Source

[…]

Modern philosophy has grown up with and through the natural sciences. Two hundred years ago, all of Europe’s universities were still dominated by Aristotelian-scholastic natural philosophy and its ancillaries: moral theology, theological legal philosophy, and theological social doctrine. The eighteenth century brought modernization at least in Protestant Germany, and the Revolution did so in France, with the universities following in the footsteps of the people’s movement and its political progress.

Philosophy, which grew up the stalk of a mechanistic understanding of nature, had a legal philosophy and a social theory; indeed, it regarded them as the chief components of ethics. And the tendency of this “practical” philosophy was necessarily anti-theological, anti-feudal, and anti-medieval; it was individualistic and therefore (by my conception) social [gesellschaftlich].

Its great, historical, and epochal accomplishments are natural law (rationalistic and specifically identified as such) and “political economy,” which (as W. Hasbach has abundantly demonstrated) has a deep inner connection with it and is carried on in the “classic” English school. In the preface to the first edition, I compared the former to geometry, the latter to abstract mechanics.

Natural law and political economy played a powerful part in shaping modern society and the modern state, both of which are developing and unleashing their power. Both developments occurred under the banner of revolution – the great French Revolution, which also destroyed the Holy Roman Empire, and the small revolutions that followed in France and Germany during the nineteenth century, in the latter country in part through the actions of a Prussian monarchy that was revolutionary in its origins and energy. These revolutions imparted enormous impulses to capital and legislation, with the latter developing at first largely to promote the former.

All revolutions trigger powerful counter-movements, however. The restorations and reactionary tendencies followed their upheavals with absolute inevitability.

The “Restoration of the Science of the State” – to subsume the historical school of jurisprudence under this title – sought to do away with natural law, and here especially with the rational, individualistic construction of the state (through contract theories). It succeeded in doing so, especially insofar as the public, “academic” profession of such doctrines is concerned. At least that is the case in Germany, for in England the theory of legislation and of analytic jurisprudence in Bentham and Austin reconnected deliberately with Thomas Hobbes. In the Romance countries, in Russia, and in America, natural law remained more or less in force as a liberal legal philosophy.

In the meantime, legal philosophy was not completely neglected in Germany either, no matter how much it receded into the background as an academic discipline. Like the historical school, which was introduced by the skeptic Hugo and the Catholic Savigny, by way of the Romantics, the Protestant-conservative system of Stahl, a Jew by birth, also picked up on Schelling's natural philosophy, which was originally pantheistic and then became increasingly fanciful. The legal philosophy of Kraus and his successful disciple Ahrens was also pantheistic, though with more humanitarian, cosmopolitan, and Freemasonic tendencies.

A much earlier and more powerful effect, however, at least in continuing and refashioning Schelling’s ideas, had come from Hegel's philosophy, which seeks to develop within natural law (first in 1820) the nature of the objective spirit, as it establishes in law, by means of free will, its abstract object and rises to the level of ethics, whose idea finds its realization in the state.

What was important about this system was that it also – indeed, primarily – sought to conceptualize modern social entities – society and the state – as mental and spiritual-natural [geistig-natürlich], that is, as necessary, instead of dismissing them as being based merely on theoretical fallacies, which was the essential approach in Romanticism and historical jurisprudence, and in all restorationist and reactionary thinking. By contrast, in Hegel's conceptual universe – the references to “world history” notwithstanding – all historical knowledge, like all theory of the true relationship between individual will and social circles, is eradicated. – Hegel's philosophy of law is not merely an account of the state, it is no less than its glorification, and the state that realizes the ethical idea is to him the true state, the Prussian state of the restoration period, which is not able, in the end, to completely deny its radical past. Hegel's doctrine of the state is as ambiguous as this conservative absolutism, and its ambiguousness came to light when it was put into practice. The Hegelian Left led from absolutist-privy councilor liberalism to democratic liberalism and beyond, though it had no academic impact.

Thus, running parallel to the decline of Hegelian philosophy is the overcoming of the old Prussian idea of the state, as enshrined in the conservative German League, by the idea of German unity that it despised for so long; however, that unity was achieved – paradoxically, like so many historical fulfillments – in such a way that this very Prussian idea of the state became its instrument of force.

In that era, philosophy lost whatever spiritual, ethical-political leadership it had had within the German nation.

Its fate was the fate of a liberalism that, through its adjective “national,” indirectly suggested that it essentially subordinated itself and felt called not so much to assume the leadership of radical elements as to accommodate itself to reactionary ones.

