Jones G.S., Claeys G. The Cambridge History of Nineteenth-Century Political Thought

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Frederick C. Beiser

important germs of truth: that the fundamental split in the movement arose

from an ambiguity in Hegel’s philosophy, and that it concerns the question

of the rationality of present conditions in Prussia. However, it is important

not to take it too literally or to draw broader conclusions from it. It is

misleading in several respects:

(1) Throughout the 1820sand1830s, the division between right and left was

not between radicals and reactionaries, but between opposing wings of

a broad reformist politics. The radical currents of left-wing Hegelianism

developed only in the 1840s, after the accession of Friedrich Wilhelm

IV; and even then there was not that much of a split between radicals

and conservatives because right-wing Hegelianism virtually disappeared

(Toews 1980,pp.223–4, 234–5).

(2) The distinction between method and system is not only artiﬁcial,

but also insufﬁcient to distinguish between right and left Hegelians.

After the 1840s the left rejected the method as much as the system

because they lost all their faith in the dialectic of history (Toews 1980,

p. 235).

(3) Engels interprets the division in narrow political terms, though religious

differences occasioned the split in the ﬁrst place (Brazill 1970,pp,7, 53;

McLellan 1969,pp.3, 6).

What ﬁnally shattered and dissolved Hegelianism was not its internal dis-

putes, its centrifugal tendencies alone. For, as we have seen, the debates of

the 1830s continued within a Hegelian framework, never renouncing the

grand Hegelian ideal of the unity of theory and practice. What did defeat

Hegelianism was the very card its master most loved to play: history. In

1840 the Prussian Reform Movement came to its end. In that fateful year

both Altenstein and Friedrich Wilhelm III died. Hopes for reform were

raised again with the accession of Friedrich Wilhelm IV. And, indeed, he

began his reign with some popular liberal measures: amnesty for political

prisoners, the publication of the proceedings of provincial estates and the

relaxation of press censorship. It did not bode well, however, that the new

king’s personal politics were very reactionary. He advocated government

by the old aristocratic estates, disapproved of the plans for a new consti-

tution, insisted upon protecting the state religion and even defended the

divine right of kings. Sure enough, there were some very ominous develop-

ments. In 1841, Friedrich Wilhelm showed his political colours by inviting

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Hegel and Hegelianism

Schelling to Berlin ‘to combat the dragonseed of Hegelianism’. Then, in

1842, the government began to impose censorship, forcing the Hegelians to

publish their main journal, the Hallische Jahrb

ucher, outside Prussia. For any

Hegelian in the 1840s, then, this course of events could only be profoundly

discouraging. Rather than marching forward, as Hegel assumed, history

seemed to be moving backwards.

Once the forces of reaction began to assert themselves, it was inevitable

that Hegel’s philosophy would collapse. The very essence of Hegel’s teaching

made him vulnerable to historical refutation. The great strength of Hegel’s

system lay in its bold syntheses – of theory and practice, of rationalism and

historicism, or radicalism and conservatism – for these seemed to transcend

the partisan spirit, granting every standpoint a necessary, if limited, place

in the whole. But the great strength of Hegel’s philosophy was also its

great weakness, its tragic ﬂaw. For, as we have seen, all these syntheses

rested upon a single optimistic premise: that reason is inherent in history,

that the laws and trends of history will inevitably realise the ideals of the

Revolution. It was just this optimism, though, that seemed to be refuted by

the disillusioning events of the early 1840s. Hegel had bet his whole system

on history; and he had lost.

It is not surprising to ﬁnd, then, that the neo-Hegelian debates of the

1840s take on a new dimension. The question is no longer how to praise

and interpret Hegel but how to transform and bury him. The publication

of Feuerbach’s Das Wesen des Christenthums in 1841 convinced many of the

need to go beyond Hegel. In 1842, Arnold Ruge, a leading left Hegelian,

published his ﬁrst criticism of Hegel.

And in 1843 Marx and Engels would

begin their ‘settling of accounts’ with their Hegelian heritage in Die deutsche

Ideologie. Internal feuding lost its former energy and meaning. Many of the

right-wing Hegelians became disillusioned with the course of events and

joined their brothers on the left to form a common front against their

reactionary enemies (Toews 1980,pp.223–4). The common framework for

the debates of the 1830s also quickly disappeared. Rather than reafﬁrming

the ideal of the unity of theory and practice, many Hegelians asserted the

rights of theory over practice. It seemed to Bruno Bauer, for example, that

the growing gap between ideal and reality in Friedrich Wilhelm’s Prussia

could be overcome only by ‘the terror ism of pure theory’.

