"Архіви України"
№ 1 (289) / 2014



These papers investigated the imperial loyalty and national identity formation famous legal scholar, Vice-Minister of the period Hetmanate P. Skoropadsky and Directory of the Ukrainian People Republic Otto Eyhelman. In the article analyzed the draft of the Constitution of the UPR, which provided for the federalization of the Ukrainian state.

Keywords: federalization; Constitution of UPR; national identities; power; union of the states.

In Ukrainian history there are a lot of examples when people of different ethnic origins became outstanding representatives of national identity. They are Voodymyr Antonovych, Vyacheslav Lipinsky, Agatangel Krimsky, Dmytro Dontsov et al. This choice of identities illustrates peculiarities of nation-building in Central and Eastern Europe in the XIX - early XX century. Moreover, these facts prove the assertion of the nation as "the fictitious community" (concepts of Hugh Seton-Watson)1 rather than ethnic community united by "blood and spiritual connection".

In integration process of contemporary elites and intellectuals into Russian imperial structures there was presented a phenomenon of dual loyalty2 realized in a quite favorably and conformist perceptions of the existing order. This phenomenon was a common feature for the majority of the Ukrainian residents of that period, especially among intellectuals. American historian Mark von Hagen says that the margins of the Romanov Empire, which the Ukrainian area belonged to, witness a variety of ad hoc and hybrid identities characterized by multiple loyalties3.

In modern historiography figure of famous imperial and Ukrainian scientist and lawyer, a government figure of the Skoropadskiy Hetmanat and UNR Directory period Otto Eyhelman has constantly been attracting the attention of researchers who study various aspects of its activity4. As a result, it is commonly considered that Eyhelman can be recognized as one of the Ukrainian national movement figures and representatives of the Ukrainian legal thought. This view is quite reasonable, if to study his political and scientific activities through the modernist version of nation-building stating that a nation is formed and exists as an imagined (fictitious) community.

The purpose of this paper is to investigate the development of imperial loyalty of O. Eyhelman in the context of Ukrainian national movement, to highlight the features of formation of his national identity during the Ukrainian Revolution of 1917-1921, to review the federalistic concept of the UNR restructurization in the context of the European empires collapse, and to analyse the government activities and work for the preparation of the UNR Constitution.

The methodology of this study is based on two main approaches: biographical that explains the peculiarities of formation of an individual by circumstances of Eyhelman’s life and the history of ideas when scientist’s specific interpretations of scientific and political concepts is deciphered through a comparison with a broad intellectual context.

Construction of a national project was highlighted in the conflict of different identities within society which, however, found no rejection at the individual level. Actually these conditions influenced the formation of Otto Ottovych Eyhelman’s worldview – a German Baltic descent, born in 1854 in a hamlet of St. George of Yambuzkyi County and grew up in the imperial capital - St. Petersburg, being in the period of the 1917-1921 Ukrainian Revolution and the "Czechoslovak "period of his life one of the speakers of "the Ukrainian question". What influenced this transformation of the scientist’s consciousness, why did he come to the Ukrainian identity and sincerely believed in a future state of Ukraine? The combination of German ethnic identity and Ukrainian political awareness were implemented in the life and work of Otto Eyhelman. At the time of the Romanov monarchy an imperial loyalty was devoid of ethnic content, focused on the recognition of the existing order and realised in some form of conformism.

The future scientist and politician of the Hetmanat and the UNR periods won the profession of lawyer in Tartu (Dorpt) University. A famous Russian lawyer specialized on the civil law, a professor of the University of Dorpt John Engelmann influenced his outlook considerably. Another interest of the future scientist was the concept of "social psychology" proposed by German physician and psychologist Wilhelm Wundt5. In 1878, Eyhelman earned a master's degree, then headed the Department of Public and Administrative Law at the Demidov Lyceum of Law in Yaroslavl. By 1880 he successfully defended his doctoral dissertation on " Military Occupation of a Hostile Country". First scientific studies of a future scientist were written in his native German.

