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

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Donald R. Kelley

historians investigated the complex history of law, and as the international

debates over the nature of law undermined the simple theory of legislative

sovereignty.

What was increasingly apparent in retrospect was not so much what the

Revolution destroyed but the survivals and continuities which emerged

in the Restoration. In part this was a product of the old legal tradition,

which managed to survive ﬁrst unofﬁcially under the Revolution and then

in Bonapartist revival and which carried with it much of the mentality

of the legal practice and theory of the old regime. Revolutionary and

‘intermediate’ law drew on earlier precedents, most of the substance of the

Code Napol

eon was based on the work of R. J. Pothier and other jurists

of the old regime, and the lawyers and the magistracy of the Restoration

deliberately set out to reforge links with the founding fathers of their guild

(A.-J. Arnaud 1969).

In many ways jurists such as Portalis, P. P. N. Henrion de Pansey, Charles

Toullier and J. P. Proudhon re-established, or reinforced, juridical conti-

nuities with the feudal, corporatist and parliamentary traditions of the old

regime. And French historians such as Augustin Thierry, Franc¸ois Guizot

and Jules Michelet car ried on parallel projects in the realm of historical

scholarship and (in Michelet’s term) ‘resurrection’ (Kelley 1984,pp.93–

112, 2003,pp.141 ff.).

In part this vision of continuity had a political base, especially among

opponents and victims of revolutionary and Bonapartist policies. Portalis’

conservative opinions were displayed ﬁrst in the heat of the preliminary

discussions of the Code and elaborated further under the Restoration. He

rejected the ‘false doctrines concerning the social contract, sovereignty,

and the false ideas about exaggerated liberty and absolute equality’. What

Portalis recommended to the editorial committee formed to establish the

text of the ‘Code of the French People’, as it was originally called, was

the gradual reform of laws and institutions based on practical exper ience,

not theoretical perfection. In opposition to revolutionary mentality that

demanded utopia overnight Portalis proclaimed ‘Honor to the wisdom of

our fathers, who formed the national character.’

For the

emigr

e magistrate Bernardi law was not a creation of a single

ruler but ‘the accumulation of reason of all the centuries’ and the product

3 Cf. Austin 1873, i,p.334: ‘In France the code is buried under a heap of subsequent enactments of

the legislature, and of judiciary law subsequently introduced by the tribunals.’

4 Portalis 1844, 19: ‘honneur

a la sagesse de nos p

eres, qui ont form

e le caract

ere national’.

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Historians and lawyers

of ‘the great revolutions which occurred in Europe during the sixteenth

century in religion, politics, and even literature’, which made that age one

of the ﬁrst memorable in moder n history (Bernardi 1803,p.3). Bernardi

invoked the names not only of Burke but also Claude de Seyssel, whose

Monarchy of France (1515) celebrated the conservative and balanced character

of the French ‘constitution’ (Bernardi’s term) and contrasted it with Roman

absolutism, counterpart of the ‘Corsican domination’ and ‘twenty-ﬁve years

outside the law’ of Bernardi’s time. So he dismissed the so-called (but

misnamed) ‘revolution’ of his time.

A similar debt to the old legal tradition was owed by Henrion de Pansey,

who took his inspiration from Charles Dumoulin, the sixteenth-century

‘prince of legists’. Henrion praised France as a ‘tempered monarchy’ subject

to ‘fundamental laws’ (Henrion de Pansey 1843; cf. Salmon 1995). During

as well as after the Bonapartist period he defended the principle of life-

tenure for judges, and (citing Montesquieu and others) he argued that the

prince should never interfere with ‘judicial authority’. Serving as magistrate

under Napoleon as president of the Cour de Cassation until his death in

1829, Henrion was rewarded for his efforts by honorary membership in the

‘Historical School of Law’ which attracted disciples in France only after

1815.

