3

Renner and the Interpretation of the State

The themes of Karl Renner’s theoretical writings were directed toward the public world that sustained his identity. His attachment to society and its norms recalls Freud’s term for individuals who have a firm belief in their indissoluble bond with the external world: “Out of this world, we cannot fall.”¹ As he matured in Vienna, he became a doctor of law, a civil servant, a member of Parliament, and a participant in the oligarchy of the Austrian Social Democratic party. His writings dwell on the negative shadow of the public institutions that nourished him, as well as on the positive changes that might be made through them. Three themes pervade: (1) the relation of the individual Austrian citizen, especially the German, to his nationality and the subsequent relation of nationality to the Cisleithanian state; (2) man’s alienation from the physical possession of property as reflected by the evolution of the legal concept of property; and (3) a historical and legal rationalization of the Austrian Social Democratic political program, especially its support of parliamentarianism as a method of realizing a democratic union of nationalities within the Cisleithanian state.

Renner’s Staat und Nation introduced his labyrinthine theories and in the classic tradition of first works also reflects the author’s personal genesis. In Staat und Nation Renner uses legal language to formulate a constitutional change in the status of the Austrian nationalities but interweaves theoretical and often contradictory sociological and psychological appreciations of nationality. Renner’s reputation as a political theorist was made on the basis of his legal pronouncements; thus this analysis will begin with a survey of these major ideas.

Of state and nation, the primary essence for Renner was the nation, qua nationality; the state was merely a legal expression, in territorial terms, of certain interest groups that exercised their will and possession over property. Renner emphasized that nationality must not be confused with territorial boundaries, although this was the western European nations’ concept of nationality.² Such a perspective limited nationality to arbitrary boundaries of historical chance. Rather than a nationality derived from territory, Renner proposed a nationality that was supraterritorial, derived solely from a corporation of individuals who shared the same language and customs. Territory and state should be subordinated to this more basic reality. Thus the Cisleithanian state, a historic creation of power, must realign its structure to accommodate the nationalities that formed its flesh and blood.

In the period under consideration, the Cisleithanian state embraced its nationalities within seventeen constitutional subdivisions known as the crown lands, territorial entities inherited by the Habsburg rulers from the holdings of the feudal aristocracy assimilated in the evolution of their state. Each of the crown lands had a legislature (Landtag) that was empowered to draft laws pertinent to the inhabitants of its own territory but not to interpret or administer these laws because the judicial and executive function resided with the emperor and the centralized bureaucracy of the state.³ Thus the crown lands had no real autonomy in the sense of being self-administering units, such as federalist structure might provide (as in the United States or even the counties of England). This system was particularly impractical for the Habsburg Empire because several nationalities made up the population of each crown land, and in this era of growing national consciousness, each sought to articulate its identity through the most immediate source of state power—its legislature. In Bohemia, for example, there was a bitter rivalry between the Germans and Czechs, and although the Germans were in the minority, they had enough power to stalemate the legislature for more than sixty years.⁴ Moreover, because the nationalities were dependent on the legislature for funds for their cultural needs such as schools and churches, many of the minority nationalities had no chance for satisfaction of their demands within a crown land dominated by another nationality—thus the Slav nationals in German areas such as Lower Austria had little hope for maintaining their cultural desires.

Renner felt that the nationalities, the Germans in particular, were misguided in attempting to control the Landtag of the crown lands as a means of realizing their national demands. Such a policy limited national aspirations to the historical chance of territory, and even if successful, they still were subject to the whims of the Habsburgs. Renner was also critical of the nationalist groups such as the Pan-Germans, who sought a union with Germany as an escape from the frustrating crown land system.⁵ Renner rejected such a union as the goal of the Germans in Austria because it was too limited: “If the German-Austrians were democratic instead of chauvinistic the mission of the German nation [Deutschtum] would not end at Bodenbach, rather at the Bosphorus. Since they have not grasped this, they wish to fly home to the lap of mother Germany, a position of desertion [ein fahnenfleuchtiger Post]!”⁶

Renner’s democratic means of realizing German cultural growth within the Cisleithanian state was in the context of his proposals for all nationalities. He would first create between the crown lands and the local communities new territorial units called districts (Kreisen), which he referred to as Mittelstelle.⁷ The districts would be created according to economic, trade, and financial considerations and would be the new seat of territorial legislative, judicial, and executive government. The district would be more autonomous than the crown land had been, with an initiative responsibility in all phases of local government that made its relation to the central bureaucracy of the state that of a limited federalism. By rendering the historical crown land empty as a constitutional form with any effective force, Renner hoped to neutralize its tendency to seduce the nationalities of its territory into a parochial identification with its territorial boundaries. The aspirations of nationality would then be free for Renner’s next theoretical stroke—the establishment of “national corporations” on the model of the Catholic church (whose organization had fascinated Renner when he was in the university).⁸ Although the nationalities might be scattered over the various districts (Kreisen) that made up the new governmental structure of the Cisleithanian state, they would form a higher unity, a solid body that transcended the physical limitation of their particular district. Thus the individual member of a nationality in Austria would have a dual allegiance, subject to the law of the community, district, and central state authority and also as a member of his national corporation subject to its laws.

