JOURNAL: Beiträge zur Rechtsgeschichte Österreichs (BRGÖ) 12 (2022), nr. 2

(image source: Verlag der ÖAW)

Böhmen interimperial. Die böhmische Jurisprudenz als Drehscheibe der zentraleuropäischen Wissenszirkulation (Franz L. Fillafer) (DOI 10.1553/BRGOE2022‐2s163)

Abstract:

My article uses Bohemian jurisprudence between the 17th and the 20th centuries to showcase the interpretive benefits of a relational history of Habsburg Central Europe that both moves beyond artificial national divisions and sacrosanct epochal thresholds, 1918 in particular. Since the 17th century, Bohemia’s position at the interstices between the Holy Roman Empire and the Habsburg lands made its jurisprudence a centre of sprawling innovation: Prague jurist Franz X. Neumann disputed the Holy Roman Empire’s suzerainty over Bohemia and hence dismantled claims about the automatic validity of Roman law for the kingdom of St. Wenceslaus. This position at the fringes of the Holy Roman Empire turned Bohemia into a hotbed of natural law and into the chief fulcrum of Habsburg private law codification under Maria Theresia (1750s). The Bohemian ingredient also played a crucial role in Leo Thun‐Hohenstein’s reform of the Habsburg Monarchy’s educational system in the 1850s: A Bohemian noble patriot, Thun‐Hohenstein sought to extirpate natural law, which he viewed as the mainspring of Revolution and centralisation – the two menaces that subverted Bohemia’s statehood within the Monarchy. Thun’s hostility to pan‐imperial public law and to social contract theories destroyed the validity grounds of Habsburg legal culture but reinforced the primacy of private law. Thereby Thun produced a legal positivism that depended on the categories of Pandectist private law and permeated ostensibly sharply separated “national” communities of lawyers, as I show with reference to Czech and Germanspeaking jurists in Bohemia, the schools of Jiří Pražák and Joseph Ulbrich in particular. My paper moves beyond 1918 to flesh out the Monarchy’s legal and administrative legacy that cuts against the grain of programmatic De‐Austrification (Odrakouštění), and discusses the longevity of the Monarchy’s 1867 December constitution in post‐1918 Czechoslovakia. Swallowing their pride, German nationalists of different hues retracted their pre‐1918 criticisms of the constitution and rediscovered it as a weapon against the Versailles system.

Der Weg von der Beleidigung der Majestät zur Beleidigung des Präsidenten (Adam Strašák) (DOI 10.1553/BRGOE2022‐2s181) 

Abstract:

Czechoslovakia was one of the states which replaced Austria‐Hungary after World War One. The article compares the legal protection of an Austrian emperor against insults with the protection of a Czechoslovak president’s honour. The aim is to investigate the differences as well as a possible influence of the Austrian on the Czechoslovak law. Besides, the article deals with the unsuccessful attempts to change the Austrian penal code in 1874 and 1909. In both drafts of a revised penal code, a fundamental reform of the paragraphs which protected the honour of an emperor was suggested.

Richard Nikolaus Coudenhove‐Kalergi, Paneuropa und die Tschechoslowakei (Anita Ziegerhofer) (DOI 10.1553/BRGOE2022‐2s210)

Abstract:

Richard Nikolaus Coudenhove‐Kalergi was the founder of the Pan‐European Movement in the interwar period. The movement’s aim was the unification of European states to achieve peace. After World War I, Coudenhove became a citizen of the newly founded Czechoslovakia. Unsurprisingly, he attributed an important role to his new fatherland within Pan‐Europe. Coudenhove had tried to establish Pan‐Europe on the basis of the so‐called Little Entente. His connections to the Hradschin were excellent: Tomáš Masaryk, Edvard Beneš and Milan Hodža supported Pan‐Europe. The article discusses the rise and fall of the man and his movement with regard to the Czechoslovak connections.

Staatsrechtliche Konzepte der tschechischen und slowakischen Innenpolitik aus der Zeit vor der Entstehung der Tschechoslowakei (Lasislav Vojáček ) (DOI 10.1553/BRGOE2022‐2s210)

Abstract:

