Table Of Contents
- Title Page
- Copyright Page
- About the author
- About the book
- This eBook can be cited
- List of abbreviations
- Chapter I Robert von Mohl and his era
- 1.1. The sociopolitical situation of German lands from the beginning of the 19th century until the unification of Germany
- 1.2. The state in the views of selected German thinkers of the mid-nineteenth century
- 1.2.1. Karl Ludwig von Haller
- 1.2.2. Friedrich Julius Stahl
- 1.2.3. Adam Müller
- 1.2.4. Karl von Rotteck
- 1.3. Life and work of Robert von Mohl
- 1.3.1. Family environment, childhood and youth
- 1.3.2. Scientific and academic activities
- 1.3.3. Political activity
- Chapter II Introductory concepts for the idea of state
- 2.1. Theory of the spheres and objectives of human life
- 2.2. The concept of society in the thought of Robert von Mohl
- 2.2.1. Attitude to the contemporary understanding of society
- 2.2.2. The concept of society
- 2.2.3. The system of “sciences of society”
- 2.3. The genesis, concept and systematics of “sciences of state”
- Chapter III The idea of the state and its diversity.
- 3.1. The origin of the state
- 3.2. Definition of the state and evolution of its concept
- 3.3. Population of the state
- 3.3.1. The state and the significance of its inhabitants
- 3.3.2. State and nationality
- 3.4. Theory of the “species and forms of states“
- Chapter IV The legal state in theory and action
- 4.1. The legal state: the genesis and meaning of the concept
- 4.2. The legal state and the individual
- 4.3. Sources of law
- 4.4. Administration and its operation in a legal state
- Chapter V The power and representation in state
- 5.1. The concept of power
- 5.2. Parliamentary representation and its role
- 5.3. Assessment of the phenomenon of democracy and issues of electoral rights
- Work Summary
- The current value of the von Mohl views in the context of today’s legal institutions in Poland and Germany
- Series index
Is it possible for a law to exist and function in isolation from ideas? Is it possible to create a specific legal institution, without looking not only at what factual state it is supposed to achieve, but also whether this actual state can be regarded as justified, equitable, and rational? Undoubtedly, law is an instrument for influencing the behaviours of people. A legal norm is a specific manual on how to operate in specific factual conditions that function in real people’s lives, that actually answers the question: “how?.” Hence it says a particular individual how it should behave in a specific situation. However, can the examination of the law be reduced to the simple answer stating how to behave, or what sanction will be imposed on whoever fails to comply with the order or legal prohibition? Surely not. The second question that should be asked when analyzing specific legal institutions should be: “why?.” The answer also requires the reason that motivated the legislator to introduce legal regulations towards specific entities, in specific conditions.
It is undeniably correct to say that a full-fledged understanding of law must also include an examination of the ideological, doctrinal reflection that accompanies the respective institution of law. Knowledge of the doctrine understood as “a systematic set of ideas, theories and political programs or their fragments, aiming to exert a real impact on reality”1 allows the lawyer to go deeper into the area of knowledge it deals with.2 The scientific discovery of the branch of political and legal doctrines is not limited to just theoretical broadening of the body of knowledge. Quite the contrary. We can put forward the thesis that it also has an extremely practical dimension. It allows a lawyer to avoid becoming just a “technician” in the service of power, a tool in the hands of other people, often pursuing very particular interests.3 A lawyer operates one of the most effective and widespread tools to influence reality. Cutting such person off sources that ←11 | 12→were developed over centuries of progress of civilization may deprive it of the ability to formulate judgments assessing whether a particular aspiration deserves legal sanction, or not. It is also correct to state that lawyers of every era are made responsible for the functioning of the political order.4 So it is on their shoulders that the state, the whole political dimension of the common existence of people, function on solid, healthy and just grounds. Ius est ars boni et aequi, this maxim should guide every lawyer, and what enables a lawyer to judge what is good and just is the very study of political and legal thought, both in their historical, but also contemporary dimension. In addition, guided by the Roman maxim, we should also note that law is an art. It is not technical knowledge, it often fails to deliver simple answers, by mere substituting data into a formula. The above reflection underlies this monograph, which goes back to the thought, the doctrine to which many institutions of the state and law refer today.
Another assumption underlying the present monograph is the conviction that the state and the law are, sui generis, inseparable. These two concepts can be considered as conditioning each other. What would a lawless state be? Could it function without the set of norms telling its residents, how to behave in certain situations of their lives? What is more, could the law operate without the state, its organization and the executive apparatus providing instruments for implementing legal norms? The answer to the above questions must be negative.
