Legal philosophy is the science of the just [Gerechten]. Expectations may differ regarding such a science of the just. One can envision a system of actual decisions, a higher law code, or merely a rule of judgment about existing laws. One thing, however, is undeniable: the just must have its existence and its virtue independently of its recognition among men, and therefore the knowledge of it must be something else than the standing law, such that, in fact, this latter can only be measured and tested against it. Some have probably come to hold all institutions as being morally indifferent, or to deny that the knowledge of the true and just is vouchsafed to men. But it is a sacred belief of mankind that there is a justice, and that we have a knowledge of it, limited though it may be. But where there is a knowledge, there must also be some sort of unity, a coherence in it, which can be identified, for which reason there must also be a science, whatever sort it might be.
If one truly wishes to get to work on such a science, then the thought arises that an equivalent has already been tried by others, in different ways, with different results. These previous attempts cannot be ignored, because in accordance with human nature, one is convinced and believes he is on course when he is conscious of being in command of any conflicting belief. With this, one lands directly in the middle of the aspirations of his time. And even if the investigations into the just must have the same goal at all times, in each of them a special way may be mapped, depending on the state of the science which is found in it. Ours will require quite a peculiar way. For not only is opinion divided and vacillating regarding individual institutions, but even regarding that by which the justice thereof may be tested. Our legal philosophy participates in the complete uncertainty of all knowledge and thought which has resulted from the rapid succession of destructive systems of philosophy, one after the other, while also experiencing upsetting agitations in its own field.
When at the end of the last century a long prevailing trend erupted, it was pride in the freedom of human action and thought that led scientific aspirations. Seeking sole dominion, like any new impulse, it expressed itself in the destruction of everything it encountered. The multiplicity of particular relations, the entire structure of the moral world would be torn down so that nothing would exist but what pure reason finds and brings forth out of itself. This trend retained vitality until it used up its fuel and manifested its inability to provide a new world for the fallen one. At that point the higher Power once again was recognized and revered which, hidden to us, brings the human condition to shape and maturity. Once again the value of each individual life, each peculiarly formed institution, was asserted. And the law no longer appeared to be a product of the laws of thought, but a living member connected with all the relations of life of the peoples and the movement of history.
But it was a natural reaction that largely caused a reversal in the contrast of the previous trend. As in that case there was a hatred of all that exists, so in this case there was a hatred of all free reflection. Governments should maintain the existing condition, lawyers should know the institutions of the present and their historical derivation, not judge them. In this manner, the fight against the philosophy of the times became a rejection of philosophy altogether. The power of life, the further development of relationships, which require examination and judgment, then also made this one-sidedness palpable; and in the Historical School the need once again was manifest for a measure of the just, but without a specific view as to where it should betake itself.
Meanwhile a new treatment of the philosophy of law arose in the philosophical system of Hegel. It not only opposes the other two directions but generally demands a previously unheard-of way of thinking. We observe these three opposing scientific schools in the field of our legal philosophy. Next to them, partly based on them, partly independently, are writers who pursue practical interests without general scientific exhaustiveness. These are the representatives of countless political confessions.
So this is the ground on which the investigation of the just currently is found, as it embarks on its course. It might take a course opposed to all of these viewpoints, or connect to one of them; in any case, it will encounter the opposition of the others. It therefore requires at the start a justification against them, namely one that they themselves must recognize. This would then be a grounded judgment over them. Without this scientific justification, any investigation incurs the charge of arbitrariness. It cannot convict the opponent and therefore cannot consider itself to be safe and at ease. The same task also extends to the views of yesteryear, because our historical education transplants them to the present, and we cannot excuse ourselves from assuming a certain position against them.
But the difficulty of this task becomes evident already in advance. If a decision is to be made between opponents, it will not be possible otherwise than by they themselves recognizing something common over themselves against which they may be measured. In this case, however, the systems about which we are to arrive at certainty, contain in themselves the manner in which they implement a supreme principle of law, in fact in part even a supreme law of thought and knowledge, thus the supreme thing against which everything else is measured, and they acknowledge this to be nowhere outside themselves. Everything must be conceded to each of them, if one submits to its test of what is truthful. If, however, one denies this, if he chooses another, more concessions cannot be demanded from him. But this test of the truth, against what can it itself be tested? Whatever is established as a rule of justice, or as a logical law according to which things are decided and proven, is still merely a new system placed alongside the previous one, equally isolated, rejecting and being rejected. It could not acquire authority over ways of thinking, each of which is like a circular line moving around its own center, returned to its starting point, a self‑sufficient closed world. But if one wishes to choose the truth from out of all that, then he must pre-establish a standard that is to be sought, but in doing so he loses the recognition of all, and retains only a colorful composition without unity and internal stability.
Hence, a community of the various views, each with its own certainty, seems impossible before one even begins.
All these doctrinal systems in their ready-made manifestations are closed, self-sustaining worlds. But they are still created in the one real world, and if their movement of thought begins and ceases within themselves, they do have a factual ground outside themselves. No system forms itself: it is formed by people. It must, therefore, be some characteristic, some interest in human nature, by which it was produced and gains its existence in an enduring manner. Its basic assumption is by its nature not first mediated by inferences, which it in fact presupposes; but it is nothing else than precisely that interest that the thinker finds in his innermost own being, that he cannot give up. But the scientific method is always determined by the basic assumption – the manner of assuming, of deciding, of proving, thus the whole system. The systems have therefore varied as the progress of history has brought forth a different character of the human mind and its various motives. The interest that generated and maintains a philosophy is something higher than the philosophy itself, because the existence of the latter depends upon the existence of the former. The measure of philosophy is therefore likewise the measure that must be applicable to the interest that generated it. But its measure can only be a factual one. For example, that the good is good and evil is evil, cannot logically be demonstrated, but it is true only while the primary source of good at the same time possesses omnipotence. Could humanity indeed break free from these ideas and the power that they contain, then the distinction between them would have to all away in science as well. The historical course, the real nature of man is the judgment over all motives of philosophy, and thus even over this. Science, as in the legends of the saints, must seek out the strongest lord.
The various systems do not allow themselves to be united at all, because true and false cannot be united, and with opposing basic assumptions, there is no community. But with regard to the interest that is specific to each philosophy, it is impossible to say in advance that by nature it would exclude any other. On the contrary, it stands to reason that each in itself is a true one, because it is human, and history desired its satisfaction, that it was untrue only in the product which it brought about in separation from the rest. Now should it find a deeper, fuller interest that would contain all these particulars in itself and alone cause them, then it would be satisfied through the satisfaction of all the others. The philosophy that required it would be the certain one. It would unite all the others, not their claims, but their true character, by which alone both their false results and their true ones can become reality, the vital acting in each one. This total interest with its rich content would be nothing other than the true and original nature of man, from which emanated all states and motives, and to which they wish to return. A view is only sure if it is not merely rooted and decided in itself, but the whole man is satisfied by it, and it also provides insight into how the rest could arise, for no other point grants full overview of the others than the highest.
The task is therefore to present our philosophical knowledge genetically. The knowledge of the historical succession of philosophical views will not suffice here; rather their own origin and inner gestation, the driving force in the human essence that they produced, has to be revealed. Therefore, the completeness of the writers and their opinions cannot be the goal, but only the completeness of the scientific way; and with every system the question is not so much which institutions it declares just, but what it means by the just, and whence it draws the knowledge thereof.
In this manner, the consideration of the past should lead to new results.