would see such arrangements, which the European Union is pushing for, and whereby they could control their own state-funded cultural institutions, as a considerable advance over the Kemalist regime of coercive assimilation that they have been subjected to. However, it is highly unlikely that significant and territorially concentrated minorities will be satisfied with non-territorial autonomy, particularly if they have a history of territorial autonomy. There are a number of reasons for this. The types of powers that such minorities seek, including power over the economy, policing, control over population influxes, which language is dominant, require control over territory. This is connected with the territorial nature of the modern state, and the fact that the exercise of its most important functions tends to be on a territorial basis.20 Non-territorial autonomy also fails to take into account the vital relationship that most nations have with their homeland or ‘national territory’. For many groups, there is a conception of a ‘homeland’, a geographical area with symbolic and emotional significance, which is not captured simply by the provision for self-government over members. This relationship to the land is clearly evident in the discourse of indigenous people, but it is true of all national minorities, including Scots, Catalans or Uighurs (Connor 1986:16–45). Renner is aware of this problem: he admits that members of groups may feel attached to land, but he argues that this attachment does not justify

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jurisdictional authority over it. It can be expressed in the everyday lives of people and through their culture, music, art and so on. After all, although non-territorial autonomy involves autonomy only over persons, not over a geographical area, people are geographically situated; they inhabit a territory, and can still express their special attachment to or relationship with the land that they live on. The problem with this response is that the emotional attachment of nationalists to their homeland is unlikely to be satisfied through songs or poems, etc. It is normally combined with a desire to control this land, including its monuments, cemeteries, churches, as well as access to it. Nationalists seek not simply self-government, but self-government in and over their national homeland.21 Although Renner’s discussion of language policy is only sketchily presented, there are reasons for thinking that it fails to address most of the controversial issues connected with language, and that it would not satisfy most minority national communities that seek to preserve their own language. Renner argues that language falls under the jurisdiction of the linguistic or cultural group that enjoys non-territorial autonomy. In his discussion of linguistic autonomy, he suggests that interference in, or restriction by the state in, the use of a particular language is not permissible. This does not address the more contentious issue of the public recognition of language, by which we mean the question of which languages are officially recognized in the public sphere. The analogy that Renner constantly draws between his proposal and religious disestablishment fails to work in the case of language, because linguistic disestablishment, or public disengagement from language questions, is not possible.22 The state has to conduct its public business and offer its public services in some language or other. Renner implicitly recognizes this in his discussions of bilingualism, which suggests that he was fully aware of the limits of that analogy. Although Renner is unclear on this, there is no reason why his basic formula of autonomy coupled with inclusion at the centre cannot be modified to deal with the specific concerns raised by language. If we expand his principles in that direction, Renner’s proposals would involve autonomy over language questions for the various national groups coupled with official recognition of all language groups in the central apparatus of the state.23 This would be consistent with the spirit of Renner’s powersharing proposal.24 However, even if we amend, or extend, Renner’s proposals in this direction, they will still seem unsatisfactory from the point of view of most members of vulnerable or minority language groups. This is because a language will prosper best if it has a territorial basis in which that language is the primary medium of social and economic exchange, a principal language of work, business and social interaction. Linguistic autonomy, even when combined with some kind of official status within state-wide public institutions, does not go far enough in this direction. What is needed is a form of territorial autonomy in which the minority can promote its language as the public language throughout its territory, as the Québécois have done in Canada. The contrasting fortunes of linguistic minorities with territorial autonomy and nonterritorial autonomy can be observed by looking at the Swedes of Finland. The Åland Islanders, who enjoy territorial autonomy, including control over demographic influxes, and who have promoted their language in the public sphere, have been able to ensure that they are able to reproduce their culture and their identity over time. By contrast, Swedishspeakers on the Finnish mainland, who are territorially concentrated and enjoy some

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language rights, but who lack territorial autonomy, have not fared nearly as well (Alcock 1991:13).25 Thus far, we have suggested that non-territorial autonomy arrangements are unlikely to be satisfactory for most territorially concentrated national minorities, who seek to be collectively self-governing over significant areas of their collective life, and who seek to govern their national homeland. The inadequacy of most forms of non-territorial autonomy should be evident from the fact that most national minorities do not seek it, at least not as a first preference, particularly not those minorities that have the demographic concentration and capacity to exercise territorial self-government. Of course, Renner’s scheme is more extensive than most of the non-territorial autonomy regimes on offer. Many of the extant schemes of nonterritorial autonomy in Eastern Europe are token in nature, or in their infancy, with the final product remaining unclear. Estonia’s cultural autonomy scheme applies only to citizens, which excludes the overwhelming majority of Russians. Nowhere in Eastern Europe do minorities possess the wide-ranging control over cultural matters that was envisaged by Renner. Funding arrangements are not spelled out. Renner, by contrast, is clear that national communities should have tax-raising powers. Hungary’s scheme for non-territorial autonomy, it is commonly recognized, was adopted as much for its propaganda value as to benefit its (hardly existent) minorities: it sought to promote the benign treatment of Hungarian minorities in neighbouring countries and to polish Hungary’s image as a way of gaining entry into the European Union (Kriszan 2000:250). In Estonia’s case, the non-territorial autonomy scheme for minorities appears to be consistent with the closing and the defunding by the state of Russian-language schools and other public institutions as part of its nation-building policy (Laitin 1998). In other cases, the schemes do not appear to offer autonomy at all, but rather involve the creation of an officially recognized agency to lobby or advise the government on the minority’s behalf.26 While the Roma in Russia and Hungary may be better-off with non-territorial autonomy than without, their position remains ‘marginal’ in spite of these reforms (Vermeersch 2000).

Power sharing While non-territorial autonomy is not substantive enough, because confined only to cultural matters, for most nationally mobilized groups Renner’s institutional vision is prescient in that he also saw that it was necessary to address the position of minorities within central government institutions. He proposes a bicameral legislative system with one chamber elected by state-wide vote and the second composed of representatives of the different national communities, elected by curial voting. The details are not spelled out, but this suggests the possibility of a minority veto over legislation, or at least a veto for minorities acting collectively. Renner (above: 34) also argues that the principle of national proportionality should be followed in the administrative or bureaucratic arm of government. Renner’s proposals, which anticipated consociational theory, as argued by Lijphart and others, recognized that durable democratic multinational (non-territorial) federations are likely to require not just ‘self-rule’ but ‘shared rule’. This insight is still underappreciated in the literature on federalism. Many current discussions of the virtues of

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federalism as a method of conflict regulation emphasize how it can provide minorities with guaranteed powers of (territorial) self-government. Sometimes it is argued that a virtue of federalism is that it avoids the ‘winner take all’ outcome associated with Westminster-type regimes: a group that is excluded at the centre may be able to console itself with regional power. Hanf (1991:43) argues, for example, that ‘federalism reduces conflict by allowing those political forces excluded from power at the top the opportunity to exercise regional power’. However, national and ethnic minorities who are excluded from the federal (or central) government will have a reduced stake in the federation and the federal government will be less inclined to promote their interests. Put differently, if the centrifugal forces that are unleashed by nationalist mobilization and decentralization are to be checked, it is likely to require inclusive federal institutions. Renner’s thinking is supported by the experience of numerous contemporary multinational societies, some of which have combined autonomy arrangements with viable and inclusive central institutions while others have not (McGarry and O’Leary 2003). All the durably democratic multinational federations have practised consociational forms of democracy within the federal government. Consociational practices are relatively undisputed in the cases of Canada, Belgium and Switzerland (Noel 1993:41– 61; Steiner 1989:107–14; Hooghe1993:44–68), all ethnically or nationally diverse, but still stable and democratic federations. Lijphart (1996) has claimed that India also had effective consociational traits during its most stable period under Nehru (Adeney 2002). Since Congress’s decline, moreover, India has been governed by a broad multi-party coalition representing its diversity. The importance of consociationalism—or power sharing—in the federal level of government is also evident when one examines many failed federations, where centrifugal pressures have often been exacerbated by unrepresentative federal institutions. In Pakistan, before the secession of Bangladesh, a crucial federal agency, the army, was dominated by the West (Nasr 2001). This was also a serious problem in Yugoslavia, where the army, one of the most important federal institutions (absorbing twothirds of the federal budget), was dominated by Serb officers, many of them from Serbian minorities who shared Milosevic’s vision of a recentralized state. The Yugoslav Federal Council, the most important political institution, and one based on (non-democratic) consociational principles, was subject from the late 1980s to an undisguised take-over by Serbian politicians. After having suspended the autonomy of Kossovo and Vojvodina, the Serbia-Montenegrin alliance gained control of four of the Federal Council’s eight seats, plunging the federation into crisis. The Soviet Union broke up after an abortive take-over of the central government by conservatives opposed to decentralization. The episode undermined Gorbachev’s attempt to reorganize the federation in ways that would have given the republics more self-government and better representation in Moscow. The breakdown of the Nigerian federation in 1966–67, which included anti-Ibo violence in the northern Hausa region and the bloody Biafran war of secession, arose after a coup which led to the centre being dominated by Ibo officers and a counter-coup in which those officers were overthrown (Suberu 2001:31).27 Much of Nigeria’s post-1970 conflict, including sectarian warfare between Muslims and Christians and the rise of violent separatism in the oil-rich Delta area, has also been traced to the lack of inclusiveness at the centre (Suberu and Diamond 2000:6–7, 13).28 The breakdown of the West Indies federation was linked with Jamaicans’ lack of representation and influence at

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the centre, and in the case of the federation of Nyasaland, Northern and Southern Rhodesia, it was black Africans who were underrepresented (Watts 1999:111). It should be noted that this account of the failure of multinational fed-erations, which Renner would have sympathized with, is markedly different from the standard accounts of critics of multinational federalism, who argue that such federations are doomed because they give too much power to minority leaders (Brubaker 1996; Bunce 1999; Roeder 1991; Snyder 2000). One criticism that is frequently made of consociational theory—and which certainly applies to Renner’s proposal for curial voting—is that it freezes identities and reifies existing divisions (Kieve 1881; Taylor 2001). Renner’s curial voting proposal is not designed to do this: its aim is to ensure that national associations are democratically governed, and that every national group is represented in the central government through provision for voting along self-identified national lines. This, in turn, reflects his commitment to non-territorial systems, and his concern for arrangements that are nonimpositional in nature. Nevertheless, the institutionalization of particular identities is an inevitable by-product of the kind of corporatist power sharing that Renner advocates. The charge that consociationalism tends to ‘reify’ particular rival identities and to hamper the possibility of transcendent identities has some truth in it: it accurately describes a number of consociational arrangements. Under the Dayton Accords, BosniaHercegovina’s government is presided over by a rotating presidency, based on one Bosniak and one Croat from the Federation of Bosnia-Hercegovina, and one Serb from Republika Srpska. The indirectly elected upper chamber of the federal legislature is comprised of five Bosniaks and five Croats from the Federation of BosniaHercegovina, and five Serbs from the National Assembly of Republika Srpska. The presidency and vice-presidency of the Federation of BosniaHercegovina rotates between a Croat and a Bosniak. Citizens who do not want to define themselves ethnically, or are from other ethnic communities, are barred from all these offices. Similarly, part of Northern Ireland’s 1998 Good Friday Agreement privileges unionism and nationalism over other forms of identity. Specifically, members of Northern Ireland’s Assembly are required to designate themselves as ‘unionists’, ‘nationalists’ or ‘others’. The election of the First and Deputy First Ministers requires concurrent nationalist and unionist majorities, as well as an overall majority, which gives institutional advantages to nationalist and unionist representatives over those designated as others. During Cyprus’s brief consociational era in the early 1960s, citizens were required to register on a Greek Cypriot or Turkish Cypriot electoral roll, regardless of whether they were from another ethnic community or none. Here, curial voting, similar to that proposed by Renner, was practised: the GreekCypriot President was to be elected by Greek Cypriots and a Turkish Cypriot Vicepresident was elected by Turkish Cypriots. Such corporatist mechanisms are not intrinsic to consociational design, however. Consociational institutions may be liberal rather than corporate in nature, i.e. they may reward any party with electoral support, not just ethnic parties (Lijphart 1995:275–87; McGarry and O’Leary 2004). In Northern Ireland, all seats in the legislature are rewarded according to the PR-STV electoral system. It is not true, as Dawisha and Dawisha (2003:45) claimed in Foreign Affairs, that there are ‘set aside seats for Catholics and Protestants’ (or for nationalists and unionists for that matter). All citizens vote on a common roll; they can vote for any candidates or parties they prefer; they can vote across

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blocs; and they can express first or lowerorder voting preferences outside their blocs. So the election of Assembly members does not privilege particular identities, i.e. unionists are not privileged over nationalists, or vice versa, and electors are not required to vote for unionists or nationalists. With the exception of the First and Deputy First Ministers, ministers win office through an allocation algorithm, the d’Hondt method, that is ‘difference-blind’: it operates according to strength of representation won by parties in the Assembly, not their national identity. Similarly, in South Africa, between 1994 and 1996, any party could achieve a cabinet position with 5 per cent of the vote and a vicepresidential position with 20 per cent of the vote.29 Most modern consociationalists eschew corporate devices and prefer liberal rules that equally protect whatever groups emerge in free elections. They prefer ‘selfdetermination’ to ‘pre-determination’ (Lijphart 1995; McGarry and O’Leary 2004). Renner’s non-territorial scheme, however, does not have the capacity to be ‘selfdetermining’. Voting on a national community electoral roll institutionalizes particular national identities and divisions. It privileges national identities over non-national identities, even if it does not privilege one national identity over another. A territorial autonomy scheme, based on regions, some of which may be dominated by national minorities, and combined with ‘self-determined’ consociational arrangements at the level of the central government, would be more consistent with liberal norms and more facilitative of a transformative politics. One could envisage the possibility of national divisions becoming less important over time, something which would be less likely under Renner’s scheme of national curias. In conclusion, although Renner’s power-sharing proposals are prescient and important, his commitment to non-territorial autonomy, which requires corporatist principles, makes his form of power sharing less liberal than it might otherwise have been.

Conclusion In this chapter we have examined Renner’s institutional proposals and assessed their merits and deficiencies with the benefit of hindsight. The consequences of similar arrangements, or of the failure to incorporate the different elements of his proposals, have been ‘tested’ in several multinational societies. We have argued that Renner’s nonterritorial autonomy arrangements would not suffice for nationally mobilized groups, although it may be the best on offer and appropriate for dispersed and intermixed populations. The other proposal—for power sharing in the central (or federal) institutions of the state—is required for a fair, democratic, stable multinational federation, and Renner’s insight here not only anticipates an important theory in the comparative politics literature, but, by bringing it together with his insight into the need for autonomy, goes significantly beyond most theorists of federalism, of either the territorial or nonterritorial variety. We have suggested that it is preferable for autonomy to proceed on a territorial basis, rather than according to the personal principle, and for consociationalism to be on a non-corporatist basis, but that Renner was correct in perceiving that both were necessary components of a fair multinational settlement.

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Notes 1 We would like to thank the Carnegie Corporation of New York for funding our research and Anna Drake for excellent research assistance. 2 We disagree with Kemp that the spread of individual human rights norms means that we are operating in a fundamentally different context from Renner. We strongly favour individual human (and minority) rights and democratic governance, but this will not address the problem of nationally mobilized groups, since individual rights within a unitary state will not deal with the national group’s desire for collective self-determination, and democratic governance does not deal with the problem of the cultural bias (non-neutrality) of the state as a whole (Kymlicka 1995; Moore 2001). 3 Like his contemporary, Lenin, Renner believed in the ‘concrete analysis of concrete situations’, although he and Lenin differed radically in their conclusions (Lenin 1968:503– 7). 4 This is true of Brian Barry (2001), whose trenchant critique of a number of culturalist arguments is flawed by (1) his failure to distinguish clearly different kinds of cultural claims, and (2) the lack of any kind of institutional solution for those societies where people are already mobilized in cultural—national groups. The integrationist state that he supposes is ‘the best’ is not culturally neutral and, as Renner recognized, it is more likely to promote national divisions than to dissolve them. 5 Of course, institutional arrangements should be sensitive to the possibility of transformation, as we argue below. 6 He does, however, associate the territorial principle with the domination of one group over another (Renner above: 16), thereby suggesting that there are issues of justice or fairness. Nevertheless, the dominant discourse in his essay is pragmatic. He begins by pointing out the ‘complicated nature of the relationship’ between the different national groups in the AustroHungarian Empire and the state, and points to the fact that ‘the national question’ is among ‘the most difficult of all the problems of modern government’. He also argues that there is little hope of a ‘voluntary reconciliation between disputants’. All this suggests that he doesn’t regard the issue as one of fundamental justice, but in a pragmatic vein, as an urgent practical question that needs to be urgently addressed; and that, as long as it remained the crucial issue, was hampering the development of socialism. 7 Renner’s long-term goal is clear. He writes: ‘the state-totality, the people as political-social concept, and not nationality…must dominate discourse. This is the arena for the struggles of economic and social interests. These are common to all nations and more powerful than all national sentiment’ (Renner above: 34). 8 As Walker Connor (1994:90–117) has emphasized, there is still confusion between these two terms. It pervades the literature, especially of international relations, which is really about the relations between states, and is embedded in terms such as ‘United Nations’, an organization that represents states. Some states have more than one recognized nation (they are viewed as a ‘compact’ between different founding ‘nations’, as in the case of Canada, for example), some nations have two states (the Koreas) and some nations (Kurdish and Palestinian nations) do not have their own states, although many of their members aspire to. 9 Renner (above: 31) is clear that, unlike most religious denominations, national organizations should be democratically elected. 10 As Renner (above: 20) writes, ‘[n]othing other than the free declaration of nationality by the individual before a competent authority can determine national affiliation’. 11 It is not clear whether the individual voluntarist component is made against the background of already defined national communities, defined according to objective criteria, like a shared language, religion and cultural practices, or whether there is some possibility of individuals freely agreeing to form their own national community. That is, he does not specify whether the person has a certain range of cultural communities or nations with which

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to register, which are, presumably, decided on objective, cultural grounds; or whether there is at least a theoretical possibility of forming new national communities. 12 The criticism that those who seek to institutionally recognize ‘nations’ think nations are monolithic (and externally bounded) is forcefully put by Rogers Brubaker (1998), and is also articulated, with reference to Brubaker, by Walter Kemp (below). 13 Autonomy should be distinguished from mere regional self-administration (where regions implement policies decided by central governments) and from local-municipal government (where there is only a capacity to pass minor regulations or by-laws). It should also be distinguished from sham varieties of ‘autonomy’ associated with control strategies, such as when a state devolves power to co-opted and unrepresentative elites, concedes the form of autonomy without the substance, or imposes autonomy on groups which do not want it. 14 The above discussion does not address Lijphart’s hybrid form: ‘informal corporate federalism’ whereby the state does not establish official minority institutions but subsidizes various associations that are established by the groups themselves (Lijphart 1977:43). 15 According to Lijphart (1977:159), ‘these provisions went far toward setting up a “federal” system without actual territorial federalism, which was thwarted by the highly interspersed residential patterns of the two populations’. 16 Valery Tishkov, a leading Russian academic and head of the State Committee on Nationalities (in 1992), promoted non-territorial autonomy because he thought it would strengthen a state-wide civic nationalist identity (Opalski 2001:308). 17 International documents that are concerned with protecting minorities have generally little to say about territorial autonomy, for example the Framework Convention on the Rights of National Minorities (Council of Europe 1995) and the Lund Recommendations on the Effective Participation of National Minorities in Public Life (Organization for Security and Co-operation in Europe 1999). 18 Georg von Rauch wrote that ‘the Estonian government was able to claim, with every justification, that it had found an exemplary solution to the problem of its minorities’ (Lijphart 1984:184). 19 This is certainly true of the francophone community outside Quebec. In the case of Canada’s natives, they might be able to retain their identity as native—particularly as they face racism on the one hand, and are resistant to adopting the identity of the very people who decimated their culture, but it is unlikely that they can reproduce their culture in a meaningful way, even with non-territorial autonomy. 20 Renner is explicit that such functions, such as policing and the economy and, implicitly, population influxes should be controlled from the centre. 21 Think of the case of Irish nationalism, for which Renner’s prescriptions seem particularly inappropriate. The Irish demand for self-determination has had relatively little to do with the desire to protect a distinct language or religion (McGarry and O’Leary 1995). It has had more to do with getting the ‘Brits out’ and securing ‘Ireland for the Irish’, i.e. with achieving self-determination for the Irish people in Ireland, their ‘national territory’. Think also of the problem of contested sites such as Kosovo or Jerusalem. These are among the more intractable disputes in nationalist conflicts, and yet Renner’s abstraction of nationalism from territory appears to imagine them out of existence. 22 This point has been made by a number of theorists (Moore 2001; Kymlicka 1995). Patten (2000) also provides a forceful and focused discussion on specifically linguistic issues. 23 Renner (above: 21) argues that German could remain the lingua franca, the language in which negotiations between national groups occurred, and that this would be less contentious, because national identity would not be secured by linguistic criteria. Although there are efficiency arguments that favour such a proposal, it fails to recognize the importance of recognitional equality—the symbolic effect of fully including all languages in the state as languages of official discourse. Renner’s proposal would mean that each national group, during cross-national negotiations, would be addressed not in its language but in

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German. It is naive to think that this would be regarded as mere administrative or bureaucratic efficiency rather than as also giving pre-eminence to one language over others. 24 From the point of view of the individual, he or she would have the right to ensure that the state’s business with him or her would be conducted in the language of the person’s choice. 25 The Åland islanders also have the advantage, of course, of living on islands, insulated from the mainland. 26 Rainer Bauböck writes of non-territorial autonomy arrangements in Eastern Europe that ‘national councils formed by these minorities are consultative bodies for lobbying their government more than legislative institutions for the members of an autonomous polity’. Codagnone and Fillipov (2000) argue that the influence of National Cultural Associations in Russian politics has been minimal. 27 The Igbo coup led by Major General Aguiyi-Ironsi in January 1966 was followed by a ‘Unification Decree’ which moved Nigeria towards a unitary state. The regional and federal public services were combined, to the considerable advantage of the better-educated southerners and the disadvantage of the Hausa. This, and the loss of many northern military leaders in the January coup, set off anti-Igbo violence in the north and contributed to Ironsi’s assassination in July. 28 In a country that is equally divided between Muslim and Christian and between north and south, all four military governments in the 1984–99 era were headed by northern Muslims. After General Abacha’s rise to power in 1993, not only the head of state was a Muslim, but also the Chief of Defence Staff, the Inspector General of Police, the Minister of Internal Affairs, the National Security Adviser and the Chief Justice. This sectionalism, according to Suberu and Diamond (2000:13), provoked ‘much alarm, alienation and even paranoia’. It is not surprising in this light that Abacha’s northern and Muslim-dominated government was able to trample on the rights of the minorities in the oil-rich Niger Delta, and to execute their leaders, including the novelist Ken Saro-Wiwa. 29 Interestingly, the 2003 Annan plan for Cyprus envisaged a move away from the predetermined arrangements of the 1960 Cyprus constitution. Under the former, the presidency and vice-presidency would not have been assigned to particular communities, but would have rotated between the representatives of two territorial units. Critics would object that, as these units are ethnically homogeneous and the result of coerced population transfers, that this is little different from predetermining the beneficiaries. However, the Annan plan also envisaged limited freedom of movement and residence between the two units, and it is possible that the units will become more heterogeneous in time. Even if they do not, the Annan provisions would have allowed non- or trans-ethnic candidates to stand for the presidency.

References Adeney, K. (2002) ‘Constitutional Centring: Nation Formation and Consociational Federalism in India and Pakistan’, Journal of Commonwealth and Comparative Politics, 40(3):8–33. Alcock, A. (1991) ‘Finland: The Swedish-speaking Community’, in Minority Rights Group (ed.), Minorities and Autonomy in Western Europe, London: Minority Rights Group. Barry, B. (2001) Culture and Equality, Cambridge, MA: Harvard University Press. Brubaker, R. (1996) Nationalism Reframed, Cambridge: Cambridge University Press. Brubaker, R. (1998) ‘Myths and Misconceptions in the Study of Nationalism’, in M.Moore (ed.), National Self-determination and Secession, Oxford: Oxford University Press. Bunce, V. (1999) Subversive Institutions: The Design and the Destruction of Socialism and the State, Cambridge: Cambridge University Press.

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Coakley, J. (1994) ‘Approaches to the Resolution of Ethnic Conflict: The Strategy of Nonterritorial Autonomy’, International Political Science Review, 15(3): 298–314. Codagnone, C. and Fillipov, V. (2000) ‘Equity, Exit and National Identity in a Multinational Federation: The “Multicultural Constitutional Patriotism” Project in Russia’, Journal of Ethnic and Migration Studies, 26(2), 263–88. Connor, W. (1986) ‘The Impact of Homelands upon Diasporas’, in G.Scheffer (ed.), Modern Diasporas in International Politics, London: Croom Helm. Connor, W. (1994) Ethnonationalism: The Quest for Understanding, Princeton, NJ: Princeton University Press. Council of Europe (1995) Framework Convention on the Rights of National Minorities, CETS No. 157 (1 February). Available online at (accessed 8 May 2004). Dawisha, A. and Dawisha, K. (2003) ‘How to Build a Democratic Iraq’, Foreign Affairs, 82(3). Available online at (accessed 8 May 2004). Goble, P. (2000) ‘A New Kind of Autonomy’, in RFE/RL Russian Federation Report, 2(17). Available online at . Hanf, T. (1991) ‘Reducing Conflict through Cultural Autonomy: Karl Renner’s Contribution’, in U.Ra’anan, M.Mesner, K.Armes and K.Martin (eds), State and Nation in Multi-ethnic Societies, Manchester: Manchester University Press. Hobsbawm, E. (1990) Nations and Nationalism since 1780, Cambridge: Cambridge University Press. Hooghe, L. (1993) ‘Belgium: From Regionalism to Federalism’, in J.Coakley (ed.), The Territorial Management of Ethnic Conflict, London: Frank Cass. Kieve, R. (1881) ‘Pillars of Sand: A Marxist Critique of Consociational Democracy in the Netherlands’, Comparative Politics, 13(3):313–37. Krizsan, A. (2000) ‘The Hungarian Minority Protection System: A Flexible Approach to the Adjudication of Ethnic Claims’, Journal of Ethnic and Migration Studies, 26(2):247–62. Kymlicka, W. (1995) Multicultural Citizenship, Oxford: Oxford University Press. Kymlicka, W. (2001) ‘Western Political Theory and Ethnic Relations in Eastern Europe’, in W.Kymlicka and M.Opalski (eds), Can Liberal Pluralism be Exported? Western Political Theory and Ethnic Relations in Eastern Europe, Oxford: Oxford University Press. Laitin, D. (1998) Identity in Formation: The Russian-speaking Populations in the Near Abroad, Ithaca, NY: Cornell University Press. Laponce, J. (1993) ‘The Government of Dispersed Minorities: From Constantinople to Ottawa’, in T.Kozma and P.Drahos (eds), Divided Nations, Budapest: Education Publishing. Lenin, V.I. (1968) Complete Collected Works XIX, 2nd edn, Moscow: Progress. Lijphart, A. (1977) Democracy in Plural Societies, New Haven, CT: Yale University Press. Lijphart, A. (1984) Democracies: Patterns of Majoritarian and Consensus Government in Twentyone Countries, New Haven, CT: Yale University Press. Lijphart. A. (1995) ‘Self-determination versus Pre-determination of Ethnic Minorities in Powersharing Systems’, in W.Kymlicka (ed.), The Rights of Minority Cultures, Oxford: Oxford University Press. Lijphart, A. (1996) ‘The Puzzle of Indian Democracy: A Consociational Interpretation’, American Political Science Review, 65:682–93. McGarry, J. and O’Leary, B. (1995) Explaining Northern Ireland, Oxford: Blackwell. McGarry, J. and O’Leary, B. (2003) ‘Federation, Conflict Regulation and National and Ethnic Power-Sharing’, paper presented at the annual conference of the American Political Science Association, Philadelphia, 29 September. McGarry, J. and O’Leary, B. (2004) The Northern Ireland Conflict: Consociational Engagements, Oxford: Oxford University Press. Moore, M. (2001) Ethics of Nationalism, Oxford: Oxford University Press.

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Nasr, V. (2001) ‘The Negotiable State: Borders and Power Struggles in Pakistan’, in B.O’Leary, I.S.Lustick and T.Callaghy (eds), Right-sizing the State: The Politics of Moving Borders, Oxford: Oxford University Press. Noel, S. (1993) ‘Canadian Responses to Ethnic Conflict: Consociationalism, Federalism and Control’, in J.McGarry and B.O’Leary (eds), The Politics of Ethnic Conflict Regulation: Case Studies of Protracted Ethnic Conflicts, London: Routledge. Opalski, M. (2001) ‘Can Will Kymlicka be Exported to Russia?’ in W.Kymlicka and M.Opalski (eds), Can Liberal Pluralism be Exported? Western Political Theory and Ethnic Relations in Eastern Europe, Oxford: Oxford University Press. Organization for Security and Co-operation in Europe (1999) The Lund Recommendations on the Effective Participation of National Minorities in Public Life, The Hague: Foundation for Interethnic Relations. Patten, A. (2000) ‘Political Theory and Language Policy’, paper presented to the annual conference of the American Political Science Association, Ottawa, 9 November. Renan, E. (1996) ‘What is a Nation?’ in G.Eley and R.Grigor Suny (eds), Becoming National: A Reader, New York: Oxford University Press. Roeder, P. (1991) ‘Soviet Federalism and Ethnic Mobilization’, World Politics, 43: 196–232. Royal Commission on Aboriginal Peoples (1996) Report of the Royal Commission on Aboriginal Peoples. Available online at (accessed 8 May 2004). Snyder, J. (2000) From Voting to Violence: Democratization and Nationalist Conflict, New York: Norton. Steiner, J. (1989) ‘Power-sharing: Another Swiss Export Product?’ in J.Montville (ed.), Conflict and Peacemaking in Multiethnic Societies, Lexington, MA: Lexington Books. Suberu, R. (2001) Federalism and Ethnic Conflict in Nigeria, Washington, DC: United States Institute of Peace Press. Suberu, R. and Diamond, L. (2000) ‘Institutional Design, Ethnic Conflict Management, and Democracy in Nigeria’, in A.Reynolds (ed.), The Architecture of Democracy: Institutional Design, Conflict Management and Democracy, Oxford: Oxford University Press. Tarmir, Y (1995) ‘The engima of Nationalism’, World Politics, 47:418–40. Taylor, R. (2001) ‘Northern Ireland: Consociation or Social Transformation?’ in J.McGarry (ed.), Northern Ireland and the Divided World, Oxford: Oxford University Press. van der Stoel, M. (1999) Peace and Stability through Human and Minority Rights: Speeches by the OSCE High Commissioner on National Minorities, BadenBaden: Nomos. Vermeersch, P. (2000) ‘Roma Political Participation and Racism: Reflections on Recent Developments in Hungary and Slovakia’, Roma Rights, 4(8). Available online at (accessed 8 May 2004). Watts, R. (1999) Comparing Federal Systems, Montreal: McGill-Queen’s University Press.

Part II National cultural autonomy and contemporary liberal democracies

6 Political autonomy or cultural minority rights? A conceptual critique of Renner’s model Rainer Bauböck

Three critiques of Renner’s model Karl Renner’s and Otto Bauer’s model of national cultural autonomy (‘NCA’) can be evaluated from three different perspectives: a historical, a normative and a conceptual one. A historical critique can point out that their ideas were never realized under the Habsburg monarchy in the way they had imagined,1 that they remained a minority position even within the Social Democratic Party before the First World War2 and that they were largely abandoned by their authors after 1918. One may also doubt whether adopting NCA would have been sufficient to accommodate Czech nationalists, who campaigned for ‘state rights’3 and deeply resented the monarchy’s refusal to grant them powers similar to those achieved by Hungary after the Ausgleich of 1867 that had transformed the empire into a dual monarchy. Finally, one can suspect that Renner’s model was better suited to the concerns of the dominant but geographically dispersed German-language groups within the monarchy than to any of the other nationalities.4 Since I am not a historian I will not discuss the merits of these critiques. As a political theorist I believe that even ideas that were unpersuasive and unsuccessful in their original context may contain important and valuable insights in contemporary circumstances. What hasn’t changed since Renner’s time is the persistence and potential violence of conflicts between rival, and often interspersed, communities in multination states. What has changed is the dominant normative framework within which proposed solutions to these conflicts are evaluated. Today, most political theorists support versions of liberalism that emphasize individual autonomy and well-being as ultimate values and recognize the fact of pluralism of identities and moral views in open societies. At the turn of the twentieth century, liberals were generally less enthusiastic about pluralism and more willing to support the assimilation of minorities into national majorities. Renner himself was not a liberal; his principal motives were those of a social democrat and constitutional lawyer. He wanted to preserve the unity of the working-class movement as well as the territorial integrity of Austria by separating nationalities from the state and from each other. Yet Renner and Otto Bauer were also nationalists who believed that nations were communities of character and destiny, which would thrive under socialism when workers gained full access to the best achievements of their respective national cultures (Bauer 1907/2000:82–95, 104–5). In this respect they were at odds with the

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Marxist orthodoxy of their times, as represented by two other currents: the radical internationalism of Rosa Luxemburg and the purely instrumental attitude towards national selfdetermination adopted by Lenin and defended by Stalin in his polemic against the Austro-Marxists (Stalin 1913). A normative critique of Renner’s model from a liberal pluralist perspective must disconnect it from its historical context and will ask questions that were not Renner’s main concerns. How is NCA likely to affect inter-group relations, intra-group relations and group-state relations? Is it more likely than territorially based autonomy to provide external protection for minorities against the pressure of dominant majorities, to protect internal minorities within autonomous communities and to support a common overarching citizenship for everybody in the larger polity? I have suggested elsewhere that there are prima facie arguments for NCA when considering each of these three relations but that, ultimately, territorial autonomy arrangements are preferable from a liberal pluralist perspective (Bauböck 2004). In this chapter I want to examine a third, more conceptual type of critique. The idea of non-territorial autonomy for linguistic groups had been suggested before Renner’s pioneering essay5 and has been implemented more or less successfully in different periods and countries, from the Estonian law of 1925 to the contemporary regime of ethnic proportionality in South Tyrol and the Belgian federal constitution of 1993. The singularity and great attraction of Renner’s model for political theory is its comprehensiveness and apparent consistency. All later applications of the idea have resulted in hybrid and ad hoc arrangements and none of the other academics writing on cultural autonomy has developed a theory that matches Renner’s sustained effort to translate an apparently simple principle into a complex constitutional scheme.6 The flaws of Renner’s approach emerge from his conception of nationality as a primordial non-territorial linguistic community. Renner’s model of comprehensive NCA rests on four pillars, each of which illustrates certain aspects of this conception: cultural nationalism, personal declaration, nonterritorial jurisdictions and symmetrical relations between nationalities. My critique will discuss each of these pillars and will raise some concerns about the stability and consistency of the whole edifice. This leads me to conclude that the idea of cultural autonomy needs to be defended contextually and ought to be regarded as a supplement, but not as an alternative, to territorial self-government rights for national minorities.

Cultural nationalism Chaim Gans defines cultural nationalism and defends it against what he calls statist nationalism. For the former, ‘members of groups sharing a common history and societal culture have a fundamental, morally significant interest in adhering to their culture and in sustaining it for generations. This interest warrants the protection of states’ (Gans 2003:7). In contrast, for statist nationalism the citizenries of states must share a homogeneous national culture in order for states to realize political values such as democracy, economic welfare and distributive justice. ‘Within statist nationalism, national culture is the means, and the values of the state are the aims. Within cultural nationalism, however, the national culture is the aim and the state is the means’ (ibid.).

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Renner is not fully committed to cultural nationalism in this sense. He pursues a triple agenda of cultural emancipation for nations, democratizing the state and a socialist transformation of the economy, and seems to regard all three as non-substitutable goals. Yet before 1918 he clearly rejected statist nationalism. Anticipating Ernest Gellner’s famous definition of nationalism as a political ideology stating that cultural and political borders should coincide (Gellner 1983), Renner (above: 26) postulates in his essay that ‘state and nation must coincide if the nation is to experience the least possible level of resistance to its development’. Here the state is regarded as serving the nation, not the other way round. If this ideal congruence cannot be achieved, cultural nationalists are willing to settle for the second best: national autonomy within multinational states. By contrast, statist nationalists are more likely to fight to change the borders of states or to abandon smaller nationalities altogether, for the sake of promoting a singular national identity within a state. Cultural nationalism is therefore, prima facie, more attractive to liberal pluralists. However, Renner’s version has several problematic features. His view of nations may be characterized as groupist, perennialist and pedagogist. The first of these attributes refers to a conception of ethnic and national groups as ‘externally sharply bounded, internally homogenous blocs’ (Brubaker 1998:234). This assumption masks ‘the fluidity and ambiguity that arise from mixed marriages, from bilingualism, from migration …from intergenerational assimilation, and from sheer indifference to the claims of ethno-cultural nationality’ (ibid.: 256). From Renner’s and even more so from Bauer’s writings it is obvious that they thought of nations as stable and mutually exclusive communities of character. Groupism is also a danger in contemporary varieties of cultural nationalism. Once one assigns strong moral value to the intergenerational continuity of particular national cultures, it follows almost inevitably that fluid and overlapping boundaries between nations will be regarded as an irregularity that undermines the value of national membership. Perennialism and pedagogism are more specific features of the AustroMarxist approach to nationhood that have been generally overcome in today’s academic debates. For contemporary theorists, the age of nationalism starts with the economic and political revolutions that brought about capitalism and the modern state. Some scholars emphasize that there are continuities between pre-modern ethnic groups and modern nations (Smith 1986). However, very few would endorse Renner’s characterization of the distinct legal systems and languages of nomadic tribes within the Carolingan Empire as national ones that serve to demonstrate that nationhood has no necessary territorial basis. Liberal cultural nationalists today accept that the specific value of national communities is not grounded in their claims to imaginary ancient origins, but is derived from individual needs for protection and cultural resources in the context of modern mobile societies. While, for the Austro-Marxists, a substantive identity of nations is preserved even through the great watersheds of human history, they recognize profound changes of internal relations within nations. This is made explicit in Bauer’s theory of three stages of national development. In tribal communism the nation is still united as a community of descent and culture, while in feudal and capitalist class societies the national culture is monopolized by the ruling class. Under socialism the nation will finally be reunited as an educational community (Erziehungsgemeinschaft) that gives the working classes full access to the highest achievements of their nation’s culture (Bauer 1907/2000:104, 118).

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Renner (above: 22) expresses the same view when he writes about the lower classes ‘knocking at the gates of temple of culture’ and the ruling groups ‘barring the doors of the temple to the lower classes’. A pedagogical agenda of teaching the values of German high culture to the working class was a characteristic aspect of Austrian socialism well into the 1930s. The rather ironic contrast with Gellner’s theory of nationalism is that for the latter it is industrial capitalism that requires educating the working classes in a standardized national culture and it is the modern state that provides the institutions and resources for this programme of national education. My own view is that even the most liberal versions of contemporary cultural nationalism are flawed. Normatively, the argument that individuals need secure membership in encompassing groups (Margalit and Raz 1990) fails to explain why national cultures deserve stronger state protection than ethnic or religious ones (Buchanan 1998; Benhabib 2001:66). And descriptively, the cultural nationalist hypothesis underestimates the extent to which nationalist movements want political power primarily for its own sake and not merely to protect a particular culture. I would suggest that there is a third alternative to statist and culturalist nationalism, which might be called a political conception. This approach would describe nations as historically constituted and culturally bounded communities striving for self-government, but not necessarily for independent states. The history and the culture of nations should be regarded as contingent aspects that are partly constructed in order to legitimate the claim for self-government. From a democratic perspective self-government must be regarded as a core value, and this can lead to supporting nationalist struggles of liberation from domination by other groups. But for the same reason liberalism must reject any attempt to monopolize self-government powers in heterogeneous societies for a particular cultural group.

Personal declaration The second pillar of Renner’s model is what he calls the personal principle. This is the idea that individual membership in a national community should be determined neither by state authorities nor by those of the national groups themselves but through a free personal declaration. Prima facie, this is once again a very attractive idea. National autonomy seems thus derived from individual autonomy and national community seems to be constituted as a voluntary association. There is, however, an important difference between voluntary association in civil society and the use Renner makes of personal autonomy in order to determine membership in national groups. In the former case, membership generally does not exclude belonging simultaneously to another association of the same kind. Even if the associations themselves insist on mutually exclusive membership (as do all monotheistic religions), in liberal states enforcement of this principle is not delegated to political authorities and equal protection must be given to those who refuse to affiliate themselves with any such association. In Renner’s model, however, every citizen must choose one national affiliation and one only. National corporations are thus constituted by the state, which recognizes a limited number of distinct groups, rather than by free individual choice. Individuals are free only to declare and change their national affiliations, but they

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can neither associate freely to establish new national corporations nor dissociate themselves from all recognized national communities. This compulsory declaration of allegiance is not only a severe constraint on individual self-determination but will also significantly reduce the size of those ethno-national minorities whose members are generally bilingual and exposed to strong assimilation pressure.7 Renner’s proposal departs significantly not only from the model of free association in civil society, but also from individual self-determination in the political sphere as interpreted by contemporary theorists of consociational democracy. Arend Lijphart (1995) suggests that, in deeply divided societies, the constituent segments should be selfdetermined through individual declaration rather than predetermined by the state. For example, in a proportional representation electoral system voters will individually determine whether to vote for an ethnic or religious party and their choices will collectively determine the relative strength of such parties in the legislature and in coalition governments. Similarly, support for an autonomous cultural council can be measured by voluntary individual declarations. Renner defends proportional representation in elections to territorial legislatures, too. But his constitutional scheme for national councils requires predetermination of the list of national affiliations that can be chosen. This follows from the idea that such councils should not merely represent minorities. Instead, the whole population would be subdivided into national segments each of which elects its own autonomous council. A second difference between Renner’s model and consociational theory is that the latter seeks incentives for co-operation between political elites in central government institutions across segments, while the former is designed to achieve the opposite goal of separating nations from each other by giving each its own institutions of government. Negative impacts of personal declaration can be studied in South Tyrol/Alto Adige. In this province a regime of ethnic proportionality in the allocation of public services and positions in public administrations based on linguistic census results has deepened the segregation between ethnic groups and may be violating recent EU anti-discrimination directives. The Belgian federal constitution provides a counter-example. Here the boundaries of linguistic communities do not depend on counting their members, but are forever fixed on a territorial basis. The Brussels region is officially bilingual, which reassures the shrinking Flemish community in the city that immigration of francophone populations will not jeopardize their rights

Non-territorial jurisdiction Renner’s third core idea is that ‘there is no necessary connection between the consciousness of nationality and a particular territory’ (Renner above: 25). National communities should be established as self-governing public law corporations whose jurisdiction includes all citizens who declare their membership, independently of where they reside within the state. While statist nationalism is necessarily territorial, non-territoriality is not a defining feature of cultural nationalism. Most contemporary liberal cultural nationalists (e.g. Charles Taylor, Will Kymlicka, Joseph Raz, Avishai Margalit and Chaim Gans) advocate territorial self-government for national communities as the most effective means to

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preserve or develop a national culture. Renner does not deny this, but raises two objections. First, since nations are basically spiritual and cultural communities, territorial jurisdiction is not essential for their development. Second, since territorial sovereignty is an essential property of the state, a constant struggle between nations over territorial boundaries would undermine the integrity of states.8 In order to explain how nations could be autonomous without a territorial basis, Renner uses the analogy of publicly organized religion. Nation and state should be separated in a similar manner to church and state. Renner is aware that this analogy cannot be carried too far. In the final part of his essay he discusses how the interests of state and nation overlap, and assigns to the autonomous national councils administrative tasks that involve delegated state powers. The crucial aspect of the analogy is that both nationalities and religious denominations are regarded as spiritual communities that do not need territorial jurisdiction in order to reproduce themselves. This idea is much more plausible for an ethnic conception of nationhood than for a civic or linguistic one. If national identity is primarily a matter of descent, mother tongue and shared character traits, national survival may be threatened by intermarriage, but not necessarily by geographic dispersal. However, if nationhood is based on a desire for political self-determination and requires secondary socialization in a shared historical narrative and a standardized language, territorial jurisdiction will in most cases be indispensable to sustain it over time. Of course, the main power that nations would acquire under Renner’s proposal is to establish their own schools, theatres and museums, where their particular languages, arts and histories are transmitted to their members. This will, however, often not suffice to satisfy national aspirations, for two reasons. First, research on language survival in modern industrial societies has concluded that ‘it is normal…for each language to establish its domination and then to seek exclusivity in a given territory’ (Laponce 1987:4). Isolated pockets of minority languages are unlikely to survive even where their numbers would allow their speakers to establish their own schools if their idiom is no useful resource in the larger environment. Religious survival in a liberal society depends merely on the internal cohesion of a community of believers. For linguistic survival, however, the freedom to use a minority language must be complemented with the right to be understood in this language by political authorities, employers and providers of services. Second, not all national identities are demarcated primarily by language differences (e.g. Austrian, Swiss, Scottish, Irish, Serbian, Croatian or Bosnian identities) and all truly nationalist movements demand more than merely linguistic protection. They want to control local or regional governments, police forces, courts, economic and social welfare policies. These claims will not always be justified, but sometimes they will be. If ethnonational groups feel oppressed and harassed by the state institutions, or are not sufficiently protected by them against social discrimination, then having schools that operate in their languages will not respond to their plight. Moreover, even in the absence of pervasive discrimination, the geographic concentration of distinct historic communities itself creates legitimate democratic expectations that representatives of the regional majority will control regional political institutions. Because Renner is not unaware of this, his model of NCA departs in significant ways from the purely non-territorial autonomy granted to religious confessions. It is in fact a

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mixed approach with a quite strong territorial component. The state territory is to be subdivided into administrative units (Kreise) in such a way that the number of roughly monolingual units is maximized. For each national council the totality of its mononational units forms de facto an exclusive territorial jurisdiction, within which it must share powers with provincial and state authorities but not with other nationalities. What is abandoned in Renner’s model of federation is not territoriality per se but the requirement of geographical contiguity of constitutive units. The non-territorial element in Renner’s proposal is reduced to essentially two supplementary aspects: a small number of mixed Kreise9 and minority rights for dispersed members of national communities outside those Kreise where they are officially established. In contrast with his theoretical premises, Renner’s practical model does not establish non-territorial jurisdiction but focuses instead on extraterritorial protection. The jurisdiction of national councils is territorially based within their own regions but reaches out to members outside.10 This is similar to how modern states conceive of their own jurisdiction: it extends over all those who live in their territory (including foreign nationals) but in some aspects covers also the state’s nationals living abroad who have a claim to diplomatic protection, a right to return and, in some cases, even an absentee franchise. Renner (above: 28) explicitly uses this analogy when he complains that ‘[t]he Englishman has the diplomatic protection of his fatherland…Yet he is a foreigner. However, the German-Austrian in Prague is without rights, for he is on “Czech soil”.’ But might relying on external protection for national minorities then not result in turning them from co-citizens into quasi-foreigners whose rights are precarious and resented exactly because they are protected by a government located outside the nation’s territory? Renner (above: 31) bypasses this objection by assuming that reciprocal threat potentials will lead to a mutual accommodation of internal minorities: each [nationality] at the same time in a particular region a majority and in another region a minority, which in the interest of national unity it cannot abandon; each incapable of oppressing foreign minorities because the other nationality as a totality will respond with the repression of the former’s own minority, and thus prepared in advance to accept compromise with other nations. While this solution may have had a certain plausibility for Czech-German relations in the late Habsburg Empire, it can obviously not be generalized. Settlement patterns and migration flows between national minorities are rarely reciprocal. Minorities send their members more often into metropolitan areas where a national majority prevails than the other way round. And what about dispersed groups like the Roma and Jews who do not form a majority in any territorial unit fit for self-administration? Ironically, Renner’s model offers the least protection to those minorities that are most clearly non-territorial.11 From a liberal perspective, external protection of national minorities is a mere secondbest solution once other means have failed. Even reciprocal threat potentials can only sustain a fragile modus vivendi that each side has reasons to upset as soon as its relative position improves. The best solution is always to internalize the protection of minorities by changing the dominant majority’s conception of political community in such a way

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that minorities can be included without being assimilated. This solution is, however, incompatible with Renner’s conception of nationhood.

