The Rudolf Steiner Archive

9. Question following Roman Boos’s lecture on “Anthroposophy and Jurisprudence”

Roman Boos: How might the principle of establishing legal norms through codification play out in the future? In other words, how can legal authority be exercised from parliamentary centers without causing the principle of codification to become ineffective or die out, as is the case today?

[ ] Rudolf Steiner: The revitalization of legal life, which Dr. Boos spoke about, will, it seems to me, be gradually brought about in a completely natural way within the threefold social organism. How, then, should one concretely conceive of this structure of the threefold social organism? Truly in a similar way—and this is not meant to be a mere analogy—truly in a similar way to how one must conceive of the organic threefold division within the natural human organism itself.

[ ] The view—which Dr. Boos has 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 in physiology. It must be recognized that the activity of the heart represents the balancing interaction of the other two activities of the human organism: metabolic activity and nervous-sensory activity. If, as a physiologist who is truly immersed in reality, one wishes to describe this human organism and depict its functioning, then one generally need only describe, in a truly impartial manner, metabolic activity on the one hand and nervous-sensory activity on the other; for it is precisely through their polar interaction and interplay that the balancing rhythmic activity arises; one already has this formally understood. This is something that must also be taken into account when one seeks to conceive of life within the threefold social organism. This life within the threefold social organism can truly be properly conceived only if one still has a sense of practical life.

[ ] After I had published a number of works and spoken about the threefold social order in various ways, one of the objections raised—among others—was that it was difficult to imagine how the legal sphere could have any substance if it were to be separated in life from the spiritual part of the social organism on the one hand and the economic part on the other. It is precisely people such as Stammler—who has been mentioned frequently today—who, in a sense, conceive of law in such a way that they recognize, on the one hand, only a kind of formalism. This [formal system], they believe, would then, on the other hand, derive its material content from the economic requirements of the social organism. Based on such views, I was told that law cannot be separated from economic life, for the simple reason that the forces of economic life must, of their own accord, give rise to legal statutes. By incorporating such a notion into one’s thinking, one constantly has in mind something lifeless, something that ultimately amounts to, for example, deriving statements from economic forces, which are then codified and serve as guidelines. One thinks primarily of the fact that such codified statements exist and that one can look them up to see what they say.

[ ] In the natural, living threefold organism, we are now dealing—I would say—with two polar opposites: on the one hand, spiritual life, and on the other, economic life. Spiritual life—which, once it is set free, arises from the forces that human beings bring into existence through their birth and development—constitutes a reality through its very content. The fruitful aspect of spiritual life will develop precisely when one does not restrict or limit what a person is capable of through any kind of standard. This fruitfulness arises quite naturally simply because it is in people’s interest that those who are more capable and have greater aptitudes should also be able to achieve more. It will be entirely natural that the person chosen—say, as a teacher for a number of children—will be someone of whom those seeking a teacher can be convinced that he can accomplish what is required in his sphere. When spiritual life is truly free, the entire structure of spiritual life arises from the nature of the matter itself; the people who are part of this spiritual life are the ones who act within it. On the other hand, we have the economic sector of the threefold social organism. Here, too, the structure of economic life arises from consumption needs and the possibilities of production, from the various interconnections, and from the relationships that emerge—all of this gives rise to the structure of economic life. Of course, I can only briefly touch on this in my answer to this question. But then the various relationships that can exist between individuals, between groups of people and individuals, or even between different groups of people come into play. All of this will shape economic life. And in these two spheres, what is called “law” does not actually come into question at first, insofar as these two spheres manage their own affairs. If one thinks realistically—of course, people today do not think realistically but theoretically, based on what already exists; hence they confuse the legal ideas already present in the spiritual realm with the legal ideas of the economic realm—if one thinks realistically and practically, then legal impulses do not come into play at all in free spiritual life; rather, what comes into play are impulses of trust and impulses of ability. It is simply absurd to speak in the context of free intellectual life of the idea that someone who is capable has a right to act. It cannot even be considered to speak of such a right; rather, one must speak of the fact that one needs that person, that they should act. Someone who can teach children will, of course, be allowed to teach, and there will be no question as to whether or not there is a legal justification for this; it is not in any way a question of a right as such. The same applies to economic life. There, either written or oral contracts will play a role, and trust in the fulfillment of contracts will have to play a role. When economic life is left entirely to its own devices, the fact that contracts are honored will follow from the simple fact that economic life simply cannot function if contracts are not honored.