4 The new histor y in France

Before the Revolution lawyers were joined by historians in celebrating the

glories and continuities of French history. One of the most extraordinary

expressions of this traditionalism was the erudite summation of French

constitutional history assembled by Marie-Charlotte-Pauline Robert de

Lezardi

ere and published in 1792 as Th

eorie des Lois Politiques de la Monar-

chie Franc¸aise. Lezardi

ere celebrated the Germanic heritage of the French

monarchy and (in a sense similar to the contemporaneous usage of Edmund

Burke) its ‘political constitution’ (Lezardi

ere 1844; Carcassonne 1927). Sel-

dom was a book more unfortunately timed, and indeed it was stillborn in

the ﬁrst year of the French Republic. A half-century – and two revolutions –

later, however, it received new life through the efforts of Guizot, who saw

to its publication in 1844, when the ‘new history’ of the Restoration had

been established by Guizot and colleagues such as Augustin Thierry and

Jules Michelet.

5 Globe, 3 (1823), 35.

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Donald R. Kelley

In the Restoration antiquarian motives reinforced legal traditionalism,

as romantic scholars turned with increasing interest to the medieval past

of the nation (Gooch 1913,pp.130ff.; Kelley 2003; Mellon 1958; Moreau

1935; Reizov, n.d.; Stadter 1948; Walch 1986). Certainly the most impor-

tant politically was Guizot, who made a great reputation as a historian of

civilisation before turning to a political career in 1830. As he declared in

the lecture course he gave in 1820, ‘It is from the midst of the new political

order which has commenced in Europe in our own days that we are about

to consider . . . the history of the political institutions of Europe from the

foundation of modern states ...Against our will and without our knowl-

edge, the ideas which have occupied the present will follow us wherever we

go in the study of the past’ (Guizot 1852,p.521). For Guizot, taking a delib-

erately Whiggish standpoint, the political lesson of history was gradualism,

and for this reason, he ‘was anxious to combat revolutionary theories and to

attach interest and respect to the past history of France’ (Guizot 1858–9, i,

p. 300). Before the July Revolution of 1830, he confessed about his motives

and those of other opponents of the Bourbon government, ‘our minds

were full of the English Revolution of 1688’ (Guizot 1858–9, ii,p.17).

For Guizot 1830 marked the culmination of history and the triumph of the

bourgeoisie and its values – ‘justice, legality, publicity, liberty’. This was the

‘civilisation’ which Guizot celebrated in his famous lectures and published

work and which he supposed would be attendant upon the accession of

the July Monarchy which he ser ved – a government which represented not

only the culmination of history but, as some observers commented, ‘the

victory of the lawyers’.

The real founder of the ‘new history’ of Restoration France was Augustin

Thierry, sometime disciple of Saint-Simon, opponent of the philosophical

school, and proliﬁc writer of popular history, especially of medieval Eng-

land and France (Gossman 1976;Smithson1972). He shared entirely the

Whiggish perspective of Guizot (in the sense both of presentism and of

Anglophilia), and in 1836 he accepted the assignment from Guizot – signif-

icant in an ideological as well as a scholarly way – of collecting the sources

for a history of the Third Estate from early medieval times. ‘What is the

Third Estate?’ Siey

es had asked in 1789 – and had answered his own ques-

tion: ‘Everything’, though until then it had been ‘nothing’ and had only

wanted to become ‘something’. Thierry gathered the historical materials

both to answer Siey

es’ question and to describe the ‘something’ which the

Third Estate had become, which was nothing less than the Nation itself.

In his introduction to his collection of ‘monuments’ of the Third Estate he

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described the rise of the communes and ‘the progress of the different classes

within the non-noble estate [Roture] to liberty, well-being, enlightenment,

[and] social importance’ (Thierry 1866).

For Michelet history was at once an expression of human universality,

a struggle between fatalism and liberty, a national epic, a theodicy, and an

allegory of self; and the writing of it gave Michelet access to the great

canon of French literature. Yet Michelet had also been an explorer of the

‘great catacomb of manuscripts’ that had survived the Revolution; and, like

Thierry, followed the meta-political story of national self-creation through

the legal monuments which constituted both the last will and testament

of the old regime and the prophecy of the new Nation, which Michelet

believed would be the ﬁnal legacy of 1789 – that triumph of law and justice

which the ﬁrst revolution promised. The last stage of this process came with

the ‘three glorious’ days of that second revolution, when history would be

transformed into an ‘eternal July’ signalling the victory of liberty over

‘fatalism’ (Michelet 1972, ii,p.217; Kelley 1984a). The unanswerable social

question of the early nineteenth century and the events of 1848 destroyed

this revolutionary dream of social fraternity – a classless Nation – as well

as the constitutional monarchy; but the bourgeois ideal of a uniﬁed nation

under liberal principles was preserved under other forms of government,

ﬁrst imperial and then republican.