This type of thinking retained a connection with the Enlightenment only in the natural sciences, but once again only in such a way that it timidly avoided conflicts with the ecclesiastical consciousness; this was especially so because ever since the Kulturkampf was abandoned (after 1878), a tolerant-friendly relationship, even with the papist church, was incorporated into the nationalist creed.

The more deeply rooted connections with the general social development are easy to discern. In continuous interaction with the neighboring countries of France and England, the development of large industry also began in Germany after 1840; the workers' movement and with it socialist-communist doctrines were knocking at the gates.

They were also knocking at the gates of the universities. By its very nature, economics was overwhelmingly a doctrine of practical politics. It had worked for the most part on behalf of capitalism and free competition. “Laissez faire” was written on its banner. Of course, German erudition already sought to give it a historical character. And precisely this had a hand in breaking the dogmatism of “Manchesterism.” Ethical motives argued strongly in favor of the struggling working class. Katheder-Sozialismus appeared on the scene. It did not give itself that name but could well enough adopt it. Political economics, which had already earlier drawn the odium of materialism in England, under Carlyle's passionate eloquence and Ruskin's aesthetically-ethically tinged accusations, now wrapped itself in the guise of German idealism, which believed that it was above all imperative to appeal to the obligation of the propertied classes.

In the front ranks of the men who created a new socio-political consciousness in this way stood scholars like Schmoller, Brentano, and Knapp, each working in a different spirit. Adolf Wagner and Albert Schäffle laid claim – with notable success – to principled rigor and systematic generalizations in the great conflict of socialism against capitalism (or individualism): Wagner, who in his work Grundlegung [der politischen Oekonomie], under the influence of a true Socialist (Rodbertus), formulated the brief for the expansion of the activity of the state, for legal theory in relationship to all private property, for the rights of the national economy against those of the private economy; Schäffle, working in a kindred spirit but with even stronger philosophical pretensions, set out to describe the structure and life of the social body. He shared Herbert Spencer's “organistic” notion of sociology (in fact, he was strongly influenced by him), but while Spencer arrived at the postulate of administrative nihilism, Schäffler tended to advocate administrative universalism. Both men, however, see the development of culture in light of the development of life, that is, of the theory of the origin of species, and they draw conclusions that, no matter how irrefutable they may be in their individual elements, soon end up on the slippery slope of speculation between fear and hope. By contrast, August Comte intended to positivize and thus justify sociology in the sense that he wanted to initiate the definitive and correct shaping of social life and politics through the definitive and correct theory. This, too, was to follow a law of development, but solely that of the development of human thought, the law of the three stages. A certain connection to Hegelian dialectics is unmistakably evident in his thinking, and the idea of a creative synthesis of the practical currents characterizes the progressive intellectual tendencies of the nineteenth century in general.

The view that culture developed out of barbarism and savageness – that is, that humanity developed from animal-like conditions – was already held by all enlightened thinkers since the seventeenth century, having replacing the belief in paradisiacal origins and glories. That view was then obscured by the Restoration and Romanticism and had to be recaptured on the basis of Darwinism; but by its nature it is much less the application of a biological theory of development than the latter is the generalization of the former. In Hegel, as in Comte, this essential autonomy is still clearly evident.

What distinguishes Comte is the fact that under the powerful influence of Saint-Simon, he assumed a critical stance toward progress, modernity, and liberalism. So did the Romantics, as well as those who advocated tradition, [the values of] the Middle Ages, and authority. But Saint-Simon and Comte took this stance on the grounds of progress itself, on the grounds of modernity and liberalism. Without wishing to return to faith and feudalism, they recognized the predominance of a positive and organic order in the Middle Ages, and they also recognized the essentially negative and revolutionary character of modernity, though without denying science, enlightenment, and freedom; on the contrary, they affirmed and emphasized these all the more.

The same is true of the position proffered by socialist theory on the problems of culture. By socialist theory I do not mean here a theory that renders specific value-judgments (on capitalism, private property, the proletariat), or postulates a specific politics, let alone an entire social order; what I mean is simply a theory that does not readily accept the packaged and supposedly self-evident value-judgments of liberalism, that is, of the prevailing socio-philosophical view; instead, it places itself outside and above the contradiction in which that view remains naively mired.

The theory takes a stance toward things and their development that is critical, meaning it is primarily cognitive, examining, observant, and theoretical.

