Can Liberalism Be Saved? A Proposal from F.J. Stahl

Introduction

As ideological divides become greater in the Western world between the forces of secular progressivism and those of Christianity, the question has been raised as to whether such growing division is an inevitable result of the philosophy that stands behind the liberal order. Perhaps the tradition of American Constitutionalism was always doomed to failure as an outgrowth of a liberal philosophy which prizes individual self-expression over the common good of its people.

In his widely discussed book Why Liberalism Failed, Patrick Deneen contends that liberalism, in both its left and right varieties, contains the seeds of its own destruction within it.[i] A society cannot view itself merely as a group of autonomous individuals who have chosen to live together under a freely-consented-to social contract and have lasting social cohesion. Without the understanding that social bonds serve at the core of society, individuals will continue to segment themselves into isolated patterns of self-expression, with tradition, custom, and historic institutions seen as hindrances to such individuality. In order to protect this individuality through an ever-increasing list of rights, a government whose primary purpose is to protect rights must similarly grow in order to ensure that such rights are protected.[ii] This then has the twofold result of both the decline of the central institutions in society (the church, social clubs, educational institutions, the family) and an ever-growing bureaucratic state. As people are less dependent upon local social bonds, they become more dependent upon the state.

The core problem, as Deneen sees it, is that the post-Enlightenment West has departed from a classical understanding of liberty. In its classical definition—for both the Greeks and the Christian West—liberty is about self-rule, or the freedom to act with virtue without being enslaved to one’s base passions or hedonistic desires. In contrast to this, liberals view liberty as a freedom from constraint.[iii] Whereas the former is eudemonistic, the latter prizes mere self-expression over any coherent social moral vision.

My contention here is not that Deneen is wrong in what he criticizes. I have no desire to defend a social order without a common good, or an ethic which has no moral norms outside of consent. These are clearly real issues in our current moral landscape, and such ideas are certainly not new in the twenty-first century. Many of the philosophical voices who formed the ideals of liberalism did indeed view society primarily as a collection of autonomous individuals and viewed social institutions as a hindrance to authenticity rather than as formative means to shape the virtuous citizen. Nonetheless, any constructive project which seeks to take Deneen’s critiques seriously must be ready to propose a functional alternative. I contend that there is a way forward. This does not lie in pursuing a postliberal future, but in achieving an order which retains the good of the liberal paradigm (the protection of rights, the importance of liberty, limitations on state power), while simultaneously working toward a conception of the common good. One may call this a “common good liberalism.”

Rather than working out some sort of new political philosophy based on such principles, I contend that this philosophy already exists in the writings of Friedrich Julius Stahl. A Lutheran theologian as much as a political theorist, Stahl gives a framework for a distinctively Christian political theory that avoids both authoritarianism and moral anarchy.

Friedrich Julius Stahl

Writing in nineteenth-century Germany, Stahl lived in the midst of significant political and cultural turmoil. Following the French and American revolutions, the people of Prussia similarly had begun to divide into conservative and revolutionary groups. Stahl, a leading conservative voice, was a proponent of a monarchical constitutionalism with a strong separation of powers and a relative autonomy of individual provinces instead of a highly centralized state. In the midst of the 1848 revolutions in Germany and Austria, Stahl proposed a plan for a future conservative party which ultimately never came to be.[iv] The ideas discussed here are all from Stahl’s The Philosophy of Law.[v]

The Role of the Law

Like the other ethicists and theologians of his day, Stahl divides ethics into two categories: individual ethics, and social ethics. The former is concerned with personal virtue, sin, and holiness, and the latter with humanity’s common life, institutions, and the world order. The telos of personal ethics is the formation of character in spiritual perfection (which Stahl alternately refers to as the fulfillment of the imago Dei). The telos of social ethics is the formation and preservation of the ethical order of common life. This arises, for Stahl, out of man’s God-given calling to steward creation and mirror divine kingship.[vi]

Rather than this common life being based merely upon a consensual social contract, Stahl contends that human order within the state is a reflection of, and outgrowth of, the divine order that underlies it. This does not mean that all positive law is rooted in divine order (unjust laws certainly are not), nor even that all positive law should be rooted in divine order (some laws are merely pragmatic). The positive law should, however, be constructed in such a way that it defends and promotes God’s world order as it relates to common social relations.[vii] Such a conservatism for Stahl is not merely an adherence to socially-determined moral principles (against the common critique that conservatism is merely the adoption of leftist commitments—just more slowly), but of the reflection of those eternal principles within the unique historical and cultural climate of a given nation.

How then is this eternal moral law (the lex aeterna) to be applied in positive law? Stahl does not contend for some kind of one to one relationship between eternal law and positive law, wherein each divine command must be reflected in political legislation. He also does not adopt the Theonomic argument of some in the Reformed tradition who use the Old Testament civic law as a blueprint for civic law as such (a position consistently rejected by Lutherans). Rather, Stahl relies upon what Lutherans have generally referred to as the “first use of the law,” or what many catechumens learn as the law’s function as a curb.

