Keywords

1 Introduction

Non-territorial autonomy (NTA) is a legal and political instrument for accommodating diversity—most often of an ethnic kind and usually within a single state framework. While Europe alone had known a variety of pre-modern forms of NTA, such as the Ottoman millet system and the Unio Trium Nationum (Union of the Three Nations) in Transylvania, it was the late Habsburg monarchy that saw its most important modern conceptualisations, devised for the era of nationalism and mass politics. In particular, the Austro-Marxist vision (Bauer, 1907; Renner, 1899, 1902, 1918) of reconsolidating Austria by providing its nationalities with cultural and linguistic autonomy on the basis of the personality principleFootnote 1 stands out as the most theoretically advanced example. It has up until the current day served as a common reference point for various non-territorial approaches to accommodating diversity. Whereas the pre-WWI Habsburg ideas—as well as those emerging in Tsarist Russia—were meant to implement NTA within multinational states, the interwar era above all saw attempts to utilise it in order to accommodate national minorities within nation-state frameworks. Perhaps the most successful attempt took place in Estonia. The 1925 Estonian cultural autonomy lawFootnote 2 in turn came to represent the model solution advocated within the European Nationalities Congress (ENC), the largest transnational NGO speaking on behalf of European national minorities.Footnote 3

What bound the pre-WWI cases, conceived for frameworks of multinational empires, to the interwar ones, designed primarily to accommodate minorities in nation-states, is that in both cases the scope of national autonomy was clearly delimited. It was meant to encompass only those aspects of human activity that were perceived as essentially national, as opposed to those that concerned the common good of all citizens and thus the state as a whole. This largely implied depoliticising nationality, whose domain was reduced to matters of language and culture, and, consequentially, denationalising politics by neutralising the competing nationalisms. The Austro-Marxists employed an argument, analogous to the secularist one, demanding institutional separation between matters of particular nationalities (conceived as cultural entities) and those of the state as their common political framework. By no means aiming to denationalise the young Estonian nation-state, the 1925 cultural autonomy law also essentially operated along similar lines by divorcing specific national matters, confined to the sphere of culture and education, from the common matters of state politics.Footnote 4 It must be stressed that in both cases ‘culture’ was conceptualised in a narrower sense, referring to things such as folklore, art and literature, and not to laws, customs and morality, for instance.

Another closely related commonality between the examples of NTA mentioned was that they were both designed to operate within a liberal state framework, arguably also being compatible with it in the sense of not encroaching on citizens’ individual liberties and their legal equality. Belonging to a certain national group, and thus partaking in its autonomy, was basically a matter of free individual decision. At the same time, it did not imply any kind of differential rights, as all citizens, regardless of national belonging, were legally equal and subject to the same state law. Aiming to contain the nationalist conflicts by giving nationalities autonomy in their particular cultural matters, they simultaneously aspired to strengthen the common state framework and its central institutions. While aims of this type have comprised the major part of the modern history of NTA, the 1930s also saw the development of a markedly different variant, which was openly illiberal and radically nationalist. It found its practical materialisation in the autonomist legal proposals put forward in 1937 by the far-right Sudeten German Party (Sudetendeutsche Partei, SdP) in Czechoslovakia under the joint title Volksschutzgesetze (Laws for the Protection of Nationality). The aim of this paper is to present this lesser known case of NTA and discuss its main characteristics, and simultaneously identify the distinguishing markers of what may be termed as the illiberal adaptation of NTA of the völkisch type.

2 The Sudeten German Party and the Volksschutzgesetze of 1937

The founding of the First Czechoslovak Republic in 1918 simultaneously created a national minority problem that came to mark the entire 20 years of its existence. Encompassing the entirety of the historical Bohemian lands, along with the major part of what formerly constituted Upper Hungary, the young state included sizeable groups that did not belong to the titular ‘Czechoslovak nation’. Taken together, these amounted to around one-third of the entire population. The largest were the German (representing approximately 23% of the Czechoslovak population) and the Hungarian (5.5%) minorities. Both were also distinguished by largely compact patterns of settlement, being concentrated within the strips of Czechoslovak territory that bordered their own co-national states. For this reason, the major part of the German minority counted as Grenzlandsdeutsche (borderland Germans) and not as Auslandsdeutsche (Germans abroad), which also largely explains their initial reluctant attitude towards transnational minority activism.