In the early XX century Eyhelman became a well-known Kyiv lawyer, he worked as a professor of the Department of General History of Law and International Law, since 1905 – as a dean of the law faculty at the University of St. Volodymyr of Kyiv. It is known that Eyhelman participated in the Commission on Preparation of Russian Empire Constitution under the chairmanship of Nicholas II. During 1908-1913 he was an acting director of the Kyiv Commercial Institute. He took an active part in local government, in 1902 he was elected mayor of Kyiv6. Ideologically, Eyhelman belonged to the circle of liberal activists who recognized the current state system, but proposed their own scientific versions of improvement. Obviously, that is why Eyhelman never recognized radical ideas and political extremism. The professor was a conformist with a typical imperial loyalty. In a real life he was and remained a typical academic scientist who had little interest in practical politics7.

During the Hetmanat period Eyhelman became a board member of the Ministry of Trade and Industry and Deputy of Foreign Minister Dmytro Doroshenko. Since 1920-1922 he worked as a companion (deputy) Minister of Foreign Affairs of the Ukrainian People's Republic, a member of the Ministry of Culture. The professor was also a member of the Highest Legal Council (1921-1922). In April 1922 he was appointed head of the Ministry of Foreign Affairs of the Ukrainian People's Republic in exile.

Estimates of his political and scientific activities differ. Representatives of the Ukrainian national circles usually spoke of O. Eyhelman with a favour as about a diligent official and respectable scientist and lawyer. Meanwhile, some contemporaries and colleagues negatively characterized his role in those events. In his memoirs, Minister of Religion during the Skoropadskiy’s Hetmanat and a famous Russian Orthodox philosopher Vasil Zenkovsky skeptically assessed O. Eyhelman’s activity in the Ministry of Foreign Affairs of the Ukrainian State. We know that the Minister Dmytro Doroshenko invited the scientist for the government work considering both his Ukrainian loyalty and specialization in international law8. Zenkovsky knew well the particular nature of Eyhelman because they worked together at the University of St. Volodymyr. He characterized his former colleague as helpful and frightened9. This assessment of Eyhelman as a person of a kind "how can I please you"10 and his activities which leveled the plans of Dmytro Doroshenko, was associated with Zenkovsky’s critics on Ukrainian independent movement.

After the defeat of the 1917-1921 Ukrainian Revolution during his lectures at the Ukrainian Free University Eyhelman publicly positioned himself as the Ukrainian11. Eyhelman was a member of "Ukrainian People's Union" (a part of Ukrainian Peasant-Parliamentary Union since the summer of 1921) which main goal of political struggle was the idea of independence of Ukraine.

* * *

Eyhelman is one of the main theorists of constitutional government as a co-author of the texts of first laws and the UNR Constitution. He was also a leading developer of the concept of federalization of Ukraine and formation of separate entities – so-called "lands". He was not unique in his views as the federalization idea was of great popularity among European revolutionary movement. Eyhelman’s interest in federalism reflects a general tendency among representatives of political thought and the liberation movement of "new" nations of Central and Eastern Europe.

Federation seemed feasible and realistic way of overcoming the imperial past, power decentralization and democratization of local government. As a theorist of law, Eyhelman was a fan of the German version of federalism implemented as a nationalistic in the Hohenzollern Empire in the late XIX century. For the Germanic peoples of "Middle Europe" (the concept of F. Naumann) it was federalism which became a model for the formation of modern German nation. For this reason, the scientist considered Mykhailo Dragomanov’s "Free Society" project with great favour as one of the federal transformation of the Central Eastern Europe. The main thing that both Eyhelman and Drahomanov believed the state and the statehood should be prior to the formation of the nation. It is known that such a view of Drahomanov was out of the Hegel's concept about nations being divided into "historical" and "non-historical", where the latter depended on the "big" states.

Evolution and types of loyalty, typical for Ukrainian and German environment of Kyiv, convince in their role in politics and the formation of imperial loyalty. In fact, from the time of Peter the Great they were the Ukrainians (or Little Russians in political lexicon of that time) and the Germans played a crucial role in the transformation of Muscovite Tsardom into the Russian Empire.

