The second volume of the translation of Stahl's Philosophy of Law has been published. This one is entitled Private Law. It includes a fairly thorough discussion of rights, including natural versus acquired rights, from which it progresses to property, obligation and contract, the law of the family, and inheritance. Stahl cites a great deal of Roman law, for which reason a listing of Roman legal citations is included as an aid to comprehension.
The next volume, scheduled for publication on January 1st 2008, will be on "state law," including constitutional law, public law, and the law of nations.
Monday, July 9, 2007
Tuesday, May 8, 2007
Progress Report
It is good to be back. I have been on "vacation" of the enforced variety, admitted to the hospital for the entire month of April with endocarditis. The diagnosis having been made early, the treatment was entirely successful; I feel entirely fit again and ready to continue the project. In fact, I never really stopped with it. During my stay, at which time I was hooked up 24/7 to an IV, I kept up with translating and preparation for publication, thanks to my omnicapable laptop. So the next volume of the series, Private Law, is about ready for publication, and I was also able to make significant progress on the volume after that, The Doctrine of State and the Principles of State Law. Private Law should be commercially available within the next few weeks, so stay tuned to www.wordbridge.net.
Thursday, March 15, 2007
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.
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.
Tuesday, February 27, 2007
The negative character of law II.
Friedrich von Hayek likewise emphasized the negative character of law as one of its chief characteristics. This is because law does not command specific actions in the service of specific goals, but rather serves as a framework of boundaries and parameters within which action can take place. "The action, or the act of will, is always a particular, concrete, and individual event, while the common rules which guide it are social, general, and abstract" (Law, Legislation, and Liberty, II, 12). The distinction between command and rule is important here. "A command regularly aims at a particular result or particular foreseen results, and together with the particular circumstances known to him who issues or receives the command will determine a particular action. By contrast, a rule refers to an unknown number of future instances and to the acts of an unknown number of persons, and merely states certain attributes which any such action ought to possess" (LLL, II, 14). Such rules are therefore abstract and negative. "What is meant by the term abstract is expressed in a classical juridical formula that states that the rule must apply to an unknown number of future instances.... Such reference to an unknown number of future instances is closely connected with certain other properties of those rules which have passed through the process of generalization, namely that these rules are almost all negative in the sense that they prohibit rather than enjoin particular kinds of actions, and that they do so in order to protect ascertainable domains within which each individual is free to act as he chooses and that the possession of this character by a particular rule can be ascertained by applying to it a test of generalization or universalization" (LLL, II, 35-36).
Hayek thus shows himself to subscribe to the same basic legal philosophy as Stahl. His view of law corresponds closely with Stahl's, as does his emphasis on tradition and custom, with legislation serving a corrective role. What is interesting in Hayek is the labor he puts into fitting this philosophy into an evolutionary framework while trying to avoid the pitfalls of positivism and utilitarianism. I don't imagine that he has convinced very many proponents of those approaches. Stahl's theistic framework makes much more sense.
Hayek thus shows himself to subscribe to the same basic legal philosophy as Stahl. His view of law corresponds closely with Stahl's, as does his emphasis on tradition and custom, with legislation serving a corrective role. What is interesting in Hayek is the labor he puts into fitting this philosophy into an evolutionary framework while trying to avoid the pitfalls of positivism and utilitarianism. I don't imagine that he has convinced very many proponents of those approaches. Stahl's theistic framework makes much more sense.
Thursday, January 18, 2007
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...
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...
Friday, January 12, 2007
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).
Wednesday, January 10, 2007
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?
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?
Tuesday, January 9, 2007
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.
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.
Monday, January 8, 2007
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.
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.
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