44 McLellan 1969,p.24. The new critical developments of the 1840s are well-summarised by Stepelvich

1983,pp.12–15.

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Frederick C. Beiser

By the close of the 1840s, Hegelianism was rapidly becoming a fading

memory. Having been the ideology for a reform movement that had failed,

it could not be the ideology for the Revolution of 1848. Thus the grandest

philosophical system of the nineteenth century, and one of its most inﬂuen-

tial philosophical movements, disappeared into history. The owl of Minerva

ﬂew from her roost over Hegel’s grave.

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Historians and lawyers

donald r. kel ley

1 Law and political thought

How is law related to political thought in modern European history?

There

are three different answers to this question that apply here. One derives from

what may be called the legislative or statutory model of legal philosophy,

which, following good classical precedent, identiﬁed law with the will of

the sovereign, whether located in a monarchical or in a republican form of

government. In the eighteenth century the legislative paradigm can be seen

in the theory and practice of enlightened despotism and especially in the

codiﬁcation movement, which touched many European states, including

Prussia, Austria and France (Tarello 1976; cf. Wisner 1997). European codes,

modelled largely on the Corpus Juris Justiniani (ad 529–33), were intended

to organise all private law (especially the law of persons and property) into

a single system and in this way, whether directly or indirectly, to politicise

it. This agenda was realised most famously in the Napoleonic Code, but it

can also be seen in monarchists such as Joseph de Maistre, Louis de Bonald,

and Friedrich von Stahl and Utilitarians such as Jeremy Bentham and John

Austin, who deﬁned law simply as a command of sovereign power.

The second traditional answer is associated with the rival judicial model

and locates political thought within the larger ﬁeld of law and jurispru-

dence (in the form of public law), which represents a long professional

and ‘scientiﬁc’ tradition. C. F. M

uhlenbruch’s Doctrina Pandectarum (1838),

for example, which served Karl Marx and many other law students as a

textbook, begins with an introductory survey of the authoritative sources

of law and a history of legal tradition going back to antiquity; then goes

on to ‘general’ law, including its deﬁnition, divisions and interpretation;

and ﬁnally takes up the ‘special’ part of law, that is, private law (divided in

1 The following discussion draws on Kelley 1984a, 1991. In general, the most useful treatments of legal

history are Fass

o 1974, Landsberg 1912,Wieacker1967, and, invaluable for bibliography, von Mohl

1855.

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Donald R. Kelley

Roman fashion into the law of persons, things and actions, or obligations)

and the larger social or institutional groupings, including the family, cor-

porations and other ‘ﬁctitious persons’, and culminating in the state (civitas

or respublica). Here political authority is regarded as simply part – the high-

est but also the latest level – of the legal system (M

uhllenbruch 1838;cf.

Cappellini 1984–5, ii).

The third model represents law as the expression of popular will, and of

course this was associated most notably with the General Will as formulated

by Rousseau (Riley 1986). This concept had philosophical and religious

roots and was reinforced by the most ancient rule of jurisprudence, the Salus

populi suprema lex esto of the Roman Twelve Tables; but it also had a more

concrete expression, which was the medieval tradition of customary law

(Kelley 1990,pp.131–72, 1991,ch.6). In 1789 the body of French customs

had ostensibly perished along with the old regime, but its spirit survived the

Revolution in various forms. German scholars regularly distinguished state-

made law (Staatsrecht) from people-made law (Volksrecht) and judge-made

law ( Juristenrecht) (Beseler 1843). It was the second of these that inspired

not only nostalgic or reactionary longings for a return to the old regime but

also dreams of social justice and even a ‘socialist’ future in which law would

be deﬁned not as a political creation or an accumulation of individual rights

but rather as an expression of social needs and ideals by which it should be

judged and to which it should ultimately be subject. This view of law was

associated mainly with radical critics such as Marx and Proudhon, though

later it did inﬁltrate the legal profession in France in the form of droit social

and elsewhere in the form of sociological jurisprudence (Gurvitch 1932).

