Nation and Nationalities Using the Example of Austria in Past and Present
Professor Herbert Schambeck
People’s mutual commitment to one another and their interaction with one another is determined on an intellectual, territorial and imperial level; it leads to spiritual community in an area that is defined by an order which establishes the state. The latter is the autonomous sovereign entity that prevails over the individual and the community and fulfils the supreme function.
Based upon this mutual commitment to one another and interaction with one another, the awareness for a certain individuality that is typical of a people is developed and receives its character in the respective underlying rationale which creates a nation – a term which, in its meaning, goes back to the Latin word nasci, i.e. “being born”.
The term “nation” expressed a dynamic resolve, which has developed into a guiding force in public life and shaped the character of the state. In the 17th century after the Thirty Year’s War, it was the driving force in politics; it accompanied the community of peoples and in the order of states it also found its expression in the term “nation state”.
These nation states were characterised and established based on the different concepts of a nation. Culture, religion, language and territories were determining factors for the individual nation. The term was thus understood both in the broader and in the narrower sense. It was understood in broader terms in the concept of the Holy Roman Empire of the German Nation, which encompassed many states and territories and also created a legally normative foundation for nation states. When the Habsburg Emperor Francis II renounced the German imperial crown this concept dissolved in 1806, and a new order of nation states evolved especially after the 1815 Congress of Vienna. Following Napoleon’s reign, a common feature of these nation states was then the struggle for liberation from foreign rule and the quest for sovereign statehood.
This quest for sovereign statehood was accompanied, in Austria, most noticeably around the middle of the 19th century and as of 1848 by the quest for democratic policy-forming and decision-making in the state and respect for the rule of law. Democratic, legislative, constitutional, imperial and territorial principles were thus combined with people’s mutual commitment to one another and their interaction with one another; earlier pluralisms of state order dissolved. In his paper “Von der Französischen Revolution zum Wiener Kongress: Die Umwälzung und Neuordnung Europas und die Entstehung der ‘Nation’ als politischer Leitbegriff”, Wolfram Siemann noted that in contrast to the outdated empires, “the type of united nation state encompassed … the clearly defined territory of the state …, the internal focus of law, administration, economy, education and language, rather than multi-nationality … the homogeneity of the nation, instead of composed statehood … the bureaucratic institution state which is organised from top to bottom in a hierarchical and rational manner as well as instead of occasional long-term creation … the modern nation state of the 19th century as the result of a major collective effort in war”. Siemann notes a “composite statehood” expressed in “symbolism of power we find very difficult to decipher”.
This type of rule was the monarchic system of state and thus represented by monarchs. This is particularly well reflected by the Habsburg monarchy that lasted 640 years and dated back to the 13th century, as well as by the German Empire. The Final Act of the Congress of Vienna signed in 1815 paved the way, provided guidance and was at the same time fateful for the respective state orders of the 19th and early 20th century, as the rulers of Germany, Emperor Wilhelm II, and of Austria, Kaiser Franz Joseph I, in the controversy with Russia, with the Western Powers and later Italy too, led their states in 1914 into the conflict of the First World War that claimed so many lives. Nations that were based on different constitutional law systems also found themselves in confrontation with these states.
The states that formed in the 19th century and especially after 1848 were not only characterised by one, but frequently by a number of ethnic communities. As Dieter Langewiesche stated, “in the vast majority of cases these so-called national states were in reality nationality states, since the alleged nation state encompasses several ethnicities, which in turn see themselves as nations”. Such differences may also lead to disparities, as was the case in the Habsburg Empire under Emperor Francis Joseph I when they led to disparities between Austria and Hungary during and within the Dual Monarchy, or to those between Austria and the Lands of Hungary of the Crown of St. Stephen but, however, not the Lands of the Crown of St. Wenceslas of what was later to become Czechoslovakia. In 1867 the developments brought about the Austro-Hungarian Compromise and a dualism in the context of which Hungary referred to territorial boundaries transcending current Slovakia as Upper Hungary.
Crossing borders, this Magyarisation spread into what was to become Romania and Yugoslavia; it contributed to the conflict that led to the First World War and subsequently, based on the Treaty of Trianon in 1919, led to the loss of a third of the then Hungarian territory.
The multi-ethnic state of the Austro-Hungarian monarchy was composed of Germans. Czechs, Slovaks, Romanians, Croats, Slovenians, Serbs, Magyars, Poles, Ruthenians (Ukrainians) and Italians. Between 1848 and 1916 they were all represented by Francis Joseph I as Emperor of Austria and King of Hungary. This monarch integrated and represented two states with a multitude of nations, whose dissimilarities led to contrarieties: those with the Serbs also played a decisive role in the start of the First World War. After losing the First World War, this multi-ethnic state with its monarchic form of government disintegrated in 1918. Out of the Austrian part of this multi-ethnic state, “the kingdoms and countries represented in the Imperial Council”, and following a change of the form of state and a diminution of its territory, arose the Republic of German-Austria with nine federal provinces that originated from the former Crown Lands.