From the very beginning, the settling of the Czech and Slovak questions was closely linked to the question of how the fate of the entire Habsburg Monarchy would unfold. Even though a number of political parties were active by 1914, almost all Czech politicians regarded the Habsburg union of states as a constant in the world order and had not set for themselves the goal of creating an independent state. One person who deviated from the defining line of Czech politics was the pro‐Russian politician Karel Kramář. After the outbreak of the First World War, Czech politicians initially remained wary. Later, activism prevailed among them, and the Czech Union (Český svaz) and the National Committee (Národní výbor) became their organisational platforms. At the beginning of 1917, activist politics culminated in the rejection of the demand for the ʺliberation of the Czecho‐Slovaks from foreign ruleʺ stipulated in the Ententeʹs proposal for peace negotiations. Also in the constitutional statements of most Czech deputies read out at the opening of the Imperial Council and in the projects of the late summer and autumn of 1917, which addressed the creation of a common Czech‐Slovak state within the framework of the Habsburg monarchy, the preservation of a reorganised Habsburg monarchy was taken for granted. In early 2018, however, the idea of an independent Czechoslovak state began to gain ground among Czech politicians at home. In the spirit of this idea, the so‐called Epiphany Declaration and the drafts of the political law and the economic law of early October 1918 were drawn up, whose content was subsequently incorporated into the first laws of the Czechoslovak state.

Transatlantische Einsichten in die verfassungsrechtliche Verbindung zwischen Tschechen und Slowaken (Tomáš Gábriš ) (DOI 10.1553/BRGOE2022‐2s224)

Abstract:

The paper provides insights into the history of Slovak political identities on both sides of the Atlantic. It should helpto better understand the emergence of a popular political movement among Slovaks in the United States and the birthof the idea of an independent Slovakia prior to any such movement in Europe. Two political identities of Slovaksdeveloped rather independently in Europe and in the United States, showing remarkable differences. These differences,reasons for the differences, as well as the mutual interconnection of the two identities and the current process of theirmerger are presented in this paper.

Die völkerrechtliche Bedeutung des Vertrages von Saint‐Germain‐en‐Laye im Lichte der österreichisch-tschechoslowakischen Beziehungen (Jürgen Pirker )
(DOI 10.1553/BRGOE2022‐2s253)

Abstract:

Within the Paris Peace Order, the Treaty of Saint‐Germain‐en‐Laye provides the legal basis for the newly establishedRepublic of Austria: it defines its borders and name, regulates the protection of minorities, the army, war guilt orreparations, establishes a system of international peace maintenance, and deals with consequences of the dissolutionof the Habsburg Empire. Considering core elements of the treaty, central aspects of the Austrian‐Czechoslovak relationsbecome visible: the existence of Austria as an independent state, including its economic survival, the limitationof its military capability, or the protection of its minorities. They reveal one baseline of the interstate and internationalrelations: Austria, which was ought to be “the rest”, should continue to exist in this form.

Die Tschechoslowakei im Vertrag von Saint‐Germain (Thomas Olechowski)
(DOI 10.1553/BRGOE2022‐2s253)

Abstract:

On 28 October 1918, the Czechoslovak Republic, and on 30 October 1918, the Republic of German Austria came intobeing. Both rejected the legal succession to the Habsburg monarchy and saw themselves as new, revolutionary states.However, at the St. Germain peace negotiations, German Austria – now only called Austria – was seen as the onlysuccessor to the Empire, while Czechoslovakia was recognised as one of the victorious powers. Various provisions ofthe Treaty of St. Germain, however, accounted for the fact that not only (German) Austria but also Czechoslovakiahad taken over parts of the territory and population of the Habsburg Monarchy, and that in this respect the lattercould also be regarded as a “successor state”.

Die Minderheitenfrage auf der Pariser Friedenskonferenz (Herbert Kalb) (DOI 10.1553/BRGOE2022‐2s287)

Abstract:

The rules regarding the protection of minorities as stipulated in Paris are discussed based on the vague notion of the“right of peoples to self‐determination” of President Wilson and the failure to include general provisions on the protectionof minorities in the Covenant of the League of Nations. The focus is on the Agreement on the protection of minoritiesbetween the Allies and Poland, which was the “blueprint” for subsequent agreements. The article concludes with a briefpresentation of the dismissive or rather ambivalent position of Romania, German Austria and Czechoslovakia.

Die Verfassungsgerichtsbarkeit in Österreich 1919–1939 (Ewald Wiederin) (DOI 10.1553/BRGOE2022‐2s276)

Abstract: 

Constitutional jurisdiction in Austria between the two World Wars can be divided into four periods: (I) From 1919 to 1920, under the provisional constitution, the Constitutional Court was the successor of the Imperial Court of the monarchy, continuing its jurisdiction. (II) Under the new federal constitution of 1920, it developed into an important political actor in the 1920s, making confident use of its competences. Hans Kelsen shaped the jurisprudence and set the lines: the Court acted as a neutral arbiter between the federal and state governments, as a guardian of democracy and as a patron of minorities. In the ideologically charged conflict over the Sever marriages, it took sides with the liberal administration and against the conservative ordinary courts. (III) After its reorganisation by the 1929 constitutional amendment, the Constitutional Court was re‐staffed. Henceforth, it no longer supported parliament in hard cases, but the government. Ludwig Adamovich exercised the strongest influence within the Court between 1930 and 1933. (IV) The authoritarian constitution of 1934 no longer provided for a Constitutional Court, but only a Senate for Constitutional Questions within the Federal Court, the highest administrative court. In practice, it played a minor role.