Therein lies the lasting importance of the "Critique of the political economy" – for political economy in its classic form, which is also retained in the historical-ethical modifications, believed that it was describing and creating the normal social state of affairs: on the basis of the personal freedom and equality of individuals, on the basis of acquired rights, that is, the unlimited inequality of wealth, and on the basis of the division of society into the class of the owners and the class of the proletariat.

In the face of this precondition, the following realizations are of fundamental importance: 1.) The great overall mass of culture to date existed and flourished without these supposedly normal conditions, as it did without the railroad, telegraphs, and spinning machine; that, instead, some kind of common ownership by the people, at least of land, and, moreover, the private ownership by the industrial workers of their means of production were certainly the rule historically, and still are in a great many places; 2.) That "contemporary society, too, is not a fixed crystal but an organism that is capable of change and is in a constant process of transformation." (K. Marx, Das Capital. Vorrede zur ersten Auflage, 25 July 1867).

In addition, however, a necessary element of “scientific socialism” is the recognition that the driving forces behind social movements are not primarily political conditions, and even less so intellectual currents (scientific, artistic, and ethical currents), no matter how much they may contribute, but the crude material needs, feelings, and emotions of economic “daily” life, which take on different forms depending on the social living conditions, that is to say, within the various strata or classes; and that this relatively independent variable has a determinative influence on political conditions and intellectual currents, according to whose repercussions it is itself constantly furthered, but also impeded, and thus always modified in significant ways.

All ethnological-sociological scholarship (“from Bachofen to Morgan,” as I put it in the 1887 preface to this book) increasingly flowed together into the current identified under 1.), but so did the rivers and streams of economic and legal history. And that is why I gave my rapt attention to the insightful lectures by Sir Henry Maine; that is why I found myself immeasurably enriched by Gierke's “Genossenschaftsrecht” [Law of Association], a work that, in an effort to understand the formation of law and to demonstrate the inseparable connection that exists between the life of the law and all cultural life, subjected to its learned and penetrating examination not only the legal side of “association,” but also its cultural-historical, economic, social, and ethical sides.

My specialized studies of the same author connected even more strongly with Althusius by virtue of his discussion of theories of the state based on natural law. For I had taken as my starting point Hobbes, to whose life and philosophy I had diligently devoted my work between 1877 and 1882. Since I had to join Paulsen – whom I have to thank for stimulating my interest in Hobbes – and all others familiar with this great thinker in admiring the energy and consistency of his construct of the state, and since I was able to trace the powerful influence of his thoughts into the nineteenth century (in England as well as Germany, France, and Italy), the decline of this rationalistic and individualistic philosophy of law, which seemed the height of secular wisdom in the eighteenth century, was all the more astonishing. Should doctrines whose core was still regarded as correct by men like Kant, Fichte, and Feuerbach really be considered worthless and nonsensical? Doctrines that, through their effect on political economy and the whole internal administration of the state, were crucial for all modern legislation, for the liberation of the peasants, and for freedom of trade? Doctrines that also form the foundation of the theories of Bentham, which are so influential in England and beyond?

Into the empty space that was created by the eradication of natural law and its doctrine of the state stepped historical jurisprudence, the organic doctrine of the state, and a groping eclecticism, within which the theological element stands out, again and again, as the one most sure of itself and of [securing] the approval of the powerful.

The theological justification of law and of societal associations is of great importance historically, though otherwise it is of concern to scientific thinking only because the latter must overcome it. The merely historical perception is non-conceptual [begriffslos], that is to say, it is not a philosophical understanding. A theory worth discussing is offered only by the doctrine of the “organic” nature of the law, the state, and so on, which has been linked to the theological doctrine since time immemorial. It has reappeared in more recent times, in part – as already indicated – in connection with natural philosophy, its kinship to which was soon asserted again by theology (Stahl), but also in part in the new guise of biological analogy, which is then based on reciprocity: biology seeks to explain the natural organism by way of comparison with the facts of social life, while sociology seeks to explain the “social” body the other way around.

I have never failed to realize that a number of such analogies are in fact justified. They are grounded in the general and common manifestations of life as a unity of diversity, of the reciprocal interaction of parts with one another and thus with the whole, whose component parts they form, in tendencies that we recognize and label now as the differentiation of organs and functions, now (also in physiology) as the division of labor.

