The present is a time for the paleo-conservative to rejoice, despite the multifaceted concerns which weigh heavily on the mind. There is a developing renaissance of historic conservatism, in part due to many recent translations, among which is the nineteenth century German legal theorist Friedrich J. Stahl. Protestant Conservatives in particular can rejoice, for finally English translations are being provided for someone of whom Peter Drucker describes as “…the last great Conservative system of European history – and indeed the only Conservative system within Protestantism: the theories of Friedrich Julius Stahl.”
However, this revival of a lost and historic German Conservatism presents an opportunity to address a particular objection that many have put forth with regard to this older conservatism. These detractors declare that the Protestant Conservatives, like Burke, Groen, and Stahl, have introduced relativism and do not hold to Natural Law.
Indeed, even the neo-Marxist Herbert Marcuse himself describes Stahl as a positivist, thus appearing to vindicate the opinion of Stahl’s opponents. It is true that Stahl fought for “positive rights,” as opposed to abstract ones as even J.M. Kelly, a recent legal historian and former professor of Jurisprudence and Roman Law has argued, noting that the school of thought from which Stahl was deeply influenced advanced a “form of positivism.” But the benefit of the second glance reveals there is more than meets the eye.
Stahl was a participant in the German Romantic movement, a conservative movement that, in part, rejected the principles of the Enlightenment. As Paul Gottfried explains, “Romanticism was a reaction against a transformation of natural law.” That is to say, Stahl rejected not an objective nature to law or ethics, but rather the Enlightenment perversion of classical natural law. To see this more clearly, we must first define our terms.
Distinctions of Positivism and Natural Law
How exactly is Natural Law theory distinct from Positive Law theory? To answer, we can make reference to the so-called Separation Thesis.
In short, Natural Law theory holds that “an external [ethical] standard” can be employed to “assess the justice of our positive, or written laws.” A Positivist theory, on the other hand, holds that ethics and law do not intermingle; that whether a law is in fact law, is a radically distinct question from whether the law is good or bad. Hence the term “Separation Thesis.” Practically, this means that the positivist could not agree with Augustine that “an unjust law is no law at all.”
The Romantics produced a multiplicity of legal theories, often distinct in their own right. But to lump them in as a form of positivism would be inaccurate, at best. Hegel, for example, while technically a Natural Law theorist, insisted that the ethical standard by which the law was critiqued was not external but internal to the law itself. It can be easy to understand him, therefore, as a sort of positivist, as many have. A too-hasty reading of Stahl is no different.
However, Natural Law during the Enlightenment had changed radically. The ancient conception, held by Cicero, Augustine, and Aquinas, understood natural law to originate from God. The Enlightenment understood natural law to be entirely distinct from God, based on reason alone. Yet, as we shall see, the 17th century’s conception of Natural Law was even more radical than this.
Thus, it is no surprise that Stahl took exception to the legal trend of his day. Like the ancient and medieval Natural Law theorists, he believed there was a difference between “true law” and what is technically “law.” This is made evident by his teaching that to disobey the law can sometimes be permitted by what a higher law demands.
Burkean-Stahlian Legal Theory
Friedrich Julius Stahl was an avid student of Edmund Burke and “endowed with all the eloquence of Burke” but “with more erudition.” A fellow teacher alongside Schelling, Stahl specialized in Constitutional law whose work was adopted by Germany more broadly. As is well known, the intellectual currents of Germany were pushing back against the Enlightenment; a reaction embodied in German Romanticism.
This 19th century Romanticism gave birth to the Historical School of Jurisprudence; a Burkean flavored legal theory. This school, of which Stahl was a part, held that “the law should be seen as an organic and developing phenomenon in the history of civilization, of which every stage demanded study.” Each locale, each people, are irreducibly unique. And since each people are unique, in spirit and in personality, there is a form of law and government which reflects this uniqueness, which in turn is a manifestation of the transcendent ethic. On this view, laws are both to be conditioned by the society in which they are created for and rooted in an eternal order. This idea is reminiscent of the “general equity” concept regarding the OT legal code.
If this is what the Historical School was for, what were they against? That is, what was the Enlightenment idea of Natural Law? “The perfection of reason, the last word of the natural-law tradition,” was man’s arrogant attempt to create a complete system of law, based on a priori reasoning alone. But the development of law, just as civilization, is the work of centuries. No mere mortal alone has the capacity to reason forth an exhaustive code of law. For example, how could the Napoleonic Code foresee the future of cloning, and make laws regulating or forbidding it, accordingly? Laws must grow and change as society does, which to the Rationalist smacks of relativism.
