The 1937 Volksschutzgesetze

At the beginning of 1937 the German social democrats, Christian socials, and agrarians put forward a joint memorandum, subsequently reaching an agreement with the government, which promised certain concessions to the German national group. These above all concerned proportional representation in administration, in public enterprises, and in state companies. More government funds were to be channeled into majority-German parts of the country, especially for the sake of combatting unemployment (Kracik Reference Kracik1999, 342–343; Kučera Reference Kučera1999, 145–149; Haslinger Reference Haslinger2010, 400).

As an immediate reaction to this agreement (Leoncini Reference Leoncini1988, 118; Wiskemann Reference Wiskemann1938, 257) Henlein announced the intent of his party to develop and put forward a more substantial and lasting solution to the nationality problem in the form of “völkisch self-rule” (völkische Selbstverwaltung). Whereas the government promises to the activist parties entailed purely administrative measures, which could easily be revoked by any future government, Henlein accentuated the need for a legislative solution. In his speech at the party rally in Aussig/Ústí nad Labem on February 28 (Henlein Reference Henlein and Tscherne1939, 7–21), he delineated the key tenets that such a solution was to be based on. Each national group of Czechoslovakia was to be legally recognized and instituted “as a body of public law with unified representation.” Particularly he emphasized the need for national cadasters, i.e. registries enabling “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]” as the “indispensible precondition for a just organization of self-rule” (Henlein Reference Henlein and Tscherne1939, 18–19). He thereby specifically emphasized that this kind of self-rule did not contradict the unity of the state as it did not demand any kind of special status for any part of its territory. At the same time, he however also demanded “protection of our homeland and guarantee of our ethnic border” (Henlein Reference Henlein and Tscherne1939, 20).

Two months later Henlein’s announcement came true as demands were formally put forward in the Czechoslovak Parliament in form of six draft laws. Coming to be jointly known as Volksschutzgesetze after the official title of the first of them, the bills were meant not only to provide a legal basis for the promises included in the February Agreement, but to constitute the national groups inhabiting Czechoslovakia as separate legal entities. The bills were a rather fast product, having been put together in haste with the aim to put forward a positive legal alternative to the February Agreement that would have enabled the SdP to reclaim the initiative in German minority politics – something confirmed both by contemporary diplomatic sources, as well as later testimonies.Footnote ² While the last three of the billsFootnote ³ more or less aimed at legally instituting the main promises of the February Agreement, such as participation of nationalities in public institutions, proportional to their share in entire state population and the right to appeal to the Constitutional Court in cases concerning minority rights, it was the first three 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, Novotný, and Stehlík Reference Tóth, Novotný and Stehlík2012, 366).

The most important was the “Law on the protection of the national rights [Volkstumsrechte] through formation of associations of public law” or shortly “Volksschutzgesetz” proposed by Ernst Kundt.Footnote ⁴ In line with it, 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 his 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 towards the state organs, as well as the other national associations. Through their ruling organs the national associations would therefore be given the full mandate to represent their national communities and to co-rule the state, while 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 be done via numerous compulsory organizations of corporatist character. The rather vaguely delimited authority of the Speaker – an institution that the French envoy in Prague De Lacroix paralleled to the Ottoman Millet system (Brandes Reference Brandes2010, 70) – accompanied by weak democratic legitimation (Osterkamp Reference Osterkamp2009, 218), lack of control mechanisms and accountability towards membership clearly hinted at “Führerprinzip” (Petráš Reference Petráš2009, 250; Kracik Reference Kracik1999, 350).

After being consolidated, the national associations would legally comprise all the citizens of a given nationality. According to the “Law concerning national belonging of the state citizens and the national cadaster,” the second bill put forward by Fritz Köllner,Footnote ⁵ every adult citizen would have the right and the duty to declare his or her nationality and enroll into the corresponding national registry. This decision was meant to be a one-time and irrevocable one. It was furthermore not an entirely free one, as it had to be “truthful,”Footnote ⁶ corresponding to the language, used in family, and could ultimately also be decided by a special Cadaster court. In the words of the prominent contemporary scholar on nationality question, Karl Gottfried Hugelmann (Reference Hugelmann1937, 566), this meant an “overcoming of the subjective and the objective theory in a higher synthesis.” The ultimately involuntary manner of determining nationality might also be understood as a legacy of the Moravian compromise. Yet, the crucial difference lay in the one-time and irrevocable character of the declaration, which was only to be done by the current generations of adult citizens. After being formed, the national registries and thus the membership in the national associations were to be fixated and sealed, with nationality of all the future generations being determined in advance by that of their forefathers (cf. Boyer and Kučera Reference Boyer and Kučera1997, 368)Footnote ⁷.

Lastly, the “Law concerning the protection against any kind of denationalization,” put forward by Rudolf Sandner,Footnote ⁸ thereby also included provisions for protecting the “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 the souls, but also material property, that was to be prevented from being denationalized. The latter again encompassed not merely land, factories, and other enterprises, but extended even to jobs. Had a certain workplace for a given amount of time already been occupied by a member of a given nationality, it should have been recognized as belonging to that nationality – as part of its “property.” The foreseen legal institutionalization 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 Reference Petráš2009, 251).

