Here Stahl introduces his concept of the ethical kingdom, a useful framework within which to see the state in its transcendent meaning and form. This personal-legal framework is an expression of convenantalism, without that term being used. Through this lens the state comes into view as a God-ordained living reality, rather than as a man-made bureaucratic imposition.


From Friedrich Julius Stahl, The Doctrine of State & the Principles of State Law (Aalten: WordBridge, 2007).

Introduction:

Of the Doctrine of State in General

§. 1. Concept of the Ethical Kingdom

The doctrine of the state as put forward in this book is grounded in the concept of the ethical kingdom: self-conscious, indivisible rule in accordance with ethical-intellectual motives, over conscious, freely obedient beings, which thereby also spiritually unites them. Accordingly it is rule of a personal character in every aspect, a kingdom of personality.

The notion of the ethical kingdom upon which we found the doctrine of the state is the supreme ethical concept. It inheres in all relations and exists under all circumstances of the human condition; it is the general and absolute purpose (τέλος) of this condition. It therefore belongs to the religious, the moral, and the legal sphere all at the same time. The kingdom of God, which the Christian religion promises to us in the beyond, is its completed realization. Here it is the supreme personality, God, who rules men in accordance with his perfect holiness and wisdom and in perfect freedom, that is, fulfilling inwardly in the same way as maintaining and ordering outwardly, that they be one spirit and one will with Him, and therefore with each other (Book I, §. 27). However, even on Earth the moral world (the inner life and the free action of men) is an ethical kingdom, even when not visibly manifesting itself as such. For the real power of God effectuates in us regard [Ansehen] for the moral commandment, and, to the degree that it is in any way obeyed, the commandment’s fulfillment. It effectuates in peoples and times the specific ethical manner of viewing things, the natural consequences of sins and vice, the inkling of Nemesis in the life of men and in the history of the peoples. It is not so that people in absolute isolation, each person feeling as if he is closed off in his innermost being, obey or infringe an impersonal ethical law, a dead rule. It is a bond over them, binding them to the common ruling power, which encompasses everything everywhere but there first is to become evident. Ethics nowhere exists as bare law and fulfilling individual; it exists everywhere as conscious common demand and compliance in accordance with a common purpose; it exists everywhere as a kingdom.

The civil order therefore is likewise an ethical kingdom. Here as well there is rule established over men, rule of a personal character, i.e., conscious of itself and with control over its actions, with a real power over them; here the rule of a real natural personality is replaced by the organized institution (the state organism); and the perfect or at least ordered natural condition for it is to have its innermost center likewise in a natural personality (the monarchy). Here as well it is rule of ethically understood purposes, and here as well men are freely to obey, while the ethical rational order, which stands over them, is likewise their true essence and will and only realizes itself through them and in them; they are to be united under it, through compliance with this order and its spirit. That an artificial institution erected by men and not a higher personality (God) exercises rule is certainly an entirely different kind, a much lower stage, of the ethical kingdom – hence, it is ruled in accordance with faulty human insight and custom [Sitte]; it is a lower stage of the ethical kingdom, in that the ruling real power and the law are not inseparably one but can be split apart, and in that the subjects’ inward filling with the spirit of law and order, which is the requirement, in reality scarcely exists.

But the concept of the ethical kingdom and those general characteristics of it are the same here as there. Its concept is our most general and inward perception because it everywhere is the purpose established by God for the ethical world. We accordingly derive the norms of the civil order not from the archetype of the future kingdom of God, nor from the moral world as it exists in the here and now, but from the essence of the ethical kingdom, which in like manner appears both in the here and now and in the beyond, as something general. We do not build upon parallels and analogies from other ethical areas, but on the characteristics which each ethical area contains in itself in accordance with the archetypal law of the ethical world.