During this period of change of both the form of government and the national territory, a continuity of constitutional law arose in one area of law, namely that of fundamental rights, inasmuch as the Basic Law of 1867 on the General Rights of Nationals in the Kingdoms and Länder (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger), Imperial Legal Gazette (RGBl.) No. 142 that formed part of the December Constitution – which, with its five basic laws (Staatsgrundgesetze) had been in force for the Austrian part of the dual monarchy since 1867 – was incorporated into the constitutional law of the Republic of Austria under Article 149 of the 1920 Federal Constitutional Law of the Republic of Austria (Bundes-Verf. Ges.).
There was a caesura between the Austrian part of the monarchy and the Republic of Austria, which ultimately led to the founding of a new state, which found its basis in the Federal Constitutional Law (Bundesverfassungsgesetz) of 1 October 1920. Although the form of government and the constitutional order of Austria had changed, fundamental rights were an expression of the continuity and identity of the constitution in the formal and material sense.
In contrast to the previous state, this Republic of Austria, which had evolved after 1918, was not characterised by multi-nationalities, but rather by a German-speaking nationality, alongside which there were recognised Slovenian and Croatian minorities.
In the Republic of Austria, Article 8 of the Federal Constitutional Law stipulates that the official language is German, and that Slovenes and Croats have a legal claim to the use of their language and are thus protected as minorities.
Today’s German-speaking population in Austria dates back to what remained of the Holy Roman Empire of the German Nation, and the federal provinces of this republic to claims to power as well as to Crown lands of the Habsburg Empire; the federal province of Tyrol, for instance, dates back to the princely counts of Tyrol.
There was no such direct connection between the later Czech nation and the subsequent states of Czechoslovakia, since Hungary did not tolerate such national sovereignty. The initiative for the establishment of this nation-state was already launched in confrontation with the Austrian Empire by Tomás Garrigue Masaryk and later by Eduard Benes, who also became heads of state of the Czechoslovak Republic in the interwar period of the 20th century. As individuals, they had thus become personal representatives of this nation.
The extent to which the nation’s concept shaped the Austrian multi-ethnic state became apparent on 16 October 1918 when Emperor Charles I called on the national political groups of the Imperial Council (i.e. the deputies that each nation had sent to the Imperial Council) to form national councils; an idea suggested by Hans Kelsen; this did, however, not occur since Austria’s monarchic form of government ended and the republic began. In this Republic of Austria, the term National Council (Nationalrat) has been used to the present day for the representation of the people in parliament.
Similarly, a term from the time of the monarchy is still used today, namely that of Hofrat (Court Councillor). Court Council was the designation for the central state administration for the Austrian hereditary lands up to the time of Empress Mary Theresia; later and up until the present time, this term has been used as a title for senior civil servants in the Austrian jurisdiction and administration.
This imperial manifesto of Emperor Charles I of 16 October 1918 successfully addressed only the German-speaking nation. While the other ethnic groups of the monarchic Austro-Hungarian multi-ethnic state moved towards independence and formed twelve separate states, the remaining German-speaking part moved towards establishing the new state of the Republic of German-Austria, in which context the Assembly of German-Austrian Deputies in the Lower Austrian House of Parliament (Niederösterreichisches Landhaus) in Vienna on 21 October 1918 and the resolution it adopted marked a ground-breaking move. The provisional constitution and the appointment of the State Council as the new government under State Chancellor Dr. Karl Renner on 30 October 1918 are also based on this assembly. In his Abdication Proclamation of 11 October 1918, Emperor Charles I relinquished all participation in the administration of the State, and on 12 November 1918 Austria was declared a democratic republic in the Law on the Form of State and Government (Gesetz über die Staats- und Regierungsform) (State Gazette 1918/5).
The year 1918 was marked on the one hand by a normative caesura as it witnessed the change in the form of state from monarchy to republic, while on the other hand it was characterised by a continuity in terms of the people who played a role, insofar as the Vienna professor of public law Dr. Hans Kelsen, who later became world-famous for his Theory of Law (Rechtslehre), was legal advisor to Emperor Charles Karl I at the end of the monarchy and legal advisor to Chancellor Dr. Karl Renner at the beginning of the republic. With its German-speaking population, this republic strove for an independent awareness of the state, which proved fateful for the interwar period in Austria.
At the beginning, this interwar period in Austria was affected and influenced by the Weimar Republic, which was formed with a new constitutionalism in Germany after the First World War: this influence on the constitutional law development of Austria was so strong that the Viennese public law professor Prof. Dr. Adolf Merkl, who contributed to developing the fundamental norm of Austria’s new state order, namely the Federal Constitutional Law of 1 October 1920 (Bundesverfassungsgesetz, B-VG), which established the Republic of Austria as a federal state, and who even described it as an ‘offer to the Weimar Republic not accepted under public law’, which was, however, never accepted and could indeed not be accepted since the State Treaty of St. Germain that was signed on 10 September 1919 and became effective on 16 July 1920, declared the independence of Austria inalienable in Article 88 after the name “German-Austria” too had been changed to “Republic of Austria”.
