Stammler, Rudolf (1856–1938)
Rudolf Stammler was a German neo-Kantian legal philosopher. His first major work, Die Lehre vom richtigen Recht, outlined his philosophy of law, which was elaborated in subsequent works. Stammler sought to apply Immanuel Kant's distinction between pure and practical reason to the law. The embodiment of pure reason in legal theory is the concept of law, which Stammler defined as "combining sovereign and inviolable volition." The counterpart of practical reason is the idea of law, that is, the realm of purposes realized by volition. But whereas for Kant practical reason was not, like pure reason, a matter of intellectual perception, but of morality, Stammler sought to formulate a theoretically valid idea of justice. He based it on the community of purposes and the fact that man is a reasonable being, an end in himself. From this he derived two "principles of respect" and two "maxims of participation." The former are that no one's volition must be subject to the arbitrary desire of another and that any legal demand must be of such a nature that the addressee could be his own neighbor. The latter are that no member of a legal community must be arbitrarily excluded from the community and that a legal power may be exclusive only insofar as the excluded person can still be his own neighbor.
For Stammler these were not merely formal principles; they could be used to solve actual legal problems. He attempted, for example, to apply them to the legality of cartels and to the solution of disputes between upper and lower riparian owners over the use of water. His solutions were generally those of a moderate liberal.
Max Weber has shown in "Rudolf Stammlers Überwindung des materialistischen Geschichtsauffassung" (Gesammelte Aufsätze zur Wissenschaftslehre, Tübingen, 1922, pp. 291–359) that Stammler's alleged formal categories are in fact categories of progressive generalizations, the more general being relatively more formal than the less general. Stammler's main error was his attempt to make the idea of justice a matter of theoretical knowledge; it was therefore inevitable that he should confuse principles generally acceptable to a moderate liberal with universally valid principles of justice. His idea of justice is therefore a cross between a formal proposition and a definite social ideal, kept abstract and rather vague by the desire to remain formal. Stammler's chief merit remains his reintroduction of legal philosophy as a vital aspect of the study of law.
works by stammler
Wirtschaft und Recht. Halle, 1896. Law and economics are related as form and matter.
Die Lehre vom richtigen Recht. Halle, 1902. Translated by I. Husik as The Theory of Justice. New York: Macmillan, 1925.
Theorie der Rechtswissenschaft. Halle: Buchhandlung des Waisenhauses, 1911.
Lehrbuch der Rechtsphilosophie. Berlin and Leipzig: de Gruyter, 1922.
works about stammler
Ginsberg, Morris. "Stammler's Philosophy of Law." In Reason and Unreason in Society: Essays in Sociology and Social Philosophy. Cambridge, MA: Harvard University Press, 1948.
Stone, Julius. Human Law and Human Justice. London: Stevens, 1965.
Wolfgang Friedmann (1967)
Bibliography updated by Philip Reed (2005)