These three legal paradigms – the legislative, the judicial and the social –

may best be regarded as ideal types; for in practice, especially in the views of

legal and historical scholars, few governments, not even that of Bonaparte,

ever attained a state of purity. The old, still controversial theory of ‘mixed

government’ entailed a complementary conception of law as a creation of

multiple sources. So the history most familiar to jurists had taught: Roman

law had been issued from popular, judicial and senatorial, as well as imperial

sources until Justinian acted – though, as history also taught, acted vainly –

to bring them all under imperial will. It was only in theory, the theory

of an Ulpian, a Bodin, an Austin or a Stahl, that law and the law-making

will were brought together in a logical and unambiguous fashion (Hinsley

1986).

These contrasting views correspond to three loci of authority in the

nineteenth century – the omnicompetent state, the independent judicial

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establishment and ‘civil society’ in its largest sense. They hardly correspond

to legal or political practice, but they do suggest the assumptions and ratio-

nales of the opposing positions of nineteenth-century legal, historical and

political thinking. They also reﬂect a triangular debate which has continued

in the public arena over the question of whether authority ought to rest

with the state, with the people, or with some expert elite that speaks in the

name of both.

What gave these questions immediacy and urgency in the nineteenth cen-

tury was the experience of the French Revolution, which, however viewed,

became the cynosure of historical and legal dispute. Whether celebrated by

liberals and socialists as the opening of a glorious future in the name of

perfectibility and progress or denounced by conservatives and reactionaries

as the source of all evil in the world, whether regarded as the culmination of

the forces of nationality or the despotic nemesis of national independence,

the Revolution has remained the major challenge for historical explanation,

model for historical theorising and test for political narrative on a grand scale

(Lucas 1988).

In the nineteenth century the general concept of ‘revolution’ became

a major presence in political thought not only as a phenomenon, which

was perhaps peculiar to modern history since the English Civil War, but

also as a locus of questions about social structure and political change.

For historians revolution was an uncommon and dramatic set of events

challenging their powers of interpretation; for lawyers it was a break in

continuity threatening not only the legitimacy of existing institutions but

also their own assumptions and livelihood; for political thinkers it was

a point of intersection between the hardest of all test cases for political

science and the most fundamental of all political value-judgements. After

1815 the discussion of the nature of revolution was carried on between

two ideological extremes – one judging 1789 as the source of all modern

troubles, and the other celebrating it as the great hope for the future of all

mankind. In many ways it was the historians and the jur ists who tried to

keep this conversation on a civil and practical level.

In a long perspective the European society that emerged from the calami-

tous events of the revolutionary and Napoleonic periods was dramatically

transformed, but perhaps less so from the standpoint of lawyers and his-

torical scholars, who looked below the level of headline stories, diplomatic

debates, political geography and constitutional theory, than from the stand-

point of political observers and critics (Kelley 1994). In the law and in

historical experience continuities with the old regime – continuities in

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Donald R. Kelley

mentality, social habits, legal conventions and economic arrangements –

became increasingly obvious, especially to persons and groups dedicated to

continuing and extending the revolutionary agenda of ‘liberty, equality and

fraternity’.

2 The historical and the philosophical schools

‘History must be illuminated by laws, and laws by history’, declared Mon-

tesquieu (Montesquieu 1751, xxx,p.2); and this may well be taken as the

motto of nineteenth-century jurisprudence – or at least as the central issue

to be debated. In general Montesquieu’s aphorism illustrates the amphibious

nature of law, which on the one hand represents the accumulated wisdom

of centuries and on the other hand must itself be judged by historical reality.

The old regime lived under the rule of custom and for the most part let

history illuminate the theory and practice of jurisprudence, while the Rev-

olution judged history in the light of its conceptions of law and desires for

social change. Post-revolutionary political and legal thinkers tended to cast

their arguments between these two ideological poles. These two positions

were deﬁned respectively as the ‘philosophical school’, which drew its inspi-

ration from ideas of natural law deriving from Grotius, Pufendorf, Barbeyrac

and other ‘jus naturalists’; and the ‘historical school’, based on ‘positive law’,

ideas of legal development and criticism of the abstract theories of natural

law (Gierke 1934, 1990; Thieme 1936,pp.202–63;Stein1980). The debates

between these schools reverberated far beyond the conﬁnes of law and even

political thought in the nineteenth century.