This Republic of Austria of the interwar period was characterized in its development by a democratisation of political life by parties with ideological principles and views of the world. This political plurality in Austria ended on 13 March 1939 with the occupation of Austria by Nazi-led Germany, which led to the Anschluss of Austria that claimed so many victims.
After the end of the occupation of Austria in the wake of losing the Second World War in 1945, an awareness of Austria’s comprehensive state responsibility developed in all nine federal provinces, which experienced a confrontation through the four occupying powers of France, Great Britain, Russia and the USA, giving rise to a new sense of national consciousness and identity throughout the entire territory of Austria, which was not directed against any other state or nation but was the expression of an attachment to one’s home country that was accompanied by peace efforts, which has led to social peace at domestic policy level through the representation of the social partners’ organised interests at the level of both employers and employees starting in 1945, and with the declaration of Austria’s permanent neutrality, the country has at foreign policy level sought to make a contribution to peace in the international community since 1955.
Understanding its history and its responsibility in the present has led today’s Austria to assume a mediating function between the West and the East in Europe, which has not given rise to geopolitical egoism but rather created an awareness of responsibility in solidarity, in line with Saint Augustine’s insight, “Pax est ordinata Concordia”: peace is a well-ordered concord.
In the international community of states, this well-ordered peace enables states to coexist and interact, recognising and understanding each other and each other’s values based on the law.
 Der neue Brockhaus, Lexikon und Wörterbuch, third volume, Wiesbaden 1971, p. 616; see also Die historischen Entwicklungen des Begriffes Nation (The Historic Developments of the Term Nation) in: Michael Metzeltin, Nationalstaatlichkeit und Identität, Vienna 2000, p. 111 ff and Georg Jellinek, Allgemeine Staatslehre, third edition, Darmstadt 1959, p. 116 ff.
 See Hagen Schulze, Staat und Nation in der europäischen Geschichte, Munich 1994, p. 209 f.
 Wolfram Siemann, “Von der Französischen Revolution zum Wiener Kongress: Die Umwälzung und Neuordnung Europas und die Entstehung der ‚Nation‘ als politischer Leitbegriff“ zur Debatte, Themen der katholischen Akademie in Bayern B 215 75F 1/2016, p. 2 f.
 Siemann, loc. cit., p. 3.
 Dieter Langewiesche, Nation, Nationalismus, Nationalstaat in Deutschland und Europa, Munich 2000, p. 226.
 Note Die Habsburgermonarchie 1848-1918, first partial volume 1, part 2, ed. by Helmut Rumpler, Vienna 2016, and Ernst Bruckmüller, Nation Österreich, sozialhistorische Aspekte ihrer Entwicklung, Vienna – Cologne – Graz 1984.
 See Die österreichischen Verfassungsgesetze, ed. by Edmund Bernatzik, Vienna 1911.
 State Law Gazette (StGBl) 1918, 5.
 Imperial Legal Gazette 1867, 141, 142, 143, 144 and 145.
 Federal Law Gazette 1920, I.
 See Johannes Hengstschläger, David Leeb, Grundrechte, Wien 2013, p. 10.
 Art. 19 Basic Law, Art. 66 para. 3 and 4 of the State Treaty of St. Germain 1919 and Art. 7 Z. 3 State Treaty of Vienna 1955.
 For more specific information see Herbert Schambeck, The 100th Anniversary of Austria and Czechoslovakia, Der Präident im demokratischen Verfassungsstaat, The Lawyer Quarterly, International Journal for Legal Research, Prague 2, p. 89 ff.
 For more specific information see Ernst C. Hellbling, Österreichische Verfassungs- und Verwaltungsgeschichte, 2nd edition, Vienna-New York, 1974, p. 401.
 See Hans Kelsen im Selbstzeugnis, ed. by Matthias Jestaedt, Tübingen 2006, p. 52.
 Decision by the Provisional National Assembly of the Republic of German-Austria of October 1918, State Gazette no. 1.
 Art. 24 ff. Federal Constitutional Act 1920.
 Hellbling, loc.sit., p. 240 f.
 Gottfried Franz Litschauer, Kleine österreichische Geschichte, Vienna 1946, p. 297 ff.
 Federal Law Gazette 1920, 1; and Die Bundesverfassung vom 1. Oktober 1920, ed. in cooperation with Georg Fröhlich and Adolf Merkl by Hans Kelsen, with a foreword and introduction by Robert Walter; Vienna 2003, p. 5 ff. and page 1 ff.
 Federal Law Gazette 1920, 303.
 See Litschauer, loc. cit., p. 295 ff and Hellbig loc. cit., p. 426 ff.
 Note Hellbig, loc. cit.
 Aurelius Augustinus, De civitate Dei XIX, 11-12,14.