Based on the above assumptions, the subject of the present work is the idea of the state in the thought of Robert von Mohl. This German lawyer and politician is considered one of the creators and popularizers of the Rechtsstaat concept. The rule of law5 is undoubtedly one of the constitutional foundations of most civilized states today. However, Mohl’s vision of the state is not limited to idea of the rule of law. The scholar presented a comprehensive vision of the state, and its role in human life. Therefore, the analysis of his views in this respect is part of the paradigm presented above, which is not only a kind of indissolubility of the state and law, but also postulates that at their foundations there should lay a definite and complete vision (doctrine, thought).←12 | 13→
Another reason that we decided to take up this subject is the current condition of research on the state thought of Robert von Mohl. It will not be a mistake to assume that von Mohl and his achievements are far from popular a subject for research in Polish science. There is also no monogaphic study dealing with any aspect of the von Mohl idea (including the state). The merit of introducing the figure of the German scholar in Poland should be attributed to Adam Bosiacki. He modernized the sole work of a German scholar translated into Polish, namely the Encyclopedia of Sciences of State,6 also writing the Polish introduction thereto. The ideas of von Mohl, primarily those related to his vision of Rechtsstaat, function as topics for several scientific articles and are present in collective studies and academic textbooks on the history of political and legal doctrines. It should not be surprising, however, that in German science, von Mohl’s oeuvre was subjected to more frequent analyses, albeit it is difficult to compare it, even in terms of quantity, with publications devoted to such masters as Immanuel Kant or Wilhelm von Humboldt. The Mohl’s idea of state was thus the subject of analysis by representatives of German science. However, publications on this issue are either relatively old (created e.g. in the 1960s) or have the form of scientific articles or single chapters in monographs, which are necessarily shorter forms.7
The above-mentioned reasons all justify taking up the subject of the monograph. Its purpose is a comprehensive synthesis and discussion of the vision of the state that was presented by Robert von Mohl. We will also prove the rationality and comprehensiveness of Mohl’s understanding of the state. Furthermore, on the background of historical events, we will also prove that von Mohl was rooted in the achievements of two different eras, in his understanding of the role of state. Thus, on the one hand he will be still inspired by the absolutism era and its Polizeistaat,8 on the other by the liberal reflection in the form of the Rechtsstaat ←13 | 14→idea. It is the spread of the scholar’s ideas between the two great epochs in the history of comprehending the state, and his attempt to synthesize them, that make his achievements a fascinating, and inspiring object of research.
The timeframe of our work is limited by the perspective of the scientist’s life and work. It is, above all, the period from the beginning of the nineteenth century until the creation and the first years of the Second Reich. Due to the fact that von Mohl drew on the achievements of the enlightened absolutism, references will also be made to the second half of the 18th century. There is no doubt that the subject of the work defines von Mohl’s ideas concerning the state as the main axis of the analysis. However, it will also present the concepts of other politicians, scientists and thinkers. They will not only provide specific benchmarks for the achievements of the Württemberger,9 but will also give the present argument a cognitive depth. They will set the understanding of the state by von Mohl in a specific ideological context.
This work consists of five chapters, each of which has a specific role and research task.
The first chapter is primarily an introduction to the main topics of our analysis. Its task is to outline the general political and social picture of the German states in the nineteenth century. This objective is met with a brief overview of the most important events and ideological trends taking place in nineteenth-century Germany.10 The main focus is pointing out and underlining the social and political unrest that took place in German areas throughout virtually the entire 19th century (until unification under the rule of Prussia). Economic and social issues were also raised, including the economic backwardness of Germany in relation to France and England, the industrial revolution and the related rise of the proletariat, and the urban bourgeoisie. We also stressed the issue of German reunification, the Spring of Nations in its territory, and the events of the Frankfurt Parliament. All this was superimposed on the formation of the German national ←14 | 15→community, a sense of separateness and the specific German ethos. Attention was paid to the sentiment of many Germans to the times of enlightened absolutism, to life under the protection of the caring monarch in the Polizeistaat. However, conservative ideas were increasingly tested by the stratum of liberal (as for German conditions) middle class that was growing in strength, demanding civil liberties and the liberalization of political life. The period of the nineteenth century in Germany, until the proclamation of the Second Reich in 1871, was marked by a more or less intense battle between what was past (conservative) and what was new (liberal). Liberals (including von Mohl) were in favor of freedom of property, freedom of thought, basing the state on a written constitution and introducing parliamentary representation. At the other extreme there were the conservatives, who saw a chance to return to feudal relations, estate organization of society and the omnipotent power of the monarch through the restoration process. In this melting pot, the specific German version of liberalism was forged, which abandoned the aspirations of revolutionary change in favor of reform-oriented cooperation between the people and the authorities (the ruler).