Symmetrical relations between nationalities The most ambitious part of Renner’s proposal is that the Austrian half of the empire should be transformed into a federation of nationalities, each of which would enjoy the same powers and relate in the same way to central state institutions. The state would thus be subdivided twice into territorial provinces and national communities and both types of entities would be constitutive units of the larger federation. This constitutional design has a number of apparent attractions. First, it would overcome the distinction between majorities and minorities. The logic of federal constitutionalism demands that constituent units enjoy equal status (and sometimes also equal representation in a federal chamber) independently of their size. This can be supported by liberal democratic norms of equal citizenship that could be violated if particular federal units have greater powers than others. Additional support comes from historic nationalities that often campaign for recognition as cofounders of a multinational federation rather than as minorities within a nation state. Finally, Renner’s claim that nation and state can be separated is also more plausible when interpreted as referring to a symmetrical treatment of all nationalities by a neutral state rather than to a strict separation of powers between territorial and non-territorial governments. Second, by granting constitutive status to geographically dispersed national communities whose autonomy is reduced to cultural policies, Renner’s proposal avoids the main danger of territorial federalism in multinational societies—the likelihood of secession or partition that transforms internal federal borders into international ones. Czechoslovakia, Yugoslavia and the Soviet Union had all been constructed as territorial multinational federations with formally equal status for federal republics that were defined as the homelands of titular nationalities. Yet there are also important objections to be considered. Within all multinational democratic federations, representatives of national minorities demand not merely equal recognition but also special powers for their own federal units. They justify this by referring to historic disadvantages and discrimination suffered by the minority as a result of majority nationbuilding efforts. An even stronger claim is that nations should have equal rights of self-determination. Since the majority nation dominates an independent state, the minority must be able to determine, itself, the scope of autonomy of its constituent unit.12 Recognizing the dominant position of a national majority may also be relevant from a perspective that emphasizes the need for stability and territorial integrity of multinational democracies. Brendan O’Leary has suggested that: a stable democratic majoritarian federation, federal or multinational, must have a Staatsvolk, a national or ethnic people, who are demographically and electorally dominant…and who will be the cofounders of the federation. (O’Leary 2001:284–5)

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[W]here there is no Staatsvolk, or where the Staatsvolk’s position is precarious, a stable federation requires (at least some) consociational rather than majoritarian institutions if it is to survive, though of course its survival is by no means guaranteed. (Ibid.: 291) Renner may have implicitly relied on the de facto dominance of a German Staatsvolk within an Austrian multinational federation. However, establishing an autonomous German nationality and giving it equal status to the other linguistic communities would not have done justice to minority claims for special federal protection and resources for their weaker languages. Nor would it have strengthened the dominant group’s identification with the larger polity. Renner’s model also fails by the standards of O’Leary’s supplementary hypothesis. As I have argued above, Renner’s emphasis on separating nation and state is at odds with consociational democracy that promotes representation of the segments and co-operation across them in central government institutions. How should one then conceive of relations between constitutive units within a multinational democratic federation? I think that it is necessary to combine requirements of federal symmetry with recognizing the historical asymmetry in relations between majorities and minorities. With the possible exception of Switzerland, the borders and public cultures of nearly all multinational states have been profoundly shaped by nationbuilding projects on the part of one particular historically dominant group.13 This asymmetry creates disadvantages for national minorities and justifies claims for special recognition and support from federal government that would be undermined by national cultural autonomy. It also means that the majority’s national identity refers much less than the minority’s to a separate community or territory within the state. Instead, it is associated with the integrity of the larger polity and includes the minority as belonging to the nation. We can describe this as a nested structure of national identities that emerges from interlocking nation-building projects of dominant groups and minorities within a common state territory and population. In such a multinational constellation liberal constitutional statecraft must satisfy divergent imperatives. First, the constitution ought to recognize minority self-government rights by drawing an internal political boundary and devolving political powers to government institutions that will be controlled by the minority. Second, it should equally recognize the majority’s identification with the larger polity that provides the glue for the territorial integrity of the federation. And, finally, it must promote power sharing and symbolic recognition for all nationalities within federal institutions. I think that the Canadian model of territorial federation, in spite of its many tribulations, offers better chances to balance these concerns than does Renner’s Nationalitätenbundesstaat. Quebec enjoys strong powers of autonomy and some recognition as a distinct society. The anglophone population is not established as a distinct nationality but regards Canada as a single nation subdivided into ten provinces. Federal institutions are, however, bilingual and recognize in this way the francophone community as a founding people and partner in the federal contract.

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An alternative approach In contemporary debates about multiculturalism the basic problem is often stated as the need to find a consensus on common values and stable modes of coexistence between different cultural identities and ways of life or religious beliefs and practices. Renner’s essay reminds us that the nature of the problem to be solved in multinational democracies is of a different calibre. The other multicultural challenges are about the common public culture, the recognition of minorities and the limits of toleration within a single political community. Conflicts about nationality, however, involve rival projects for defining the internal and external boundaries of the polity itself. Such conflicts can be resolved by the victory of one project over the other. If dominant projects win, minorities will be assimilated and will lose their capacity for self-government. If subordinate projects win, they will secede and form a new dominant majority in their own nation state. Renner wants to avoid both outcomes by transforming the polity into a composite and federated one, within which the members of all nationalities can recognize each other as equal citizens. In this respect, his approach is a pluralist one and still relevant for contemporary multinational democracies. Renner’s cultural nationalism prevents him, however, from fully realizing that nationality conflicts are not merely about linguistic survival and the integration of lower classes into a national high culture, but inevitably involve struggles over territory and comprehensive powers of self-government. Renner’s comprehensive model fails to live up to this challenge. It should therefore be broken apart into different components that can be rearranged in various ways. Let me conclude by sketching the bare bones of one such rearrangement that appears to me preferable to Renner’s model. The basic foundation is provided by the value of equal liberties and citizenship in self-governing political communities. This principle can support three answers to different kinds of multicultural challenges. First, basic cultural liberties for all individuals to use their language and practise their religion and to form voluntary associations in order to promote and develop their particular culture. These liberties may not be constrained for the sake of nation building, but only for the sake of protecting basic human rights and equal citizenship when they are violated by particular practices. Second, cultural minority rights that respond to specific disadvantages that members of these minorities suffer in a society whose public culture has been shaped by dominant religious traditions, languages and historical narratives. Such minority rights include protection from discrimination, exemptions from otherwise justified laws that burden specific groups (such as animal protection laws that outlaw ritual methods of slaughtering), public recognition and financial support for distinct minority cultures (e.g. by subsidizing minority language education), and inclusion in a dominant public culture (e.g. through multilingual public services). Unlike cultural liberties, such minority rights may depend on numbers, geographical concentration or historic settlement of potential beneficiaries. Yet even when they are provided on a regional basis these rights will remain non-territorial in Renner’s sense. They refer to minorities as cultural communities rather than as distinct polities with a claim to territorial jurisdiction. Third, territorial self-government rights that recognize the contested nature of the larger polity’s history and boundaries and accommodate rival nation-building projects

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through federal arrangements that combine autonomy for constitutive units with power sharing in central government institutions and a common citizenship. Territorial autonomy for minorities and the territorial integrity of the larger multinational polity can then be seen as mutually supporting each other. As long as the minority enjoys autonomy in its own territory and is integrated into the encompassing polity through power sharing and equal citizenship, it has no legitimate claim to secession. To this, defenders of NCA will reply that territorial autonomy gives minorities the capacity to break up the state even if they have no legitimate claim to do so.14 This may well be. However, one lesson we can learn from the history of the Austro-Hungarian Empire is that giving national minorities too little too late is even more likely to destabilize a multinational state.

Notes 1 The Moravian compromise of 1905 created non-territorial linguistic constituencies by establishing separate electoral lists for German and Czech citizens. This was, however, strongly condemned by Otto Bauer (1907/2000:308–10). He and Renner put forward a proposal that demanded separate national electoral registers only for electing non-territorial national councils, but proportional representation in general elections to territorial legislatures. 2 Renner was not present at the 1899 Brno party congress that adopted a nationality programme, but his ideas inspired a minority resolution promoted by South Slav delegates. The majority voted, however, to replace the historical Crown lands with self-governing territories of the various nations whose borders ought to match linguistic ones as closely as possible (Brno Protocols 1899:14). 3 Renner’s essay refers several times to ‘state rights’ (Staatsrechte) that were claimed by both the Young Czech and the Young German nationalists. Czech and German Social Democrats agreed on rejecting this demand (see Brno Protocols 1899:76, 79). 4 The Swedish historian Fredrick Lindström detects a ‘strong strain from early on in Renner’s writings to view the Habsburg empire as a German mission in south-eastern Europe. In its political context his Nationalitätenbundesstaat most of all comes across as the modern political solution to the problem of the geographically dispersed German groups in Central Europe, as perhaps the only way to collect and house all or most of these groups in a modern, democratic polity where despite their territorial fragmentation they can fill the role of the leading national group in a large and internationally powerful polity’ (Lindström 2002:338). 5 At the Brno congress, Etban Kristan claimed that the idea of non-territorial national autonomy had been developed at the Prague Academy long before Renner’s essay (Brno Protocols 1899:86). 6 Renner developed his model at much greater length in two later books (Renner 1902, 1918). 7 In Austria, Carinthian Slovenes campaigned against a 1976 special census on ethnolinguistic minorities because they felt that their members were under political pressure to deny their origins and were afraid that the results would be used to undermine their territorially defined rights to bilingual education and topographical signs. 8 Similar considerations lead Yael Tamir (1993:70) to restrict national selfdetermination to the right of each nation to a distinct public cultural sphere. 9 According to Renner’s own estimate 90 per cent of the Kreise could be made nationally homogeneous (Lindström 2002:256). 10 Uri Ra’anan (1991) derives from this a hybrid model of a bi-national federation, in which each group enjoys territorial autonomy where it forms the majority and extraterritorial protection by the group’s authorities where it is the minority.

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11 Otto Bauer (1907/2000:318–31) explicitly rejected national cultural autonomy for Jews and argued that it is their destiny to be assimilated. 12 Arguments for asymmetry in multinational democracies are discussed in several contributions in Gagnon and Tully (2001). 13 Renner’s proposal was more plausible in the Habsburg context than it is in contemporary multinational democracies, because the boundaries of the empire had not been determined by a nation-building project. An Austrian identity was then linked with the dynasty rather than with a German linguistic nationality. Austria was in this respect more similar to the late Ottoman Empire than to the German and Russian ones. It is no coincidence that the closest historical precedent to Renner’s cultural autonomy for linguistic nation alities was the Ottoman millet system of religious communities. 14 Will Kymlicka (2001:118) describes this as the ‘paradox of multinational federalism: while it provides national minorities with a workable alternative to secession, it also helps to make secession a more realistic alternative to federalism’.

References Bauböck, R. (2004) ‘Territorial or Cultural Autonomy for National Minorities?’ in A.Dieckhoff (ed.), Nationalism, Liberalism and Pluralism, Lanham, MD: Lexington Books. Bauer, O. (1907) Die Nationalitätenfrage und die Sozialdemokratie, trans. J. O’Donnell, in E.J.Nimni (ed.), The Question of Nationalities and Social Democracy (2000), Minneapolis, MN: University of Minnesota Press. Benhabib, S. (2001) The Claims of Culture: Equality and Diversity in the Global Era, Princeton, NJ: Princeton University Press. Brno Protocols (1899) Verhandlungen des Gesammtparteitages der Sozialdemokratie in Österreich abgehalten zu Brünn vom 24. bis 29. September 1899, Vienna: Ignaz Brand. Brubaker, R. (1998) ‘Myths and Misconceptions in the Study of Nationalism’, in M.Moore (ed.), National Self-determination and Secession, Oxford: Oxford University Press. Buchanan, A. (1998) ‘What’s so special about Nations?’ Canadian Journal of philosophy, supp. vol. 22:283–309. Gagnon, A.G., and Tully, J. (2001) Multinational Democracies, Cambridge: Cambridge University Press. Gans, Chaim (2003) The Limits of Nationalism, Cambridge: Cambridge University Press. Gellner, E. (1983) Nations and Nationalism, Oxford: Blackwell. Kymlicka, W. (2001) Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship, Oxford: Oxford University Press. Laponce, J. (1987) Languages and their Territories, Toronto: University of Toronto Press. Lijphart, A. (1995) ‘Self-determination versus Pre-determination of Ethnic Minorities in Powersharing Systems’, in W.Kymlicka (ed.), The Rights of Minority Cultures, Oxford: Oxford University Press. Lindström, F. (2002) ‘Empire and Identity: Biographies of Austrian Identity in an Age of Impeial Dissolution’, unpublished thesis, Lund University. Margalit, A.and Raz, J. (1990) ‘National Self-determination’, in J.Raz (ed.), Ethics in the Public Domain: Essays in the Morality of Law and Politics (1994), Oxford: Clarendon Press. O’Leary, B. (2001) ‘An Iron Law of Nationalism and Federation? A (NeoDiceyian) Theory of the Necessity of a Federal Staatsvolk, and of Consociational Rescue’, Nations and Nationalism, 7(3):273–96. Ra’anan, U. (1991) ‘Nation and State: Order out of Chaos’, in U.Ra’anan, M. Mesner, K.Armes and K.Martin (eds), State and Nation in Multi-ethnic Societies, Manchester: Manchester University Press.

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Renner, K. (writing as R.Springer) (1902) Der Kampf der österreichischen Nationen um den Staat, Leipzig. Renner, K. (1918) Das Selbstbestimmungsrecht der Nationen in besonderer Anwendung auf Österreich, Leipzig: Deuticke. Smith, A.D. (1986) The Ethnic Origins of Nations, Oxford: Blackwell. Stalin, J. (1913) Marxismus und nationale Frage, Wein: Stern-Verlag. Tamir, Y. (1993) Liberal Nationalism, Princeton, NJ: Princeton University Press.

7 National autonomy and Indigenous sovereignty Paul Patton Liberalism and nationalism have long had an uneasy relationship. One reason for this is that liberalism recognizes only the individual and the territorial state, leaving no constitutional space in which to accommodate group rights for national minorities. Karl Renner’s model of national autonomy offers a means to reconcile the democratic territorial state with selfgoverning nations. His central idea is to distinguish between state and nation as different kinds of political organization and, on this basis, to elaborate a series of principles for their combination and interaction within a common constitutional framework. He conceives of the state as a sovereign territorial authority, charged with responsibility for the material needs of the population, and the nation as a no less sovereign but nonterritorial authority, charged with responsibility for the cultural needs of a given community. Whereas the nation is first and foremost ‘a community of intellectual and emotional life’ (Renner above: 26), and as such not bound in any essential way to a territory, the state is inconceivable apart from ‘exclusive territorial domination’ (ibid.: 26). From a historical point of view, state and nation express different modalities of collective existence: states were formed in accordance with a territorial principle according to which residence upon a particular territory defines membership, while nations were formed in accordance with a personality principle according to which personal association defines membership. Renner suggests that it is an anomalous consequence of the territorial principle that individual citizens are protected against the actions of other nationals outside the borders of the territorial state while members of minority national groups are afforded little protection against other nationals within state borders. Clearly the machinery of government functions best when there is a coincidence of state and nation. However, the vicissitudes of history or economic development frequently bring about the mingling of nations, harmoniously or otherwise, within a given territory. Renner’s solution proposes that nations be constituted as distinctive legal entities, on the basis of the personality principle, within the constitutional framework of the territorial state. Individual citizens would remain juridical subjects of the state, but they would also elect to be members of a particular nation. Just as a church is a ‘personal association of those sharing the same belief’ so a nation is a ‘personal association of those sharing a way of thinking and speaking’ (Renner above: 30).

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Since they were developed in response to the non-coincidence of state and nation that arose in the aftermath of the Austro-Hungarian Empire, Renner’s proposals do not address the form in which these problems arise as a consequence of European colonization and the incorporation of Indigenous peoples and their lands into the sovereign territory of existing states. However, supporters of his model suggest that it has something to offer to Indigenous communities within colonial states such as Australia, Aotearoa/New Zealand, Canada or the United States.1 My aim in this chapter is to assess this claim by examining the advantages and disadvantages of Renner’s model for Indigenous peoples. To begin this assessment, it will be helpful to consider some of the detail of his constitutional proposals.

Territorial and non-territorial institutions of government Renner proposes a dual system of government that combines territorially based institutions with others organized on the basis of personal affiliation. At the apex of government would be a central parliament with legislative responsibility for all matters pertaining to interests of state, such as economic and foreign policy. Suffrage would be universal and direct and administration would operate through a ministerial system. Beneath this central government would be regional territorial governments organized according to similar legislative and administrative principles. In addition to its division into regional or provincial units on a territorial basis, the state would at the same time be divided into distinct nations, each with its own resources and members. Alongside the territorial system would be a threetier system of national government, beginning with local communities of co-nationals constituted as corporations with the power to issue decrees, raise taxes and own property. A number of such communities within a given region would form a national canton. All the cantons of a given nationality together would form the nation. Each nation would be concerned with the promotion of its own system of education, its own national language and culture. The fact that one nation might form the majority in one region but the minority in another would provide an incentive to avoid discrimination against ‘foreign’ nationals: ‘the nation must accord the foreigner rights in order to have rights itself in foreign parts’ (ibid.: 39). Moreover, within this dual structure of government, certain accommodations between the territorial and the personal principle might be undertaken to solve particular problems and to simplify the tasks of administration. Thus, Renner proposes to solve the problem of proportional representation in regional assemblies by making the national communities or cantons within the region concerned the electoral districts. The make-up of the regional assembly would thus directly reflect the proportion of different resident national groups. Equally, the proliferation of administrative bodies might be reduced by handing over state and national tasks to the territorial bodies in monolingual regions, while allowing national administrative bodies to take precedence in multilingual regions. Apart from the administrative complexities that might ensue from this dual system of government, a key issue would be the allocation of powers and responsibilities between the spheres of state, territorial and national competence. Renner outlines the general principles of the division of powers and responsibilities as follows: diplomatic, military and judicial sovereignty resides with the state. Beyond that, matters are divided among

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state and nation on the principle that the former is concerned with economic policy and material life while the latter is concerned with intellectual and cultural life. Echoes of Marx’s distinction between base and superstructural levels of social life may be heard in this division of powers and responsibilities. Not surprisingly, echoes of the difficulty of maintaining this distinction in some areas of social life may be heard in Renner’s suggestion that sovereign responsibility should be divided in areas such as education. Nations would maintain their own schools, and make collaborative arrangements to ensure national schooling was available in areas where their members were too thinly spread to justify established schools. At the same time, since a certain level of education is a prerequisite for economic development, it is appropriate that the state determine ‘the educational minimum to be guaranteed by all the nations for all levels of the education system’ (ibid.: 38). State and national governments would need to co-operate in matters of internal security and policing and in relation to the forms of direct and indirect taxation needed to fund their respective administrations. In addition, sovereignty over persons would be shared between them, since both require the authority to exercise control over individuals: ‘personal sovereignty should be the de jure entitlement of the nation in national matters, in all others of the state by law’ (ibid.: 39). However, in view of the division of the labour of government envisaged between state and nation, Renner suggests that the sovereignty of the state would often be exercised through the national administrative bodies. These would levy taxes, carry out recruitment, and communicate the directives of state authorities and so on in their own language. As far as possible, in all spheres of its activity, the state would communicate with its citizens in their own language. Renner is less clear about the division of sovereignty with regard to material assets and resources. On the one hand, territorial sovereignty usually implies the power to assign property in land and other material resources and it is clear that nations are not territorial bodies. On the other hand, nations will have an interest in taxing wealth producing activities and resources. Whether or not nations will require sovereign control over such assets, he suggests, will depend on whether they participate in direct or indirect taxation (ibid.: 39). It is difficult to see how this would not be a source of conflict between states and nations. The experience of colonized Indigenous peoples suggests that control over land and resources is fundamental to their capacity to survive as autonomous nations within formerly colonial states. This brings us to the question whether the specific circumstances of colonized Indigenous peoples can be adequately addressed within the terms of Renner’s constitutional proposals.

The situation of colonized Indigenous peoples Indigenous peoples in various parts of the world share a common experience of colonization, dispossession, non-recognition of their systems of law and government and forced assimilation into the settler societies built upon their traditional land. Some have nevertheless survived, regrouped and embarked upon lengthy legal and political campaigns in the attempt to regain land and recognition of their distinctive cultural and political identity. Some have achieved a measure of political autonomy, self-

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determination and even a measure of sovereignty. In the United States, it has been accepted legal doctrine since the 1830s that some Native American peoples are domestic dependent sovereigns over their own territories, thus allowing these to maintain their cultural, legal and political autonomy. In Canada, varying degrees of municipal and de facto national autonomy have been achieved in recent decades through a process of negotiation with provincial and federal governments. Outcomes achieved under agreements such as those reached with Inuit, Yukon and Nisga’a First Nations include control over a range of government services, including legal, medical, educational and welfare provision, as well as rights to land and resources along with varying degrees of self-government. However, Canadian governments are reluctant to call these agreements treaties and it is a condition of their successful negotiation that the Indigenous peoples concerned must acknowledge the overriding sovereignty of the territorial state. Under the Treaty of Waitangi Act 1975, Aotearoa/New Zealand has also seen extensive settlements of claims for loss of land and fishing rights. These have provided economic resources on which to rebuild Māori cultural and political autonomy. Taken together, the institutions through which Māori self-determination is taking shape amount to the assertion of what has been called a form of ‘sovereignty without secession’ (Maaka and Fleuras 2000:92). Australia is unique among Anglo-settler societies by virtue of the absence of any historical treaties and the non-recognition of any form of Indigenous sovereignty. However, since 1976 there have been land claim settlements under federal and state Land Rights Acts, and since 1992 there has been common law recognition of residual native title to land. These developments have reignited public discussion of Indigenous sovereignty and reinvigorated calls for some kind of treaty or framework agreement to address the ‘unfinished business’ of colonization. The decade-long process of reconciliation 1991–2000 culminated in a report calling for a treaty or document of reconciliation which would establish a constitutional framework for specific agreements between governments and Indigenous peoples (Patton 2001, 2002). In Australia, as elsewhere, the case for recognition of Indigenous sovereignty rarely includes a demand for independent statehood. Indigenous populations are often too dispersed and their homelands already subject to other uses by the nation state around them. Even where the people concerned are sufficiently concentrated on particular territories, they often lack the economic and human resources necessary to survive alone. Nevertheless, this is no reason to abandon the case for sovereignty, since it is possible to acknowledge Indigenous sovereignty without supposing that it will lead to independent statehood. Historian Henry Reynolds argues that part of the problem in the Australian debates has been the tendency to conflate state and nation whereas the problem ‘can best be tackled by prising apart the two concepts of state and nation’ (Reynolds 1998:214). A consequence, or precondition, of prising apart these two concepts might be the broader acceptance of a more flexible concept of sovereignty according to which this is shared among the different social orders which constitute the nation as well as among the different levels of government. Recognizing Indigenous sovereignty under these conditions would open up the possibility of a genuinely plural state encompassing several autonomous nations. Renner envisages sovereignty as distributed in precisely this fashion among the state, territorial and national assemblies of the multinational state. His dual structure of political authority provides for a form of shared sovereignty along the lines that are currently

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demanded by Indigenous people in Australia and Aotearoa/New Zealand. The manner in which he envisages the exercise of state administrative responsibilities by national authorities, in addition to their responsibility for national cultural matters, resembles the kinds of self-government arrangements that have been accorded to Canadian First Nations. Some of these agreements demonstrate that a high degree of national selfdetermination can be achieved in a manner that is consistent with the territorial sovereignty and integrity of the existing state. To this extent, at least at the level of broad constitutional principle, these current approaches to Indigenous national autonomy appear consistent with Renner’s model of non-territorial nationhood. At the same time, there are a number ways in which his model might conflict with the aspirations of many Indigenous peoples.

Advantages and disadvantages of Renner’s model Significant differences may arise over the proposed relationship between state and nation. Renner’s account assumes a consistency between them that does not accord well with the colonial situation. Having distinguished between the state as site for the determination and expression of the collective will and the nation as realm of collective thought and feeling, he describes a division of labour between them in functional terms. The state decides through the formation of the collective will, to which the individual will is then subjected ‘through legal imperatives’ (Renner above: 25). The nation facilitates the translation of the collective will into individual actions via the mediation of language, culture and cognitive capacity, which is the domain of the nation. For this reason, Renner (above: 26) suggests that a certain ‘developed level of national existence’ is necessary if the nation is to fulfil its role within the state. Indeed, by arguing that in order to ‘live in the state, the national group with an undeveloped idiom must become a nation with a developed national literature or merge into such a nation’, he appears to endorse the internal colonization that accompanied the formation of national cultures in Europe (Renner above: 26). Colonial governments routinely practised assimilationist forms of ‘nation building’ which sought to achieve cultural homogeneity and effective means of mediating the collective will at the expense of Indigenous cultures. Contemporary struggles of Indigenous peoples to restore and to maintain their distinct culture typically take place against the historical background of such policies of cultural assimilation. In this context, where Indigenous interests are largely ignored in the determination of the collective will, the purpose of maintaining and strengthening Indigenous language, culture and cognitive capacity is not simply to assist in the implementation of the collective will but also to resist it (Taiaiake 1999, 80–8; Tully 2000). Differences may also emerge in the colonial case with regard to the mechanisms of government envisaged in Renner’s model. In a general sense, the distinction between territorial states and personality-based nations implies the constitutional recognition of different kinds of legislative and administrative bodies. The idea that the structure of government might allow for this kind of diversity seems to allow for the constitutional recognition of Indigenous legal and social structures. Bowring (2002:238) and Nimni (above: 8, 11) both suggest an affinity between Renner’s model and Tully’s argument for a form of constitutional association capable of accommodating cultural diversity.

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However, while there is some formal similarity between Tully’s idea of constitutional association as a ‘strange multiplicity’ and Renner’s combination of territorial state sovereignty and national self-government based on the personality principle, it remains an open question how far Renner’s model of national autonomy would be consistent with Tully’s idea of asymmetrical constitutional association in the colonial case. Renner assumes that both state and nation would be democratically governed. Citizens would also be members of a particular nation and national registers of declared membership would be kept: ‘[n]othing other than the free declaration of nationality by the individual before the competent authority can determine national affiliation’ (Renner above: 20). It follows that individual consent would form the basis of national belonging and that national affiliation ‘is a feature of the legal status of the individual, like Catholicism, majority, fatherhood etc’ (ibid.: 22). Tully’s conception of diverse constitutional association is stronger than this. He agrees that self-governing Aboriginal peoples should be subject to the same overriding principle of consent that applies to the constitution of the state. However, he also argues that a just constitutional association would be one that enabled Aboriginal peoples ‘to participate in governing their societies in accord with their own laws and cultural understandings of self rule’ (Tully 1995:192). This implies that the processes and institutions through which individuals participate in the government of their communities might be significantly different from those regarded as democratic in Western societies. For example, they might rely on traditions of respect for the authority of elders or chiefs. In this sense, Tully’s model might allow very different forms of national self-government within the democratic state, including procedures and structures that to Western eyes might appear authoritarian and undemocratic. Nothing in Renner’s account of the democratic character of the nations within suggests willingness to accommodate traditional Aboriginal forms and processes of selfgovernment. Perhaps the most obvious point of conflict between Renner’s proposals for national autonomy and the aspirations of Indigenous people relates to the manner in which he explicitly divorces nationality and nationhood from territorial location. He views national affiliation as personal and nationality as a matter of collective thought and feeling. It follows that, for Renner (above: 25), ‘there is no necessary connection between the consciousness of nationality and a particular territory’. However, this conception of the nation as a personal association is deeply at odds with the culture of many Indigenous and tribal peoples. Long after the establishment of industrial economies and liberal democratic states on their ancestral territories, land and the relationship to land remain fundamental to their cultural and personal identities. For example, in the context of arguing that distinctive Aboriginal voices in Canadian law and politics are essential if relations of mutual respect are to be established along the lines recommended by the 1996 report of the Royal Commission on Aboriginal Peoples, Dale Turner (2001:329) explains that he uses the concept of Aboriginal sovereignty ‘to capture, albeit crudely, the unique relationship that Aboriginal peoples have to their territories’. For Australian Aboriginal peoples too, the connection with country is fundamental to cultural identity. Consider the following statement of the Aboriginal conception of law, put forward by Galarrwuy Yunupingu in the context of widespread debate over the nature of native title and the legal conditions under which it could be extinguished by the territorial sovereign:

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A simple white man’s paper cannot extinguish a traditional law, the culture, the language, the painting on the rocks, the painting on the barks. A white man’s law cannot take my language away. A white man’s law cannot take my knowledge of the land… The Aboriginal Law still stands where it cannot be seen. It’s in the river, it’s in the billabong, it is in the rock, it is in the caves, it is in the sea, the law still remains. (Calley and Pearson 1997:68–9) It is apparent that, contrary to Renner’s claim, for many Indigenous peoples there is a necessary connection between their consciousness of identity as a people and as a nation, and their relationship to a particular territory. Renner is of course not completely insensitive to the historical affection that particular nations have for their ancestral territories. He recognizes that, from the point of view of the internal organization of nation and state, ‘the fact that an area has always been settled by a particular nation is of the utmost importance’ (Renner above: 38). He proposes to take this into account by allowing national rights to prevail ‘in the areas that are the historical and present domiciles of the nations’, and by suggesting that the extent of applicability of national rights would elsewhere be determined by the density of settlement (ibid.). However, this recognition of a de facto historical connection between particular nations and their territories still takes place on the basis of the apparently legitimate sovereign state control over the territory in question. For many Indigenous peoples dealing with the legacy of colonization, it is precisely the legitimacy of such territorial sovereignty that is in question. The territorial claims of the British Crown over much of western Canada and all of Australia rest on the discredited notion that the land was terra nullius for legal purposes. In turn, the doctrine of terra nullius rests on prejudicial ideas of the superiority of European law and culture over those of the Indigenous inhabitants. It is therefore not surprising that in Australia, as elsewhere, Indigenous leaders regularly reaffirm the sovereignty of their peoples over traditional lands and territories (Dodson 2000:266; Behrendt 2003:96–7). Compelling as it may be, this response to Renner on the basis of traditional Indigenous culture and its relation to land perhaps does not completely rule out non-territorial nationality as a constitutional means to accommodate a form of Indigenous sovereignty. After all, it might be argued, we should not overstate the significance of these cultural differences with regard to the present situation of many Indigenous peoples, for at least two reasons. First, it is a consequence of colonization in many areas that populations have been removed from their ancestral lands. It is also true that, for economic reasons, Indigenous peoples have become increasingly urbanized. In Australia, the majority of the Indigenous population live in coastal cities, and those who do remain on or near traditional lands often suffer from lack of educational and employment opportunities. In these circumstances, Renner’s proposal that national administrations should cater to geographically remote members seems well suited to the needs of Indigenous people. The provision of national resources to those who chose to relocate for economic reasons would help to maintain the integrity of their culture and offer some protection against involuntary assimilation. Second, it is already true that Indigenous people rely upon a variety of legal institutions, political and corporate structures to protect their interests. Aboriginal or

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native title, democratically elected representative bodies, land councils and regional authorities are all foreign to traditional culture but they still serve to regulate the interactions between Indigenous and Western cultures. Thus, in Aotearoa/New Zealand, Māori self-determination is expressed not only through traditional tribal structures but also through non-traditional organizations such as Urban Māori Authorities. The fact that these are not territorially based organizations and that they do not conform to traditional cultural structures is no reason to reject them. In political theoretical terms, they are no different from the range of private associations that individual citizens are at liberty to form and to leave. Why then should non-territorial but constitutionally recognized nations not be able to serve the same function? Underlying this argument is practical political concern for the well-being of Indigenous peoples. The key issue is not faithfulness to traditional culture and its territorial basis but outcomes for Indigenous people and their ongoing culture in the circumstances in which they currently live. Thinking along these lines leads some contemporary Aboriginal leaders and organizations to conceive of sovereignty in more pragmatic terms as the effective capacity to exercise control over the condition of Indigenous lives: Sovereignty is independent action. It is Aborigines doing things as Aboriginal people, controlling those aspects of our existence which are Aboriginal. These include our culture, our economy, our social lives and our Indigenous political institutions. Wrapped up in all this is health, housing, education, legal matters and land rights, and many other things…[when] Aboriginal people are able to exercise absolute control over these essential areas without penalty being imposed by nonAboriginal society, then our Aboriginal sovereignty will be recognised… Aboriginal people can exist as sovereign, identified, Indigenous nations within the Commonwealth of Australia. (National Aboriginal Island Health Organisation in Behrendt 2003:100) Understood in these terms, much of what is claimed under the name of Aboriginal sovereignty perhaps could be achieved through the non-territorial national autonomy proposed by Renner. Even so, aspects of Renner’s constitutional proposals still leave cause for concern, in relation to both territorial and deterritorialized Indigenous peoples. The most important and most difficult question is, as he recognizes, which agency is responsible for which concrete matters. The division of labour that leaves economic matters in the hands of the state and cultural matters in the hands of nations may lead to unsatisfactory outcomes for economically disadvantaged Indigenous peoples. To take one example, Renner argues that the personality principle has the potential to contribute greatly to peace, since there would no longer be claims that the taxes of one group were being used to fund the activities of another. However, he also adopts a strong user-pays approach to the provision of national services such as education. ‘Let every nation build theatres and schools, as many as they want—the more, the better—but let each pay for its own’ (Renner above: 38). While this might indeed remove a potential cause of conflict between national groups, it might do so at the cost of entrenching existing inequalities of

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wealth and opportunity. Alternatively, it might remove one cause of conflict only at the cost of raising another, namely the issue of ownership of wealth-generating resources. Renner’s division of responsibility between state and nation prejudges what is often at issue between Indigenous communities and colonial state governments, particularly in relation to the forms and accompanying entitlements of land ownership. The issue of control over land and resources is at the heart of struggles between Indigenous peoples and colonial state governments. It has been pursued extensively through the courts in recent decades as Indigenous peoples have sought to extend, while governments have sought to restrict, the scope of Aboriginal or native title to land. It has been a key issue in treaty negotiations in Canada and in compensation claims in Aotearoa/New Zealand. For the most part, the outcomes have been at the expense of Indigenous sovereignty, as the courts and governments have reserved the right of the territorial sovereign to exercise control over land and its resources in the interests of the broader community. Since these are normally economic interests associated with the exploitation of natural resources, they fall within the sphere of legitimate state interests in Renner’s model. On this issue, there is no reason to think that his approach would not provide support for the position of the colonial state governments. From the point of view of Indigenous peoples, by contrast, the location of ultimate authority over territory is often crucial to the survival of their culture and identity. Their capacity to exercise and develop cultural and political autonomy will be directly linked to the economic resources controlled by the nation. The examples of shared sovereignty in the United States and elsewhere might show that Indigenous consciousness of a distinct nationality tied to the land need not assume the constitutional form of independent statehood. However, it does not follow from this that Aboriginal sovereignty should not imply exclusive control over traditional lands. This is the point at issue in the description of Aboriginal law put forward by Yunupingu above. In the context of legal and political debates over native title and the ultimate source of the authority to ‘extinguish’ the Aboriginal relationship to land, his view is that Aboriginal law exists independently of Australian law. Traditional obligations to country are a matter for Indigenous law, whether or not these are recognized by the colonial legal order. This implies a genuine legal pluralism according to which there would no longer be just one body of AngloAustralian law but a multiplicity of ‘law ways’. Acceptance of this view would imply a profound transformation in the nature of the state and its ‘internal sovereignty’. It would imply distinct internal limits to the authority and jurisdiction of the territorial state over matters related to the material life of its citizens. Control over the exploitation of land and other resources would not automatically be the province of the state: at the very least, negotiation and accommodation between the interests of the Indigenous nation and the territorial state would be required. In this regard, as in those mentioned above, Renner’s model does not address the particular complexity of the relationship between colonial states and their Indigenous nations within.

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Notes 1 As Nimni puts it, ‘The model proposed by Renner and Bauer is well suited to minorities that demand significant autonomy but for a variety of reasons cannot have separate states. A prime example of such minorities is indigenous peoples in liberal settler societies’ (above: 11). ‘Indigenous groups invoke centuries of displacement, settler invasion, cultural destruction and often genocide to justify their demands for national and cultural autonomy with differential rights. Indigenous demands for self-determination rarely request territorial sovereignty even if they draw their legitimacy from strong affinities with homelands. In states that are often violent intrusions into their ancestral homelands—an intrusion that made them scattered minorities—indigenous peoples demand national autonomy and public recognition of their way of life’ (above: 8). Bill Bowring (2002:238) also comments on the similarity between Renner’s model and those proposed for indigenous peoples.

References Behrendt, L. (2003) Achieving Social Justice, Sydney: Federation Press. Bowring, B. (2002) ‘Austro-Marxism’s Last Laugh? The Struggle for Recognition of National Cultural Autonomy for Rossians and Russians’, Europe-Asia Studies, 54(2):229–50. Calley, K. and Pearson, N. (eds) (1997) The Wik Summit Papers, Cairns: Cape York Land Council. Dodson, P. (2000) ‘Lingiari: Until the Chains are Broken’, in Michelle Grattan (ed.), Essays on Australian Reconciliation, Melbourne: Black Inc. Maaka, R. and Fleuras, A. (2000) ‘Engaging with Indigeneity: Tino Rangatiratanga in Aotearoa’, in D.Ivison, P.Patton and W.Sanders (eds), Political Theory and the Rights of Indigenous Peoples, Melbourne: Cambridge University Press. Patton, P. (2001) ‘Constitutional Paradoxes: Native Title, Treaties and the Nation’, AIATSIS seminar series. Available online at (accessed 8 May 2004). Patton, P. (2002) ‘Réconciliation, droits aborigènes et paradoxe constitutionnel en Australie’, in I.Schulte-Tenckhoff (ed.), Altérité et droit: contributions à l’étude du rapport entre droit et culture, Brussels: Editions Bruylant. Reynolds, H. (1998) ‘Sovereignty’, in N.Peterson and W.Sanders (eds), Citize8nship and Indigenous Australians: Changing Conceptions and Possibilities, Melbourne: Cambridge University Press. Taiaiake, A. (1999) Peace, Power, Righteousness: An Indigenous Manifesto, Toronto: Oxford University Press. Tully, J. (1995) Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge: Cambridge University Press. Tully, J. (2000) ‘The Struggles of Indigenous Peoples for and of Freedom’, in D. Ivison, P.Patton and W.Sanders (eds), Political Theory and the Rights of Indigenous Peoples, Melbourne: Cambridge University Press. Turner, D. (2001) ‘Vision: Towards an Understanding of Aboriginal Sovereignty’, in R.Beiner and W.Norman (eds), Canadian Political Philosophy, Oxford: Oxford University Press.

8 Prospects for Romani national cultural autonomy Ilona Klímová-Alexander This chapter explores the applicability of the model of national cultural autonomy as devised by Karl Renner in his seminal work State and Nation to the particular case of the world’s diverse Romani communities. It evaluates the pros and cons of the model for the solution of identity-related problems of Romani communities and the feasibility of applying the model in individual countries where numerically significant Romani communities live as well as at the European level. The aim of this chapter is to challenge political theorists who have until now largely ignored the Romani case to reconsider their models and principles in order to accommodate the needs and demands of this worldwide diaspora. The starting point of this chapter is that at least in theory the Roma might be the most suitable candidates for the implementation of Renner’s non-territorial (personal) autonomy, for a number of reasons. First, transnational Romani elites are becoming more and more vocal in voicing Romani demands for self-determination. Second, their dispersal (both within particular states and throughout the world)1 effectively disqualifies them from pursuing demands for territorial autonomy. Thus, the elites are actually coaching their demands in terms of non-territorial autonomy. Third, none of the models or principles advocated by Western liberal theorists can be usefully applied to the Romani case (Kymlicka 2000:204).2 Fourth, Renner’s model intends to empower weak and marginalized members of national groups and is therefore highly relevant to the Roma. Let me now briefly elaborate on three of these reasons.3

Requests for non-territorial self-determination by transnational Romani elites In recent years transnational Romani elites have resolutely and publicly declared that the Roma consider themselves to be a non-territorial nation and have embraced selfdetermination as the guiding principle for Romani political mobilization.4 Romani selfdetermination is demanded at both the state as well as transnational levels. At the state level, Romani elites are calling for recognition as a national minority with the right to representation in the political structures of the state. At the transnational level, they demand recognition as a nation in full equality with other nations (here meaning nationstates) and the right to representation in international organizations. The advocated form of self-determination is predominantly non-territorial. Romani elites are calling neither for a Romani country nor for autonomous Romani areas within the existing states.5 The demand for self-determination is strongest at the transnational level, since at the state level there are significant divisions between those Romani elites advocating recognition

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of Romani cultural distinctiveness and those advocating downplaying differences for the sake of rapid integration. No public document has so far spelled out how in practical terms Romani elites envision the non-territorial self-determination of Romani communities. However, some ideas were elaborated in a conference presentation by Sean Nazerali, former political adviser of Emil Scuka, President of the International Romani Union (‘IRU’).6 Although the ideas in this chapter are personal to Nazerali, they reflect the debate among the leading figures of the IRU. According to Nazerali, the Roma are calling for ‘a territoryless state’ which consists of a government and population, but no specific territory. Such a state is sovereign and autonomous, but shares sovereignty with a wide variety of institutions at other levels (country-wide, regional and global), according to the principle of personal autonomy. This principle allows communities (in this case the Romani state/nation) to regulate certain matters for all their members (determination of membership is left to voluntary self-identification), regardless of where they live. This personal autonomy extends to social and cultural matters as well as administration of justice. The autonomous competencies are enshrined in special agreements/treaties with local and country-wide governments and intergovernmental organizations. The status of a territoryless state provides for negotiations on equal terms with territorial states, within the UN fora and elsewhere.7 This way the territoryless Romani state can not only draw attention to the violations of Romani rights at international fora, but, unlike Romani NGOs, it can also initiate legal proceedings by (for example) bringing petitions to the International or European Court of Justice or by referring the cases to the UN Committee for the Elimination of All Forms of Racial Discrimination (‘CERD’). Nazerali argues that, with this scheme, the Romani ‘state’ could help strengthen international human rights mechanisms, which nation states are reluctant to use fully. In addition, it could be an engine for creating transnational administration—e.g. world army, system of justice, taxes and electoral procedures. It would lead the way towards transforming the international system into a system where all social and cultural matters are left to nations (territoryless states) to be administered through personal non-territorial autonomy, while other matters are administered through territorial units. The territorial units would function on many levels (local, country-wide, regional and global), depending on the nature of the issues (e.g. environmental and security issues would be delegated to the global level). People would be citizens of both their nations and territorial units (Nazerali 2001).

The failure of political theorists to address the Romani case This Romani call for non-territorial self-determination has so far been largely ignored by academics.8 Normative theorists have stayed away from suggesting suitable political arrangements for the Roma (Kymlicka 2000:204). The only discussion of the Romani political experience from a normative perspective that I am aware of concentrates on the Czech Republic and ends with the conclusion that Roma should essentially be integrated in the same way as immigrant minorities (Barsa 2002). Given the fact that many Romani groups have lived in their respective countries for a number of centuries (such as the Czech Republic: Necas 1997), this solution seems neither fair nor very progressive.

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Academic writing thus does not take us far when considering Romani self-determination. Yet implicit support for Romani non-territorial self-determination echoes through the writings of Rainer Bauböck, Geneviève Nootens, Ephraim Nimni and Will Kymlicka. None of these authors specifically examines the Romani case. However, Bauböck (2001) argues that, although territorial solutions to demands for self-determination are generally preferable to non-territorial solutions, in the case of dispersed and divided nations or minorities supplementing territorial solutions by non-territorial federacy arrangements might be desirable. Similarly, Nootens (above: 56) argues that: Territorial autonomy may be more appropriate for minorities which are territorially concentrated; personal autonomy may be an interesting solution for those groups which are not (or only partly) territorially concentrated but which claim some degree of institutional separateness and self-administration. Nimni (1999:297) believes that models of non-territorial autonomy (in particular those of Renner and Bauer) are ‘well suited to minorities that demand significant autonomy but for a variety of reasons cannot have separate states’. Lastly, Kymlicka (below: 146) concedes that ‘NCA [national cultural autonomy] may well offer a viable long-term approach in certain contents’, with the Roma being ‘perhaps the most likely case’. One of the reasons for Kymlicka’s scepticism towards NCA is that he believes that minorities might not accept it as an adequate substitute for territorial autonomy (Kymlicka below: 146). However, as I explained above, Roma are not making territorial claims and the idea of NCA is welcome among their elites.

Romani marginalization as a distinguishing factor Walter Kemp (below: 210) argues that in the contemporary world ‘there is a limited need for the type of national cultural autonomy foreseen by Renner’ because minorities are no longer powerless and marginalized. The situation of minorities has improved significantly with the development of minority rights (Kemp below: 209). While I agree that generally this is true, I believe that Roma may be one of the limited cases where such a need arises. They are distinguished from most national minorities in Europe by an unusually high degree of marginalization, as was acknowledged in a United Nations Development Programme (2003) report entitled Avoiding the Dependency Trap. Thus, without giving either my support or disapproval for the goal of Romani nonterritorial self-determination, I believe that in this case models of non-territorial selfdetermination are worth exploring.

Suitability of Renner’s model for the Roma Let me now specifically consider Renner’s model. I will not deal with general criticism of Renner’s model and its applicability to the contemporary world as most of the other chapters in this volume advance sophisticated critiques and cover the bulk of practical

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and theoretical objections or complications. I will address only the points that I see as specifically or particularly relevant to the Romani case. There is a common misconception that Renner’s model does not allow for diasporas or scattered minorities and that Renner himself admitted as much (Plasseraud 2000). On the contrary, Renner (above: 44) did consider the application of his model to national communities that ‘were too sparsely structured’. I believe that, had he lived today, Renner would concede that his non-territorial model might be relevant in the Romani case.9 He argued that, while the territorial principle is one of the conceivable ways of solving the national question (Renner above: 30), it was not a formula for solving the nationalities question within the multinational Austrian state (ibid.). Thus he did not believe that the territorial principle can work well in states that emerged from ethnically mixed empires (such as the Ottoman or Austro-Hungarian Empires). Since the majority of the world’s Roma live in states which emerged from these two empires, Renner would probably argue that the territorial principle is also not a formula for solving the nationalities question in those states. Let me first consider Renner’s concept of nation and nationality. I find it much less restrictive than the majority of other definitions and much more applicable to the Romani case. Unlike other Marxists (e.g. Karl Kautsky and V.I.Lenin), Renner would not deny Roma the status of nationality simply because they lack a particular territory of their own. As he argues, ‘there is no necessary connection between consciousness of nationality and a particular territory’ (Renner above: 25). Renner (above: 26) would also not require Roma to satisfy any objective criteria for nationhood, as for him nation is simply ‘a community of intellectual and emotional life, that is, a purely inward community’. According to Renner (above: 23), the nation should not be territorially limited as ‘no nation can limit itself to specific narrowly defined frontiers [due to]…internal migrations and the extensive economic contact linking the broadest possible circles of humanity’. Being limited by borders is one of the things Romani people resist and detest the most.10 Furthermore, nations should not be constituted as states but as peoples (Renner above: 29). I can see this resonating with the Romani elites. The three major aspects of Renner’s model—political participation and educational and legal systems—are somewhat geared towards Romani demands. The right to live according to the nation’s own laws (guaranteed in Renner’s model) would certainly be welcomed by some traditional Romani groups who practise Romani law, which often clashes with the legal systems of the countries where they live (Sutherland 1997; Weyrauch 1997). Similarly, travelling teachers and judges providing schooling and legal help and services in the Romani language and/or according to Romani customs and traditions (Renner above: 44) would be welcome in many Romani communities, as the transnational Romani movement has demanded similar services on a number of occasions (Klímová 2003: chapters 5, 6, 8). In terms of political participation, Renner’s model is again often misinterpreted as not considering the need for ethno-national representation at the federal level where foreign and military affairs, joint finances, economic and social welfare and justice are dealt with (Eide 1998:266). On the contrary, Renner (above: 34– 5) has dealt with the incorporation of national communities in the territorial (federal) legislation. Renner’s definition of national communities as electoral districts whose representatives would gain seats in one chamber of the territorial legislation11 might help Romani candidates overcome the hurdle of having to gain 5 per cent of all votes within a particular state (if they are standing on a Romani party electoral list) in order to gain

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parliamentary representation, as is required by electoral law in many European countries. (In most countries, even on the highest estimates, the Romani population forms less than 5 per cent, thus gaining seats through Romani parties is not realistic: Klímová 2001.)