The philosophical school had found a home in France and, in the wake of

the Revolution, a social laboratory for its theories and aspirations. In 1791

the National Assembly expressed its determination ‘to make a code of civil

laws common to the whole kingdom’, and two years later Citizen (later

Count) Cambac

es presented his ﬁrst ‘project’ for this national code. ‘The

age so devoutly wished for has ﬁnally arrived to ﬁx forever the empire of

liberty and the destiny of France’, he proclaimed, adding that his aim was no

less than to regenerate, to perfect and to ‘foresee’ absolutely everything in

the spirit of enlightened despotism and more immediately of Jacobin (later

Bonapartist) social engineering (Fenet 1827, i). ‘Legislators, philosophers,

and jurists’, Cambac

es declared in his ‘Discourse on Social Science’ of

1798; ‘this is the age of social science [la science sociale] and, let us add, of true

philosophy’ (Cambac

es 1789;cf.Gusdorf1978, viii,p.401; Head 1985,

p. 109;Moravia1974,p.746). Debates between the philosophical and the

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Historians and lawyers

historical schools – represented respectively by the radicalism of Rousseau

and the historical relativism of Montesquieu – were in part a dispute over

the nature of this new ﬁeld (and newly coined term), ‘social science’.

In the ofﬁcial deliberations over the Civil Code carried on by Napoleon’s

committee of redaction (1800–4) we can see the spirits of Rousseau and

Montesquieu posthumously contending for the political soul of France

(Bonnecase 1933; Gaudemet 1904, 1935). On this committee Cambac

represented the pursuit of perfectability and codiﬁcation of the General

Will through an infallible science of legislation. Opposed to him was Cit-

izen (later Count) Portalis, disciple of Montesquieu, who objected to the

revolutionary and ‘Robespierrist’ spirit of the original plan, which for him

was an ‘abuse of the philosophical spirit’ (Portalis 1827). ‘The doctrine of

the redactors is that we should preserve everything that it is not necessary to

destroy’ (Portalis 1844,p.69); and he concluded, ‘How can we control the

action of time? How can we resist the course of events or the imperceptible

force of custom? How know and calculate in advance what experience

alone can reveal to us? Can foresight ever be extended to objects which

thought itself cannot yet grasp?’ (Fenet 1827, i,p.469; Schims

ewitsch 1936).

These questions anticipated the more extensive critique which Savigny

brought in his famous manifesto of 1814, The Vocation of our Age for Legislation

and Jurisprudence (Savigny 1831). In the eighteenth century, Savigny wrote,

‘Men longed for new codes, which, by their completeness, should insure

a mechanically precise administration of justice’; and the upshot was that

Bonapartist creation, which ‘broke into Germany, and ate in, further and

further, like a cancer . . .’ (Savigny 1831,p.18). To throw light on these

questions Savigny published passages from the preliminary debates over the

text of the French Code, which took up the problems of the contradictions

between legal simplicity and social complexity, referring in particular to the

conservative arguments of Portalis. It was this legislative violation of history

that provoked Savigny’s manifesto of 1814 and led to a key question. ‘What

is the inﬂuence of the past on the present?’ is the way he posed it, ‘and what

is the relation of what is now to what will be?’ This was at once one of

the central problems of the ‘Historical School of Law’ and one of the basic

dilemmas of nineteenth-century political thought.

Although Hegel became the acknowledged head of the philosophical

school, it was actually his intention to r ise above and indeed to reconcile

the historical and philosophical conceptions of law. Just as the Roman legal

tradition had arisen from speciﬁc ‘positive’ laws and aspired to the status

of ‘written reason’ (ratio scripta), so modern positive law should seek to

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Donald R. Kelley

attain the level of natural law and civil society to ﬁnd its ideal form in the

state (Hegel 1952,pp.16–17; Kelley 1991,pp.252–7; Lucas and P

oggeler

1986;Riedel1984). It is this reconciliation of human will and reason on

legal terms that underlay Hegel’s f amous motto, ‘What is rational is real

and what is real is rational.’ The irony is that what Hegel brought into

unity in conceptual terms his disciples divided still more drastically – ‘right’

Hegelians interpreting his slogan as a defence of conservatism and ‘left’

Hegelians interpreting it as an ideal to be achieved by radical action and,

ﬁnally and again, revolution.