The first chapter also presents the views of several thinkers, whose perception of the state can be considered emblematic for the ideological portrait of Germany at that time. The underlying intention of this research activity was to present the widest range of views represented at the time in Germany. The conservatives discussed are: Karl Ludwig von Haller and Friedrich Julius Stahl. The first of them referred to pre-revolutionary feudalism and was the creator of the idea of restoration. The second, who lived later than Haller, was also a bit more progressive than the latter. He was in favour of the Rechtsstaat concept (but only in its formal dimension). However, he criticized the understanding of the state characteristic of contemporary liberals. We also referred to the so called romantic vision of the state, as presented by Adam Müller. He treated it as a metaphysical being, but also a necessity for the individual that was aiding it. The eclecticism and uniqueness, as well as the specific turbidity of his conception, perfectly illustrate what ideological melting pot was the then Germany. The task of sketching the ideological picture of Germany at that time will be completed with presentation of views on the state of one of the most prominent German liberals at that time. We are talking about Karl von Rotteck. His views will demonstrate the other opposite, towards which the progressive part of Germany was heading. In addition, due to the nuances and differences in, for example, the perception of the issue of electoral law or the idea of separation of powers, an analysis of his views in comparison with the visions of von Mohl will demonstate that German liberalism was far from being an unambiguous current.←15 | 16→
Every individual, and certainly an individual, who is politically aware and, moreover, actively participates in the life of the state, during its existence often even involuntarily, soaks up the trends of the reality in, which it finds itself. It was no different with Robert von Mohl. Therefore, the threads of the scientist’s biography cannot be omitted. Our analysis of this aspect will prove that von Mohl was a child of his era. Coming from a respected, noble, bourgeois family, he received a thorough education and used it in both scientific and practical activities. His scientific activity was complementary to his political activities. In his works, he often used conclusions derived, for example, from activities in the Frankfurt Parliament.
The second chapter is also there to construct a background for von Mohl’s state doctrine. Here comes the statement that for von Mohl the state was just one of many so-called “spheres of life” in which individuals function during their existence. From our analysis of the idea of “spheres of life,” it also appears that, for von Mohl, the state was not something total, overwhelming the entire human existence. Therefore, other “spheres of life” and their relation to the state were also briefly discussed. Furthermore we also discussed the concept of goals of human life. It was also this concept that formed one of the cornerstones for the assumptions of von Mohl, used to construct the concept of state and the justification for its very existence.
One of the “spheres of life” listed by von Mohl was the society. Due to the fact that he was one of the first nineteenth-century German thinkers, who saw the existence of this phenomenon, we decided to devote a separate editorial unit to it. The idea of the sphere of society is very extensive in von Mohl and it also forms the background for his idea of the state. We started with presenting the Württemberger’s assessment of the earlier scientific achievements in the field of society. It proved the scholar’s great knowledge of the literature on the subject (although sometimes misinterpreted), forming an introduction to his original concepts. The answer to the so-called “Soziale Frage” (social issue) was one of the scholar’s distinguishing features against the ideological background of contemporary Germany. We will prove that he was one of the first German writers, who noticed the formation of society and the proletariat. He also attempted to find a solution to the problems arising from this phenomenon. We will also present his perception of relations between the state and society, which is important also from the point of view of parliamentary representation (as discussed in chapter five). The analysis of the system of “sciences of society” in von Mohl’s thought will function as a link to the issues raised in the next subsection.11 The purpose of ←16 | 17→this research task is to demonstrate that von Mohl gave a similar rank to society, the state and the individual (and he created a separate pattern of sciences for all these entities).