By contrast, I myself was not able to discern any good sense in the claim that the state, the community, or any kind of human association “is” an organism, even though Gierke, in particular, always maintained as much with the full force of his idealism – as late as 1902 in his lovely lecture about "the nature of human associations." He argued that both external and internal experience prompted the assumption that there are effective association entities [Verbandseinheiten]. A part of the impulses that determine our actions supposedly emanate from the communities [Gemeinschaften] that pervade us, and the certainty of the reality of our selfhood, he maintained, extends also to the fact that we are component entities of higher living entities, even if we do not find them in our consciousness and can infer indirectly from the effects of the community within us that the social wholes are corporeal-spiritual in nature. Thus, according to Gierke, the law of association [Verbandsrecht] constitutes a life order for social beings, and a great branch of this law is social law with the legal concepts of constitution, membership, legal person, organ, the act of free will, which calls an association person [Verbandsperson] into being and is not a contract, but a creative overall act.

I myself, by contrast, draw a more stringent distinction between natural associations, whose importance to social life is, of course, outstanding, and cultural or artificial entities, even though the latter can grow out of the former.

To be sure, the former also exist in our “consciousness” [Bewusstsein] and for our consciousness, but not substantially through our consciousness, as is the case for the real and genuine social conditions and associations [Verbindungen]. For I assert the following as the fundamental sociological insight: apart from the possibly real entities and interconnections of people there are also those that are substantially created and conditioned by their own will, that is, they are essentially imaginary [ideell] in nature. They must be understood as created or made by humans, even if they have in fact acquired an objective power over individuals, a power that always amounts to the power of connected wills over individual wills.

I found the great meaning of rational natural law in the fact that it undertook to understand anthropologically the entities that had until then been conceived of largely theologically, to explain the seemingly transcendent forms [Gestalten] as constructs of human thought and will.

And yet I had no doubt that this was not a universally valid explanation. The historical school of law – which found its darling in customary law [Gewohnheitsrecht] and invoked the legal sensibility and the quietly working forces of the people’s will [Volkswille] – found many new confirmations at the time from the proliferating studies on primitive agrarian communism, which Laveleye, in the wake of v. Maurer and Harthausen, summarized at that very time (his book was translated and supplemented by K. Bücher under the title Das Ureigentum, 1879); and also from the elucidation of clan and family law, whose basic elements were presented in their similarities and differences by comparative legal studies. It was especially the elements of Aryan institutions that emerged more clearly: to my delight, the splendid works of Leist dug deeply in this field. Before that, the study The Aryan Household by the Australian scholar Hearne had made no small impression on me (from which, at my instigation, Paulsen adopted some elements into his “Ethics”). Post’s writings were also useful to me; Lyall’s Asiatic Studies took me into the still living Indian clan life and provided insights into the relationship between state and religion in China. Combined with this was the deep imprint left by Fustel de Coulange’s La cité antique, Bachofen’s Mutterrecht, Morgan’s Ancient Society, and others.

The insight into the distinguishing characteristics of modern society and the modern state – whose concepts I found presented with absolute validity in Lorenz von Stein’s important doctrine – was deepened and advanced by all these works. Added to this was the new theory of society that R. von Jhering had outlined in his unfortunately unfinished “Zweck im Recht” (Purpose in Law) (vol. 1, 1877). He took, once again, a purely rational approach, which made his doctrine appear to me as a “renewal of natural law;” in the same way, I also understood A. Wagner’s penetrating discussions of legal philosophy (in his Foundations, vol. 1, first 1876) to be such a renewal, notwithstanding their state-socialistic tendencies (indeed, in part because of them). At that time, I already shared this practical orientation, but the theoretical construction did not strike me as adequate in all respects.

The thought for the present work first matured when, in 1880, I encountered in Maine’s Ancient Law the passage translated into German on pages 223 f. of the present edition (213 f. of the first edition): [the idea was to see] the contract as the typical legal business and at the same time characteristic of all rational legal conditions [Rechtsverhältnisse], with the latter being the confirmed expressions of all rational social conditions – and to think consistently in this sense also of society and the state as being based on contracts of individuals, which are based in turn on their free and conscious will. But in no way can all legal conditions and connections be construed in accordance with this formula – precisely the primeval, always effective, and familial ones cannot. Are these merely coercive conditions, as they seemed to Herbert Spencer? Evidently not. They, too, are affirmed out of free will, even if in a way that is different from those conditions and agreements that are clearly and unambiguously thought of as the (convening and coinciding) interests of individuals. In what way? That, then, was my problem.