In general the effect of legal and historical scholarship on politics was

to qualify, to criticise or to counteract the ideals of revolutionary action

on the grounds of experience and historical inertia. Revolutionary legis-

lation, including the Civil Code, was necessarily abstract and needed

not only interpretation but also application to particular cases and ques-

tions; and this was the function of the old ‘science of law’ and jurispru-

dence, which was drawn either from legal tradition or the intuitions of

judges. Post-revolutionary historians also emphasised the sub-political forces

which prevented the sort of direct change and control which champions

of the new social science – the ‘science of legislation’ – envisaged. In

such terms they contributed to the contemporary political debate even

if they were not always attended to by constitutional and macro-political

theorists.

5 The historical school in Germany

‘Historical writing was old, but historical thinking was new in Ger many

when it sprang from the shock of the French Revolution’, wrote Lord

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Donald R. Kelley

Acton, adding that ‘The romantic reaction which began with the invasion

of 1794 was the revolt of outraged history’ (Acton 1985,p.326). Since

Acton’s time we have learned much more about the eighteenth-century

roots of that inﬂuence ‘for which the depressing names of historicism and

historical-mindedness have been devised’ (Acton 1985,p.326). Long before

the Revolution German scholars had inclined towards a historical view of

political, constitutional and legal questions. The German Aufkl

arung was

critical of the unhistorical rationalism of the French philosophes –legal

scholars insisting on the conceptual value of ‘positive law’ (as distinguished

from the universalism of natural law) and historians, especially those at the

ottingen School in the eighteenth century, working out ideas of national

individuality and cultural development. The writings of J. S. P

utter (1725–

1809) on legal and constitutional history, for example, rejected abstract

systematising in favour of the study of the customs and institutions of Ger-

many, which he understood to be ‘deeply rooted in its constitution, partly

in its climate, and in everything that was common to Germany’s situation’

(Reill 1975,p.184; Butterﬁeld 1955; Kelley 2003). Herder’s conception of

Volksgeist was a similar, if more philosophical expression of this view of the

organic nature of society, law and political organisation.

Yet the German Wars of Liberation did provide a focus and an impulse for

more intensive study of the national past; and the new University of Berlin,

founded in 1808, replaced G

ottingen as the centre of such historical and

legal scholarship (Gooch 1913). Barthold Georg Niebuhr, Karl Friedrich

Eichhorn, Karl Friedrich von Savigny and later Hegel are among the ﬁg-

ures attracted to this new centre of national identity. Eichhorn published

the ﬁrst volume of his pioneering history of German law and institu-

tions, which he saw as reﬂecting a national life going continuously back to

Frankish times; and this work was supplemented by that on German legal

antiquities by Savigny’s pupil, Jacob Grimm, and especially the Monumenta

Germaniae Historica, a systematic collection of historical and legal sources,

which began appearing in 1826 andisstillbeingproducedtoday.Such

publications formed the basis of the efforts to reconstruct a national past

paralleling and reinforcing the movement towards political and legal unity

of a uniﬁed German state which many of these scholars envisioned and

celebrated.

The leader of the Historical School of Law in the nineteenth century

was Savigny, but its true founder was Gustav Hugo (1764–1844), who had

studied with P

utter at G

ottingen and who taught law at the University of

Heidelberg (Marino 1969;Whitman1990,pp.205–6;Ziolkowski1990).