Renner called this dual allegiance the “personality principle.” It was so named, ostensibly, because the legal identity of the individual in the state would be derived from his “organic” relation to his “cultural and language community.” Such a focus for the inhabitants of the state was juxtaposed by Renner to the “territorial principle,” in which the individual’s legal basis in the state was framed by the authority of the central state power either with no necessary cognizance of individual nationality or with a cognizance of a nationality defined by the chance of territory rather than the more primary reality of language and culture. The personality principle was a legal term that had its origin in the Carolingian Empire. There it had acquired a meaning that suited the metaphorical needs of Renner’s feelings of nationality and his hunger for law that would meet all the requirements of his abstract world: “In the Carolingian Empire, a judge who decided the legal disposition of the individual would ask, ‘Quo jure vivis?’ According to what law do you live? Then the party gave his declaration of nationality. Then the judge knew according to what law the party must be sentenced. This served as the so-called personality principle. Under this principle the Carolingian Empire governed ten nations with different languages and different laws.”⁹

The subjective nature of his choice of language, in particular legal borrowings such as the personality principle, raises questions. What was “personality”? In particular, what was Renner’s “personality”? This question always intrigued Renner, as attested by his continuous production of autobiographical poetry and prose. Of relevance in this regard is a letter Renner wrote to Victor Adler in 1901, in which he politely admonished Adler for not allowing publication of his poem praising Adler as a personality:

Naturally, I am quite crushed. You are a true Cato and—pardon me—harmful to the cause, in that you desire to keep your person in the background. With us . . . all is unfortunately personality—but why should the party allow this advantage to escape them, since they have the favor to have one such personality (and the misfortune, to have only one such personality). . . . My opinion is: A party that represents a new world should not appeal only to the head, but also to the heart, above all to the imagination. We are too abstract. Tell me can a man sing better of abstract freedom and equality or the concrete . . . .

Only that is poetry which actually comes to presence; what is beautiful to us can only appear in persons, individually or in the mass.¹⁰

Renner’s lyrical appeal is to the absent father, personified by Victor Adler, to whose appreciative eye he wanted to demonstrate his gifts. All the many dimensions of Renner could be integrated with party activity but would come to presence only within the primary atmosphere of a family setting. Austrian Social Democracy was never a complete family for Renner. In a metaphorical sense the personality principle expressed his relation to Victor Adler and his Austro-Marxist cohorts: he was a nation to himself, using Social Democratic activity to integrate the needs of his background and present into an effective person respected by those around him. Objectively, he could do so because he and the others shared the same broad social values and aims and his mores were of the same normative inheritance as those of most other German-Austrians. A second metaphorical use of the personality principle was in the desire Renner and others within Austrian Social Democracy shared to keep the German culture distinct and powerful in the public life of Austria. The personality principle theoretically allowed every nation to preserve a separate national character, but the unspoken assumption was that the Germans would neither suffer mixture with the other national characters because of Austrian laws furthering integration nor lose their dominance in Austria’s established public language. These metaphorical threads weakened the concept as a viable idea to achieve equity for all nations in Austria.

When the concept was examined by his contemporaries, it was seen that no individual really lived or believed in practices that were distinct from the territorial activities in which he or she engaged. Renner, when pressed, could not name purely German cultural activities that were distinct from cultural activities pursued by all Austrians given the socioeconomic realities of the culture. Critics attacked especially Renner’s theory of national corporations—the primary organic unity wherein the individual took his identity and thence his constitutional identification as personality. Renner’s theory of national corporations was termed “a solution outside of space” and a “Platonic realm theory.”¹¹ Renner’s critics could not conceive how or where the national corporations would exist. They saw only a single Habsburg taxpayer who owned or rented a house on a certain street, who was protected by the police of the state and the state’s fire company, who voted in the elections that placed delegates in the district legislature or the state Parliament, who worked in some capacity of the state economy, and so on. Where was the national corporation located and what did it do? To whom and for what did the citizen owe national allegiance? Renner answered some of these objections with a series of articles that explained more fully the physical organization of the national corporation. In his article “Die innere Gebietspolitik mit besonderen Ruecksicht auf Oesterreich” (The Politics of internal areas with particular regard to Austria), Renner stated that “when we speak of a state, a city, or a street, we always mean a piece of ground” (ein Stueck Erdboden). He then proceeded to his favorite task—the topographical study of the Cisleithanian state and a geometric division of the lands according to his theory. Perhaps hoping to silence the critics who called his schemes Platonic, Renner added another detail to the notion of the national corporation—within the districts (Kreisen) separate lands would be set aside, in the manner of national parks, for the national corporations. In these special areas the culture of the separate nationalities would thrive. These lands would include about one-fourth of the Cisleithanian state and be free of any authority other than that of the nationality.

One can see shining like a dark star within the addenda Renner published in the months after Staat und Nation the question he never answered: what is national culture in the modern state? Nowhere in Renner’s writings do we find what activities would take place in these separate national lands. Picnics? Tribal rituals? Culture and state, divided in Renner’s conception, were entities that were supposedly synonymous for a Marxist, at least in the pages of Marx’s classical theory. For the orthodox Marxist culture was essentially an empty concept that embraced all the patterns of daily existence for the individual of the modern state—the economic, political, social—everything that was immediately experienced in one’s environment. Renner’s separation of culture from state, his positing of a dual allegiance in the day-to-day life of the Austrian citizen, is a metaphorical key to his own dualism of mind in this period before his entrance to Parliament and successful career in the Austrian Social Democratic party. During these first years as a theoretician, Renner still grappled with the ghosts of his past—the ambient never-never land of the national corporation, a future home where all dreams might be realized—and the objective presence of the state that had not yet become a true home.

Renner shifted his position to the state in his writings after 1907, concentrating his plans of national autonomy more within the state’s objective framework, and dropped forever his notion of the separate national lands. This change, no doubt, was both a result of his subconscious recognition that the state was an effective means of satisfying his needs and the embarrassing realization that his earlier position contradicted Marxist principles. He wrote in 1908: “The pure personality principle as I earlier described [i.e., the creation of national lands] is impossible to achieve within a bourgeois society; it would be possible only in a socialist order, where there were no private owners of property. Thus, in the present economic condition of our society we must turn to more realizable measures within the context of the state in order to protect nationalities.”¹³