3 The coming of law in France

‘I deﬁne the Revolution in this way,’ wrote Jules Michelet: ‘the coming

of law, the revival of right, the reaction of justice’; and this noble vision

persisted over many generations (Michelet 1847–53, introduction). In the

nineteenth century law and history as well as political thought were shaped,

and then haunted, by the ideologies and realities of the French Revolution.

Like political theorists, jurists and historians regularly deﬁned their ideolog-

ical positions in terms of the Revolution, whether the seating arrangement

in the National Assembly or the chronological extension of this represented

by the successive stages of revolutionary government, from constitutional

monarchy to republic to despotism and back to constitutional monarchy,

with various shadings in between. Like political theorists, too, jurists and

historians had to explain, interpret and judge the unprecedented and unique

set of events that deﬁned the ‘old regime’ even as it was ostensibly brought

to a close (Kelley 1987,pp.319–38). The difference was that historical

and legal scholars had to look more closely at the social and institutional

underpinnings of the political and constitutional structures and the real-

ities of human relations in the context of that ‘civil society’ which was

increasingly being distinguished from the state. As Portalis wrote, ‘New

theories are only the systems of individuals; ancient maxims represent the

spirit of the ages’ (Portalis 1844,p.84). This was a way of distinguishing not

only between legislative science and jurisprudence but also between political

theory based on general reason and utility and that based on history and

experience, both oppositions being fundamental to the history of political

thought.

As conceived by its supporters, the Revolution had claimed priority

both over the historical process and over legal convention. Such indeed

was the purpose of those ‘men of law’ (hommes de loi) who did more

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Historians and lawyers

than any other social group to formulate the aims of the Revolution from

1789 onwards (cf. Fitzsimmons 1987; Kelley 1994;Royer1979). Not of

course that there was any agreement on how to carry through the ideals of

justice, for again there were polar extremes in the legal profession, ranging

from reactionary

emigr

es like Nicolas Bergasse to Jacobin enthusiasts like

Robespierre – lawyers both. Where the extremes ﬁnally met was in debates

over the formation of a ‘new judicial order’ and above all a national code of

laws, which Bonapartist enthusiasts hoped would bring social perfection and

political unity but which conservative critics saw merely as an instrument

to apply to the unending turmoil of the human condition.

For strict interpreters the Code remained an expression of sovereign will.

In its preliminary discussions the committee of redaction, confronted with

the problem of time lags in the communication of legislative commands,

proposed an ofﬁcial delay of two weeks between promulgation and enforce-

ment; but Napoleon, who attended many of these meetings, objected that

this ‘would be an offence to the national will’ (cf. Kelley 1984,p.43).

The

redactors of the Code settled on a formula based on calculations for the

time needed to communicate legislative orders to the provinces (one day

for every twenty leagues from Paris from the ﬁrst day and the d

epartement

of the Seine from the third day). Thus the ‘general will’ – soon to be the

imperial will – would emanate concentrically and mathematically from its

legislative source and, in the form of obedience and morale, reﬂect back on

its national foundation.

The obsession with the general – revolutionary, consular and imperial –

will accounts also for Napoleon’s suspicion of lawyers and judges. Like

Justinian, Napoleon forbade any interpretation whatsoever of his Code; and

indeed when the term was mentioned during the preliminary discussions,

imperial jurists professed horror at the idea that judges could make changes

in the legislative will (cf. Kelley 2001). Interpretation of a law, according

to an ancient maxim, was reserved for the maker of that law. If this rule

were forgotten, warned one of the Bonapartist redactors, the abuses of

the old regime – ‘the empire of feudal custom’ – would return through the

loophole of judicial interpretation (Fenet 1827, vi). To Napoleon, despite

the care taken by the literalist school of interpretation, the so-called ‘cult

of 1804’, this was exactly what appeared to happen, as the legal profes-

sion was reinstated, as jurisprudence continued to accumulate, as teachers

of law in Napoleon’s new Universit

e disputed and altered its character, as

2 Code civil, 1803,art.1.

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