Significant contribution of Eyhelman during the period of Ukrainian Revolution was the draft Constitution of the UNR, published in a pamphlet form in Tarnow (Poland)12. At the heart of the proposals were the principle of the people’s sovereignty and the idea of federalization of the UNR. By June 30, 1920 the Council of the People's Ministers established the Commission for the development of the Constitution of the UNR, led by Foreign Minister Andrei Nikovsky. One of the members of the Commission was a deputy of the Foreign Minister O. Eyhelman13 because of the personal recommendation of A. Nikovsky who admired his scholarly work and professional experience. At meetings Eyhelman defended his federalist convictions. Minutes of the meetings confirmed that he daily repeated his formulation of "consistent implementation of democratic-republican foundations", of nation-building from the very bottom and the "two systems" management every day14. Last view was of pure Byzantine discourse which was displayed in an effort to combine typical Western and Late Roman categories. "The first system is an administrative federal one – stressed Eyhelman – when a unit of upper zemstvo level shall possess only certain competency specified by the government authority point by point. The second system is a federal political one when upper zemstvo unit is endowed with state power, with all its features and functions, except for those state affairst the Constitution refer to the so-called federal state unit. According to this system we divide the lands, counties, municipalities, communities'15.

In the future Eyhelman’s view on separation of powers remained a major theoretical basis of his constitution draft. The referendum should become an instrument of "federal state control"16. He believed referendum was a main principle of the people's sovereignty and power realization.

The UNR was to be a democratic republic by the form of government. The scientist was not unique in this case – he used Drahomanov’s federalism, which emphasized the special role of the state and legal systems in Switzerland and the USA. Applying the principle of Drahomanov’s federalism, Eyhelman proposed to divide the UNR on the land-states with their own representative, executive and judicial power. This state is the main form of existence of human society and every nation.

Eyhelman developed quite controversial and broad federalization project of the UNR. He divided all federal state organization of the republic on the following institutions:

"Federal constituent power of the UNR people’

‘Federal state parliament’

‘Federal council’

‘Federal state council of ministers’

‘Federal state court’17.

The analysis of this structure shows that Eyhelman used the classical theory of separation of powers, proved the French philosopher and enlightener Charles Montesquieu, adding constituent power and control. According to him, this power must work under legal control and – what is more important – build democratic foundations of the state. But it is not clear why the scientific theory of separation of powers was expanded to five branches. Obviously, his notion of the people as a source of power was based on the recognition of poly-ethnic nature of the nation. In this aspect Eyhelman adopted and deepened civic concept of the nation, typical for a liberal-democratic trend of European and Russian political movements. Appeal to the system of civil equality testify poly-ethnic and multicultural nature of the national community. This discourse of Eyhelman is a synthesis of Western legal values with the Byzantine political traditions that ultimately predetermined his general view on development of law in European history.

Separation of federal constituent power of the people, the only source of power, was the reinterpretation of the " popular sovereignty" doctrine – an Enlightenment tradition of the XVIII century widespread as on the contrary to the concept of "divine right" according to which the supreme ruler (king, tsar, emperor) was considered and declared "the governor and the anointed of God" in their country. As part of the Byzantine political tradition the doctrine of "popular sovereignty" did not gain absolute acceptance because the power of people was understood as the power of chaos18.

An example of such a combination of categories is his proposed structure of bicameral federal parliament. The first chamber – Zemska State House – should be consisted of at least three members of the local parliament, elected for two years19. Second chamber – Federal State Council – should be based on direct, secret and proportional elections with members being elected for four years20. The special role in the project was given to federal state court with members being appointed for a lifetime, which is a testimony to the Anglo-Saxon legal practice influence on the in Eyhelman’s views21.

Eyhelman pointed the importance of a new branch of power – a federal state control, understanding it as tax and fiscal police22. In fact, this power would ensure filling of the federal budget, on practice limiting the financial autonomy of the federation. In other words, with the fifth branch of power Eyhelman made his federalization project quite contradictory and unrealistic. A special place in the system of power was given to federal state head.

