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.
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