Taken together, the Volksschutzgesetze thus combined provisions for 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). In some of their aspects they might offer the appearance of a mere retour towards provisions that had already been in force in Austrian times, such as the right of nationalities – and not solely individuals – to appeal to the Supreme Court (Stourzh Reference Stourzh1985, 195–196). In the same vein they might also be interpreted as aiming to secure what various legal theoreticians and national activists of old Austria had longed for but had never fully achieved (recognition of nationalities as legal persons). The SdP proposals however went considerably further. Their “package” indeed included considerably more than any of the previous modern examples of national autonomy, containing novel elements that were clearly illiberal and also potentially undemocratic. As such they bore substantial and far-reaching implications concerning the inner structure of the state, its mode of functioning and its very foundations. Apart from the fact that they effectively negated the Czechoslovakia’s official nation-state character, their “revolutionary character” lay in that they posited nationalities as the basic carriers of political will and sovereignty.Footnote ⁹ These were attributed an essentially political character as basic agents of statehood. Or, in the words of Hugelmann (Reference Hugelmann1937), who gave his support to the SdP bills, these did not imply merely (broad) autonomy but something more:

It remains unclear whether the national associations were envisaged to bear direct legislative and executive powers (Osterkamp Reference Osterkamp2009, 217). The bills spoke only of “delegated competences” (übertragener Wirkungskreis), while the later explanations by the protagonists denied that they were supposed to have “any normative or executive functions” (Prager Presse, November 13, 1937). It was however quite certain that in practice they could come to indirectly control both branches (Osterkamp Reference Osterkamp2009, 220). The SdP bills left the question concerning powers of central government institutions and their future role entirely unaddressed. It was certain, 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. The Parliament would thus be transformed from popular representation of one, indivisible demos (Staatsvolk) into a place of institutionalized struggle between particular ethnonational groups. In words of Latvian German activist Paul Schiemann, one of the main protagonists in the interwar minorities’ movement, this essentially meant “putting nationalism against nationalism” (Schiemann Reference Schiemann1937).

The national group was furthermore to be constituted on a binding and essentializing definition of nationality, which would, in contemporary verdict by Elisabeth WiskemannFootnote ¹⁰ (Reference Wiskemann1938, 258–259), have created such barriers between particular nationalities as did not exist even between citizens of different states. The most outstanding specificity of Volksschutzgesetze, however, was the all-encompassing nature of the foreseen national autonomies, which stretched far beyond the spheres of culture and education and was coupled by virtual omnipotence of the national associations as their executors towards their individual members. The latter, possessing dual legal status as “citizens-conationals” (Staatsbürger-Volksgenossen) (Thiele Reference Thiele1938, 487) would thus be turned into “passive objects of care” (Tóth, Novotný, and Stehlík Reference Tóth, Novotný and Stehlík2012, 250). Theodor Veiter, a renowned expert on nationality law from Austria, endorsed this as an expression of what he termed “new conception of nationality” (neue Volkstumsauffassung), in line with which the national community possessed an “absolute claim” over its individual members, who could also be coerced into putting themselves at their communities’ disposal (Veiter Reference Veiter1938, 216–217).

Volksschutzgesetze experienced varied reactions in the German-speaking press. The liberal Bohemia (April 29, 1937) emphasized the features deemed compatible with its outlook, particularly points common to the earlier autonomist proposals by the liberal politicians Bruno Kafka and Ludwig Spiegel, as well as the visible legacy of the pre-war ideas of the Austrian Social Democrat Karl Renner. In particular the absence of any reference to race was pointed out, which according to the newspaper implied openness towards Bekenntnisdeutschtum (identification with Germandom by individual choice) – a matter of great relevance to Bohemia’s largely Jewish readership. On the other hand, the previously outlined illiberal traits that distinguished the SdP proposals from previous modern examples of NTA were explicitly considered as virtues by bulk of their supporters both within and outside Czechoslovakia. In particular this applied to the great degree of attention and support that they enjoyed within the framework of the German minorities’ representation in the Association of German National Groups in Europe (Verband der deutschen Volksgruppen Europas) and the European Nationalities Congress (ENC). The ENC´s unofficial mouthpiece Nation und Staat devoted an entire issue to them. They furthermore enjoyed considerable resonance in the political and scholarly press in the German Reich.

The same illiberal traits, recognized as virtues by supporters provided the main grounds for critique by their opponents. Emil Sobota, the Czechoslovakia’s leading legal expert on the nationalities question needs to be particularly pointed out in this regard. He wrote a series of expert opinions for the government and in 1938 also published a book “National Autonomy in Czechoslovakia?” (Národnostní autonomie v Československu?), offering a direct critique of the Volksschutzgesetze, in which he singled out all those features that made them incompatible with the liberal state. While the SdP bills were swiftly rejected by the Steering and Constitutional Law Committees of the Czechoslovak House of Representatives (Tóth, Novotný, and Stehlík Reference Tóth, Novotný and Stehlík2012, 367) and the Parliament kept postponing their discussion (Wiskemann Reference Wiskemann1938, 259), they received a wide resonance in both Czechoslovak and foreign press. The public debate reached its height in the autumn months of 1937 and prolonged itself well into 1938.

The 1938 Autonomist Demands: Karlsbad Demands and Skizze

In the meantime, major moves took place on the stage of European politics. Hitler’s proclamation of Germany as “protective power” for all the ethnic Germans, followed by annexation of Austria in March 1938, unleashed a fresh wave of nationalism among the Sudeten Germans, simultaneously making SdP their uncontested representative by virtually eliminating competition, except for the weakened Social Democrats. At least since November 1937 (Brandes Reference Brandes2010, 50) Henlein had been working hand in hand with Hitler, subordinating his movement to the strategic goals of the Reich. For this same very reason, the further autonomist demands presented during 1938 and negotiations that accompanied them are primarily to be seen as an instrument for pressuring the Czechoslovak government with the true ultimate goal of secession. Announced by Henlein at a party rally in Karlsbad/Karlovy Vary in April 1938 in form of eight points, the demands were thoroughly elaborated in a secret memorandum presented to the Czechoslovak government in June of the same year under the title Sketch for the reconstruction of the internal order of the State on the basis of the Eight Points, set out by Konrad Henlein, leader of the Sudetendeutsche Partei in his speech on April 24^th, 1938, at Karlsbad. Footnote ¹¹