Despite the obvious preference for territorial designs—either of a secessionist or autonomist nature—interwar German minority politics also saw a number of proposals that contained notable non-territorial arrangements. This is not too surprising, given the fact that during the last decades of Habsburg rule Bohemian lands had already experienced experiments in non-territorial autonomy (Kuzmany, 2016). The Moravian Compromise of 1905 (see Fasora et al., 2006; Glassl, 1967; Kelly, 2003)Footnote 5 and the 1914 settlement in Budějovice/Budweis (see King, 2002, pp. 137–147) represented clear examples of the quest to solve the pressing nationality question. While not instituting autonomy in a strict sense, and being primarily consociationalist (Kuzmany, 2016, pp. 47–48), these settlements, as well as those in Bukovina (see Kotzian, 1992; Leslie, 1991) and Galicia (see Kuzmany, 2013), contained significant non-territorial elements such as national cadasters (registries) and curiae (electoral polls). These same elements were also clearly present in the draft laws that the Sudeten German Party put forward in 1937, and which foresaw a far-reaching reorganisation of the state on a purely non-territorial basis.

Soon becoming synonymous with German nationalism in Czechoslovakia, the Sudeten German Party had been founded in 1933 as a highly heterogeneous assortment of various nationalist political groups and ideological orientations (Gebel, 1997, p. 376; Vierling, 2014, p. 98). Presenting itself not as an ordinary political party but as a broad popular movement, it aimed to unite all the Germans in the state, thus creating a united Sudeten German Volksgemeinschaft (ethnic community) under its leadership (Henlein, 1937, p. 21). In the 1935 state parliament elections, the SdP succeeded in attaining more than two-thirds of the German vote and simultaneously the highest percentage of all the Czechoslovak parties. Proclaiming loyalty to the Czechoslovak state, the SdP at the same time adopted a firmly oppositional stance, arguing that Czechoslovakia was not a nation-state, and demanding its reorganisation as a multinational one. From the outset, it was perceived by a large section of Czech public opinion to be an outpost of the Third Reich; its rapprochement with Hitler actually began in 1936, whereas full subordination to Nazi foreign policy can be established with full certainty only from November 1937 onwards (Brandes, 2010, p. 50).

Coming to be known as the Volksschutzgesetze based on the official title of the first of the six draft laws that the SdP presented to the Czechoslovak Parliament in April 1937, these proposals were a direct reaction to an agreement that the minority German parties (Social Democrats, Agrarians and Christian Socials) had concluded with the Czechoslovak government in February of the same year. They were a rather fast product, having been put together in haste with the aim of putting forward a positive legal alternative to the purely administrative concessions contained in the February Agreement.Footnote 6 While the last three bills more or less aimed at legally instituting the main promises of the February Agreement, such as the participation of nationalities in public institutions proportional to their share in the entire state population and the right to appeal to the Constitutional Court in cases concerning minority rights, it was the first three bills that contained the crucial provisions for national autonomy, at the same time also representing the main subject of dispute with the Czechoslovak government and Czech legal experts (Tóth et al., 2012, p. 366). It was also in these first three bills that the legacies of the late Austrian-era compromises were most clearly recognisable. At the same time, novel elements stemming from contemporary völkisch sociological, legal and political thought were clearly present, along with ideas about political and economic reorganisation along corporatist lines.

The most important was the ‘Law on the protection of the national rights [Volkstumsrechte] through formation of associations of public law’, in short ‘Volksschutzgesetz’, put forward by Ernst Kundt.Footnote 7 In line with this, each of the main national groups of Czechoslovakia would form a national association (Verband), representing a person of public law. These would initially be founded by the parliamentary representatives of each nationality, which would at the same time form the association Board, or Vorstand. The Board of each national association would in turn elect a Speaker (Sprecher) and their Deputy, who—while themselves not being members of parliament (this being explicitly forbidden)—would be given the mandate to represent their national communities and their interests before state organs, as well as other national associations. After being consolidated, the national associations would legally comprise all the citizens of a given nationality. This would be done via compulsory registration of all Czechoslovak citizens in national cadasters (i.e. registries), enabling the ‘inclusion of [all] the members of a nation on the basis of personal ethnic affiliation [Zusammenfassung der Angehörigen einer Nation auf Grund persönlicher völkischer Zugehörigkeit]’ (Henlein, 1939, p. 18). The thus formed national associations—and more precisely their ruling organs—would be given a full mandate to represent their national communities and to co-rule the state, while also having broad, far-reaching and not clearly limited powers in administering the ‘internal’ life of a given nationality in the fields of culture, education, social policy and economy. This would, among other things, be done via numerous compulsory organisations of a corporatist character.