Eyhelman’s draft Constitution of the Ukrainian People's Republic Eyhelmana was favorably appreciated by representatives of Ukrainian national movement socialists S. Shelukhin, L. Bielecki, I. Gorbatchevsky and Stephen Dniestrovsky - the author of the ZUNR Constitution.

However, the project was criticized at the meetings of the Commission and finally rejected as too cumbersome and detailed. A member of the Commission, doctor of law Stephen Baran noted that "draft of prof. Eyhelman" "instead of short sentences declaring foundations of state system and the rights and obligations of citizens, very often detailed the moments relating to the civil, criminal, process, administrative, etc. law"23.

S. Baran gave a very critical assessment of the project, calling it a scientific treatise, which is far from clear and brief codification of major principles of state system, rights and duties of a citizen24. Therefore, in his opinion, this project did not meet the realities of social and political life in the People's Republic and Eastern Europe. He also pointed that the project involved "the creation of several dozen states associated in a federation with a central federal institutions"25. Actually the opponent criticized the idea of federalism, fundamental to the project. Obviously, such a position is associated with a rather deliberate look at the development on contemporary political and geopolitical processes in Eastern Europe, as it was primarily mean the establishment of the independence of the UNR in the armed struggle. In addition, S. Baran believed that the conditions of formation of the federal government, "the legislative functions of the supreme legislative bodies can go to lower ones, and even on the body autonomously administrative, such as counties or townships, which can creat an ongoing dispute of competence and disgust mosaics in the law”26. Also S. Baran indicated a similarity between the Drahomanov’s federal project and the Eyhelman’s constitutional project, "once again approximated to the anarchists order".

However, the main drawback of the constitutional project of Eyhelman was the apologetics of absolute decentralization, which defined the principles of functioning of the state and society. That is why the credibility of the government was "reduced to zero"27.

In 1921, after the emigration of UNR government, utopianism and defeat of the UNR Army Winter campaign Eyhelman developed a "Memorandum of the UNR and its relation to the issue of unity between States of formed Russian Empire, including Modern Russia", written in Russian28. Its main source were "14 points" of the U.S. President Woodrow Wilson. The conceptual basis of the text was the recognition of the right of nations to self-determination, especially within ethnic territories. Eyhelman justified a new federal model for Eastern Europe which had to be based on international standards. The scientist suggested to legitimize potential state formation, but without the geopolitical context of the time as major peace treaties had been signed. Thus Eyhelman constructed its own "statist" utopia.

Scientists had proposed two options of the former Romanovs empire reorganization as follows:

Commonwealth of Independent States, with retained full sovereignty, and international legal organizations such as the League of Nations, which had been developing in the West since the late XIX century;

"One and indivisible" federation to be based on the priority of the central government29.

Eyhelman paradoxically proposed to consider Russia outside Europe / West. Further development of the UNR would depend on compliance with international standards, so the country was free to enter into agreements with each State party of such an international union.

In 1922, he became a professor and dean (1923-1924) of the law faculty of the Ukrainian Free University in Prague, where he was teaching public, administrative and international law. The scientist became a contributor to the emigre weekly "Liberation" (editor Peter Bogatsky), published in Warsaw in 1921. Since 1923 he was also a teacher of various brances of law at the Ukrainian Economic Academy in Podebrady.

At the same time he continued to develop his concept of federalization of Ukraine and Eastern Europe. During his lectures the scientist considered three forms of state structure existed in "political culture" at that time – a constitutional monarchy, a democratic republic and a union of states30. It should be emphasized that the first two belong to the form of state administration, and the latter – to the forms of government. The question arises as to the criteria for such classification of Eyhelman. It appears that the basis he chose was amount of people in power31. This approach is a simplified version of classical ideas on the state system formed under the influence of the doctrines of Plato and Aristotle.