The demands sparked the beginning of intensive negotiations between SdP and the government – ultimately involving president Beneš himself – that lasted throughout the summer and involved a number of counterproposals by the government side. With Henlein receiving instructions from Berlin and closely coordinating the activities with the foreign policy of the Reich, the negotiations shattered, although in the end the Czechoslovak side agreed to virtually all of the Sudeten German demands. The ensuing crisis resulted in the Munich agreement between the great powers, forcing Czechoslovakia to cede its compactly settled German territories to the Third Reich. The tactical nature and geopolitical conditioning of the 1938 autonomist reform plans however did not mean that their creators within and beyond the SdP ranks did not invest considerable efforts and theoretical resources into developing them. While at least some of the key protagonists may not have been fully aware of the extent of Henlein’s dealings with Hitler and their actual agenda, their proposal, a plan obviously unacceptable to the Czech politicians, presented an elaborate product, drawing from multiple sources of legal and historical knowledge.

The Karlsbad demands were presented as a program, aiming at implementing the principle of equality (Gleichberechtigung) to all the nationalities of Czechoslovakia.Footnote ¹² They contained both explicit territorial and non-territorial demands. While the former was clearly expressed through Point Three demanding “demarcation and recognition of German national territory,”Footnote ¹³ the Point Two and Point Five put forward clearly non-territorial demands: “recognition of the Sudeten German national group as a legal subject, in order that its equality in the state should be safeguarded” (Point 2)Footnote ¹⁴ and “creation of legal safeguards for those Sudeten German citizens who live outside the closed settlement area of their national group” (Point 5). The eighth point thereby also demanded “full freedom of confession to the German nationality and the German world-view,”Footnote ¹⁵ by which adherence to National Socialism was meant (Osterkamp Reference Osterkamp2009, 230). In the beginning of June Ernst Kundt presented the Czechoslovak prime minister with a formalized and more elaborate plan for reforming the state in the spirit of “national equality” (Brandes Reference Brandes2010, 195). Skizze put forward the Karlsbad demands in a more systematical way, explaining each of the points and presenting a full scheme for re-organizing the state and creating organs of national autonomy on all administrative levels. At the same time, it was put in more moderate wording than the Karlsbad demands, leaving out all references to National Socialism.Footnote ¹⁶

The reorganization of the state was to proceed via constitutional and ordinary laws that would have institutionalized the division of the state citizenry (the sovereign “Volk”) into individual national units – “nations and national groups” (Völker und Volksgruppen), simultaneously ensuring that this system could not be changed via outvoting.Footnote ¹⁷ The national units as the basic components of the “sovereign Volk” were to constitute legal persons, comprising all the members of each nationality residing within the borders of Czechoslovakia. In contrast to the undefined provisions of the Volksschutzgesetze, the new proposal was elaborate, clearly outlining the division of powers between the state government and the organs of national autonomy. Out of the three government branches, only the judicial was to be kept unified, whereby national sections were to be established on its higher levels, including the constitutional court.Footnote ¹⁸ The legislative and executive branches of government were to be divided between the organs of state and those of national self-rule.Footnote ¹⁹ The legislative power would be divided between the central parliament as a whole and the national sections (curiae) within it. Each of these would simultaneously build a separate National Representation (Volksvertretung) for its own nationality, authorized with normative powers in all the areas that were to be constitutionally conceded to the national groups alone. Each National Representation would elect a Chairman (Vorsitzender der Selbstverwaltung), that would also be given a ministerial position in the state government. As the supreme holder of executive power within the national self-rule, the Chairman was simultaneously to act as the head of the autonomous national government, the Directory (Direktorium der Selbstverwaltung), whose members he was to personally pick. Ministries of Health, Social Policy, and Education were to be dissolved with their powers fully transferred to the organs of national autonomy. Within their Directories Supreme Offices of Self Rule (Oberste Selbstverwaltungsämter) were to be created and function as ministries responsible for education, social policy, economy, agriculture, etc. All other government ministries, except for defense, foreign policy, and finance were to be sectionalized on the basis of nationality. In the latter two, arrangements to represent the special economic interests of the individual national territories had to be secured.

In addition to division of the central powers between the state and the nationalities, the division was to take place on the lower administrative levels as well, resulting in establishment of territorial national self-rule. This was to take place on the municipal, district and provincial level. While the end-version of the proposal, keeping with the established administrative order, lacked the administrative level of “national areas” (Volksgebiete) unifying all the territorial units belonging to a particular nationality that had been present in one of its earlier drafts, it foresaw the establishment of autonomous national administrations on the provincial level. Thus, in Bohemia power would be divided between the provincial state authorities and the Czech and German national provincial self-governments. These, headed by an elected Provincial Governor (Landeshauptmann) and consisting of national Provincial Committee (Landesausschuss) and Provincial Assembly (Landesvertretung) would autonomously rule over the Czech and the German parts of the province respectively, consisting of districts and municipalities belonging to the given nationality. There the administration would be entirely in the “national hands,” amounting to full territorial self-rule, also encompassing state tasks on the lower administrative levels. At the same time, the competences of the national provincial self-government in exclusively national matters would pertain to all the members of a given nationality residing in the province, regardless of location, and would thus be non-territorial:“Insofar as the powers of the national self-governments are based on the personal principle, the authority of the national provincial administrations extends to all the citizens of a given nationality in Bohemia.“Footnote ²⁰ While each national self-administration would use only its own language, reciprocal minority language rights would be secured for the national minorities, whereas for Prague special provisions would be instituted that would express “the fact, that the town of Prague belongs to all nations and national groups living in Czechoslovakia.”Footnote ²¹

