- The beginning
- Philosophy of law
- The law
- Definition of philosophy of law
- Principles of legal justice
- Bibliographic references
Rudolf Stammler (1956-1938) was a German jurist of the early 20th century. His philosophy of law was the most significant contribution to international jurisprudence. His contribution laid the foundations that served to discuss the regulatory principles of the laws, regardless of the country or type of jurisdiction that was being discussed.
His development on concepts as abstract as the will, the law, the right and the sovereign, paved the way for the creation of current legal codes, making him one of the most important jurists of the 20th century.
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The beginning
Karl Eduard Julius Theodor Rudolf Stammler, better known as Rudolf Stammler was a legal philosopher and university professor. He is one of the most important exponents of the Neo-Kantian School.
He was a professor at various universities such as Halle an der Saale and Marburg. He was also the founder of the journal of Philosophy in Law called Zeitschrift Für Rechtsphilosophie, in 1913.
He was a member of the German Freedom Ring of the Nazi party and of the Committee for Legal Philosophy, created by the Reich Ministry of Justice at the German Law Academy, during the time of National Socialism.
Philosophy of law
Stammler was a great defender of an objective order that was above any "sovereign" or State, arguing the need for a law above particular interests, hence it is considered part of the doctrine of IusNaturalismo.
He was also the creator of the doctrine that will later be known as "Natural law of variable content", in which he explains the duality of the concepts of matter - form.
The first concept is defined as the concrete content in the law that includes laws and treaties that vary according to time and culture. The second concept, that of form, also known as natural law, is linked to the basic unalterable and universal principles of human laws.
For Stammler the law comes before the State, it is above it and precedes it. According to his theory, societies create laws to be able to regulate each other, regardless of whether there is a form of state or not.
This position is contrary to other jurists of his time such as Holland, who had the theory that the State is the creator of law (as human law) as a regulator of the life of societies.
The law
In this sense Stammler postulates that the law is a social form of life, since societies could not be maintained unless there was a form of external regulation capable of regulating individual life and actions.
Stammler affirms that it is not necessary to know the exact origin of the law, since for him the genesis of law belongs more to the fields of history and psychology than of philosophy itself.
In the same way, for him, it is not important to know whether the laws are oral or written, but the law is more related to the concepts of the development of the will and its relationship with the regulations of societies.
Definition of philosophy of law
Stammler claimed that the philosophy of law should be defined by universal elements and not by elements of material law, such as the law of marriage that can vary, but is a type of universal law or form, which is essentially immutable.
It is at this point that his definition of law exceeds the definition given by Holland, which according to the book The Theory of Justice states that they are: "General external rules for human conduct reinforced by the political authority of the sovereign"
It must be remembered that “sovereign” refers to the State, formed according to international norms or, as Stammler defines it, “the law is a form of will that is imposed among the members of society despite their personal wishes” (Theory of Justice).
In fact, according to the German jurist there are two forms of law, "The idea of Law" and the "concept of Law", terms that tend to generate confusion due to the subtlety that exists between their differences.
On the one hand, the “concept of Law” is a universal idea, or as the text Jurisprudence Q&A 2010-2011 says “the underlying concept is 'the inviolent and autocratic will'”, which refers to the law as an intrinsic aspect of societies.
On the other, and in contrast to this need for collective self-regulation, raised so that, according to Stammler, life in community is possible; the "concept of law" speaks more about regulations created with a more concrete, less universal purpose.
Principles of legal justice
Probably Stammler's greatest contribution is the creation of some concepts that gave rise to the regulation of all current forms of jurisprudence, attending to the terms in great detail so as not to generate misunderstandings or clashes between them.
These concepts served as a bridge between material laws and those of form, since they were not merely conceptual but, at the same time, they applied to all types of law, therefore, they were universal. These concepts are:
Binding together or Subject of law: Explains how the individual is conceived in matters of law and how each individual is linked to each other by a higher, natural law.
Volition or Will: Concept that refers to the action of the individual, it is autocratic and inviolable, therefore, universal.
Sovereign or sovereignty: It is the will whose end (ends) is its own determination.
Inviolability or inviolable: State of being and actions that cannot be excluded or eliminated from the individual as a subject of law.
Despite these principles, it was important for Stammler to continue developing these ideas and concepts since for him, the rules could be confusing given the complexities of human relationships, especially within a community.
He always had tormenting questions, for example, how could the individual's obligations to his society be decided? No one should neglect their treatment of the community, and at the same time no one should neglect the treatment of their own members.
Despite the fact that his theory had many detractors, the importance it had in the discussions on jurisprudence cannot be denied, being one of the first to give the weight of science to law and separate it from other disciplines such as economics.
Although at present all the concepts conceived by Stammler are not used, current law owes much of the advances made in the area of legal and legal philosophy.
Bibliographic references
- Brooke, David (2009) Jurisprudence Q&A 2009-2010. Q&A Routledge-Cavendish Questions & Answers Series.
- Garrido Gómez, María Isabel. (2015). A re-examination of Stammler's theses and the influences received by them. Law magazine (Valparaíso), (45), 425-446. dx.doi.org
- Hierrezuelo Conde, Guillermo. (2007). Stammler, Rudolf, La génesis del Derecho: (translation from German by Wenceslao Roces Suárez and edited by José Luis Monereo Pérez, Comares, Granada, 2006), 90 pp. Journal of historical-legal studies, (29), 641 -643. dx.doi.org
- Stammler, Rudolf (1925). The Theory of Justice. The Mc Millan Company. New York.
- Pattaro, Enrico, Roversi, Corrado (2015). Natural Law Theories in the Twentieth Century. A Treatise of Legal Philosophy and General Jurisprudence. Volume 12. Legal Philosophy in the Twentieth Century: The Civil Law World.