Die Verfassungsgerichtsbarkeit in der Tschechoslowakei 1920−1938 (Markus Vašek) (DOI 10.1553/BRGOE2022‐2s287) 

Abstract:

Czechoslovak constitutional jurisdiction between the two world wars was not a successful model. In this article, selected reasons are presented and analyzed in their context. In short: the legs of the Constitutional Court were not tied together; it was born that way. In contrast, the Czechoslovak constitutional court experienced a great moment in 1922. The first decision of the Constitutional Court answers questions about democracy and parliamentarism, which are still being asked today.

Die Entwicklung des Zivilrechts in der Tschechoslowakei in den Jahren 1918–1938 (Ondřej Horák) (DOI 10.1553/BRGOE2022‐2s316)

Abstract:

The paper deals with the institutional and legislative framework of the development of civil law in Czechoslovakia in the years 1918–1938, recodification and legal science, sources of inspiration and the normativist dimension of recodification, and finally two related controversies (filling gaps in the law and protection of tenants).

Zur Entwicklung des Zivilrechts in Österreich 1918−1938 (Kamila Staudigl-Ciechowicz) (DOI 10.1553/BRGOE2022‐2s316)

Abstract

The article provides an overview of the development of Austrian civil law in the interwar period. Although the General Civil Code was only slightly amended five times during this period, some provisions were further developed by both legal scholarship and court decisions. This tendency is particularly evident in economic matters. In addition, urgent issues were dealt with by means of special legislation, such as tenancy law. In some areas – such as marriage law – the reform failed completely. In view of the initially similar legal situation in the successor states of Austria‐Hungary, parallel reform efforts and comparative legal justifications of the respective solutions can be observed.

Wirtschaftlicher Wandel in der Tschechoslowakei der Zwischenkriegszeit (Petra Skřejpková ) (DOI 10.1553/BRGOE2022‐2s357)

Abstract:

Czechoslovakia was founded on October 28th, 1918, when the National Committee adopted the Act on the Establishment of an Independent Czechoslovak State (Act No. 11/1918 Coll.). This law established the reception of the existing Austro‐Hungarian legal system that thus formed the legal system of the new republic (legal dualism). In Bohemia and Moravia (briefly also in the Hlučín Region) the law of Cisleithania, and in the rest of the republic the law of the Lands of the Crown of Saint Stephen, applied. The Czechoslovak government had to solve a number of economic problems. In 1919, the threatening financial crisis was averted by the country’s first minister of finance, Alois Rašín, who initiated a monetary separation that resulted in the adoption of a separate currency. A relatively extensive land reform took place from 1922. The first estates to be confiscated and partitioned were those belonging to the German and Hungarian aristocracy; those who benefited were Czech and Slovak farmers. Also, nostrification took place, the aim of which was to transfer the headquarters and management of businesses to the Czechoslovak Republic. As a result of the take‐over of the legal system, the legal regulation of commercial law was different both in terms of content and language in the two parts of the country. In the legislative area, efforts had been made to unify and at the same time to modernize the legal order across the most important areas of law. In the field of commercial law, the preparation of a new codification was based on the Austrian codification of 1863 and the Hungarian codification of 1875. The preparation was subject to the Ministry of Justice and the Ministry of Unification, which set up expert commissions that developed the Draft Commercial Code. The course of the codification preparation process is further analyzed in the text, and attention is paid to the content of the individual codification proposals. A draft published in 1937 by the Ministry of Justice entitled ʺDraft of the Commercial Codeʺ contained the first (Merchants) and second book (Companies) and had 236 sections. Unlike the then valid Czechoslovak Commercial Act that was based on a mixed system, the Draft of the new Commercial Code was based on a subjective system, on which the German Commercial Code was also based. Unfortunately, this proposal was not adopted by the legislator and remained only in the preparatory phase. One of the reasons was the wait for the adoption of the Draft Civil Code, which did not occur as a result of the German occupation. In the interwar period, therefore, some partial norms were adopted, which unified important areas of commercial law. This included Act No. 259/1924 Coll. (Trade Licensing Act for the territory of Slovakia and Carpathian Ruthenia) on the basis of which the regulations of the former Austrian Trade Licensing Code were used with appropriate adaptation to the conditions in this territory. The other acts were the Bill of Exchange Act (Act No. 1/1928 Coll.), Act No. 145/1934 Coll. on insurance policy, and Act No. 147/1934 Coll. on securing the claims of policyholders in private insurance and on state supervision over private insurance companies. Another important law concerning state intervention in the economic area was the Act against Unfair Competition in 1927 (Act No. 111/1927 Coll.). The complex conditions of the receding economic crisis had created the need for bankruptcy legislation (Act. No. 64/1931 Coll.) and an amendment to procedural law (Act No. 1/1933 Coll.).