The Dynamic between the Territorial and Non-territorial Approaches and the Völkisch Conception of National Autonomy

In order to answer these questions, we must first look at the Volksschutzgesetze as an ostensibly “pure” case of NTA and question their purely non-territorial character. Did the personal principle truly stand at its core? Formally speaking, beyond doubt: the legal proposition itself, its wording and its logic were unambiguously non-territorial and absent of any references to territory. The same applies also to the great majority of arguments put forward by various party-internal and external supporters of the bills, both in theoretical discussions and in the political debate.Footnote ²² Whereas most of the contemporaries, including the proposers themselves, treated the Volksschutzgesetze as essentially non-territorial, the verdicts among historians have varied. Here, the assessment of Peter Haslinger is particularly worth pointing out. Contrary to many others (Majewski Reference Majewski2014, 346; Tóth, Novotný, and Stehlík Reference Tóth, Novotný and Stehlík2012, 408; Petráš Reference Petráš2009, 250; Habel Reference Habel2003, 365), Haslinger (Reference Haslinger2010, 117) designated the SdP demands as basically territorial, although nominally resting on the personal principle. Given that nothing within the bills themselves points in such direction, this position appears salient only if the possible unstated agenda and potential end-goals are drawn into calculation. The centrality of values such as “homeland,” “soil,” and “ethnic border” for the SdP, at which we have already pointed, indeed hardly speaks in favor of possibility of its ultimate aim being solely non-territorial autonomy.

Broadening of the perspective along these lines indeed brings forward solid indications that the actual considerations behind Volksschutzgesetze may have differed from the way they were formulated and might have included de facto territorial aims. The proposers’ efforts to demonstrate the supposed compatibility of the bills with the Czechoslovak constitution and state structure speak for themselves. The main official proposer and probable co-author of the bills Ernst Kundt as early as 1936 rhetorically asked the Czechoslovak Prime Minister, who had stated that autonomy was out of question: “You are speaking about territorial autonomy, but we know very well that there is a different kind of autonomy. Must it necessarily be territorial?”Footnote ²³ The lack of references to territory in the legal bills and their groundedness in the personal principle may thus also have served to give the impression of a “lesser” autonomy, a less “problematic” and “benign” solution along the lines of the Estonian Law on Cultural Autonomy and thus compatible with the Czechoslovak unitary state model.

This becomes especially clear, if we look at the claims put forward by legal experts standing close to the SdP after the bills had been presented. Their argument was that the Volksschutzgesetze represented merely implementation laws to the provisions already contained in the Czechoslovak constitution and its preamble. As Ernst Swoboda, a law professor at the German university in Prague and self-declared co-author of the bills (Osterkamp Reference Osterkamp2009, 202) put it, they served to realize the “leading thoughts” contained in the constitution (Swoboda Reference Swoboda1937, 574-575). The crucial argument thereby was that, aligning itself to the article 91, which referred to the freedom of association (allowing for creation of autonomous associations and determination of their spheres of discretion via special laws), and at the same time not making any references to territory the Volksschutzgesetz did not stand in conflict with the principle of (territorial) unity and indivisibility of the state.

Observed from this perspective, the reasons for choosing a non-territorial platform instead of a territorial one could well be interpreted as primarily opportunistic and practical, motivated by a search for a legal form that would at least ostensibly be in line with the Constitution. When observed within the broader context of SdP aims and in light of later statements by the protagonists, the Volksschutzgesetze might however also be interpreted as maximalist demands, or more precisely: demands with a maximalist potential. This potentially maximalist character can be seen both in the scope of envisaged self-rule, as well as the fact that the non-territorial foundations did not a priori negate the possibility of instituting territorial autonomy in nationally homogenous areas to achieve fullest extent of national self-rule. While not openly stated in the bills themselves, there are several indications that suggest the possibility of such unstated end-goals. Without making any explicit mention of territorial aims, Rudolf Schicketanz, the SdP legal advisor, publisher of the party daily Zeit and probable co-author of the billsFootnote ²⁴ argued that they were not “autonomist proposals in the ordinary sense.” Rather, they aimed to create a basic platform, on which “self-rule or autonomy of all the nationalities can be built.”Footnote ²⁵ Rudolf Sandner similarly described the recognition of the national group as a legal person as “the first and decisive step.” It was however “no secret” where “our demands aimed in the end result”: “We continue to believe that the internal affairs of the state can ultimately only be stabilized by granting self- rule to the nations that live in the state and are compactly settled” (Die Zeit, December 2, Reference Sandner1937). The proposer of the first Volksschutzgesetz Kundt went even further and explicitly stated the possibility for eventual territorial enhancement. After listing the wide range of competences that would have been left at discretion of the national associations, he wrote that after being instituted, their performance was going to show whether the state in future “by democratic-parliamentary means” and “through supplementary laws” could transfer “additional elements of autonomy to the individual nations, including the possibility of territorial self-rule” (Kundt Reference Kundt1937, 556).

Such a possibility for potential further arrangements of territorial nature appears particularly realistic when we consider the rising support for SdP among the German-speaking population, which was at that point already a hegemonic one. For the same very reason, the Czechoslovak authorities had been postponing the local elections as much as possible. When these finally took place in May 1938, the Sudeten German Party won around 90% of German votes (Brandes Reference Brandes, Kruse and Sabine Brenner-Wilczek2005, 233). Practical hegemony on local level in compactly German speaking areas, resulting in factual rule over large territory via local administration by one single party, which would simultaneously comprise the Board of a legally instituted national association representing all Germans in Czechoslovakia, could have indeed resulted in a maximalist arrangement: a de facto territorial rule on a non-territorial legal platform. The potentials of achieving hegemony on the local levels for national self-rule were furthermore discussed by supporters of the SdP demands both in 1937 (Hugelmann Reference Hugelmann1937, 567) and 1938 (Wild Reference Wild1938, 267).

