Abstract

The essay reconstructs the debate on legitimation in Germany between 1840 and 1900, describing the rise of a peculiar societal constitutionalism which conceives society as the source of an autonomous normativity, complementary rather than opposed to that of the State. Rochau's critique of the Fourier's doctrine marks a change in political semantics since it establishes the base for the legitimation of society. Schmoller's analysis of the relationship between custom and positive law allows their interlacement, since it recognizes the existence of social powers beside that of the State. Both Rochau and Schmoller conceive the Mittlestand as an historical and ideological element demonstrating that social hierarchies are not bound to chance. As shown by the scientific and political critique of the economist Julius Wolf, the crisis of this arrangement paves the way for an individualistic conception of society where the State could not and should not intervene.