Problems with Renner’s model in relation to the Roma One of the major problems that I see with Renner’s model in relation to the Roma is that he assumes that such a model gives equal power to all nationalities. He argues that each nationality would be ‘incapable of oppressing foreign minorities because the other nationality as a totality would respond with the repression of the former’s own minority’, since all nationalities would be majorities in some regions but minorities in other regions (Renner above: 31). The ability to press for each other’s good treatment of minorities is not necessarily equal for all nations who are majority somewhere and minority elsewhere. It still depends on the political (and economic) clout that each nation has. At the moment the Roma are far from developing significant political power. Without intending to sound patronizing, some kind of affirmative action may be needed before Roma are ready to benefit fully from the advantages of national cultural autonomy. At the moment, most Romani communities have neither the financial nor the human resources to constitute viable national cultural autonomy corporations or associations as Renner envisaged them. Even if Romani communities have the right to raise their own taxes, given the low economic status of the majority of the world’s Roma, the Romani community would not have enough resources to administer their national cultural autonomy effectively. Some kind of affirmative action would be needed first to raise the self-sufficiency of the community. The second problem is related to Renner’s request for officially declaring Romani nationality in order for the model of Romani national autonomy to function. Besides the fact that such a requirement goes against many countries’ legal and constitutional prohibition on collecting data by ethnicity, Roma all over the world are reluctant to declare themselves as Roma. This is partly due to the stigma attached to Romani-Gypsy identity and partly to the history of persecution, annihilation and discrimination (some of which was aided by the collection of statistics about the Roma (Project on Ethnic Relations 2000)). In addition, the level of cultural and political identity awareness is very low among the majority of the world’s Roma. Primary loyalty is often to one of the numerous Romani groups living within the territory of each state rather than to ‘the Romani nation’ as a whole. Such fragmentation further dilutes the small chance the dispersed Romani communities have of creating a national community, canton and nation as Renner (above: 31) envisages. A serious nation-building programme is thus a precondition for Romani national cultural autonomy. The transnational Romani elites are aware of this and themselves recognize that the support for their ‘non-territorial Romani state’ would at first be small, as only limited numbers would be willing to declare themselves as Roma. However, they hope that support would grow over time (Scuka 1998). Nevertheless, many doubt that the current transnational Romani elites have either the ability or even the serious intention of attracting a base of support among the Romani people, owing to their apparent preoccupation with elite interests (Kovats 2003:4).

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Third, as with many current provisions for minority protection, Renner’s model deals primarily with cultural and linguistic issues. It also deals with autonomy of legal jurisdiction (in contrast to typical current provisions for minority protection). While a number of Romani groups who are currently practising their own laws outside the legal framework of the states where they live and without its sanctioning would welcome autonomous legal jurisdiction, cultural and linguistic rights are so far mostly demanded only by (some) Romani elites. For example, there is no mass demand for separate Romani schools. The main concern of the Romani masses would be to have their basic individual economic and social rights and needs respected and fulfilled, before they can worry about cultural as well as civil and political rights or collective rights. Since Renner’s ‘model is based on the premise that the most controversial issues in the relationship between ethnic and national groups are issues concerning language, education and the recognition of cultural rights in the public domain’ (Nimni below: 239), it does not address the most immediate concerns of most Romani people—the improvement of their economic and social rights. Thus Renner’s model is perhaps premature for the Roma. Once again, some kind of affirmative action may be needed before Roma as a collectivity will be in the position to worry about their ‘national rights’.

Application of Renner’s model at the state level I am not very optimistic about the feasibility of the application of Renner’s model to Romani advantage at the state level in the current political climate. Although ‘[c]onstitutional and statutory laws on cultural autonomy have in recent years been adopted in a number of countries’ such as Estonia, Latvia, Slovenia, Croatia, the Russian Federation and Hungary (Eide 1998:256), they do not bear much resemblance to Renner’s original model, most importantly in the fact that the personal autonomy is limited only to cultural matters and does not extend, for example, to the administration of justice. So far, under these new provisions, Roma have been able to establish minority self-governments or national cultural autonomies only in Hungary and the Russian Federation, with mixed results at best. In Hungary, the Romani minority selfgovernments’ powers are restricted to consent rights over matters of education, culture, local media, Romani traditions and the use of minority languages (and to consultation rights on other matters), yet in practice the consent is often compelled. While on one hand this system ensures wide participation of Roma in public affairs, on the other hand it channels Romani representation into structures that are essentially consultative and allows the Hungarian government to deal exclusively with the National Gypsy Selfgovernment and ignore alternative Romani organizations attempting to influence the country’s policy on Roma. In addition, at the local level even the consultative role of the Gypsy self-governments is often not taken seriously by some local mainstream governments, which do not take into consideration the opinions expressed by their representatives. As the election of the local minority self-governments is based on universal franchise rather than the ethnic identity of the voters, suspicions have been raised that many non-Roma participate in the elections and that in some localities they significantly influence the results. The estimates of the participation of Hungarian Roma in these elections are also rather low.12 In the Russian Federation, the status of national

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cultural autonomy given to an association and the rights associated with it are in practice hardly distinguishable from those of regular NGOs (Bowring below: 202, 203). Thus the rights that Roma gained in the Russian Federation are similar to those that many Romani NGOs have in other (e.g. Central) European countries. I also share the concern of Kemp and others that, at the state level, Renner’s model might foster national exclusivity and crystallize ethnic divisions (Kemp below: 214).

Application of Renner’s model at the supra-state (European) level I would be much more inclined to give thought to adopting Renner’s model to the suprastate (e.g. European) level. Renner believed that world peace could be achieved ‘through the integration of the nations as distinct juridical subjects in a higher (supranational) legal order’ (Nootens above: 51). While Renner referred to the supranational legal order within an empire, in today’s world we can perhaps consider the applicability of his recipe for peace with the (not quite yet) supranational (supra-state) European Union (‘EU’). Such an endeavour finds support in the contribution of Kemp (below: 214), who is generally very critical of Renner’s model as being a recipe for fostering national exclusivity and crystallization of ethnic divisions, but concedes that it might work on the level of the EU. The relevance of Renner’s model to the EU is considered by Michael Keating in this volume; although he decides against supporting the idea of non-territorial autonomy I nevertheless believe that there could be a space for experimenting with Renner’s model within the EU. In particular, the idea of a non-territorial Romani nation might become realistic within the framework of the ever-closer integrating EU. As Guibernau (1999:157) points out, within the EU, ‘[t]he nation-state’s territory is steadily losing its relevance as a frame for political, economic, social and cultural life’ and ‘[n]ation-states will in time turn into nations without states…since they are destined to surrender fundamental aspects of their sovereignty to an EU Parliament or Government’ (Gibernau 1999:171). At the European level, Roma form a relatively sizeable population, with estimates ranging from 7 million to 9 million people (Liegeois and Gheorghe 1995) and the Romani elites are less split in their demands for self-determination. As Nimni (1999:298) points out, Renner’s model allows for non-state players in international relations, and becoming players in international relations is something that the transnational Romani elites have sought for decades and are more determined to achieve today than ever before. In summary, one of the aims of this chapter is to challenge political theorists to reconsider their models and principles in order to accommodate the needs and demands of the Romani community. The ideas presented are the result of three years of empirical research into transnational Romani political mobilization and are thus based on empirical observation rather than theoretical considerations. I conclude that in the Romani case the model of non-territorial autonomy is worth exploring due to the nature of the Romani political demands for self-determination and the inapplicability of the territorial principle.

Notes 1 People of Romani origins can be found on all the world’s continents.

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2 In addition, one could also argue that Renner’s model based on personality principle is more suitable for communities with nomadic traditions (Renner above: 27). However, I hesitate to make this link, as there is neither political nor academic consensus on the extent of the role that nomadism has played in Romani communities. The image of nomadism is often unfavourably invoked in relation to the Roma and I do not want to reinforce that view. 3 I will not go into detail in relation to the second reason—the dispersal of Romani communities. No reliable data on the dispersal of Romani communities throughout the world exist. There are some statistical data about the dispersal of Roma within Europe and can be easily found on a number of websites, including those of the European Roma Rights Centre at (accessed 8 May 2004). 4 See, for example, the following documents: Document 1: Declaration of Nation; Document L3B: Presentation on the behalf of the International Steering Committee before the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR) Plenary; Document K2: Recommendations for the NGO Forum Programme of Action (WCAR); Document 13: The Plan of Action (the International Youth Summit); Document H1.4: The Final Draft (of the WCAR NGO Declaration); Document C3.2: Quito 2001 Roma Declaration; Document C3.1: Action Plan Forum of the Americas for Diversity and Plurality (Klímová 2003: Appendix; Romani Activists Network on Legal and Political Issues 2000; Kawczynski 2000). The author is well aware of the fragmentation of the transnational Romani political movement and the competing paradigms in which ‘Romani demands’ are framed. Nevertheless, the concept of self-determination is now promoted by representatives of all the major transnational Romani political factions (Project on Ethnic Relations 2003; Sobotka 2003:6–8). 5 While at times the transnational Romani elites did entertain the idea of a Romani state (Klímová 2003:[2.3.1] and [5.2]), such a demand has not been seriously advocated in the public political sphere since the 1970s. Plans for a Romani territory (but not necessarily a homeland for the majority of the world’s Roma) are, however, occasionally still discussed among Romani elites, for example in relation to the Romani suburb of Skopje Shuto Orizari in Macedonia or the possibility of creating a Romani enclave in Kosovo under the interim administration. Similarly, proposals for relocating Roma into depopulated parts of various (mostly Central and Eastern European) countries (in the fashion of creating reservations for them) are still advanced by prejudiced mainstream local politicians from time to time. 6 The IRU is an umbrella organization uniting a significant number of the world’s Romani organizations and has a special consultative status at the UN Economic and Social Council. It first gained the roster consultative status in 1979 and in 1993 was upgraded to the special consultative status (Klímová 2003:[4.3.4]). 7 Having a voice in the United Nations has been one of the main goals of the transnational Romani movement, especially the IRU (and its predecessors), since the 1960s. Although so far only limited influence has been gained through an NGO consultative status, the dream has always been of full membership, or at least permanent observer status, at the General Assembly (Klímová 2003:[4.2]). 8 The only reaction that I am aware of is the completely dismissive response of political scientist Martin Kovats, who argues that this call for non-territorial self-determination is nothing but ‘the promotion of an authoritarian nationalist tradition in which a political community is constructed through the manipulation of vulnerable people, to secure the interests of an unaccountable elite’ (Kovats 2003:4). Although some of Kovats’s scepticism towards the Romani elites may be justified, his alternative to Romani self-determination is perhaps even more utopian than the dream of a Romani seat in the United Nations. Kovats hopes for a common struggle of the world’s (or at least each state’s) underclass, which Roma could join. Given the degree of prejudice against the Roma among ‘non-elite people’ (to use Kovats’s term), his suggestion seems far-fetched. Although prejudice against the Roma is widespread and no part of the society is immune to it, from my experience it is much

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stronger and more overt among people with lower educational backgrounds. Furthermore, as Nimni (above: 9–10) points out, ‘the NCA model can counterbalance the excessive emphasis on elites through the need to develop organic communities with collective rights and collective juridical personae, something that will diminish the role of elites and allow a more inclusive pattern of internal democracy’. Thus, should Romani self-determination take the form of NCA, Kovats need not worry about unaccountable elites. 9 For example, as one of the main criteria by which Renner (above: 21) distinguishes between nationalities (eligible for national cultural autonomy) and national groups (non-eligible) is a developed national literature, perhaps the Romani people are moving towards nationhood, as literature written in Romani dialects and on Romani themes is rapidly increasing despite the fact that Romani was originally an oral language (see Hancock et al. 1998). 10 This statement is based on my interaction with a number of members of various Romani communities. 11 I say ‘might’ because it is not sure that a majority of Roma would vote for Romani candidates (see later in this chapter). 12 A number of other works address these issues (Klímová 2003:122–3).

References Barsa, P. (2002) ‘Ethnocultural Justice in East European States and the Case of the Czech Roma’, in W.Kymlicka and M.Opalski (eds), Can Liberal Pluralism be Exported? Western Political Theory and Ethnic Relations in Eastern Europe, Oxford: Oxford University Press. Bauböck, Rainer (2001) Multinational Federalism: Territorial or Cultural Autonomy? Willy Brandt Series of Working Papers in International Migration and Ethnic Relations 2/01. Available online at (accessed 8 May 2004). Eide, A. (1998) ‘Cultural Autonomy: Concept, Content, History and Role in the World Order’, in M.Suksi (ed.), Autonomy: Applications and Implications, The Hague: Kluwer. Guibernau, M. (1999) Nations without States, Cambridge: Polity Press. Hancock, I., Dowd, S. and Djuric, R. (eds) (1998) The Roads of the Roma: a PEN Anthology of Gypsy Writers, New York: PEN American Center. Kawczynski, R. (2000) ‘Report on the Condition of Roma in the OSCE Region’, File No. 166, Office of Democratic Institutions and Human Rights, Organization for Security and Cooperation in Europe, Warsaw. Klímová, I. (2001) ‘ODIHR Project: Roma and Elections’, paper prepared for the Organization for Security and Co-operation in Europe Conference on Romani and Sinti Affairs, Bucharest, 10–14 September. Available online at (accessed 8 May 2004). Klímová, I. (2003) ‘The Romani Voice in World Politics’, unpublished thesis, University of Cambridge. Kovats, M. (2003) ‘The Politics of Roma Identity: Between Nationalism and Destitution’, Open Democracy. Available online at (accessed 8 May 2004). Kymlicka, W. (2000) ‘Nation-building and Minority Rights: Comparing West and East’, Journal of Ethnic and Migration Studies, 26(2):183–212. Liegeois, J. and Gheorghe, N. (1995) Roma/Gypsies: A European Minority, London: Minority Rights Group International. Nazerali, S. (2001) ‘The Roma: A Nation without a State’, paper presented at the Democracy Unrealized conference, Vienna, 23 March.

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Necas, C. (1997) Historicky kalendar: dejiny ceskych Romu v datech (Historical Calendar: History of Czech Roma in Dates), Olomouc: Vydavatelstvi Univerzity Palackeho. Nimni, E. (1999) ‘Nationalist Multiculturalism in Late Imperial Austria as a Critique of Contemporary Liberalism: The Case of Bauer and Renner’, Journal of Political Ideologies 4(3):289–314. Plasseraud, Y. (2000) ‘How to Solve Cultural Identity Problems: Choose your own Nation’, Le Monde diplomatique, May. Available online at (accessed 8 May 2004). Project on Ethnic Relations (2000) Roma and Statistics, Princeton, NJ: Princeton University. Project on Ethnic Relations (2003) Roma and the Question of Self-determination: Fiction and Reality, Princeton, NJ: Princeton University. Romani Activists Network on Legal and Political Issues (2000) Project of a FrameStatute (Moral Charter) of the Romani People in the European Union. Available online at (accessed 8 May 2004). Scuka, E. (1998) ‘Projekt neteritorialni republiky’ (Project of a Non-territorial Republic)’, paper on file with the author. Sobotka, E. (2003) ‘Roma, Public Policy and Ethnic Mobilisation in National and Transnational Context’, paper presented to the fifty-third annual conference of the Political Studies Association, Leicester, 15–17 April. Sutherland, A. (1997) ‘Complexities of US Law and Gypsy Identity’, American Journal of Comparative Law, 45:231–42. United Nations Development Program (2003) Roma Regional Human Development Report. Available online at (accessed 8 May 2004). Weyrauch, W.O. (1997) ‘Romanya: An Introduction to Gypsy Law’, American Journal of Comparative Law, 45:1–10.

Part III National cultural autonomy and contemporary debates on minority nationalism and multiculturalism

9 Renner and the accommodation of substate nationalisms Will Kymlicka The vision of non-territorial national cultural autonomy (‘NCA’) elaborated in Renner’s article is motivated by a humane impulse, to avoid the cruelties and injustices often associated with nationalist conflict. His diagnosis of these dangers is insightful. However, I do not believe that his proposed remedies are plausible. Or, more exactly, his remedies cannot serve the purposes that Renner himself intended. Renner hoped that his model would provide a way of dealing with a very specific and serious challenge to modern states, namely the presence of powerful sub-state nationalist movements that have the capacity to sustain secessionist movements, and thereby destabilize the state, and perhaps even generate civil war. In particular, he was worried about the progressive disintegration of the Habsburg Empire as different national groups claimed the right to govern themselves on their own historic territory. This process had already started in 1867 with the successful demand of the Hungarians to establish a separate Hungarian-speaking government in Budapest, largely independent of the original German-speaking imperial government in Vienna. By the time Renner was writing, in 1899, this process of territorial division was threatening to multiply, pushed by the territorial claims of the Czechs, Poles and Slovenians in the German-ruled part of the Habsburg Empire, and by the territorial claims of the Romanians, Slovaks, Serbs and Croatians in the Hungarian-ruled part of the empire. Renner hoped that his model could satisfy the legitimate aspirations of such groups on a non-territorial basis without having to further carve up the empire into separate and self-governing national homelands. Can Renner’s model deal with this challenge of accommodating national groups who form a minority within a larger state, but who are nonetheless very sizeable (several hundred thousand or several million strong), constituting a majority on what they take to be their historic homeland, with the capacity for secessionist mobilization? I do not believe so. Of course, since his model was never adopted by the Habsburgs, we cannot know what impact it would have had on the ultimate demise of the empire. However, nothing that has happened in Europe since 1900—or indeed elsewhere around the world—suggests that his model can provide an adequate response to the claims of such sizeable and territorially concentrated sub-state nationalist movements. What such groups want, and arguably need, is a different approach involving some form of territorial autonomy over what they view as their historic homeland, typically through some form of ‘multi-nation federalism’ (Stepan 1999; Kymlicka 2001: chapter 5; Keating 2001). Renner wanted to avoid this, but I do not believe it can be avoided, except through the use of force and authoritarian rule. Experience to date suggests that the most viable

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democratic settlement for such sizeable and potentially secessionist national groups involves territorial self-government. I believe that this is the clear lesson from the accommodation of sub-state nationalism in the Western democracies, and I see no reason to think that the lesson does not also apply to Central and Eastern Europe, or elsewhere around the world. I will argue that Renner’s model is best understood not as an alternative to the territorial accommodation of sub-state nationalisms, but rather as a potential supplement to it. Once the territorial issues have been settled in a way that fairly accommodates national aspirations, some aspects of Renner’s model can help to ensure that this settlement protects the interests of smaller and/or more dispersed minorities.

The Western experience of sub-state nationalism Renner’s focus was the Habsburg Empire, but the phenomenon of powerful sub-state nationalist movements is a universal one, and it is important to try to learn lessons from this wealth of international experience. As Walker Connor (1999:163–4) notes, countries affected by powerful substate nationalist movements: are to be found in Africa (for example, Ethiopia), Asia (Sri Lanka), Eastern Europe (Romania), Western Europe (France), North America (Guatemala), South America (Guyana), and Oceania (New Zealand). The list includes countries that are old (United Kingdom) as well as new (Bangladesh), large (Indonesia) as well as small (Fiji), rich (Canada) as well as poor (Pakistan), authoritarian (Sudan) as well as democratic (Belgium), Marxist-Leninist (China) as well as militantly anti-Marxist (Turkey). The list also includes countries which are Buddhist (Burma), Christian (Spain), Moslem (Iran), Hindu (India), and Judaic (Israel). Most countries around the world, at least until recently, have been undemo cratic, and managed their sub-state nationalist movements in undemocratic ways, often with brute coercion. However, there are important cases of the accommodation of sub-state nationalist movements within the context of established democracies, including Spain (the Basque Country, Catalonia), the United Kingdom (Scotland, Wales), Belgium (Flanders), Canada (Quebec), Italy (South Tyrol) and the United States (Puerto Rico). All these cases in the West, like Renner’s Habsburg cases, involve large minorities—from several hundred thousand to several million—forming a local majority in what they view as their historic homeland. All of them are potentially secessionist, and indeed most have had one or more political parties or political movements espousing independence at some time or other. Western democracies have tried a range of approaches to dealing with such sizeable sub-state nationalist movements, from coercive suppression of their civil and political rights to ‘difference-blind’ forms of common citizenship within a unitary state, to modest forms of multiculturalism and minority rights. But they have all converged on the necessity of some form of territorial autonomy (‘TA’). In fact, every sizeable sub-state

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national minority in the West that has expressed a clear political will for TA (e.g. by supporting political parties that seek TA) has now been accorded it.1 This trend towards adopting TA as a mechanism for accommodating sub-state national identities can even be found in cases of smaller national minorities, such as the Swedes in Finland or the Germans in Belgium. It has also become the preferred mechanism for accommodating indigenous peoples in Canada, the United States, Australia and New Zealand. Renner would almost certainly have regretted this trend, which he viewed as a recipe for violence and ethnic oppression. He assumed that these national groups, having mobilized along nationalist lines to secure TA, would use their newly gained powers to oppress internal minorities within their self-governing regions.2 In Nimni’s apt summary, Renner worried that these internal minorities would be treated as ‘unwelcome pockets in any autonomous territories’, subject to persecution, assimilation or even expulsion (Nimni above: 11). Renner also feared that the tensions produced by such oppression would lead to violence and/or secession. However, at least in the West, these fears have proved to be wildly overblown. Territorial autonomy has not proved to be a recipe for violence, the suppression of human rights or secession.3 On the contrary, the trend towards TA has arguably helped reduce the risks of violence, oppression and secession. It is almost certain that several of the Western countries that have adopted TA would have faced much greater threats of violence and secession if they had not accommodated the desire for TA. I have argued elsewhere that these models of TA in the West are a significant achievement, and an impressive success in the accommodation of sub-state nationalism. They have helped reduce the risk that dominant national groups can engage in political or economic oppression of other national groups, as well as ensuring a fairer representation of national languages, cultures and identities in public space, all without jeopardizing individual rights or democratic procedures (Kymlicka 2001; Bauböck above). I won’t repeat that argument here, but it’s worth noting that no major political party in any of these countries is proposing to abolish these forms of TA and replace them with non-territorial forms of NCA. No one seriously supposes that it would be feasible or desirable to abolish the TA of Catalonia, for example, and replace it with some scheme of NCA in which Catalans wherever they live in Spain would be able to form local national councils. Nor does anyone seriously propose this for the Québécois, Puerto Ricans, Flemish, Scots or the German-speakers in South Tyrol. Everyone agrees that any attempt to strip these national minorities of their TA would be perceived as a provocation, and a deliberate attempt to disempower them and to re-subordinate them to the dominant group. So too with the various forms of TA for indigenous peoples. This raises a powerful challenge to defenders of Renner’s model. Anyone who believes that NCA is intrinsically preferable to TA as a response to sub-state nationalism should, to be consistent, argue for abolishing existing forms of TA in the West. However, to my knowledge, no one has in fact attempted to make that argument in the West, perhaps because it is manifestly implausible.4 And this in turn is surely an embarrassment for those who are promoting Renner’s model elsewhere in the world, such as in Central and Eastern Europe. If no one would ask or expect sizeable national minorities in the West to trade their TA for NCA, why would

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we ask or expect comparably sized minorities in other parts of the world to settle for NCA?

The territorial presuppositions of Renner’s model Why is Renner’s model implausible as a response to sizeable sub-state nationalist movements? One way to highlight its deficiencies is to note that it begs the question at the core of most nationalist conflicts—namely, what are the territorial units within which laws and policies are adopted? Consider the Habsburg Empire. As we’ve seen, Renner’s own proposal was to adopt NCA within the two halves of the empire. One scheme of NCA would be adopted by the (German-speaking) parliament in Vienna that governed the Austrian half of the empire, in order to accommodate groups such as the Czechs, Poles, Slovenes and Ukrainians; another scheme would be adopted by the (Hungarian-speaking) parliament in Budapest that governed the Magyar half, in order to accommodate groups such as the Romanians, Serbs, Slovaks and Croatians. But notice that this proposal is quite arbitrary. If Renner really believed in the adequacy of NCA, then presumably he should have opposed the territorial division of the empire into two halves. Rather than granting territorial self-government to the Hungarian half of the empire, and allowing the establishment of a separate Hungarian-language parliament in Budapest, he should have insisted that the Hungarians, like the other nations, be satisfied with a purely non-territorial form of NCA within a unitary empire headquartered in Vienna. Of course, he did not recommend this, since any attempt to retract Hungarian self-rule would have led to violence, civil war and probably secession. By 1899 the principle of a separate and self-governing Hungarian territory was firmly established, and no one could seriously propose that the Hungarians would or should trade it for NCA within a unitary empire. Why would they give up a system in which their language had become the language of public administration within half of the empire, and return to a unitary empire administered solely in German? This would have been perceived as an attempt at reasserting German domination (and indeed it would have been such a reassertion of dominance). So Renner tacitly concedes that NCA is not an alternative to TA for the Hungarians. Instead, he proposes NCA as a supplement to it. He acknowledges that there will continue to be a separate Magyar territory within the empire, with a Hungarian-language parliament and public administration, but argues that it should adopt NCA within its territory to accommodate its internal minorities. Adopting NCA within the Hungarian half of the empire will protect the Romanians, Serbs, Croats and Slovaks. But once Renner concedes this, the whole argument against TA for the Czechs, Poles, Croats and Slovenes disappears. For precisely the same argument can be advanced for viewing NCA as a supplement, rather than alternative, to TA for these groups. That is to say, one could support the further division of the Habsburg Empire into, say, ten selfgoverning regions, instead of just two, each with its own parliament and public administration, and each adopting NCA within its own territory for its own internal minorities. Just as the Hungarian parliament in Budapest could adopt NCA for its

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minorities, so a Czech parliament in Prague could have adopted NCA for minorities within the Czech lands, and a Slovene parliament in Ljubljana could have adopted NCA for minorities within Slovenia, and so on. So support for NCA does not, by itself, tell us anything about the units within which NCA should be adopted. In the case of the Habsburg Empire, NCA could have been adopted (1) within a unitary Germanspeaking empire, or (2) within a dual monarchy that divided the empire into German and Hungarian-speaking halves, or (3) within a truly multinational federation that granted TA to all its major national groups. The idea of NCA, by itself, provides no guidance on this question of the territorial units within which NCA is adopted. Faced with this question, it’s not helpful to say that one believes in the personality principle rather than the territorial principle: the question is precisely how to determine the territorial units within which the personality principle will apply.5 As we’ve seen, Renner’s own preference was to implement NCA within a dual German/Hungarian empire, but I can see no moral principle for this preference. In fact, it seems wholly arbitrary. A principled approach would have either cancelled the creation of a separate Magyar territory within the empire or extended the option of TA to other sizeable national groups. In any event, the main point is that the model of NCA presupposes that we have already determined the territorial units. Renner’s account of NCA does not provide an argument for having a dual German-Hungarian empire—he simply presupposes that the empire is divided into two halves. He writes as if his model provides a set of principles for dealing with territorial claims, but in fact his model presupposes that those claims have been settled already. In his case, he presupposes that the Hungarian claim has been accepted, and others rejected. There may, of course, have been good reasons to accept the Hungarian desire to subdivide the empire while rejecting the Czech or Romanian desire to do the same. It’s not clear to me what such an argument would look like, but in any event, this is where the real debate lies. We need to identify valid arguments and criteria for evaluating claims to territorial self-government. Once we have determined which of these national territorial claims is justified, and hence which self-governing territorial units will be created, then— and only then—can we begin to implement Renner’s model. This problem is not unique to the Habsburg Empire. The same puzzle arises, for example, in the case of the former Soviet Union. Both Estonian and Russian intellectuals have shown interest in the idea of NCA. But they have often had diametrically opposed ideas of the territorial units within which it would operate. Some Russians wanted to adopt NCA throughout the territory of the Soviet Union, giving all non-Russian national groups (such as the Estonians) the option of non-territorial NCA within a predominantly Russian-speaking state. The Estonians themselves, of course, preferred to secede from the Soviet Union, and adopt NCA within their own state, so that all non-Estonian minorities (including the Russian minority) would be granted non-territorial NCA within a predominantly Estonian-speaking state. Here again, the general idea of NCA offers no guidance on this dispute. Both of these positions endorse the idea of NCA, but they disagree on the territorial units within which it should operate. On one view, the Estonians are a minority who enjoy NCA inside a larger Russian-speaking state. On the other view, Russians living in Estonia are a minority who enjoy NCA inside a self-governing Estonia. No amount of argument about

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the merits of NCA will resolve this dispute. Instead, we need arguments about how to evaluate claims to territorial self-government. In short, Renner’s famous contrast between the ‘personality principle’ and the ‘territorial principle’ is quite misleading. The personality principle can operate only within a particular set of territorial boundaries. And as Renner himself concedes, these boundaries determine the language of parliament and public administration. For example, the territorial division of the Habsburg Empire into two halves entailed the language of parliament and public administration being German in one half and Hungarian in the other. The ‘personality principle’ operates within these pre-existing territorial boundaries and administrative structures. So the first question we need to ask is how those territorial boundaries are set. As I noted above, this is the crucial issue that underlies real-world nationalist conflicts. Renner’s implicit answer is that boundaries in Central Europe should be drawn so that there will be a German dominant territorial unit and a Hungarian dominant territorial unit, but not a Czech dominant territorial unit or a Croatian dominant territorial unit. I confess that I see no moral principle underlying this position, but even if there are good arguments for it, they have nothing to do with the ‘personality principle’. That principle kicks in only after we have first resolved the prior question of territorial units.

National autonomy in Eastern and Central Europe If my arguments so far are correct, Renner’s model does not offer a viable alternative to the sort of liberal democratic multi-nation federalism that has emerged in the West. Why then has there been such a renewed interest in Renner’s and Bauer’s work? If multination federalism is working well in the West as a way of accommodating sub-state nationalisms within a liberal democratic framework, why are people looking for alternative approaches? If it ain’t broke, why fix it? The main answer, I think, lies in developments in post-communist Europe. After the initial collapse of communism in 1989 there was considerable interest in exporting Western models of multi-nation federalism to Central and Eastern Europe. For example, TA was specifically endorsed as a model for post-communist Europe in the 1990 Copenhagen Declaration of the Organization of Security and Co-operation in Europe (‘OSCE’), and this was reaffirmed in a 1993 Recommendation of the Parliamentary Assembly of the Council of Europe. However, several Western organizations and scholars have since retreated from promoting multi-nation federalism in Eastern and Central Europe. Part of the reason is the intense resistance within most postcommunist countries to any idea of TA. For minority leaders to advocate such ideas is often viewed as inherently ‘disloyal’ or ‘treasonous’, and in some post-communist countries such advocacy is in fact illegal. I believe it is this visceral fear of TA in post-communist Europe that has provided much of the impetus for the rediscovery of Renner’s and Bauer’s ideas of NCA. Since it has been impossible to discuss TA rationally, there was a need to find less controversial ways of accommodating national minorities. For example, Max van der Stoel (1999:111– 12), the OSCE’s High Commissioner on National Minorities, has said that, while minorities in post-communist Europe often seek TA, there are:

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good reasons for minorities to consider a pragmatic approach. Even though the [OSCE’s] Copenhagen Document mentions territorial autonomy as an option, minorities should take into account the fact that such a demand will probably meet maximum resistance, whereas they might be able to achieve more if they concentrated on legislation that enabled them to have a greater say in fields of special interest for them, such as education and culture, or if they tried to concentrate on matters which, as well as having their support, also had the sympathy of many amongst the majority, such as an increase of the powers of local government. He has also said that ‘in my view, insufficient attention has been paid to the possibilities of non-territorial autonomy’ (van der Stoel 1999:172), and has encouraged scholars and policy makers to explore models of NCA for the region. So the upsurge in interest in NCA is not due to any dissatisfaction with the operation of multi-nation federalism in the West. On the contrary, as I noted earlier, no one in the West is suggesting that existing forms of TA be replaced with NCA. Within the West, one could say, Renner’s argument about the intrinsic pre-eminence of the personality principle over the territorial principle has been decisively rejected. The impetus for exploring NCA is due instead to the difficulty of exporting this model to postcommunist Europe, and the need to find an alternate mechanism for protecting minorities in countries that are unwilling to contemplate TA. It is an interesting question why countries in the region are so fearful of TA. After all, those countries have expressed a desire to embrace liberal democratic values and practices, and to ‘rejoin Europe’. Given that TA has now become the standard formula within Western democracies for dealing with sub-state nationalist movements, and given that it is working well to accommodate these movements within a liberal democratic framework, why haven’t democratizing countries in post-communist Europe shown more interest in it? There are several factors here, many of them tied up with the distinctive history and geo-politics of the region.6 To oversimplify, national minorities in many post-communist countries are seen as potential ‘fifth columns’ who might collaborate with external enemies of the state. In some cases, this is because national minorities have a neighbouring kin-state with whom they have strong bonds of language, religion and history, and with whom they may have collaborated in the past. (For example, many ethnic Serbs in Bosnia feel more loyalty to their kin-state of Serbia than to their own state of Bosnia, and they have collaborated in the past with Serbian aggression against Bosnia.) In other cases, minority secessionist movements have been encouraged (and even financed and armed) by neighbouring states as a way of weakening a rival state or maintaining regional hegemony (for example, Russia’s support for separatists in Georgia or Moldova). The result of this complex geo-politics is the ‘securitization’ of state-minority relations in post-communist Europe. Relations between states and minorities are seen, first and foremost, as a matter of state security, and the policy issue is how best to contain potentially disloyal minorities. Once state-minority relations are securitized in this way, it

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is virtually inconceivable that states will voluntarily grant TA to minorities they view as security threats. By contrast, state-minority relations in most Western countries have been ‘desecuritized’. National minorities are not seen as fifth columns for neighbouring enemies, in part because Western states do not have neighbouring enemies. This has created the democratic space to debate and negotiate successful models of TA.7 Where state-minority relations are securitized, the claim that it would be more ‘pragmatic’ to pursue NCA rather than TA makes sense. Only enormous international pressure, and/or the credible threat of a successful armed insurgency by the minority, would lead countries to accept TA for minorities that are viewed as fifth columns for neighbouring enemies.8 So it is quite understandable that the international community has wanted to explore models of non-territorial autonomy in post-communist Europe. These are the only models that are likely to be considered by many countries, at least for the foreseeable future.9 However, it is important to ask whether this preference for NCA over TA is sustainable in the long term. Will national minorities in postcommunist Europe accept that NCA is an adequate substitute for TA? After all, no sizeable national minority in the West has accepted this. As postcommunist countries join the EU, will their minorities not come to expect the same rights and powers as comparably sized minorities in the West? Of course, minority aspirations to TA are likely to remain frustrated as long as stateminority relations are securitized. So we also need to consider whether this sort of securitization is likely to diminish over time, and thereby reduce state opposition to TA. There are several possible scenarios here. One scenario combines the pessimistic assumption that fears about state security will remain powerful indefinitely, with the optimistic assumption that minorities will find NCA an adequate substitute for TA. In this scenario, NCA may indeed prove to be a stable long-term equilibrium for the region. Insecure states will not be willing to grant more than NCA, and satisfied minorities will not ask for more. But we could make the opposite assumptions. A second scenario combines the optimistic assumption that state security fears will diminish with the pessimistic assumption that minorities will not find NCA an adequate substitute for TA. As more post-communist countries join the EU and NATO, security fears are likely to ebb, while minorities are likely to demand the same rights and powers as comparable minorities in the West. In this scenario, TA is likely to emerge as the long-term equilibrium. As stateminority relations become desecuritized, and European integration proceeds, minorities will increasingly demand Western-style TA, and states will become more willing to consider it. If so, NCA would at best serve as a transitional phase, smoothing the road towards TA. We should also contemplate a more dire possibility. In a third scenario, minorities will increasingly conclude that NCA is not an adequate substitute for TA, yet state security fears will remain undiminished. In this scenario, there is no long-term equilibrium. We would witness escalating tensions as strong and increasingly frustrated minorities confronted states that still felt insecure, and so remained implacably opposed to minority claims. So we have at least three possible long-term scenarios. So far as I can tell, organizations like the OSCE are predicting the first scenario in which NCA serves as a

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viable long-term strategy for responding to sub-state nationalism. My own view, by contrast, is that this is the least likely longterm outcome. My hope is for the second scenario, and my fear is of the third. Of course, these outcomes will vary from country to country, and from group to group within particular countries. States differ in their geopolitical fears and constraints, just as minorities differ in their capacities and aspirations. No single model will cover all the cases, and NCA may well offer a viable long-term approach in certain contexts. The Roma are perhaps the most likely case, precisely because of their territorial dispersion (Klímová above). NCA may also be useful for those members of indigenous groups who have left their ancestral homeland and moved into urban areas. In fact, the recent Royal Commission on Aboriginal Peoples in Canada recommended a form of NCA for the urban Aboriginal population (Royal Commission on Aboriginal People: 1996; Patton above). However, I do not believe that NCA can provide an adequate longterm response to the case of most concern to Renner himself—namely, that of sizeable sub-state nationalist movements with the potential to break up the state. In the East, as in the West, these groups are unlikely to settle for anything short of TA, and it is not clear that they should settle for anything less.10

Notes 1 Corsica is a partial exception, in that the law granting autonomy was struck down by the French Constitutional Court, but the decision to pursue some form of autonomy has been made, even if the modalities are not yet finalized. One important example of a national minority whose members have not expressed a clear desire for TA is the Frisians in the Netherlands. 2 He particularly feared that TA would be used to oppress members of the larger state’s dominant group who find themselves within the self-governing region. In the Habsburg case, this would include ethnic Germans living in the Czech lands, or ethnic Hungarians living in Croatia. In the Western context, this would include the English in Quebec, the Castilians in Catalonia, etc. 3 Violence in the Basque Country pre-dated the adoption of TA, and almost certainly would have been worse had Spain not adopted federalism during its democratization after the death of Franco. 4 One reason why NCA is an inadequate response to sub-state nationalism is that non-territorial forms of cultural rights haven’t protected national minorities from slow assimilation. For example, even with a very strong set of language rights, French-speakers in Canada have been assimilating into English outside Quebec. This is what sociolinguists call the ‘territorial imperative’ regarding languages in modern, industrialized societies. Language communities can thrive and prosper only if they have a robust set of institutions; and institutions can survive only if they have concentrations of numbers and if they can offer avenues of advancement and opportunity; and these institutions can offer avenues of advancement and opportunity only if their language is the language of public life in the society. So even with the most generous set of language rights, French-Canadians in Vancouver lack the numbers to maintain the required institutions, and even if they had the numbers, these institutions cannot offer avenues of advancement, since all economic and political opportunities in Vancouver are in English. Hence the trend in the West is in fact towards greater territorialization of minority rights regimes for national minorities. A number of works examine this trend in Belgium (Lejeune 1994; Senelle 1990) and Switzerland (Mansour

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1993), while others provide a more general theoretical account of the ‘territorial imperative’ in multilingual societies (Laponce 1987, 1993; Van Parijs 2000). 5 This is analogous to the problem that arises with classical liberals who, confronted with the claims of sub-state nationalisms, repeat the slogan that we should embrace ‘individual rights, not group rights’. This mantra is unhelpful, since it tells us nothing about the issues at the core of most nationalist conflicts—i.e. where boundaries should be drawn, and how powers should be distributed. So too with the slogan that we should adopt the ‘personality principle, not the territorial principle’. 6 I should mention one common explanation which I believe is not correct. Some commentators argue that the key reason why TA works in the West but not in the East is the greater intermixing of national groups in the East. No matter where the boundaries of a selfdetermining territory are drawn in the region, there will be some people who live on the territory who do not belong to the minority asserting rights of self-government (‘internal minorities’), and also members of the national minority who live outside the self-governing territory (‘minority diaspora’). According to some commentators, the size of these internal minorities and minority diasporas in post-communist Europe is greater than in the West, and so precludes Western models of TA (Offe 1993). But this is incorrect. The intermixing of national groups exists in the West as well. In some cases, like Catalonia, there is only a small minority diaspora but a very large internal minority (i.e. there are few ethnic Catalans outside Catalonia, but ethnic Catalans formed a bare 52 per cent majority within Catalonia when autonomy was adopted). In other cases, like Puerto Rico, there are few internal minorities but an enormous minority diaspora (around 50 per cent of Puerto Ricans have moved to the continental United States, but there are few minorities within Puerto Rico). And in yet other cases, like Quebec, there are both sizeable internal minorities and a sizeable minority diaspora (there are over a million non-francophones within Quebec and one million francophones outside Quebec). Indeed, internal minorities and minority diasporas can be found in every Western example of TA. Post-communist Europe is not so different in this respect. If TA were given to the Hungarian-populated areas of southern Slovakia, or the Albanian-populated areas of western Macedonia, the size of the resulting internal minorities and minority diaspora (either as an absolute number or as a proportion of the population) is well within the range we find in Western examples of TA. 7 The securitization of state-minority relations in post-communist Europe, and their desecuritization in the West, are discussed more extensively in Kymlicka 2004. 8 This, of course, explains why TA has been adopted in countries like Georgia, Moldova, Azerbaijan, Bosnia, Kosovo, and so on—i.e. minorities seized territory by force, and international pressure has been applied on states to avoid civil war and to negotiate some form of TA. These countries showed no inclination to adopt TA voluntarily in the absence of such minority belligerence and international pressure. 9 It is sometimes said that a commitment to NCA over TA in post-communist Europe reflects a progressive, even postmodern, willingness to overcome the intellectual straitjacket imposed by nineteenth-century views of the nation state. I think the situation is actually the opposite. The preference for NCA over TA reflects a decision to ignore the most progressive forms of minority rights developed in the West in order to accommodate nineteenth-century concerns about ‘national security’ and ‘disloyal’ minorities. 10 So long, of course, as they exercise TA in accordance with liberal democratic constitutional principles of the sort that regulate all forms of TA in the West.

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References Connor, W. (1999) ‘National Self-determination and Tomorrow’s Political Map’, in A.C.Cairns, J.C.Courtney, P.MacKinnon, H.J.Michelmann and D.E.Smith (eds), Citizenship, Diversity and Pluralism: Canadian and Comparative Perspectives, Montreal: McGill-Queen’s University Press. Keating, M. (2001) Plurinational Democracy, Oxford: Oxford University Press. Kymlicka, W. (2001) Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship, Oxford: Oxford University Press. Kymlicka, W. (2004) ‘Justice and Security in the Accommodation of Minority Nationalism: Comparing East and West’, in A.Dieckhoff (ed.), The Politics of Belonging: Nationalism, Liberalism and Pluralism, New York: Lexington Books: 127–54. Kymlicka, W. and Opalski, M. (2001) Can Liberal Pluralism be Exported? Western Political Theory and Ethnic Relations in Eastern Europe, Oxford: Oxford University Press. Laponce, J. (1987) Languages and their Territories, Toronto: University of Toronto Press. Laponce, J. (1993) ‘The Case for Ethnic Federalism in Multilingual Societies: Canada’s Regional Imperative’, Regional Politics and Policy, 3(1):23–43. Lejeune, Y. (1994) ‘Le fédéralisme en Belgique’, in L.Seidle (ed.), Seeking a New Canadian Partnership: Asymmetrical and Confederal Options, Montreal: Institute for Research on Public Policy. Mansour, G. (1993) Multilingualism and Nation Building, Clevedon: Multilingual Matters. Offe, C. (1993) ‘Ethnic Politics in East European Transitions’, in J.Jensen and F. Miszlivetz (eds), Paradoxes of Transition, Szombathely: Savaria University Press. Royal Commission on Aboriginal People (1996) Report of the Royal Commission on Aboriginal Peoples II, Restructuring the Relationship, Ottawa: Government of Canada. Senelle, R. (1989) ‘Constitutional Reform in Belgium: From Unitarism towards Federalism’, in M.Forsyth (ed.), Federalism and Nationalism, Leicester: Leicester University Press Stepan, A. (1999) ‘Federalism and Democracy: Beyond the US Model’, Journal of Democracy, 10(4):19–34. van der Stoel, M. (1999) Peace and Stability through Human and Minority Rights: Speeches by the OSCE High Commissioner on National Minorities, BadenBaden: Nomos. Van Parijs, P. (2000) ‘Must Europe be Belgian? On Democratic Citizenship in Multilingual Polities’, in C.Mackinnon and I.Hampsher-Monk (eds), The Demands of Citizenship, London: Continuum.

10 National cultural autonomy and liberal nationalism Geoffrey Brahm Levey The idea of ‘national cultural’ autonomy based upon a ‘personality’ rather than a territorial principle goes back at least to the medieval Teuton treatment of various tribes in the Holy Roman Empire of the German Nation. The originality of Karl Renner’s resumption of the idea lays both in what he sought to do with it in the context of a modern European ‘nationalities question’ and, as befits a constitutional lawyer, in the detailed plan he elaborates for its institutionalization. For Renner, non-territorial national cultural autonomy (‘NCA’) offered a way of simultaneously solving three political problems plaguing the Austro-Hungarian Empire of his day: satisfying the national aspirations of the many territorially concentrated national minorities living under imperial control; preventing the empire’s disintegration along national and territorial lines; and protecting the wellbeing and rights of internal minorities, that is, those members of national cultures left living in cities or regions dominated by another national group and language community. Such economy rarely works in politics, and Renner’s proposals may well have been spared by having come too late to be tried for their intended purpose.1 Nevertheless, there is no denying the elegance and brilliance of his core idea of non-territorial national cultural autonomy, and it is worth asking whether it might have value in helping resolve or ease some of the quests for national autonomy in our time. Indeed, it is clear that much of the renewed interest in Renner is inspired by dissatisfaction with contemporary liberal arguments for cultural rights and multiculturalism more generally (Nimni 1999; and this volume). Renner is known as a member of the Austro-Marxist school of social democracy, yet in key respects his theory of NCA stands as a form of liberal nationalism. While centrally concerned with the practical political problems noted above, Renner’s underlying normative commitment is to the individual and liberal constitutionalism. In my remarks I wish to consider NCA in light of contemporary discussions of liberal nationalism and practices of multiculturalism. I think the NCA model has some serious weaknesses both from a nationalist and from a liberal perspective. I do not consider these to be ‘knock-out’ arguments, whether taken separately or together. On the contrary, I’m inclined to believe that Renner’s NCA might well work wherever the parties concerned are sufficiently committed to it. However, for the reasons to be discussed, this condition is, I think, less rather than more likely of eventuating.

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Renner developed NCA as an alternative to ceding territorial autonomy (‘TA’) to satisfy nationalist aspirations where there is both territorial concentration and significant mingling of national communities. I will begin by evaluating NCA in this context, defending it against some theoretical and historical criticisms, but arguing that it fails to match TA where national identification with land, language and symbolic recognition is concerned. Thereafter I will consider NCA as a solution to the supposed limits of liberal multiculturalism. I will suggest that NCA fails to transcend some of these limits itself; frustrates rather than realizes the personality principle, on which it is based; and lacks sufficient justification in claims of equality, especially where NCA is already institutionalized in more implicit ways in liberal and multicultural democracies.