What had been implicit to the 1937 demands as an unstated potential turned into a stated demand in those of 1938. The so-called Karlsbad points and their further elaboration in Skizze contained a maximalist program that combined territorial and non-territorial forms of autonomy. The two elements and their underlying principles intertwined in a way that aimed at the highest possible extent of self-rule that a national group may possess within a multinational state, ensuring that none of its members would be left out, regardless of their place of residence within the state territory. On the first sight, this appeared as an extensive form of territorial autonomy with a personal “supplement” for those Germans that lived scattered. Practically speaking, it is well possible to argue that this is what the Sudeten German Party had been aiming at from the beginning and also what would have been practically institutionalized, had the new legislation been adopted. Especially if observed through the rather common lens assuming the NTA as the necessarily “lesser” form of autonomy, such an interpretation may be arrived at quite naturally. By “lesser” we mean a form of autonomy which gives less self-rule to the national group, simultaneously also having a lesser impact on the integrity of the nation state. If observed from such angle, the maximalist character of the SdP demands indeed appears to have been defined by their fully revealed territorial potential.

If, however, we adopt a different perspective and concentrate on the inner logic of the SdP demands and their theoretical underpinnings, a different kind of dynamic between non-territoriality and territoriality comes to the fore. A closer look of this kind reveals an essentially non-territorial foundation, on which the entire edifice rested, reflecting a rather clear line of continuity between the Volksschutzgesetze and the Skizze. In both cases it was the constitution of the national group as a legal person, based on a national registry encompassing all the members of a given nationality that stood in the basis, acting as the first and fundamental pre-condition for autonomy. As Werner Hasselblatt (Reference Hasselblatt1937, 564) put it in regard to the Volksschutzgesetze: “united by the national association on the basis of the cadaster, the Volkspersönlichkeit is thus represented through personal law [personalrechtlich dargestellt].” In Skizze this fundamentally non-territorial concept was further upgraded with territorial arrangements, what had already been announced by Kundt in his speech immediately preceding the announcement of the Karlsbad demands: “The reorganization of the state must bebased on the national cadasters of the organized Volkspersönlichkeiten and the legal recognition of ethnic borders [Volksgrenzen].”Footnote ²⁶

Both Volksschutzgesetze (implicitly) and Skizze (explicitly) namely foresaw transformation of Czechoslovakia not only into a multinational state but into an ethnic federation. The goal was however not a federation of territories but one in which the nations themselves were to constitute the federal units, which was to be done on the basis of the personal principle. In case of the 1938 demands all this was explicitly stated: the explanations to the Karlsbad points specified their goal to be the actual implementation of the “principle of equality” to all the nationalities of Czechoslovakia, for which the “transformation of the Czechoslovak national state into a common state of all nations [Völker] and national groups [Volksgruppen] (federal state)” was necessary.Footnote ²⁷ The legal personality of the state (Staatspersönlichkeit) thus consisted of legal personalities of individual nations (Rechtspersönlichkeiten der Völker), which “encompass and represent all the members of the same nationality living in the state.”Footnote ²⁸

While already present in the program of Karl Renner (Reference Renner1899, 11, 19) the constitution of nationalities as persons of public law had been a recurring demand raised within the interwar movement of European national minorities. In its liberal forms it aimed at securing collective cultural rights on a voluntary basis and facilitating transborder cultural cooperation without challenging the existing order of nation states. In case of the Sudeten German Party it however entailed substantially more than a demand for a legal recognition of national communities as voluntary associations of an essentially cultural character. It aimed at transforming the “democratic-individualistic state into a national-cooperative one” (Osterkamp Reference Osterkamp2009, 202), a non-territorially conceived union of largely self-ruling national communities with corporative inner structure and based on a binding and essentializing 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 program both in its scope and type. For the same reason it is not surprising that the critique from the side of Czechoslovak constitutional and legal experts and officials from the Ministry of Justice went foremostly against its rootedness in the personal principle.Footnote ²⁹

The essential subordination of the individual to the national group, expressed via lack of accountability of the national associations towards their members was coupled with unclear delimitation of competences between the national associations and the central government. In the Austromarxist writings the latter had been clear cut: while the organs of national autonomy were to deal with cultural and educational matters of the respective nationality, the central parliament was to decide on matters of common good, important to all citizens, regardless of their nationality – or what Renner had referred to as “the state-building interests and factors” (Renner Reference Renner1899, 25–26). In clear analogy with a secularist argument, the ultimate aim was to de-nationalize the central institutions of the state via institutional separation between matters of particular nations (conceived as essentially cultural entities) and those of the common state. In a similar vein, concepts of national cultural autonomy that originated within the European Nationalities Congress – in particular those developed by Paul Schiemann – were framed. While by no means aiming to de-nationalize the young Estonian nation state, the 1925 Estonian Law on Cultural Autonomy, also essentially operated along the lines of divorcing the particularly national matters, confined to the sphere of culture and education, from the common matters of state politics. In all the listed cases national affiliation was furthermore a matter of free individual decision.

