Social Ideas, Social Reality, Social Practice II
GA 337b — 6 April 1920, Dornach
9. Anthroposophy and Jurisprudence
On the occasion of the course “Anthroposophy and Scientific Disciplines”
Roman Boos will give a lecture on “Anthroposophy and Jurisprudence” as part of the course “Anthroposophy and Specialized Sciences”. In connection with his lecture, he will ask Rudolf Steiner a question.
Roman Boos: How can the principle of establishing legal norms through codification develop in the future? How can the legal effect be exercised from the parliamentary centers without paralyzing or killing the principle of codification, as is the case today?
Rudolf Steiner: The vitalization of the legal life, of which Dr. Boos spoke, will, it seems to me, be brought about in a very natural way in the threefold social organism. How should we visualize this structuring of the threefold social organism in concrete terms? — Not in a mere analogy, I mean — but in a similar way to the way in which we should visualize the organic threefold structure in the natural human organism.
The view, which Dr. Boos also criticized today, that the heart is a kind of pump that drives blood to all possible parts of the organism, this view must be overcome for physiology. It must be recognized that the activity of the heart is the result of the balanced interaction of the other two activities of the human organism: metabolic activity and nerve-sense activity. If a physiologist who is grounded in reality sets out to describe the human organism and its functioning, then in general it is only necessary to describe, in a truly selfless way, the metabolic activity on the one hand and the nerve-sense activity on the other, for it is through their polar interaction and interpenetration that the balancing rhythmic activity arises; this is already literally within one's grasp. This is something that must be taken into account if we want to imagine life in the threefolded social organism. This life in the threefolded social organism can only be truly imagined if one still has a sense of the practice of life.
When I had published a few things and spoken in the most diverse ways about threefolding, the objection was raised that it is indeed difficult to imagine how the law comes to have content when it is supposed to be separated in life from the spiritual part of the social organism on the one hand and the economic part on the other. Especially people like Stammler, for example, who has been mentioned several times today, they understand the law in such a way that, on the one hand, they only recognize a kind of formalism. On the other hand, they believe that this [formal system] acquires its material content from the economic needs of the social organism. On the basis of such views, I was told that law cannot be separated from economic life for the simple reason that the forces of economic life must produce the legal statutes by themselves. When one includes something in one's concepts, one constantly thinks of something inanimate, of something that just amounts to making statements, for example, from economic forces, which are then codified and can be used as a guide. One mainly thinks of the fact that such codified statements exist and that one can look them up.
In the natural, living threefold organism, we are dealing, I might say, with two polar opposites: on the one hand, with spiritual life and, on the other, with economic life. Spiritual life, which arises when people are born and develop into existence through their own actions, represents a reality through its own content. The fruitful side of intellectual life will develop if no restrictions are imposed by any standards that limit what one can do. The fruitful side will develop quite naturally simply because it is in the interest of people that those who can do more and have greater abilities can also achieve more. It will be a matter of course that, let us say, a person is taken on as a teacher for a number of children, and those who are looking for a teacher can be sure that he can achieve the desired results in his sphere. If intellectual life is truly free, the whole structure of intellectual life arises out of the nature of the matter itself; the people who are part of it work in this intellectual life. On the other hand, we have the economic part of the threefold social organism. Here the structure of economic life arises out of the needs of consumption and the possibilities of production, out of the various interrelations, out of the relationships that arise. Of course, I can only briefly hint at this in this answer to the question. But the various relationships that can play between people and people or between groups of people and individuals or between different groups of people also play a role. All of this will move economic life. And in these two areas, what is called “law” is actually out of the question, insofar as these two areas manage their own affairs.
If we think realistically – of course people today do not think in real terms but in theoretical terms, proceeding from what already exists, and so they confuse the legal ideas that the realm of the spirit already has with the legal ideas of the economic realm – if we think realistically and practically, then in the free spiritual life it is not legal impulses that come into question at all, but impulses of trust, impulses of ability. It is simply absurd to speak in the free spiritual life of the fact that someone who is able has a right to work. There can be no question of speaking of such a right, but one must speak of the fact that one needs him, that he should work. The one who can teach children will naturally be taught, and there will be no question of whether or not there is an entitlement; it is not somehow a question of right as such. It is the same in economic life. Written or oral contracts will play a part, and confidence in the observance of contracts will have to play a part. If economic life is left to its own devices, the fact that contracts are being observed will be seen in the simple fact that economic life cannot function if contracts are not observed.