National cultural autonomy versus territorial autonomy The NCA model harbours some serious limitations in addressing sub-state nationalism. Before turning to these difficulties, however, it is worth canvassing what is not especially problematic about the model in this context. It has been suggested that NCA is flawed because it does not in itself address the key question of the territorial boundaries in which it operates; that accepting the model in some cases where sub-state national minorities are concentrated on their historic homelands implies abolishing the territorial autonomy already enjoyed by many other such national minorities; and that Renner’s assumptions in rejecting TA—namely, that it exacerbates conflict between national communities and leaves internal minorities more vulnerable—were ill founded (Kymlicka this volume). None of these criticisms is, I think, compelling. It is true that NCA does not itself contain a theory about the territorial boundaries that should apply and in which it should operate. The NCA model is little different in this respect from the TA model with which it is contrasted. Both models are versatile in application: NCA might be applied in a variety of background territorial circumstances, including supranational empires, dual monarchies, multinational states, nation states and local regions; TA may apply variously to nations, provinces, principalities, islands, cantons, and so on. Taken as a formal model, neither NCA nor TA tells us anything much about how territorial boundaries should be drawn or recognized. For this, both require further theoretical and normative investment. In Renner’s case, we find this investment in the arguments he offers as to why NCA is preferable to TA in saving the AustroHungarian monarchy. Renner accepted certain territorial circumstances as given. Although he preferred a unified Habsburg Empire, he accepted the reality of the dual Austro-Hungarian monarchy when he came to advocate NCA. Will Kymlicka believes this exposes the arbitrariness of the model, since Renner accepts TA for the Magyars in Hungary whilst offering only NCA to other national minorities living under the Dual Monarchy. It is unclear why this sense and degree of arbitrariness should count against the model. First, Renner viewed the privileged political status of the Magyars in much the same way as Kymlicka (1995:170) views the privileged situation of some long-standing ethnic and religious minorities in being allowed to maintain illiberal institutions; namely, as inconsistent with one’s preferred political theory and perhaps historically regrettable, but not arrangements

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that now can be easily reversed.2 History doubtless produces some arbitrary results in this way, which political theorists and practitioners alike often have little option but to accept. Second, there is, if anything, even more arbitrariness of this kind behind the touted TA model. Consider the argument that TA should be granted to sub-state national minorities wherever they are sizeably concentrated in their historic homelands. What should be taken as the non-arbitrary boundaries of historic homelands? Boundaries vary over history and are often the result of unjust conquests. They also are notoriously contested (Moore 1998). Are the non-arbitrary boundaries of historical homelands only those that happen not at present to be in dispute? Or are they perhaps the boundaries simply claimed by the present-day members (all of them? some?) of the national minority as against their forebears? Indeed, what exactly is a ‘historic homeland’? How far back do we go? Most scholars today agree that the Magyars arrived in present-day Hungary from the East, though there is debate about just how far east (Sisa 1990). Before the Second World War, the prevailing view traced their linguistic and ethnic kinship to the Finns, Estonians, Ostyaks and Voguls, and placed their historic homeland with that of the Finno-Ugrians along the southern Urals. Around 500 BC, on this account, they moved westwards to the area north of the Black Sea and the Caucasus, where they settled for centuries, a second possible ‘historic homeland’. Thereafter, they moved westward toward the Carpathians—‘historic homeland’ number three. The Magyars themselves endorsed this account of their history from the middle of the nineteenth century. After the Second World War, however, a new theory gained currency among scholars that traces the Magyars to an area of Central Asia in what is today Kazakhstan. Was it arbitrary then to accept Hungary as the Maygars’ ‘historic homeland’ for the purposes of the Ausgleich of 1867? Surely, contemporary realities and practical politics bequeath their own imperatives (Waldron 1992). This is as true of Renner’s background acceptance of the Dual Monarchy in elaborating NCA for the remaining national minorities as it is for deciding what counts now as the boundaries of a ‘historic homeland’. Nor does it seem to me to follow that advocating NCA in some cases commits one to withdrawing the TA enjoyed by national minorities elsewhere. This seems too strict and abstract an application of the ‘universalizability’ principle. Clearly, there should be general consistency in determining entitlements in like cases. However, political circumstances often vary so much in their particulars that the condition of ‘like cases’ is rather loose. I doubt anyone would contend that advocating TA for substate national communities living in their historic homelands commits one to asking sovereign nations to trade in their sovereignty for TA because and in so far as they were once also sub-state national minorities. So arguing for NCA as a possible way of accommodating sub-state nationalism should not be taken to imply the abolition or illegitimacy of TA everywhere else. Renner (above: 30) incorporates the territorial concentration of nationalities—‘the geographical density of settlement’, as he puts it—into his model at one level. Where such concentration exists, NCA need not require as many administrative units as in multilingual areas. There is no question, however, that he dismisses the territorial principle and the national territorial state too categorically. These, he avers, ‘can never guarantee the peaceful, secure enjoyment of national rights in a multilingual, unitary state under the rule of law’ (Renner above: 30). As Kymlicka notes, there have been many cases where granting TA has indeed allowed the enjoyment of national rights whilst

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removing or lessening the propensity to violence and ethnic oppression. Still, there have also been enough cases where granting territorial self-government has produced consequences quite in line with Renner’s assumptions. Witness the aftermath of the First World War and the treaties that emerged from the Paris Peace Conference. As Salo Baron (1985:17–18) observes: most of the new and newly enlarged states which were parties to the Peace Treaty were reluctant to implement these [minority protection] provisions. The very persons who had long clamoured for extensive minority rights for their own peoples while they were minorities in the old empires, now that they had become members of the ruling majorities begrudged such rights to the new minorities. Many of the new states that did eventually succumb to international pressure and sign minority rights provisions—such as Poland, Romania and Czechoslovakia—almost immediately violated them (Robinson et al. 1943). As Kymlicka acknowledges, the generally favourable examples of TA have occurred in the West; Eastern and Central Europe have been rather different stories. If NCA is wanting as a suitable model for accommodating sub-state nationalism, then it is for reasons far more grounded and practical than those just considered. From a nationalist perspective, three factors loom especially large—land, language and symbolic or public recognition. Clearly, historical connections with land, whether real or imagined, are often central to a people’s national identity, and thus control over such land is considered essential to its national self-determination. Where this applies with intensity—and one might well abbreviate such inquiry by asking to which nationalism it does not apply—NCA is likely to struggle as an acceptable form of national autonomy. Renner’s shrewd wager was that the mingling of the national communities in Austria-Hungary, where sizeable minority diasporas would remain in cities and regions even if TA were granted to the national communities concentrated on their ancestral homelands, would favour a system that preserved the integrity of national communities regardless of where their members resided. In short, he banked on nations valorizing ‘peoplehood’ over ‘territory’. The assumption was doubtless encouraged by his philosophical belief, shared with Otto Bauer, that the nation is a ‘community of fate’ united into a ‘community of character’, which cannot be reduced to, or essentialized in terms of, particular territories or homelands (Bauer 1907/2000:117). Simon Dubnow (1970), the Russian Jewish historian and Renner’s contemporary, had similarly dismissed the importance of territory for national identity in developing his own argument for national cultural ‘autonomism’.3 The ‘highest type of cultural-historical or spiritual nation,’ argues Dubnow, is precisely that which lacks ‘the defensive protection of state or territory’. This is because such a ‘nationality…develops, instead, forces of inner defense and employs its national energy to strengthen the social and spiritual factors for unity which serve it as weapons of national survival’ (Dubnow 1970:99). Dubnow believed that the Jews best exemplified this level of spiritual nationality. Yet, for the most part, the assumption that ‘peoplehood’ trumps ‘territory’ in national consciousness would appear not to be well founded. While this may reflect a simple

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difference in the intensity with which the two values are held, it is also likely due to their relation. Specifically, jurisdiction over territory is functionally germane to the continuity of peoplehood. In Dubnow’s case, the argument that territorial dominion is a kind of national immaturity forestalling ‘weapons of national survival’ has now a tragic cast to it. Much the same can be said of it as what the Israeli historian Jacob Talmon wryly observed regarding Rosa Luxemburg’s famous 1916 letter to a Jewish woman that there is ‘“no corner in my heart for the ghetto”… Twenty-five years later, after the Germans had occupied it, there was not a single Jew alive in Rosa’s native Zamosc’ (Himmelfarb 1973:344). Dubnow, then old and unwell, himself died from a single bullet fired into his back after the Nazis entered Riga. There is, nevertheless, perhaps one set of territorial circumstances where NCA might prove an acceptable or, at least, less unacceptable option. This is where two (or more) nations are not only territorially concentrated and significantly intermingled but also claim historical title over the same territory. In this case, sharing the entire territory and enjoying national cultural autonomy may be preferable to enduring either the loss of the territory to the other national group or a Solomonic division of the territory between the claimants. One thinks here of the conflicts in Northern Ireland and in Israel-Palestine as possible sites for such an application, although at the present time, and given various countervailing factors, without much conviction.4 Language is another integral component of national identity. As Renner (above: 26) is at pains to stress, a nation’s ‘intellectual life and emotional life…become shared only through expression and communication, through the national language’. NCA seeks to accommodate this aspect of national identity by having a system of state, territorial and national legislative and administrative bodies structured in such a way as, at least according to Renner (above: 36), would see the state, in almost all its functions, communicating with citizens in their own language. The model seems much less attuned to the structural requisites for sustaining spoken languages over time. In our age of international and mass communications, commerce and travel, even some otherwise robust and territorially sovereign nations, such as the French, have felt their language to be under siege. Under NCA, where national minorities and language communities may have autonomy over their own cultural, educational and scientific institutions and some administrative domains, but otherwise are, in Robert Kann’s phrase, ‘frequently interspersed’, have to commerce with speakers and institutions of other, oftentimes dominant, languages, the threat to the continuity of minority languages is palpable (Kann 1951:244). This is a legitimate concern. Just as language may be integral to national identity, territorial dominion (and protection) may be vital for language continuity. Less palpable than the land and language factors is what may be broadly called symbolic recognition. A common point of departure for contemporary theorists of cultural rights is that modern liberal democratic states are not culturally neutral. Renner makes the same observation about states, but approaches it from the opposite direction. For him, the curiosity is why ‘the state and nation never completely coincide’ (Renner above: 26). This leads him to observe that the state has tasks beyond transmitting national culture and thus to his pivotal argument that the state can and should be ‘denationalized’. Under NCA, the state retains authority for economic, military, policing and overall political and judicial matters, while the sub-state national communities are authorized to run their own educational, intellectual and cultural institutions, for which they are entitled

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to impose taxes on their members. Renner seems, in this respect, to have a particularly compartmentalized view of culture, economics and politics, as if they can be neatly separated and parcelled out. In fact, much of symbolic cultural significance is left out of the NCA picture.5 In this sort of multinational cultural federation, it is unclear which calendar the state observes, which public holidays, what dress codes, which official emblems and insignia, what images and references in the supranational anthem. While Renner wants to separate the economic domain from the cultural domain, they surely come together in the workplace. In the state institutions of army, police, judiciary and those governing the economy, who is entitled to time off for which cultural holidays? Some of these issues may, of course, simply be matters of administrative management. And Renner concedes that, as a matter of administrative convenience, German alone should be the lingua franca of state business (in Austro-Hungary). The trouble is that, for many national minorities, what is sought just is a public sphere that they can recognize as their own. They want their time to be marked by their own calendar, to have their police and soldiers in the national colours and speaking the national tongue, to hear their own sounds and see their own images on the broadcast media. Control of educational and cultural institutions alone scarcely comes close to fulfilling such interests of public affirmation. In the context of a multilingual unitary state, Renner (above: 31) believed that NCA was occasioned where national communities are ‘each at the same time in a particular region a majority and in another region a minority’. The above reservations suggest that TA rather than Renner’s elaborate NCA may still be the preferred and more workable option in these circumstances. The question is whether NCA may have application elsewhere.

National cultural autonomy as liberal multiculturalism Liberal nationalism is beset by two inherent tensions. One is a contingent opposition between its core commitments to liberalism and nationalism. The other is a fundamental ambiguity over the specific nationalism(s) to which it is primarily committed. This last is a conundrum of scope. Liberal nationalists recognize not only that liberal states are culturally laden despite their oft-vaunted neutrality, and not only that this is inevitable but also that it is right and proper, since culture is deemed integral to identity, and members of nations both seek and are entitled to express their cultural attachments within generally accepted liberal limits. However, if this much is accepted, then it also applies to national and, arguably, ethnic minorities. Liberal nationalism thus hovers between the idea that national minorities are entitled to be self-governing liberal nations in their own right— much as a Russian doll harbours miniatures eapable of independence—and the idea that they have ‘only’ cultural rights as minorities living under a state authority dominated by a national majority. Liberal theories of multiculturalism may be plotted along some such axis, although few gravitate toward the extreme of multiple sovereignties. Thus, some liberal conceptions of multiculturalism are said to be too ‘weak’ or too ‘thin’ or too ‘vertical’, when what genuine equality for national and ethnic communities requires is a ‘stronger’ or ‘thicker’ or more ‘horizontal’ multiculturalism (Tully 1995; Tamir 1995; Weisbrod 2002).

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In the previous section I suggested that NCA is disadvantageously ‘thinner, weaker and more vertical’ than TA in the key concerns of land, language and symbolic recognition. However, in comparison with most versions of liberal multiculturalism, NCA is positioned towards the other, more robust, end of the spectrum. It rubs shoulders and bears some points of resemblance with such contemporary conceptions of multiculturalism as James Tully’s constitutional diversity (Tully 1995), Iris Marion Young’s political representation of difference (Young 1990), Ayelet Shachar’s joint governance (Shachar 2001) and Chandran Kukathas’s bold vision of a ‘liberal archipelago’ (Kukathas 2003). Might NCA be better suited, then, to contexts where there is extensive intermingling and little, if any, territorial concentration of national communities and diasporas?6 Might it be a paradigm of liberal multiculturalism? Here I think we need to distinguish between the spirit and the letter of Renner’s model. Taken as a general approach to inscribing the cultural entitlements of territorially dispersed cultural minorities, the model has much to recommend it. Indeed, NCA is in a general way widely employed by states concerning their indigenous and other cultural minorities. However, if we are to judge Renner’s own account of NCA, then it is, in my view, problematic in two important respects: specifically, concerning the personality principle and the empowering of culture, and more generally concerning its underlying justification in claims of equality. NCA turns first and foremost on the personality principle—the idea that personal association with national communities rather than living in a particular territory should be the basis of state regulation. People are bound together and governed by their cultural interests, not tied by the soil. The personality principle itself turns on a liberal moral ontology, the fundamental valorization of individual will. Renner (above: 20) could not be clearer on this score: ‘[t]he declared will of the person, the juridical and the natural, is the soul of the legal existence… The individual’s right to self-determination constitutes the correlate of the nation’s right to selfdetermination.’ It is upon these liberal assumptions that Renner seeks to ground the status of the nation as a juridical subject that has claims to equality and self-determination. In current parlance, the kind of right of national self-determination that Renner is advancing is a ‘collective’ right, where the ‘group qua group has no standing that is not reducible to the moral standing of its members’, rather than a ‘corporate’ right, which attributes ultimate moral value to the group itself (and hence to its survival, particular traditions, language, etc.) over and above the interests of its individual members (Jones 1999:85–6; Levey 2001). Renner’s credentials as a liberal nationalist are thus clear. Yet, in Renner’s account, individuals enact the personality principle by exercising a one-off choice, on reaching voting age, regarding which national authority they associate with and live under. This makes sense as an administrative convenience; a single, decisive entry in the national registers doubtless is more manageable than multiple entries and potentially shifting allegiances. Nevertheless, this limitation on the personality principle—the ‘free declaration of nationality by the mature citizen’ as Bauer (1907/2000:281) puts it—sits oddly with its own normative basis in the right of individuals to be self-determining. The discipline of Renner’s personality principle might appear to accord with liberal autonomy. Many liberals understand autonomy by stressing the importance of leading one’s life according to a plan. A free and equal person is, according to the early Rawls

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(1971:19, 505), capable of having a conception of the good or developing a rational plan of life. Such singlemindedness and ethical unity may seem consistent with the idea of an original declaration of one’s national allegiance never revisited again. However, what makes liberal accounts, in important part, liberal is the opportunity to revise one’s life plans. As Rawls (1980:544, 1993:19) emphasizes in his later work, autonomy involves the capacity to revise, and not simply to form and pursue a conception of the good. Some liberal nationalists argue that such revisability applies only within the cultural boundaries of the nation. Renner himself conveys this idea by dubbing his tenet the ‘personality’ (personalitäten) rather than the ‘personal’ (persön-lich) principle. In this, as Ephraim Nimni (1999:296) notes, he follows the ideas of the German historian Friedrich Meinecke (1907/1970), who viewed the individual personality as always carrying the imprint of its national culture, and thus as representing the highest form of autonomy, and indeed of all other qualities contained within the culture. Renner similarly conceived the personality principle as enabling individuals to pursue and choose among their national cultural heritage. We see much the same idea in Kymlicka’s argument that ‘societal cultures’ constitute the necessary ‘contexts of choice’ within which individuals are able to exercise their autonomy (Kymlicka 1995). The problem for Renner is that such a presumptively tight relationship between autonomy and one’s national culture begs the question of why he grants individuals the choice to declare their national allegiance in the first place. Liberal nation states, after all, do not ask their native-born members, upon maturity, to formally ratify or decline their citizenship. I suspect that Renner was led to insist on the preliminary right of individuals to choose their national authority for a very good reason; namely, there is a crucial difference between the authority of nations under the NCA regime and the authority of nations and states not so defined. Precisely because the autonomy in NCA is narrowed to cultural affairs, it sharpens national communities’ interest in culturally sanctioned values and potentially exaggerates their concern with conformity. Such an ‘unnatural’ delimitation of nations’ authority renders them into something like sub-national communities, raising the same dangers that communitarianism and shared conceptions of the good pose for members who fail to comply or who actively dissent. This contrasts with nations and states whose compass of authority includes many if not all spheres of life. ‘They share a language and history,’ Kymlicka (1995:92) observes, ‘but often disagree fundamentally about the ultimate ends in life.’ Renner’s invocation of the religious confessions as a model for NCA is telling, here. First, because religious communities are paradigmatic examples of shared values and conceptions of the good. Second, because sectarianism was, of course, the crucible for the historical development of liberal principles such as freedom of association and dissociation. Renner (above: 29) cites the confessions as an example where the personality principle ‘can be found applied in its purest form’, by which he means the extensive cultural autonomy they already enjoy, their ‘unshakable power over minds’. But religious communities realize the personality principle in its purest form also because they honour, or are compelled to honour, the declared will of persons to leave the community whenever this is expressed. This leaves Renner’s NCA in a bind. Clearly, making national membership open to a daily (or hourly) plebiscite would make NCA, as Renner conceived it, administratively impossible. One solution is, perhaps, Ayelet Shachar’s clever suggestion of clearly

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delineated ‘opt out’ options (Shachar 2001). In her own model of joint governance, jurisdictional arenas, such as family law and criminal justice, are identified as having distinct ‘sub-matters’, authority for which should be divided between the state and cultural groups. So, for example, in family law the group should have authority over demarcation or membership questions, whilst the state should retain authority over distributive matters or property rights. But, crucially, Shachar argues that there also should be ‘reversal points’ where individuals are able to opt out of being subject to the group’s authority in these sub-matters. This should happen, in her view, only where the group authority fails to offer the individual member ‘meaningful remedy’ (ibid.: 122–4). Renner believed that the fact that each national community is a majority in one place and a minority elsewhere would check the willingness of majorities to maltreat their minorities. Shachar’s model is intended to mitigate any tendencies within cultural groups to culturally oppress their own members. Because group authorities know that their members can leave and ‘switch authorities’ they are encouraged to treat them decently. Of course, limiting the right to exit one’s group authority only to cases of ‘failure to remedy’ might still be considered unduly restrictive from a liberal point of review. For example, an Orthodox Jewish woman, who initially elects to be governed by Jewish law in ‘demarcation’ matters of marriage and divorce, may endure no hardship whatsoever under rabbinic authority and yet decide that Orthodox life is no longer for her. Another possible way to reconcile Renner’s national registers with liberal revisability is along the lines of no-fault divorce. Individuals register their national affiliation at voting age and are free at any time to seek to void that affiliation, although they cannot leave immediately or avoid their existing commitments. Rather, a period of a year or so needs to elapse, allowing time both for the original intention to be tested on reflection, and for national registers to be spared incessant and whimsical changes by individuals. But these suggestions have relevance only if NCA were to be retained in the very formal, comprehensively structured manner that Renner envisages. The question I want to raise, finally, is whether such a formal system of NCA is justified or even necessary. Renner presents us, I think, with too stark a picture of the political terrain. He understands the national minorities question as involving a single, exclusive choice between the personality principle and the territorial principle. ‘One must opt for one or the other,’ he says (Renner above: 31). And, of course, if you opt for the territorial principle it is assumed that there is only one possible outcome if you happen to be a minority living in my territory: ‘you are subject to my domination, my law and my language’ (Renner above: 27–8). Similarly, Nimni (1999:300) contends that if liberal nationalists consider that it is desirable for states to be nation states, then multi-nation states face two ugly options: (1) to split the state along national lines or (2) to empower the larger national group to assimilate the weaker ones. These renditions of the territorial principle ostensibly identify the fundamental inequalities endured by national minorities that then justify NCA as an institutional form of redress. The argument is wanting in a number of respects. First, even accepting the assumption that the territorial principle imposes unacceptable cultural inequalities on national minorities, NCA retains many of the same cultural impositions. As noted in the previous section, symbolic recognition of various sorts, although overlooked by Renner, would inevitably require some cultural privileging. Renner explicitly envisages that the German language will remain dominant in that it will

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be the ‘general means of communication in regard to matters concerning the state as a whole’. And he similarly insists that the state, rather than nations, has ultimate control over educational standards ‘for all levels of the education system’ (Renner above: 38). Second, as others have argued, the bleak picture presented of the territorial principle fails to acknowledge how many liberal states do cede extensive self-government rights on both a territorial and a non-territorial basis to indigenous and certain national communities (Coakley 1994; Kymlicka 2001; Safran 1994). Third, and as I wish here to emphasize, the view that the liberal state is caught between splitting along national lines or else imposing cultural domination misses how it may already institutionalize NCA in more implicit ways for all constituent cultural minorities. Consider Horace Kallen’s classic essay ‘Democracy versus the Melting Pot’ (Kallen 1915/1998), in which this German immigrant advances the idea of ‘cultural pluralism’ for the United States. The United States, he argues, is really a ‘democracy of nationalities’, whose political order should aim at ‘harmony’ rather than ‘unison’. In such a democracy, the various (European immigrant) nationalities are entitled to ‘self-realization through self-control, self-government’. Unlike Renner, however, Kallen’s vision of cultural pluralism remains in thrall to territory. On considering various European analogies, including Austria (which he dismisses because the ‘union of nationalities’ there was based more on force than consent), Kallen settles on England and the cantons of Switzerland as the most suitable models for the United States. But what is most striking is Kallen’s discussion of the rich tapestry and freedom of the nationalities in America as he then finds it, that is, in the absence of a formal model of cultural pluralism. After surveying the Scandinavian, German and Irish immigrant communities, Kallen arrives at the Jews. More than any other immigrant group, he says, they ‘come with the intention to be completely incorporated into the body-politic of the state’. Bauer (1907/2000:291–308)—and, for that matter, Lenin (Lumer 1974) and Stalin (1936)— could not have agreed more regarding the national status of Jews in Europe.7 And yet what do we find? Once the Jewish immigrant takes his place in our society a free man and an American, he tends to become all the more a Jew. The cultural unity of his race, history, and background is only continued by the new life under the new condition…the most eagerly American of the immigrant groups are also the most autonomous and self-conscious in spirit and culture. (Kallen 1915/1998) Yet the Jews are like the other immigrant communities, only perhaps more so. Other groups also maintain their national consciousness and establish a plethora of communal institutions that at once reflect and serve their cultural interests. In a startling conclusion, Kallen (1915/1998) seems to obviate the very need for a formally institutionalized cultural pluralism: The institutions of the Republic have become the liberating cause and the background for the rise of the cultural consciousness and social autonomy of the immigrant Irishman, German, Scandinavian, Jew, Pole, or

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Bohemian. On the whole, Americanization has not repressed nationality. Americanization has released nationality. This observation was made, no less, during the heyday of assimilationism in the United States, in both its Anglo-conformity and melting pot guises. Neither Renner nor Kallen could have conceived of today’s theories and policies of multiculturalism, in which the state recognizes and protects an extensive range of cultural rights for its constituent cultural communities in the public as well as the private spheres. Instead of Renner’s ‘subject to my law’, multicultural liberal states entertain exemptions for different dress codes and various cultural practices, and time off work for cultural holidays. They allow minority communities to establish, manage and control their own schools and, in some cases, will even support them through tax or direct subsidies. While such schools are required to meet certain common, state-mandated educational standards, the same applies, as we have seen, under Renner’s NCA. Instead of Renner’s ‘subject to my language’, multicultural liberal states allow community schools to give instruction primarily or additionally in minority languages; and even state schools are sometimes so entitled where the school largely serves a particular minority district. Such states issue voting ballots, census forms and other documents of state business with multilingual instructions, and make available, at state expense, interpreter services that allow citizens to communicate with the state in their mother tongue. Such states also allow multilingual signage on businesses, and may even have street signs additionally marked according to the minority language group dominant in certain areas. Multicultural liberal states recognize the authority of certain officials of cultural minorities in the performance of some duties, such as officiating at marriages. Some multicultural liberal states even entertain special minority representation, such as dedicated seats in the legislature. Enough has been said to make the point that national and cultural minorities can and do enjoy a less formal NCA in liberal and multicultural states. They have broad latitude, in Renner’s words, to ‘deal with their nationally specific affairs alone and their common affairs together’ (Renner above: 24). Brian Barry (2001:21) may be right that even the most developed multicultural states—Canada and Australia—do not come close to the kinds of cultural rights or latitude now being advanced in the name of justice by some theorists of multiculturalism. But nor do liberal states come close to resembling either the stringent neutrality, universalism and simple equality advocated by some liberals, or the unrelenting assimilationism and cultural oppression with which they are charged by antiliberals. Real-world liberal states have never really lived up to liberal theory or down to its caricatures (or vice versa). They have always been, to some lesser or greater extent, a mixture of ruling cultural practices and private tolerance of cultural difference, official political cultures together with official accommodation of cultural minorities. Multiculturalism has extended and deepened this mixture and provided justifications for it. One clear difference between Renner’s NCA and the implicit liberal NCA I am trumpeting is the ability of minority communities under the former to levy taxes on their own members. Some of this difference may be diminished by multicultural policies of public subsidies for cultural minorities, whether defended in terms of moral entitlement and a cultural right or, as in Australia, on the grounds that cultural diversity is a public good that benefits all citizens. Still, it remains that under Renner’s NCA national

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minorities have the power to compel their members to support their groups’ cultural and governing institutions whereas under implicit NCA they do not. The question is whether this advantage outweighs the model’s potential dangers of restrictive ‘culturalism’ and ethnic separatism, and would surpass the advantages cultural minorities and their members enjoy under implicit NCA. We should not forget that Renner cites the churches as his model for NCA. The churches were made autonomous institutions historically by depoliticizing them, whereas Renner proposes to make national minorities autonomous by politicizing them and granting them political authority over cultural affairs. It is the model upon which Renner’s model is based rather than NCA itself that remains, perhaps, the more instructive.

Notes 1 For a sceptical view that Renner’s ideas could have saved Austria see Macartney (1968:149– 52). 2 Kymlicka (1995) discusses in this vein the situation of the Amish and Mennonites in North America and of the Hasidic Jews in New York City. 3 Writing in 1903, Dubnow (1970:368) observes that while Renner’s work on the subject was either not yet published or unknown to him when he wrote the letters that became this book, he ‘notes with pleasure that this expert on the very complicated national problems in Austria has reached conclusions quite similar to my own regarding Jewish autonomy’. 4 See, for example, Judt (2003) and Lappin (2004) on the revival of ‘bi-nationalism’ as a suggested solution to the Israel-Palestine conflict. Somewhat closer to the NCA idea are the proposals of the Alternative Palestine Agenda (http://www.apagenda.org/). 5 Ephraim Nimni (1999:293) is thus correct in saying that the ‘barriers’ that constrain liberal multiculturalism—such as existing nation state languages, ruling cultural practices and official political cultures—‘did not limit Bauer and Renner’s theories’. But it is correct not so much because their ‘autonomous corporations within the multinational state’ somehow transcend such difficulties as because Bauer and Renner simply never confront how the same problems reemerge with NCA. 6 In putting the question this way I mean to reject the view, advanced by Kymlicka and others, that there is a sustainable distinction between national minorities and ethnic minorities, under which the former are entitled to self-government rights and the latter to polyethnic rights. I discuss the problems with these distinctions in more detail elsewhere (Levey 1997). 7 In contrast, Renner was mute on the question of Jews as a nation. His references to the religious confessions, including Judaism, as a model for NCA might suggest that he did not rule out NCA for the Jews.

References Baron, S.W. (1985) Ethnic Minority Rights: Some Older and Newer Trends, Oxford: Oxford Centre for Postgraduate Hebrew Studies. Barry, B. (2001) Culture and Equality, Cambridge: Polity Press. Bauer, O. (1907) Die Nationalitätenfrage und die Sozialdemokratie, trans. J. O’Donnell, in E.J.Nimni (ed.), The Question of Nationalities and Social Democracy (2000), Minneapolis, MN: University of Minnesota Press. Coakley, J. (1994) ‘Approaches to the Resolution of Ethnic Conflict: The Strategy of Nonterritorial Autonomy’, International Political Science Review, 15:297–314.

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Dubnow, S. (1970) Nationalism and History: Essays on Old and New Judaism, New York: Atheneum. Himmelfarb, M. (1973) The Jews of Modernity, New York: Basic Books. Jones, P. (1999) ‘Human Rights, Group Rights, and People’s Rights’, Human Rights Quarterly, 21:80–107. Judt, T. (2003) ‘Israel: The Alternative’, New York Review of Books, 23 October. Kallen, H.M. (1915) ‘Democracy versus the Melting Pot’, The Nation, 18–25 February 1915. Reprinted in H.M.Kallen, Culture and Democracy in the United States (1998), New Brunswick, NJ: Transaction Books. Kann, R.A. (1951) ‘Karl Renner (December 14, 1870–December 31, 1950): Obituary’, Journal of Modern History, 23:243–9. Kukathas, C. (2003) The Liberal Archipelago: A Theory of Diversity and Freedom, Oxford: Oxford University Press. Kymlicka, W. (1995) Multicultural Citizenship, Oxford: Oxford University Press. Kymlicka, W. (2001) Politics in the Vernacular: Essays on Nationalism, Multiculturalism and Citizenship, Oxford: Oxford University Press. Lappin, S. (2004) ‘Israel/Palestine: Is there a Case for Bi-nationalism?’ Dissent Magazine, winter. Levey, G.B. (1997) ‘Equality, Autonomy, and Cultural Rights’, Political Theory, 25:215–48. Levey, G.B. (2001) ‘Liberal Nationalism and Cultural Rights’, Political Studies, 49: 670–91. Lumer, H. (ed.) (1974) Lenin on the Jewish Question, New York: International Publishers. Macartney, C.A. (1968) National States and National Minorities, New York: Russell and Russell. Meinecke, F. (1907) Weltbürgertum und Nationalstaat. Studien zur Genesis das deutschen Nationalstaats, trans. R.B.Kimber, Cosmopolitanism and the National State, Princeton: Princeton University Press. Moore, M. (1998) ‘The Territorial Dimension of Self-determination’, in M.Moore (ed.) (1998) National Self-determination and Secession, Oxford: Oxford University Press. Nimni, E. (1999) ‘Nationalist Multiculturalism in Late Imperial Austria as a Critique of Contemporary Liberalism: The Case of Bauer and Renner’, Journal of Political Ideologies, 4(3):289–314. Rawls, J. (1971) A Theory of Justice, Oxford: Oxford University Press. Rawls, J. (1980) ‘Kantian Constructivism in Moral Theory’, Journal of Philosophy, 77:515–72. Rawls, J. (1993) Political Liberalism, New York: Columbia University Press. Robinson, J., Karback, O., Laserson, M.M., Robinson, N. and Vishniak, M.V. (1943) Were the Minorities Treaties a Failure? New York: Institute of Jewish Affairs. Safran, W. (1994) ‘Non-separatist Policies Regarding Ethnic Minorities: Positive Approaches and Ambiguous Consequences’, International Political Science Review, 15:61–80. Shachar, A. (2001) Multicultural Jurisdictions: Cultural Differences and Women’s Rights, Cambridge: Cambridge University Press. Sisa, S. (1990) The Spirit of Hungary: A Panorama of Hungarian History and Culture, 3rd edn, Ontario: Rákóczi Foundation. Available online at (accessed 8 May 2004). Stalin, J. (1936) Marxism and the National and Colonial Question, London: Lawrence and Wishart. Tamir, Y. (1995) ‘Two Concepts of Multiculturalism’, in Y.Tamir (ed.), Democratic Education in a Multicultural State, Oxford: Blackwell. Tully, J. (1995) Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge: Cambridge University Press. Waldron, J. (1992) ‘Superseding Historic Injustice’, Ethics, 103:4–28. Weisbrod, C. (2002) Emblems of Pluralism: Cultural Differences and the State, Princeton, NJ: Princeton University Press. Young, I.M. (1990) Justice and the Politics of Difference, Princeton, NJ: Princeton University Press.

11 State and Nation versus liberal egalitarianism Paul Kelly Contemporary political theory in the anglophone world has seen an enormous growth of interest in issues of identity, culture and minority rights and justice over the last twenty years. So much so that ‘multiculturalism’ has come to be a central part of the political theory curriculum and research agenda of political thinkers (Miller 2003; Kymlicka 2002).1 Where questions of political obligation, social justice and freedom have traditionally dominated the agenda of political theory, the turn towards multiculturalism has raised new issues. For most of the latter part of the twentieth century, Englishspeaking political theory has taken the state as given, and instead focused its attention on the goods provided by the state and how they should be delivered. The legacy of two world wars has also made many political philosophers deeply suspicious of concepts like identity and belonging, when attached to the polity. Nation, community and culture are possibly useful sociological concepts, but when they are applied to the normative sphere they suggest ‘the sleep of reason’. The multicultural turn has challenged the easy distinction between questions about the nature of the state and what the state should provide. Thinkers as diverse as Iris Marion Young (1990), James Tully (1995), Will Kymlicka (1991) and Bhikhu Parekh (2000) have sought to question the simple distinction between goods and identity, and show how this challenge draws attention to the nature, structure and competences of the modern state. The multicultural turn in political theory and practice has a number of complex reasons, not all of which are philosophical in nature. It is no accident that the main theorists of multiculturalism come from states that are either multinational or polyethnic as a result of immigration and the legacy of colonialism. Such societies are faced with issues of the accommodation of different cultures, practices, social expectations, roles and languages. Of course, states can deal with these ‘circumstances of multiculturalism’ in a variety of ways (Kelly 2002:3–5). A state could impose uniformity in its laws and social practices; it could adopt benign neglect; or it could subsidize group autonomy. Yet, however the state acts, it raises the question of the criteria and normative basis of its policies and that opens the agenda of normative multiculturalism with its issues of differential provision and groupbased rights and exemptions. Although the cultural turn in political theory is relatively recent, the issues themselves are not, and this brings me to the connection with Renner’s State and Nation. As the discourse of multiculturalism has expanded and been refined, it raises issues that were the preoccupation of earlier political thinkers, and also encourages us to rethink their insights

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as possible contributions to broadening our own debates and ways of resolving some of our own problems. A number of the other chapters in this book make this connection with contemporary multicultural political theory, and compare Renner’s approach to the recognition of ‘national identity’ with that of contemporary theorists. In this chapter I intend to adopt a more critical response to Renner’s article on the grounds that it involves a number of the confusions and inadequacies of contemporary arguments for multicultural and multinational accommodation. This is so, not least, because it forces us to choose between culture as a good, and fair or just treatment where this involves some idea of substantive citizen equality (Kelly 2004). Like many contemporary multicultural theorists, Renner wants to connect the recognition of national cultures with fair and equal recognition, but in doing so is forced into the same position as these contemporary thinkers who also offer us a choice between fair treatment and group autonomy. While Renner’s project is an understandable response to the complexities of multinational states, it approaches those problems from the wrong perspective. The argument falls into three sections. The first section provides an overview of the nature of Renner’s project and relates it to contemporary debates. The second assesses its underlying position on the nature of group identity and claims. In the third and final section I address the issue of the recognition of national cultural groups from the perspective of egalitarian justice. This view is, I suggest, not alien to Renner’s project, but it significantly weakens his concessions to minority nations.

I If one turns to the contemporary literature on multiculturalism, one can see that it is largely preoccupied with the issue of fair or just treatment of cultural groups, whether these be nations, immigrant communities or social groups. This is as true of multiculturalism’s opponents as it is of its defenders (Barry 2001). Renner’s argument comes at the matter from a different angle. Rather than addressing the matter of group recognition from a distributive angle that asks what nations or cultures need in order to be afforded social equality, he looks at the issue from a juridical perspective, asking what place the concept of the nation has in relation to the state. This is important because the immediate context of Renner’s article is the multi-nation structure of the Austrian state in 1899. The emergence of the idea of the nation state obviously challenges the idea of multinational polities. Each state should have its own national identity as a condition of coherence and stability over time, and each nation will in due course seek selfdetermination as a sovereign state. The problem that Renner addresses is the inadequacy of the simple model of the nation state when confronted by multi-nation states such as the Austria of his time, and the way in which nations in such states are intermingled. Renner’s concern, then, is with the question ‘What to do with nations?’ and where they fit on the juridical map of the modern state. The nationality principle seems to threaten the existence of states with the constant danger of secession, with its implication that all nations must in the end aspire to statehood, and that the only coherent states are unitary national states.2 Renner’s answer is to distinguish the respective jurisdictions of nations and states, so that nations are not seen as proto-sovereign states constantly threatening the coherence of

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existing states. Against those who defend the nationality principle in relation to the state, Renner (above: 27–8) argues that the state is a creature of will, whereas the nation is a creature of thought and feeling. It is the difference of ‘existential condition’ that underpins his argument. The authority of law, and therefore of the source of law, the sovereign state is the acknowledgement of a collective will expressed through that law. This is different in kind from the authority of the nation. Here we acknowledge national ties through affection, feeling and expression, rather than through will and obedience. In sustaining this distinction, Renner claims that the nation is properly considered a cultural community.3 As such, national recognition involves the accommodation of national cultural identities but not political autonomy and self-determination, and it does not raise any issues of political obligation. Thus membership of a national community and membership of a multinational state are not antithetical. This existential distinction is coupled with the further distinction between the personality and territorial principles as criteria of national group membership. Renner (above: 20) draws an analogy between national identity and ‘confessional affiliation’. Confessional membership is a matter of individual expressions of will, in that churches cannot command submission. Similarly, in modern states confessional communities overlap in particular territories. Although a Catholic diocese may claim to be a territorial community, its bishop can claim authority only over those Catholics who submit to that authority. It does not extend over Jews or Protestants whose own confessional jurisdictions overlap with the Catholic diocese. The issue of identification is therefore personal, not territorial. According to Renner, the issue is the same with respect to national identity. Nationality is determined by individual identification and not by territoriality, so territoriality has no place in the account of national recognition. The latter does not confer territorial autonomy, nor does it recognize the peculiar status of particular territories in the account of national identity. In making this argument Renner (above: note 20–1) characterizes cultural nations as voluntary associations whose claim to self-determination in respect of cultural autonomy and preservation is derived from the prior rights of individual self-determination. In making this argument, Renner’s position is similar to the classical liberal multiculturalism of Chandran Kukathas (2003). In characterizing cultural and national groups as voluntary associations, both are making a point about their juridical status and not about social ontology. Both can accept that in practice cultural and national identity is not something that is chosen, that it is often an identity that is imposed on one or that one finds oneself born with. Cultural communities are in that sense communities of fate, just as confessional communities. Most Catholics are no doubt born into the faith, and according to many authorities all Jews are born into that nation and confession. Neither Renner nor Kukathas is compelled to deny this. Rather, their point is merely that from the point of view of jurisdiction, nations and confessional communities are voluntary in that they cannot exercise civil and political jurisdiction over their members without their consent. Furthermore, if one rejects the authority of such bodies the implications are different in kind from those of rejecting the power of the state. Renner’s analysis of the proper relationship of state and nation is interesting to contemporary political thinkers, because it reconciles the claims of nation and political authority in a way that does not assert one nation or state as the ideal. This ideal of the nation state has had a large, and some would argue malign, impact on the progress of

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twentieth-century European politics. As we move into a world in which the nation state is supposed to be in retreat in the face of globalization and, in the European context, ‘ever closer union’ the idea that multinational political entities are juridically coherent is particularly important in overcoming the dominance of a naive statism. Yet Renner’s argument proceeds by way of analysis and distinction. In the next section I will assess whether this method does not beg substantive and controversial questions about the normative significance of nationality.

II As mentioned above, Renner’s argument is concerned with distinguishing the juridical claims of nation from those of the state. However, that method of distinction is not as simple and straightforward as Renner suggests. This is because in distinguishing the juridical nature of the nation as a cultural entity and not a creature of will, he is taking sides on a contested issue between different theorists of nationality. Like many liberal egalitarians, I am largely sympathetic to his understanding of nation (although not necessarily to his strategy for accommodating nations), but I am sceptical of the argument he deploys. What is missing from Renner’s article is an account of the normative significance of nation and other cultural communities. This is an issue fraught with difficulties, but as multiculturalists such as Kymlicka, and cultural nationalists such as Tamir, have shown it is not an issue that one can ignore in making a case for group recognition. Renner studiously avoids addressing the issue of why nationality is important. This issue has two dimensions. It has a first-person dimension, namely: why is nation or cultural community important to me? It also has a third-person dimension, which asks why it should be important to nonmembers, at least to the extent that they have a duty to respect the cultural integrity of a community or nation. So why does Renner take nations seriously? The simple answer is that he is confronting a multinational political entity and is concerned with its coherence and governance. The nationality principle of ‘one nation, one state’ is inherently destabilizing; therefore, like multiculturalists in the Atlantic democracies, Renner confronts the ‘circumstances of multiculturalism’. Renner presents this as a political fact and that consequently the claims of nations need to be addressed. His consideration of the respective jurisdictions of state and nation is a way of addressing that problem. But this simple answer will not do on its own, any more than it will do in the case of contemporary multiculturalism. The issue at stake is how we should deal with cultural communities and minority nations. There are a variety of candidate approaches we can adopt, all of which make normative claims. At least four approaches suggest themselves as the main candidates, and these can each be subdivided into different versions. 1 The nationality principle. 2 Benign neglect (libertarian). 3 The cultural argument (liberal multiculturalist). 4 The liberal egalitarian argument. I will take each in turn.

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The natioality principle claims that nations are communities of people who relate in a particular way as a political community and claim a right to be self-determining. The solution offered by the nationality principle, in the context of multi-nation states, is the ideal of secession and new statehood. Renner dismisses this approach on the grounds that nations are often dispersed in multinational polities, therefore the territorial principle cannot hold. But this argument is a purely practical constraint that may or may not hold in some cases. Thus nationality theorists such as David Miller (1995) do appeal to some ideal of territorial concentration as a condition of being fully self-determining. A nation can claim statehood or political self-determination only when this condition is met. If one applies this principle to Renner’s Austria of 1899 we end up with some nations gaining statehood and others becoming minorities in the new nation states. This may well not be a satisfactory solution, but we need to know why Renner rejects it. There is nothing inherently implausible about adopting the nationality principle, constrained by some consideration of practicalities. The second response is benign neglect. This is the view that libertarian multiculturalists such as Kukathas adopt towards the issue of cultural survival. On such a view the maintenance of culture or nationhood in a multination state is a purely private matter and none of the business of the state. On the issue of whether cultures or nations flourish or are absorbed into dominant cultural hybrids is a contingent matter and not a matter of principle. Given Renner’s concern to distinguish the juridical nature of the nation as a community of intellect and affection from the state as an association based on will (Renner above: 27), it might seem wholly appropriate to adopt this benign neglect model. Nations are effectively voluntary associations, and therefore a private matter, so why do we need to accommodate them other than to acknowledge them by way of legal permissions? Given that Renner claims that nations are analogous to voluntary associations, one could make the case that his defence of the nationality principle is fulfilled by a strategy of benign neglect. People can identify as cultural groups, but that does not entail any political recognition or even interest on the part of the state, unless they violate the civil rights of other individuals and associations. Many multiculturalists influenced by the work of Will Kymlicka are dissatisfied with the benign neglect approach, as it can obscure coercion by numerically dominant cultural groups, and thus adopt the third approach. This is particularly an issue in multi-nation polities where each nation does not necessarily enjoy equality of status. Because culture is an essential component of an individual’s identity, its denial or subjugation is, in effect, a denial of equality of status. Consequently, many multicultural theorists claim that cultural recognition is not merely a juridical question, but also a question of justice. As a question of justice, cultural recognition must involve rights to group protection but also where necessary a transfer of resources to compensate for linguistic and cultural marginalization. In practice this can involve majority cultural groups subsidizing minority cultural radio and television stations, disproportionate spending on education in minority languages and possibly even affirmative action programmes.4 Renner (above: 37–9) does not acknowledge any of these obligations directly, though he does acknowledge that the state must guarantee a minimum standard of provision for those goods that are considered national responsibilities, for example education. What he does not provide is an account of why the claims of culture are important enough to ground

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principles of fair treatment extending to resources, and not just legal permissions. I will return to this issue in the final section. The fourth approach is often associated with liberal egalitarian critics of multiculturalism. This approach tends to ignore the normative claims of cultural and national groups, regarding these as effectively voluntary associations. Liberal egalitarians concede the significance of culture at the personal level, so they can accommodate many Kymlicka-type arguments. But they reject the idea of group-specific rights and exemptions as an appropriate means of addressing these issues. Instead they reassert what the multiculturalists challenge, namely the idea that equal rights and resources are the appropriate way to deal with the inequalities and injustice that result from group membership and identification. Consequently, the liberal state is obligated to ensure a high enough level of citizen equality to ensure fair equality of opportunity sets. Whatever resulting inequalities remain will be the result of individual choices within these opportunity sets and therefore will reflect choices, as far as possible, rather than structural inequalities and luck. Once such a system of substantive citizen equality is realized, the issue of national recognition can become an issue of benign neglect, as national membership will not adversely affect any individual citizen relative to any other. However, in this case, the liberal egalitarian does try to make the issue of cultural and national neglect genuinely benign and not merely an excuse for domination by a majority group. The other important feature of this solution is that it can accommodate the claims of individuals without having to impose membership upon them, so that no person is dependent upon group membership for access to equal treatment. The point of outlining each of these approaches is that they all involve different normative approaches to the nature and significance of national identity and membership. Renner clearly takes a view of nations which excludes at least the first approach of nation as a political identity. That argument is not adequately made against a nationality theorist such as Miller, who would accept part of the cultural argument that Renner offers but deny that this warrants the simple jurisdictional separation that Renner goes on to defend. Instead Miller offers a model of nations as effectively voluntary cultural associations with only the weakest of defences. But that still leaves open the three other models—the libertarian, the liberal multiculturalist and the liberal egalitarian. All these are consistent with his account of the nation (to a greater or lesser degree), although they each address the problem of the nation and cultural groups in different ways. That Renner (above: 38) rejects the libertarian model of benign neglect is clear, both from his strategy of national cultural recognition which affords competence to nations for the provision of goods such as education, and for the subsidy of a minimum level of provision where this cannot be provided from a national culture’s own resource base. This suggests that he is not concerned simply with preserving cultural diversity where it exists, but rather with protecting it because it is a good of and for persons. Such an approach might well suggest that his argument tends towards that of contemporary liberal multiculturalists such as Kymlicka and liberal nationalists such as Tamir, where the conferral of groups rights, recognition and competence is an implication of a substantive understanding of the nature and value of cultural groups. This confirms that Renner’s jurisdictional analysis of the relation between state and nation is substantive and not analytical and that it carries with it some of the normative commitments that underpin his social democratic political philosophy. Thus Renner’s distinction depends

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upon a substantive rejection of more communitarian defences of nationality and therefore, he begs the question against many of those who insist that territoriality is interlinked with cultural affiliation.5 Furthermore, as I show in the next section, the position Renner adopts concerning national culture makes it an instrumental good. As such its recognition is merely one among a number of candidate strategies that might be adopted for securing the equal recognition of person or citizen equality. But if citizen equality is the real issue then cultural recognition comes into conflict with the prior demands of equal recognition.