The listed illiberal traits of the Volksschutzgesetze that equally distinguished the Skizze (involuntariness concerning national belonging, scope of self-rule, lack of accountability) at the same time acted as the distinguishing marks of the illiberal adaptation of non-territorial autonomy of a völkisch type. The already mentioned Veiter, for whom personal autonomy represented the genuine form of autonomy (Veiter Reference Veiter1938, 59), deemed the Volksschutzgesetze “the hitherto most perfect legal form of national autonomy that best befits the nature of the nation and the state” (Veiter Reference Veiter1938, 221)^. The foreword to his extensive study on national autonomy published in early 1938 stated that the book stemmed from a “basic attitude” that was new and consciously separated the notion of national autonomy “from democratic slogans of a bygone era” (Veiter Reference Veiter1938, 5). As we shall see later, both the illiberal defining traits of the völkisch reconceptualization of national autonomy and its basic non-territorial underpinning were closely linked to a specific völkisch understanding of nationality that lay at its heart.

The key feature of the völkisch variant of national autonomy and the underlying nationality conception, distinguishing both the 1937 and 1938 SdP demands, was that the federated nationalities were perceived as the basic carriers of political sovereignty. In his already mentioned speech in April 1938, Kundt thus demanded recognition of the nationalities of Czechoslovakia as “personalities [Gesamtpersönlichkeiten] in public law” and as such “the only bearers of political will and popular sovereignty, from which the sovereignty of the state derives.”Footnote ³⁰ The relationship of these fundamentally non-territorial entities towards national territory was one of owners towards their property – or, as Kundt put it:

The Two Intellectual Sources

In order to gain a better insight into the inner logic of the SdP autonomist conceptions, the inherent interplay between territoriality and non-territoriality and the primacy of the non-territorial element, it is prudent to first try to trace the latter’s origins and the path that had brought it there. What primarily interests us are the “principal minds” in the background – intellectual mediators that had facilitated its travel and adaptation. It is furthermore also pertinent to ask whether recourses to the Austromarxist theoretical concepts, had played any role and to what extent. From this perspective, two main intellectual streams can be identified, which had crucially informed the SdP autonomist conception and its non-territorial underpinning. It is simultaneously important to note already at this point that some of the probable co-authors of Volksschutzgesetze and Skizze from the leading SdP circle such as Ernst Kundt, Wilhelm Sebekowsky, and Hans Neuwirth had been linked to both of these streams. Perhaps not developers of original ideas but rather their second-hand dealers, these same men acted as the main protagonists in publicly promoting the 1937 bills – Kundt also having officially proposed two of them in the Parliament – as well as in negotiating the 1938 demands with the Czechoslovak government.

The first of the mentioned streams developing within the Sudeten German Party itself, whose understanding of nationality demonstrated clear preponderance of non-territoriality. In particular this pertained to the ideas of the Kameradschaftsbund (KB), an elitist society of young nationalist intellectuals, which at least up to 1937 represented the leading and most influential circle in the SdP and among other included Sebekowsky, Neuwirth and Kundt in its broader ranks. Inspired primarily by the universalist philosophy of the Viennese professor Othmar Spann, their ideas revolved around the notions of a decentralized, corporatist, holistic, and hierarchically organized “organic state” and that of the Sudeten German “tribe” – Stamm or Stammeskörper. While the former was modelled on an idealized image of a medieval German Reich, organically binding multiplicity of nationalities in a hierarchical way and giving them room for “fully developed self-rule” (Brand Reference Brand1933, 17), the latter stood for a special body within the German nation, embodying “German nature in a special way” that corresponded to the Sudeten uniqueness (Brand Reference Brand1935a, 6) and having a special historical mission of mediating between Germandom and Czechdom (Cornwall Reference Cornwall2012, 188–189).

The antimodernist, backwards looking ideology of the Kameradschaftsbund, seeking examples in a mythicized past entailed a holistic and organicist approach towards various spheres of human life, also reflecting in categorical rejection of most of the modern political concepts. This also pertained to the analytical distinction between territorial and personal autonomy. Instead, they envisaged it in terms of “complete autonomy” (Gesamtautonomie), as “a form of statehood especially suited to the particular national group [eine der Volksgruppe arteigene Staatlichkeit]” organically binding elements of both (Heinrich Reference Heinrich1931, 139). In the words of Walter Heinrich (Reference Heinrich1931, 140), a prominent KB ideologist and developer of the “organic state” theory, “the question, whether the principle of the personal or the territorial autonomy should be chosen” was only of secondary importance: “The highest principle is: the national bodies [Volkskörperschaften] are the carriers of [national] life [des Eigenlebens] – whose all-round development can be understood as Gesamtautonomie.” While the notion of Volkskörperschaft clearly expresses the basic non-territoriality, the Gesamtautonomie simultaneously provides a possible key towards understanding the inevitable intertwinement between both organizational and legal principles within the ideology of the SdP.

In contrast to the “homegrown” particularist ideas of the KB, centered on the specificity of Sudeten German “Stamm” and the Bohemian framework, the second stream stemmed from the international arena of minority activism. It was foremostly the European Nationalities Congress (ENC), a pan-European non-governmental organization, representing national minorities, where intellectual exchange between minority politicians and activists and legal experts engaging in nationality law took place. After 1933 the ENC underwent a transformation from a profoundly international and predominantly liberal forum into an instrument of German nationalist and revisionist foreign politics, which also reflected in the ideas and discourses promoted within its framework. This coincided with the virtual dominance in the German ENC representation by the Sudeten German Party members from 1935 onwards. Involvement of all the key protagonists in the ENC, along with their claims that the Volksschutzgesetze provided a general template for solving the European minorities’ question, reflecting “insights of all the previous European Nationality Congresses” (Kundt Reference Kundt1937, 552), directly hints at the possibility that they were a product of a broader endeavor, in which the German experts on nationality law (Nationalitätenrecht, Volksgruppenrecht) 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 Reference Wheatley2017, 777).