I am well aware that when such practical matters are discussed today, they are considered by some to be highly impractical because they bring in highly impractical matters from all sides and then believe that what they have brought in and what is supposed to have an effect is practical, whereas what has been described here is impractical. But now we must bear in mind that in these two spheres, in these organs, in the economic sphere and in the spiritual sphere of the threefolded social organism, these things live side by side. If we now honestly consider how this coexistence can be organized democratically, with people living side by side in the two areas - in the economic structure and in the spiritual structure - then the necessity arises for the relationships to be defined from person to person. Here the living necessity simply arises that the one who, let us say, stands at some post of spiritual life, has to establish his relationship to many other personalities and so on. These living relationships must arise between all mature people, and the relationships between mature people and non-mature people arise precisely from the relationship of trust in the field of spiritual life. But all the relationships that arise from the living forces on the one hand of economic life and on the other of spiritual life, all these relationships require that, to a certain extent, people who have come of age begin to define their relationships in their spheres of life among themselves. And this gives rise to a living reciprocity, which will certainly have the peculiarity that, because life is alive and cannot be harnessed to norms, these determinations must be flexible.
An absolutely codified law would appear to be something that contradicts development. If you had a rigidly codified law, it would be basically the same as having a seven-year-old child whose organic life forces you would now determine and, when the child turns forty, would demand that it still live by them. The same applies to the social organism, which is indeed a living organism and will not be the same in 1940 as it was in 1920. In the case of land, for example, it is not a matter of establishing such codified law, but rather of a living interrelationship between the soil and the personalities who stand in the two other characterized areas - the spiritual and the economic - and work in such a way that everything can be kept in flow, in order to be able to also change and metamorphose the true democratic soil on which all people live their present relationships. That is what must be said with regard to the establishment of public legal relationships.
Criminal relationships arise only as a secondary consequence when individual personalities act in an anti-social manner against what has been established as the right relationship between people who have come of age. However, when considering criminal law in the context of the threefold social organism, it becomes clear that it is necessary to take a closer look at the justification of punishment in a practical and real way. I must say that the much-vaunted jurisprudence has not even managed to achieve a clear legal concept in this area. There is a now rather old work, 'Das Recht in der Strafe' (The Right to Punish) by Ludwig Laistner. In it, the introduction gives a history of all theories about the right to punish: deterrence impulses, educational impulses and all the others. Above all, Laistner shows that these theories are actually quite fragile, and then he comes to his own theory, which consists in the fact that one can only derive a right to punish from the fact that the criminal has entered the sphere of the other person through his own free will. Let us assume, then, that one person has created some circle of life for himself, and this is also hypothetical; the other person enters this circle of life, for example, by entering his house or his thoughts and robbing him. Now Ludwig Laistner says: He has entered my sphere of life, and thus I have power over him; just as I have power over my money or over my own thoughts, so now I also have power over the criminal because he has entered my sphere. This power over him has been conceded to me by the criminal himself by entering my sphere. I can now realize this power by punishing him. The punishment is only the equivalent for the fact that he has entered my sphere. That is the only thing that could be found in legal thinking about the justification for punishing a criminal. Whether this happens directly or in a figurative sense, by having it carried out by the state, these are secondary questions.
But why are these things actually unclear? Why is there something here that continually prevents us from having really sharply defined concepts? Because these concepts are taken out of social relations that are already full of all kinds of lack of clarity about life. It presupposes, in fact, the right that first an organism is present and through the organism living movement and thus a circulation is present - just as it presupposes the heart that first other organs are there so that it can function. The legal institution is, so to speak, the heart of the social organism and presupposes that other things develop; it presupposes that other forces are already there. And if there is any lack of clarity in these other circumstances, then it is also quite natural that no clearly defined legal system can exist. But a clearly defined legal system will come about precisely because the other forces that are inherent to the other members of the social organism are allowed to develop in this three-part social organism. Only in this way can the foundations be laid for the development of a true legal system.
Above all, we have not even clearly raised the question today: What is the actual content of the legal system? Yes, you see, in a certain sense, a legal science must be very similar to mathematics, to a living mathematics. But what would we do with all our mathematics if we could not realize it in life? We must be able to apply it. If mathematics were not a living thing and we could not apply it in reality, then all our mathematics would be no science at all. Mathematics as such is, first of all, a formal science. In a certain sense, a properly elaborated jurisprudence would also be a formal science first of all. But this formal science must be such that the object of its application is encountered in reality. And this object of its application in reality is the relationships of people who have come of age and live side by side, who not only seek a balance between their spheres of life here, but are also still within the spiritual and economic links of the social organism.
Thus, only this threefold structure of the social organism will really make it possible for public thought to be formed, and a right that is not publicly thought is not a naturally established right. This would make it possible for legal concepts to be formed publicly, which are then flexible, as has rightly been demanded today. Therefore, I believe that it was very good that Dr. Boos called for the reform of legal life precisely from the realization of the threefold social organism.