[ ] I know full well: When one speaks of such things today—things that are actually quite practical—they are nevertheless regarded by some as highly impractical, because people introduce the most impractical things into every situation and then believe that what they have introduced—and what is supposed to have an effect—is practical, whereas what has been described here is impractical. But now one must bear in mind that in these two spheres—in these organs, the economic sphere and the spiritual sphere of the threefold social organism—these things coexist. If one now thinks honestly about a democratic arrangement of this coexistence, in which people live side by side in the two spheres—within the economic structure and within the spiritual structure—then the necessity arises for relationships to be established on a person-to-person basis. From this arises the living necessity that the person who, let us say, holds some position in spiritual life must define his or her relationship to many other individuals, and so on. These living relationships will inevitably arise among all people who have attained maturity, and the relationships between mature individuals and those who have not yet attained maturity arise precisely from the bond of trust in the realm of spiritual life. But all relationships that arise from the living forces on the one hand of economic life and on the other hand of spiritual life—all these relationships necessitate that, in a sense, those who have attained maturity begin to define their relationships with one another within their respective spheres of life. And this gives rise to a living interaction, which will, however, have the distinctive feature that these definitions—since life is dynamic and cannot be confined to fixed norms—must remain flexible.

[ ] A completely codified law would be something that runs counter to development. If one had a rigidly codified law, it would essentially be like having a seven-year-old child whose physical vitality you were to fix at that moment, and then, when the child reached the age of forty, demanding that he still live according to those fixed parameters. The same is true of the social organism, which is indeed a living entity and will not be the same in 1940 as it was in 1920. Take land, for example: the issue is not to establish such a codified law, but rather a living interplay between the land and the individuals who are situated within the other two defined spheres — the spiritual and the economic — and act in such a way that everything can be kept in constant flux, so that the true democratic foundation upon which all people live out their present relationships can also be modified and transformed. This is what must be said regarding the establishment of public legal relationships. Criminal legal relationships arise as a secondary matter only when individual persons act in an antisocial manner against what has been established as the proper relationship among people who have attained maturity. However, when considering criminal law from the perspective of the threefold social organism, it becomes clear that we will need to examine—in a practical and concrete way—the justification for punishment. I must say that the much-praised field of jurisprudence has not actually even arrived at a clear legal concept in this area. There is, however, a now somewhat older work, *Das Recht in der Strafe* (*The Right to Punishment*), by Ludwig Laistner. In its introduction, it provides a history of all theories regarding the right to punishment: deterrence, educational impulses, and all other motivations. Above all, Laistner shows that these theories are actually quite fragile, and he then arrives at his own theory, which holds that the right to punish can really only be derived from the fact that the criminal has, of his own free will, entered the sphere of another human being. So let us assume—and this, too, is hypothetical—that one person has created a certain sphere of life for himself; the other enters this sphere, for example, by entering his house or his thoughts and robbing him. — Now Ludwig Laistner says: He has entered my sphere of life of his own accord, and thereby 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. The criminal himself has granted me this power over him by entering my sphere. I can now exercise this power by punishing him. The punishment is merely the equivalent of his having entered my sphere. That is the only thing that could be found in legal thinking regarding the justification for punishing a criminal. Whether this happens directly or in a figurative sense—by having the state carry it out—are, in turn, secondary questions. But why, exactly, are these things unclear? Why is there something that constantly prevents us from having truly sharply defined concepts? Because these concepts today are taken out of social contexts that are themselves filled with nothing but ambiguities of life. After all, the law presupposes that an organism exists first, and that through this organism there is living movement and, consequently, circulation—just as the heart presupposes that other organs are present first so that it can function. The legal institution is, in a sense, the heart of the social organism and presupposes that other elements unfold; it presupposes that other forces are already present. And if there are ambiguities within these other relationships, then it is only natural that there cannot be a clearly defined legal system. But a clearly defined legal system will come into being precisely by allowing the forces inherent to the other members of the threefold social organism to truly unfold within this threefold social organism. Only then will the foundations be laid that can give rise to a genuine development of law.

[ ] After all, we haven’t even clearly raised the question today: What, exactly, is the true substance of the legal system? Yes, you see, in a certain sense, legal science must indeed be very similar to mathematics—similar to a living mathematics. But what would we do with all our mathematics if we couldn’t apply it in real life? We must be able to apply it. If mathematics were not a living science and we could not apply it in reality, then all of our mathematics would not be a science. Mathematics as such is, after all, primarily a formal science. In a certain sense, a properly developed legal science would also be, at first, a formal science. But this formal science must be such that the object of its application is found in reality. And this object of its application in reality is the relationships among mature individuals living side by side, who not only seek to balance their spheres of life here but are also embedded in the intellectual and economic branches of the social organism.

[ ] Thus, it is truly this threefold structure of the social organism that will make it possible to think publicly, and a law that has not been thought through publicly is, after all, not a naturally established law. This would make it possible for such legal concepts to take shape publicly—concepts that are then flexible, as has rightly been demanded today. That is why I believe it was quite right for Dr. Boos to call for the reform of legal life precisely on the basis of the realization of the threefold social organism.