This concept of the ethical kingdom provides the deeper (philosophical) foundation and guarantee for the political order and for political freedom, in that it counts among its characteristics the need for an authority elevated over men, that is, a claim to obedience and respect owed not merely to the laws but to a real power outside of them, the government (state power; the principle of legitimacy in contrast to popular sovereignty); and at the same time the need for an ethically reasonable content which likewise forms the restriction on this authority, that is, the need for laws of the state that, being passed down through history, stand over prince and people and can only be changed in accordance with their own requirements (constitutional principle in the true sense); and finally the recognition of the nation (the subjects) as an ethical community, therefore as independent, freely obeying, and subjected to the laws only as the expression and obligation of their own ethical essence (Book III, §. 10), from which those laws originally arise through custom and tradition, and to which, in later ongoing development, by means of the consent of the representative body, those laws are put to the test (representative principle in the true sense). Derivation from the will of the people, be it individuals, be it the collective whole, be it their arbitrary or their rational will, does not attain to a simple elevated real authority and is therefore always revolutionary in its innermost ground, whether harsher or milder, revealed or hidden. Derivation from the acquired rights of a ruler or from the necessity of unified leadership or from the divine establishment of rule (when one adheres to this alone) does not procure the independence and (independent) entitlement of the people. Only the perspective of the ethical kingdom provides the eternal order of the state, containing all its principles and elements in harmonious unity. When in reality this is difficult to generate – because governments in actual power do not easily elevate the people to independence, and the people in actual power do not easily allow the elevation of princely majesty; actually, given the untrustworthiness of men, each staves off the yielding of something of their power as if it were a sort of state of emergency – nevertheless, it unshakably remains the ethical-political archetype and standard of judgement and action. In particular, this is the obligation and purpose in accordance with the Christian appreciation of life, while the idea of the ethical kingdom in all its stages suits the Christian world-view, and only it. The true Christian appreciation of life corresponds neither to the revolutionary doctrine of the old Scottish Puritans and English Independents, nor to the doctrine of absolute power and unconditional obedience as represented by the adherents of the Stuarts (Filmer et al.), nor to the political indifference of the older German Pietism. It can lack neither the regard of the given ruling authority, nor the development of political freedom and entitlement of the people under this regard, nor inward ethical-legal lawfulness and necessity.

Understandably, Kant’s and Fichte’s overarching ethical [ethischer] concept of the ethical [sittlichen] world-order is a different one from this concept of the ethical kingdom. For them it is a rule, a law, that the personalities are to follow, not a personality (or some other real power) that encompasses and unifies all of them. Such a power can at most (as Kant in fact postulates) only externally supervene in order to ensure the fulfillment of the laws and restore their violation, a judge; it is not itself (God or the ruling authority as the case may be) and its rule (its permeation in men and their union in it) which is the essence and fulfillment of all mores. The matter is the same with the concept of the absolute c.q. [bez.] objective Spirit which in the philosophy of Hegel takes the place of our concept of the ethical kingdom. It also differs, in that it is not a living union of many personalities with and in the one supreme personality (God – king – governing authorities), but the subsuming of the same in the Substance (the concept, the idea, the world spirit). Of course, this is not, as with Kant and Fichte, a bare rule (an ideal) but rather is to be a reality; nevertheless, even assuming this, it is at any rate an impersonal functioning power, unconscious of itself and therefore acting not out of awareness but in accordance with a bare rule (dialectic). This is not the place to demonstrate that such a concept regarding the eternal relations of men leads to despair. In terms of politics, it leads only to the formal authorization (the dotting of the i) of that which is logically self-derived, with the personality of the prince allowed no material influence; this therefore, despite all resisting efforts of well-meaning persons, leads not to an original real authority (prince – legitimate republican government) as such, but only to the recognition of an impersonal Reason, the “power of the idea,” over the people. In theory, such is certainly better than the (subjective rationalistic) doctrine of Rousseau, which allows only the will of individuals or of the multitude to be the ethical power on Earth. In practice, however, it has the same effect. For the idea as such is neither authentically published in some way, nor does it have a power; in this case as well, therefore, it is human consciousness, the people, who themselves construct the idea and establish and rule its governmental authorities in accordance with it, rather than having them over it and allowing them to rule over it. It is inevitable that Hegel’s monarchical or much rather governmental standpoint sinks back into the democratic standpoint of the newer school. For the monarchical power and the governmental power in general as taught by Hegel is itself only the result of laws of thought (dialectic), that is, a power that nowhere wills in a personal, self-conscious manner, as it does in me (in the individual), over which, therefore, I (the individual) or above all the multitude of those in whom the Spirit has come to consciousness, the people, also have the supreme judgement and judicial authority. In the same manner in the area of morals the followers of Hegel have substituted genius for the ethical law, which for Hegel had an objectivity. In this manner all higher ethical order dissolves finally into so-called self-consciousness or free spirit, that is, in the thought and will of men, which then loses all content, but in impudent capriciousness only destroys what it finds. It must however be recognized that this conception of Hegel’s, in that it postulates both an objective power and a subjective appropriation and fulfillment as distinct and nevertheless unified aspects, scientifically prepared the way to establish a truer standpoint (that of the personal world cause) from the true insight [Erkenntniß].