Explaining his understanding of "union of states", Eyhelman determined the feature of the independence of the government not explaining the reasons for this conclusion. After all, the phrase "the independence of the government" raises the question of dependence "of the government." Union Member States are not zemstvos with broad self-government, but namely states with full powers32. The scope and jurisdiction of the states in the Union was determined only by the consent of all parties, without dominance of one of them. Thus, Eyhelman noted to some of the most real cases that might have nationwide importance: "the external defense of the entire union state" and "united diplomacy in all matters of federal common political union"33.

The emergence of a federal union of states was possible if there were "specific conditions causing such a union", "strong national ties, especially cultural and political closeness, older historical reasons, for example of Germany, Switzerland and the U.S.”34. Eyhelman believed that the organization of power in the federal state is based on the full power of all parts of the federation - the cantons, states, lands35. In this case, the scientist constructed a version of the "National Federation" on the pattern of formation of the 1870-1880-ies Kaiserreich. Attempts to describe the federal model of Eastern Europe under Germanic imperial discourse were contrary to the very essence of the socialist and republican UNR. A hidden reverence to the German nation-building experience and establishment of national empire in the 70 's of the XIX century were typical for Eyhelman. Obviously, this could be easily explained by his ethnic origin and imitation of Western legal ideas in his writings. Considerations of Eyhelman about consolidating democracy as a principle of Union states were quite controversial and contradictory.

In 1924, the scientist became a full member of the Shevchenko Scientific Society. In 1933 Eyhelman actively participates in the Ukrainian Law Congress in Prague and made a report on the future "public law" system of Ukraine. In this report, he presented a very interesting and specific project on "Programme for assembly of the laws in liberated Ukraine", which proved that Eyhelman remained faithful to the Byzantine imperial legal categories and legal science. The basis of his proposals were "Code of Laws of the Russian Empire". He himself acknowledged this in his speech36. In addition, Eyhelman proposed a whole system of laws much alike the ‘Russka Pravda’ and to call it "Ukrainian Truth"37. The scientist re-emphasized the importance of the horizontal system of government that would promote decentralization. "Public law" power in the country was carried out in four stages from below upwards: in the parish, county, land, and the state38. In this case Eyhelman reiterated his position set out in the Constitution draft. But the question arises of why the scientist used the old, more imperial, administrative divisions which, to say the truth, was an anachronism within the concept of a federal political future of Ukraine?

Actually, all these and many other research questions were rhetorical and unresolved. Obviously, he perceived them as "truthful" without due reflection on their meaning and genealogy. Yet his views on the establishment of a federal republic Ukraine were ahead of its time.

Eyhelman O. died on February 21, 1943 in Prague.

Thus, summarizing the above mentioned Eyhelman Otto passed way from a professor at the Russian university to a high official in the Ukrainian government offices during the Ukrainian Revolution of 1917-1921. One could argue that he became a "political" Ukrainian. His political activities and scientific work were influenced by the ethnic identity of the Baltic German, and therefore his significant particular interest to German law and federalism, as well as imperial loyalty expressed in usage of Byzantine (late-Roman) categories and approaches to solving scientific problems seem reasonable. Eyhelman perceived Western scientific standards through the personal experience of life in the Empire.

After the defeat of the revolution the scientist did not lose contact with the Ukrainian emigration, he continued to believe in the ideals for which you fought. In this case, you understand Eyhelman. In real life, to paraphrase the thesis of an Austrian historian Andreas Kappeler, he was "a faithful servant of empire and nation". This is why the Russian emigre environment considered him a traitor to the ideals of the Empire and Russia.

Throughout the life in the Russian Empire and the revolutionary period Eyhelman demonstrated different political principles, trying to gain recognition as a scholar in law. And we admit that he succeeded not only in the Russian imperial environment, but also among the Ukrainian community.

In his political and government activities during the Ukrainian Revolution of 1917-1921 the scientist followed Ukrainian loyalty, which had not a pronounced ideological coloring. He may be hardly classified as one of Ukrainian socialists, liberals or conservatives, but a "political" Ukrainian and a specialist of law.