Taken together, the Volksschutzgesetze combined broad and far-ranging national autonomy with consociationalist arrangements (de facto national sectioning of the parliament, strict national proportionality in all state institutions and public enterprises). Whereas it remains unclear whether the national associations were envisaged to bear direct legislative and executive powers—the bills spoke only of ‘delegated competences’ (übertragener Wirkungskreis)—it was clear that in practice they would come to indirectly control both branches (Osterkamp, 2009, pp. 217, 220). The SdP bills left the question concerning the powers of central government institutions and their future role entirely unaddressed. It was clear, however, that these were to be significantly curtailed; in particular, the state parliament, while still nominally existing in its envisaged form of a central representative body, would become factually divided into national representations that would simultaneously form the Boards of autonomous national associations. In all respects, the ‘package’ clearly contained considerably more than any of the previous modern examples of NTA—and of national autonomy in general.

3 The Illiberal Adaptation of NTA of the Völkisch Type

The SdP proposals were significantly different from previous modern examples of NTA, devised for the framework of a liberal state, be that the pre-WWI ideas of Renner and Bauer on rearranging Austria or the contemporary example of national cultural autonomy for minorities in Estonia. Their package included considerably more, including substantial and far-reaching implications concerning the inner structure of the state, its mode of functioning and its very foundations. Most importantly, the tenets on which it was based were clearly illiberal and also potentially undemocratic. As such, the Volksschutzgesetze represented a model example of illiberal adaptation of NTA of a völkisch type. Its distinguishing traits included: involuntariness concerning national belonging; considerably wider scope for self-rule, extending far beyond the cultural sphere; lack of accountability of the national associations towards their members and essential subordination of the individual to the national group.

Now perceived as a body of an essentially political nature, the national group was to be constituted according to a binding and essentialising definition of nationality. The contemporary verdict of Elisabeth Wiskemann was that this would have created such barriers between particular nationalities as did not exist even between citizens of different states (Wiskemann, 1938, pp. 258–259). According to the second bill (‘Law concerning national belonging of the state citizens and the national cadaster’),Footnote 8 every adult citizen would have the right and the duty to declare their nationality and enrol with the corresponding registry. This decision was meant to be a once-only and irrevocable one. It was furthermore not an entirely free one, as it had to be ‘truthful’,Footnote 9 corresponding to the language used in the family, and could ultimately also be decided by a special Cadaster court. This ultimately involuntary manner of determining nationality might also be understood as a legacy of the Moravian Compromise. However, the crucial difference lay in the once-only and irrevocable nature of the declaration, which was only to be made by the current generations of adult citizens. After their formation, the national registries and thus the membership of the national associations were to be fixed and sealed, with the nationalities of all future generations determined in advance by those of their forefathers (Boyer & Kučera, 1997, p. 368).

The intended scope of national autonomy was considerably wider than in previous cases of NTA and stretched far beyond the spheres of culture and education, encompassing a wide array of other aspects of life that were now also considered to be essentially ‘national’. In order to pursue their aims, the national associations had the right and duty to establish compulsory associations of a social, cultural or economic nature, or to enlist already existing ones; also to enlist compulsory or voluntary organisations of a cultural, economic, social or humanitarian nature; and to bring the statutes of these compulsory associations and compulsory or voluntary organisations into accord ‘with the interests of their nationality’ (“Die sechs,” p. 578). The most striking implications concerned the economic sphere. For instance, the ‘Law concerning the protection against any kind of denationalisation’Footnote 10 also included provisions for protecting ‘national property’ (nationaler Besitzstand). The latter term—an old nationalist battle slogan—thus gained fresh force, now for the first time being framed as a legal category, designating a concrete object, to be protected by criminal law. It was thus not merely people, but also material property, which were to be prevented from being denationalised. The latter again encompassed not merely land, factories and other enterprises, but extended even to jobs. If a certain workplace had already been occupied for a given amount of time by a member of a given nationality, it was to be recognised as belonging to that nationality—as part of its Besitzstand. This envisaged legal institutionalisation and protection of ‘national property’ implied a major hampering of the market, as it would have created a peculiar kind of national autarchy, ‘which would furthermore not be defined territorially but personally’ (Petráš, 2009, p. 251).