III In the previous section I claimed that Renner’s analytical approach masked a substantive defence of a particular theory of national cultural membership and significance. Indeed, the very characterization of nations as cultural communities is the clearest indication of this. What I want to suggest in this section is that the idea of national cultural recognition is a policy derived from a prior substantive commitment to citizen equality and that where this conflicts with cultural claims it will always have priority. But, more important, I will also argue that the strategy of citizen equality can be achieved only by subordinating national recognition to a liberal egalitarian distribution of equal opportunity sets (Kelly 2004; Barry 2001). As we have seen, Renner adopts a conception of national cultures as voluntary associations within a framework of civil law. Cultural communities are acknowledged by the permission of the law, that is, they emerge when citizens exercise their civil and political rights. That said, we have also seen that he rejects one possible implication of this position, namely benign neglect. Why is this? If nations are merely associations that exist through the self-determination of individuals, why does the state need to take any further cognizance of them? Renner does not give the answer explicitly, but the answer I have suggested is that he regards the recognition of national culture as valuable to persons and not simply because he thinks national diversity is a good in itself within a multi-nation state. This gives him a reason for rejecting benign neglect as the appropriate response to multinationalism. Benign neglect can mask cultural domination as it turns a ‘blind eye’ to the fact of cultural and linguistic inequalities and to the ways in which majority nationalities can absorb and colonize minority nations. If benign neglect is left unchecked then dominant nations can exploit their positional advantage in the decisionmaking structures of the state and divert resources and opportunities or control access to them. This is the nationalities problem that Renner sets out to address in his essay. But as I have suggested, to make a case that there is something wrong with this strategy, we need an account of distributive justice that explains why such dominance is not merely the neutral procedural outcome of a democratic decision-making structure. My claim is that Renner is concerned about the substantive unfairness of benign neglect because it requires some individuals, simply by virtue of their national identity, to bear a disproportionate share of the costs of social co-operation. This argument depends on the relatively noncontentious point that having to seek education, and other opportunities such as access to the courts or public institutions, in a language other than one’s own is more costly in terms of time, effort and resources than accessing those

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opportunities in one’s own language. Members of the dominant language community therefore access such goods and opportunities at a lower cost, if they can use their political power to privilege the majority language in the public realm or education. But the injustice here is more than one of unequal opportunity costs. The more substantive point is that, in institutionalizing dominance, the majority nation can require the minorities to subsidize the positional advantage of the majority group, through taxation for the public education system. Minorities can end up paying for their own subjection, and this cannot be right, as it means that the value of citizenship is effectively rendered unequal. Renner’s solution to the problem is to demarcate a sphere of responsibility that can be conferred on nations as a way of undercutting this possibility of domination. In particular, he is keen to franchise education and the maintenance of cultural goods to nations (Renner above: 38–9). Neglect is not benign, so he delegates responsibility to national communities. However, we can see from the way that he does this that he regards it as a way of securing citizen equality. For even at this level he does not allow that, cultural maintenance having been franchised out to nations, the state can adopt a stance of benign neglect. The state has a legitimate interest in ‘the welfare of the individual being promoted’ (ibid.), so there is an implicit duty to ensure social justice and fairness. This is consistent with Renner’s social democratic politics, although this article does not spell out the implications for structures of welfare provision. This notion of public responsibility is not only prior to, and distinct from, cultural protection and education, but actually cuts across national competence for these goods. Renner (above: 38) points out that the education system at all levels must have a minimum common content, and this is decided by the state. So national cultures can have some discretion over the language and cultural content (presumably the canon of literature, etc.) covered, but they cannot decide to completely restrict access to functional skills that would disadvantage students. Moreover, Renner argues that where a nation is small and ‘underdeveloped’ the state has a responsibility to transfer resources to achieve a minimum standard. As this is a state function, the justification can only be to ensure equal citizenship—otherwise he would have to appeal to some worth of a minority culture to warrant those of a different nation having to underwrite the cost of a minority nation’s language and culture. Interpreted in this way, Renner’s defence of national culture seems remarkably similar to the position of the liberal multiculturalist. It offers cultural recognition as a means of overcoming domination by a majority national community, but it also limits the scope of cultural competence to those measures that enhance the welfare of individual members. Thus the defence of national culture cannot override the claims of fundamental citizen equality, as some communitarian defences of national culture might claim. But just as this seems to leave national culture doing no serious work in the case of the liberal multiculturalist, so it seems to do no serious work in the case of Renner’s argument, because whenever there is a case of conflict between cultural protection and citizen equality, the latter always wins, and rightly so. Thus, as Barry suggests in his critique of contemporary multiculturalism, we are faced with a choice between culture and equality. Egalitarians will always choose equality, so the point of appealing to national culture is always dubious. We could just as easily achieve all the goods of cultural recognition by the liberal egalitarian’s preferred option of a distribution of equally valuable opportunity sets, within which individual citizens can pursue whatever projects they wish. If they

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wished to combine to form national cultural communities they could do so at no disadvantage, given that those opportunity sets would include educational opportunities of equal value. This approach would provide a robust response to the issue of positional advantage that we saw as the main normative problem of multinational societies, as no inequalities of opportunity could be justified merely on the basis of contingencies such as the size of one’s national community. One might conclude that this leaves very little for the idea of national culture to do. But the point for the liberal egalitarian, and I think for Renner, though he does not develop the point, is that cultural membership cannot be a ground for citizen inequality. In that sense culture must always give way to equality of treatment, and ultimately the object of equal treatment is citizens and not groups, as we can see from Renner’s account of nations as essential voluntaristic cultural communities. By way of conclusion I want to argue that the liberal egalitarian perspective is not only an alternative way of achieving Renner’s real aims, but it is actually superior in one important respect. As we have seen, Renner (above: 20) argues that individuals assume national identity by some kind of quasi-choice. This means that no individual is compelled to be a member of any particular national community. Such a policy recognizes issues of dual nationality, intermarriage, and so on. Where Renner departs from the liberal egalitarian view is that he makes access to certain goods, such as education, conditional upon membership of a national community. At one level this is inevitable, as all education has to have content—there has to be a choice about which literature to teach and more importantly about which language should be dominant as the first language of instruction. Where it becomes more problematic is that ‘representatives’ of a national culture decide these issues. These representatives are not accountable in the same way as political representatives who can be rejected by the body politic without calling into question its identity. In this way membership of a cultural nation can be considered a form of subjection. This proves problematic, as national belonging, in Renner’s model, is a condition of access to a certain set of goods, such as education, which has some elements that transcend culture. If access to a cultural good like education involves subjection to a particular understanding of national identity, where national identity even among those who share it can be deeply contested, then it is unclear how this can be compatible with citizen equality. It is partly on the basis of this issue of representation that some nationality theorists reject a purely cultural account of nationality. Cultural national identity can be a burden as well as a benefit and good, even for those who regard it as partly constitutive of identity. Members of nations argue about and dispute their heritage, identity and authentic culture, often with the same furore that marks arguments between nations. In this respect nations are like confessional communities that can be characterized as traditions of argument and dispute as easily as they can be described in terms of dogmatic coherence. It is partly in acknowledgement of this bivalence of national culture that liberal egalitarians tend to regard it as a private matter and instead construct the political identity of citizenship. As long as Renner’s argument for cultural recognition is based on the prior normative claims of individuals rather than the existential claims of nations as such, the strategy of national cultural recognition will always face the problem of representation within national cultures. The liberal egalitarian solution offers a way of addressing that issue which does not deny the

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claims of national cultures to their members, but does recognize the problem through the strategy of privatization and the assertion of the primacy of substantive citizen equality.

Notes 1 This fact is well illustrated by the need of textbooks in political philosophy and theory to address multiculturalism alongside traditional questions such as liberty, justice and political obligation. 2 This view is still echoed in the work of contemporary defenders of the nationality principle (Miller 1995; Moore 2001). 3 Yael Tamir (1993) offers a recent version of the argument that ‘nation’ is a cultural community, which can be acknowledged without entailing political selfdetermination. 4 I do not claim that Kymlicka endorses all these policies, merely that all of them can be derived from the idea of cultural equality as a component of just treatment. 5 This connection is made by both Miller and Tully (1995).

References Barry, B. (2001) Culture and Equality, Cambridge: Polity Press. Kelly, P. (ed.) (2002) Multiculturalism Reconsidered, Cambridge: Polity Press. Kelly, P. (2004) Liberalism, Cambridge: Polity Press. Kukathas, C. (2003) The Liberal Archipelago, Oxford: Oxford University Press. Kymlicka, W. (1991) Liberalism, Community and Culture, Oxford: Clarendon Press. Kymlicka, W. (2002) Contemporary Political Philosophy, Oxford: Oxford University Press. Miller, D. (1995) On Nationality, Oxford: Oxford University Press. Miller, D. (2003) Political Philosophy: A Very Short Introduction, Oxford: Oxford University Press. Moore, M. (2001) The Ethics of Nationalism, Oxford: Oxford University Press. Parekh, B. (2000) Rethinking Multiculturalism, Basingstoke: Palgrave. Tamir, Y. (1993) Liberal Nationalism, Princeton, NJ: Princeton University Press. Tully, J. (1995) Strange Multiplicity, Cambridge: Cambridge University Press. Young, I.M. (1990) Justice and the Politics of Difference, Princeton, NJ: Princeton University Press.

Part IV National cultural autonomy and contemporary models of regional integration

12 Territory, state and nation in the European Union How relevant is Renner? Michael Keating

European integration Renner’s article, published in 1899, is of obvious relevance a century later. It identifies one of the critical problems of contemporary politics, the lack of correspondence of state and nation. As Renner appreciated, and as we now know, it is futile to seek to reconcile the two simply by wishing one or other of them away, hoping that states can be broken into neat national components, or that nationalism will give way to universal liberal consensus. On the other hand, it is a mistake to exaggerate the conundrum. This is often done by people who label any linguistic or ethnic group a ‘nation’ or ‘nationality’ and then identify nationality claims with the demand to set up a separate state; from this it follows that the principle of national selfdetermination is unworkable (Gellner 1983; Connor 1978; Buchanan 1991). Rather, Renner accepted, unlike some modern versions of multiculturalism, that the nationalities question is not merely one of linguistic or cultural rights and tolerances, but are of self-government. A nationality claim is therefore a claim to self-determination, and such claims are not made by all cultural, linguistic or ethnic groups, so that the number is smaller than we might imagine. On the other hand, a claim to selfgovernment or even to self-determination is not necessarily equivalent to the demand to set up one’s own state so that the implications of conceding it are not always as radical as might appear. The concept of nationality also has a strong normative charge. Those who argue that it is meaningless because it is indefinable and, even if we could define it, we could not derive normative conclusions, are thus missing the point. Nationality always encompasses a claim and the question is how such claims can be reconciled in conditions of liberal democracy. Renner also recognizes a need for stability in a system providing for selfdetermination. This is no public choice-type approach in which anybody can constitute themselves as a self-governing community, changing and shifting according to convenience. He also sees the need for an overarching state framework both to lay down the rules of selfgovernment, to carry out a multitude of common functions, and even to provide the framework for class politics. Although the institutional details are sketchy, it is apparent that there are to be three levels of authority, the broader state level, the territorial self-governing level and the nonterritorial community, or ‘nation’. While these would be constitutionally distinct they would also be closely linked, with provision for

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missing out or merging levels where appropriate in the interests of economy or efficiency. This is a recipe not for a state in the normal sense, but for a democratizing multinational empire. It has obvious resonance in present-day Europe. The European Union is emerging as a level of government dealing with market issues, externalities that are difflcult for lower levels to manage, and with a wide range of functional competencies. It is not invested with a heavy emotive value, but is more than a mere holding company or institutional mechanism. It has an underlying value system, increasingly explicitly articulated, a democratic ethos, a (weak) common citizenship and a set of rights. While there is no common language one might argue that linguistic barriers to communication are being overcome, partly by increasing linguistic competence, partly by the use of English as a common medium. Below this there are the states, territorially defined, possessed of vitally important functions and corresponding, in varying degrees, to national or cultural communities. At the third level are stateless nations, nationalities, cultural communities and regions. As in the late Habsburg Empire, the system is highly asymmetrical. In some cases, culture, nation, territory and state coincide rather well and there is just one significant level of authority below the European one. In other cases, there are stateless nations nested within states but with their own territorial identity, so permitting descending degrees of territorial authority (as in Great Britain). In others, different national groups share the same territory, or the same national group exists across two states, or both—as is the case in Northern Ireland. Some cultural groups do not have a territorial basis, and some of these might make claims to self-government or self-determination. Some of Renner’s other observations also strike a chord in the early twenty-first century. He notes the growth of sectoralized forms of law, such as commercial law, maritime law or mining law, and proposes to add the law of nationalities. Present-day political scientists and sociologists point to the growth of private government, networks and ‘governance’, ideas which are often conceptually unclear but which refer to the retreat of governing capacity from the hierarchically organized state. If we are in a world of ‘multi-level governance’ (Hooghe and Marks 2001) it might seem relatively easy to insert non-territorial nationalities into the matrix. This is not a completely new phenomenon. Twentieth-century political scientists pointed to non-territorial forms of accommodation and self-rule under the heading of ‘consociationalism’ (Lijphart 1977) although usually without reference to the AustroMarxists (Bowring 2002). Forms of group self-government have persisted in many European countries, in the form of the rights of churches to run their own schools within the state system and to tax their members, although constraining versions of these arrangements, which provided some of Renner’s inspiration, tend to be residual.1 European integration and globalization, with their tendency to relativize and demystify the state as just one form of political authority, have also stimulated a historical revisionism in which older forms of complex government are being rediscovered and refurbished. These provide an intellectual and even a legal base for emerging forms of divided sovereignty (Herrero de Miñon 1998). There is, certainly, a renewed tradition of constitutionalism that emphasizes the lack of hierarchy and the need for mutual recognition (Tully 1995) and an increasing interest in constitutional pluralism (MacCormick 1999; Walker 1998).

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Europe may also provide an answer to another objection often urged against communal recognition and self-rule, that dividing the population up into exclusive national groups destroys civic equality and common rights. In modern Europe, common rights are enshrined in the European Convention for the Protection of Human Rights and other instruments, including the European Union’s Charter of Rights. These instruments vary in their enforceability and in the constraints they impose, but are generally interpreted in a way that allows a dialogue between universal norms and local and communal ones. So to the extent that international or continental systems of civil and human rights are in force, it is less important for the nation state to sustain a symmetrical regime across territories and communities. This then shifts the question to the sort of rights that need to be enshrined at the supranational level and the scope for variation. It also shifts the debates from political chambers into the legal arena.

Deterritorialization or reterritorialization Another parallel with the Europe of Renner’s day is the communications revolution, at that time the telegraph and the steamship, in ours the Internet and satellite. Both have seemed to bring the promise of breaking the link between space and time, and of facilitating virtual communities of people situated at great distances from each other. There has been a lot of talk in recent years of the end of territory (Badie 1995) or the borderless world. There is a literature, already noted, on the transformation of government, marked by hierarchy and territory, to governance, characterized by networks across time and space. Public choice theories abound, showing how groups of individuals can band together to form selfgovernments, notably for the common provision of services. This, for a time, became the dominant way of thinking about the best way to organize local government in the United States, pushing aside the earlier consolidationist ideas.2 New Public Management preaches the separation of the provision of services from the production of services. In this way, small and flexible communities can decide what services to have, but the services are actually purveyed by independent suppliers able to operate on the right scale and with the right skills. Languages and cultures can be sustained and developed through virtual communities of people separated by continents. Yet the nineteenth-century communications revolution did not hinder, and indeed greatly helped, the rise of the nation state. Similarly, in the twenty-first century, we are seeing less a deterritorialization of politics and social life than their reterritorialization at new levels. This is for a combination of functional, political and normative reasons. In a globalizing world, it is increasingly recognized that the nation state may be less relevant; but the process of economic change is highly dependent on the characteristics of specific territories. The ‘new regionalism’ emphasizes the importance of locally embedded practices and networks of interdependence, especially in small and medium-sized enterprises (Keating et al. 2003). Face-to-face contact or at least close proximity appears to be most important in what would seem to be the least territorialized production sectors, like financial services or computer software. Language and culture, and policies to secure them, are increasingly territorialized, as we see in cases such as Quebec, Flanders, Catalonia or Wales. Nor is it easy to separate matters of culture and language from deterritorialization while matters of economic development are provided on a territorial

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basis, since there is an intimate connection between collective action in the cultural sphere and development itself (ibid.). This is because the collective action and norms underpinning modern development strategies are intimately linked to cultural norms, their production, reproduction and instrumentalization. Self-government, in the modern world, requires not merely the absence of constraint, or constitutional autonomy, but also the capacity to mount a project for society and to manage functional tasks. Politically, territory remains the basis of organization and mobilization. This is clear even from the various no-global movements which, while cosmopolitan in their general philosophy, tend to be deeply rooted in local and territorial struggles. Elsewhere, political mobilization on a nonterritorial and transnational basis is scant, even in Europe, where there are clear opportunities for it. Normatively, territory remains one of the least exclusive bases for political authority and other ways of drawing boundaries, including cultural autonomy proposals, raise serious questions of principle. Consociationalism has been widely criticized for its tendency to reify and freeze ethnic groups and boundaries. Renner uses the linguistic criterion determining nationality, but this is only one of many that might be employed. Maps of the ‘nationalities’ of Europe proliferate but seem to agree only on one thing, that the state borders are not relevant. Identity, including nationality, is nowadays seen as fluid, contextual and often multiple. Certainly, many common services are provided to non-territorial groups, but this is not the same as group self-government. Liberal principles about groups dictate that individuals should join them voluntarily and be free to exit. In this case, the boundary is not critical, since the group is not constraining. Selfgovernment implies a jurisdiction which individuals cannot leave at will. Of course, territorial government is also constraining and exclusive, as drawing a territorial boundary necessarily includes some people and excludes others. It does, however, allow governments and political movements to declare that everyone within the boundary belongs, whatever their other ascriptive characteristics. Territorial forms of government even allow for some opt-out, to the degree that people can move, which, to a degree, they can do within the European Union. Hence the increasing, if not universal, tendency for both states and stateless nations to adopt territorial and inclusive rather than ethnically exclusive criteria for membership (Keating 2001, 2004). The more radical versions of constitutional pluralism, in which competing forms of general-purpose authority coexist in the same territory and everything is continually up for negotiation, also raise normative problems. Renner’s prescription for travelling judges able to hear cases in different languages does not seem to address this at all. It appears to be based on the need for understanding the same laws rather than a radical legal pluralism in which different types of law would coexist, since Renner suggests that an acceptable substitute would be interpretation services. These effects are visible in Belgium, which has adopted a version of Renner’s mixed territorial and personal scheme for autonomy. There are three regions, Flanders, Wallonia and Brussels, responsible for territorial matters including infrastructure, planning and economic development. Three linguistic communities, the Flemish, the French and the German, look after ‘personalizable’ matters including education, health and social services (Brassinne 1994). The language communities were never purely personal, since they have definite territorial boundaries, except in Brussels, but, in accordance with Renner’s ideas, there is little provision for minorities. Again as in Renner, there is

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provision for the language communities to delegate their work to the territorial regions, and this has happened to a very great extent, largely because of the poor finances and administrative capacity of the communities. Indeed, in Flanders the region and the community institutions have been merged, with complex special arrangements for Flemish-speakers in Brussels. On the French side this has not happened, but Frenchcommunity tasks are increasingly carried out by the regions. The consociational provisions in South Tyrol/Alto Adige have similarly given way largely to strengthened territorial autonomy for the two component provinces. In Canada, the community of French-Canadians has largely dissolved in favour of a Québécois nation on the one hand, and francophone minorities elsewhere on the other. States themselves remain a powerful force in socialization and the creation of territorial identities, even when these cut across historic nationalities. French and Spanish Basques may share an important cultural legacy and identity, but they also differ in important ways as a result of their incorporation into two states. The result is a complex pattern of identities in border and contested regions, in which neither territory nor personal identity gives a clear-cut answer as to where individuals belong. So we are seeing, not so much a deterritorialization of politics as its reconstitution at new territorial levels. In some places, nationality politics and the new regionalism have come together to create a largely territorial logic, in which territorial devolution provides the answer to national accommodation. Clear examples might be Scotland or Catalonia. This is not always because of a natural coincidence here between nationality and territory, but often because of how the nationalities movement has evolved in the context of state and European structuring over recent decades. So modern Flanders, a territorial, cultural, political and economic unit, is a creation of the modern era, corresponding neither to the historic counties of Flanders nor to the traditionally Dutch-speaking areas of the Netherlands.3 Wales, previously divided by language, has found a new unity as a British and European ‘region’ with common economic and political interests. Other regions remain divided between two or more communities but even here it is hard to see how a non-territorial solution will address the problem. Northern Ireland is contested between nationalists and unionists but their aspiration is not to gain their own cultural and community institutions (they have many of these already) but to define the national identity of the territory itself. The Basque Country is divided, not so much between two national cultural communities as between those who want the territory to remain part of Spain and those who want it to leave. The relationship between these attitudes and being Basque by ancestry or language is at best approximate (Keating 2001).

Partially territorial government Of course, Renner himself recognized that territory was still an important structuring feature, hence his recommendations for continued autonomy for the Crown lands. My objection is to the idea that a system of generalized non-territorial autonomy could exist alongside this, at least without a lot more attention being paid to the relationship between the two. In a modern welfare state it is very difficult to separate personal services from the territorial ones unless we adopt the Public Choice view that integration does not

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matter or can be left to the market. This view, in turn, is directly contrary to the very principle of nationality, namely that there are common interests and that nations should be able to pursue their own projects for autonomy. Yet, while keeping the territorial principle as the basis of autonomy, we can take on board new thinking about territory, which sees spaces as open and flexible (Paasi 2002) with ‘fuzzy borders’ (Batt 2003), rather than fixed, with rigid borders. An extreme example of this approach is the Good Friday Agreement for Northern Ireland. The cen-trepiece of this is a form of territorial self-government, which is intended to allow the province to take advantage of the opportunities for wellmanaged regions in the new Europe. There is a consociational form of power sharing within the province, recognizing the existence of two national traditions. There is also, crucially, provision for each of these to retain an external expression, an all-Irish and a British one respectively. There is very little in the way of non-territorial community selfgovernment beyond what exists already in the form of separate school systems. Several Central and Eastern European countries have passed laws allowing co-nationals in neighbouring states certain citizenship rights (Fowler 2002; Venice Commission 2001).4 Of these, the Hungarian law caused a major diplomatic incident, since it was seen as a gentle form of irredentism. In other political circumstances it, like the corresponding laws elsewhere, could be presented as a way of accommodating nationality questions without threatening the border. Another way of working around the territorial conundrum has been through crossborder cooperation. Ironically, the prerequisite for such cooperation has been the mutual recognition of the border itself, both by states and by communities on either side, so that people will not feel threatened by its penetration. Such is now the case across most of Europe, so that cross-border initiatives have developed in Ireland, between Italy and Austria and between Germany and Denmark, encouraged and facilitated by both the European Union and the Council of Europe. In these, it is possible for the full complexity of border identities, moulded as they are by state, nation and locality, to find their full expression. In modern Europe, as in the Habsburg Empire, there are systems of territorial autonomy. Every large state in Europe now has some form of regional or ‘meso’ government and these are increasingly embedded in European as well as state-wide networks. As with the Habsburg Crown lands, these are sometimes consistent with historic cultural or nationality lines, sometimes vaguely so. Scotland, whose national identity has long had a strong institutional base, enjoys a clean fit between territory and national aspirations.5 In France, historic regional boundaries are less clear and the administrative regions set up in the 1960s were designed to obscure them further. It is probably impossible to come up with a territorial limit to the Basque Country. In other cases, there are parts of a historic or cultural territory left out, or contested. Flemish nationalists have a strong claim on Brussels, both because of the Flemish-speaking minority there and for historical reasons. Roussillon, in France, is historically Catalan by culture, was formerly united with it politically and is seen by Catalan nationalists as part of their homeland. In the integrated territorial nationalities like Scotland, territorial devolution (or indeed independence) provides a response to nationality demands. In other cases, territorial selfrule with an opening to conationals in other territories may be the answer, similar to the forms of opening discussed above in relation to states. So the autonomous government of

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Catalonia may provide a reference point and source of cultural production for Catalans in Roussillon, without their having to join Spanish Catalonia politically (which they do not in any case want to do). The French state in turn may, and indeed has, recognized the Catalan heritage and tradition of Roussillon. Basques in Navarre may similarly look to the autonomous government of the Basque Country without destabilizing the autonomous government of Navarre, which has its own historic legitimacy comparable to the old Austrian Crown lands. Such a territorial mosaic implies an asymmetrical form of territorial government in Europe and within its states, in which different combinations of identity and function are found in different places. At present we lack a vocabulary for such forms of government. The literature of the ‘new regionalism’ is of some help in identifying new forms of selfgovernment below, beyond and between the state system. Scott (1998) writes of ‘regional directorates’. The term ‘regional state’ was coined by Ohmae (1995) in a rather breathless but acultural and ahistorical account of the emergence of regional systems which are supposedly replacing the nation state. The term is taken up in the context of the nationalities debate by Gagnon (2001), who sees the constitution of a regional state as a way out of the Quebec dilemma between federalism and independence. Catalan authors, in recalling Catalonia before 1714, have written of it as an incomplete state, but a state nonetheless (Sales 1989). Jellinek (1981) in the nineteenth century wrote of fragments of state, entities that have some but not all of the characteristics of statehood. The problem with all these formulations is their implication that the new territorial systems of action are somehow incomplete or unfinished, when the point is that such systems can never be complete, since they evolved in response to changing historical conditions. Such a system of modified territorialism would not, in itself, solve the minorities problem, since self-governing territories would have their own minorities. Renner makes the point, in his comments on territorial governments, that respect for minorities may be self-reinforcing, since majorities in one place will be minorities elsewhere. This may or may not be true6 and in any case it looks suspiciously like a rational-choice argument rather than a sociologically informed one. Even if such a system of mutual tolerance can be constructed, there needs to be a mechanism to prevent defection and free riding. So an overarching minorities protection regime will still be needed. Europe has gradually been putting in place such a regime, through a variety of instruments, including the Council of Europe with its Framework Convention on National Minorities and Charter of Regional and Minority Languages; the Organization for Security and Co-operation in Europe with its High Commissioner for Minorities; and the European Union with its Copenhagen Criteria for candidate countries. This is not a strong regime. It is largely at the discretion of states and the Copenhagen criterion on the protection of minorities was not, like the other criteria, incorporated in the acquis de l’Union. This should not be confused with Renner’s proposal, since it does not provide for self-government and its guarantees are aimed at individuals belonging to minorities rather than minorities as collective entities. It thus complements, rather than replaces, systems of autonomy which, however imperfectly, remain territorial.

Notes

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1 Late examples were the Montreal school boards, which required voters to declare themselves Catholic or Protestant but which have now been replaced by linguistic ones. There were, until the 1990s, six different types of religious school in Newfoundland but no secular ones. 2 In a curious reference to Central Europe, one municipal government incorporated in Pennsylvania in the 1980s was the Slovene National Benefit Society, whose main objective seems to have been to award itself a liquor licence. 3 The stability of the language border itself is often exaggerated. Brussels and parts of northern France were historically Flemish-speaking. 4 Slovenia, Romania, Hungary and Slovakia passed such laws and Poland considered it. 5 The Orkney and Shetland Islands are the only parts that have shown reticence about Scottish nationality in modern times and even they voted heavily for home rule in 1997. 6 For example, the Aranese are a minority in Catalonia but not a majority elsewhere.

References Badie, B. (1995) La Fin des territoires: essai sur le désordre international et sur l’utilité sociale du respect, Paris: Fayard. Batt, J. (2003) ‘“Fuzzy Statehood” versus Hard Borders: The Impact of EU Enlargement on Romania and Yugoslavia’, in M.Keating and J.Hughes (eds), The Regional Challenge in Central and Eastern Europe: Territorial Restructuring and European Integration, Brussels: Presses interuniversitaires européennes. Bowring, Bill (2002) ‘Austro-Marxism’s Last Laugh? The Struggle for Recognition of National Cultural Autonomy for Rossians and Russians’, Europe-Asia Studies, 54(2):229–50. Brassinne, J. (1994) La Bdgique fédérale, Brussels: CRISP. Buchanan, A. (1991) Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec, Boulder, CO: Westview Press. Connor, Walker (1978) ‘A Nation is a Nation is a State, is an Ethnic Group, is a…’, Ethnic and Racial Studies, 1(4):379–400. Courchene, T.J. (2001) A State of Minds: Toward a Human Capital Future for Canadians, Montreal: Institute for Research in Public Policy. Fowler, B. (2002) Fuzzing Citizenship, Nationalising Political Space: A Framework for Interpreting the Hungarian ‘Status Law’ as a New Form of Kin-State Policy in Central and Eastern Europe, One Europe or Several Programme working paper 40/02, Brighton: Sussex European Institute. Gagnon, A.G. (2001) ‘Le Québec, une nation inscrite au sein d’une démocratie étriquée’, in J.McCure and A.G.Gagnon (eds), Repères en mutation: identité et citoyenneté dans le Québec contemporain, Montreal: Québec-Amérique. Gellner, E. (1983) Nations and Nationalism, Oxford: Blackwell. Herrero de Miñon, M. (1998), Derechos históricos y constitución, Madrid: Tecnos. Hooghe, L. and Marks, G. (2001), Multi-level Governance and European Integration, Lanham, MD: Rowman and Littlefield. Jellinek, G. (1981) Fragmentos de estado, Madrid: Civitas. Keating, M. (2001) Plurinational Democracy: Stateless Nations in a post-Sovereignty Era, Oxford: Oxford University Press. Keating, M. (2004) ‘European Integration and the Nationalities Question’, Politics and Society, 32(3):367–88. Keating, M., Loughlin, J. and Deschouwer, K. (2003) Culture, Institutions and Economic Development: A Study of Eight European Regions, Aldershot: Edward Elgar. Lijphart, A. (1977) Democracy in Plural Societies, New Haven, CT: Yale University Press.

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MacCormick, N. (1999) Questioning Sovereignty: Law, State and Nation in the European Commonwealth, Oxford: Oxford University Press. Ohmae, K. (1995) The End of the Nation State: The Rise of Regional Economies, New York: Free Press. Paasi, A. (2002) ‘Place and Region: Regional World and Words’, Progress in Human Geography, 26(6):802–11. Sales, N. (1989) Els sigles de la decadència, Vol. IV of Història de Catalunya, Barcelona: Edicions 62. Scott, A. (1998) Regions and the World Economy, Oxford: Oxford University Press. Tully, J. (1995) Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge: Cambridge University Press. Venice Commission (2001) European Commission for Democracy through Law: Paper containing the Position of the Hungarian Government in relation to the Act on Hungarians living in Neighbouring Countries, Strasbourg: Council of Europe. Walker, N. (1998) ‘Sovereignty and Differentiated Integration in the European Union’, European Law Journal, 4(4):355–88.

13 Burial and resurrection Karl Renner’s controversial influence on the ‘national question’ in Russia Bill Bowring1

This chapter traces the winding path, replete with false starts and dead ends, which has been taken by the idea of national cultural autonomy (‘NCA’), through an exceptionally dynamic period of Russian history. Karl Renner’s ideas, which were never implemented in his native Austria, found an unexpected resonance first in the Jewish, then in the Muslim and Tatar, liberation movements in Russia. Buried by Lenin, Stalin and Trotsky, Renner’s model has been given an entirely unexpected resurrection in the conditions of post-Soviet Russia. My own interest in the Austro-Marxist concept of personal, or nonterritorial, autonomy, also described as cultural national or national cultural autonomy, started when I read Russia’s first state report on implementation of the Council of Europe’s Framework Convention for the Protection of National Minorities (‘FCNM’), submitted on 18 February 2000. This report freely admits that Russia has no law on national minorities, but asserts that in June 1996 it enacted a federal law ‘On National Cultural Autonomies’. The Russian Federation signed the FCNM on 28 February 1996 on joining the Council (Bowring 1997:629), and ratified it on 18 June 1998.2 This chapter follows the route of my exploration. As will be seen below, the Council of Europe is somewhat critical of certain aspects of Russia’s bold experiment.

Karl Renner’s model Four aspects of Karl Renner’s model are of particular significance for this chapter. 1 His guiding principle is that the nationalities question must be resolved through the rule of law. That means, as a matter of priority, that a ‘national group’ must have a juridical identity: it must be a (collective) juridical subject in the constitutional order. 2 He defines the nation and nationality in a controversial way, deliberately omitting the usual reference to territory. He asserts that there are three possible ways of determining nationality: ‘(1) On the basis of ethnological features. (2) On the basis of the native language. (3) On the basis of the spoken language’ (Renner above: 19).

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3 Instead, rather than the need for a territory, he seeks to draw a ‘fruitful analogy’ with the mechanisms, characteristically post-Westphalian and typical to this day of Austria, for the resolution of confessional problems. Religious conviction is necessarily a personal, individual matter. This analogy therefore leads Renner to the conclusion that national affiliation must be ‘a feature of the legal status of the individual’ (ibid.: 22). Once national groups are organized as juridical persons (on the model of corporations), these will then face the state, which Renner defines as ‘legal territorial domination’ (ibid.: 27), as contrasted with society, which is ‘factual personal association’ (ibid.: 27). 4 In sharp contrast to the later experiments, including the most recent Russian attempt, these non-territorial bodies would have the power to tax their members, and would then be responsible for all educational and cultural provision. Thus, Renner’s was probably the most radical of all the various prescriptions for nonterritorial autonomy, and it found a ready audience in the social democratic movements of the Russian Empire.

Lenin’s uncompromising stand against cultural autonomy Austro-Marxist ideas of non-territorial autonomy took root among the Jews of the Russian Empire, who had no ‘historic’ or ‘consolidated’ territory. The Jewish Bund (Algemeyner Yidisher Arbeter Bundin Lite, Poyln un Rusland) was founded in Vilna (now Vilnius, capital of Lithuania) in 1897 as a Jewish political party espousing social democratic ideology as well as cultural Yiddishism and Jewish national autonomism. The First Congress of the Russian Social Democratic Labour Party (‘RSDLP’) in 1898 decided that the Bund ‘is affiliated to the Party as an autonomous organization independent only in regard to questions specifically concerning the Jewish proletariat’ (The CPSU in Resolutions and Decisions 1954:14). It was influenced from the start by the ideas of Renner and Bauer, although Renner’s model did not allow for diasporas or scattered minorities. As Yves Plasseraud (2000:4) points out: [t]he leaders of the Bund and the Jewish Socialist Workers’ Party therefore took on the task of adapting Renner’s ideas to the situation of the Yiddish-speaking Jews of Central and Eastern Europe… The Bundist leaders proposed that Russia, like the Austro-Hungarian Empire, should become a federation of autonomous peoples. V.I.Lenin, the leader of the Bolsheviks following the split in the RSDLP in 1903, was a bitter opponent of the Bund and of the Austro-Marxist prescription. In October 1903 he published an article entitled The Position of the Bund in the Party’ (Lenin 1968a). He was especially critical of the Bund’s idea of a Jewish nation. He argued, ‘[u]nfortunately, however, this Zionist idea is absolutely false and essentially reactionary. “The Jews have ceased to be a nation, for a nation without a territory is unthinkable”, says one of the most prominent of Marxist theoreticians, Karl Kautsky’ (ibid.: 92).

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Lenin thus adopted Kautsky’s orthodox ‘scientific’ definition of the concept ‘nationality’, with two principal criteria: language and territory (Kautsky 1903). Both Lenin and Kautsky were in favour of Jewish assimilation. At the January 1912 conference of the RSDLP Bund, the Jewish Bund declared itself openly as having been influenced by Austro-Marxist theories of personal or nonterritorial national cultural autonomy. Consequently, at the August conference of the RSDLP Bund, it adopted a resolution ‘On National Cultural Autonomy’, including it in the programme of the party (Filippova 1998:66). Lenin’s reply was uncompromising. In 1913, in his ‘Draft Platform of the Fourth Congress of the Social Democrats of the Latvian Area’, he denounced the ‘bourgeois falsity of the slogan of “cultural national autonomy”’ (Lenin 1968b:117). He asserted that in Russia only the Jewish Bund members, ‘together with all the Jewish bourgeois parties’, had so far defended this concept. Later that year he devoted an article to ‘Cultural National Autonomy’ (ibid.: 503). He once more denounced this plan as ‘an impossibility’: A clear grasp of the essence of the ‘cultural-national autonomy’ programme is sufficient to enable one to reply without hesitation—it is absolutely impermissible. As long as different nations live in a single state they are bound to one another by millions and thousands of millions of economic, legal and social bonds. How can education be extricated from these bonds? Can it be ‘taken out of the jurisdiction of the state’, to quote the Bund formula? He added: It is no accident that in Russia this idea of Cultural National Autonomy was accepted only by all the Jewish bourgeois parties, then (in 1907) by the conference of the petty-bourgeois Left Narodnik parties of different nationalities, and lastly by the petty-bourgeois opportunist elements of the near-Marxist groups, i.e. the Bundists and the liquidators. Lenin particularly mocked the references to Austria: why should the most backward of the multinational countries be taken as the model? Why not take the most advanced? This is very much in the style of the bad Russian liberals, the Cadets, who for models of a constitution turn mainly to the backward countries such as Prussia and Austria, and not to advanced countries such like France, Switzerland and America!

Stalin’s ‘scientific’ contribution Also in early 1913, J.V.Stalin published, under Lenin’s instruction, his one substantial work of theory, ‘Marxism and the National Question’. This devoted a whole chapter to

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‘Cultural National Autonomy’, and was primarily designed as a reply to the Bund. Stalin (1913) attempted his own definition of a nation: ‘[a] nation is a historically constituted, stable community of people, formed on the basis of a common language, territory, economic life and psychological make-up manifested in a common culture’. It is noteworthy that Stalin’s definition of the nation is not so far from contemporary attempts. Anthony D.Smith (Guibernau and Hutchinson 2001:19) defines ethnie as ‘a named unit of population with common ancestry myths and shared historical memories, elements of shared culture, a link with a historic territory, and some measure of solidarity, at least among the elites’. Note the importance of the link with territory. Again, he defines the modern nation, in ideal-typical terms, as ‘a named human population sharing a historic territory, common myths and historical memories, a mass, public culture, a common economy and common rights and duties for all members’. John Hutchinson, too, contends that ‘[n]ations are distinguished in addition by a commitment to citizenship rights, and the possession of a high literate culture, a consolidated territory and a unified economy’ (ibid.: 75). They are all agreed on the importance of territory. Stalin’s next move was a critique of Renner and Bauer, insisting on the importance of territory: ‘Bauer’s point of view, which identifies a nation with its national character, divorces the nation from its soil, and converts it into an invisible, self-contained force’ (Stalin 1913). Stalin’s answer was as follows: there is no doubt (a) that cultural national autonomy presupposes the integrity of the multinational state, whereas self-determination goes outside the framework of this integrity, and (b) that self-determination endows a nation with complete rights, whereas national autonomy endows it only with cultural rights. He further warned that ‘Springer’s and Bauer’s cultural national autonomy is a subtle form of nationalism’. Applying his definition and critique to the national question in Russia, Stalin (1913) started with the assertion that ‘the right of self-determination is an essential element in the solution of the national question’. For ‘crystallized units’ such as Poland, Lithuania, the Ukraine, the Caucasus, and so on, he believed that national autonomy could not solve the problem, and the only correct solution was regional autonomy, for a definite population inhabiting a deflnite territory. The national minorities in each of these territories need not fear the result: ‘[g]ive the country complete democracy and all grounds for fear will vanish’ (ibid.). This would include equal rights of nations in all forms—liberty of conscience, liberty of movement, languages, schools, etc. This position was firmly repeated in Lenin’s ‘Critical Remarks on the National Question’, which includes a section on ‘The Rights of National Minorities’ (Lenin 1968c:33), and his ‘The Right of Nations to Selfdetermination’ of 1914 (Lenin 1968d:395). This last work, building on Stalin’s formulations, prefigured the Soviet policy, continued by Russia, of creating territorial autonomies within Russia.

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Non-territorial autonomy in non-Bolshevik revolutionary Russia Iraida Nam (2000) has provided us with a detailed account of what happened in 1917 and the years which followed. She confirms that the theory of ‘national personal (cultural, non-territorial) autonomy’ came to Russia from the multinational Hapsburg monarchy. In her view, this was distinguished by three defining characteristics: personalism; nonterritoriality; and recognition of the national community as a collective subject of law, competent from the point of view of representation and protection of the specific interests of that community. Although the Austro-Marxist idea had many non-Bolshevik supporters, one in particular, the Kadet (Constitutional Democrat) Party, saw it as a universal method of resolving national questions in multiethnic Russia, and a real alternative to the territorial model favoured by the Bolsheviks. Before 1917 the programme of the Kadets spoke only of a right to cultural self-determination, but the ninth congress of the Kadets in July 1917 made additions based on the classical model of national personal autonomy. Other parties—the Socialist Revolutionaries, Trudoviks, Mensheviks and many national parties—saw this model as the optimum solution to the problems of dispersed ethnic groups and minorities. Muslim Russia The first body to put the model into practice was the national religious unity of Muslim Russia, since 1905 active within the Kadet Party. In July 1917 the joint meeting of the three all-Russian Congresses (Muslims as a whole, military and spiritual) declared the Cultural National Autonomy of Muslims of Inner Russia and Siberia. The day of promulgation of the autonomy, 22 July, was declared a national festival of Muslims (Davletshin 1974:122–6). On 31 July the Second All-Russian Muslim Congress adopted a document entitled ‘Foundations of the National Cultural Autonomy of Muslims of Inner Russia and Siberia’, which foresaw the creation of a ‘Muslim Turk-Tatar’ status of juridical person. The practical setting up of the Cultural National Autonomy and preparation of the session of the National Assembly were entrusted to a commission of the Mukhtariat based in Ufa (now capital of the Republic of Bashkortostan) (ibid.: 112– 28). Thus, the Muslim Cultural National Autonomy incorporated nonterritoriality and recognition as a subject of law, while the third element, personalism, that is, the voluntary entry of an individual to a national community, was replaced by confessional criteria, the fact that TurkTatars belonged to Islam (Iskhaki 1993:45). Ukraine Furthermore, from 1917 to 1918, the idea of national personal autonomy was picked up by the Central Ukrainian Rada (Simonenko 1997). In September 1917 a Congress of Peoples of Russia took place in Kiev with the co-operation of the Rada. It declared the right of all peoples living in Ukraine to personal as well as to territorial autonomy. After

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the proclamation of the Ukrainian People’s Republic in November 1917, the Central Rada at its Third Universal declared national personal autonomy for the Russian, Jewish and Polish national minorities. On 9 January 1918 a law was enacted in Ukraine giving these three minorities the right to nonterritorial autonomy. Similar rights were envisaged for nationalities composed of more than 10,000 citizens. ‘This was the first law anywhere in the world on national personal autonomy with the character of a constitutional law, that is, including personal autonomy in the general constitutional framework’ (Laserzon in Nam 2000:4). The Ukrainian law differed from Renner’s classical model in that it made provision only for nonUkrainian minorities, thus depriving Ukrainians of the possibility of uniting with the hundreds of thousands of their compatriots living in the Kuban, in Siberia and in the Russian Far East. Siberia and Muslims A third attempt to bring national personal autonomy to life was made by the Siberian ‘Oblastniks’ at their congress which took place on 16 October 1917 in Tomsk. Their programme for minorities was close to that of the Social Revolutionaries: broad autonomy for Siberia in a federal demo-cratic Russia, with guarantees for minority rights through territorial autonomy for peoples living compactly, and non-territorial, personal national autonomy for ‘nations without territory’, such as Siberian Tatars, ‘peoples of Persian blood’, that is, Bukhartsy, and ‘Tungusky tribes’ (Portnyagin in Nam 2000:4). Their model was based on the principles of non-territoriality, personalism and recognition of national personal unions as juridical persons and subjects of law. The autonomies were to have jurisdiction over cultural and educational activities, religion and the economy— thus, a wide competence. The national unions were to have the right to raise taxes from their members, to borrow, and other financial powers (Zvyagin 1995:12). This congress was held shortly after the First Congress of the Muslims of Siberia and the Far East, which opened in Tomsk on 4 October. A Cultural National Centre and Central Council of Unions of Siberian Regional Muslim Councils was established for Siberia, to continue on a temporary basis until the session of the Siberian Regional Duma. The Muslim Selfgovernment in Siberia was also to have wide competence, not only over culture but over economic, military, professional and confessional problems. However, not all leaders of the Muslims in Russia agreed with national personal autonomy, especially after the Bolsheviks came to power. Thus, the National Assembly held in Ufa from 20 November 1917 to 11 January 1918 proclaimed the formation of the Idel-Ural State (Republic), a Muslim state with territory between the Volga and the Urals. Enclaves of the Muslim population in Siberia remained outside the borders of the UralVolga Republic. This meant that the Siberian Tatars did not receive any guarantees of national cultural revival (Zubkov 1999:60–5). Simultaneously the National Meeting worked out a constitution, the ‘Basic Principles of Cultural National Autonomy of Muslim Turk-Tatars of Inner Russia and Siberia’, and a series of documents on the administration of spiritual and cultural national affairs. The Ural-Volga Republic was dissolved by the Soviet power in March–April 1918. However, the Cultural National Autonomy of Muslims, whose leading organs were also dissolved, revived and continued until the end of the Civil War.

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Nam (2000:5) points out that the various all-Russian and regional governments which followed one another during the years of the Civil War had a variety of attitudes to national personal autonomy. The All-Russian Transitional Government (Direktoriya), which swallowed up all the regional governments, including Komuch and the Siberian government, and dissolved the Siberian Regional Duma, recognized both national territorial and non-territorial autonomies. When the Direktoriya was replaced by Admiral Kolchak’s government, which regarded all autonomies, territorial and non-territorial, as a limitation on state sovereignty, national minorities were left with no chance to realize their hopes. The last possibility of establishing national cultural autonomy at the start of the 1920s appeared in the short-lived Far East Republic. Its constitution, promulgated on 27 April 1921, and considered one of the most democratic of its time, gave the right of cultural national autonomy to Ukrainians, Jews, Koreans and Turk-Tatars. In November 1922 the ‘buffer’ republic was wound up and the Department of National Minorities dissolved. That was the end of the experiment in Soviet Russia. However, the model of national personal autonomy was further explored in the Baltic states which were granted their independence in 1919—an application of Lenin’s commitment to self-determination. For example, the newly independent Republic of Estonia adopted a Law on Cultural Autonomy in 1925, in accordance with Article 21 of its constitution. This gave the right of collective juridical personality to Russian, German, Swedish and other minorities whose population was not less than 3,000 persons. Each minority had its own national list (register). This lasted until the dissolution of Estonia by the Soviet Union.