The newer school of thought [Bildung], as it confronts us in the great multitudes, in the age in its totality, has appropriated essential aspects of the ethical kingdom (freedom, self-action of peoples and individuals, the law as the all-permeating necessity of public life in contrast to arbitrary rule), but in exchange has forfeited the first and foremost of those aspects, the given higher real authority, the ruling authority, for and over the people, in which it is to become politically unified. It therefore everywhere revolves around two abstract concepts, freedom and law, and cannot consider it to be possible that not everything will have been exhausted therein; it had no clue that the most essential thing was lacking to it, the original ruler and the original collective purpose of rule by which alone the multitude becomes a kingdom. In accordance with this, it does not conceive of law as a given higher thing, as the law of the great institution, which as one and the same passes through the ages, albeit understood in constant advancement; but merely as a self-made thing, as the will of the then-living generation. Thus is the truth mixed in with the error of public opinion. On the other hand, the few who maintain this aspect of authority in living consciousness have the habit partly of maintaining it in such one-sidedness that they yield or at any rate subordinate that other principle, the more so as the general manner of its assertion scandalizes them in the highest degree, as it ought to. From this stems their aversion to all that is constitutional, to political freedom. That concept in its entire amplitude is therefore the true proper middle way, that is, the articulated higher view in which the motives of the combating parties together find their genuine satisfaction. (1)

The concept of the ethical kingdom is distinguished from that of the ethical organism in the same way that kingdom and organism are distinguished in all cases. The organism contains determinate, various members which mutually supplement each other, of which none have an independent existence, all of which in fact are required for the organism to exist (head, rump, two arms, legs, etc.). The kingdom, on the other hand, contains an unlimited quantity of equal independent existences, which neither mutually presuppose each other nor are required for this concept the way they are in the case of the organism, but stand under a higher rule. In this sense we speak of natural kingdoms. The plant kingdom is a plant kingdom even when this or that specimen, in fact this or that kind or genus, is lacking, and the one plant does not require the other. We however call a kingdom the embodiment of selfsame natural constructions [Naturgebilde], in that here as well a higher ruling spirit is taken up in all these existences, thereby ruling them; because all rule is the absorption of the thought and will of the ruler in the being of the ruled. We must consider the divine Spirit to be active in the moments of creation in a manner such that His thoughts are incorporated in matter in a systematically advancing, mutually adapted manner, such that matter is filled with those thoughts, in order truly to recognize that Nature comprises kingdoms and is itself a kingdom.

It is the same with ethical relations. For example, marriage is an ethical organism. The rule of the state, when it is not, as in despotisms, a mere personality, is an ethical organism, in that personality everywhere can only be replaced by some such. Prince, estate, judiciary, the orders of officialdom supplement each other; state rule is not entire when one or the other is lacking, and, where they are not lacking, it is complete in itself. (2) On the other hand, the state itself, i.e., the mass of men in its ordered rule, is not an organism but an ethical kingdom. Though millions be added to it, it does not require any of these particular individuals in order to be a state; all are ruled by the same power and order and are thusly united in it, and the union of these collective individuals under this order is the purpose of the state.