Hans Neuwirth, one of the later key protagonists in promoting the SdP autonomist demands and negotiating with the Czechoslovak government – as well as possible co-author (Luh Reference Luh1988, 279; Novák Reference Novák1987, 125) – held a speech at the 1936 European Nationalities Congress, which reflected this agenda clearly. The new nationalities law, Neuwirth (Reference Neuwirth1936, 19) argued, was supposed to be “fundamentally different […] from what the minority treaties are today” and rest on the legal recognition of the “given ethnic groups as Volkspersönlichkeiten” (Neuwirth Reference Neuwirth1936, 15). While not necessarily linked to “a question of changing the territorial status” this inevitably implied new “forms in state law and also in intergovernmental law,” Neuwirth (Reference Neuwirth1936, 14) emphasized. “New nationalities law” was also a term explicitly used in a document that had originated within the SdP Office for Nationalities and League of Nations Affairs [Amt für Nationalitäten und Völkerbundfragen] ^{Footnote 32} and aimed at substituting the existing minority treaties and providing an all-encompassing, binding system for entire Europe.Footnote ³³ Most striking in this document was the similarity to the main principles, provisions and even wording of the Volksschutzgesetze. There were also a couple of notable differences, including an explicit mention of the possibility for territorial autonomy, should certain conditions be fulfilled. The fundamental significance of Volkskörperschaft and Rechtspersönlichkeit however revealed a clearly non-territorial basis and the same inherent logic that was at play in the later SdP autonomist demands.Footnote ³⁴ The summit of SdP dignitaries [Amtswaltertagung] taking place in June 1936 in Eger/Cheb demanded to adjust the nationality law to the effect that recognized “the national groups and their responsible leaderships as a whole […] as Volkspersönlichkeiten.”Footnote ³⁵

Same kinds of arguments could also be found in the explanations by Kundt (Reference Kundt1936, 85–95) who later claimed that the Volksschutzgesetze provided a general platform for accommodating national diversity, relevant for all states and containing principles for “a just international order” (Kundt Reference Kundt1937, 559). Apart from being the main protagonist during 1937–38 dealings, Kundt had also been active in the framework of the international minority movement, representing the Sudeten German group in the Verband der deutschen Volksgruppen Europas, serving as a board member in the German League of Nations Union and taking part in the European Nationalities Congresses. Moreover, he also served as the director of the Deutschpolitische Arbeitsamt, a non-partisan organization of all non-Marxist German parties in Czechoslovakia, whose purpose was to coordinate their politics, particularly in the field of international minority complaints and participation in international forums (Neuwirth Reference Neuwirth1962, 143).

One of the key developers of the “new nationalities law,” who in our opinion crucially influenced the content of the SdP demands at the same time fulfilling an important mediating role, was Hermann Raschhofer. An expert of nationality law from the University of Göttingen, Raschhofer demonstrated a strong and lasting attachment to the Bohemian lands and a profound interest in the nationalities question there. Persistently engaging for the Sudeten German cause he had been acting as a legal advisor to the SdP leadership at least since 1934,Footnote ³⁶ wrote in open support of Volksschutzgesetze (Raschhofer Reference Raschhofer1937a, 536–549), and was present at the sessions of the SdP working committee for the nationalities statute during the 1938 negotiations with the Czechoslovak government. A look into his theories of nationality law and his conceptualization of Volkspersönlichkeit moreover reveals notable similarities and common points with the basic tenets of the SdP autonomist demands. The crucial commonality thereby lay in both the relationship and dynamic between the territorial and non-territorial elements – that is the territorial and the personal principle. In Raschhofer’s autonomy conception, the latter acted as fundamental and the former as potential addition, should the specific circumstances allow for and demand it. If the conditions were favorable enough – as in case of Sudeten Germans for instance – territorial autonomy may be introduced as a higher, more developed form, which however does not negate the non-territorial basis. The constitution of a collective body, comprising all the members of a given nationality, regardless of their place of residence within state borders, would always be there as the primary and basic form. This was the case because nationality law as such was something essentially non-territorial:

Raschhofer had for a longer time been an advocate of non-territorial autonomy and as early as in his 1931 monograph on the nationality law wrote that “lacking compact territorial settlement can not be a sufficient reason for denying the constitution of a nationality as a legal body” (Raschhofer Reference Raschhofer1931, 61). For that same very reason, he stressed the necessity of introducing institutions such as national registries and national electoral classes in multinational states (Raschhofer Reference Raschhofer1931, 79, 132–134, 155). Raschhofer’s monoghraph furthermore made direct references to Renner and Bauer, especially the former, whom he extensively cited, also pointing out important parallels between his own and Renner’s theories (Raschhofer Reference Raschhofer1931, 81–82, 145). He moreover made numerous, mainly positive references to the old Austrian national compromises, particularly the Moravian one, which he deemed “the hitherto most complete design or arrangement [Ausgestaltung] – of the nationality law” (Raschhofer Reference Raschhofer1931, 81).

On the other hand, Raschhofer however deemed the pre-war compromises a half-way solution, stressing the need for a more developed nationality law that would have provided all the nationalities in multiethnic states such as Czechoslovakia with a fair amount of “national political agency [volkspolitische Handlungsfähigkeit]” (Raschhofer Reference Raschhofer1938, 90–91). In the core of his legal theory namely stood the pseudo-Rousseauan notion of “sovereign Völker,” entities of essentially political character, whose existence came before those of states. It was thus Volk as ethnos and not Volk as demos (Staatsvolk), that 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 Reference Raschhofer1938, 90). While in mononational states the two conceptions of Volk largely corresponded to each other, this essentially meant that the multinational one consisted not of one sovereign Volk, but of a number of sovereign Völker. This approach largely corresponded to the principles guiding the Volksschutzgesetze with their omnipotent national associations, as well as the explicit framing of the Karlsbad demands/Skizze in terms of a federation of nationalities. Encompassing the entirety of co-nationals, regardless of their place of residence, the sovereign Völker also acted as essentially non-territorial entities – subjects, which were not territorially ascertainable (Raschhofer Reference Raschhofer1931, 78). Essential elements of “Raschhoferian” approach were clearly present in both Kundt’s considerations about national autonomy,Footnote ³⁷ as well as those by Sebekowsky (Rundschau, March 27, Reference Sebekovsky1937).