These “more realizable measures” dealt with the areas of language and Bildung. Renner joined the other Austrians who were interested in promoting national rights in the most prominent arena of nationality conflicts—the questions of one official state language versus the requirement of two or more languages for every state official and of guaranteeing the national minorities of a crown land their own schools. These themes (language and its conceptual products) were the nearest Renner ever came to dealing specifically with national culture. His stance on these issues, despite Marxist circumlocutions, was the same as that of every German nationalist. In the matter of an official state language, he supported the exclusive use of German and supported his conviction with his inimitable logic: “First, the German language is spoken by 70 million people and opens all doors to those who seek the treasures of intellect [Gesitesschaetzen] created by these 70 million; the other languages are far below the level [of the German language] and thus offer nothing equivalent. Second, unless German is supported as the state language, the number of German intellectuals who are capable of making accessible the great treasures of the French and English languages will be lessened, thus diminishing contacts with the distant West.” And there were other reasons: “Besides, there are many concerns of state that must be conducted in one language such as foreign defense and internal police security; one cannot catch a fleeing bank robber if one must first send the telegrams to a bureau to be translated.”¹⁴

His position on schools for minority nationalities was practically tailored to the distribution of Germans throughout the realm. Thus he agreed with other Marxist theoreticians that two languages should be used in every state school in areas of mixed national population (the language of the predominant nationality and of the second most numerous one).¹⁵ But he stated that in areas where one nationality was overwhelming, there was no point teaching the second language, adding, “If the Germans of Lower Austria eat bread made by Slovaks . . . this does not mean that they should speak their language.” Following this passage in his article on the problem of schools for minority nationalities comes a curious exercise in subjective dialectic that is a hallmark of Renner’s expressionistic forays into objective evaluation:

One ordinarily conceives the question of language laws as the right to be permitted to speak. That is senseless without the right to be understood. He who speaks to his fellow citizen will also be understood. The minority claims the right to be allowed to speak—the majority can equally claim the right to be understood, whether they speak as a group or individually. . . . I admit: the farmer who hires a Czech menial [Knecht] hopes to be able to communicate with him in matters of domestic and economic activity. The same man [the German farmer] may say, however, as mayor in the city hall: “I don’t understand you.” It is another matter, though, in a court of law: the public has a right to understand; it would be excluded if the trial was not conducted in its language.¹⁶

The majority in Renner’s arguments is almost taken for granted to be German. And the other nationalities hardly assume flattering positions in his metaphors: they appear as menials, criminals, and the culturally deprived. Renner’s arguments are hard to follow, for they are constantly invaded by figures of speech that swallow up the major theme. In a characteristic aside when speaking of the necessity of legal protection for the “new” national, that is, someone who has adopted the cloak of German culture, Renner states: “A German-speaking Negro who lives in Vienna will hardly be recognized as a fellow national by other Germans. This man, however, must obey the law of the state within the language of that state. Every authority will speak to him in German, and expect an answer in German! The school laws will compel him to send his children to a German school. The state must consider him a German. The lawyers make such fine points of law more precise by the addition of a ‘Quasi.’ Thus we can name the Negro ‘quasi-German.’¹⁷

It was in the second aspect of Staat und Nation that Renner dealt with the will-o’-the wisp of nationality that haunted his writings. Renner dared to grapple with the conceptual chimera of what comprises nationality where he had not dared in the more specific question of what was national culture because the former question required concrete artifacts. Renner was strengthened in his courage by the German heritage of theory in this philosophic domain of conjecture. He opens Staat und Nation with the problematic: “How can nationality as a sum of individuals, on the one hand, and as an ethical-psychological quality of single individuals, on the other hand, be adequately comprehended?”¹⁸ In answering the question of nationality as a sum of individuals, he turned first to one of the German mentors of his university Bildung for a formulation of the possible solutions—Ludwig Gumplowicz and his exhaustive study of national character written in 1875, Rasse und Staat.¹⁹ Gumplowicz admits in the introduction to his study that there is no precise way to determine the meaning of race (Volksstaemme) qua nation (Volk). He states that in 1874 at the Saint Petersburg International Statistics Congress three possibilities were reviewed toward a legal definition of nationality: through ethnological characteristics; through the “mother tongue”; or through the language used in social discourse (Umgangssprache).²⁰ The congress decided on the latter mode of calculation. Gumplowicz (and so Renner) was satisfied with this solution; in some respects it presented a certain promise for an Austrian-German, particularly for it allowed that one could assume a new nationality by the assimilation of its language. This was later to be a programmatic hope of most Austrian-German Social Democrats, especially the German-Jewish ones, as a solution to the nationality conflicts of the empire (see Chapter 5). But Gumplowicz (and so Renner) felt that this solution was in other ways superficial—some distinction should be made in the language of discourse that allowed an evaluation of the nationality itself. In other words, a normative basis must be established to determine whether a group of people speaking one language should be entitled to a true nationality (Volk). Gumplowicz then opens the door to a principle of national discrimination that Renner and the other Austro-German nationalists readily followed:

Even though one may speak of nationality as an entity defined merely by language, nonetheless the fact remains that in the area of nationality one must draw the distinction between active nationality and passive nationality. Only the educated [gebildete] classes can possess a consciousness of a communal national culture, whose expression they find in the learned [gebildete], the written language of their nation. The uneducated masses do not possess this consciousness, they are completely incapable of a true feeling of nationality, they have only a sense of common origin or religious affiliation: The higher true national feeling, which presupposes a certain grade of culture, is to the uneducated mass always and everywhere foreign. . . . This distinction explains the various manifestations of public life among nations, for example, that the aspirations and efforts of national endeavor occur only among the educated middle classes, and that the common mass only follow in their wake. Eoetvoes was quite correct in his observation: “We see that no matter how great the efforts are of those who stand at the head of national movements in the name of the people [Das Volk], to the people themselves the concept of the people remains strange.”²¹

