Laun’s Concepts: The Autonomy of Law, the conscience publique, and the Right to National Self-determination
Laun was an important fi gure in interwar German jurisprudence. An ethnic German from the Bohemian lands of Austria -Hungary, he became involved with pacifi sm while serving as an offi cer in the First World War . He was active in attempts to revise the Austrian Constitution’s treatment of nationalities both during and immediately after the war. Laun strongly advocated the union of Austria and the Sudetenland region with Germany. When the Entente forbade that and instead placed the Sudetenland inside the new Czechoslovakian state, Laun experienced one of the greatest disappointments of his life. He left Austria for Germany to become professor of public law and legal philosophy at the newly created University of Hamburg. By the end of the First World War, Laun had become a Social Democrat (though not a Marxist), and he joined the SPD in Hamburg. He was a vocal defender of the Weimar Republic. At the same time, he continued to advocate the union - through peaceful means - of Austria and the Sudetenland with Germany.
His work in legal philosophy, meanwhile, contributed to debate on administrative discretion, and the relationship between morality and law. These were vital concepts for the new democracy .
During the Weimar Republic, Laun set out his basic concepts regarding international law’s sources. These were: the notion of the autonomy of law, that is, that law was a category of human action separate from mere power or coercion; the notion of a conscience publique , or widely held sense of justice ; and the right of national (today one might say ethnic) self-determination. This last concept was, in his view, an outgrowth of the fi rst two. Laun drew these concepts from the work of the Belgium-based progressive Institut de droit international, founded in 1873.
To turn to the fi rst of these concepts: the autonomy of law, a Kantian concept, held that it was impossible to impose genuine law on people without their participation, such as through autocratic political authority or brute violence. Rather, genuine law was created when people obeyed statutes out of their own conviction that those statutes were moral. For Laun, a state could not govern over people, but only through them. That was a signifi cant limitation on state sovereignty . The autonomy of law in effect shifted to ordinary persons the power to defi ne law. The autonomy of law also applied tointernational law contexts. For example, if a state annexed territory and denied self- administration in a manner that violated inhabitants’ nationality rights, that state would be ruling through sheer coercion. Coercion was a fragile form of rule, Laun argued, because if rule were based merely on power, then no one could be certain who would hold power in the future, and the door would be opened to anarchy as various factions vied for power. As this brief summary suggests, Laun was vehemently opposed to legal positivism, the conventional doctrine in nineteenth- and early-twentieth-century Germany (and elsewhere), according to which law consisted of the explicit, positivized acts of sovereign states, rather than deriving from some source outside or above the state such as God or nature. While traditional international law, which confi ned itself to the willed acts of sovereign states, fi t well with legal positivism, the progressive international law movement argued that states had obligations that limited their power to act unilaterally and arbitrarily. For Laun, adherence to legal positivism was tantamount to capitulating to amoral state coercion, and could not be reconciled with democracy.
The second of Laun’s central ideas was the conscience publique, which he defined as people’s views regarding what was just. Like the autonomy of law, the conscience publique gave ordinary people the power to defi ne law.
It emerged from individual persons’ moral refl ection, and Laun claimed that it was remarkably consistent among the majority of populations and across state boundaries. He conceded that this form of public opinion could not be observed at moments when people’s views were likely to be deformed by propaganda or warfare. Like the founders of the progressive international law movement, Laun argued that the conscience publique was a valid source of international law, just like treaties and customary law. The concept of the conscience publique allowed progressive international lawyers to locate a source of power beyond the reach of any state. That may sound similar to natural law, but progressive international lawyers in fact wished to distance themselves from natural law doctrine as well. Laun considered the German historical school of law of the early nineteenth century to have invalidated natural law, and held that efforts to revive natural law merely promoted arbitrary legal reasoning. Laun and other progressive international lawyers claimed that the conscience publique, unlike natural law, was grounded in sociological reality.
Over the long term, Laun insisted, the conscience publique favored democracy and popular sovereignty. Given the chance to express themselves without coercion, most people would prefer democracy over undemocratic forms of state rule. Coercion could never be the ultimate guarantor of state power in ademocracy. Violence as a means of settling human affairs was being steadily displaced by “voluntary obedience and above all autonomous juridical-moral action.” Obviously, there was reason to doubt this trend in the years before 1933. Yet Laun saw Soviet Communism, Italian fascism, and Hitler’s seizure of power as only temporary aberrations. A dictator’s rule did not mean that the population had by and large rejected democracy; if people could speak without fear, they would still prefer democracy, he argued. He also noted that even dictators invoked mass support, which revealed that the idea of democracy retained its power. In his July 1933 afterword to his book-length exposition of the conscience publique, he insisted that “the recent events in Germany do not authorize us to change the judgment regarding this ancient process of twenty-five centuries that we have set forth in the last chapters of our work.”
Laun’s third major concept was the right to national self-determination. Just as the conscience publique had come to embrace democracy, so had it come since the nineteenth century to embrace the value of nationality? Laun believed that nationality, like the conscience publique, was natural, prepolitical, and perduring: people naturally valued freedom, and if they were free, they would naturally seek to sustain and express their nationality. It is important to note that Laun rejected the nation-state as a political goal. While I will use a literal translation of his terms Nationalität (nationality) and nationale Selbstbestimmung (national self-determination), the reader must bear in mind that Laun does not mean here a right or a movement to achieve state power for a nationality. For Laun, state power and a nationality ought to power not to be combined, because a nation-state, once established, would simply use state coercion to oppress the inevitable minorities inside its borders. In fact, he also rejected the term “minority,” because he held that in a multinational, federal state each group deserved to exercise its cultural rights regardless of the numerical proportions among groups.
For Laun, the political, amoral state was a threat to the natural, moral nationality. Nationalities needed international law to protect them from state coercion. Displaying the Austro-Marxist infl uence on his thinking, Laun described his ideal political arrangement as a federal, multinational state that was limited domestically by its constitution as well as internationally by strong international law controls. Only such a state would reliably enable thedemocratic exercise of cultural rights. True nationality rights, then, required stronger international law: “The more validity that the national idea conquers
in the legal sensibility and conscience of the world, and the more the idea of state sovereignty recedes accordingly, the stronger the infl uence of international on domestic law must be in all areas that are in any way connected with the national question.” Moreover, strong international law controls promised to democratize international law, by giving non-state groups a place on the international law stage – a stage that had been dominated for so long by states. Laun thereby separated the right to national self-determination from state sovereignty – an approach quite different from that, for instance, of postcolonial politicians, who have wielded the right of national self-determination as a state’s prerogative.
By 1933, then, Laun had laid out his basic concepts of the autonomy of law, the conscience publique, democracy, and the right of nationalities to self-determination. Genuine law emerged from people’s voluntary obedience based on their moral beliefs, which had come to include nationality and democracy, he argued. Domestic and international law ought to take account of these. For Laun, the clauses in the peace treaties after the First World War that forbade the union of Austria and the Sudetenland with Germany were both illegal and undemocratic – a position with which the Nazis would have agreed.