The Notion of Volkspersönlichkeit and the Thought of Max Hildebert Boehm

Common to both intellectual streams was however an underlying basic understanding of nationality, which was an illiberal, völkisch, and organicist one. The same kind of nationality conception was also held by the SdP and lay at the heart of its autonomist scheme along with its basic non-territorial underpinning. It conceived the nation as special “being” (Wesen) with own “soul,” “purposes,” and “will” – or in the words of the key KB ideologist Walter Brand (Reference Brand1935b, 11) a “living whole” with “vital necessities and natural vital rights” of its own. A collectivity which is in itself and for itself substantially more than a sum of its members, whose individual rights and interests are furthermore fully subordinated to those of the group.

Particularly important from this perspective was the notion of Volkspersönlichkeit, a recurring concept in both the KB thought and the discourse linked to the new nationality law. At the same time it had from its very inception formed part of the SHF/SdP rhetoric, occupying a prominent place in Henlein’s speeches (Reference Henlein1937, 9–10; Reference Henlein and Tscherne1939, 17–18). Moreover, the Karlsbad demands themselves were presented as a logical outcome of the modern Czech-German problem that had commenced in the year 1848 when the two competing Bohemian nations “crystallized and consolidated” into “conscious Volkspersönlichkeiten.”Footnote ³⁸ The notion was also employed in Skizze, which aimed at securing the “rights and freedoms of the Volkspersönlichkeiten themselves, amongst each other and vis-à-vis the state as their shared legal association.”Footnote ³⁹

Whereas in the language of romantic nationalism Volkspersönlichkeit had commonly referred to the “national character,” the expression of the “national soul” through language, culture, art, mentality, morality and legal sense, its interwar conceptualizations within völkisch discourse entailed more substantial meanings. Referring to the ethnic group itself, conceived as collective personality. Comprising the entirety of kin, regardless of their spatial location within the state territory, it acted as a comprehensive, “all-encompassing,” and self-enclosed entity (Wesen) (Cf. Raschhofer Reference Raschhofer1937b, 372–373). Most importantly, it was an active agent in history, or as the leading völkisch theoretician of the time, commonly seen as the “pioneer,” who anticipated ethno-politics (Haar Reference Haar2000, 27), the sociologist Max Hildebert Boehm (Reference Boehm1932, 308) had put it: “Volkspersönlichkeit itself is a principle of historical life.”

Centering around the notion of “independent Volk,” Boehm’s theories, had an enormous influence on the interwar völkisch thinking. Together with the ethnographer Karl Christian von Loesch Boehm in 1925 co-founded and afterwards led the “Institut für Grenz- und Auslandsstudien” in Berlin, whose activities were directed at challenging the post-WWI nation state order in East Central Europe, informing the work of numerous German-speaking legal theoreticians and minority politicians across the region. Both Boehm and Loesch politically counted among “traditionalists” from the “young conservatives” camp. Both however also turned Nazi fellow travelers after Hitler’s takeover of power, adjusting their theories accordingly (Cf. Korb Reference Korb2014, 189 and Postert Reference Postert2015, 36) – a pattern equally distinctive for legal scholars such as Veiter (Behal Reference Behal2010, 9) or Raschhofer, who had served as Boehm’s assistant during 1928–30.

Counterposing the “state principle” with the “ethnic principle” (das volkliche Prinzip), Boehm conceptualized the Volk as an entity of essentially political nature, “independent, politically and historically active agent [eigenständige, in die Politik und Geschichte hinwirkenden Wesenheit]” (Boehm Reference Boehm1932, 9), which was at the same time primordial and whose organization was more fundamental than that of the state. It was the ethnic nations and not states that acted as the primary agents in European politics and Loesch therefore called for the “recognition of nations [Völker] as Volkspersönlichkeiten and as such as the natural basis of the new Europe” (Loesch Reference Loesch1926, 50 in Salzborn Reference Salzborn2005, 67). At the same time such a conceptualization of nationality was marked by a clear preponderance of non-territoriality and fitted much better with the personal than with the territorial principle. Boehm himself openly recognized this as early as 1934 writing that “notwithstanding their Marxist shortcomings [trotz ihrem marxistischen Pferdefuß], the merit of Renner´s and Bauer´s ideologies […] lies in the fact of having clearly demonstrated the inadequacies of territorial generic solutions [territorialer Patentlösungen]” (Boehm Reference Boehm1934, 766).

Boehm’s theories had widely resonated among both Volksgruppenrechtler and German minority activists around East Central Europe, leaving a lasting imprint on their nationality discourse. Sudeten German völkisch movement of the 1930s, stressing the political primacy of the Volk towards the state, from which the SdP had originated as its political representation, was no exception here (Cf. Nittner Reference Nittner1984, 344). A letter sent by the SdP Amt für Nationalitäten und Völkerbundfragen to Hasselblatt in November 1935Footnote ⁴⁰ thanking him for sending them a copy of “Das eigenständige Volk” thereby confirms that SdP was familiar with Boehm’s theories as early as 1935 and that the channel through which they acquainted themselves with them had been the international networks of minority activism.