A few correlations between Althusius and Stahl

It is quite interesting to note the similarities in legal philosophy among Germanic (including Austrian and Swiss) scholars. In the previous posts I noted the correlations between Stahl's legal philosophy and that of both Friedrich von Hayek (Austrian) and Emil Brunner (Swiss). Stahl's philosophy also finds echoes in one of Germany's greatest legal philosophers, Johannes Althusius (died 1638). Interestingly, Stahl does not mention Althusius in his history of legal philosophy -- apparently Althusius was still unknown and only rediscovered by Otto von Gierke, who published his monograph on Althusius in 1880. Remarkably, continuity between the two does exist.

The first point of continuity is the locus of sovereignty placed firmly in the nation. Althusius postulated this in opposition to Jean Bodin's famous articulation of sovereignty as an attribute of monarchy (or a group of optimates). For Althusius, sovereignty permanently resides in the nation at large, and is only administered by the government. For Stahl as well, sovereignty is a function of the nation, which is the reason for the "popular character" [Volkstümlichkeit] of law, meaning that law is generated by the nation and not imposed upon it.

As a corollary to this, Althusius develops his distinction between common law and proper law. Common law is akin to natural law in that it is a sort of equity, principles which are to be applied in all just law. Proper law, for its part, is the application of common law at the level of the nation. There is a proper law of the Jews (Mosaic law), Romans, Germans, etc. This proper law, in order to be just law, must be in agreement with common law, although it may add to or subtract from it in accordance with specific circumstances (see the Politica, ch. XXI, secs. 19ff.). So the actual law applied in the courtroom is not unmediated common law, but proper law. This is the implication, although Althusius nowhere (that I have yet been able to discover) actually puts it this way. Stahl does, and insists that only positive law can be enforced in the courtroom. This positive law is national and popular in the sense that it derives from the nation and is a living expression of it; but it likewise must conform to the "law-ideas", in effect, Stahl's doctrine of law, which serves the same function as does Althusius's common law. As he puts it in the introduction to The Doctrine of Law and State: "The standards of law and the institutions of the state differ across different countries and times and, being the work of man, everywhere and of necessity contain bad as well as good. There is indeed however something higher, something universal, at work in all creations of law and the state, which purposes to be consummated in all of these, the consummation or lack thereof amounting to the superiority or poverty of the same: that inward unchanging essence of law and state. Now jurisprudence is the science of law and state as it exists in a particular time under a particular people. From this stems the requirement for a higher science, having as its object this inner unchanging essence of law and state. It may be called the doctrine of law and state."

A third area of correspondence lies in the emphasis both Althusius and Stahl put on multiple, self-reliant centers of authority in society. For Althusius, these centers are the cores of the associationalism which he so eloquently describes. From family through to guilds, various kinds of cities, provincial and finally national associations under a supreme magistrate, the loci of authority are richly distributed. For Stahl, it is the institutions of family, property and other institutions of private law, local community, church, and state, which incorporate authority each in their own way. These institutions are not creations of sovereignty but exist in their own right and are recognized as such by sovereignty, just as Althusius's associations are not creations of sovereignty but are self-reliant centers of authority, and in fact sovereignty rests on their basis.