The entire scope of knowledge relating to “sciences of state” proves the comprehensive approach of von Mohl to the phenomenon of state. An analysis of the Mohl’s understanding of the state would be incomplete without discussing the scope of sciences related to the state derived by the scholar. The very concept of Staatswissenschaften (sciences of state), as well as their role and popularity in contemporary German science will be analyzed. Similarities and differences between the perception of sciences of state by von Mohl and other contemporary German thinkers (primarily Karl von Rotteck, Karl Theodor Welcker, Friedrich Bülau) will also be pointed out. We will prove that von Mohl’s ambition was to create a system of sciences allowing the analysis of the state from all possible points of view. In addition to the law so he saw the state through the prism of politics and ethics. He was also not forgetting about the role of history and statistics in the state. This confirms that the state became the center of his scientific reflection. Another issue raised will be the ways for presentation of knowledge about the state. We will examine the encyclopedia of sciences of state, as a popular method of spreading the knowledge of state. It will be proved that von Mohl was in favor of popularizing it, formulating scientific statements in an easily accessible, and politically conscious manner.
Chapter three begins the discussion of the crucial content from the viewpoint of objectives of the present publication. It focuses on the analysis of the genesis and the concept of the state and its evolution during the entire career of Robert von Mohl. It corresponds to the spheres of life listed in chapter two, by indicating the differences between them and the state. What is discussed are also the ways for establishing a state, as distinguished by the scholar, and the goals it should be guided by. The research task undertaken in the thrid chapter is also to examine the constituent parts of the state, which von Mohl distinguished in its definition. Therefore, his concept was analyzed in relation to the concept of population and nation, “collective power,” “collective will” and territory.
Von Mohl claimed that the state is a creation that is functioning for the people. That is why the significance of the population for the state, thoroughly analyzed by the scholar, was separated into an editorial unit devoted to it. In this aspect, ←17 | 18→among other things due to the nationalist tensions of that time, it seems important to present the Württemberger’s views on the issue of the nation in the state. Therefore, the concept of individual rights in relation to the state resulting from belonging to such, and not another nationality, and their influence on the state was discussed. Our analysis of the Mohl’s concept of “species and types of states” forms both a substantive link, and a brief introduction to chapter four. On the basis of opposites, it will bring out the features of one of the scholar’s main considerations, i.e. the idea of Rechtsstaat.
As already noted, the idea of the rule of law (legal state, Rechtsstaat) was one of von Mohl’s most extensive research fields. In order to achieve the goal of analyzing his concept of Rechtsstaat, we will start by presenting the perception of the origin of the rule of law and the assessment, by von Mohl, of the views of other scientists in this aspect. Then we will go on to investigate the very understanding of rule of law by von Mohl, and attempt to define it. It will be emphasized that von Mohl links the idea of Rechtsstaat with a sufficiently high development of the rationality of a given people.
One of the material aspects of the Mohl ‘s idea of the Rechtsstaat were the relationships between the individual (citizen) and the legal state. To discuss these relationships we will first demonstrate the understanding by the understanding of the term of citizen by von Mohl. Secondly, both the rights and obligations of citizens in the rule of law will be analyzed. We will also analyze the formal aspect of the legal state, examine the sources of law in von Mohl’s and their mutual relations. Despite their universal nature, they also correspond to the Rechtsstaat concept, because von Mohl based his theory on a three-stage division of sources of written law. We also make a reference to the principles of the legislative process expressed by the scholar.
As part of chapter four, an analysis of the relationship between the absolutist police state and the rule of law in the doctrine of von Mohl is also provided. To this end, the concept of state activities through its administration will be discussed. We will present the principles of operation of the administration and “police” (Polizei) and their compliance with the principles of the idea of the rule of law. Mohl’s vision of the issue of bureaucracy and the functioning of officials in the state was also raised. A separate issue will be the admissibility of the use of coercion by the state, demonstrated on the background of administrative activity. The issue of use of coercion by the state (in this case by its police) is worth quoting because it shows the duality of von Mohl’s views, drawing from both the era of absolutism and liberalism.
The considerations undertaken as the main part of the publication will be closed by a chapter relating to the broadly understood issues of power in the state ←18 | 19→and its holders. This research task will begin with the analysis of the concept of power in the thought of Robert von Mohl and determination of the significance of his requirement of its indivisibility and irresponsibility. Next, the views of the scholar and their evolution in the field of parliamentary representation will be discussed. It was another topic that was subject to vivid discussion in the troubled nineteenth-century Germany. To deepen our argument on this subject, we added the description of the internal situation in relation to the development of the idea of parliamentarism. An attempt will be made to answer the question what shape of the parliamentary system did the scholar considered the most optimal one. In addition, the issue of the party system and the relationship between the vision of society and the parliamentary system will be analyzed. Evidence of moderation in liberal aspirations will be provided, by means of our analysis of von Mohl’s understanding of democracy and his opposition to universal suffrage.