On the other hand, however, the concept of the ethical kingdom likewise is to be distinguished from the municipality [der Gemeinde]. In the municipality the higher rule stems from the will of the united persons, while in the ethical kingdom it stems from a power and authority prior to and over them. Thus, the Christian congregation [Gemeinde] (even considered as the collective congregation of all living Christians) recognizes as such no other law and regard than the will and the conviction of the collective members in their unity. By contrast, the kingdom of God derives its law and regard from God himself, and the Christian church, which also is an ethical kingdom and as such is to be distinguished from the collective congregation (even when comprising the same persons), derives a law and regard from the God-established institutions and the constitution with its leaders [deren Obern] as decreed in history. The jurisdiction to forgive sins is not granted to the congregation (not even the collective congregation) but to the church in this sense; the congregation elects its pastor but the pastor does not derive his authorization through the congregation (persons cannot grant such) but through the church, through the pre-existing ecclesiastical ruling authorities and offices which the current generation did not give, thus through the institution which stands over the congregation of the collective living members. Even terminologically, the congregation is composed of persons while the church, i.e., the house of the Lord (κυριακόν), is something institutional [Anstaltliches] over them. It is the same in the area of politics. The civil community rules itself (self-government); its constitution is therefore also republican in accordance with its nature (self-elected ruling authorities, etc.). By contrast, the nation is to be a state and thus an ethical kingdom. It is therefore usually governed by a given higher authority, a king, and itself, i.e., the nation, is only allowed the free appropriation of the laws.

Should one grant this concept of the ethical kingdom, in particular also the given real authority which is the primary aspect of it, one must then also grant the entire political conception as carried out in the remainder of this work. Rousseau’s entire book is nothing more than the implementation of the concept of the “general (human) will” as the principle of public life. Mine is nothing other than the implementation of the concept of the ethical kingdom as an order and power over men, who nevertheless belong to it as free self-acting members.

§. 2. Dimensions of the State

The doctrine of the state comprises a spectrum of relations in which the entire task of the state is fulfilled only when they are taken together: to wit, the state in itself, the mutual relation between states, and the elements and smaller spheres under the state. Each of these relations has its characteristic concepts and providential purpose (τέλος), but they all finally flow into the one concept of the ethical kingdom.

By the state we understand firstly the closed association of a large number of persons under a supreme independent (sovereign) power. Its providential purpose is rule for the totality of human collective conditions and common purposes. For this rule, the human community is ordained an institution through which it exercises power over individuals as one will and acting subject, as a consciousness identical with itself. The state is therefore in its innermost essence a personification of human community. To this end, it is however also essential that this ruling will is to be rooted in a mental determinacy, an individuality (Book I, §. 9), in order for its rule to flow from an ethically rational, in itself unified view of life. This is why the state is the task of the people and not of mankind in its entirety. By virtue of the unity of its descent or its history, and by virtue of its organizational development and the connectedness of its activities, this unity of consciousness and appreciation of life, both in general terms and specifically with regard to the common condition, exists in the people. Only the people therefore has the energy of common consciousness and the pervasion of its conditions that are needed to constitute a state capable of acting as true personality.

Collective mankind has no business ruling life as a subject, but it does have the task, as a community of peoples, of embracing and supporting as basis the rule exercised by the people (the state). This is the law of nations [Völkerrecht] and diplomacy. The providential purpose of the community of nations is the conservation of the peoples and states in their existence and their rights, and consequently the care for general interests which make up the shared basis of the condition of individual peoples, such as e.g. the freedom of the seas, world trade, and finally, in the case of higher development, even the maintenance to a certain degree of generally recognized political principles, which governments are to lay at the foundation of each state.

World history starts from the condition of the most extreme division and animosity among the peoples, the consequence of the confusion of human consciousness. First the Christian deliverance of humanity restored the possibility of a bond of inner conviction among the peoples. From there outward, there is an approximation in the community of nations to a “kingdom” (rule of a personal character) over the individual states in terms of form and content. In terms of form, in that instead of isolated negotiations between individual participating nations, a constitution-like, all-encompassing bond is more and more to be produced, by which the affairs of the peoples are being ordered as one undivided association of nations; in terms of content, in that more and more unity of political appreciation is to be generated among the states. Should this latter become complete – which on Earth will not occur – then humanity instead of the peoples would have the vocation to be a state. But that would mean the end of world history. The medieval emperorship was an anticipation of this situation, which is why it existed more in the idea than in reality. On the other hand, it is an undeniable truth that the collectivity of the peoples has the vocation to support the most basic foundations of ethical political order when they are lacking on the part of a specific people. This was the intention of the Holy Alliance. It would be one-sided to look for this foundation purely and simply in monarchical power. An intervention establishing the monarch in his full power but which does not help the people against the dissolution of reaction or to secure truly founded rights and the restoration of a lawful condition cannot engender ethical veneration and satisfy the public consciousness. It therefore is only an ephemeral external restoration, without establishing the fundamental attitude which alone is capable of durably securing the restoration. When the powers of Europe, or Germany as the case may be, step in as a higher authority to protect the ruling authorities of a country against its subjects, they thereby assume the obligations of higher authority, to preserve law and justice and even quarter and pardon, and to facilitate a return of calm, while on the other hand the government which in this manner is supported by foreign help has to that degree forfeited its right to entire independence. Great difficulties at any rate accompany such maintenance of justice and order against the contemporary revolutionary movement, which is aimed not at certain individual rights but against the ruling authorities and the entire legal order. But that does not relieve the duty. Accordingly, nonintervention as a principle is erroneous; but intervention should only occur in rare cases. The actual, regular vocation of the community of nations is therefore only the ordering of international relations.