Though positive law is given in relation to institutions, rather than individuals, it cannot itself realize the telos of an institution. Law cannot make a family function well or cause a university to educate students to their highest potential. What law can do, however, is create proper boundaries within which these institutions can flourish.[viii] Stahl gives two examples to illustrate this. First, Stahl argues that the law cannot force the devotion of a husband to his wife, nor a wife to her husband. However, the law can create boundaries around marriage, such as the prohibition of polygamy, legal punishment for a man making his wife financial destitute, or in not allowing no fault divorce. None of these guarantee a good marriage, but these conditions make such a possibility more likely. Second, Stahl argues that the law should not mandate church attendance (contra Calvin), but that the state can mandate a break from work (with the obvious exceptions) on Sundays. This creates a space in which church attendance is encouraged by law, while not mandated.[ix]

Stahl’s approach to the law is both a Christian one and a liberal one. As a Christian, Stahl knows that positive law is not at the whim of legislators within a man-made contract, but is a human structure in which the divine order is reflected and enacted. This law has an ultimate end, which is the ethical order of man’s common life. As a liberal, Stahl knows that law should not infringe upon every area of an individual’s life, and that the state should not mandate particular religious observances on behalf of its people—even while Stahl also contends that his nation is, and should be, a Christian one.[x]

Rights

Much of the liberal tradition is grounded upon the conception of rights, and the necessity of government in preserving them. As part of this tradition, Stahl argues for the protection of rights in a moderated sense—not as the sole or even primary purpose of the state, but as its secondary goal.

Unlike positive law, which refers to institutions rather than persons, rights are granted only to personalities. Stahl refers to rights as “law in the subjective sense.”[xi] Like positive law, these rights are based on the transcendent higher order, as they are divinely given. The transcendent nature of these rights is to then be implemented in positive law which gives them shape and particularity. These rights are the secondary principle of the legal order, which lies underneath the ethical order of the common life. Rights do not exist in a vacuum, and they are not simply abstractified assertions about entitlements.

As with the rest of the Burkean tradition, Stahl argues that rights correspond to duties.[xii] Duties do not create rights, but rights often obligate one to perform particular duties. He describes this relationship as one of coherence, wherein rights and duties are unified in one singular moral order. In explaining this moral order, Stahl echoes Martin Luther by arguing that the place in which these rights and duties cohere is in vocation.[xiii] By using this term, Stahl is referring to the wide range of social stations in which human life exists—not just one’s career. There are unique rights and duties that one has as a father, a daughter, a magistrate, a soldier, or a citizen.

Stahl distinguishes between innate rights and acquired rights to explain how it is that rights and duties take on these vocational structures.[xiv] Innate rights are those rights that are general and universal. In this category, Stahl includes: life, liberty, honor, the capacity for property, the capacity for family, and general political and ecclesiastical rights. Acquired rights are, in contrast, particular and specific. They are given to individuals and correspond to the particular shape of institutions and relationships in a given society. While, for example, ecclesiastical rights are general and universal, those rights are exercised differently in a congregational context than they are in a more hierarchical one.

This is contrasted, by Stahl, with the approach to rights taken by the architects of the French Revolution that is at the heart of Deneen’s critique. For the Declaration of the Rights of Man, rights are definitive and valid a priori.  In this view, positive law is often seen as being in opposition to these inherent rights, meaning that positive law can simply be discarded as soon as it is determined that it has violated one of these a priori commitments. For Stahl, while some rights exist prior to the political order, rights take their precise shape only within the existing political order. They are not to be viewed as abstract ideas. Further, Stahl strongly differentiates his view from the common liberal view of freedom as a lack of constraint. All rights, for Stahl, are grounded in the primeval right, which is the attaining of spiritual perfection.[xv] Rights therefore are not only given, but are yet to be achieved. To live as one who is free is thus to strive toward an eschatological telos through training in virtue and the suppression of base impulses. Stahl is able to maintain a strong conception of rights without making them coterminous with entitlements.

As with the role of law, Stahl approaches rights both as a Christian and as a liberal. As a Christian, Stahl understands that there are no rights at all unless they have a transcendent source. Rights cannot be asserted with no metaphysical basis. He also understands that human beings are created not only with formed natures, but with eschatological ends. Rights thus aid in the striving of each personality toward a life of virtue and piety rather than entitlement. Stahl is a liberal in that he maintains that individuals do indeed have a given right to life, to their own property, to the possibilities or marriage, fatherhood and motherhood, and ecclesiastical involvement. These realities all come together in the concept of vocation with the concrete situations and social structures in which each individual lives.

Conclusion

Postliberal authors like Patrick Deneen rightly understand the dire situation of the modern west and the failure of individual rights to serve as some underlying philosophical basis for a functional society. Nonetheless, one does not need to abandon the liberal tradition altogether to correct course. Friedrich Julius Stahl provides a roadmap for us today to consider how it is that we are to think about the role of law, the nature of rights, and the common good in an era of increasing secularization.

[i] Patrick J. Deneen, Why Liberalism Failed (New Haven: Yale University Press, 2018). The page numbers here reference the epub edition.

[ii] Deneen, Why Liberalism Failed, 43.

[iii] Deneen, Why Liberalism Failed, 58.

[iv] P.F. Drucker, “Friedrich Julius Stahl: His conservative theory of the state,” Society, vol. 39 (2002): 46-57. https://doi.org/10.1007/BF02717544.

[v] Friedrich Julius Stahl, Private Law, trans. Ruben Alvarado (Aalten: WordBridge, 2007). This publication is a part of Stahl's The Philosophy of Law.

[vi] Stahl, Private Law, 15.

[vii] Stahl, Private Law, 20.

[viii] Stahl, Private Law, 23.

[ix] Stahl, Private Law, 23-24.

[x] As Alvarado says in his introduction, “therefore what is Christian about this legal order is precisely the principles, the law-ideas upon which it is based, not the level of faith of those living within it. Stahl assumes a Christian society but not individual Christians.” Private Law, 5.

[xi] Stahl, Private Law, 64.

[xii] Stahl, Private Law, 65.

[xiii] On Luther’s view, see Gustaf Wingren, Luther on Vocation, trans. Carl C. Rasmussen (Philadelphia: Muhlenberg Press, 1957).

[xiv] Stahl, Private Law, 68.

[xv] Stahl, Private Law, 69.