Soviet nationalities policy It is no surprise, then, that the Bolshevik Party, and the Soviet regime right down to the year of its collapse, remained implacably opposed to the idea of ‘cultural national autonomy’, although it should be noted that at least one author continued to take it seriously during the Soviet period (Pletnyev 1922). The Soviet Union applied an ethnic, rather than civic, criterion, with surprising and paradoxical results. Khazanov (1977:126) argues that the Union was a ‘pseudo-federation of ethnoterritorial republics’, in which many nationalities were allowed various degrees of autonomy, depending on the extent to which their populations compactly occupied a particular territory. Thus, state-controlled ethnic identity became decisive, through the connecting of nationality with specific territories, often with arbitrarily drawn borders, linking the political and culturallinguistic life of nationalities with a degree of autonomy, through a hierarchy of Union republics (Ukraine, Belarus, Moldova, etc.), autonomous republics, autonomous regions and autonomous districts. Even during the Soviet period, and despite the often repressive effect of central party rule, the goal of leaders of the ‘titular’ nationality in a particular territory was to preserve as much as possible of its ethnic character and territorial integrity in order to gain advantageous positions as against other nationalities. Dowley (1998:363) points out that: Elites in the ethnic autonomous republics and national level republics were appointed to represent the ethnic group interests in the larger state,

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and thus their natural political base of support was supposed to be the ethnic group. Other political appointments in these regions were made on the basis of ethnicity, a Soviet form of affirmative action for the formally, institutionally, recognised ethnic groups referred to in the early years of the Soviet Union as korenizatsiya or nativisation. The chairmen of the Supreme Soviets of Tatarstan and Bashkortostan, both of which aspired to the status of ‘Union republics’, were always members of the Presidium of the Supreme Soviet of the USSR, along with those of the Union republics—the only two ‘autonomous republics’ so represented (Shaimiev 1996:1). By the end of the 1970s, more than half the professional cadre in half the Union republics and eleven of the twenty-one autonomous republics in the Russian Socialist Federal Soviet Republic was composed of the titular ethnic group. Ethnic groups were more socially mobile than Russians (Drobizheva 1996). As the Soviet Union weakened and finally collapsed, in December 1991, it is hardly surprising that the same leaders sought to turn symbolic authority into real power, and had a strong base for doing so. It is arguable that this policy undermined the Soviet Union itself. For Anatole Lieven (2003:325–6): What is certain is that the Soviet decision to reject the Austro-Marxist model and adopt a federal one in the long run proved fatal to the Soviet Union… Both Lenin and Stalin became convinced that [federalism] was the best practical solution to the nationalities problem. Nevertheless, the decision in 1922–4 to create a federation of republics each in principle equal to Russia and possessing the theoretical right to secede owed much to Lenin… The federal republics created by Moscow were, however, specifically designed to be national territories in which a single nation expressed its ethnic and cultural identity, and dominated government office. However, Lieven pays insufficient attention to the fact that Bolshevik and Soviet policy was the logical and inevitable consequence of the theoretical premise that nationality without territory is impermissible, and a contradiction in terms.

The contemporary revival of Renner’s conceptions In their formidable article Codagnone and Filippov (2000) cogently set out the background to the recent reforms in Russia. They point to six factors adding to the complexity. First, there is the fact that the Russian population comprises more than 100 different groups, and even though ethnic Russians comprise at least 82 per cent (making Russia one of the more ethnically homogeneous countries in Europe), the minority population amounts to more than 27 million people. Second, Russia has inherited from the Soviet Union an ‘asymmetric federalism’, in which there are wide disparities of wealth. Of the eighty-nine subjects of the Federation, twentyone are ethnic republics, but of 5.5 million Tatars in Russia only 1.7 million live in Tatarstan, ‘their’ republic. Third,

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Russia has many ‘double minorities’—often ethnic Russians living within a minoritycontrolled area. Fourth, the ceaseless debate of the ‘Russian question’ and search for the ‘Russian idea’ have reflected a growing Russian nationalism. Fifth, Russia has experienced massive immigration as well as repatriation. Sixth, the war in Chechnya, the exception that proves the rule of the remarkable stability of the Federation, shows no sign of abating (ibid. 263–4). The debate has been informed by two theoretical standpoints. First, that of the ‘primordialists’ or ‘essentialists’, including the last Minister of Nationalities, Vladimir Yurievich Zorin.3 Second, the social constructivists, disciples of Rogers Brubaker (1996), such as former Nationalities Minister, Valerii Tishkov (1998:3), who has famously written that Russia should ‘forget about the nation’ and should indeed expunge the word, together with the words ‘nationality’ and ‘nationalism’, from the lexicon (Codagnone and Filippov 2000:265). From this intellectual divide three main positions have emerged from the debate on nationalities policy: 1 There are those who wish to preserve the national territorial principle as inherited from the Soviet Union (and from Kautsky, Lenin and Stalin), with its emphasis on the right to self-determination. This has been the position of elites in Tatarstan and other ethnic republics, as well as of radical democrats, ‘westernizers’ such as Alexander Tsipko. Codagnone and Filippov call this the ‘communitarian’ approach. 2 There are the gosudarstvenniki, who favour a return to the Tsarist system of guberniya—a Russia of twenty or twenty-eight regions rather than eighty-nine—and who include Solzhenitsyn, Zhirinovsky—with a degree of sympathy from President Putin. 3 There are the more pragmatic centrists, who accept the political reality that ‘national’ territories will continue, who wish to check the ‘nationalizing’ excesses of some leaders of titular republics, and who stress the primacy of individual human rights over collective group rights. Codagnone and Filippov call them ‘liberals’ (ibid. 272). During the early 1990s President Yeltsin could be counted among the westernizers, drawing advice from Galina Starovoitova and others of like mind. He needed the support of the leaders of the ethnic republics, such as Mintimer Shaimiev, President of Tatarstan, in his battles against the communists. It is notorious that for this purpose Yeltsin advised the leaders of the subjects of the Federation to take as much power for their regions as they wished. At this stage Yeltsin was opposed to the concept of the National Cultural Autonomy, which had begun to be discussed in the period of perestroika: the first politician to propose it openly was Gavriil Popov (1988:201–3). In 1992 Valerii Tishkov became chairman of the State Committee on Nationalities, and led the drafting of the ‘State Conception for the Nationalities Policy of the Federation’, presented to Yeltsin on 30 July 1992. This proposed the preservation of ‘national territoriality’, subordinated, however, to the primacy of individual human rights, and complemented by the introduction of—a policy of national cultural autonomy! Codagnone and Filippov (2000:275) note that the core of this conception was ‘to abandon the territorial principle, by distinguishing “state” from “nation”, and granting members of the “nation” personal (non-territorial) cultural autonomy’. Yeltsin rejected it at the time, but when Sergei Shakhrai became Minister of Nationalities in 1994 he adopted Tishkov’s position.

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Finally, on 11 April 1996, the Council of Ministers approved a new ‘Conception of the State National Policy of the Russian Federation’, and this was confirmed by presidential decree No. 909 of 15 June 1996. This policy differed from the 1992 conception in that the former sought to give NCAs the same status as the territorial national autonomies, in order to check them, whereas the 1996 conception proposed NCAs in order to complement them. Codagnone and Filippov (2000:277) summarize the 1996 proposals as: an emphasis on individual rights, on the territorial integrity of Russia, a hint of group rights only in the sphere of culture and language. Noticeable by its absence is any mention of the role of ethno-territorial autonomies or their significance. This change culminated in President Yeltsin’s signature, on 17 June 1996, of the federal law ‘On National Cultural Autonomy’ (Bowring 2002). Codagnone and Filippov (2000:279) point out that the law as enacted contains a tension between individual rights and collective rights. Of course, the whole point of Renner’s proposal was that the autonomy would have collective rights, and juridical personality as such. Article 1.1 of the law defines national cultural autonomy as a form of national cultural selfdetermination for individual citizens4 of Russia, identifying themselves with opredelyonniye—‘definite’ (not ‘recognized’, as Codagnone and Filippov render it) ethnic groups, realized through a ‘social union’ (obshestvennoye obyedineniye). If the number of NCAs established is a reliable guide, then the new law must be considered a success. According to the report presented to the Council of Europe’s advisory committee under the Framework Convention for the Protection of National Minorities on 8 March 2000, there were then over 250 NCAs registered in the subjects of the Russian Federation, with seven at federal level—Belarussian, Korean, Lezgin, German, Serbian, Tatar and Ukrainian—seventy-three at the regional and 175 at the local levels. Of thirty nationalities which created NCAs the most active were Tatars (thirty NCAs), Jews (twenty NCAs) and Germans (nineteen NCAs). The February 2003 Comments of the Russian Government on the Opinion of the Advisory Committee also noted that seven Roma NCAs were now officially registered, including a federal NCA of Russian Roma (Torode 2003).5 The Advisory Committee for the FCNM noted ‘with satisfaction’ that there were by 2002 over 300 NCAs.

National cultural autonomy and the Tatars For Tatarstan, the new Law on NCA had great significance (Urazaev 2000). First, in 1990 the sovereign Republic of Tatarstan was declared as the embodiment of the statehood of the whole Tatar people. Second, at the beginning of the 1990s the Tatar Social Centre was established, and all Tatar social and cultural organizations were formed into a united World Congress of Tatars, including some 130 social associations. Third, in 1998 the Federal National Cultural Autonomy of Tatars of the Russian Federation was created.

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On 20 May 1998, for the first time in Russia’s history, four Regional NCAs of Tatars were established in St Petersburg, and Sverdlovsk, Saratov and Ulyanovsk oblasts, as well as a Federal NCA of Tatars. As Urazaev (2000:2) puts it, the Federal NCA is ‘a form of national selfdetermination and voluntary self-organization of the Tatars of the Russian Federation for resolving questions of the preservation of group identity, development of the language, education, and national culture’. In 2000 there were thirteen Regional NCAs organized through the FNKAT in all the regions where Tatars live ‘compactly’, with another eight under construction. A total of 3.5 million Tatars were thus organized. However, Urazaev recognizes that, without the political, and—vitally—financial support of the territorial Republic of Tatarstan, the work of establishing NCAs would have been much harder. He complains that the ministries and departments dealing with NCAs treat them only as NGOs like any other, rather than drawing them into close cooperation in working out state national policy in relation to the peoples of Russia. Financial support is rarely forthcoming from regional and local authorities in the oblasts, which are overwhelmingly ethnic Russian in population. This, he argues, is especially unfortunate when the war in Chechnya costs 3 billion roubles a month—a real failure of national policy.

Russia’s problems with the Council of Europe There is a further difficulty. The new law appears to be inconsistent with Russia’s treaty obligations to the Council of Europe. In the report mentioned above, the Advisory Committee (2000) noted: that the 1996 Law on National Cultural Autonomy restricts, in its Article 1, the notion of national cultural autonomy to citizens of the Russian Federation only, and this approach is reflected also in other provisions of the said law as well as in the relevant provision of the 1996 Concept of the State National Policy…. [T]he Advisory Committee finds it important that its personal scope of application is brought into line with the aforementioned inclusive approach6 under the Framework Convention so as to ensure that also non-citizens belonging to the minorities concerned can benefit from the said law. The response from the Russian government (2003:7) was somewhat disingenuous, arguing that Russia could not be expected to be ready ‘to extend the scope of the Framework Convention to the persons who recently arrived in the Russian Federation and are not its citizens, including foreigners, migrants and stateless persons temporarily staying on the Russian territory’. One significant national group is plainly placed at a great and painful disadvantage. They are the Meskhetian Turks, who have been living in the Krasnodar Krai of the Russian Federation since the late 1980s, having been deported en masse from Georgia to Central Asia in 1944. A very large number of the Meskhetian Turks have been refused registration or Russian passports, and retain only the passports of the now defunct Soviet

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Union, passports which will shortly lose their validity. Their position is desperate; and, of course, by virtue of their non-citizen status, they are excluded from the possibility of organizing an NCA.7 Under the Law of the Russian Federation on Citizenship they have a right to citizenship, since they were lawfully present in Russia in 1992, and never disclaimed citizenship. They are also refused access to the courts. They can hardly be regarded as ‘foreigners’, ‘migrants’ or ‘stateless persons temporarily staying’ in Russia.

Conclusion Russia has thus decided to pursue a bold experiment in legal provision of NCAs, rather than developing a law on the protection of national minorities. This chapter has traced the vicissitudes of the NCA conception in Russia, through fierce debate and fitful implementation. The present model is highly imperfect, not least for its restrictiveness, and its lack of finance. Moreover, compared with Renner’s plans, it is half-hearted. The NCAs are not to be given tax-raising powers, nor control over education, much less local administration. This author, like the Tatar scholar cited above, found it hard to distinguish, when discussing with Russian practitioners of NCA, between NCAs and other NGOs. But the model is undoubtedly popular; and for Tatars, Germans and Jews it represents their best hope of organization and representation.

Notes 1 I must express my deep gratitude to Professor Konstantin Zubkov of Humanities University, Yekaterinburg, Russia; to my PhD student Nicky Torode; to the Editor of this book, Ephraim Nimni; and to the participants in the Bruges seminar, for their invaluable comments and suggestions on this chapter. All errors are mine alone. 2 Its instruments of ratification were deposited at the Secretariat of the CoE on 21 August 1998. The FCNM entered into force for Russia on 1 December 1998. 3 Who is also the former chairman of the State Duma’s Committee on Nationalities. There is now no such minister. 4 This word has caused problems for Russia, as is discussed. 5 Torode (2003) has carried out in-depth research on the impact of NCAs for the Roma in Yekaterinburg and Sverdlovsk Oblast. 6 The Committee, supported by the Committee of Ministers, is anxious that citizenship should not be made a requirement for application of the FCNM, and that all possible minorities should be included. 7 According to conversations with Sarvar Tedorov and other representatives of the Meskhetian Turks at the Council of Europe Seminar on the FCNM (2003). This was attended by representatives of local administrations, as well as NCAs and other organizations of Azeris, Koreans, Adigi, Georgians, Jews, Kazaks, Kurds, Armenians, Germans, Adiga-Hase, Tajiks and Uzbeks.

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References Algemeyner Yidisher Arbeter Bundin Lite, Poyln un Rusland, Bund Archive, Russian State Archive of Social and Political History, Moscow. Available online at (accessed 8 May 2004). Bowring, B. (1997) ‘Russia’s Accession to the Council of Europe and Human Rights: Compliance or Cross-purposes?’, European Human Rights Law Review, 6:628–43. Bowring, B. (2000) ‘Ancient Peoples and New Nations in the Russian Federation: Questions of Theory and Practice’, in S.Tierney (ed.), Accommodating National Identity: New Approaches in International and Domestic Law, The Hague: Kluwer. Bowring, B. (2002) ‘Austro-Marxism’s Last Laugh? The Struggle for Recognition of NationalCultural Autonomy for Rossians and Russians’, Europe-Asia Studies, 54(2):229–50. Brubaker, R. (1996) Nationalism Reframed: Nationhood and the National Question in the New Europe, Cambridge: Cambridge University Press. Codagnone, C. and Filippov, V. (2000) ‘Equity, Exit and National Identity in a Multinational Federation: The “Multinational Constitutional Patriotism” Project in Russia’, Journal of Ethnic and Migration Studies, 26(2):263–88. Council of Europe (2000) Framework Convention for the Protection of National Minorities, Document ACFC/SR (99) 15 (8 March). Available online at (accessed 8 May 2004). Council of Europe (2002) Opinion of the Advisory Committee, Document ACFC/INF/OP/I (2003) 005 (13 September). Davletshin.T. (1974) Sovetskii Tatarstan: teoriia i praktika leninskoi natsionalnoi Politiki (Soviet Tatarstan: Theory and Practice of Leninist National Policy), London: Our Word. Dowley, K. (1998) ‘Striking the Federal Balance in Russia: Comparative Regional Government Strategies’, Communist and Post-Communist Studies, 31: 359–80. Drobizheva, L. (1996) ‘Power Sharing in the Russian Federation: The View from the Center and from the Republics’, paper presented at the Preventing Deadly Conflict: Strategies and Institutions’ conference, Moscow, 14–16 August. Filippova, Y. (ed.) (1998) Natsionalno-kulturnaya avtonomiya: problemy i suzhdeniya (National Cultural Autonomies: Problems and Evaluation) materials from the Round Table organized by the ‘Etnosfera’ Centre, Moscow. Guibernau, M. and Hutchinson, J. (eds) (2001) Understanding Nationalism, London: Polity. Iskhaki, G. (1993) Idel-Ural, Naberezhnye Chelny: Kamaz. Kautsky, K. (1903) Neue Zeit, 2. Khazanov, A. (1977) ‘Ethnic Nationalism in the Russian Federation’, Daedalus 3: 121–42. Lenin, V.I. (1968a) Complete Collected Works, VII, 2nd edn, Moscow: Progress. Lenin, V.I. (1968b) Complete Collected Works, XIX, 2nd edn, Moscow: Progress. Lenin, V.I. (1968c) Complete Collected Works, XX, 2nd edn, Moscow: Progress. Lenin, V.I. (1968d) Complete Collected Works, XXI, 2nd edn, Moscow: Progress. Lieven, A. (2003) Empire: The Russian Empire and its Rivals from the Sixteenth Century to the Present, London: Pimlico. Nam, I. (2000) ‘Natsionalno-kulturnaya avtonomiya v Rossii: istorischeski opyt i sovremenniye problemy’ (National-cultural autonomy in Russia: historical experience and contemporary problems), paper presented at the Etnicheskii faktor v federalizatsii Rossii (Ethnic Factor in the Federalization of Russia) seminar, 18 January.

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Plasseraud, Y. (2000) ‘How to Solve Cultural Identity Problems: Choose your own Nation’, Le Monde diplomatique, May. Available online at (accessed 8 May 2004). Pletnyev, B. (1922) Natsionalnaya problema v Rossii i metody yeyo razresheniya (The National Problem in Russia and Methods for its Resolution), Yaroslavl. Popov, G. (1988) ‘Pamyat i ‘Pamyat”’ (‘Memory and “Pamyat”’, the extreme right-wing organization), Znamya, 1:201–3. Russian Federation (1996) ‘On National Cultural Autonomies’, Federal Law No. 74-FZ (17 June). Russian government (2003) Comments, Document GVT/COM/INF?OP/I (2003) 005 (21 February). Shaimiev, M. (1996) ‘Conflict Prevention and Management: The Significance of Tatarstan’s Experience’, paper presented at the Preventing Deadly Conflict: Strategies and Institutions’ conference, Moscow, 14–16 August. Simonenko, R.G. (1997) Natsionalno-kulturnaya avtonomiya na Ukraine v 1917–1918 (National Cultural Autonomy in Ukraine in 1917–1918), Moscow: Russian Academy of Sciences. Smith, A.D. (2002) ‘Dating the Nation’, in D.Conversi (ed.), Ethnonationalism in the Contemporary World: Walker Connor and the Study of Nationalism, London: Routledge. Stalin, J.V. (1913) ‘Marxism and the National Question’, Prosveshniye (Enlightenmeni), 3–5. Available online at (accessed 8 May 2004). Tederov, S. (2003) Conversations with the author at the Council of Europe seminar on the FCNM, Anapa, Krasnodar Krai, 25–27 August. The CPSU in Resolutions and Decisions of its Congresses, Conferences and Plenary Meetings of the Central Committee (1954) Moscow: Progress. Tishkov, V. (1998) ‘Zabyt o natsii: post-natsionalisticheskoye ponimaniye natsionalism’ (‘Forget about the nation: a post-nationalist understanding of nationalism’), Voprosii Philosophii (Questions of Philosophy), 9:3–26. Available online at . Torode, N. (2003) ‘National Cultural Autonomy: Imagined Autonomy or Russia’s Solution to the National Question?’, paper on file with the author. Urazaev, F. (2000) ‘Natsionalno-kulturnaya avtonomiya tatar: proshloye, nastoyasheye i budusheye’ (‘National Cultural Autonomy of Tatars: Past, Present and Future’), paper presented at the Etnicheskii fakto v federalizatsii Rossii (The Ethnic Factor in the Federalization of Russia) conference, 18 January. Zubkov, K. (1999) Etnos versus region: iz opyta gosudarstvennovo stroitelstva v Uralskoi oblasti (1920-e gody) (Ethnos versus Region: from the Experience of State Construction in the Urals Oblasts in the 1920s), Yekaterinberg: Vtoriye Tatishchevskiye Chteniye. Zvyagin, S.P. (1995) Sibir v period grazhdanskoi voiny (Siberia in the Period of the Civil War) Kemerovo: Kemerovo Oblast Advanced Teacher Training Institute.

14 The politics of culture The limits of national cultural autonomy Walter A.Kemp When referring to the potential of autonomy for nations within states, Karl Renner (above: 40) enumerated a number or possibilities and concluded, ‘[w]hat a rich, productive internal sphere of activity for the nations!’ One hundred years later we have yet to fully appreciate the diversity and potential of that sphere. After a century marred by inability to reconcile self-determination with the territorial integrity of states it is time to look at new ways of coping with national identity and minority issues. This chapter will look at how to accommodate national interests within states. It will pay particular attention to the relationship between culture, rights and politics, and it will question the viability of Renner’s views on national autonomy. It will conclude by cautioning against ‘groupism’ and emphasizing the need for integrating cultural diversity.

A firm legal basis Renner (above: 16–17) was fed up with the seemingly arbitrary way that national issues were dealt with by the imperial authorities. He therefore wanted ‘to define the principles of a resolution of the nationalities question based on the rule of law’. Renner talks about the need for ‘a juridical sphere reserved for the nationalities as such’. The implication is that that there should be ‘national rights’, assumedly group rights on the basis of nationality. This is a contentious subject: the philosophical and legal arguments over individual versus group rights continue to rage today (Kymlicka 1995a, b), even within this book. The compromise as it stands in most international standards is to refer to ‘persons belonging to national minorities’ who exercise rights ‘individually as well as in community with other members of their group’ (United Nations 1966: Art. 27). In other words, individual rights are exercised on the basis of a group identity. Renner seems to have wanted a broader interpretation, something that would have guaranteed rights for national groups per se. For Renner (above: 19), ‘a lasting solution is only possible through substantive laws, that is, through directives which grant the citizens of a particular nationality as well as the nations subjective public rights with a quite specific subjectmatter’.

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To be subject to these laws is the choice of the individual. Renner, well ahead of his time, wrote: ‘[w]hat criterion can there be for the affiliation with an intellectual and cultural community other than the consciousness of this affiliation?’ Elsewhere he wrote, ‘[i]t is this subjective public right of the individual which is the indispensable prerequisite for a legal solution of the question’ (Renner above: 21). In key contemporary minority rights documents, like the Copenhagen Document of the Organization for Security and Co-operation in Europe (‘OSCE’) (1990) and the Council of Europe’s Framework Convention on the Protection of National Minorities (1994), this principle is regarded as a cornerstone: ‘[t]o belong to a national minority is a matter of a person’s individual choice and no disadvantage may arise from the exercise of such choice’ (OSCE 1990:[32]). Unlike modern practice, Renner wanted a national register (Nationalkataster) based on the citizens’ free declaration of nationality.1 This declaration of national affiliation would provide the basis for the recognition of national rights and the benefits of cultural autonomy.2

Cultural autonomy and the personality principle Renner argued that identification with a national group is based on a shared cultural consciousness. He regarded the nation as a cultural community, united by language and literature. This community defies geographical boundaries. In a sense it is a virtual community (although not an imagined one, as described by Benedict Anderson). Renner therefore supported the ‘personality principle’ rather than the ‘territorial principle’ of nationality. More than a century later, the legal and practical implications of cultural autonomy remain rather vague. As Asbjorn Eide (1998:251–76) points out: ‘Cultural autonomy’ is not a recognized term of art, whether in international or in comparative law… While there is a right under international human rights law for all individuals to form and to participate in associations, including cultural organizations and institutions, there is no established right to cultural autonomy under general international law. The general idea is that national groups or communities (which are usually specified) have the right—and are best qualified—to preserve and promote their religious, linguistic and cultural character through their own institutions. In theory, these institutions can make binding decisions and impose taxes (or fees of association), within the limits of the laws of the state (Lapidoth 1997:38). This can enable minority self-government over issues of cultural expression and reproduction, including decisions at the local and/or national level concerning education, official use of the minor-ity language, the use of names, the preservation of cultural institutions, and the use of symbols and other forms of cultural expression. There are few examples of how this works in practice. It will be interesting to watch the implementation of a contemporary example in Serbia and Montenegro, where national councils are being created pursuant to a Law on the

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Protection of National Minorities in the Federal Republic of Yugoslavia which was adopted in February 2002. The Austro-Marxist paradigm for cultural autonomy centred around the national council.3 Renner wanted to ensure that this association had an entrenched legal personality (‘to constitute a corporation under public law’, Bauer 1907/2000:425). This council would organize and oversee all national affairs (like museums, education, legal assistance and cultural events) and would have the power to impose taxes in order to support national self-government. But is cultural autonomy of the type envisioned by Renner still necessary and, if so, is it viable?

A different world Although there are similarities between the nationalities problems witnessed by Renner and the inter-ethnic issues of today (language, education, identity, self-government), the world of the early twenty-first century is very different from that of the late nineteenth. One of the most significant differences (in the context of the subject being discussed in this chapter) is the development of human rights. The bloody conflicts of the first half of the twentieth century demonstrated the need for the protection of human rights. The trend since the Second World War (evident in human rights instruments like the charter of the United Nations, the Universal Declaration of Human Rights, and two international covenants on, respectively, Civil and Political Rights and Economic, Social and Cultural Rights) has been to focus on individual human rights rather than national selfdetermination (and with it group rights), as this term was so badly abused in the inter-war period. This is also clear from minority specific instruments like the OSCE Copenhagen Document and the Council of Europe’s Framework Convention for the Protection of National Minorities. International standards now guarantee equality and non-discrimination, freedom of expression, affiliation and association, freedom of language use (particularly in education), choice and use of personal names and cultural symbols, official use of minority languages where minorities reside traditionally or in significant numbers, the right to preserve culture and traditions, the right to receive information in the mother tongue, and the protection of all of these rights by the rule of law. Furthermore, states are obliged not only to protect minority rights, but ‘to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage’ (Council of Europe 1994; Organization for Security and Co-operation in Europe 1990). The Council of Europe and the Organization for Security and Co-operation in Europe (especially through the High Commissioner on National Minorities) monitor implementation of commitments and assist governments to harmonize their legislation with international standards. The High Commissioner, in particular, has sought to assist OSCE states to understand and implement better their international obligations and commitments through reference to sets of recommendations relating to education and language rights (Organization for Security and Co-operation in Europe 1996; Organization for Security and Co-operation in Europe 1998). Most European countries now have general (omnibus or framework) laws on the protection of

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national minorities or include minority rights provision in relevant laws (Organization for Security and Cooperation in Europe High Commissioner on National Minorities 1999). Bearing this in mind, there is a limited need for the type of national cultural autonomy foreseen by Renner. Indeed, history has vindicated the Austro-Marxist position. Greater social and political equality has reduced socio-economic schisms along national fault lines. The importance of culture, once the crucible of all things national, has been diminished because national interests and identity can be realized in other, more sophisticated ways. Symbolic politics has given way to discussions of minority rights, effective participation in public life, and the protection of national identity. There is now a firm legal basis for the protection of minority rights, both internationally and in most national legislation. Furthermore, minority interests are increasingly being addressed in policy and not just law. There have been enough historical examples to suggest that it is not only politically correct but politically astute to incorporate minorities into the life of the state. It is a proven aspect of good governance.4 Therefore, the extremes of secession or assimilation are not the only alternatives available to minorities. One option may be minority self-government.

Challenges of implementation International law is silent on the question of autonomy. As Thomas Musgrave (1997:208) points out, ‘a state is under no international obligation either to introduce or to maintain a regime of autonomy within its own territory. A state which does do so implements an internal arrangement at its own discretion.’ Therefore what is required on the part of the government is a benign attitude, or at least enlightened self-interest, towards the idea that a certain division of power is worthwhile. Experience has shown—most recently in Macedonia—that the longer one waits to get down to serious discussion of inter-ethnic integration the greater the chances of societal disintegration. But how can cultural autonomy be implemented, and what are some of the practical challenges? The first major issue is, who is the nation? As noted earlier, Renner’s idea is that affiliation with a national group is subjective. This is the accepted norm, although objective criteria (language knowledge, parents’ ethnicity) are also sometimes used to prevent abuse of the system. Renner then wants to register all members of the nation. Not only would this contravene privacy laws in most countries, it could be unwieldy. If a confessional basis is the inspiration for cultural autonomy, what happens when one is of a certain national ‘faith’ but is not a practising Slovak, Albanian, etc.? If I am a Roma who feels Slovak, how do I register? If I am a russophone living in Latvia with a Belarussian father and a Ukrainian mother, what do I register as: a Russian? If I have a multiple identity how do I register, and does this have practical consequences, for example do I vote for two national assemblies and pay three sets of taxes—one to each of my national councils and one to the state? Identities are not either/or. Because they can be multiple and overlapping, identities can have a varied salience depending on the context, the question being posed and what or who one is defining oneself in relation to. That is why, as Renner himself acknowledges, there is a subjectivity to self-identification. The problem is that, in practice, Renner seems to regard identity as unique and exclusive.

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The next challenge is establishing who speaks for the nation. Renner talks about ‘representative sovereignty’ for national groups. But how representative, and how sovereign? Renner proposes elections for national bodies at all levels of government (community, canton and national councils). This seems relatively straightforward. But how does what Renner describes as ‘the collective will’ (the national voice) relate to what he sees as the ‘general will’ (of the whole population)? Will the national council speak on all issues relating to the interests of ‘its’ nation? Does a national council represent the views of its constituents better than state officials elected by universal suffrage? If an extremist wins 51 per cent of the national vote does he speak for the nation? There are ways of ensuring that the electoral system facilitates minority representation and influence (OSCE Office for Democratic Institutions and Human Rights 2001b). But this raises a number of questions. Should minorities be automatically represented in parliament or should they have advisory status? Should the electoral system be devised in such a way as to encourage minority representation: single member districts in areas where minorities are concentrated, proportional representation where they are dispersed, preference voting (single transferable vote or alternative vote on a list system) or lowering the numerical threshold for minority parties? Should ethnically based parties be encouraged at all? Let us assume, in keeping with Renner’s model, that representatives are elected to national bodies. How will these officials relate to those elected to state institutions and what will be their respective competencies? Ideas may be extraterritorial, but people are not. At some point, in some location, cultural autonomy has to be administered, benefits have to be distributed, and so on. It is possible that technology will overcome this problem, offering virtual solutions for virtual communities. But even these have to be administered somewhere. National cultural autonomy risks creating a national administration that is either parallel to or overlapping civic power structures. There is also the question of resources. Renner argues that, when it comes to ‘cultural sovereignty’, one can make a distinction between intellectual and material culture. But can these be separated? To use a socialist turn of phrase, questions will invariably arise about who controls the means of cultural (re)production and intellectual capital. To address this problem, minority representatives could participate in central, regional or local decision-making bodies during discussions on funding for cultural issues. A fixed amount or percentage of the annual budget (subject to review) can be allocated to minority projects and distributed by a national council (as opposed to the state). Local minority self-government could establish and run education establishments (particularly for language education) (OSCE 1996), print and electronic media, projects to promote local traditions, cultural institutions, and could even support small business. In all these cases sufficient resources are the bottom line. Some might suggest that minorities could raise their own taxes, but then one would have to develop a ‘national’ bureaucracy (or at least develop some sort of collection and distribution mechanism through their associations). Renner (above: 36) argues that ‘forming the cadres which should soon assume responsibility for all national administration is the most imperative task’. But even if this would be viable, what would such cadres do? Would this not be the beginning of a national public sector to support a national government? What would be the relationship between national and state

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governments and their bureaucracies? Besides, minorities could argue (as they do) that, if they are citizens and pay taxes to the state, why doesn’t the state pay for their schools, universities, community centres, and so on? Or, if there is a national tax, they may argue that the nation provides for their needs, so why pay the state tax? And then if there are national institutions and a national cadre paid for by national taxes, why not go the whole way and have a separate ‘nation state’? All this highlights a basic conceptual issue, namely the relationship between cultural autonomy and national autonomy. This relationship hinges on the link between politics and culture.

Politics and culture: inseparable, insatiable? As already noted, Renner sees the nation as a cultural community. As culture is the basis of the nation’s very essence and is the glue that bonds the community together (even if the members of the group are widely dispersed) then it is only logical that the nation should have a say over issues that directly affect its culture. But there is a paradox here, or at least a dilemma, that needs to be addressed. On the one hand, Renner is suggesting that culture and politics are inextricably linked: the national community needs to have control over its own destiny in order to avoid suppression. On the other hand, he suggests that the way to overcome nationalism as a source of conflict is to separate politics from culture. This is a contradiction. To explore this problem further, consider Eide’s definition of cultural autonomy. He says that cultural autonomy is ‘the right to self-rule, by a culturally defined group, in regard to matters which affect the maintenance and reproduction of its culture’ (Eide 1998:252). This rather circular argument highlights the dilemma. If a group is culturally defined, then surely most matters concerning the group’s identity (and very existence!) would affect the maintenance and reproduction of its culture. Therefore, when it comes to questions of jurisdiction over national identity it is difficult to separate culture from politics. In order to consider ways of decoupling nationalist politics from national culture (and vice versa) one must appreciate the nature of the link. Otherwise, there is a danger that strengthening cultural autonomy will fuel rather than diminish nationalism and fissiparous tendencies. Therefore, consider the following. The affinity of an individual with conationals is based on culture. Collectively, the national group’s awareness of itself—and its uniqueness—is based on a shared consciousness of common cultural markers and characteristics. Whether these identifying elements are real or imagined is not so important. The fact is that they are interpreted by individuals as being defining characteristics that unite them with, and as, a group. National forms (symbols, names, monuments and institutions) are the celebration of national substance and that substance, at its core, is a shared sense of common culture. National culture is enjoyed and reproduced through language, education and the arts. Threaten any of these and one threatens the integrity of the nation. The parameters for defending national cultural interests can therefore be set very broadly. This can create a potentially destabilizing situation wherein the defence of national cultural interests can legitimize a broader

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‘national’ agenda. Unlike Renner, we have the unfortunate benefit of a century of hindsight to caution us about sliding down this slippery slope.

Strengthening national exclusivity? Persons belonging to national minorities, individually and in groups, have a legitimate role in protecting and promoting their identities and interests. It is therefore logical that they should administer themselves on cultural issues. But it should be done in the context of the state, which is responsible for protecting the rights and security of all members of society, guaranteeing equal opportunities and creating an environment where all members of society (regardless of ethnicity) feel at home. Minorities should also be involved in issues beyond culture in order to ensure that they have a stake in society as a whole. Otherwise, the political control that they exercise through cultural self-administration could spiral into a broader agenda of national autonomy at odds with the interests of others or of society as a whole. Therefore a balance has to be struck. This requires a strong state, but one which has a civic rather than an ethnic basis. If the majority culture is protected by the state to the extent that civic institutions and state legislation are biased (or perceived to be biased) in favour of the majority, minorities will feel that the state is a nation state, one in which the cards are stacked against them because they do not belong to the majority nation. On the other side of the equation, if minorities develop national government to the extent that only their institutions represent their interests, this could risk dividing up society into nationally specific pieces. That may be workable if the issues being controlled by the minority have no effect on the majority or other members of society. On a grander scale it may work in an empire where there are many such groups of a relatively similar size, spread over a wide area, where internal borders are minimal and where there is a supranational structure (army, bureaucracy, church, terror) that holds the whole thing together. It may work in the European Union as well. But in contemporary multi-ethnic states such national autonomy may foster national exclusivity and crystallize ethnic divisions. The result would be parallel, nationally based governments and institutions which share the same state boundaries but little else. Such a system in which there is a lack of overarching social cohesion implies a weak state with the result that central government may find it difficult to mediate among the component parts. This is a recipe for conflict. The main malign ingredient in this recipe is the outdated nation state paradigm. Renner (above: 26) (in language to be echoed by Woodrow Wilson a few years later) clearly implies that the ‘nation state’ is the ideal type when he says that ‘the nation will face the least developmental resistance if state and nation coincide’. Where this is not possible, national cultural autonomy is the next best thing. In other words, cultural autonomy is extraterritorial national autonomy. The personality principle is a floating version of the nationality principle. One problem with the nationality principle is that it assumes that national groups are homogeneous. Such is seldom the case. People sharing the same nationality do not necessarily share the same values, interests, political views or attitudes. What they share is a common culture, but does that legitimize a wider political programme? It is

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convenient for leaders of national groups, their opponents and some philosophers to think in terms of ‘discrete, sharply differentiated, internally homogeneous and externally bounded groups’, but we have to avoid what Rogers Brubaker (2000) calls ‘groupism’. The last century gave us plenty of examples of the worst manifestations of ‘groupism’. Think of the Germans living in Czechoslovakia. As a distinct national group they served as a useful tool for Hitler in his expansionist drive. But not all Germans living in Czechoslovakia shared the same views, nor were they all sympathetic to the Nazi regime. Still, the invasion of the Sudetenland in 1938 was done in their name. And they were expelled ten years later under the Beneš decrees because they were collectively guilty by association of being Germans. Not only were both situations unjust, the arguments used were inaccurate. Were these people Germans or German-speaking citizens of Czechoslovakia? And were German-speaking Czechs a homogeneous group? Of course not. But thinking of them in this way is convenient for anyone trying to promote a groupbased agenda. The ethnic cleansers have demonstrated this point with brutal efficiency. Another problem with the nationality principle is that it suggests that nations can have a single legal personality and one that legitimately allows them to protect their ethnic kin. This is complicated enough within the boundaries of a multi-nation state. It becomes even more complicated when a state, which sees itself as a nation state, uses the nationality principle argument to protect its ‘co-nationals’ in neighbouring countries. There is a growing trend in Europe, manifested most recently by the Hungarian government’s Hungarians living in Neighbouring Countries Act (also referred to as the ‘Status’ or ‘Preference’ Law), where states invoke a right to protect the interests of people living outside their state on the basis of ethnic kinship. As the OSCE High Commissioner on National Minorities has noted: Although a state with a titular majority population may have an interest in the fate of persons of the same ethnicity living abroad, this does not entitle or imply, in any way, a right under international law to exercise jurisdiction over these persons. (Organization for Security and Co-operation in Europe High Commissioner on National Minorities 2001a) A state may grant certain preferences within its own jurisdiction, but not on the soil of another sovereign state (without the consent of that state). Indeed, the very reason that international relations and international law have evolved in favour of the rights of individuals rather than groups and in favour of civic rather than national identity since the Second World War is partly because of the arguments used by Hitler and others about the ‘right’ to defend ethnic kin living in other countries. The reach of this protecting power (Schutzmacht) suggests that national interests (and culture) transcend state boundaries. This idea has proved to be dangerous to the integrity of states and the stability of the international system, as it would legitimize states to define national cultural boundaries that do not correspond to their territorial (or personal) jurisdiction. The corollary is the implosion of states along ethnic lines or into ethnic pockets. If the state system is to be defined on the basis of national units, all national groups will seek the maximum level of autonomy in order to protect their national interests. This can not only undercut the foundations of the state, it could lead to a national cultural survival of

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the fittest where the minorities with the most powerful kin-state or the national groups with the most effective means of coercion will dominate.

Between tokenism and extreme nationalism Lest one dismiss national cultural autonomy too quickly, let us take a step back and ask what it is designed to achieve. Cultural autonomy (national or otherwise) involving control over schooling, the use of symbols and the preservation of cultural institutions is more or less an administrative or financial issue. If it is handled well, minorities will have the opportunities and the resources to control their cultural reproduction. But if there are limited opportunities and means for minorities to maintain their identity, cultural autonomy will be little more than tokenism or state-funded folklore. National autonomy is a different situation. If it is extra- (or non-) territorial, one is more or less dealing with cultural autonomy. But that is, apparently, not what Renner had in mind. He wanted to create national cadres and national self-government, collect national taxes and rearrange the Austro-Hungarian Empire into a federation of nationalities. This is clearly well advanced from the concept of national cultural autonomy. It may well have worked in the Austro-Hungarian Empire, the Soviet Union or Yugoslavia, but only because there were strong means of coercion to keep the states from falling apart. Democratic governments must find other, but sufficient, means to maintain the integrity of the state. Strong central institutions of, for example, the administration of justice, economic stabilization and development, foreign relations and national security may serve this purpose. Where such institutions are weak, the emphasis should be on strengthening integrative tendencies rather than facilitating devolution. More often than not, minorities simply want a better deal within a state that works. If the state represented their interests, they would feel less inclined to isolate themselves within it and/or opt out of it. This takes us back to the point made earlier, namely that liberal democracy diminishes the need for the type of national autonomy foreseen by the Austro-Marxists and facilitates even greater opportunities for persons belonging to national minorities to be full and equal members of multiethnic states. There does not have to be an either/or equation for state loyalty and national identity. Political pluralism facilitates cultural pluralism. As Hurst Hannum (1996:454) explains, ‘political loyalty to an existing state does not necessarily imply national or cultural disloyalty, any more than the recognition of diversity by a central or majority government need engender disunity or fragmentation’. In states where human rights (including minority rights) are protected, where minority interests are represented, where mechanisms exist to give minorities input into decisions that affect their fate, where minorities that belong to sizeable communities (say 20 per cent of the local population) can use their languages in education and in official communications, and where minorities can effectively participate in the life of the state, persons belonging to national minorities have even more rights and opportunities than those foreseen by the Austro-Marxists. Indeed, by ensuring these types of legal protection and political participation one can attain Renner’s overall goal, namely that ‘the actual influence over state power must become the legal participation in the sovereign rights of

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the state’ (Renner above: 33). In this way, minorities become shareholders and full participants in the life of the state. The idea, then, is to move beyond cultural autonomy, to avoid national cultural tokenism yet not to go so far as to encourage the type of national autonomy that leads to nationalistic exclusiveness. The main onus is on the state to move away from the outdated notion of the ‘nation state’ and create space, support and a legal framework where the culture of all citizens (especially those from sizeable national communities) can flourish in an unhindered way. For their part, minorities should take advantage of these opportunities. When the nation state is no longer the only game in town, all groups will realize that cultural ghettoization—especially when mixed with political expression—leads to stagnation, whereas intercultural or at least multicultural societies (which are, after all, the norm) can move beyond national agendas and concentrate on issues that can produce common benefits. The aim is not to diminish national identity; far from it. I agree with Renner (above: 31) when he says that ‘[i]f one wants to solve the nationalities question, one must focus on the nations!’ Involuntary assimilation, or worse, will almost invariably cause a backlash. But the point must be to ensure that national identity does not hi-jack the political agenda. As Donald Horowitz (2001:xvii) points out, it is ‘both fruitless and undesirable to attempt to abolish ethnic affiliations, but not at all fruitless to attempt to limit their impact’. As Georg Schöpflin (2000:6) notes, the problem is not ethnicity, ‘but the absence of the processes that dilute its impact on power’. That is why national identity should be taken into account by the state. When a state fails to recognize and accommodate the legitimate needs of its population, it will have a problem on its hands. But advocating national autonomy is not necessarily the best way to solve the problem, because it usually creates a situation among the minority which is the very one that it resents in the majority, namely the creation of culturally exclusive ethnically based institutions. If the complaint is that the state is not ethnically neutral, then the battle becomes one of state (majority) nationalism versus minority nationalism. This is a battle the so-called state-forming nation will almost always win because of its numerical superiority, unless the minority makes the state ungovernable and/or has a strong kin-state. The point is to avoid this confrontation in the first place by diminishing the national aspects of the state, not by encouraging the fracturing of the state along ethnic lines. After all, national cultural autonomy can, in the end, lead to the type of centralist atomist model that Renner was trying to replace. On the one hand, under the group dynamic of national cultural autonomy, self-determination and the rights of individuals would be replaced by national determinism and the rights of groups. Someone, in a central position of authority, would have to speak on behalf of the ‘general (national) will’. If this is repeated for every national or ethnic group, society will become atomized and national cultural unity will erode social-political unity. Societal integration will be challenged by national disintegration. Without the bonds of overarching civic institutions, multiethnic states and communities would come unstuck.

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Multi-ethnic communities of fate To conclude, the century since Renner wrote State and Nation has demonstrated that pursuing a national agenda within or between states will often lead to instability and even violent conflict. In that respect, Renner’s arguments on national cultural autonomy are not very helpful. For contemporary situations his views on cultural autonomy do not go far enough, while his views on national autonomy go too far. Nevertheless, as this book proves, his ideas provoke useful discussion about the limits of national self-government and the need for accommodating ethnic diversity within multi-ethnic states. There is much work to be done. The theoretical and legal frameworks are taking shape. Crises in Bosnia and Herzegovina, Kosovo and Macedonia force policy makers to concentrate more on the practice. But it should not take crises to spur policy makers into action. Since experience shows that it is infinitely more difficult to keep multi-ethnic states together after a conflict, governments and the international community need to do more to prevent differences from spiralling into conflicts in the first place. The three key words for achieving this end are rights, participation and integration. The international standards are already largely in place; the key is to encourage governments to implement them. In this respect, institutions like the OSCE High Commissioner on National Minorities can play a useful role, as can recommendations to assist governments is appreciating the self-interest (for the sake of good governance) of respecting minority rights. These rights should protect and promote cultural reproduction while respecting overarching public interests. The participation of minorities in public life is crucial. If, as Allen Buchanen (1991) notes, ‘secession is a form of refusal to acknowledge the state’s claim to political authority’, then, to prevent secessionist tendencies, one must make minorities feel that they are equal partners in the state and that their views will be taken into account. They must feel that the state and its institutions are ‘theirs’. They must therefore have access to institutional power. They need to be empowered, to be involved in representative, effective and accountable consultative and decisionmaking bodies that respond to their concerns. In this way they will see the state and its structures as legitimate and representative and the state will enjoy wide support among all members of society. Another way of increasing legitimacy is to bring government closer to the people. In that respect, more attention should be focused on minority self-government in states where there are sizeable and/or highly concentrated minority populations.5 On the third point, namely integration, minorities should be involved in state structures and institutions, for example the police force, the courts, parliament, public office and the civil service. Unlike assimilation, integration assumes that the distinct identity of the minority can be maintained while, at the same time, the minority should be part of the society at large. This may require affirmative action. It may also require offering public services in the language of the national minority, at least in communities where they make up a significant part of the population. By pursuing such an agenda, new ‘communities of fate’ (to use an Austro-Marxist expression) can be built. If, as Bauer (1907/2000:100) suggests, nations gain their

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character and identity through constant relations and reciprocal interaction, there is nothing to suggest that such interaction has to be culturally exclusive. In other words, states will be the products of the individuals who live within their jurisdiction. If state institutions protect the rights of all individuals, civic society will be flexible enough to allow the organic development of the state’s character, taking into account the diversity of the population. If the state includes different national communities, so be it. The interaction of those national characteristics should be what defines the community of fate. The key to achieving what Renner (above: 16) described as ‘the modalities which allow peaceful coexistence of several national groups’ is to allow all individuals to be involved in shaping that fate and ensure space for all of them to maintain and develop their particular cultural identities.

Notes 1 Data protection laws usually preclude this type of activity, although it is worth noting that under the 2001 Law on Hungarians Living in Neighbouring Countries a register of people who declare themselves to be Hungarians is foreseen. 2 Such a national register was used in elections in Moravia in 1905, but the practice was never put to broader use. 3 The national council would be made up of members elected from parish or districts (Gemeinde) and cantons (Kreis). 4 The challenges of putting minority-related legislation into practice have often been discussed by the OSCE High Commissioner on National Minorities (van der Stoel 2001). 5 Section III of the Lund Recommendations on the Effective Participation of National Minorities in Public Life (Organization for Security and Co-operation in Europe 1999) explores more ideas on minority self-governance.

References Bauer, O. (1907) Die Nationalitätenfrage und die Sozialdemokratie, trans. J. O’Donnell, in E.J.Nimni (ed.), The Question of Nationalities and Social Democracy (2000), Minneapolis, MN: University of Minnesota Press. Brubaker, R. (2000) ‘Beyond “Groupism”: Rethinking Ethnic Conflict’, paper presented at the Facing Ethnic Conflicts conference, Bonn, 14 December. Buchanen, A. (1991) Secession: The Morality of Political Divorce from Fort Summer to Lithuania and Quebec, Boulder, CO: Westview Press. Council of Europe (1994) Framework Convention for the Protection of National Minorities, Document No. CAHMIN 94(35) (10 November). Available online at (accessed 8 May 2004). Eide, A. (1998) ‘Cultural Autonomy: Concept, Content, History and Role in the World Order’, in M.Suksi (ed.), Autonomy: Applications and Implications, The Hague: Kluwer. European Commission for Democracy through Law (2001) Report on the Preferential Treatment of National Minorities by their Kin-State, Strasbourg (22 October). Hannum, H. (1996) Autonomy, Sovereignty and Self-determination: The Accommodation of Conflicting Rights, Philadelphia, PA: University of Pennsylvania Press. Horowitz, D. (2001) Ethnic Groups in Conflict, 2nd edn, Berkeley, CA: University of California Press.