Outside of the community for the totality of life purposes, which is the state, the people also develops communities for particular purposes, firstly local communities (municipalities), then vocational communities (estates). As their purpose in the final analysis is merely a component of that total purpose, so are the elements and members of the state, but in accordance with their specific nature and their own interests they are separate from the state; they are not mere appendages of the state, but are their own institutions with an independent position in the state. As such, they must also have a rule of personal character, to be constituted as a single, conscious acting subject – this is the municipality and the vocational community (corporation), or when, in the case of landownership, relations of superiority and dependency exist and are legally exercised – manorialism. These smaller communities, to the degree that they serve the mutual satisfaction of needs and not the purpose of collective rule in accordance with higher concepts, comprise the sphere of “society” in distinction to the state in the strict sense or the sphere of politics.

Accordingly, the ethical kingdom which men are to construct has its center and final fulfillment in the state, that is, the individual cohesive association, but it derives its full subject matter and content from the life and work of the smaller spheres, municipalities and estates, and it is supported and borne, and for certain of its highest tasks even supplemented, by the mutual security and reciprocality of the peoples.

Correspondingly, the doctrine of society and of the community of states is essential to the doctrine of state. It encompasses the strictly political, the social, and the international spheres, while only all three together in inseparable unity are the state in accordance with its entire full significance.

The sphere of the state in this extent is juridically expressed as the sphere of public law according to its secular side, thus in exclusion of the church. For these are the two great institutions for the rule and education of the human race, the one according to the earthly, the other to the eternal purpose, state and church, which we include under the concept of public law as opposed to private law as the sphere of the fulfillment of individual existence (Book II, §. 45). The state exhausts the sphere of secular public law; municipality and estate are elements of the state; the law of nations is a relation among states.

§. 3. The State as Personality

From the discussion thus far we may therefore derive the legal type of the state, or, what is the same thing, the type of public law, both in itself and in distinction to that of private law, and valid for the church as well to the degree that it exists as an external, legally-ordered institution.

Public law comprises all human communities, all human rulerships for the fulfillment of human common existence; private law comprises all relations for the satisfaction and fulfillment of individual existence. Public law rests on the concept of the ethical kingdom, in the same way that private law rests on the concept of personality, and in all its institutions it has a double principle of development, just as does the latter (Book III, §. 1), namely first the providential purpose (τέλος) of the concerned institution, that is, the material and spiritual tasks of common life, and second the personal character of rule, as we have discussed it. It [i.e., the ethical kingdom – rca] is the general type of public law, just as the personal character of life is that of private law.

The characteristics of public law thus are:

  1. Power (imperium), to which the members are subordinated; this is not a power of the ruled which is transferred by them, as is associational power [Gesellschaftsgewalt], nor is it a power for the personal satisfaction of the ruled, as is domestic power (potestas), but rather power inhering in the institution itself and serving to fulfill its requirements. This concrete factual foundation and meaning of power distinguishes public law from private law. Should one conceive the power exercised in public legal institutions, namely in the state, as mere associational power or as patrimonial power, in either case the concept of public law is eliminated, leaving only private law.
  2. The ordered coherence of men according to specific positions, and therefore the arrangement within the institution, which is the subject of rule – the constitution.
  3. The range of necessary purposes and ordered tasks to achieve those purposes – the administration. This legal necessity of purposes and tasks likewise distinguishes public legal institutions from private ones, and the true public principle from the patrimonial.