The all-encompassing nature of the proposed national self-rule was coupled with the virtual omnipotence of the national associations as its executors. Formed in a top-down manner, the governing organs of these associations lacked accountability towards the members that they were supposed to represent. The rather vaguely delimited authority of the Speaker—an institution that the French envoy in Prague De Lacroix compared to the Ottoman Millet system (Brandes, 2010, p. 70)—accompanied by weak democratic legitimation (Osterkamp, 2009, p. 218), lack of control mechanisms and accountability towards the membership clearly hinted at the ‘Führerprinzip’ (Kracik, 1999, p. 350; Petráš, 2009, p. 250). According to Jana Osterkamp, the SdP bills aimed at recognising the ‘Volksgruppe’ or the ‘Volk’ as a legal subject of public law and as a link between the state and the individual (Osterkamp, 2009, p. 202). We find a similar verdict from Tóth, Novotný and Stehlík, who argue that the proposed laws represented ‘legislative confirmation of indisputable equivalence of individual-civic and collective-ethnic rights’ (Tóth et al., 2012, pp. 362–363). This practically entailed turning individual citizens, now possessing a dual legal status as ‘citizens-conationals’ (Staatsbürger-Volksgenossen) (Thiele, 1938, p. 487) into ‘passive objects of care’, unable to enforce any kind of rights regarding their national associations (Petráš, 2009, p. 250; Tóth et al., 2012, pp. 361–362). Such a vision was entirely in line with the position that the leading SdP members took on civic rights in relation to nationality rights, which was closely linked to a specifically völkisch and organicist understanding of nationality. According to Theodor Veiter, an Austrian legal expert specialising in national autonomy and a supporter of the SdP bills, these were an expression of a ‘new conception of nationality’ (neue Volkstumsauffassung). In line with this, the national community possessed an ‘absolute claim’ over its individual members, who could also be coerced into putting themselves at their communities’ disposal (Veiter, 1938, pp. 216–217).

The essential subordination of the individual to the national group, expressed via a lack of accountability of the national associations towards their members, was coupled with an unclear delimitation of competences between the national associations and the central government. The wide competences given to the national associations, along with their undefined relationship to the central state institutions, created a clear potential for the weakening of the democratically elected central governing bodies. In clear contrast to Renner’s objective of strengthening the Gesamtstaat (common state) by neutralising nationalisms, they were clearly aimed at consolidating the nations as essentially political entities at the expense of the state, whose unity and sovereignty could be seriously diminished. Considerable shares of it would have passed to the nationalist leaderships of national associations. Their Boards would simultaneously comprise the state parliament, thus potentially transforming it from popular representation of one indivisible Staatsvolk or demos deciding on common matters—or what Renner had referred to as ‘the state-building interests and factors’ (Renner, 1899, pp. 25–26)—into a place of institutionalised struggle between particular ethno-national groups. As such, it would mainly function as a place for bargaining between the national associations. In the words of the Latvian German activist Paul Schiemann, one of the main protagonists in the interwar minorities movement, this essentially meant ‘putting nationalism against nationalism’ (Schiemann, 1937).

Leaving the door open also for the eventual introduction of elements of territorial self-rule (Mulej, 2022), the Volksschutzgesetze foresaw the transformation of Czechoslovakia not only into a multinational state but also into an ethnic federation. The federation in question was, however, not one of territories, but one in which the nations themselves would constitute the federal units. It aimed at transforming the ‘democratic-individualistic state into a national-cooperative one’ (Osterkamp, 2009, p. 202), a non-territorially conceived union of largely self-ruling national communities with a corporative inner structure and based on a binding and essentialising definition of nationality. In our opinion, such an arrangement represents a wider and more all-encompassing form of national autonomy than any federation of ethnic territories would have. It was thus precisely the non-territorial foundation that enabled the fully maximalist character of the SdP autonomist programme, both in its scope and type. For the same reason, it is not surprising that the critique on the part of Czechoslovak constitutional and legal experts and officials from the Ministry of Justice was primarily against its rootedness in the personal principle (Osterkamp, 2009, p. 233; Tóth et al., 2012, pp. 423–425).Footnote 11