Those of the German cultural community, especially its leading intelligentsia, were raised by this conception to the status of an active nationality. Moreover, they were of a nation that through its heightened consciousness and philosophical Bildung had created the idea of Volk. What better mandate could there be for their assumption of cultural leadership in the question of other, more passive nationalities? Thus on the strength of Gumplowicz’s distinction Renner approached with the confidence of a German scientist the problematic of national etiology in the individual and as a sum of individuals. But here his eclectic dependence on the German cultural fathers made his arguments contradictory. Renner first considered the theme of national origins in the philosophic-idealistic tradition of Wilhelm von Humboldt, Johann Herder, and Johann Fichte. Nationality was not an acquired entity; rather, it was rooted in the thought and feelings of a community, and these were expressions of that people’s literature and language. The mystery of nationhood lay hidden in this inheritance. The external accidents of environment did not affect nationality, for nationality was not a product of physical geography: “National differences arise only from the commanding thought and feeling motives of a people. There is no necessary relationship between national consciousness and a definite territory.” Yet only two pages later Renner seemed to reflect on his adherence to a political party that advocated materialism, and he restated the idea of national etiology: “Thoughts and feelings, the community of which gives rise to nation, are not generated without a cause. They are the reflexes of external happenings, especially human interaction. In nearly all connections at the present time these are controlled by the state and legally defined. National feelings are primarily influenced by the organization of the state. The more independent the state from national desire, the more endangered national life, the more stifled its development.”²²

Renner’s search for a logic of the nationality that was so real to him thus involved him in a host of mutually exclusive principles and resulted in an obvious injustice to the actual state of national consciousness among non-German peoples in the Cisleithanian state. If a nationality were viewed as an inheritance of a traditional language and literature, a product of a community’s deepest thoughts and feelings, then the notion of assimilating other peoples to the German nationality was hardly feasible. If, on the other hand, nationality was a creation of territorial conditions, especially the state, as Renner’s second etiology affirms, then how might Renner explain the growth of national consciousness in a state whose constitutional structure he considered hostile to national aspirations? Renner had ventured into the trick currents that hid an insoluble contradiction—the linguistic nationalism of the German liberal philosophers of pre-1848 Germany, which found its expression in the philosophic sociology of Gumplowicz, and the antinationalistic materialism of Marx, for whom nationalism was merely a certain level of consciousness and nationality a product of its fictions. There was little hope of a resolution to this enigma for Renner as long as his nationalism remained, or as long as he tried to force his nationalist feelings into the guise of Marxism.

The language of law and the state gave Renner his freedom and his home. The Marxist language of conception was an incidental obstruction worn gradually down to harmless proportion through the tools of a legal methodology, the legal metaphors of his constitutional-lawyer fathers.²³ The language of Renner’s university Bildung served as a bridge on which the nameless longings of nationality could pass to the promised land. The vague obsessions of his past remained at the heart of his writing, antedating the eclectic phraseology Renner developed from the liberal constitutional thought confronted in his seminar with Philippovich. Yet it is this bridge of thought, not the life that crossed it, that is remembered. When we examine the ideas of Renner, we see nothing original. His suggestions for a constitutional revision had their model in the Kremsier constitution of 1848-49—an attempt to give more autonomy to the industrial nations of Austria by creating national Kreisen within the crown lands along ethnographic lines.²⁴ His insights into the territorial limitations of national expression were first put forth by Joseph Eoetvoes, with whose writings he was familiar;²⁵ his proposal of a dual system of administration was a variation on the plans of Adolf Fischhof;²⁶ and his ethnological, sociological, and psychological appreciations were a mixture of Gumplowicz, Marx, and the other olympian figures of German idealism. Moreover, Renner was not the first of his generation to use the ideas of those mid-nineteenth-century predecessors: Otto Lang, F. R. von Herrnritt, Alfred von Offermann, and Etbin Kristan seemed to provide the stimulus and anatomy of discussion for Renner’s proposals in Staat und Nation.²⁷ Renner appeared as the champion of the platform of a federal system of nationalities within the Cisleithanian state only because of his fortuitous rise to power within the Austrian Social Democratic party and his subsequent position as chancellor of German Austria. By that time his earlier problematic had been interred with the Habsburg dynasty and the specter of his frustrated longing for a home given a concrete body. Hidden forever was the strong nationalist German core of his utterances, which even before assuming respectability in legal terminology had risen to the surface on Renner’s first encounter with socialist literature.

Renner’s original link to the world of socialist thought was August Bebel’s Die Frau und der Sozialismus, which he had read while in the army supply depot.²⁸ Bebel articulated the problem of the individual and nationality in an intuitive and emotional way that won Renner’s heart. Renner later wrote a critique of this book that sheds light on the more primary levels of the problematic that became Staat und Nation:

While Marx writes for all peoples in all times, Bebel’s Frau is above all specifically ours. It is a German book, a part of our struggle, our emotion, immediately a product of the evolution of German socialism at the turn of the century and the world of feeling attached to this struggle, in a way that no other book is . . . .Bebel speaks not of world economy and the state, not of economic and political matters, but . . . immediately of our social conditions, of the daily, everyday life, the relationship of man and woman, of the mystery of the German family . . . .Bebel’s book lacks a clear and logical sequence: the unarticulated thought is the hallmark of the book! This blemish in the book speaks most audibly of how specifically German it is, and most obviously of how it is born from the unique emotional world of the German.²⁹

It was from the “mystery of the German family” that Renner’s problematic sprung, and although his language was more logical than Bebel’s unarticulated cry from the womb, Renner transformed his German womb to the transpersonal hearth of the state and to politics, where the cry of nationality had a more sophisticated format.

