Katharina Isabel Schmidt is a PhD candidate in history at Princeton University and a JSD candidate in law at the Yale Law School. She is currently writing a history of German legal modernism from the left-wing, German-Jewish free law movement before WWI to Nazi jurists like Carl Schmitt. She looks forward to receiving your questions and comments at firstname.lastname@example.org.
Sometime in the mid-1930s, German jurist Theodor Sternberg (1878-1950) concluded that law and love were incompatible. In one of his “erotosophical” fragments, he claimed that affective bonds thrived under anarchy. Love, for Sternberg had to be free from egoism and compulsion, eschew both duty and obligation. “Coitus,” especially, was divine in origin—God’s love for the world incarnate—and just like God’s love was limitless, sexuality knew no law.
Sternberg wrote his fragment in Japan, where he lived as an independent scholar for almost forty years. As a Jewish socialist yearning for femininity in all its forms, he had struggled to make a living in the German Empire. He had moved to Tokyo before WWI where he turned his attention to the human sciences. In 1935, he was invited to give a series of sexological lectures at Keio University. Around the same time, he started developing a program for humanity’s transition from an order of law to an order of love.
A look at Sternberg helps us see that modernism in sex and in law overlapped. Historians have shown that, by the turn of the century, law had become the language in which sexual rights activists articulated their demands. Simultaneously, sex emerged as a site for critiquing law itself—a process less frequently noted. Legal modernists looked beyond formal rules to alternative sources of order. And Sternberg’s preferred alternatives were desire and intimacy.
German Legal Modernism
My research on legal modernism excavates German anxieties about law and order from the turn of the century to the Third Reich. Sternberg contributed to these anxieties through works that highlighted law’s erratic—and erotic—dimension.
On 1 January 1900, Germany had adopted its long-anticipated Civil Code, which was hailed as a solution to many of the Empire’s problems. Its drafters had presented the work as a seamless web of rules providing one right answer for every legal question. Almost immediately, however, it became clear that the Code contained no guidance on technological progress, modern commercial instruments, and changing sexual mores. As a consequence, conservative imperial judges were left to fill “gaps” in the law by reference to their own, conservative values.
Against this, a younger generation of left-leaning jurists—led by future Weimar minister of justice Gustav Radbruch—banded together to revolutionize legal thought and practice from the bottom up. These so-called free lawyers criticized the Code for being abstract, unworldly, and out of touch with life. Drawing on imagery and rhetoric from the life sciences, life philosophy, and various life reform movements, they called for a law that was living, lively, alive. Judges were supposed to continue filling gaps in the Code. But, the free lawyers argued, they had to do so by reference not to their own, unquestioned values, but by reference to life.
Sternberg’s contribution to this critique was his popular “general theory,” a layperson’s guide to the German legal system. In it, Sternberg challenged received notions of law as a rational, mechanistic science of concepts and categories. He instead cast judging as a creative, subjective, will-based activity that involved not logic but character and personality. Judges, on Sternberg’s account, had to feel their way into a case in order to do it justice. He elaborated on these ideas in a series of subsequent works.
Love Knows No Law
Sternberg put volition on the list of things that worried German jurists around 1900. In doing so, he built a bridge between legal and sexual modernists. What sets Sternberg apart from his contemporaries is that he thought of prudery and punitiveness as intimately linked. Most sex reformers remained committed to established legal logics, trading respectability for rights. Sternberg, in turn, cared for neither.
Sexologist Magnus Hirschfeld, who met Sternberg in Tokyo in 1930, famously subscribed to the motto per scientiam ad iustitiam—justice through science. In line with this, imperial sexual rights activists used medical and mind sciences to sway legislation in their favor. Legal science, in turn, got almost no attention and few ever seemed to question if law itself had to change—beyond retreating from consenting partners’ bedrooms. Against this, Sternberg argued that legal order had to make way for love to stand a chance.