Out of this, precisely, grew the theorem of community and society, and, inseparable from it, that of the natural will [Wesenswille] and of free will [Willkür]. Two types of social relationships, two types of individual expressions of will – but both are to conceptualized from a single point, from the relationship between a whole and its parts, the old Aristotelian opposition between the organism and the artifact – whereby, however, the artifact itself must be understood as more or less similar in essence to the organic or the mechanical aggregate. As social entities are artifacts of psychic substance, their sociological conception must be simultaneously a psychological conception.

Höffding, a psychologist himself with a penchant for sociology, and drawn to it by ethics and the philosophy of religion, wrote about this book that it combined in a peculiar way sociology and psychology by showing how the social development is necessarily interconnected with, and has its counterpart in, a corresponding development of humanity’s mental capacities. Wundt, who also thought that these concepts were worth mentioning, believes that my distinction of the forms of will “probably corresponds to the more common one between simple or instinctive [triebartiges] and compound will or choice.” I responded as follows (Archiv für systematische Philosophie IV, vol. 4, p. 487 f.): “The instinctive will is to me merely the germinative form of the ‘natural will’ [Wesenswille]; to it ‘belongs’ not only the compound will of the most complicated kind, but in it develops – indeed, realizes in the first place – its essence as a human will; for I have never called the ‘natural instincts’ of human beings their will; instead, I conceive of will always as appetitus rationalis – as appetitus but not simultaneously the desire (or reluctance) to do something, but as the positive or negative relationship to the non-Self that underlies it, a relationship that becomes the ‘natural will’ only through the accompaniment and participation of thought. I maintain: the latter realizes itself only in the compound will . . . for that is how I conceive of the entire imaginary world [Ideenwelt] of the creative person, the artist, or the ethical genius, as an expression of his ‘natural will,’ but also of every free act, insofar as its springs precisely from the essential directions of his spirit, heart and soul, or conscience. Wherefore: what I conceive of and dissect as the natural will in social determination and as a totality is what Hegel calls the concrete substance of the people’s spirit [Volksgeist], something that rises so far above the ‘social instincts’ that it determines and bears the entire culture of a people.” (That same essay has further remarks in homage to the grand old man of German philosophy). – The right way of approaching the issue is also recognized in P. Barth’s Geschichte der Erziehung (“History of Education” [Leipzig, 1911], p. 40), the introduction of which discusses the essence of sociology and its relationship to pedagogy. The science of economics leads to a life that is, on the whole, separate from philosophy. And yet it has always sought out a relationship with the latter, proclaiming its desire for a philosophical grounding often and vigorously. In the twenty-five years that have passed since the publication of this work, this has emerged more strongly than ever before. Pure sociology has gradually been elevated to the rank of an auxiliary science of political economy. This has found its external documentation in the substantiation of sociological societies (most recently also in Germany) in which economists have been the foremost participants.

The concepts of social life presented here, though certainly new in their articulation, could not seem downright alien to economics. They had been prepared through the juxtaposition of the natural and monetary economies and of many concepts related to them. The two leading minds of German science, Schmoller and Wagner, discussed the present work at length, from their widely diverging methodological perspectives. Increasingly, rationalism and the rational mechanization of production, indeed, of the “world,” have been recognized as a distinguishing characteristic of the entire modern era and developed in several important works.

Elsewhere, perhaps, I shall speak of the peculiar experiences I made on these occasions. But I may point with satisfaction to the growing attention the work has received over the last twelve years. When Werner Sombart called it “epochal,” Franz Eulenburg a “profound work,” and David Koigen, a Russian sociologist, spoke of the “classic tractate,” these distinctions merely made me all the more aware of the book’s shortcomings; and I wish I had been able to remedy these shortcomings more thoroughly than I have done in this new edition. In any case, these testimonials, in conjunction with the earlier ones, encouraged me to present the book to the world once again. In the process, I have endeavored, without wishing to touch the core and content, to improve many details, even if often only in diction and style; still, no small number of lines have been deleted, and several additions have been made. Such additions, which also contain elements of new ideas, have been identified as “addition 1911” or “addition 1912.” However, anyone with long experience as a writer will readily understand that there is much in the book – which had to be left as it is – which the author would not have written this way today.

While the book was praised by leading writers, it was studiously ignored by others, who honorably (but also dishonorably) passed over it in silence. All the more reason to highlight the special merit Dr. August Batzer has earned on behalf of the work and thus its author through a short monograph (Berlin, 1890), the product of exact knowledge and right understanding. – I also gratefully acknowledge the help that Dr. Marcard and Dr. Gerlach provided in compiling the index.

F. T.