I

State law positivism began to develop in 1850 and achieved its dominant position around 1880.

With the failure of the revolution of 1848, bourgeois hopes for a united, democratic German nation-state were shattered. Germany sank back into small monarchical states, linked loosely by the German Union [Deutscher Bund]. The bourgeois political liberalism of the first half of the century became economic liberalism; bourgeois interests no longer sought political participation in the state, but freedom from the state—particularly freedom of economic action.

Two works by the civil law scholar Carl Friedrich von Gerber (1823–91) contain terms that state law positivists elaborated into an entire school of thought. Disappointment in the political situation, as well as the inclination to make peace with it, is mirrored in Gerber's postulate that politics is “not the purpose, but simply the material”^[1] of the law of the state. This postulate defines the tasks, as well as the limitations, of state law theory: to exclude the “purely political aspects” of the state while including its “legal aspects.”^[2] The theory of the law of the state was not intended to mirror political hopes—that is, to serve as a scholarly instrument of legal policy, as was often the case in the law of the state before 1850—but rather to begin to address the positive law of the state. This can be seen as the legal correlate to the bourgeoisie's acceptance of the political status quo in the years after 1850. Gerber's terminology refers to the manner in which the theory of the law of the state can do justice to its new task: the “creation of a theoretical system”^[3] through formal “legal construction”^[4] that would learn from and match the conceptual clarity achieved in private law. Only this could be the foundation of the “theoretical autonomy”^[5] of state law.

The finest hour of this program, soon to be called “legal method” by its supporters, began with the formation of the Empire between 1867 and 1871. The bourgeoisie again proved incapable of creating a state responsive to its own interests; the leading role in creating the Empire was taken by the individual monarchic Länder. But German national unity was nonetheless achieved; the bourgeoisie quickly adapted to the new state, and the Empire's early decades were relatively quiet politically. Gerber's call for a systematic ordering of positive law and for the abolition of wishful political thinking from state law theory now met with strong approval, especially in the face of the need to interpret the Empire's constitution, the first codification of state law to apply to all of Germany. The task of systematically

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exploring the new legal order was essentially completed by Paul Laband (1838–1918), whose background, like Gerber's, was in civil law. Laband's State Law of the German Reich [Staatsrecht des Deutschen Reiches], which went to five editions between 1876 and 1914, was the most authoritative and influential elaboration of state law in the Empire and brought constitutional positivism to full bloom.^[6] Laband formulated the credo of positivism in the introduction to his book in a few succinct sentences: Legal treatment of state law consists, on the one hand, “of the construction of legal institutions, of retracing individual norms to general concepts” and, on the other, of “deriving the consequences that result from these concepts.” Both consist of “purely logical intellectual endeavor,” for which “nothing can substitute.” “All historical, political, and philosophical considerations” are “without significance” for state law doctrine. State law doctrine is nothing but a “conscientious and complete identification of the positive legal material and its logical mastery through concepts.”^[7] Laband's remarks on how concepts are constructed and their productive power indicate that his positivism was not a statutory positivism [Gesetzespositivismus], narrowly confined to the construction of statutes. With unmistakable pride in the productivity of legal concept-construction, Laband proclaimed: “A gap in the Constitution … must not be taken for a gap in the constitution of the state. The latter is an inconceivable concept; statutes may have gaps, but the legal order can no more have gaps than can the order of nature.”^[8]

What explains the sweeping success of this positivism, based on a conceptual, systematic understanding of law, in the years immediately following its formulation? Initially, positivism sought to establish the autonomy of the theory of state law, matching the theory of private law in methodological stringency. It did away with the desolate state of scholarship in the field of public law, which had most often been limited to listing positive norms, with, depending on the author's whim, historical, political, or philosophical trimmings. For the first time, attempts were made to offer a state law theory that could provide rational, logically grounded, and reliable answers in the field of constitutional law; in short, positivism established a doctrine of constitutional law. In addition, positivist procedure linked the field of law with the methods of the expanding natural sciences and the tendency, characteristic of nineteenth-century thought, to turn all of life into science. The positivist trust in “what is” corresponded to the general trend in the humanities that followed the collapse of philosophical idealism in the first half of the century.

State law positivism also had a salubrious political effect. Its pointed demand that the law of the state be isolated from all its determining factors neutralized the latent political conflicts of the Empire, especially the precarious balance of power between the monarchic and bourgeois elements in the political system.^[9] The Constitution of 1871 avoided deciding between monarchic and democratic legitimacy. Laband's law of the state reflected

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this strategy: indeed, for Laband, the legitimacy of the legal order was not an issue, and he ignored the political aspects of law and the social reality that law might encounter or create. Over the first twenty-five years of the Empire, numerous objections were raised against Laband's doctrinal style—some of them of great substantive and methodological depth.^[10] However, these objections died away before 1900, and they remained largely without effect in the decades following.