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Kymlicka, W. (1995a) Multicultural Citizenship, Oxford: Oxford University Press. Kymlicka, W. (1995b) The Rights of Minority Cultures, Oxford: Oxford University Press. Lapidoth, R. (1997) Autonomy: Flexible Solutions to Ethnic Conflicts, Washington, DC: United States Institute for Peace Press. Musgrave, T. (1997) Self-determination and National Minorities, Oxford: Oxford University Press. Organization for Security and Co-operation in Europe (1990) Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, adopted at the second Conference on Security and Co-operation in Europe, Copenhagen, 29 June. Available online at . (accessed 8 May 2004) Organization for Security and Co-operation in Europe (1996) The Hague Recommendations regarding the Education Rights of National Minorities, The Hague: Foundation for Inter-ethnic Relations. Organization for Security and Co-operation in Europe (1998) The Oslo Recommendations regarding the Linguistic Rights of National Minorities, The Hague: Foundation for Inter-ethnic Relations. Organization for Security and Co-operation in Europe (1999) The Lund Recom-mendations on the Effective Participation of National Minorities in Public Life, The Hague: Foundation for Interethnic Relations. Organization for Security and Co-operation in Europe, High Commissioner on National Minorities (1999) Report on the Linguistic Rights of Persons belonging to National Minorities in the OSCE Area. Available online at (accessed 8 May 2004). Organization for Security and Co-operation in Europe, High Commissioner on National Minorities (2001a) ‘Sovereignty, Responsibility, and National Minorities’, statement issued by Rolf Ekeus (26 October). Organization for Security and Co-operation in Europe, Office for Democratic Institutions and Human Rights (2001b) Guidelines to Assist National Minority Participation in the Electoral Process, Warsaw. Available online at (accessed 8 May 2004). Schöpflin, G. (2000) Nations, Identity, Power, New York: New York University Press. United Nations (1966) International Covenant on Civil and Political Rights, UN Document No. A/6316 (16 December). United Nations (1992) General Assembly Declaration on the Rights of Persons belonging to National or Ethnic, Religious or Linguistic Minorities, Resolution 47/135 (18 December). van der Stoel, M. (2001) Peace and Stability through Human and Minority Rights: Speeches by the OSCE High Commissioner on National Minorities, BadenBaden: Nomos.

15 Towards cultural autonomy in Belgium Mary Farrell and Luk van Langenhove1 The contemporary nation state was constructed on the assumption that nation and state were congruent. Modern liberal democracy presumed an overlap of nation and state, and suggested that the state had both the capacity and the will to represent its people equally and without prejudice to cultural identity or national difference. Under this presumption, the people (as distinct from peoples) of the state could expect to receive rights based on this universal recognition. Within the territorial boundaries defined by the legitimate authority of the liberal democratic state, different and conflicting interests of groups are reconciled through the democratic political processes, with the state acting as a conduit to channel the common interests of all the citizens. The citizens have equal recognition, in the sense that representation and participation in the political and civic life of the state are open to all groups, with no need for special treatment for minority, ethnic communities. By implication, the liberal democratic state does not tend to recognize diversity rooted in cultural differences among the citizens. In reality, the modern state is generally characterized by the heterogeneity and diversity of the people within its territory. Examples abound of states comprised of diverse ‘national’ groups, of cultural communities held together by the bonds of language, culture, religion, ethnic or other affiliation. Yet the liberal state presupposes a dominant group culture around which the state organization is constructed, thereby requiring the minority groups to fit into or submit to the dominant culture and, where necessary, to rely on the legal system for the enforcement of their rights. The fact of cultural diversity, however, casts doubt on the underlying presumptions of a universal dominant culture as the basis of political organization and mobilization within the state. Minority cultural groups within a state will naturally seek to acquire representation and voice within the political arrangements of the state. It is an irony of modern liberal democracy that minority groups within the state can be accommodated by the very state system that assumes away any cultural diversity. The world has witnessed a resurgence of demands for self-determination and for cultural autonomy in the years since the col-lapse of the former Soviet Union, and in the new democracies of Central and Eastern Europe some states have responded positively to demands for cultural autonomy, while other states have teetered on the brink of collapse in the face of inter-ethnic rivalry or outright violent conflict.

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In Western Europe, more or less mature democracies have already established various forms of representation for all the groups within the territorial boundaries of the polities. Countries such as Britain, Germany and Spain have each developed their own system of government, to reflect in each case a greater or lesser recognition of the cultural diversity within the state. In none of these three countries can language be said to constitute the sole basis of cultural identity—although language does play a major role in the identity of the Basque and Catalan regions of Spain. In Belgium, cultural identity has evolved on the basis of language. The federal system created in 1993 transformed the unitary state of Belgium into a federal state, with decentralized units organized around the distinct language communities. It is a system with origins much further back in Belgian history, and the contemporary arrangements are the result of a gradual evolution of nationalism with its roots in language differences between the two main communities. The Belgian case is an interesting one in the context of a volume on national cultural autonomy. However, it is not the intention of this chapter to discuss the model developed by Karl Renner in the early decades of the twentieth century, since the approach is analysed comprehensively elsewhere in this volume. But it is interesting to note that, around the time Renner held office as the first Chancellor of the Austrian Republic (1919–20), Flemish ethno-politics was gaining strength in the aftermath of the First World War and particularly among the Flemish soldiers who had served under the French-speaking officers. When, in 1917, the Belgian socialist Camille Huysmans organized the Stockholm conference in order to mobilize the socialist parties around a pacifist agenda, he wrote in the conference documents that peace could be achieved only on the condition of ‘le droit des peuples de librement dispose d’eux-mêmes l’autonomomie des nationalités’. For Huysmans (being Flemish) this applied to Belgium, but his sentiments were not accepted by the Walloon faction of his party (De Batselier 1998:24). Some eighty years later, a political solution acceptable to both communities was arrived at through the federal model of government, giving each cultural group representation and autonomy. However, moving a little away from the Renner proposal, the precise form of national autonomy within the Belgian system takes into account both territorial and non-territorial representation. The regions of Flanders (Flemish-speaking) and Wallonia (French-speaking) are territorially defined political and administrative units, as is the German-speaking area in the east of the country. In the district of Brussels the system of representation combines both territorial and non-territorial features. The system is described in more detail in the following sections, but we begin with an account of the historical origins of the conflict between the two communities.

Historical origins of conflict The seeds of the contemporary political divisions within Belgium can be traced back to the early conception of the Belgian state (Murphy 1988). After gaining independence from Dutch rule in 1830, Belgium opted to have French as the national language. Although the period of Dutch rule imposed at the end of the Napoleonic Wars was a comparatively short one (fifteen years), the new state was in no mood to adopt the

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language of a former ruler.2 At the time of its independence Belgium was not divided ethnically or regionally along language lines. But the decision to adopt the French language was decisive in sowing the needs of future dissension and distrust among the French and Flemish-speaking communities. Throughout the nineteenth century Western Europe saw the consolidation of what is now regarded as the modern state system, the model that was envisaged in the Treaty of Westphalia (1648). The key principle of the Westphalian order, that of exclusive sovereign rule over a bounded territory with associated geopolitical mechanisms for governing international affairs, would shape subsequent efforts at state building across Europe. In Belgium, the establishment and preservation of state sovereignty within the territorial limits of the country continued to be the overriding consideration throughout the nineteenth and twentieth centuries. The two communities, French-speaking and Flemish-speaking, reacted differently to the arrangements of the new sovereign state of Belgium. French was the language of the political elites and the population of the southern area of the state, Wallonia. Among the first decisions of the Provisional Government in 1830 had been the instalment of French as the language of command in the military, that all Belgian laws should be published only in French, and the elimination of Flemish Chairs at the Belgian universities. Although Flemish dialects were spoken by the population in Flanders and, after the end of the First World War, a Germanspeaking community was added with the annexation of the East cantons from Germany, French remained the language of state and within education until after the end of the Second World War. Flemish was de facto the minority language of the Belgian state as the dominant group sought to impose its language and culture on the entire country. As time passed, the Flemish community became more vocal in its demands for recognition of its language and cultural heritage. Initially, Flemish ethno-politics was represented as a socio-cultural movement among sections of the Flemish elite seeking the right to use the Flemish language in education, public administration, the legal system and courts, as well as other areas of public and civic life. Subsequently, linguistic issues were the focus of Flemish ethno-politics to express the unequal status of Flemish-speaking citizens within the Belgian state. Language became the metaphor to portray the sense of exclusion and the minority status of the Flemish-speaking community—the sense of exclusion that was all the more poignant and unjust from their being a minority within their own country. Linguistic differences were not the only dividing line between the French and Flemish communities. There were significant regional differences in economic structures and levels of development. The industrial revolution during the early decades of the nineteenth century was mainly focused upon the coal-mining activities of Wallonia. While Wallonia industrialized with rising levels of welfare and prosperity, widespread poverty continued to exist in the largely agricultural northern region of Flanders. In fact, there was never a period when the two regions witnessed economic growth in parallel. Even before the Treaty of Westphalia, two centuries prior to the establishment of the Belgian state, Flanders was urbanized and prosperous. But, with the advent of industrialization, Flanders stagnated while Wallonia flourished and prospered. In the post-Second World War period, the diverging trends in economic growth continued to be reflected in distinct patterns of economic development and employment structures, and Flanders emerged again as the more prosperous region of Belgium, with

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both industry and the services sectors accounting for large shares of total employment. Conflict and tension between the two language communities had therefore two principal sources: cultural differences and economic divisions. The emergence of nationalism was therefore linked with one or another of these sources—Flemish nationalism had cultural roots, while French-speaking nationalists were more influenced by socioeconomic considerations.

Emerging Flemish and French nationalisms The national question in Belgium was defined in terms of the issue of language. However, unlike many other European countries, nationalism emerged slowly in the wake of liberal democratic ideas rather than being the vanguard of new political ideas (Hooghe 2000). The Flemish movement remained largely elite-based and sociocultural in focus up to the introduction of universal suffrage in 1893. In the early decades of the twentieth century the spread of mass democracy allowed political support for the movement to broaden considerably, to embrace the sweep of socioeconomic classes and ordinary individuals. Flemish political parties emerged out of the movement, starting with the veterans of the Front movement from the First World War who had suffered under the leadership of the French-speaking officers in the Belgian army. Two broad groups were identifiable in the early twentiethcentury Flemish movement. One group sought to advance the Flemish cause within existing political parties, and to focus on diverse issues of concern to the Flemish community and to the Belgian community in general. This group was not exclusively concerned with the specific problems of the Flemish, and adopted an essentially minimalist approach to the Flemish cause. The second group gave the Flemish cause the higher priority, and indeed tended to question the very existence of Belgium. During the First World War this even led a small group of Flemings, called the Activists, to collaborate with the German occupiers, hoping that the Germans would give Flanders greater rights and even self-determination. Such a maximalist position could be clearly identified within the programme of the new Flemish Front party (Vlaamsche Front or Frontpartij), which won five seats in the 1919 general election—the first election to be contested on the basis of single universal male suffrage and proportional representation. The Frontpartij sought some form of selfgovernment for the Flemish community, but there was no clear agreement on what form of autonomy should be granted. Within the party, there were various perspectives on selfdetermination: federalism was preferred by some groups, others supported the idea of disbanding Belgium, while others preferred incorporation into Holland. In 1933 the Frontpartij was renamed the Flemish National Union (Vlaamsch Nationaal Verbond) with a revised programme and a distinct shift to a right-wing nationalist stance. During the Second World War again a small proportion of Belgians (both in Flanders and Wallonia) collaborated with the Germans. In Flanders this was—again in line with the activism of the First World War—partly motivated by the Flemish cause. The effect was to deepen the linguistic divisions and, for a long time after the Second World War, the cause of Flemish nationalism was widely considered to be an extreme-right political cause. Limited support for the Flemish movement coincided with the national (and

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European) soul-searching over the wartime alliances, and the eventual public awareness of the atrocities committed against minority groups. By the 1960s the Flemish movement was restored to full strength, with the Volksunie (founded in 1954) proposing a two-pronged approach: (1) to reform the Belgian state into a federal structure, and (2) to change the political structures and political culture generally. Across the political divide, all the Flemish parties, including Socialists, Liberals and Christian Democrats, adopted programmes to reflect the issues of community and self-determination in an effort to appeal to a wider range of voters. Walloon nationalism really surfaced after the Second World War, when the economic decline of the traditional steel and coal industries hit the prosperity of the region. With no new industries coming on stream, and investment moving to Flanders, there was growing resentment over the change of fortune and unease over the prospect of political domination by the Flemish (who held a majority of the seats in the national parliament). The reality of the political scene over the last three decades of the twen-tieth century revealed the importance of ethno-politics in Belgium, encompassing views from the very moderate to the extreme nationalist position of the extreme right-wing Vlaams Blok (founded in 1978). Across the two regions, political parties were dividing along linguistic lines, and gaining support at the expense of the traditional Belgian parties (Christian Democrats, Social Democrats, Liberals). By the 1970s the political parties were lining up along the language divide, and this meant a diminution of the country-wide party—even before the eventual shift to a federal, decentralized political system (Swenden 2003). Federalism became the powerful concept that mobilized political parties across both the Flemish and French-speaking communities from the early 1960s. For many parties, and groups, it was the ‘language issue’ that inspired the development of strong nationalist movements. In Wallonia the inspiration was more economically inspired, while in Flanders the inspiration remained primarily cultural. Eventually, in 1963, Belgium was officially divided into four linguistic entities, each with its own territorial boundaries: a French-speaking area, a Flemish-speaking area, a German-speaking area and the district of Brussels as the only official bilingual (French and Flemish) area within the state of Belgium. However, this ethno-linguistic division of the country into territorially defined geographical units within a unitary state failed to stem the tide of demands for cultural autonomy and national recognition. Tensions between the communities continued unabated, and a further response was required to meet the escalation of national demands and cultural aspirations.

Federal Belgium: decentralization and cultural autonomy The decisive move to a federal system in 1993 should not be seen as a sudden departure from the unitary state system that had been in place since the nineteenth century. As the preceding discussion showed, gradual changes in the political and legal order had begun as far back as the 1930s, and by the 1990s there were already elements of a framework for selfrepresentation for the two communities. A series of legal reforms began in 1970 that would eventually pave the way for federalism. In that year, the concepts of community and region were introduced into the constitution, thus establishing the characteristic of a twofold federalism. In 1980 a legal

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reform allowed for the definition of the fields of jurisdiction of the communities and the territories of the regions, introduced the merging of the Flemish community and the Flemish region, and attributed financial means to the federated entities, through the socalled ‘special’ laws, voting on which required a majority in each of the two linguistic groups in the federal parliament, and an overall two-thirds majority. In 1988 a further legal reform provided for the establishment of the Brussels region, with its specific bodies, the transfer to the communities and the regions of new competencies. Then, in 1993, it was agreed to transform the unitary state into a federal state. The actual form of this federal structure is a rather complicated one, combining both territorial and non-territorial representation of the respective national communities. On the one hand, there has been devolution of power towards the ‘communities’, a concept that refers to the people who constitute them, and to language and culture as the bond that unites them. On the other hand, there has been a parallel devolution towards the ‘regions’, inspired by territorial and economic concerns. The first article of the constitution establishing the federal state of Belgium states that ‘Belgium is a federal state composed of Communities and Regions’ in recognition of the separate communities that exist within the federal boundaries and across the regional boundaries, and an implicit acknowledgement of the challenge involved in putting a representative political structure in place that could take account of all the cultural groupings wherever they might be located within the state territory. The federal model is based upon three communities (French, Flemish and German-speaking) and three regions: Flanders, Wallonia and Brussels. The communities and regions do not overlap geographically in all instances (as in the case of Brussels), although both Flanders and Wallonia do have geographically defined political boundaries. Decision making within the federal state is distributed between the federal and the regional level, with each region holding responsibility for its own economic policy, employment policy, public transport, housing policy, environmental policy, agriculture, urban planning and external trade relations. The federal government is responsible for the general concerns pertaining to all Belgian citizens, for public finances, defence, public health, justice, social security, foreign affairs and monetary policy. There is, however, no primacy of the federal level over the regional levels.3 Also, in the general area of foreign affairs, the communities and the regions are competent in establishing relations with foreign countries in the domains for which they have responsibility (following the principle in foro interno, in foro externo). Unlike the situation of autonomous regions in the other European countries, the regions of Flanders and Wallonia also have the authority to enter into international agreements without going through the central government. Another important difference between the Belgian case and other countries such as Spain and Britain is that each region and community has been assigned identical competencies, without reference to the size of the entity. This produces some rather unusual results as far as levels of government are concerned; for instance, the city of Brussels boasts its own government and parliament and no fewer than nineteen mayors. Each entity (region or community) has a council which acts as the legislative body for the unit, and an executive body or government. In the case of the Flemish region and community, the two functions are merged, to constitute a common council and government. The communities govern over particular community-delegated issues such

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as education, social aid, family policy and media regulation. Brussels is both the capital city and a region, encompassing both Flemish and French-speaking communities. The political arrangements for Brussels reflect both territorial and nonterritorial representation, and is therefore distinct from the model of national cultural autonomy proposed by Karl Renner. In essence, Brussels has three administrative bodies or commissions: the ‘Common Communities Commission’, which deals with matters affecting both the French and Flemish-speaking inhabitants of Brussels, the French Community Commission and the Flemish Community Commission. The simple idea that Belgium should become a federal state with two language groups has thus been translated into a political model based on a complex and multi-layered system of governance. The process of devolution within this federal system rests on six separate governments: the federal government, the Flemish community government, the French community government, the German community government, the Walloon regional government and the government of Brussels. In creating a federal system Belgium has resolved the issue of accommodating national communities and at the same time preserved the territorial integrity of the multinational state. In this case, the devolution of political powers over decision making has enhanced the political and cultural autonomy of the language communities. In practice, the federal system created regional majorities in the two main regions of Flanders and Wallonia. It also eliminated to a large extent the majority principle (that would favour the Flemish) at the federal level and it has granted the French-speaking minority special procedures to make sure that the Flemish-speaking majority cannot vote federal laws against the will of the French-speakers. The Belgian system reflects a mix of territorial and cultural autonomy. It does not conform perfectly to the Renner model of national cultural autonomy, since cultural autonomy would imply special status for minorities only, while territorial autonomy operates in majority languages. In Belgium, regional communities (Flemish and French) are dominant groups within the territorial boundaries of each region. Moreover, the system reproduces inequalities of resources between territories, as the wealthier communities try to limit redistribution across territorial boundaries. One important consideration in examining the actual model is the degree to which it promotes tolerance and pluralism. Clearly, territorial stability is an important determinant of cultural tolerance, but ultimately there is a strong subjective element in the recognition and acceptance of minorities by the dominant regional majority.

Belgian federalism in practice The Belgian model was adopted as a solution to the conflict and tensions between the two language communities. So, the question is to what extent the federal system has managed to reduce conflict and consolidate the cultural autonomy of the national groupings. As we saw above, the model provides for regional and community representation, as well as federal government—and does not privilege federal law over regional law. Amidst this complex multi-level system of governance, there are mechanisms in place to ensure that the system does operate in practice in a way that is fair to all groups while attempting to retain the cohesion of the whole. Federal unity is after all still important in the model

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(and in the practice of politics), since the functioning of the different parts of the system depends on the co-operation among the separate regions and communities.4 In practice, the different levels of government need to co-operate on a regular basis even though the constitution allocated the policy competencies to the respective jurisdictions.5 Frequently, a policy decision at (say) federal level will impact in one way or another on the regional and/or community level, thus requiring co-operation and compromise among the different levels. The linkage between the federal and regional level is already made possible since the members of the federal parliament and executive are made up of members from regionally constituted parties—thus, there is an arena for discussion and debate between the different levels of representation to agree a common strategy within the party prior to negotiation with the other community. There are also mechanisms to safeguard the input of the regions in federal policy making, and the interests of the French speakers as the largest minority at the federal level. One such mechanism is the requirement that the federal executive must decide by consensus, with an equal number of Dutch and French-speaking ministers. Similarly, the ‘alarm bell’ procedure operates where 75 per cent of a language group judge a legislative proposal harmful to relations between the Flemish and French communities, to have a measure postponed and referred to the national cabinet. Such safeguard measures play a crucial role in preserving the cultural autonomy of the community, and extending the concept of selfdetermination at the federal level. It is interesting to note that in the construction of the federal state, and the decentralization of competencies to the region and the community, new state structures were needed to make the system work. Privatization rarely means less state, more often a restructuring of its composition, so too with federalization. In order to make the federal system work, arrangements were needed to cement the different levels together. The 1989 state reform created a consultative structure to stimulate a cooperative federal process. This was the Consultation Committee, composed of twelve members, six from the federal government and six from the regional-community governments (with equal representation of Flemish and French speakers), and mandated to decide by consensus. The committee has set up a large number of inter-ministerial conferences of ministers, and is authorized to conclude collaboration agreements that are legally enforceable (Hooghe 2000). The federalist model is built upon decentralization of competencies, but it does not take the capacity of devolution to resolve conflict between the two language communities for granted. The system has a number of veto points at the centre that operate to protect the interests of the minority when it comes to federal-level policy and decision making. Any progress in federal policy making will require the input of the national (Frenchspeaking) minority or regional minorities (Dutch-speaking) in Brussels (Deschouwer 1999). How well does the model, with all the in-built safeguards, reduce tensions and conflict between the two communities? There is a widely shared opinion that federalism has contained the tensions within the country, and the 1993 reform was regarded by many as the final round in ethnic conflict management. Devolution allowed the regions to adopt policy portfolios in line with regional preferences rather than being forced to submit to national dominant group preferences and culture. At the same time, the sense of Belgian identity has not been diminished. Rather, some argue that regional autonomy has allowed

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the assertion of national identity and permitted groups to identify with the federalist polity as provider of a ‘context of choice’ (Kymlicka 1995). While tensions have been reduced, it cannot be said that the conflicts have been eliminated in their entirety. There are several areas that remain as sources of tension or even hostility. One problem area is that of financing the federalist model. Belgian federalism has been expensive, requiring the sharing out of resources in order to buy off competing groups. Much of the financing comes from federal grants (transfers from income tax and value added tax) and the regional entities have so far only limited competence in raising taxes themselves, while the communities rely completely upon the Belgian state as they have no powers to levy tax. Inevitably, the more prosperous region will resent the inter-regional transfers required to maintain a balance between the richer and poorer regions. So long as the EU member states are required to control their public spending and public deficits, the financial restrictions will affect the regions as well as the federal level. As long as economic fortunes wax and wane, the scope for intercommunity (and interregional) conflict will continue unabated. If unemployment increases, and there is a rise in economic insecurity, tensions are likely to be accentuated. Of course, it is also likely that resentments are not directed at the traditional target, the ‘other’ language community. Instead, the target is likely to be a new ‘other’ group as represented by the rising immigration to the country with the entry of new groups from Eastern Europe, Africa and Asia.

The wider European Union context All levels of government within the federal system must now take account of EU-level policy making and decisions. At the region level, autonomy is therefore determined by the scope of EU policy in any given area, notwithstanding the arrangements that may have been agreed between the regional and central government levels. So devolution may be technically feasible, but the scope of actual region-level policy making is restricted by the nature and substance of EU policy. What are the broader implications for the Belgian model of cultural autonomy arising out of European integration? The European Union is a community of nation states, and it is these states that are directly involved in European decision making. However, Belgium has agreed a coordination mechanism to keep regional and federal policy in harmony whenever EU policy might impinge upon the competence of the region or community. Under the arrangements, a regional minister can represent the Belgian viewpoint at the European Council of Ministers and without requiring the consent of the federal government (Swenden 2003). However, when it comes to the actual voting in the Council of Ministers, it is the member states that cast the vote—hence Belgium must work out its domestic compromise position to incorporate the interests of all the communities and groups before the national vote is cast. Does this mean that the national minority cannot rely on representation beyond the borders of the region or community, and cannot have recourse to the EU level of government? No. Any citizen of the European Union is free to seek the protection of EU law in defence of his or her rights—however, the European law refers to the rights of the

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individual and not to the minority. In fact, protection of minority rights is most likely to come through existing legislation on equality and non-discrimination. Cultural autonomy has an ambiguous position at best within European law. The ‘old minorities’ at member state level are not considered as minorities at the EU level. There is no EU definition of what constitutes a minority, so therefore we have no definition to identify who are the minority groups. Even the minorities from outside the European Union (the third-country nationals) rely on the individual member state’s internal legal system as well as the various international legal obligations and the agreements that various member states have with third countries to protect their rights as minorities and to secure forms of political representation. The implications arising from the EU political and legal positions is that cultural autonomy rests on the arrangements that have been made between the different levels of government within Belgium and that, while the substance (rather than the scope) of competence may be restricted by the European Union’s own policy competence, it lies with the national political system to shape and reorder the cultural autonomy model accord-ing to domestic preferences. Even the notion of diversity within the European Union is defined in reference to the national level. And member states’ positions on diversity tend to be linked with the national identity and its form of expression. The areas of policy that fall within what one might expect from the community portfolio are not subject to EU-level policy initiatives. (Cultural policy is not a high priority like competition, or monetary or trade policy.) So existing EU policy areas do little to support minorities or to encourage their development. While there is general support among the EU authorities for diversity within the European Union, there remain tensions between the pursuit of unity and the preservation of diversity. Cultural and linguistic diversity is encouraged within the European Union, but it remains difficult to foresee positive action and substantive policy developments as being likely in the context of enlargement. The constraints are based upon financial restraints on policy expansion, and also a general preference for policies linked with economic liberalism. The draft constitution put forward by the European Convention under the leadership of Valery Giscard d’Estaing contained no provision on minority rights and protection.6 Neither did the Charter of Fundamental Rights. Like international law, European law does not refer to autonomy. Consequently, a state has no international European obligations to establish a provision for cultural autonomy. The legal system favours the rights of the individual rather than the rights of the group, so of course civic (citizenship) rights are more important than the right to national identity. Ultimately, minority rights are to be found framed in the language of human rights and in such provisions as the UN charter. Not surprisingly, there is an incentive within Belgium to work at making the federal model effective (and representative), given the fact that minority rights and cultural autonomy can only really be guaranteed through the domestic polity and the political will and commitment of all the parties at the different levels of government. More immediately, we can pose the question as to what extent the Belgian federal system is stable, resulting in a multi-level governance system that allows for complementarity of federal citizenship and national cultural autonomy. Such stability would imply satisfaction with the representative arrangements and the national autonomy granted to the cultural/ethnic minority. The ensuing equilibrium would minimize the risk of escalating demands for greater autonomy and/or outright secession.

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The contemporary Belgian political arena is often fraught with such tensions. Political parties in Flanders, whatever their position on the political spectrum, have become much more conscious of national and ethnic concerns, and all political viewpoints tend to play the ethno-political card to a greater or lesser extent. Consequently, the arrangements established under federalism to protect the rights of the cultural groupings fail to offer the necessary assurance, and around this lacuna nationalist parties take the opportunity to compete for political space with agendas that proclaim their growing intolerance of the ‘other’ and the foreigner. A model such as the Belgian one creates a form of parallel universe where communities exist side by side, with each community enjoying the cultural and political rights guaranteed by the state under its devolved system. The risk is, however, that in the parallel universe there may not be sufficient opportunity for mutual understanding and the enhancement of multiculturalism. On the other hand, it should also be noted that the complex Belgian multi-level governance system has resulted in a series of mechanisms to cope with the tensions, and it certainly increased economic competition between the regions.

Conclusion The last decade of the twentieth century was marked by a resurgence of ethnic rivalry and conflict. Indeed, ethnic divisions have replaced the Cold War as the world’s most serious source of violent conflict. However, it is possible to find democratic political solutions to ethnic and societal divisions—the difficulty is often in keeping the solutions in place over the long term. John Stuart Mill’s assertion that democracy is ‘next to impossible in a country made up of different nationalities’—that is, in a multi-ethnic society—and completely impossible in linguistically divided countries, where the people read and speak different languages (Mill 1861:230), is not borne out in the case of Belgium. The Belgian governance system discussed above certainly has its merits, as it provided peaceful solutions to long-standing cultural autonomy problems. The case for power sharing and autonomy has been made eloquently by many (Lijphard 1995). Critics point to weaknesses, such as the risk of secession, the democratic deficit of executive power-sharing arrangements and the lack of incentives to moderate behaviour. Other critics suggest that it strengthens rather than weakens the cohesion and distinctiveness of ethnic groups, and thereby increases conflict between them. All of these criticisms are valid, to a greater or lesser extent, but they do not invalidate the proposition that power sharing and autonomy can minimize conflict between ethnic/cultural groups, any more than we should reject the notion of democracy simply because it does not work well in one place or at a moment in time. When looked at in combination with the European integration processes, the Belgian model has put a considerable strain on the federal level, requiring it to reinvent its distinct place between the local and the more global authorities. As a boutade one could state that in recent years the federal level has somehow become a ‘minority’ vis-à-vis the regional and the European level. This presents a dilemma for Belgium, since the European Union is still a community of states and, despite a regional policy and the introduction of the

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Committee of the Regions, there is no real effort to develop substantive representation of regional government within the EU decision structures. Second, the sheer complexity of the Belgian system has certainly not increased the transparency towards the citizens. For most Belgians the way their country is organized and governed remains difficult to understand. This might increase anti-political tendencies that in turn could lead to authoritarian nationalisms. It is certainly the case that minorities, having secured political representation in a system that permits them to become the majority within the territorially defined boundaries, can sometimes replicate the characteristics of the system within which they were classified as minorities. Third, the position of minorities such as Flemish speakers in Brussels or French speakers living in Flanders have still not been settled. It seems that the territorial arrangement within the Belgian system has worked better than the non-territorial features. Other minorities are likely to become part of the social and political landscape, with immigration and the general globalization that brings population movements with it. Eventually, perhaps, the whole question of minorities within the Belgian political landscape may have to be redefined in a way that goes beyond issues of language to encompass other cultural identities. If this happens, there may be a pressing need to reevaluate the existing model of cultural autonomy to reflect the new realities. In recent years the European ‘subsidiarity’ concept has also been used within Belgium in pleas for devolution. But the complexity of the system calls for another principle to be used as guidance for the governance, that of mutuality. According to this principle ‘it should be the obligation of each level of government as it participates in joint decisionmaking to foster the legitimacy and capacity of the other’ (Landy and Teles 2001:414). Applied to Belgium, this would mean that rather than asking the question ‘Is this or that policy item a regional, communitarian, federal or European issue?’ the question to ask is ‘What conditions are necessary to enable a certain level of government to contribute to managing the issue and how can the other levels foster those conditions?’ Like subsidiarity, the principle of mutuality makes a territorial assumption, but as noted by Landy and Teles (2001:415) it also opens up to communities of interest that defy physical boundaries. So, after all, we may find the basis for an application of the Renner model in a contemporary context.

Notes 1 Senior Researcher and Director at UNU-CRIS, the research and training programme on comparative regional integration studies at the United Nations University. Contact: [email protected]. 2 It should be noted that in its written and spoken forms the Flemish language is almost identical to Dutch. 3 Sections 127–9 of the Belgian constitution assign competence to the communities for the following fields of jurisdiction: cultural matters; education, except for determining the beginning and end of compulsory schooling, minimum conditions governing the granting of diplomas, and the pension plan; services offered to individuals (matières personnalisables); the use of languages in respect of administrative matters, teaching and employment contracts; intra-community and international cooperation in respect of cultural matters, teaching and services offered to individuals. The regions have the following areas of jurisdiction: economic policy, including assistance for investment and employment; employment; transport; energy; waste and water treatment; environmental protection;

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monuments and sites; public works; scientific policy. Also added to the regional portfolio were foreign trade, agriculture and international relations. Federallevel competence lies in residual powers, i.e. those not transferred to the region or the community. In practice, the federal competencies include defence, justice, internal security, taxation policy, social security and foreign affairs. In some cases there is sharing of competencies between the federal and regional levels, facilitated by active mechanisms for co-operation. 4 One of the criticisms levelled against forms of self-determination and cultural autonomy is the risk of secession by the decentralized, entity. The Belgian model incorporates arrangements to minimize this risk, even though some extreme groups see secession as an option. However, in the global economy there are risks in being too decentralized and many European regions (notably Catalonia and Scotland) prefer autonomy within the larger polity. 5 The Constitutional Court is itself restricted in its competence, and cannot control the compliance of federal and regional laws with all the articles of the constitution. It can only decide whether compliance is in accord with the principles of equality, freedom of education and ideology, and with the distribution of competencies as spelled out in the constitution. 6 It should be noted that the European Convention on Human Rights does not guarantee rights that are specific to minorities. The rights of the Convention are secured for all within the contracting states.

References De Batselier, N. (1998) In goede staat: een vooruitstrevende visie op institutionele hervormingen, Brussels: VUB Press. Deschouwer, K. (1999) ‘From Consociation to Federation: How the Belgian Parties Won?’ in K.Deschouwer and K.R.Luther, Party Elites in Divided Societies, London: Routledge. Hooghe, L. (2000) ‘Belgium: From Regionalism to Federalism’, in J.Coakley, The Territorial Management of Ethnic Conflict, London: Frank Cass. Kymlicka, W. (1995) Multicultural Citizenship, Oxford: Oxford University Press. Landy, M. and Teles, S.M. (2001) ‘Beyond Devolution: From Subsidiarity to Mutuality’, in K.Nicolaidis and R.Howse (eds), The Federal Vision, Oxford: Oxford University Press. Lijphart, A. (1999) Patterns of Democracy, New Haven, CT: Yale University Press. Mill, J.S. (1861) Considerations on Representative Government, reprinted New York: Liberal Arts Press (1958). Murphy, A.B. (1998) The Regional Dynamics of Language Differentiation in Belgium, Chicago: University of Chicago Press. Swenden, W. (2003) ‘Belgian Federalism: Basic Institutional Features and Potential as a Model for the European Union’, paper prepared for the Governing Together in the New Europe conference, London, 23 June.

16 Conclusion The sovereign predicament of dispersed nations Ephraim Nimni The question that led our discussions in the preparation of this volume is how relevant is Renner’s NCA model as a solution for contemporary demands of minority rights, secession and ethnic militancy? The broad scope and vibrancy of the discussion that ensued suggest that the issues raised by the NCA model are far from matters of a bygone era. Even the most critical of contributors sees the actuality of the issues raised by Renner and the insightful characteristic of his diagnosis (Kymlicka above: 137). This is, without doubt, a tribute to the vision and conceptual sophistication of a model that was initially developed over 100 years ago in a limited setting, as an attempt to manage inter-ethnic conflicts in a collapsing Central European empire. In this volume we bring together very different contemporary perspectives on NCA, yet it is important to remember that a similar discussion took place over a century ago, in the 1899 Congress of the of AllAustrian (Gesamtpartei) Social Democracy in the Moravian city of Brno (Brünn). Then, the Slovenian deputy Etbin Kristan from Trieste (now Italy) argued that while the party executive was demanding autonomous national territories,1 the minority deputies that supported the NCA thesis demanded national autonomy without considering territory. His point was that the elaborate mechanisms for the protection of minorities within autonomous regions proposed in tandem with the motion for territorial autonomy of the party executive show that the abuse of minorities is endemic when territorial sovereignty is exercised by a majority nation. According to Kristan, equal rights for nations cannot be implemented if they only apply to a group of people that live in a delimited territory. In support, Deputy Ellenbogen from Vienna further argued that if national communities have territorial home rights, the rights of minorities that speak a different language must limit these territorial rights. Here we have, Ellenbogen argues, the spark that rekindles national disputes (Protokoll… 1899/1978:199–205). One hundred and six years later, with the hindsight of the horrendous recurrence of ethnic cleansing in the twentieth century, we understand that the problem is even more serious than envisaged by the Austrian socialist deputies. It is an unfortunate fact that we have advanced very little in the resolution of the conflict over sovereignty between minority and majority nationalisms in nation states that endow national majorities with territorial sovereignty. Here is where revisiting the NCA model proposed by Renner may help us advance along this tortuous path of transforming troubled nation states into multi-

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nation states. But here we also need a strong word of caution. The details of Renner’s NCA model were formulated with Cisleithanian late imperial Austria in mind, and some of its idiosyncratic proposals are tailored to specific all-Austrian imperial circumstances, and these are no longer relevant with the collapse of the empire. It is important to understand that the weight of the model is not in its programmatic proposals for imperial Austria, such as making imperial German the language of the multinational state, nor in the fact that citizens must make an obligatory declaration of national allegiance at the age of eighteen. The strength of the model lies not in these circumstantial details, but in the proposal to institutionalize constitutionally defined collective rights for national communities as an alternative to territorial national sovereignty. Without denying the historical and contemporary value of studying multicultural institutions in late imperial Austria, for those of us here what is important to consider are the conceptual and organizational principles of the NCA model, and not the details as to how Renner thought the model should be implemented in Cisleithanian Austria. As Levey (above: 157) finds in his stimulating chapter, it is possible to vary the NCA model and adapt it to contemporary conditions of liberal multiculturalism, where, he suggests, the model has ‘much to recommend’ as a general approach to inscribing the cultural entitlements of territorial dispersed minorities. However, Levey contends that the strong Rennerian version harbours dangers of coercive culturalism and for these (and other) reasons is likely to be rejected in multicultural liberal democracies. The objections he raises need to be carefully considered, but here it is perhaps enough to note the culturally coercive features also of existing liberal democracies. Still, in some cases, where minorities and majorities have developed a modus vivendi on the basis of the principle of a thin liberal multicultural state, it may not be necessary to implement the comprehensive collective autonomy advocated by Renner. For one, the minorities themselves may not wish to obtain such a broad range of autonomous powers. In Western multicultural liberal democracies, as Kymlicka argues, there are ethnic or national communities that do not desire, collectively or individually, such a broad range of autonomous competencies, but may wish to exercise only a few of them. While this might be partially the case in regard to the immigrant communities in a few immigration-based former Anglo dominions, namely the United States, Canada and Australia, it is not the case in these same states in relation to their indigenous peoples (see Patton above). For example, the Spanish-speaking population (Latinos) in the United States do not have control over language and education in US territories that were captured from Mexico, nor does the African-American population have any degree of autonomy. In both cases, a strong NCA might help advance their subordinate group status. While Canada grants provincial (territorial) autonomy to Quebec, it fails to recognize Quebec as a ‘distinct society’, it does not constitutionally recognize Quebec’s cultural specificity. In Australia there are ‘glass ceilings’ blocking the progression of immigrants. In short, there are limits in this thin postcolonial anglomorph2 liberal multiculturalism, but these limits often satisfy white immigrant communities. However, this limited anglomorph postcolonial liberal multiculturalism is not common outside the former postcolonial British dominions. For the majority of nation states, the urgent question is to provide viable alternatives to the insatiable conflict between majority and minority nationalisms over state sovereignty, of which the debacle in the former Yugoslavia, the Israeli-Palestinian conflict and the plight of indigenous peoples in the

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Americas, Northern Europe, Asia and Oceania, the Chechen tragedy, as well as discrimination against the Roma people, are but some of the most salient examples. The NCA model proposes constitutionally enshrined collective rights for national minorities so that minorities can be protected from any subversion of their status by a majority decision, and these collective rights are to be expressed in corporations that organize the educational system, the legal system, and all other issues that are national in character (Macartney 1968:149). The rationale behind this daring suggestion is to deconstruct totalizing notions of sovereignty and eliminate competition between national communities by ensuring a strict separation of competencies. Renner and his colleague, Otto Bauer (1907/2000), do not clarify, however, how the model would deal with issues that concern bilateral relations between national communities, and how cooperation, and indeed, litigation would be dealt with in the case of parties belonging to different national communities. It is here that contemporary advances in multicultural theory can advantageously supplement and revise the NCA model. The original Renner-Bauer model is based on the premise that the most controversial issues in the relationship between ethnic and national groups are issues concerning language, education and the recognition of cultural rights in the public domain, and this is something that is of considerable interest to contemporary multiculturalist theory. Contemporary multiculturalism puts added emphasis in the formation networks of communication across cultural boundaries, as well as problematizing the shifting location of these cultural boundaries. These dimensions are important and have to be thought through in the context of the NCA model as they aim to recognize both communities and individuals as legitimate interlocutors. Change is a constant feature of cultural practices. A continuous dialogue within and between communities and between individuals of different communities is the only way to secure and formalize a negotiated public space across community boundaries (Parekh 1995:436).

NCA and national sovereignty An interesting dimension of the NCA model for contemporary discussions of minority rights is the criticism of the foundations of nation state sovereignty, one that certainly echoes and complements contemporary debates on sovereignty. As Nootens argues in Chapter 3, contemporary liberal nationalists still adhere by default to the J.S.Mill formula (Nimni above: 1) and look for a coincidence between nation and a territorialized sovereign state (Nootens above: 52). The doctrine of sovereignty as an absolute and indivisible attribute of the nation provides the territorial state with a basis of legitimacy of the majority (ethno) nation and in most cases converts that nation into the official ethnicity of the state. The genesis of this democratic symbiosis between nation and state is to be found in Abbé Sieyès’s seminal harangue Qu’est-ce que le Tiers-état?3 From a different angle, as Kelly argues, contemporary Anglo-liberal political theory has taken the nation state as given even when the principle of one nation in one state is an inherently destabilizing force (Kelly above: 166). Many contemporary liberal debates on multiculturalism simply take for granted the format of the sovereign territorial nation state, and this leads to a concomitant privileging of the dominant nation, thus posing significant limits to the realization of multiculturalism. This is done, for example, in the

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defence of a single official language for the state.4 This understanding of sovereignty also leads to an unavoidable jurisdictional conflict between majority and minority nationalisms within a sovereign state, a conflict that the liberal tradition with its distrust of collective rights and its privileging of individual autonomy is ill equipped to solve. As Renner argues, rather than eliminating national conflicts, the national territorial state produces and heightens them (Renner above: 30). The NCA model, in contrast, provides an important counterbalance to this general perception. This is done by ‘deconstructing’ sovereignty into various components and defining parallel ‘partially sovereign’ non-territorial communities through the proposal that national communities are public corporations with collective rights enshrined in constitutional laws, and thus outside the reach of the capricious sovereignty of the national majority. As Kemp correctly implies, for contemporary liberals the idea of collective public rights for national communities is difficult to accept. Liberal proponents of multiculturalism often posit a dichotomous relationship between society and individuals, suggesting at times that individuality exits independently of social context (Nieguth 1999:99). However, for Renner and Bauer, following Max Adler’s (1904/1976) seminal work on causality and teleology, individuals and communities are inextricably linked by an intersubjective and cognitive bond. The aim of Renner is not so much to separate politics from culture as to separate culture from exclusive sovereignty. Otto Bauer argues that the liberal democratic state is organized accord-ing to the ‘centralist-atomist’ principle and further expands this critique. The centralizing principle was initially developed by the absolutist state, and the progressive centralization of the state that followed had the effect of reducing society to its smallest parts—in Bauer’s words, atoms, i.e. to single individuals. Bauer then argues that this idea was inherited by liberalism and taken by it to its logical conclusion. Following its victory, liberalism swept away the last remnants of ancient guilds or autonomous associations of individuals. (According to Bauer, in this respect there is no difference between Rousseau and Hobbes.) State and society in contemporary states are all-embracing centralized totalities. Bauer further argues that in liberal democracies there are two recognized politicojuridical entities. One is the individual and the other is the sovereign will of the undivided collective. This is what Bauer and Renner call the centralist-atomist structure of modern nation states. This totalizing tendency fails to acknowledge important and meaningful intermediate locations, like the ones occupied by ethnic and national minorities. The NCA model remedies this gap by seeing nations as holding a kind of partial or segmental sovereignty as public corporations with constitutionally defined collective rights (Bauer 1907/2000:287–8). Renner defends this understanding of the legality of collective rights by arguing that the accepted truism that all national groups have equal rights is an unworkable platitude unless the rights are held by a legal entity accepted in public law, be it an individual or a corporation. A non-actionable or non-enforceable right is not a legal clause but a pipe dream (Renner above: 22), because national minorities will require the right of redress if their collective rights are violated. Consequently, a condition sine qua non for this partial or segmental sovereignty is the existence of constitutionally guaranteed collective rights for national minorities which recognize the will to belong and exit, and the existence of some mutually agreed adjudicator, something that challenges the epistemological foundations of the liberal tradition as individual autonomy

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is limited by the exercise of these collective rights. As liberalism is the hegemonic paradigm of the period, it is here that we find the strongest opposition to the NCA model. As mentioned before, the atomist-centralist approach explains well the format of the liberal democratic nation state. The inhabitants of the state are nationally identified with the state through habitation and citizenship, irrespective of ethnic affiliations. States are thus seen as nation states whether they are ethnically homogeneous or not (Ra’anan 1991:20). It is also on the question of the relation between non-territorial autonomy and national territorial sovereignty that confusion emerges. As Bauböck argues above (98), forms of non-territorial autonomy existed before Renner’s NCA autonomy model, but this argument misses the point, for the originality of the Renner model is not in its construction of non-territorial autonomy but in its democratic challenge of national territorial sovereignty. As Van Parijs (2000:242) remarks with reference to Renner’s later work, Das Selbstbestimmungsrecht der Nationen (The Right of Nations to Selfdetermination, not yet translated into English), Renner worked out in detail, presumably for the first time in history, democratic institutions for an irreducibly multinational state. Likewise, Renner’s reference to the Carolingian Empire’s toleration of different national communities and their differing legal systems through a judge asking the question Quo jure vivis? before passing judgement (Renner above: 27), indicates that the collective rights enshrined in the personality principle are not original to Renner. These previous forms of implementing collective rights were not democratic, as were previous challenges to the monistic sovereignty of the nation state. In sharp distinction, Renner’s NCA model attempts to combine collective national rights and democracy, and challenge the monistic conception of national sovereignty that characterizes modern liberal democracies.