Renner’s views on the state and Parliament reflected his deep belief in the individual’s organic relationship to his nationality and, to a somewhat lesser degree, his class. For Renner, an individual was never an autonomous person; rather, the individual was a unit of a greater whole, which created certain obligations: “The good citizen must understand how to obey and command, practically and theoretically, and realize that civil virtue is the authority of these two points of view. The art of ordering and obeying is, as we disciples of Social Democracy call it, our greatest virtue! Without commands and obedience there is no working together, no community of workers, no union, not even a union of friends. The art to order and obey is discipline. . . . Who would order must first learn to obey.”³⁰

In his second major publication, Staat und Parliament, published in 1901, Renner demonstrated the continuity of this authoritarian strain in his thought in a more subdued but equally fundamental manner. In that work he argued for a system of proportional representation for the Austrian Parliament that would be free of economic or territorial restrictions. The system would be similar to that of the French Republic in its support of a pluralism of diverse, nationally shared interests. But these interests for Renner were essentially limited to those of one’s national identity, as well as one’s class. There were no secondary interests that would coalesce shifting groups of individuals. Moreover, the nation and the class are posited as unified wills that do not brook individual variance. Renner’s articulation of the individual’s proper relation to his corporate interest and to the state is so antidemocratic that one senses him stumbling in his thought, almost embarrassed:

The state exists to satisfy the collective interest of the people . . .[the state] naturally wishes that one law binds everyone. Thus the state should permit this one law, which binds the will of all ergo the general will, to be formed as law by its millions of citizens, in order that the people [Volk] and the state remain and be, one. Every individual has his own interest and his own will, to be sure . . . which includes the various differences of estate, of occupation, social and social-ethnic interest. Every individual and every stratum has its interest, moreover, that runs contrary to the general interest, thus is from the beginning hostile to the state [staatsfeindlich]. That is obvious. For everyone is limited in his daily life a hundredfold through the law of the general will, and he strives to remove these civil boundaries. No individual can be seen as a supporter of the state [staatserhaltend] and no class, only the whole [Gesamtheit], that is, everyone in mutual limitations of each other. If one can speak of a class that supports the state at all, then this honorable title [Ehrentitel] must go—as paradoxical as it sounds—to the workers, whose interest . . . almost always runs parallel to the interest of the whole.³¹

In these thoughts on the best protection of freedom for the individual, four philosophers are implicit, even though they are mutually incompatible—John Locke, Thomas Hobbes, Jean-Jacques Rousseau, and Karl Marx. The four points of view show the conflict in Karl Renner’s personality in regard to the nature and objectives of Social Democracy. Locke, who represents Renner’s common sense, is present in the idea of mutual limitation created by diverse interests; the Lockean concept of minimal government of “least harm” steers a middle course between interests. Lockean government is by consent of the people, however; it is not a structure toward which the people can be enemies (staatsfeindlich). Hobbes is evident in the notion of the state as the necessary entity to bring stability and security to a confused populace. By incorporating Hobbes, Renner reflects his need for structure and evidences the displacement of his need for a permanent German hearth in the reification of the state, which his sounder sense of Locke’s minimal state seeks to modify. Renner’s integration of personality as he matured was expressed indirectly by such theoretical conflicts in his writings. Rousseau, for example, is clearly present in Renner’s general will statements, which modify the harshness of his idea of subjugating the individual will; Rousseau allows the individual to find the general will as an autonomous thinker, and it is always more of an existential arrival at a personal categorical imperative than a submission to group thought.³² Finally, Marx is present in the afterthought that the corporate interest of class is closest to the general will. Renner is not convincing in this articulation of Marxist idea, using an aristocratic bestowal of “honor” (Ehrentitel) for his recognition of inequity. Nevertheless, the memory of his own family’s pain and a genuine recognition of social injustice keep Renner from succumbing completely to the superego demands for obedience and submission to the invisible family of the state that he carried with him.

Renner’s ideas for a proportional representation attracted the Austrian Fabian society, a group that modeled itself upon the evolutionary, moderate socialist ideas of the English Fabians. Renner was introduced to the Fabians by his former professor of constitutional law, Eugen Phillipovich.³³ He and the Fabians engaged in a mock election in the auditorium of the Ronacher Theater in Vienna to see if the proportional scheme of representation he had designed was feasible.³⁴ His contact with Phillipovich and the Fabians reflected the balanced rationality of Renner’s character; but his need for the superstructure of the state, which was reinforced by the norms of German middle-class thought that agreed with the state idea, led to a Marxism in Renner that emphasized a nondemocratic interpretation of the class struggle: “To be sure, the proletariat lives its own extraparliamentary life and grows through what one might term—without its usual connotations—direct action. But it needs the free tribune, the continental control of the government, it needs above all the means to combat harmful laws and to fight for good laws, it needs Parliament.”³⁵

Parliament, the body of the people, is seen by Renner as an organ of the state which controls the direction of the people’s energy. Perhaps, Renner concedes in another article, the common people might one day be capable of governing themselves without the guardianship of the extant bourgeois and aristocratic hierarchy of state authority, but not until they have lifted themselves above their ignorant state through the proper Bildung: “These people [the Lumpenproletariat] cannot reject the in part unasked for guardianship [Vormundschaft] as long as they remain inarticulate. They deserve this guardianship when and as long as they remain lunatics, and tear themselves to pieces in hate-filled battles among themselves. They need the guardianship of ministers, servants of the state, district supervisors and policemen as long as they are not rational enough to replace their struggles with a national system of laws.”³⁶

Renner refers in this quotation to the spontaneous demonstrations by individual nationals who took to the streets in a direct expression of their will. The law as it functioned in the bodies of the state was the proper vehicle for social change, not the arbitrary will of individuals or collectives of individuals who acted outside the law. The abstract presence of the state could be humanized through a change in its physical presence, its institutions, and its spiritual presence, the laws, but it could not be flouted. Renner’s dependence upon the abstract dimensions of the state can be traced to the problems of his personal genesis. The brilliant Marxist legal analysis that he made in Die Rechtsinstitute des Privatrechts und ihre soziale Funktion (The Institutions of Private Law and Their Social Functions), published in 1904, was a sublimation of his personal alienation into an objective work that studied the expropriation, or legal alienation, of property by capitalistic laws.³⁷

