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

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Donald R. Kelley

for the negligence or the incapacity of the avowed legislator’ (Austin 1873,

i,p.191).

Like Bodin, Austin equated law, or rather the law-making power, with

sovereign will. Law was entirely dependent on what Austin called ‘the

superiority which is styled sovereignty’ (Austin 1873, i,p.193) and, more

practically, on a ‘habit of obedience’. For Austin ‘[T]he power of a sovereign

monarch properly so called, or the power of a sovereign number in its col-

legiate and sovereign capacity, is incapable of legal limitation’ (Austin 1873,

i,p.254). ‘Laws proper, or properly so called, are commands’, he insisted,

while laws improper were those based on custom or ‘mere opinion’. There

was no such thing as being ‘half-’ or ‘imperfectly sovereign’ (Austin 1873,

i,p.238). Austin’s mission was to deﬁne the ‘province of jurisprudence’;

and his conviction was that ‘The matter of jurisprudence is positive law:

law, simply and strictly so called: or law set by political superiors to political

inferiors’ (Austin 1873, i,p.238). History played no part in this process

of exerting authority, which for Austin was a matter of clear thinking and

proper morality.

For Austin everything hinged on pr ivate reasoning and individual psy-

chology, and if human relations were motivationally as clear as logic, there

would be no problem with laws. Naturally, he followed the utilitarian axiom

that ‘Good or evil is nothing but pleasure or pain, or that which occasions

or procures pleasure or pain for us’ (Austin 1873, i,p.166). This is ironic

in view of Austin’s own extraordinary mental irregularity that kept him

in psychic pain much of his life. Nevertheless, Austin trusted hardly any-

one’s judgement except his own and that of his Benthamite colleagues. He

cited the giants of the tradition of civil law from Gaius to Montesquieu

but mainly to correct their errors, as he did with the classics of modern

natural law, Grotius and Barbeyrac (though not Hobbes), especially with

respect to the idea of sovereignty (Austin 1873, i,pp.178–9, 213–14). He

borrowed from Hugo’s conception of positive law, but in general he found

German scholarship full of ‘vague and misty abstraction’ (Austin 1873, i,

p. 343). ‘It really is important (though I feel the audacity of the paradox)

that men should think distinctly, and speak with a meaning’ (Austin 1873,

i,pp.55–6).

Among the critics of utilitarianism the most conspicuous was Thomas

Macaulay, who denounced all of ‘philosophical radicalism’ and its ‘barren

theories’. Utilitarianism was based on ‘mere delusion’, wrote Macaulay

(Macaulay n.d. [a], i,pp.415, 447). ‘Our objection to the essay of Mr. Mill

is fundamental’, he continued. ‘We believe that it is utterly impossible to

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deduce the science of government from the principles of human nature.’

Mill invoked history when it suited him but ignored it when it ran counter

to his doctrine (the example being that in a democracy people are as

likely to exploit the rich, to judge from history, as are absolute rulers to

exploit the people). ‘Let us not throw history aside when we are proving a

theory,’ Macaulay protested, ‘and take it up again when we have to refute

an objection founded on the principles of that theory.’ Such misguided

rationalism was a violation both of experience and of the ‘Noble Science

of Politics’ (Collini et al. 1983).

Benthamite radicalism and Austinian legal theory were as far as can

be imagined from the reverence and enthusiasm for history displayed by

many English scholars of the romantic age. ‘The history of law is the most

satisfactory clue to the political history of England’, wrote Francis Palgrave,

a lawyer as well as a medieval historian (quoted in Hallam 1827, i,p.2).