4 The ‘Sovereign Ethnicities’ and the Path Towards National Totalitarianism

This chiefly concerned the sovereignty of the (nation) state. Apart from implicitly negating Czechoslovakia’s nation-state character and effectively turning it into a ‘state of nationalities’ (multinational state), the Volksschutzgesetze implicitly posited nationalities as the basic carriers of political will and sovereignty, and as such the basic agents of statehood. This was not only the contemporary verdict of its Czech critics, such as Emil Sobota, who accused the SdP of trying to create ‘a state within a state’ (Sobota, 1938); it was also clearly manifested both in the statements made by their framers and supporters and in the legal theories that underpinned them. In particular, the theory of nationality law (Volksgruppenrecht) of Hermann Raschhofer, one of the key minds behind the SdP bills, was crucial here. At its core, namely, was the pseudo-Rousseauan notion of ‘sovereign Völker’, entities of an essentially political character, whose existence came before those of states. It was thus Volk as ethnos, and not Volk as demos (Staatsvolk), which acted as the primary carrier of sovereignty and political will. In central Europe, according to Raschhofer, the ‘abstract people envisaged by Rousseau’ had ‘taken a concrete völkisch shape’ (Raschhofer, 1938, p. 90). While in mononational states the two conceptions of Volk largely corresponded to each other, this essentially meant that multinational states such as Czechoslovakia consisted not of one sovereign Volk, but of a number of sovereign Völker. Encompassing the entirety of co-nationals, regardless of their place of residence, the sovereign Völker furthermore also acted as essentially non-territorial entities—subjects, who were not territorially ascertainable (Raschhofer, 1931, p. 78). This approach largely corresponded to the principles guiding the Volksschutzgesetze with their omnipotent national associations.

Deemed by the authors to represent a general template for solving the European minorities’ question, and reflecting ‘insights of all the previous European Nationality Congresses’ (Kundt, 1937, p. 552), the Volksschutzgesetze also achieved wider acclaim in the minorities movement.Footnote 12 Observed from this broader perspective, the Volksschutzgesetze, nominally still acknowledging the democratic framework of the Czechoslovak constitution, at the same time remained half-way in terms of how far the illiberal renegotiation of national autonomy could have led (and in certain ways did lead). Observing a broader developmental trajectory of interwar legal designs for accommodating national minorities via collective rights, we may identify an unambiguous tendency towards illiberal solutions during the 1930s. From this perspective, the SdP proposals can be understood as merely one station within the process, albeit a very important one. They were a product of a broader endeavour, taking place in the transnational framework of European minority activism, particularly the European Nationalities Congress. Mainly German-speaking experts on nationality law (Nationalitätenrecht, Volksgruppenrecht), in particular the already mentioned Raschhofer as well as Werner Hasselblatt, played a crucial role. Their aim, stemming from the rejection of the existing minority protection based on individual rights, was to develop special legal frameworks for ethnic collectivities that were to be ultimately integrated into international law (Wheatley, 2017, p. 777).

In the most extreme variants that were fully in line with the National Socialist ideology (see, for instance, Gürke, 1932, pp. 7–30; Hamel, 1935, pp. 569–601; Walz, 1937), this could be coupled with racialist underpinnings, hierarchies among nations and a priori exclusion of certain groups of the population from the national community (Steck, 2003, p. 147). Furthermore, it could also give way to fully personal conceptions of law, theoretically allowing for separate legal codes for particular groups residing within the same territory. The discussed illiberal potential ultimately culminated during WWII in the totalitarian and racist National Socialist vision of a ‘new Europe’ as part of Third Reich imperialist designs. Once fully instrumentalised by the Nazi regime after 1938, the German Volksgruppenrecht underwent a transition from a ‘pan-European’ conception towards an openly Reich-centred one (Bodensieck, 1958, pp. 516–517). In particular, it manifested in the special legal statuses enjoyed by ethnic Germans who were citizens of the allied states in central and southeastern Europe such as Croatia, Hungary and Slovakia, or in occupied territories such as the Protectorate of Bohemia and Moravia or the Banate (Casagrande et al., 2016, pp. 209–251).Footnote 13

5 Conclusion

The defeat of the Axis powers in WWII also marked the demise of the völkisch illiberal variant of NTA, which was largely left on the ash heap of history. Its case, however, warns us of the potentially illiberal aspect of NTA or, more precisely, an illiberal potential generally inherent in group-focused approaches to accommodating diversity. While meant to serve solidly liberal purposes, such as empowering national and other minorities and protecting them from majorities’ whims, the inherently groupist character of NTA may, however, also pose a challenge to liberal states and societies. This is particularly the case if its subjects, its scope and the rules governing them are not clearly defined and simultaneously subordinated to the broader legal and political framework of representative democracy based on the rule of law, limited government and individual liberties such as freedom of association. While the discussed illiberal potential should not be mistaken for inevitability, the historical case of the SdP draft laws can nevertheless offer an instructive example for contemporary debates, especially those concerning challenges connected to multiculturalism, illiberal communities within liberal societies, as well as cases of radical groups claiming to speak on their behalf.