Sternberg was a charismatic anarchist who favored connection over coercion. “Coitus,” the basis of his “erotosophy,” engendered sublime experiences of mutual aid and support. When socialized, these experiences led to peaceful and prosperous forms of communal organization. Decentralized, lawless orders of love replaced modern states’ loveless regimes.
Beyond the Closet of Conceptualism
Sternberg’s critique of bourgeois sexuality went hand in hand with a critique of bourgeois legality. What he thought prudery and punitiveness had in common was that both were treated as ends in themselves in need of no justification.
In one of his philosophical fragments, Sternberg compared German jurists’ fetishization of concepts to German housewives’ obsession over laundry. When asked “Why have clothes at all?,” Sternberg’s housewife responded: “For the sake of order in the cabinet.” When asked “Why have law at all?,” Sternberg’s jurist responded something like: “For the sake of order in the conceptual system.”
Mainstream jurists, on Sternberg’s reading, were collectively in the closet—just like Germans generally. Propriety demanded that people hide their naked bodies behind respectable clothes. In the same way, legality demanded that jurists conceal real life behind expansive concepts. Just as regular people were forced to channel their urges in exchange for citizenship, judges had to check their passions at the courtroom door.
Sternberg transcended these restraints, first through his free law writings, then through his charismatism. Because the same cannot be said for those who came after him, his efforts have gone unnoticed. But Sternberg’s own trajectory shows that sex and sexuality are worthwhile subjects for legal inquiry. Revisiting the lives and works of those who helped shape German law might be a good first step beyond the closet.
Cite this article: Katharina Isabel Schmidt, „Theodor Sternberg and the Closet of Conceptualism“, in: History | Sexuality | Law, 19/01/2021, https://hsl.hypotheses.org/1573, (abgerufen am: Datum).
 Theodor Sternberg Papers, Box No. 458, File No. 10 (Chuo University Library, Tokyo/Japan), fragment titled “The Essence of Love.”
 For an excellent biography, see Anna Bartels-Ishikawa, Theodor Sternberg: Einer der Begründer des Freirechts in Deutschland und Japan(Berlin: Duncker & Humblot, 1998). See also the introduction to Manfred Rehbinder, Zur Methodenfrage der Rechtswissenschaft und andere Schriften (Berlin: Duncker & Humblot, 1988).
 One chapter of my dissertation reconstructs Sternberg’s “erotosophy” on the basis of several hundred of these fragments preserved at Chuo University Library.
 For an overview of my research, see Katharina Isabel Schmidt, “Law, Modernity, Crisis: German Free Lawyers, American Legal Realists and the Transatlantic Turn to ‘Life,’ 1903-1933,” 39 German Studies Review 121 (2016).
 Theodor Sternberg, Allgemeine Rechtslehre. Erster Teil: die Methode. Zweiter Teil: das System. (Leipzig: G.J. Göschensche Verlagshandlung, 1904).
 In 1906, Sternberg wrote a case note on “two kinds of justice,” in which he criticized German-speaking courts’ inconsistent jurisprudence in matters of sexual crime. Two years later, he published a biography of nineteenth-century jurist and birth control advocate Julius v. Kirchmann. That same year, he also contributed a piece on “man’s spiritual and emotional life” to an interdisciplinary collection on gender relations. In this piece, he posited a dichotomy between conservative, revenge-oriented masculinity and liberal, security-oriented femininity. Shortly before the outbreak of WWI, Sternberg engaged with the ideas of Swiss sexologist Auguste Forel. He also gave public lectures on female criminals, which he hoped to publish eventually.
 For a brief account of the meeting between Hirschfeld and Sternberg, see Magnus Hirschfeld, Die Weltreise eines Sexualforschers (Brugg: Bözbergverlag, 1933), pp. 51 ff.
 Theodor Sternberg Papers (Chuo University Library, Tokyo/Japan), File No. 108, fragment titled “Der Beruf unseres Volkes zur Gesetzgebung.”