Stahl and the Romantics fought hard, Gottfried concludes, against the form of society “proclaimed by the French Revolution, divorced from all given political realities. In brief, then, the idea which the Romantics most sharply opposed was not natural law as such, but that version of it which prevailed by the end of the eighteenth century,” (emphasis added). Natural law, on the Burkean-Stahlian view, is always mediated, or instantiated, in history. The objective is always mediated within the subjective. If Stahl was a true Positivist he would not be able to claim that a citizen’s conscience can be valid grounds for disobedience to the state. If Stahl was a true Positivist he would not hold that the validity of the law is determined by an objective standard. He simply took the nuanced view that the objective morality must always manifest itself in the particulars of history and personality.
Stahl did not condemn the ancient form of Natural Law held by Augustine and Aquinas, but he harshly wrote against the then prevailing concept–which deserves not the title of Natural Law–in his work, Private Law:
The earlier natural law theory, incapable because of its subjective standpoint of comprehending an organic relationship such as is exemplified in the family, degraded [the family] to the lowest level. According to Kant, marriage is a contract for the mutual exclusive use of sexual functions; with Fichte, unrestricted sexual intermingling can legally take place.
It is clear he was here talking about the Enlightenment conception of Natural Law. And so it is important to note, and note well, that there is a deep irony…the Natural Law position then in vogue actually operated from a “subjective standpoint,” as Stahl saw it. Due to its failure to recognize the particular, historical, and contingent realities, that is, since this new legal conception denied the “organic relationship,” it could only produce a view of institutions, laws, and relationships that fail to bridge the gap between the objective and the subjective. What Stahl and the Romantics were able to see was precisely what took place in France. The post-French Revolution desire for a perfect and complete law based on reason alone led to the grossest form of positivism, where “might makes right.”
Paul Gottfried explains that Stahl’s task was:
an arduous effort to restore the balance between the ideal and reality which is the genius of natural law. Stahl, like Burke, wrestles honestly with [the] question…How does one do justice to the exigencies of conscience or reason without doing violence to the historically-given?
Stahl understood what many still today do not, namely, the attempt to claim a Natural Law theory based on the precarious grounds of Rationalism will inevitably, and ironically, end in positivism. Only a nuanced position which unites both the objective and the subjective, or rather, the objective mediated within the subjective, does a Natural Law theory survive and succeed. Human law must, indeed, reflect God’s pure standard, yet, human law is just as much a part of culture as all other forms of culture are themselves. Art, school, government, and all other aspects of culture reflect a collective personality. The Rationalist assumption was that the personality of each people group could not express a universal Natural Law, an assumption that the Burkean-Stahlian theory simply did not share.
Citations & References
 Peter Drucker. “Friedrich Julius Stahl: Conservative Theory of the State and Historical Development.” Claremont Colleges Digital Library, Drucker Archives, 7 Aug. 2009, ccdl.libraries.claremont.edu/cdm/ref/collection/dac/id/3413. Accessed 6 Feb. 2020.
 Herbert Marcuse. Reason & Revolution: Part II, The Rise of Social Theory. www.marxists.org/reference/archive/marcuse/works/reason/ch02-2.htm. Accessed 7 Feb. 2020.
 J.M. Kelly. A Short History of Western Legal Theory. Oxford, Clarendon Press, 2013, p. 324.
 Paul Gottfried. “German Romanticism and Natural Law.” Studies in Romanticism, vol. 7, no. 4, 1968, pp. 231–242, p. 242, www.jstor.org/stable/25599714, 10.2307. Accessed 7 Feb. 2020.
 This distinction only goes so far, as a recent debate between Joseph Raz and Robert Alexy suggests.
 Thom Brooks. Hegel’s Political Philosophy : A Systematic Reading of the Philosophy of Right. Edinburgh, Edinburgh University Press, 2013, p. 82.
 Brooks, Hegel’s Political Philosophy, pp. 82-96.
 Gottfried. “German Romanticism and Natural Law.” pp. 239-40.
 Ibid., p. 239.
 Kelly. A Short History of Western Legal Theory. p. 324.
 Kelly. A Short History of Western Legal Theory. p. 324.
 Gottfried. “German Romanticism and Natural Law.” p. 232.
 Ibid., p. 239-240.
 Friedrich Julius Stahl. Private Law. translated by Ruben Alvarado, Aalten, The Netherlands, Wordbridge Publishing, 2007, p. 116.
 Gottfried. “German Romanticism and Natural Law.” p. 240.
Robert J. McPherson IISee More Essays
Robert J. McPherson II is a graduate of RC Sproul’s Reformation Bible College with an honors degree in theology. He has an MA in Philosophy from the University of Buckingham; conducting research under the guidance of Sir Roger Scruton. His thesis is on personal responsibility and social justice.