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Historians and lawyers

Hugo’s major work was a handbook of civil law (published in many editions

from 1789 to 1832) which offered a new and critical interpretation of

‘natural law as a philosophy of positive law’. Hugo, who was the translator

of the famous forty-fourth chapter of Gibbon’s Decline and Fall on the

history of Roman law, viewed legal history not just as a scholar but also

as a theorist who disdained ‘mere metaphysics’ of ‘dogmatic natural law’

and the empty theorising of the physiocrats or Economisten (Hugo 1819,

pp. 4, 28). He regarded the history of law and a ‘juristic anthropology’ as

essential foundations for a legal system, or ‘encyclopedia’, and especially

for the education of lawyers; and he saw law as a late stage of the long

development of the custom of a particular society or nation. For Hugo

an expert understanding of this evolution was necessary for any legal or

political judgement.

After 1814 Hugo and his work were eclipsed by his younger colleague

Savigny, who had been called to the University of Berlin in 1810,eight

years before the arrival of his colleague and rival Hegel (Marino 1978;

Meinecke 1970,pp.158–9).

The historical school came into prominence

with the appearance of the new journal edited by Savigny and Eichhorn,

the Zeitschrift f

ur Geschichtliche Rechtswissenschaft, and especially the follow-

ing year with Savigny’s manifesto. The premise of all of Savigny’s work,

including both his history of Roman law in the Middle Ages and his last

book, an unﬁnished ‘system’ of civil law, was that law ‘has a two-fold life:

ﬁrst, as a part of the aggregate existence of the community, which it does

not cease to be; and, secondly, as a distinct branch of knowledge in the

hands of the jurists’. Both of these aspects of law had been violated by

Napoleon’s international empire and its legal counterpart, the Civil Code.

‘As soon as Napoleon had subjected everything to a military despotism, he

greedily held fast that part of the revolution which answered his purpose

and prevented the return of the ancient constitution’ (Savigny 1831,p.71).

The German Wars of Liberation had ended this despotism and had created

conditions under which ‘[a] historical spirit has been every where awak-

ened, and leaves no room for the shallow self-sufﬁciency above alluded to’

(Savigny 1831,p.71).

What was at issue here were two conceptions of legal and politi-

cal reason – that of the philosophical school, which identiﬁed it with

abstract and universal systems, and that of the historical school, which

regarded human reason as the accumulated experience of many centuries of

6 In general, see Moravia 1980.

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Donald R. Kelley

cultural development. For critics of rationalism like Herder and Portalis

history was not only an expression of this experience but also a critique

(for Herder a ‘meta-critique’) of the ‘pure reason’ associated with Kant

and, more vulgarly, the Jacobins and Bonapartists and radicals like Tom

Paine, who, opposing Burke’s anti-revolutionary ‘sermon’, wanted to ‘lay

then the axe to the root’ (Paine 1989b, p. 70). This was the attitude that

Savigny deplored. ‘Only through her [history] can a lively connection with

the primitive state of a people be kept up’, he declared; ‘and the loss of

this connection must take away from every people the best part of its spir-

itual life’ (Savigny 1831,p.136). This is precisely what the Revolution

had done to France and what Napoleon had dogmatically systematised and

politicised.

These were some of the underlying issues of the controversy provoked by

Savigny’s manifesto, beginning with the pamphlets of A. W. Rehburg and

especially of A. F. T. Thibaut (who was a colleague of Hugo at Heidelberg)

defending the notion of a general code for Germany. In fact the real issue

between Savigny and Thibaut was not history versus philosophy – for

Thibaut also claimed a historical basis for his position – but rather what

constituted a proper understanding of modern history.

Savigny did not

think the time was ripe for a code, while Thibaut argued that modern civil

law transcended the local constrictions of the Volksgeist in its earlier forms.

Was Germany ready to become a uniﬁed national state with its own legal

system? In the event it was only in 1900 that the German Civil Code ﬁnally

resolved this problem.