‘The character of the people mainly depends on their law.’ Henry Hallam

began his Constitutional History of England (1827) by declaring that ‘The

government of England, in all times recorded by history, has been one of

those mixed or limited monarchies’ characteristic of Celtic and Germanic

tradition – and utterly irreconcilable with the Austinian conception of law

(Hallam 1827, i; Kelley 2003). In agreement with conventional common law

views going back to Edward Coke and John Fortescue, Hallam recognised

a number of ‘essential checks upon royal authority’ (Hallam 1827, i,p.3)

including parliamentary consent for taxes and new laws, due process of law,

and guarantees of individual liber ties, all of which was nonsense as far as

Austin was concerned. For Hallam the English constitution, though it had a

common origin with those of other European nations, had an exceptionally

fortunate career, producing a unique sort of security and liberty which had

been ‘the slow fruit of ages’ and reached its present height through the

‘democratical inﬂuence’ which Hallam, very much like Guizot, attributed to

‘the commercial and industrious classes in contradistinction to the territorial

aristocracy’ (Hallam 1827, i,p.2).

Macaulay was altogether in agreement with this line of argument. In his

review he found Hallam’s history not only ‘judicial’ (if somewhat prosaic

and unimag inative) but also impartial (Macaulay n.d. [a], i,p.312;Clive

1973). ‘The Constitution of England was only one of a large family’, he

wrote in his own History of England, which he began publishing over twenty

years later. ‘In all the monarchies of Europe in the middle ages, there

existed restraints on the royal authority, fundamental laws, and representative

assemblies’ (Macaulay n.d. [a], i,pp.340, 344; Macaulay n.d. [b], i,pp.340,

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Donald R. Kelley

344). Such were the institutional conditions of that ‘progress of civilisation’

which was so obvious to Macaulay in his own day. England was especially

fortunate in escaping the fate of other continental states, which had fallen

into absolutism. For Macaulay the lesson taught by history was not the

power of reason and calculation but rather the vital force of the unwritten

English ‘constitution’, the continuing spirit of common law, the growth

of ancient and modern liberty and the pre-eminence of the revolutionary

model of 1688.

7 Conclusion

The convergence between law and history signalled by Montesquieu and

reinforced by the historians of the G

ottingen school had a signiﬁcant effect

on political thought in the early nineteenth century. Law and histor y offered

ways not only of explaining but also of legitimisng political institutions and

ideas. Law was seen by the historical school both as a reﬂection of society

and as the foundation of the state – a historically constructed bridge between

the social and the political. This view gave law a context, situated it between

the radical and authoritarian extremes to which doctrinaire rationalism was

prone, and held out the vision of a nation in which all social classes were

united under a legitimate sovereign authority – a Rechtsstaat in which law

not only expressed the will of the people but also constrained that of their

rulers.

With its ‘ancient constitution’, England had long reﬂected this ideal; and

the states emerging from the revolutionary period with written constitutions

were ostensibly devoted to such principles. In Restoration France the Civil

Code was preﬁxed and as it were crowned by the Charter of 1815 to form

a dual embodiment of national will. For Germany history and law (and

politics) had eventually to call on military action to achieve national unity

and legitimacy and to take a systematic rather than historical view to achieve

a national code at the end of the century, as indeed Savigny did in his last,

unﬁnished work (Savigny 1840, i).

Under these conditions, or behind this pretence, lawyers continued to

enjoy their pre-eminent position as interpreters of legal and constitutional

tradition and umpires of economic, social and political conﬂict (Arnaud

1973). As members of an intellectual community which they themselves

traced back to antiquity, jurists could draw on professional experience as well

as legal philosophy to judge the nature and destiny of political structures. ‘To

study modern French political theory is to study the lawyers’, wrote Ernest

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Barker. ‘To study German political theory is equally to study the lawyers.’

This is the case with France and Germany of both the revolutionary and

the post-revolutionary periods. Barker did not think the same to be true

of England; but such a case for this connection has been made by Stefan

Collini; and indeed it is a plausible argument for the nineteenth century

when one recalls the work not only of Austin and legal scholars like Maitland

and Dicey but also Henry Sumner Maine and J. F. McLennan, who drew

on the law for their ethnological investigations and interpretations of social

and political structures.