The expropriation of property from its creator or owner, for Renner, was not solely the result of the economic system of a society, as Marx saw it, but coequally the result of the laws of that society. As Renner states in describing the intention of Die Rechtsinstitute des Privatrechts: “The main theme of this enquiry is the relation between law and economics in the evolution of history, observed and examined here from the aspect of legal institutions; regarded with the eye of a jurist who, with a vision extending beyond his native field of legal rules, recognizes that everywhere the law is as much bound up with economics as economics is bound up with the law.”³⁸ Raising the law to a status equal to that of the economic system as a cause of social conditions was a modification of Marx’s thought. Marx’s well-known formula that ranks the fundamental causes of social reality reads, “The sum total of the relations of production constitute the economic structure of society—the real foundations on which rise legal and political superstructures.”³⁹ The formula is even more clearly articulated in Engels’s preface to Marx’s Eighteenth Brumaire: “The law according to which all struggle, whether in the political, religious, philosophical or any other ideological field, is in fact only the social classes whose existence and hence collisions of their economic position, their methods of production, and their manner of exchange dependent thereon.”⁴⁰

Renner saw the law as a partner of the economic state of a culture, not in the relation of the moon to the sun, or as a superstructure that gains its reality from the substructure. Both work in their own ways to condition society; Renner stated four theses to this effect: (1) Fundamental changes in society are possible without accompanying changes of the legal system; (2) it is not the law that causes economic development; (3) economic change does not change the law; and (4) development by leaps and bounds is unknown in the social substratum, which knows evolution only, not revolution.⁴¹

Renner recognized the significance of relations of production, that is, the social substratum, as having its own rules for the organization of individual and collective life, but he was equally insistent that the law has its own momentum untouched by the economic force of the culture. One must give special attention to the law if it is to be changed to correspond to social reality. One can be a “revolutionary” in changing the law. One can change the economic substratum only by evolutionary means. Renner thus made himself an economic Revisionist⁴² and a revolutionary only in regard to the formal laws that shape the state and the relations of its citizens. When given an opportunity to revolutionize laws, however, as in his drafting of the Austrian constitution in 1918, he proved himself a conservative (see Chapter 10).

Renner’s sensitivity to the law enabled him to perceive subtle distinctions in its governance of social relations. An insight indicative of his cultural-historical penetration of the language of the law is his comparison between its language in the modern state and in the ancient state:

The ancients usually spoke in direct imperatives when they recorded their norms in stone and metal, or papyrus and parchment, e.g., the code of Hammurabi, the Mosaic decalogue and the Twelve Tables of Rome. . . . we replace it by impersonal rules, as “The factory door is opened daily from 5:45 to 6:00 A.M.” This assertion, which does not refer to a subjective agent, can only be justified as prophecy. . . . Where a norm takes the form of an assertive rule, the commanding and obeying individual disappears from sight; where it takes the form of an imperative order, the relation between individuals is emphasized. Ancient laws which employ the imperative are thus fascinating in their powerful expression. Modern laws prefer an obscure diction which makes it necessary to go through a process of interpretation to find out who are the persons concerned and what are their duties.⁴³

Whereas in the narrow unit of patriarchal family and tribe all relations were between man and man, and all interaction was explicit and direct, in the modern state all is abstract and bloodless. Instead of the benevolent despot, there is the invisible tyrant. Renner did not wish to return to a master-slave ordering of social relations; rather, he desired a society with more interpersonal frankness and emotional directness. Karl Marx wished the same honesty in work relations:

When communist artisans associate with one another, theory, propaganda, etc., is their first end. But at the same time, as a result of this association, they acquire a new need—the need for society—and what appears as a means becomes an end. In this practical process the most splendid results are to be observed whenever French socialist workers are seen together. Such things as smoking, drinking, eating, etc., are no longer means of contact or means that bring together. Association, society, and conversation, which again has association as its end, are enough for them; the brotherhood of man is no mere phrase with them, but a fact of life, and the nobility of man shines upon them from their work-hardened bodies.⁴⁴

Renner sought such a society, but he repressed this wish because it recalled a family past in want of such comradeship. The pain of what he did not have made him translate his need for open love and caring into the desire for imperative command, a symbolic distortion of warmth and nurturing. Marx saw the need for personal integration and self-consciousness in order for an individual to receive from life what he desired: “Assume man to be man and his relationship to the world to be a human one: then you can exchange love only for love, trust for trust, etc. If you want to enjoy art, you must be an artistically cultivated person; if you want to exercise influence over other people, you must be a person with a stimulating and encouraging effect on other people. Every one of your relations to man and to nature must be a specific expression, corresponding to the object of your will, of your real individual life.”⁴⁵

Renner was conscious of the objective lack of care and honesty in modern social relations and how through covert means the directly honest imperative became a subtle manipulation of others:

How the authority of another person (“the heteronomous will”) is imposed on the wishes of an individual (his “autonomous” will) is a matter of common experience. He is coaxed or threatened, talked round or browbeaten; fraud and coercion, either physical or mental (hypnosis) play their part. There is, however, this mysterious difference: that in modern times all law is laid down, in the name of all citizens, by the state, conceived as an entity. Instead of one man’s will prevailing over the will of another, the common will is regarded as imposed upon that of the individual. How this common will arises—for it is clearly not the “general will” (volonté générale)—is one of the fundamental problems of jurisprudence.⁴⁶

He sought a higher consciousness for society, but not for himself, through a clarification of the legal norms that reinforced social dishonesty and rewarded impersonality. Legal analysis could help raise a culture lacking self-consciousness to an awareness of legal changes that could improve human relationships:

There is no legal regulation, then, of goods or of labor within bourgeois society, whereas the whole of the medieval world was obviously built on such conscious regulation. Society, the conscious organization of mankind, in the eyes of the law an entity, here denies its own consciousness. It prefers blindness to recognition of the distribution of the goods, it pretends to be deaf so that it need not listen to the complaints of the dispossessed, it abdicates as a legal entity, as the common will, in favor of the individual will. But though it feigns death, it is alive, and inanimate stones cry out where it remains silent. . . . The so-called bourgeois society, distinct from the political society of the organized state, is not conscious of itself. It confronts the individual as a dark power of nature, a ghostly inhuman force which does not talk in imperatives to the member of the community, which does not utter commands or threats, which does not punish afterwards in forms of laws, which requires to be divined by speculation and destroys him who does not grasp it, which achieves its object by the force of blind matter and allows this to rule over man.⁴⁷