Savigny had many disciples in the ﬁrst half of the nineteenth century

outside the boundaries both of the legal profession and of Germany. His-

torical linguists like Jakob Grimm (who studied with Savigny at Berlin) and

political economists like Wilhelm R

oscher applied Savigny’s premises and

prejudices to their own lines of investigation in the effort to enhance the

defence and illustration of the life of the people – the Vol k being the German

counterpart of the emergent French Nation. Politically, the historical school

resembled the philosophical school – Savigny’s inﬂuence resembled that of

Hegel, his great rival at the University of Berlin in that both had left-wing

as well as right-wing offspring. In France in particular Savigny’s followers

hoped that his doctrines would be a way of completing the unﬁnished

‘social revolution’, while others associated the historicism of Savigny exclu-

sively with the formation of the authoritarian national state (Kelley 1984a).

7 The essential texts are collected in Koselleck 1967 and Stern 1959.

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Historians and lawyers

The same divergence can be seen, even more radically, in the intellectual

progeny of Hegel.

The inﬂuence of the German Historical School even reached the New

World, which was ostensibly free of the burdens of the feudal past of Europe

and yet which displayed a similar pattern of development. ‘American law was

the growth of necessity, not of the wisdom of the individuals’, wrote George

Bancroft (who had studied in Germany) of the period of the American

Revolution. ‘It was not an acquisition from abroad; it was begotten from

the American mind, of which it was a natural and inevitable but also a slow

and gradual development. The sublime thought that there existed a united

nation was yet to spring into being’ (Bancroft 1876, iv,p.568).

In many ways German political thought was dependent on legal tradition

in the wake of the French Revolution. The concept of a state based on law

(Rechtsstaat), coined by K. T. Welcker in 1813 and popularised by Robert

von Mohl, was an attractive (and in a sense non-political) alternative to the

state based on absolutist or arbitrary rule (Polizeistaat)andthatbasedon

popular will (Volksstaat), associated with Rousseau and Robespierre. Such

juridical statecraft (Staatswissenschaft), suggesting a middle path between

progress and reaction, was reinforced by the work of constitutionalist jurists

like K. S. Zachariae, who stood for a Germanic ‘ancient constitution’ and

attendant liberties comparable to those celebrated by the English and French

(Kreiger 1957,p.253;Stahl1830;Whitman1990,pp.95–6, 141–3).

The question that remained was on what basis such moderate govern-

ment should be built, and here occurred a severe split within the ranks of the

historical school and the ‘new professoriate’ of the nineteenth century. On

the one side was Savigny and his followers, who argued that the ‘reception’

of Roman law beginning in the ﬁfteenth century and the ‘modern’ tradi-

tion based on this reception of Justinian’s usus modernus Pandectarum called

for a Romanist legal structure. On the other side were defectors from Savi-

gny’s scholarly and professional position, including his former student Jakob

Grimm, who looked rather to Germanic custom as created by the people,

and his former collaborator Eichhorn, who founded his own ‘Germanist’

journal in 1839 (Mittermaier 1839).AccordingtoC.J.A.Mittermaier,

another defector from Savigny’s camp: ‘Our law stands in opposition to

the national consciousness, to the needs, customs, attitude, and ideas of

the people.’

This democratic conception of law was opposed by Savigny’s

follower G. F. Puchta, whose book on customary law argued that custom

8 Remarks made at a congress of Germanists in 1847, cited in Hinton 1951,p.100.

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Donald R. Kelley

was really the creation of the jurists rather than the Vo lk, yet no less an

expression of national spirit (Beseler 1843; Puchta 1828).

6 Conservatism and radicalism in England

In England the alliance between history and law was an ancient one, inher-

ent in effect in the tradition of common law and the ‘ancient constitution’.

For Edmund Burke, on whose work Savigny drew, history was ‘a great

volume . . . unrolled for our instruction, drawing the materials of future

wisdom from past errors and inﬁrmities of mankind’ (Burke 1969,p.247;

Blakemore 1988). Burke contrasted 1688 with 1789 in the most fundamen-

tal way. ‘Our Revolution’, he argued, ‘was made to preserve our antient

indisputable law and liberties, and the antient constitution of government

which is our only security for law and liberty’ (Burke 1969,p.117). Burke

drew a similar invidious contrast between the English and the French prac-

ticeoflaw,remarkingthat‘thescienceofjurisprudence...isthecollected

reason of the ages’, not an assignment to be approached ‘with no better

apparatus than the metaphysics of an undergraduate, and the mathematics

and arithmetic of an exciseman’ (Burke 1969,pp.193, 299).