That peculiar character which is the principle of development of public law (§. 2.), that of the personality of rule, is realized through these characteristics. It therefore permeates all the institutions of public law. The state, the municipality and corporation (even the church as external institution) have as one of their essential traits, that with regard to rule they are personalities. This trait is not to be confused with the concept of the legal person. Much rather, one may characterize it as the concept of the political person in contrast to the legal person. The legal person is a figure of private law and only entails the capacity to be a bearer of assets [Vermögenssubjekt], while the political person is public and entails the capacity to be the subject of action and rule. The state, for example, in that it adjudicates, rules, etc., is not a legal person but has a personality in a much higher sense, such as is lacking in e.g. a foundation.

The question at issue, as to whether the state is to be considered a moral person, whether the monarchical state is a person separate from the prince and is the actual subject of power, is to be decided accordingly. The state is in no way a moral person in the usual legal sense; only the fisc is that. The latter is most certainly separate from the prince; the prince can in this respect turn around and form a moral person from his income (Civil List), distinguished from himself as well as from the treasury. By contrast, the state is a person in the sense given here; as such, it is to be distinguished from the prince, while yet other organs outside of the prince together constitute this artificial person; but it is never to be separated from the prince and recognized as an independent subject apart from him, because its personality has its center in the prince and hence could not exist without him. When, for example, the prince issues a legal sentence or, in a constitution with estates, passes a law without the approval of the estates, this would be no act of state but merely of the prince (actually, only of the person who is the prince); this manifests the distinction between state and prince and the justification that it be asserted. However, the estates cannot do anything without the prince, nor can the judge enforce anything in the face of his obstruction; the state therefore can factually and legally execute no act without the prince, and is nowhere a personality apart from the prince. (3)

In consequence of these considerations, the essence of the state and all institutions of public law consists not in substance (impersonal necessity) acting through it as a higher power over personalities, as in Hegel’s conception, but quite the opposite, in the community itself becoming a personality. The former conception does nothing less than contradict the character of the state. It would only answer to a condition in which no concentrated acting power (imperium) existed but in which collective persons of themselves followed a higher rule. In reality, the entire shape of the ethical world confirms the personality perspective and refutes the pantheistic perspective (Book I, §§. 6 and 7).

Notes

1. When I here and in the following combat the standpoints of the parties, I in no way deny that which the writers of these parties apart from this have achieved which is true and good in certain results. Even less do I find myself in opposition to those who apart from any ethical-philosophical standpoint – simply the general sense of the good and right in the background – exclusively apply the perspective of external result, experience, history as standard. This treatment will of course always have its great shortcoming, while such a standpoint, like the rudder of the investigation, cannot be lacking and therefore always will include such philosophical determinants [Bestimmungsgründe], only less investigated and conscious. On the other hand, however, it has the advantage of an impartiality in the treatment of results which someone of general scientific viewpoints, be they proper and clear as you like, does not entirely preserve. Both methods of treatment are therefore necessary and suitable mutually to purify each other.

2. That state rule is an organism in no way leads to the conception that it must have the same or analogous organs as the human body, such as the parallels drawn by Bluntschli in his book Psychological Studies on State and Church. The many unacceptable results need not hold as a refutation of a great scientific conception; but it certainly is scientifically certain (a priori) that such a parallel cannot exist; for when the state has equally in common with the human body that both organisms are instrumental facilities, it is still obvious that the instrumental facility serving the purposes of an individual life (facilities for breathing, eating, procreation) must be something other than the facility for the rule of a number of independent personalities (facilities to maintain justice, to develop a joint power, to promote common mores, etc.). Even if, therefore, the doctrine of that adventurous philosophy of the sixteen basic organs of the human body were more than a simple game, for all that it does not follow that the state must have the corresponding organs – on the contrary, it follows that it cannot have them. As untenable as this new doctrine of state is, to that degree it is rich in detail in instructions and apt results; even so, this is not the consequence of those notions but of the personal insight of this capable writer and statesman. It is similar to how in earlier times often superior and mentally excellent men for a time attempted with an adept to obtain, and actually also obtained, some real gold in that adept’s wonderful laboratory, but only that which he had given in the first place, not that which the charlatan prepared.

3. Maurenbrecher’s book The German Princes and Sovereignty throughout confuses the legal personality and the political personality of the state, and confuses the distinction of the state and the prince with its separation from the prince.