NCA and nationalism From a cosmopolitan perspective, an argument that is often raised in the context of the discussion of NCA is why should we take the nation seriously? The question is raised by Kelly (above: 170). To put the question from a slightly different angle, is the NCA model nationalist? Or is it conceding too much to nationalism? There are perhaps two interrelated ways of tackling this question, one empirical and descriptive and the second normative. The responses are interrelated because there is no convincing way to completely disentangle the empirical-descriptive from the normative. The empiricaldescriptive response has been discussed before in the introduction and in this conclusion. It will be sufficient to remember that nationalism was the most powerful political movement of the twentieth century and that the inability of nation states to deal with demands for secession and minority nationalism has led to countless violent disputes over national self-determination. Ethnic conflict is the single most important cause of violent conflicts, massive destruction and bloodshed. On the normative side, Renner did have a theory of the nation, but it is not one that is discussed in detail in State and Nation. He nevertheless gives an indication that nations as cultural communities are constitutive elements of human identity. Renner describes the nation as a community whose solidarity is not primarily in the realm of will but in the realm of common cultural characteristics (Schwarzmantel above: 65). From a different,

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less legalist, perspective, Renner’s colleague, Otto Bauer, in his seminal work The Question of Nationalities and Social Democracy, provides a detailed theoretical chapter, ‘The Concept of the Nation’ (1907/2000:99–119) and this has been discussed in detail in other works (Kolakowski 1978:285; Nimni 1994:142–84, 1999:308–10). At the risk of simplifying a complex and multi-faceted argument, for Bauer the nation is a community of fate (Schicksalsgemeinschaft), a form of continuous interaction and reciprocity that generates an intersubjective bond that manifests itself in a common culture and a common apperception, and furthermore, for Bauer, individuality is unthinkable outside this societalized cultural existence (Nimni 1994:163–4). For our purposes here, this is sufficient to show that Renner and Bauer are not hostile to nationhood or other manifestations of cultural diversity but, at the same time, cannot be fully associated with writers and scholars who show uncritical support for nationalism. The point of rupture is their criticism of the nation state, and this brings these authors closer to the communitarian multicultural tradition and to very contemporary concerns about globalization and the nation state than to theorists of nationalism. There is in their work an embryonic form of multicultural nationalism that will be discussed further in the accompanying volume to this reader. In a world of nation states, multiculturalism and nationalism oppose each other. The bone of contention between nationalism and multiculturalism is the nation state, but if nationalism can find a mode of institutional expression outside the paradigm of the nation state, then the commonalty between communitarian multiculturalism and nationalism may allow a creative symbiosis that will diffuse many of the aggressive edges of nationalism. Some writers call this containing nationalism (Hechter 2000), and here is where Schwarzmantel’s chapter sees the most important application of Renner to contemporary discussions. Schwarzmantel (above: 64) argues that nationalist demands for secession are reduced if central state institutions are accountable to national minorities. This is precisely what Renner set out to do. There are also in Renner traces of liberal autonomy in the expression of the right of individuals to enter and exit national institutions, but one that owes more to a pluralist understanding of democracy than to a liberal procedural one. The idea is not no eliminate ethnic/national conflict through some kind of consensual/procedural arrangement—a liberal utopia inapplicable to different cultural communities coexisting in the same state—but to manage and institutionalize cultural pluralism in a manner akin to Chantal Mouffe’s agonistic democracy (Mouffe 2000) McGarry and Moore in an important and scholarly chapter take to task the argument put forward by doctrinaire egalitarians and libertarians inhospitable to difference (Taylor 1994:61). This influential criticism is that the institutionalization of ethno-cultural divisions, as proposed by the NCA model and other models of conflict management and ethno-national accommodation, reifies identities and entrenches cultural and national divisions. Many of those who advance these objections fail to see that the source of the problem is often the cultural and material privileges afforded to the dominant nation or ethnic group in nation states that claim to be imbued by an egalitarian ethos. In these circumstances, dominant communities by deed or default acquire the status of primus inter pares while preaching egalitarian ideologies that emanate from their own historical and cultural circumstances. These egalitarian claims mask parochial origins in universal claims, and blind constituents to the cultural limitations of their own claims to equality. A prime example, which by no means is the only one, is the French prohibition on

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exhibiting religious symbols in state schools. More than the institutionalization of diversity, what entrenches national and ethnic divisions is this subordination of the cultural values and symbols of national and ethnic minorities in states that claim to be oriented to the egalitarian values of liberal democracy. From the angle of these national and ethnic minorities, what entrenches national cleavages is the sight of their own inferior status in a society that preaches equality out of hypocrisy or ignorance on the privileged status of the dominant majority.

NCA and ethnoscapes A question that it is often raised in relation to the NCA model and other forms of nonterritorial autonomy is that many groups, dispersed or otherwise, have a conception of ‘sacred land’ or at the very least a homeland or a territory that is central to their understanding of their group identity. This is what Anthony Smith calls, following Ernest Renan, ‘ethnoscapes’, the process by which certain kinds of shared memories are attached to particular territories so that the former become ethnic landscapes (Smith 1996:453–4). The argument is advanced by McGarry and Moore (above: 83) after an illuminating discussion of different modalities of nonterritorial autonomy, and by Patton in relation to indigenous groups (Patton above: 115) as an important drawback for nonterritorial autonomy. The presence of this sentiment is very real, and often ethnic references to homelands are associated with powerful sentiments of group freedom and authenticity. However, this powerful sentiment does not, in itself, entail territorial sovereignty in the nation state sense of the term, unless it is mediated (as is often the case) by an ideology of territorial nationalism that, in itself, has little to do with the ethnic group’s territorial attachment in the first place. Perhaps it is best to illustrate by the way of examples. Various religious sites in Jerusalem and Hebron are of cardinal importance to Judaism, and religious Jews allude to these places in different prayers. It is mistakenly argued that this religious attachment will make it impossible for Israel to relinquish sovereignty over these sites, several of which are on Palestinian-occupied land. However, there is an ultraorthodox group of religious Jews, the Neturei Karta, who reside in Jerusalem and share with other ultra-orthodox Jews their attachment to the religious shrines of Judaism. The name of the group, Neturei Karta (in Aramaic ‘The Guardians of the City’) unambiguously indicates their attachment to Jewish ethnoscapes. What is peculiar to this group is that they see Zionism and the idea of Jewish national sovereignty over the holy places as a religious heresy and abomination. They do not recognize the state of Israel and wish to be ruled by a Palestinian state and to send representatives to PLO official bodies. The Neturei Karta are no less attached to Jewish ethnoscapes—they simply reject the discourse of Jewish national sovereignty, a discourse that is entirely inspired by the model of the nation state, and as such has little to do with Judaism. The second example is that of the Māori confederation and the emergence of the New Zealand state. The Treaty of Waitangi constitutes the pillar of the relation between Māori people and the settler majority and establishes the rights of the Māori nation in the New Zealand state. In the treaty, Queen Victoria recognized the confederal system of the Māori (hapu, whanau and iwi),5 but in the English version of the treaty Her Majesty’s

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sovereign authority is to be recognized over the whole and any part of the islands. The Māori version argues instead that Māori chiefs adjudicated Queen Victoria te kawanatanga katoa (government over their land), something that is much less than territorial sovereignty. Furthermore, in the English version Māori leaders and people were guaranteed exclusive and undisturbed possession of their fisheries, land and estates while in the Māori version the Māori nation was guaranteed te tino rangatiratanga, the exercise of their traditional system of governance, in the form of a confederal chieftainship over land and villages. The dispute is not a linguistic curiosity but one that goes to the very essence of the New Zealand state sovereignty over the islands and the enjoyment by the Māori nation of their collective rights over their land and ethnoscapes, while accepting the legitimacy of the overall rule of the New Zealand state. In both very different cases, the issue is one of national sovereignty as a form of exclusive territorial control of the dominant nation, and in both cases territorial attachment and enjoyment of cultural rights over ethnoscapes do not require territorial sovereignty. Furthermore, in the Neturei Karta case, attachment to its ethnoscape goes hand in hand with rejection of Jewish national sovereignty, but in the Māori case with the rejection of the territorial sovereignty of both Māori and settler nations. Finally, both, Māori and Neturei Karta could have been accommodated in the NCA model. The Treaty of Waitangi provides in its Māori version institutionalized collective rights to the Māori nation without conceding exclusive territorial sovereignty. Patton (above: 114–15) argues that the location of the ultimate authority over territory is crucial to the survival of indigenous peoples. However, the very idea of sovereignty as the ultimate control over territory is European in origin and not only alien to the lifestyle of indigenous peoples but the instrument of the subjugation of indigenous peoples in the first place, as they very rarely can construct sovereign nation states. Finally, it would be wrong and parochial to circumscribe the question of indigenous peoples to the British dominions. Debates about indigenous rights took place in Spanish America long before Australia was settled. There are indigenous peoples in Europe and Asia, and in many cases indigenous peoples achieved autonomous territorial status long before the displacement of indigenous peoples became an issue in the British dominions. The NCA model could help institutionalize these long-standing customary rights,6 as is happening in Russia (see Bowring, above), and as Klímová shows in an illuminating and informative chapter, the NCA model could also help resolve the claims to selfdetermination of the Roma people.

NCA and European integration Keating (above: 181) correctly observes that the concept of nationality has a strong normative charge and claim, which always raises the question of how these normative claims are to be reconciled with democratic societies. This relation has clear resonances for the process of European integration. The relative success of the European Union (EU) represents an example of the dual administrative system dismantling the unitary sovereignty of the nation state at the very heartland of where the nation state was created. There are indeed some important similarities as well as significant differences between the NCA model and the process of European integration, and there are several cases, in particular in the countries that most recently gained accession, that the NCA model could

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be advantageously applied to facilitate the process of integration. The possibility of applying the NCA model combined with some federal (territorial) administration to the whole of the European continent was contemplated by Otto Bauer in what he called a model for the ‘United States of Europe’ (Bauer 1907/2000:414) and in this sense he anticipated the vision of a federal Europe by almost a century. One of the most interesting and suggestive characteristics of the process of European integration is, as Keating (above: 183) argues, a new ‘reterritorialization’, which is best expressed in an early slogan of the Northern League: ‘Far from Rome and near to Europe’: the weakening of the territorial links associated with the nation state and the formation of new regions within the European Union across the old nation states. Keating considers that this process of reterritorialization is an obstacle to the application of the NCA model, as most demands for autonomy are territorial. However, this may not be an insurmountable obstacle—the European Union has managed to partially break the most difficult obstacle to the NCA model, the doctrine of the indivisible sovereignty of the nation state. The complex patchwork of sometimes overlapping competencies that characterizes the European Union is conducive to the introduction of modes of autonomy for national and ethnic communities that are territorially dispersed, and indeed the relative success in the application of consociationalist models in areas with overlapping national identities and territorial tensions augurs well for the applicability of an EUtailored variant of the NCA model. Some of the most protracted ethno-national conflicts in Western Europe show some indication that a partial non-territorial solution will facilitate the resolution of the conflict. In Northern Ireland, collective rights that include constitutional guarantees in the form of recognition of the right to self-determination of both communities in a confederal arrangement, combining territorial and non-territorial forms of governance, could help in the process of demilitarization of the conflict and advance the objectives of the stalled Good Friday Agreement. In Belgium, the partial application of non-territorial administration in Brussels Farrell and Langenhove show how the NCA model could be applied to an urban setting shared by two national communities sharing the same urban space. Van Parijs (2000:242) goes as far as arguing that Belgium is the only place were the NCA model subsists in a limited and recognizable form. He further advocates expanding the power of the communities at the expense of the regions and the federal government and further suggests the NCA model as a component of EU administration. There are two aspects of the process of European integration that could benefit from the NCA model or some variant of it; the free movement of people and the political accommodation of large immigrant communities in the European Union. Following the Schengen agreement, there are no mechanisms to monitor the movement of people between the signatory states, and those crossing nation state borders are hardly aware that they are moving across states. It is not inconceivable that significant communities will move across the European Union pursuing the goal of the Union, namely freedom of movement of people and goods. This scenario is even more likely with the incorporation of the new Eastern European members. While it has already happened with Greeks, Portuguese, Spaniards and Italians, large communities will settle more or less permanently in European countries that have a different language and culture, and they may wish to have schooling for their children in their own vernacular languages, as well as other cultural services. It is also possible that the immigrant position of these people

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and their hybrid offspring sets them aside from settled members of their nation in their own home territory and they may demand a form of political representation in European institutions. Again, limited versions of the NCA model will certainly help to achieve these goals. The position of immigrant communities from outside the European Union is more urgent and complex. In some cases these communities number millions of people, and when they are not citizens of the member states, these communities have an anomalous status, for they do not qualify for European citizenship even if a considerable number of them have resided in the European Union for two or three generations. Their cultural background is very often vastly different from that of the host country, and they are among the poorest and more vulnerable sections of the EU population. Some of then live in large concentrations and have difficulty in securing for their offspring education in their vernacular culture. They are often the object of discrimination and abuse. Again in this case it will be very advantageous for the integration of these people, and for social peace in the countries they reside, if some form of NCA could be implemented to deal with their cultural needs and represent their grievances to the EU institutions. ¡Café para todos!7 The apparent success of federalism in satisfying the demands of minority nationalisms in Europe and North America, or at least the attractiveness of the model, is often used as an argument against the viability of the NCA model. Will Kymlicka argues that the NCA model cannot deal with large national minorities demanding national rights in what they consider to be their historical homeland (Kymlicka above: 139). However, this is based on a misunderstanding of Renner’s NCA model. Renner would have few difficulties in agreeing to territorial autonomy (‘TA’) when the population is nationally or ethnically homogeneous. Nevertheless, as the case of Quebec and the Spanish state demonstrates, a federal solution simply based in a territorial division without constitutionally recognizing the (non-territorial) special character and collective rights of the national minority is a half-way solution marred by the dissatisfaction of the national minority and by continual threats of secession. First, Renner is clear that when administrative territorial boundaries can be reduced to cantons (Kreise) where the population is nationally (ethnically) homogeneous, he sees no need for a special non-territorial form of governance, as here national and territorial governance overlap. Second, TA in itself provides no discernible recognition of collective national and ethnic rights. It is simply a territorial administrative division, and it is at best a half-way house that antagonizes both centralists and minority nationalists. In liberal democracies federalism is a widespread mode of governance, and most federal states are divided into provinces with no discernible national or ethnic character. When a federal system is used to placate minority nationalist demands, it leaves national minorities dissatisfied with the recognition they are afforded, for if their federal autonomy is based on a form of territorial division that is also applied to those who do not have a minority nationalist claim, the territorial division offered fails to take into account the cultural specificity of the minority’s demands for the recognition of their national cultural identity. Bauer and Renner called these minority national communities ‘organic’ or, in more contemporary terminology, communities imbued with a cultural

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identity, a sense of historical origins and patterns of cultural behaviour markedly different from that of the dominant majority. Their nationalist demands are for differential collective rights based on their distinctive culture, something that, when it does not lead to secession, elicits deep suspicion among liberals. The cases of Quebec and the Spanish state are illustrative. While the Canadian federal state recognizes the autonomy of the province of Quebec, it conspicuously failed in the debacle of the Lake Meech Accords,8 to recognize Quebec as a distinct society, i.e. to recognize the distinct collective personality of la communauté québécoise. This had the opposite effect from the intended egalitarianism of its liberal proponents, as it strengthened the hand of the Québécois separatists and undermined the position of the Québécois who wanted to remain part of a Canada that would recognize that Quebec is a société distincte. This mechanical egalitarianism is also the basis of the liberal AngloCanadian criticism on Bill 1019 of the Quebec government because it provides for compulsory schooling in French, except for those whose parents have been educated in English. This liberal Anglo-Canadian criticism is rightly seen as hypocritical by Québécois nationalists and lent weight to the cause of Québécois separatists, for if Quebec was an independent state, it would be logical to have French as its official language and no one would question the right of Quebec to educate its children in French. This situation highlights precisely the poverty of TA as a device to protect the culture of national minorities in a liberal democratic federal state. Without a constitutionally enshrined recognition of the cultural distinctness of a national minority, without enacting collective rights for the national minority, TA on its own fails to protect the cultural rights of the national minority. Territorial autonomy in the Spanish state presents the same lack of recognition of the specific cultural identity of minority nationalisms. In order to accommodate minority nationalisms, the post-Franco Spanish state constitution divided the up to then centralized state into a number of autonomous regional communities, some of them with clear ethnonational identities (Catalonia, the Basque Country, Galicia and Valencia) while others had no discernible ethno-national identity from the majority (Madrid, for example). This enraged minority nationalists, who began to call the autonomies imbued with a different ethno-cultural identity comunidades históricas (historical communities). The 1977 democratic federal constitution was mocked as venga…café para todos, ‘coffee for everyone’, because it failed to recognize the special character of the population in regions with a distinct cultural identity (Ehrlich 2000:308). In Canada, this same egalitarian logic is expressed in the Anglo-liberal slogan ‘Quebec is one of many distinct societies within Canada’. The problem is far from resolved. Every minority nationalist demand for cultural recognition is treated with derision and suspicion, something that recently led the secretary-general of the Catalan nationalist party, Esquerra Republicana de Catalunya10 (Catalonian Republican Left) and deputy in the parliament of the Spanish state in Madrid, Joan Puigcercós, to say: A més, el fet de parlar catalá a Madrid, al Congrés, no es cap broma, provoca una agressivitat extrema. Només cal veure la premsa de Madrid…els catalans a l’Estat espanyol hem assumit una mica el rol de jueus en l’antisemitisine, de persones sota sospita permanent, de traïdors…11

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Minority nationalists granted TA in liberal democracies often share this sentiment. This is a result of the fact that, in federal systems, national majorities often fail to see the state as multinational. Contrary to Kymlicka’s argument (above: 138) that the Western democratic lesson on minority nationalism accommodation applies to other parts of the world, the examples Quebec and Catalonia and their unsuccessful demand to have their cultural specificity constitutionally recognized, let alone the situation in the Basque Country, or indeed the situation of indigenous peoples in the postcolonial former Anglosettler dominions, are not exactly shining examples of the successful accommodation of minority nationalisms. As to Western democratic lessons in general, the people of Iraq and Latin America and many others are not exactly impressed. Minority protection is in fact diminished where TA has been granted to minority ethnic nationalism. The securitization of minorities that Kymlicka rightly sees as a disturbing factor is a by-product of the territorialization of ethnicity. However, Kymlicka’s (above: 145) assertion that state-minority relations have been desecuritized in the West begs the question, has he discussed this point with a person with an Islamic name in North America? The more the ethnic majority, be it in a state or in an autonomous region, sees its territorial boundaries threatened by minorities—and under TA this is not inconceivable—the more it will repress minority nationalisms within the territory over its sovereign control. Examples abound in the Baltic states, in Russia and even in Quebec itself. The Québécois Prime Minister Jacques Parizeau argued after the defeat by a whisker (50.58 per cent to 49.42 per cent) in the 1995 referendum on independence in Quebec, ‘nous avons été battus par l’argent et le vote ethnique’!12 In other words, the suspicion of disloyalty falls on the ethnic minorities. In Catalonia, the same suspicion falls on the Castilian-speaking Andalusian migrants. While it is clear that in the Catalan and Québécois cases, NCA is a compliment to and not a substitute for TA, this last model conspicuously fails to recognize the cultural specificity of Québécois and Catalans. Here, NCA has a distinct advantage over TA, for it offers autonomy on an explicitly ethno-cultural basis, while TA cannot do so without a threat of ethnic cleansing for unwanted minorities. No one who takes seriously the lessons of the twentieth-century Holocausts can argue that these fears are widely overblown. Consider the plight of the Palestinian people. In all these cases, a combination of both models, TA and NCA, might have the desired effect.

NCA in the twenty-first century How can we assess the value of the NCA model in dealing with the intricacies, horrors and solidarity generated by contemporary nationalisms? The scope and intensity of this volume’s debate, the differences of opinion, as well as the wide range of questions and issues discussed, indicate that the questions identified by Renner and Bauer are still forcefully with us over a century later. In a world where nation states remain the only universally accepted form of recognizing national rights, national autonomy in its many forms is still considered a second-best option. It is, however, considered by menaced groups as an essential guarantee of survival, a way of securing access to resources, language, education, political representation and the recognition of equal dignity. In spite of the gallant efforts of multiculturalists of different kinds and shapes, liberal

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democracies, while granting civil rights to every person, still resist the recognition of differential ethnic and national rights. The nation state, a pre-modern creature that admirably adapted to the conditions of modernity and served as a vehicle for the implementation of many equalitarian doctrines, is based on the premise that it is necessary to associate territorial state sovereignty with a national community. Since the match is almost never perfect, national and ethnic minorities that are not able or do not wish to build sovereign states are caught in bind, in a horrific predicament that has been responsible for countless acts of inhumanity and butchery. It is therefore imperative to find a different means of internationally recognizing collective national rights. NCA offers a way out of this impasse, not because it challenges the association of autonomy with territoriality, but because it challenges and deconstructs the association of nationhood with sovereignty, a key ingredient in the perverse logic of the nation state. NCA can accommodate TA and vice versa; the opposition between the two is a false opposition. What NCA cannot accommodate is nationally exclusive territorial sovereignty, and here perhaps, lies the validity of the model for a world that is still hungry for the politics of cultural representation and desperately short of pieces of real estate. Renner’s model was developed to reconstruct a collapsing empire. The contemporary challenge for the NCA model is to change and adapt to a world in which, thankfully, the nation state is in retreat but where no convincing alternative has emerged.

Notes 1 The Socialist Party of Austria went against the centralist tendencies that characterized European socialism of the period, adopting in 1897 a confederal party structure that united six national parties. The newly created Gesamtpartei had a common executive composed by delegates of the six national parties and presented to the Brno Congress a motion for territorial autonomy that incorporated elements of the NCA model. The motion was opposed by a minority of deputies supporting the NCA model and the sophisticated theoretical debate that followed compares favourably with some contemporary debates on multiculturalism. 2 The term ‘anglomorph’ is taken from Knopfelmacher (1992:41). It refers to the colonial and postcolonial cultural and institutional (not biological) offspring of settlers from the British Isles in distant colonial and postcolonial settlements. While Knopfelmacher used this term to oppose multiculturalism, the case can be made for a sui generis type of anglomorph multiculturalism in the postcolonial former British dominions. 3 According to Abbé Sieyès the Third Estate must constitute a national parliament, without the two privileged orders, the nobility and the clergy, which according to him are external to the nation. The nation is then the community of citizens. 4 The acrimony that surrounded Quebec’s implementation of Bill 101 is a clear indication of double standards when it comes to minority languages. See above: 249. 5 The traditional Māori social order is made up of hapu (kin group) and whanau (family group) and iwi (tribe). 6 For a discussion of the debate about the institutionalization of these rights for indigenous peoples in Quebec, see Geneviève Nootens, ‘Nations, citoyenneté, intégration: l’évolution récente du concept d’état nation au Québec’, Panorama sur le Québec, http://www.panorama-quebec.com/dossier.do?rub=5&dos=5&chap=4&sec=1. 7 Coffee for all! A minority nationalist gimmick used to ridicule the Spanish egalitarian constitution because it does not recognize the cultural specificity of national minorities. 8 The Meech Lake Accord was a set of failed constitutional amendments to the preamble and the constitution of Canada proposed in 1987 by Prime Minister Brian Mulroney and Robert

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Bourassa, Premier of Quebec. It was mainly designed to recognize Quebec as a ‘distinct society’, something that would have allowed the recognition of special cultural rights of the Québécois within Canada. It failed because of the opposition of two other provinces. A further watered-down attempt that pleased no one was made in a referendum in 1992 (the Charlottetown Accord) that also failed. 9 In 1977, shortly after its first election victory, the Parti Québécois introduced Bill 101, also known as the Charter of the French Language. The legislation is designed to protect and promote the French language in Quebec. It makes wide-ranging stipulations. The most important ones are the requirement for the compulsory use of French in large enterprises, the use of French on commercial and public posters and signs, making French the sole official language of the province. The most controversial part is the disposition for compulsory education in French for children of immigrants and francophone parents. If one of the parents was educated in an Anglo-Canadian school, they can chose to educate their children in English. 10 In 2004 Esquerra Republicana de Catalunya has twenty-three seats (third group by seats) in the Catalan parliament in Barcelona and is now one of the three coalition members of the Catalan government. The party has also eight seats (fourth group by seats) in the parliament of the Spanish state in Madrid. 11 For me, the act of speaking Catalan in Madrid, at the Congress (Congreso de los Diputados, Parliament of the Spanish State) is no joke, it provokes extreme aggression: one only need see the Madrid press: ‘Catalans in the Spanish state have assumed a kind of role of Jews in antisemitism, of persons under permanent suspicion, of traitors’ (Puigcercós 2004, my own translation from Catalan): interview with Joan Puigcercós in Diari de Girona, July 2004. 12 ‘We were defeated by money and the ethnic vote.’ The next day Parizeau lost the confidence of his party, Parti Québécois, and he had to resign. Parizeau was not entirely right because les enfants de la loi 101 (children of Bill 101), the children of the immigrants who came to Quebec after Bill 101 was enacted, are on the whole francophone even if they voted against Parizeau. However, Parizeau’s comments gave comfort to some racist extremists in Quebec who argued that questions of sovereignty should be decided only by les québécois de souche (Quebeckers of the stock or trunk, meaning the descendants of the original French settlers). Anglo-Canadian liberals portrayed Parizeau as a bigot and a racist, a wild and tendentious exaggeration. He was married to Alice Poz-nanska-Parizeau, who died in 1990, a Polish Jewess, considered a distinguished Québécois writer and lawyer, who survived the extermination camp of Bergen Belsen and became a noted human rights activist.

References Adler, Max (1904/1976) Causalità a teleologia nella disputa sulla scienza, Bari: De Donato. Translation by Roberto Racinaro of Marx-Studien I, Kausalitat and Teleologie im Streit um die Wissenschaft, Vienna: Brand. Bauer, Otto (1907/2000) The Question of Nationalities and Social Democracy, trans. Joe O’Donnell, E.Nimni (ed.), Minneapolis, MN: University of Minnesota Press. Ehrlich, C. (2000), ‘Ethno-cultural Minorities and Federal Constitutionalism: Is Spain Instructive?’ Southern Illinois University Law Journal, 24:291–318. Hechter, M. (2000) Containing Nationalism, Oxford: Oxford University Press. Knopfelmacher, Frank (1992) ‘The Case against Multiculturalism’, in Robert Marine (ed.), The New Conservatism in Australia, Melbourne: Oxford University Press. Kolakowski (1978) Main Currents of Marxism: its Origins, Growth and Dissolution II, Oxford: Oxford University Press. Macartney, J.C.A. (1968) National States and National Minorities, New York: Russell and Russell.

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216

Mouffe, C. (2000) The Democratic Paradox, London: Verso. Nieguth, T. (1999) ‘Accommodating Ethnic Minorities: The Austro-Marxist Personality Principle and Canada’s Multicultural Condition’, Canadian Review of Studies in Nationalism, 26:91–105. Nimni, E. (1994) Marxism and Nationalism: Theoretical Origins of a Political Crisis, London: Pluto Press. Nimni, E. (1999) ‘Nationalist Multiculturalism in Late Imperial Austria as a Critique of Contemporary Liberalism: The case of Bauer and Renner’, Journal of Political Ideologies, 4(3):289–314. Parekh, B. (1995) ‘Cultural Pluralism and the Limits of Diversity’, Alternatives, 20/43. Protokoll über die Verhandlungen des Gesamtparteitages der sozialdemokratischen Arbeiterpartei in Österreich Brünn (1899/1978). Spanish translation by C.Cerretti in ‘La Segunda Intemacional y el problema nacional y colonial’, Cuadernos de Pasado y Presente No. 73, Siglo (Mexico), 21:181–217. Puigcercós, J. (2004) Interview in the Catalan daily Diari de Girona. Ra’anan, U. (1991) ‘Nation and State: Order out of Chaos’, in U.Ra’anan, M. Mesner, K.Armes and K.Martin (eds), State and Nation in Multi-ethnic Societies, Manchester: Manchester University Press. Smith, A.D. (1996) ‘Culture, Community and Territory: The Politics of Ethnicity and Nationalism’, International Affairs, 72(3):445–58. Taylor, C. (1994) ‘The Politics of Recognition’, in A.Guttman (ed.), Multiculturalism: Examining the Politics of Recognition, Princeton, NJ: Princeton University Press. Van Parijs, P. (2000) ‘Must Europe be Belgian? On Democratic Citizenship in Multilingual Polities’, in C.Mackinnon and I.Hampsher-Monk (eds), The Demands of Citizenship, London: Continuum.

Index

Adeney, K. 86 Adler, Victor 2, 4 affiliation 19; as basis for rights 22–3; register of nationality 208; right to opt out 159–60 Agnew, J. 53 agonistic democracy 13(n.4) Alcock, A. 84 All-Austrian Social Democratic Party see Socialist Party, Austria Alto Adige 102 Aotearoa see New Zealand Maoris associations, national 30–1, 34, 69–70, 168–9, 239; and education 44; elections 77; and multiculturalism 71; Romani groups 128 Australia 115–16, 118–19 Austro-Hungarian Empire: disintegration 137; ethnic disputes 15–16; as historical background to NCA model 3–6; patterns of sovereignty 34–5; personality principle as solution 30–5; problems of territorial principle 30; representation and public office 40–4; territorial presuppositions of Renner’s model 140–3 autonomy: cultural, vagueness of concept 208; finding a balance 216–18; in liberalism 158; linguistic 84; personal 59; territorial vs. non-territorial 55–8, 78, 79–85, 102–5, 126, 140–3, 151–6, 241–2 Badeni, Count Kazimierz Felix 45(n.2) Badie, B. 183

Index

218

Baron, Salo, W. 153 Barry, Brian 71, 89(n.4), 162, 167, 173, 175 Barsa, P. 126 Basques 185–6, 187, 188 Batt, J. 186 Bauböck, Rainer 58, 91(n.26), 126, 139, 241 Bauer, Otto: beliefs and motivation 98; in ‘centralist-atomist’ principle 240–1; on class alliances 3, 65; on the concept of nation 242–3; ignoring inter-community dialogue 239; on Moravian compromise, 1905 109(n.1); on nation as ‘community of fate’ 154; opposition to Jewish cultural autonomy 109(n.11), 161; on stages of national development 100; on the ‘United States of Europe’ 246; writings 6 Begin, Menachem 81 Behrendt, L. 119, 120 Belgium 9, 80, 102, 185, 187, 246–7; current problems 234–5; federal structure 227–9; federalism in practice 230–1; historical origins of ethnic conflict 224–5; implications of European integration 232–4; rise of French and Flemish nationalism 225–7 Benhabib, S. 100 benign neglect approach 171, 172, 173–4 Bentham, Jeremy 68 bilingualism 42, 43–4, 83 Bohemia 4 Bosnia-Herzegovina 87; see also Yugoslavia Bowring, Bill 117, 122(n.1), 131, 182, 246 Brassinne, J. 185 Brno conference, Socialist Party, 1899 2–3, 109(n.2, 3, 5), 237 Brubaker, Rogers 68–9, 87, 90(n.12), 99, 200, 214 Buchanen, Allen 100, 181, 218–19 Bukovina 80 Bunce, V. 87 Butterwege, C. 64 Calley, K. 119 Canada 80, 82, 107; Indigenous Peoples 115, 118; Quebec 7–8, 56, 248–9, 250 Carolingian Empire 27, 47(n.13) Catalans 187, 188, 249, 250 Celje 46(n.5) centralization 240–1

Index

219

Ceretti, C. 13(n.1) Chamisso, Adelbert von 21, 46(n.10) Churchill, Winston 55 Cilli 46(n.5) class 21–2 co-nationals, protection of 215 Coakley, J. 58, 61(n.10), 79, 80, 82, 160 Codagnone, C. 81, 199–201 colonialism: characteristics of government 117 communications 183 communism 6–7 conflicts: containment through reform 64, 240; effects of territorial autonomy 139, 153; historical origins of ethnic conflict in Belgium 224–5; role of ethnic and national groups 1–2 Connor, Walker 83, 90(n.8), 138, 181 consociationalism 8–10, 85–8, 182–3, 184 constitutionalism 183 Copenhagen Document, 1990 81, 143, 208 Council of Europe 210; Framework Convention on the Rights of National Minorities 90(n.17), 208; problems with Russia 202–3 courts 44–5 Couture, J. 57 Croatia 81; see also Yugoslavia cross-border initiatives 187 culture: as basis of a nation 65, 75–6, 99–101; cultural privileging 160; in industrial society 67; inseparable from politics 212–13; multiculturalism 70–2; separation from economic and social concerns 71; and symbolic recognition 155–6; vs. equality 175 Cyprus 80, 87, (92n.29) Czechoslovakian Germans 214–15 Czechs, nationalism of 4, 97 Davletshin, T. 196 Dawisha A. and Dawisha K. 88 Dayton Accords 87 De Batselier, N. 223 Democracy in Plural Societies (A.Lijphart) 8 Deschouwer, K. 231 deterritorialization 183–6 Diamond, L. 86 diasporas, minority 147(n.6)

Index

220

Dodson, P. 119 Dowley, K. 198–9 Drobizheva, L. 199 Dubnow, Simon 154 education 44, 174, 175–6, 249 Ehrlich, C. 249 Eide, Asbjorn 128, 130, 208, 213 electoral systems 40–1, 87–8, 211 elites 9–10 Ellenbogen, Deputy Wilhelm 237 Endo. K. 54 Eötvös, Lóránd 22, 47(n.11) equality: of nationalities: deficiencies of concept 17–18; deficiencies of legislation 19; vs. culture 175 Estonia 60(n.8, 10), 81, 90(n.18); Cultural Autonomy Law, 1925 56, 80; policies on Russian language 85; territorial presuppositions 142 ethnoscapes 83, 118–19, 152, 154, 244–6 Europe, Central and Eastern 143–6 European Union 246–8; deterritorialization and reterritorialization 183–6; implications for Belgium 232–4; lack of policies on minorities 232–3; minorities protection regime 188–9; partially territorial government 186–9; and the Roma 131–2; structure 182–3 exclusivity, national 213–16 Farrell, Mary 247 federalism 6, 248–50; Belgium 227–31; Central and Eastern Europe 143; danger of territorial federalism 105; federal constitutionalism 105–7; need for shared rule 85; role of dominant group 106–7; Soviet model 199 Filippov, V. 81, 199–201 Filippova, Y. 193 Finland 84 Flemish nationalism 187, 223–7 Fleuras, A. 115 Fowler, B. 187 Framework Convention on the Rights of National Minorities (Council of Europe) 90(n.17), 208 France 187

Index

Gagnon, A.G. 109(n.12), 188 Galitzia 4, 80 Gans, Chaim 99 Gellner, Ernest 67, 99, 181 Germans, Czechoslovakian 214–15 Gesamtpartei see Socialist Party, Austria Gheorghe, N. 131 globalization 51 Goble, P. 81 Good Friday Agreement, Northern Ireland 186–7 goods vs. identity 166 Gorbachev, Mihail 86 gosudarstvenniki 200 governance, multi-level 182 government: under colonialism 117; territorial vs. non-territorial institutions 113–15; traditional forms 118 groupism 99 Guibernau, M. 131, 194 Gumplowicz, Ludwig 17, 21–2, 46(n.8) Habermas, J. 54 Habsburg Empire see Austro-Hungarian Empire Habsburg monarchy: impossibility of reform 64 Hancock, I. 133(n.9) Hanf, T. 85 Hannum, Hurst 216 Hechter, M. 64, 243 Herrero de Miñon. M. 183 Herrschaft 65 Himmelfarb, M. 154 Hirst, P. 70 Hobsbawm, E. 75 home rule 6 homeland, concept of 83, 152, 154, 244–6 Hooghe, L. 86, 182, 225, 231 Horowitz, Donald 217 Hungary 84–5; Minority Protection System 56, 80; Romani self-government 130 Hutchinson, John 194 Huysmans, Camille 223 identity: linked to territory 118–19; plural character of 57, 211; of Roma 129; vs. goods 166

221

Index

222

immigrants 69, 161, 247–8; vs. indigenous populations 238–9 India 86 Indigenous peoples 238–9; argument for non-territorial nationality 119–21; cultural assimilation 117; importance of territory 118–19; in settler liberal democracies 8; and sovereignty 115–16, 119–22; and traditional forms of government 118 International Romani Union 125, 132(n.6) Inuit people 56 Ireland; see also Northern Ireland: nationalism 91(n.21) Iskhaki, G. 196 Israel 81, 244–5 Jackson Preece, J. 55 Jellinek, G. 188 Jews 79, 109(n.11), 161, 244–5; Jewish Bund (Lithuania, Poland, Russia) 192–3 Jones, P. 157 Judt, T. 163(n.4) Kadet (Constitutional Democrat) Party, Russia 195 Kallen, Horace 160–1 Kann, Robert 155 Kautsky, Klaus 193 Keating, M. 8, 53, 57, 58, 59, 60(n.2), 138, 246 Kelly, Paul 240,242 Kemp. Walter A. 74, 89(n.2), 90(n.12), 127, 131, 240 Kieve, R. 75, 87 Klimová-Alexander, Ilona 246 Knopfelmacher, Frank 251(n.2) Kogan, A.G. 13(n.1) Kolakowski, Leszek 242 Königgrätz, battle of 46(n.3) Kovats, Martin 129, 133(n.8) Kristan, Etban 109(n.5), 237 Kriszan, A. 56, 57, 80, 85 Kukathas, Chandran 157, 169, 171 Kulturgemeinschaft 9 Kurds 82 Kymlicka, Will 91(n.22); on arbitrariness of Renner’s model 152; on ‘context of choice’ 231; on desecuritization of state-minority relations 250; on differences between E. and W. Europe 153; on goods vs. identity 166; on historical homelands 248;

Index

223

on individual autonomy 158, 207; influence on multiculturalists 171; on liberalism 160, 238; not addressing commitment to sovereign territorial ideal 52; on paradox of multinational federalism 110(n.14); on Romani issues 124, 126; on threats to minority rights 54, 82; on Ukraine and Transcarpathia 80 Laitin, D. 85 Landy, M. 235 language: autonomy 84; conditions for survival 103, 155; criticism of Renner’s argument 72, 83; legislation 16, 45(n.2); and multicultural liberalism 162; and nationality 19, 21–2; and public office 40, 42–4; and self-administration 35–6; Swedes in Finland 84; and the territorial principle 84–5 Lapidoth, R. 208 Laponce, J. 79, 103, 147(n.4) Lappin, S. 163(n.4) law and legislation: Aboriginal conception of law 118–19, 122; based on nationality 27; European law 233; international law 209–12; on language 16, 45(n.2); and national rights 22–3; as a necessity 207–8; and the personality principle 29; as solution to conflict 63–4, 67–8; and the territorial principle 28; veto rights of minorities 85 Lejeune, Y. 147(n.4) Lenin, Vladimir Ilich 89(n.3), 98, 161; opposition to cultural autonomy 192–4 Levey, Geoffrey Brahm 238 liberal democracies 7–8 liberal egalitarian approach 171–2, 175–6 liberalism 241; changing views on pluralism 97; and multiculturalism 156–63, 171, 175; and the territorial principle 52–4 Liegeois, J. 131 Lieven, Anatole 199 Lijphart, Arend: on consociational systems 80, 86;

Index on federalism 90(n.14, 15); on personality principle 9; on power sharing 234; on principles of consociational model 8, 182; on self-determination 88, 101–2; synonyms for non-territorial autonomy 79 Lindström, Fredrick 109(n.4, 9) Lithuania 79 Lumer, H. 161 Lund Recommendations 90(n.17) Luxemburg, Rosa 98, 154 Maaka, R. 115 Macartney, C.A. 55, 163(n.1), 239 MacCormick, N. 59, 183 Magyars: origins 152 Mansour, G. 147(n.4) Maoris see New Zealand Maoris Margalit A. 100 Marks, G. 182 Marxism 75, 98 McGarry, J. 8, 9, 86, 88, 91(n.21), 243–4 Meinecke, Friedrich 10, 158 Mekshetian Turks 203 Mill, John Stuart 1, 234, 240 Miller, David 52, 166, 170, 172, 176(n.2, 5) millet system (Ottoman Empire) 10; contribution to modern legal systems 79 ‘minoritization’ trap 57 Montenegro 209 Moore, M. 91(n.22), 152, 176(n.2), 243–4 Moravia 80, 109(n.1) Mouffe, Chantal 13(n.4), 243 multiculturalism 70–2, 239; alternative approach 107–8; benign neglect approach 171, 172, 173–4; liberal egalitarian approach 171–2; and liberalism 156–63, 171, 175; vs. nationalism 243 Murphy, A.B. 53, 224 Musgrave, Thomas 210 Muslim Russia 195–8 mutuality 235 Nairn, Tom 67 Nam, Iraida 195, 196, 197 Nasr, V. 86 nation and nationality: as antitheses to state 27, 64–5; applied to the Roma 127–8;

224

Index

225

authority 158–9; definition and concept 21–2, 65–6, 75–7, 194, 210–11, 242–3; dependence on state 67–8; determination of affiliation 19; different normative approaches 169–73; not always defined by language 103; and rights 17–19; Renner vs. Marxism 75; as spiritual concept 154; stages of national development 100; and territorial location 118–22 nation states: ideas of John Stuart Mill 1; under liberal nationalism 160; multiculturalism vs. nationalism 243; as myth 54; outdated paradigm 214–16 nationalism: contemporary 250–1; cultural vs. statist 99–101; Czech 4; demands of nationalist movements 103; Flemish 187, 223–7; Irish 91(n.21); liberal nationalism 156–63; and national cultural autonomy 242–4; non-territorial jurisdiction 102–5; sub-state nationalism in the West 138–40; vs. multiculturalism 243; Walloon 226–7 nationality principle 167–8, 170; after First and Second World Wars 55; as basis for statehood 25–6; challenge to origin of power 54; problems of concept 214–16 Nations and Nationalism (E.Gellner) 67 Nazerali, Sean 125–6 Necas, C. 126 Neturei Karta 244–5 New Public Management 183–4 ‘new regionalism’ 184, 188 New Zealand Maoris 80, 115, 120, 245 Nigeria 86 Nimni, Ephraim: on affiinity between Renner and Tully 117; on Indigenous Peoples 122(n.1); on modern theory of political obligations 53; on non-territorial autonomy 126; on the personality principle 158; on Renner’s model 51, 57, 131, 139, 150; on the Romani question 133(n.8) Noel, S. 86

Index

226

Nootens, Genevieve 126, 131, 240 Northern Ireland 87, 88, 186–7, 246–7 O’Leary, Brendan 8, 9, 86, 88, 91(n.21), 106 obligations, political: theory 53 Offe, C. 147(n.6) Ohmae, K. 188 Opalski, M. 90(n.16) Organization for Security and Co-operation in Europe 58, 81–2, 143, 208, 210 organizational form of unified state 53 Ottoman Empire 10, 79 Paasi, A. 186 Pakistan 86 Palestinians 81 Parekh, Bhikhu 166, 239 Paris Peace Conference 153 Parizeau, Jacques 250 Patten, A. 91(n.22) Patton, P. 244 peace, conditions for 51 Pearson, N. 119 pedagogism 100 personality principle 10–11, 168, 208–9; as basis for legislation 29; in Carolingian Empire 27; critique 101–2; cultural basis 65; dependence on territorial boundaries 142–3; and liberalism 157–8; and religious communities 29–30, 71–2; as solution to nationalistic conflict 30–5, 69–70 Pierré-Caps, Stéphane 54, 55, 60(n.7) Plasseraud, Yves 127, 192 Pletnyev, B. 198 Polish-Lithuanian Commonwealth 79 politics: inseparable from culture 212–13 Popov, Gavril 81, 200 power sharing 33, 78, 84, 85–8; disadvantaged position of Roma 128–9 Puigcercós, Joan 249 Putin, President Vladimir 200 Quebec see under Canada Ra’anan, U. 68, 109(n.10) Rawls, J. 158 Raz, J. 100

Index

227

religion: denominational affiliation 20; freedom of association 159; personality principle vs. territorial principle 29–30, 71–2 Renan, Ernest 65, 76, 244 Renner, Karl 5–6; influence of Friedrich Meinecke 10–11; motives and beliefs 97–8; socialist strategy 75 representation: associated problems 211–12; in Austro-Hungarian Empire 40–4; within the European Union 232 reterritorialization 183–6 reversibility 159–60 Reynolds, Henry 116 rights: based on natural liberty 53; international standards 209–10; of nationalities 17–19; legal basis 22–3, 68, 207–8; in nation state model 54–5; options to opt out 159–60; territorial and non-territorial 108 Robinson, J. 153 Roeder, P. 87 Roma people 82, 85; application of Renner’s model 130–2; demands for non-territorial self-determination 124–6, 128; ignored by political theorists 126; lack of political power 128–9; marginalization of 127; prematurity of Renner’s model 128–30; problems of declaring nationality 129; and Renner’s concept of nationality 127–8 Rousseau, Jean-Jacques 64 Royal Commission on Aboriginal Peoples, Canada 80 Royal Commission on Aboriginal Peoples (Canada, 1996) 118 Russia 56, 81, 131; see also Soviet Union; attitudes of post-Civil War governments 197–8; Kadets 195; Lenin’s opposition to cultural autonomy 192–4; Muslim Russia 195–8; National Cultural Autonomy Act, 1996 80; problems with Council of Europe 202–3; recent reforms 199–201; significant aspects of Renner’s model 191–2; Stalin’s opposition to cultural autonomy 194–5; territorial presuppositions 142

Index

228

Sadowa, battle of 46(n.3) Safran, W. 160 Sales, N. 188 schools 44 Schöpflin, Georg 217 Schwartzmantel, John 242, 243 Scotland 187 Scott, A. 188 Scuka, E. 129 self-government: mono- vs. multilingual regions 35–6; non-territorial jurisdiction 102–5, 124–6; territorial basis 58 Senelle, R. 147(n.4) Serbia 209 Seymour, M. 60(n.2) Shachar, Ayelet 157, 159 Shaimiev. Mintimer 199, 200 Shakhrai, Sergei 201 Siberia 196–8 Simonenko, R.G. 196 Sisa, S. 152 Skinner, Quentin 52, 53, 60(n.3) Slovakia 81 Smith, Anthony D. 100, 194, 244 Snyder, J, 87 Social Democratic Party, Austria see Socialist Party, Austria socialism: strategy of Renner 75 Socialist Party, Austria 2–3, 4–5, 18 Solzhenitsyn, Alexander 200 South Africa 88 South Tyrol 102 sovereignty: of Indigenous peoples 115–16, 120–2; in modern states 66–7; and national cultural autonomy 240–2; Renner’s proposals 34–5, 37–40, 114–15; types 53–4, 78 Soviet Union 6–7, 86; see also Russia; opposition to national cultural autonomy 198–9; territorial presuppositions 142 Spain 6, 187, 188, 249, 250 Springer, Rudolf (pen name of K.Renner) 6 Staatsrecht 28, 30, 32, 47(n.14), 109(n.3) stability, need for 181–2 Stalin, Joseph 98, 161, 194–5 Starovoitova, Galina 200 states: as antitheses to nation 27, 64–5; centralization 240–1;

Index definition and concept 24–5, 64–5, 75; dependence on nation 67–8; Herrschaft 65; nation states see nation states; and the nationality principle 25–6, 167–8; regional states 188; sovereignty 37–40, 78; state-minority relations 144–5; and the territorial principle 26–8 Steiner, J. 86 Steinwender, Otto 41, 47(n.20) Stepan, A. 138 Stourzh, G. 67 Straehle, C. 54 Suberu, R. 86 subsidiarity 235 Sutherland, A. 128 Swenden, W. 227, 232 Synopticus (pen name of K.Renner) 6 Taiaiake, A. 117 Talmon, Jacob 154 Tamir, Yael 52, 54, 76, 109(n.8), 156, 176(n.3) Tatars 197, 202 taxation 31, 38, 39, 162–3, 174, 212 Taylor, Charles 8, 243 Taylor, R 75 Taylor, R. 87 Tedorov, Sarvar 204(n.7) Teles, S.M. 235 terra nullius, doctrine of 119 territorial principle 10–11, 26–8, 168; see also autonomy, territorial vs. non-territorial; in Austro-Hungarian Empire 30; consequences 68–9; contradictions in Renner 102–5; cultural impositions 160; desire to preserve it in Russia 200; deterritorialization and reterritorialization 183–6; as expression of domination 27–8; and Indigenous peoples 118–19; and liberalism 52–4; and minority languages 84–5; and national survival 154; non-arbitrary boundaries 152; partially territorial government 186–9; and religious communities 29–30, 72; resistance in post-communist Europe 144–6; and sub-state nationalism 139–40; supported by Stalin 194–5 Tishkov, Valery 90(n.16), 200, 201

229

Index

230

Tocqueville, Alexis de 53 Torode, N. 202 Treaties of Westphalia 52–3, 224 Treaty of Waitangi Act, 1975 115 Tsipko, Alexander 200 Tully, James 11, 54, 109(n.12), 117–18, 156, 157, 166, 176(n.5), 183 Turkey 82 Turks, Mekshetian 203 Turner, Dale 118 Ukraine 80, 196 United Nations 125, 133(n.7), 207; and minority rights 55 United States 115, 160–1 Urazaev, F. 202 van den Berghe, P.L. 71 van der Stoel, Max 82, 143–4 Van Langenhove, Luk 247 Van Parijs, P. 147(n.4), 241–2, 247 Vermeersch, P. 85 Vienna 4 von Rauch, Georg 90(n.18) Waldron, J. 152 Walker, N. 183 Walloon nationalism 226–7 Watts, R. 86 Weber, Max 65 Weisbrod, C. 156 Weltbürgertum und Nationalstaat (F.Meinecke) 10 Westphalia, Treaties of 52–3 Weyrauch, W.O. 128 will: concepts 64 Yeltsin, President Boris 200, 201 Young, Iris Marion 157, 166 Yugoslavia 7, 86, 209; see also Bosnia-Herzegovina; Croatia Yunupingu, Galarrwuy 119 Zhirinovsky, Vladimir 200 Zorin, Vladimir Yurievich 200 Zubkov, Konstantin 197 Zvyagin, S.P. 197