Burke was speaking of politics in the French manner, but he might well

have applied his criticisms to the utilitarian doctrines of Jeremy Bentham,

who had his own notions of codiﬁcation that set him apart from both

the philosophical and the historical schools. Bentham’s conception of law

was based on a theory of psychology that avoided, or evaded, any notion

of collective behaviour beyond calculations of individual drives and goals.

‘O rare simplicity!’ he exclaimed, ‘handmaid of beauty, wisdom, virtue –

of everything that is excellent!’

Although he rejected Jacobin notions of

human nature, Bentham was in agreement with some of their radical notions

of legal reform, especially the euphoric suggestion of Adrien Duport, in the

debates over the ‘new judicial order’ in 1791, that the new society could

do without the legal profession: ‘No more judges!’ he cried. ‘No more

courts!’

This was altogether in keeping with Bentham’s ideal of ‘Every

man his own lawyer’.

Bentham had the utmost scorn for professional lawyers and their cautious

traditionalism, ridiculing the ‘Wisdom of our Ancestors’ as the ‘Chinese

argument’ and the fear of innovation as ‘the Hobgoblin argument’ (Larrabee

1952,pp.34, 43). To Bentham, William Blackstone was a mere expositor

9 Cited in Hal

evy 1955,p.374. Cf. Lieberman 1989. 10 Archives parlementaires, xii, 570.

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Historians and lawyers

and an antiquary whose doctrine was not so much false as ‘unmeaning’.

According to Blackstone, ‘That ancient collection of unwritten maxims

and customs, which is the common law, however confounded and from

whatever foundation derived, had subsisted immemorially in this kingdom’

(Blackstone 1862,p.16). To Bentham this was nonsense; and his ﬁrst charge

was ‘to the science [of law] of the poison introduced into it by him’ (Black-

stone 1862,p.16, cf . Bentham 2008). What Bentham wanted to do was

to transform unwritten custom into written law, common law into statute

law, and vague and confused legal memory into a rational system based not

on the muddled ideals of justice but on the calculable goals ﬁxed by utility

and a general theory of human nature.

From these attitudes arose Bentham’s projects for judicial organisation,

beginning with a new plan drawn up for the beneﬁt of the French National

Assembly in December 1789 and ending with a proposal addressed in 1822

to ‘All Nations professing Liberal Opinions’ (Bentham 1789, 1822). Join-

ing together ‘principles of morals and legislation’, Bentham assumed that

individual psychology (especially the ‘associationist’ psychology of David

Hartley) was a sufﬁcient basis not only for social theory but also for public

policy. In general Bentham’s system was based on a general contempt for

history, a simplistic theory of human behaviour, and a legislative strategy

governed by a ‘calculus’ of pleasures and pains and the attendant principle

of utility; and his logical-intuitive approaches offered a ‘radical’ alternative

to both the historical and the natural-law schools of jurisprudence. To his

followers, Bentham was a supreme theorist of the science of legislation; to

others, such as William Hazlitt, he was a ‘mere child’ and an unfortunate

sign of the times (Hazlitt 1828,p.172).

Bentham’s attitudes were carried more directly into the law by his dis-

ciple John Austin, whose Lectures on Jurisprudence were subtitled, borrowing

a phrase from Gustav Hugo, ‘the philosophy of positive law’. Austin was

as remote as possible, however, from the ideas of the historical school and

its reverence for popular custom as the ultimate source of law. Nonsense,

declared Austin; custom became law not by the consent of the governed

but by command of the state. Nor was ‘interpretation’ a qualiﬁcation of this

argument, for interpretation was nothing else than ‘establishing new laws,

under guise of expounding the old’ (Austin 1873, i,p.27; Morison 1982).

Nor was this at all objectionable. ‘I cannot understand how any person

who has considered the subject can suppose that society could possibly have

gone on if judges had not legislated, or that there is any danger whatever

in allowing them that power which they have in fact exercised, to make up

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