The work on the preparation of this publication involved a number of trips to research centers in Germany. They enabled us to collect the necessary scientific materials and literature on the subject, which were usually not available in Poland. Two visits were made to the Berlin State Library (Staatsbibliothek zu Berlin), and a monthly stay was conducted at the Faculty of Law of the Ruprecht Karl University of Heidelberg (as part of the scholarship of the DAAD, German Academic Exchange Centre). In addition, using funds obtained under the PRELUDIUM 15 competition of the National Science Center Poland (research project No. 2018/29/N/HS5/01501 entitled At the origins of German liberalism: the state in the thought of Robert von Mohl) a study was conducted in the Library of the Institute for European Legal History of the Max Planck Institute in Frankfurt am Main.12 A number of scientific consultations took place, among others with dr hab. Małgorzata Łuszczyńska (Maria Curie-Skłodowska University in Lublin) professor UMCS, dr hab. Jarosław Kostrubiec (Maria Curie-Skłodowska University in Lublin), prof. dr hab. Adam Bosiacki (University of Warsaw), dr hab. Artur Łuszczyński (University of Rzeszów) professor UR, prof. dr. Martin Borowski (University of Heidelberg).
During the preparation of the work, we used mainly German-language sources and materials. However, the sole work of the German thinker published in Polish was a good reference standard. Works by other authors of that era were also used, and their detailed list is included in the References section.13←19 | 20→
As for the German-language literature on the subject, it was naturally a richer resource than its Polish counterpart. During the preparation of the monograph we analyzed German monographs, articles and studies on all aspects of von Mohl’s activity. Particularly noteworthy is the very extensive and comprehensive work by Erich Angerman (published in 1962). It provides a complete overview of the life and work of Robert von Mohl. The author focused on issues concerning the legal state, social problems, workers’ issues and economic views, as well as the theory of administration and parliamentarism. However, he did not pay too much attention to the systematics of sciences of the state and the general understanding of the state by von Mohl.
Mention should also be made of several doctoral dissertations published in print by Johanna Hähnle and Eduard Schupp (both published in the interwar period). The first concerned the scholar’s political ideas, and the second related to his economic views. Dissertations by Brigite Granzow (on the subject of Mohl’s idea of parliamentarism) and Helmut Schmitz (on the general idea of the state) appeared after World War II. There is no doubt that the aforesaid publications refer to the concept of the state in Robert von Mohl’s thought with varying intensity. However, we should note that all these are relatively short works (none of them exceeds 150 pages), written rather long ago, and often not using all the available sources.
It is worth noting the dissertation by Rolf-Jürgen Grahe from the 1980s, referring to civil rights, and the valuable work of Brigit Stöcker, dealing with the relationship between the concept of von Mohl and the principles of the “social legal state” (Sozialer Rechtsstaat) in Germany. The renowned German political scientist Klaus von Beyme published a collection of writings by Robert von Mohl, writing a valuable introduction to it. In addition to these publications, von Mohl’s concepts are present in a large number of articles or chapters of monographs. All those used for the purpose of the present work are listed in the References section.
As already noted, concepts relating to the state in the thought of Robert von Mohl as the subject of scientific research, were undertaken quite rarely in Polish science. The scholar’s views are present in textbook studies (among others by Lech Dubel). They also function as references, paragraphs or chapters in monographs (e.g. by Zbigniew Maciąg or Maria Gromadzka-Grzegorzewska). We should highlight, once again, also the merits of the aforementioned Adam Bosiacki. In addition to the activities already mentioned above, he is the author of publications relating to the world of German ideas and the rule of law in the thought of Robert von Mohl. Józef Nowacki also undertook an analysis of Mohl’s idea of the state in his article.←20 | 21→
The methodological assumptions adopted in the present work correspond to the methods assigned to the history of political and legal doctrines. The main idea was to determine what von Mohl thought about the state, and why he thought so. To this end, the views expressed by the German thinker were subjected to reconstruction, sythematization and evaluation. This action was also accomplished by placing von Mohl’s views against the background of the era in which he lived.14 To implement the methodological modus vivendi presented above, we applied research methods resulting from the interdisciplinary nature of political and legal doctrines.15
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- Publication date
- 2021 (December)
- Robert von Mohl Rechtsstaat’s idea Social state State theory German liberalism
- Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2020. 360 pp.