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.
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