Political legal (or "public law") concept of Eyhelman was based on the principles of democracy and federalism, which he understood through the prism of Western thought. The scientist believed that this discourse is the most appropriate way of "new nations" of Central Eastern Europe, he always used Russian imperial science approaches in his works. The basis of this methodology is a synthesis of Byzantine (late-Roman) categories, the idea of the imperial government experience, practice of Russian law, and exaggeration of the provincial governments.

Eyhelman as an author of the UNR Constitution draft considered the idea of federalism the most relevant model for the European development, and especially in its eastern part. So his idea of federalization of the UNR and the principle of popular sovereignty answered the geopolitical circumstances. The scientist wanted UNR to be the democratic republic with a wide decentralism of state power. He attached special importance to the development of local government.

During the "Czechoslovak" emigration professor Eyhelman continued trying to develop their own view of "public law" system of the future Ukraine. The idea of federalism remained dominant. His proposal to create a "Ukrainian Truth" or "Laws for the liberated Ukraine" can serve an example of the influence of Byzantine law and ideas. However, in the interwar reality this was a classical ideological utopia.

* Korolyov Gennadiy Oleksandrovych – PhD in History, a senior scientific researcher of the Institute of History of Ukraine of the National Academy of Sciences of Ukraine.

1 Це поняття використав інший британський історик Б. Андерсон, поклавши в основу концепції націотворення.

2 Див.: Миллер А. “Украинский вопрос” в политике властей и русском общественном сознании. – Москва, 2000. – 260 с.

3 Хаген фон М., Империи, окраины и диаспоры: Евразия как антипарадигма для постсоветского периода // Новая имперская история постсоветского пространства / Ред. И. Герасимова и др. – Казань, 2004. – С. 131.

4 Осташко Т.С. Ейхельман Отто Оттович [Електронний ресурс] // Енциклопедія історії України: Т. 3: Е-Й / Редкол.: В. А. Смолій (голова) та ін. НАН України. Ін-т історії України. – К.: “Наукова думка”, 2005. – 672 с. – Режим доступу: http://www.history.org.ua/?termin=Eykhelman_O; Потульницький В. Історія української політології. – К., 1993. – С. 201–203, 212–216; Турчин Я. Отто Ейхельман постать на зламі століття. Політологічний дискурс. – Львів, 2010. – 520 с.

5 Потульницький В. Зазн. праця. – С. 201.

6 Осташко Т.С. Зазн. праця.

7 Потульницький В. Зазн. праця. – С. 200.

8 Зеньковский В. Пять месяцев у власти (15 мая – 19 октября 1918 г.). – Москва, 1995. – С. 137.

9 Там же.

10 Там же.

11 Державний архів Російської Федерації (далі – ГАРФ), ф. 7008, оп. 1, спр. 2, арк. 19.

12 Ейхельман О. Проект Конституції – основних державних законів Української Народної Республіки. – Київ–Тарнів, 1921. – 96 с.

13 ЦДАВО, ф. 1065, оп. 2, спр. 294, арк. 6.

14 Там само, арк. 8.

15 Там само.

16 Там само. – Арк. 9.

17 ЦДАВО, ф. 3382, оп. 1, спр. 14, арк. 182.

18 Див.: Грибовский В. Народ и власть в Византийском государстве. – СПб., 1897. – 437 с.

19 ЦДАВО, ф. 3382, оп. 1, cпр. 14, арк. 189.

20 Там само, арк. 190.

21 Там само, арк. 220.

22 Там само, арк. 224.

23 ЦДАВО, ф. 1065, оп. 2, спр. 294, арк. 14 зв.

24 Там само.

25 Там само.

26 Там само.

27 Там само, арк. 15 зв.

28 Там само, арк. 287.

29 ЦДАВО, ф. 3382, оп. 1, спр. 14, арк. 288.

30 Лекции преподавателя Украинского университета О. Эйхельмана по государственному праву (1922 г.) // ГАРФ, ф. 7008, оп. 1, спр. 2, арк. 17.

31 Там само.

32 Там само.

33 Там само.

34 Там само, арк. 18.

35 Там само.

36 ЦДАВО, ф. 3997, оп. 1, спр. 6, арк. 182.

37 Там само.

38 Там само.

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