The negative character of law I.

Many writers have drawn a connection between law as having a negative character, and liberty.

R.J. Rushdoony (Politics of Guilt and Pity) pointed to the negative character of law as a precondition of liberty. He wrote: "Law... is not the source of life but the condition of life, and, as such, there is an identity of liberty and law.... In brief, the purpose of any law is not to make men good; this law can never do, either for man or for society, for goodness is inner rather than outward restraint, else prisons would best produce morality. Law declares the standard, and the penalty for offense, protects society, undercuts man's moralism, and is a guide to the godly. Character and righteousness must come from a source other than law."

Emil Brunner wrote of the law as a framework within which positive ethical activity could occur, and thus as a structure enabling liberty.

Brunner: "Apart from customs and law (with the obedience to custom and law which this implies), apart from this provisional order, life is an impossibility for sinful human beings. We need this rude order as a framework for all the more refined and spiritual forms of life which are obedient to God. Even if the individual believer did not need it on his own account -- which is in itself a very rash statement contradicted at a thousand points by experience-- he would still need it for the sake of his life with those who have not been influenced by the Word of God, or who are either indifferent or hostile to it. If we were to wait until all men do right, from the spirit of obedience to God, in the meantime humanity would long ago have been ground to powder in ceaseless conflict of all against all, or rather: long ago either the most powerful, or the majority, would have instituted some kind of Lex, just as the actual Lex has arisen under such necessities and out of such needs." As an aside, this viewpoint echoes Stahl's Principles, p. 7f.

Brunner continues: "This Lex, however, is not only a necessity for life which we can see to be necessary. It is rather itself a possibility of life which is given by God; according to its function of creating positive order, of making life possible, it is the gift of God, and therefore -- on the basis of that which we have already seen -- it is the task given by God" (The Divine Imperative, p. 141-142).

What these writers have an inkling of, Stahl expounds with thoroughness: see Principles, §. 6, "The Boundaries of Law" (pp. 19ff.).

To be continued...

Stahl as theoretician of tradition

Alasdair MacIntyre once wrote (Whose Justice? Which Rationality? p. 8) that "Burke theorized shoddily, Newman theorized with insight, but both did so in an awareness of a sharp antithesis between tradition and something else, an antithesis which was unavailable to the earlier inhabitants of the kind of tradition with which I am concerned." Without entering into the details of MacIntyre's argument, it should be pointed out that Stahl's political philosophy is precisely theorizing about tradition, quite successfully in my opinion. He should be added to MacIntyre's pantheon -- and now finally can be, thanks to this translation (if I do say so myself).

Stahl's critique of natural law

Stahl presents a comprehensive critique of natural law, building on the basic principle of the Historical School, which is, as he puts it, "direct pervasion of the recognition of the positiveness of law" (Principles, p. 46), that "law ... and positive law are synonymous terms" (Principles, p. 36). Natural law cannot serve as a standard in the courtroom for two reasons: lack of objectivity and lack of precision (Principles, p. 37). In fact, it would be unjust to do so. Therefore, "the rule of natural law instead of or in opposition to positive law has the appearance of establishing the order of God over the order of men: but it is precisely the human order, the law, which is consecrated by God; it is the only common public order that He has ordained over men on earth. The rule of natural law is therefore in truth only the establishment of the arbitrariness of every opinion regarding the common public order, it is the establishment of the war of all against all" (Principles, p. 38).

Yes -- but, as the previous post about Stahl's effect on the Historical School would indicate, Stahl also in some way subordinated positive law to principles of "higher law," what he termed "the law-ideas." In fact, he argued that all law needed to reflect those higher principles, and that the lawmaker, whether the legislator or, as with custom, the historical people, had an obligation to implement those higher principles.

Two questions, approaching the position from opposite ends: 1) is this satisfactory from the natural-law or the higher-law point of view? and 2) following on the previous post, does it undermine the Historical School's emphasis on the positiveness of law?

Stahl, Savigny, and the Historical School

My interpretation of Stahl (which corresponds with Masur's interpretation [Masur, Gerhard. Friedrich Julius Stahl : Geschichte seines Lebens, Aufstieg und Entfaltung, 1802-1840. Berlin: Mittler, 1930]) is that Stahl's philosophy constitutes a deepening and grounding, and forms the necessary fulfillment, of Savigny's historical method.

As I mention in the "General Preface" to the Principles of Law, the interpretation of Dr. John E. Toews of the University of Washington differs. His interpretation is found in “The Immanent Genesis and Transcendent Goal of Law: Savigny, Stahl, and the Ideology of the Christian German State,” The American Journal of Comparative Law, 37, no. 2 (Winter, 1989), 139-169; idem, Becoming Historical: Cultural Reformation and Public Memory in Early Nineteenth-Century Berlin(New York: Cambridge University Press, 2004), ch. 5: “The Tension Between Immanent and Transcendent Subjectivity in the Historical School of Law: From Savigny to Stahl.”

Essentially, Toews sees Stahl as subverting the original positivist orientation of the Historical School by his "subordination of jurisprudence to theology" (Becoming Historical, p. 306).

Or, as Toews put it in "The Immanent Genesis": "In contrast to Savigny, especially the Savigny of 1814, therefore, Stahl envisioned the genesis of legally and politically structured historical communities not as the self-articulation of national cultural collective subjects, but as the imposition of an organized totality on the corrupted individual wills of the people.... The task of interpreting the guiding principles of national consciousness was displaced by the task of interpreting the guiding principles of divine revelation. Jurisprudence was subordinated to theology" (pp. 166, 167).

Stahl therefore, rather than furthering the project of the Historical School, diverted and corrupted it.

Personally, I believe a close reading of the Principles of Law contradicts such an interpretation.

Welcome to this discussion of the Stahl Project

Being the author, translator, and creator of this project, I welcome any discussion or comments from those of you who have received the book one way or the other. Stahl's legacy, in particular his Philosophy of Law, can be approached from so many angles and investigated in terms of so many disciplines as to make such a forum for discussion truly indispensable. The following areas of inquiry are all raised by Stahl and therefore merit consideration: specific areas of law (this will become more clear as more volumes of the translation are published) such as private law, constitutional law, and international law; the idea of common law (customary law and prescription); natural law and natural rights; custom versus legislation; the definition of law (versus morality, as being fundamentally negative, etc.) -- here a comparison of Stahl to e.g. Friedrich von Hayek (Law, Legislation, and Liberty) is of interest; the role of institutions versus the role of justice, and the role of divine revelation, in legal generation; public Christianity; the nation-state; Christianity in pre-Bismarck Prussia (Schoeps' das andere Preussen) versus in and after the Bismarckian Revolution. There are many more topics of discussion that could be raised.

For suggestions as to discussion threads, please leave a comment and I will begin with a new post.

If you would like to become a regular poster on this blog, let me know and I will arrange that.

I will also be adding posts with discussion topics as they impress themselves upon me.

Thanks for your interest.