Rechtsangleichung und Handelsrecht in Österreich 1918–1938 (Stefan Wedrac) (DOI 10.1553/BRGOE2022‐2s350)

Abstract:

After World War I, some actors in Austria and Germany wanted to harmonise the legal systems of both countries tocircumvent the ban on political unification. Commercial law was seen as one field where this process was most advanced.A closer look at the results however reveals that projects such as a new commercial code or even smallerreforms either failed because of the negative sentiment towards them or obtained merely ‘cosmetic’ results.

Das Münchner Abkommen (David Kolumber ) (DOI 10.1553/BRGOE2022‐2s357)

Abstract:

The Munich Agreement between representatives of Germany, France, Italy and the United Kingdom with its appendices represents a momentous document used by the Nazi regime for the negation of the Versailles system. Even though the agreement could not be binding for Czechoslovakia, it led to sharp changes in its legal system associated with the destruction of the last democratic regime in central Europe and the establishment of an asymmetric federation with similarities to fascist Italy. The agreementʹs invalidity played an important role in Beneš’ concept of Czechoslovakia’s continuity during WWII.

Die rechtliche Interpretation des Münchner Abkommens in der tschech(oslowak)ischen Erinnerungskultur (Hildegard Schmoller ) (DOI 10.1553/BRGOE2022‐2s409)

Abstract:

The exercise of the Czech state sovereignty over the national territory in the pre‐Munich borders is based on the assumption that the Munich Agreement is absolutely invalid right from the beginning. Any questioning of this legal interpretation automatically gives rise to fears of territorial or property claims. Although the borders of the Czech Republic are guaranteed by international law, and the property issues have been settled with both the Federal Republic of Germany and Austria, the topic of invalidity has been a recurring leitmotif in the culture of remembrance of the Munich Agreement from the very beginning and is part of the identity construction of the Czech nation.

Die Staatsverwaltung des Protektorats Böhmen und Mähren (1939–1945). Ein Grundüberblick und die Entwicklungstendenzen (Jaromír Tauchen) (DOI 10.1553/BRGOE2022‐2s397)

Abstract:

During the era of the Protectorate of Bohemia and Moravia, it is essential to distinguish between the Reich (German)administration and the autonomous (Czech) administration. The Protectorate was afforded a degree of autonomy bya decree of the Führer from 16th March 1939, however this autonomy was eroded by the Nazis over time. Most of thegovernmental bodies of the autonomous administration were retained from the era of the Second Czechoslovak Republic.The Parliament was however abolished. The autonomous administration was headed by State President Dr. EmilHácha and the Protectorate government. Several new administrative bodies were formed, such as labour offices, a landlaw office or a supreme price administration office. At the head of the occupational (German) administration was the Reich Protector. At a local level, it was represented by Oberlandräte (High Land Councils). German judiciary andsecurity organs were also established in the Protectorate.

Die sogenannten Beneš‐Dekrete. im öffentlichen Diskurs in Deutschland und Österreich und ihre Auswirkung auf die deutsch‐tschechischen und österreichischtschechischen Beziehungen nach dem Fall des Eisernen Vorhangs (René Küpper) (DOI 10.1553/BRGOE2022‐2s409)

Abstract:

The demand for the repeal of the so‐called Beneš decrees, raised by associations of expellees and parties closely related to them (the CSU and FPÖ respectively), primarily meant restitution or compensation for expropriated property of German expellees from Czechoslovakia. This question was deliberately excluded from German‐Czechoslovak/Czech post‐war treaties. In 2002, the CSU tried to make the repeal of the decrees a precondition for EU membership, because they allegedly were incompatible with EU law and values. After the Czech Republic’s EU accession, the topic has largely disappeared from the German public discourse. No future German federal government will raise or support claims for compensation against the Czech Republic, while in Austria the demand for the repeal of the decrees is raised whenever the FPÖ forms part of the government.

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