The emotional metaphors of this passage indicate the importance legal analysis had for Renner as a clarification of the social world and thus, indirectly, as a self-clarification. Such a dual purpose had to distort the objectivity of the legal analysis, but if we avoid the metaphorical intrusions, his legal analysis is still a significant direction for social criticism. He presents historical formulations of law and shows how they either adequately expressed the existing state of socioeconomic reality, giving it organization and regulation, or limited the development and change of social transaction: “Legal analysis confines itself to collating the totality of norms, the systematic understanding, logical exposition and practical application thereof. Legal analysis is of necessity determined by history like its arsenal of concepts, its terminology.”⁴⁸

Renner attempted to provide a broader historical framework than the average legal interpreter, yet he implicitly recognized that his own interpretations would be a product of the history he lived, growing from the concepts that surrounded him. There is a modesty in the lines quoted above that is evidence of the rational man who endured as a change agent in the Austrian culture.

By legal “norms” Renner meant the context of legal language that defined certain repeated patterns of social interaction. These norms served as a means of personal identification and self-regulation. As Renner stated, these norms once had been manifested to the member of a community in the form of direct imperative—clearly and humanely; but as society altered and technology changed the facts of personal interaction and disposal of property, these norms assumed different functions to legislators and men of property. The norms acquired new definitions; the legal conceptions took on new applications, so that the possessors of authority and the controllers of property could justify their actions. The law became a cloak for the frequent violation of what the norm originally defined. Renner cited as an example of this process the norm of sale and purchase and the mode by which its language assumed a new function for the authorities of an economically altered society:

The sale of one’s patrimony was formerly illegal or at least condemned by society. The idea that property existed only to be exploited by legal transactions, only in order to be sold, was inconceivable to anybody. . . . Ownership at the period of simple commodity production was essentially and with few exceptions exercised without any intervention of other legal institutions and required no other act in the law. The soil was cultivated and its fruits consumed. In so far as property served as a system of production by artisans, the work was done directly for the customer or for a local market, generally in the form of a contract of work and labor, or of sale and purchase. But sale and purchase here relate to the finished article alone, there was no incessant flow of sale and purchase involving anything and everything. The sale was merely the final act of the labor process, and the exercise of ownership was as a rule the technical disposal of the object. Now, however, the exercise of this right by the act in the law becomes the specific function of the non-owner, and the owner acquires the social function of distributing goods among labor and consumers.⁴⁹

Thus with the creation of the middleman and the advent of the capitalistic form of economy, sale and purchase as a conceptually defined pattern of actions becomes the abstract cover for the physical patterns. Again Renner’s choice of illustration signified the ever-present animus and impetus of his personal growth—the “inconceivable” and exploitive sale of patrimony. Here Renner showed the first acts of dispossession in the European society and the first abstraction of terms that confused the legally unschooled mind of the common man. Renner emphasized that legally this manipulation of norm was unjustifiable and that although the change of function may be reinforced through the decisions of individual judges, it is only because they have not yet become fully conscious of the transformed social basis of the societal organization. Once a society becomes aware of the actual nature of its social character, it will redefine the norm and give it a terminology appropriate to its action, thus allowing a greater justice and legal protection for its individual members.⁵⁰ Until that time, the cloaked manipulation of the older norm must be seen as harmful to the will of the individual: “In the eyes of the law this exchange of dominant personae is alienation from the point of view of the owner and the appropriation from that of the new dominus. It is not enforced by the law, it is factual expropriation and appropriation. It is . . . a factual shifting of the dominant personae of property and other kindred legal institutons, not in terms of a change of ownership imposed by a court of authority.”⁵¹

The norm as guarantor of individual rights thus was conceived by Renner as having a life cycle—a right is acquired; it is enforced against interfering third parties; it is lost.⁵² On its factual death, the aware citizenry must ensure that its ghost does not haunt the further growth of its community, warping its interaction; the citizenry must frame a new norm.

Much of Renner’s legal theory would pass in the eyes of the layman as a logical discussion of the evolution of Continental law, which with diligent study, makes eminent sense. Fortunately, there is an English edition of Renner’s Die Rechtsinstitute which contains a voluminous annotation by its editor, Otto Kahn-Freund, a reader of law at the University of London. Kahn-Freund places Renner’s legal formulation in its historical European context and compares its various theoretical positions with the English common law, thus showing his deviations from his fellow lawyers in Austria.

On Renner’s conception of a life cycle for the individual legal norm, Kahn-Freund comments: “The metaphorical personification of ‘rights’ which are said to have a ‘life-cycle’ is germane to Continental legal thought. Owing to the existence of a highly integrated system of legal abstractions, it is capable of conceiving legal institutions—which are, in fact, merely groupings of legal norms—with the symbolic imagery taken from nature. Such language is alien to the ‘remedial’ method of Anglo-Saxon legal thought.” Here is evidence of the role of Renner’s Bildung in his function as a political theorist. The “organic” conception of the personality principle as a constitutional-legal solution to the nationality conflicts of Austria assumes even more the character of a conceptual tour-de-force, enforced by the peculiar matrix of Renner’s Germanic legal education. Renner writes: “Wherever the community has the power of command, as it has in every society, it exercises this power by means of individuals acting as its organs.” Kahn-Freund comments: “Renner assumes the validity of the doctrine [principle of organic representation] as a matter of course,—another instance of the influence of Continental legal thought on Marxist legal theory.”⁵³

Kahn-Freund’s ignorance of Marx (who shared the symbolic tendencies of Continental legal thought) must be ignored. Kahn-Freund identifies Renner’s stance toward the legal norm and its change with the positivist school of law, which was predominant in Austria in the period that Renner wrote. The positivist school considered the norms of property, contract, and so on to be “empty frames” that gave form to the existing organic order of society and denigrated the lawyer’s or judge’s capacity to do more than apply these frames in their strict definition to the case at hand.⁵⁴ Kahn-Freund objects to this “idealistic” conception of the law and the diminishing of individual judgment in the judge:

Positivism is a utopia. The law is neither consistent nor self-sufficient. Whatever theorists may say and whatever he himself may think and say, the judge constantly recurs to an analysis, articulate or inarticulate, or the moral, social, economic function and effect of the rules and principles he applies, and of his own decision. The task of the law maker and that of the law finder cannot be kept in water-tight compartments, and judges have always acted and will act on the celebrated principles of the Swiss Civil Code of 1912, that, in the absence of a statutory or customary norm, the judge must decide “in accordance with the rule he would lay down if he were the legislator.”⁵⁵

The European judge was far less flexible, Kahn-Freund asserts, than his English cousin because of the former’s positivistic fetish of norm. The English judge showed far more initiative in adapting the legal rule to the shifting economic basis of society and thus effected many changes which on the Continent had to await the intervention of the legislature. Thus the failure of European law to adapt itself readily to the social changes of society (the failure that Renner identified in its guise as “change of function” in the norm) is labeled by Kahn-Freund as the rigidity of the European legal tradition and its “fiction of continuity of norms,” not necessarily, as Renner would have it, a blindness in the legislator, judge, or layman to the existing social conditions.⁵⁶ The alienation of the individual from property was abetted by a superconsciousness of legal terminology which bound the judge to the cage of his own logical system of rules. This explanation sheds ironic light on the path that Renner sought as a way to freedom, a way he would have the masses follow—the way of a Bildung that would cure the illness of dispossession with the solution of its original virus.

Kahn-Freund points out one other facet of Renner’s positivism that helps our understanding of Renner’s political mind. Renner understood all law as a command or imperative addressed from one individual to another. As we have seen, Renner depicted the immediacy and interpersonal openness of this imperative in the ancient world. Kahn-Freund states, however, that not all European positivists saw the law as an imperative. He mentions that one of Renner’s contemporaries, Hans Kelsen, saw the law as a “hypothetical judgment” rather than imperative.⁵⁷ In other words, Renner invested the language of the law with personalistic, one might say anthropomorphic characteristics, that his fellow lawyers saw as merely a system of definitions that aid the individual interpretation of the judge. For Renner, the law always spoke with the force and authority of the prophet and allowed no contradiction. Modern law might have iniquities, but the individual must abide by them because the laws were revealed truth. Only after a new norm was framed by law might the individual act in accordance with whatever needs existed in the realities of everyday life. The law stood always above the subjective imperative.

Renner’s tendency to rely on the abstract language of legal definition was also the hallmark of his Marxism; his insistence that a new logical system of rules was necessary for every change in the social foundation of society acted as a conservative buffer in his stance to social action. Later, when he played a leading role in the shaping of Austrian Social Democratic policy, this dependence on the legal norm and obedience to the letter of its authority was to hamper the spontaneity of his party’s response to the immediate demands of the workers.

Renner’s adherence to the law of Austria and his reliance on its norms are reflected in his support of Parliament. Between 1907 and the outbreak of World War I, no major social legislation was passed by Parliament. The obstruction of conflicting national groups made it impossible to reach agreement on social issues.⁵⁸ Although Renner recognized the de facto impotence of the Austrian Parliament in its effort to resolve the conflict of nationalities, he argued over the years 1907 to 1914 that Parliament was the best organ to handle the problem. In 1909, during disputes between members of Parliament’s lower house (Volkshaus), Renner wrote that though these struggles exist, it is better that the national conflicts come to light in the national Parliament than remain hidden in the Landtag or appear on the street. The need, he added, was not for additional public demonstrations over the failure of the Volkshaus but for the election of better representatives.⁵⁹ In 1910, the Volkshaus managed to arrive at a reform in its order of business, a plan in part drafted by Renner, after sitting for five nights and six days. Intoxicated by the change that promised to facilitate the communication of issues, Renner boasted of a new face of Parliament in his next article: “Never has a night session appeared so disciplined and sober . . . in this sitting there wasn’t one drunken member.”⁶⁰ But within the year no improvement in the parliamentary situation was apparent, and Renner’s jubilation was transformed into a temporary depression that saw no immediate resolution. He still refrained from expressing disillusionment with Parliament as a mode of political solution, and in an article entitled “Politische Windstille” (Political Calm), laid the blame on history for the Austrian state of affairs. Borrowing the dialectical arguments of Otto Bauer, Renner sighed that there existed an equilibrium (Gleichgewicht) between the forces of the proletariat and the forces of the bourgeoisie. What might seem as a government paralyzed by national obstruction was actually a state that stood in the calm between two social storms; before any advance could be made in the condition of either nationality or proletariat, there would have to be a change in the distribution of strength on either side of these two opposed camps.⁶¹ The irony of this theoretical aspirin that Renner employed for the parliamentary headaches lay in his failure to mention or to recognize that Bauer’s abstract quantitative approach to the “strength of class” was the basis for the subsequent argument, that Parliament would be useless as an arena for the class struggle in the next stage of conflicts.⁶² Although Renner promised better times, inflation began to ravage the Austrian economy, and the people again went to the streets to protest the failure of the government to take appropriate measures. Renner attacked these civil expressions in an article called “Soziale Demonstrationen,” written in October 1911. He castigated the people who chose to behave like anarchists and called for a solution to their problem through “state power” and the platform of Parliament.⁶³ Renner never gave up hope of the parliamentary way; long after his fellow Austro-Marxists considered Parliament as a lost cause for the social revolution, Renner continued to excuse its lack of social action. The ground of his continued optimism must be seen not only in his respect for traditional legal forms but also in the spiritual fulfillment his membership in that august body permitted. Renner, who often drafted the Social Democratic faction’s proposals, and thus daily engaged in the foreground of national politics, was slow to criticize this role as having little moment. After seeing a tax bill that he had drafted passed in the Volkshaus shortly before the outbreak of World War I, Renner was to refer to Parliament through the words of Goethe: “The good man even in the darkest straits is conscious of the proper path.”⁶⁴