An Intellectual Context

In the second half of the nineteenth century, two currents of theoretical reflection assumed a central position in Germany. These currents shaped, and were themselves shaped by, the establishment of the unified nation-state from the 1840s to the 1870s. First, the initial move toward national unification in the late 1840s found reflection in the broad array of outlooks often associated with historicism. Politically, the historicist position was expressed in anti-formalist theories of constitutional order, based in the presumption that constitutional law expresses, but abstract or natural rights, but the incrementally formed will of the people. This position influenced the liberal constitutional vision of 1848, and it remained powerful after unification. By the 1870s, historicism had clearly divided into separate political camps, including a national democratic wing and an organic social-liberal wing. At the same time, historicism extended beyond political reflection, and it established the foundations for a range of theories concerned with historical and cultural hermeneutics, closely linked to liberal nationalism, which emphasized the integrally historical origins of human cognition and understanding. Second, the consolidation of the German nation-state after 1871 was supported by a body of theories defined as positivism. Positivism comprised a wide range of stances, whose unifying presumption was that human reflection should be properly concerned with the construction of objective facts. This was presented in a highly influential body of research on legal formation, which condensed legal analysis around the interpretation of formal legal principles, tending to reduce the weight of moral-rational or utilitarian ideas in the application of law.

Different positions in the historicist and positivist camps were openly hostile to each other. This was reflected in personal controversies between exponents of these two loosely defined lineages. It was also expressed in the fact that, as positivism placed emphasis on strict objective interpretation, it weakened the validity claims set out by historicists, who assumed that objects of scientific investigation, including social institutions, should be evaluated and rendered meaningful as accretions of national cultural life. Moreover, by the end of the nineteenth century, historicist thinkers expressly understood historical research as reposing on a critique of the natural sciences.