In the early nineteenth century, history and law were most easily adapt-

able, perhaps, to reactionaries and defenders of the status quo; but historians

and lawyers were deeply involved in political action and thought across the

whole ideological spectrum. In France the liberal revolution of July 1830

has been described as a ‘revolution of the advocates’; but as in the ﬁrst

French Revolution lawyers were also capable of a radical turn; and indeed

this was a common pattern in the years before the revolutions of 1848.

It was an ex-teacher of law who led the uprisings in Brunswick in 1830

and Frankfurt in 1833, and both Marx and Mazzini turned from theory

to ‘praxis’ by dropping out of a legal career in favour of journalism and

political activism. Historians as well as jurists ﬁgured prominently in the

Frankfurt Parliament of 1847 before the wave of revolutions the following

year which disillusioned intellectuals of almost all ideological persuasions.

The centrality of history to nineteenth-century thought was recognised

by intellectuals of many ideological persuasions. As Auguste Comte put

it, ‘The present century is characterised above all by the irrevocable pre-

ponderance of history, in philosophy, in politics, and even in poetry.’

The idea of development – ‘subjecting all things to that inﬂuence’, Acton

remarked, ‘for which the depressing name of historicism and historical-

mindedness have been devised’ (Acton 1985,p.543)–waswellimplanted

before being reinforced by romantic, nationalist and counter-revolutionary

sentiments. From the mid-eighteenth century the ‘four-stage theory’ of

history converged with ideas of material progress to form a useful and satis-

fying historical perspective for the commercial and industrial classes (Meek

1976). The same sort of view could of course be turned to revolutionary

uses; and indeed Marx conscripted the bourgeois philosophy of history,

expressed by Guizot among others, to the cause of the working class and its

11 Preface to his translation of Gierke 1934. Cf. Collini 1993,p.251.

12 Politique positive, iii,p.1, cited in Acton 1985,p.541.

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own counter-consciousness. History offered a wide choice of perspectives

and genealogies for nationalities, classes, parties and groups of all sorts; and

in the nineteenth century it became the chief mode of self-identiﬁcation

and understanding.

In the latter part of the century the study of history derived further

strength from its claims to professional and scientiﬁc status. Geschichtswis-

senschaft was based not only on critical and documentary methods but ideas

derived from the Darwinian theory of evolution (Blanke 1991). At the

same time this ‘science of history,’ associated above all with the writings

and teaching of Leopold von Ranke, acquired further power and prestige

from its increasing associations with government service and the political

elite. The aphorism that history was ‘past politics’ is English in origin, but

it applied equally to the historical profession in other European states. In

the later nineteenth century Darwinism, especially in its ‘Social’ form, also

reinforced the central position of history in the larger view of human nature

and, for better or for worse, its historical transformations.

The view from the left was a bit different. In this period of the hated

‘Bourgeois Monarchy’ and the German Vo r m

arz – of class division and revo-

lutionary tremors – legalism and historical gradualism became less relevant

to such would-be movers and shakers and to the ideals of social and national

revolution which they envisioned. To this extent political thought became

estranged from conventional views of law and history and entered into an

active mode. Karl Marx, for example, rejected law and jurisprudence as

expressions of feudal, and then bourgeois, interests and ideology; and after

1848 he even came to doubt ‘history’ itself, since it had not proceeded

according to his plan (LaCapra 1983,pp.268–90).

The forces of historical change had disturbing effects on law and legal

traditions in various ways. In the generation before the revolutions of 1848

many young activists had looked to the law as a basis for a continuing – that

is, a ‘social’ – revolution to extend the political phase achieved in the 1790s.

This was especially true of the new generation – the third, according to

Guizot’s counting – which spawned so many ‘youth’ movements throughout

Europe between 1815 and 1848 (Guizot 1863,intro.).

Members of the

historical school such as Pelleg rino Rossi and of the philosophical school

such as both the young Marx and the young Proudhon began with their

juridical faith intact, hoping to achieve the ideals of social justice embodied

in the old legal tradition (Kelley and Smith 1984; Proudhon 1994,intro.).

13 ‘Trois g

erations’ being those of 1789, 1815 and 1848.

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Historians and lawyers

All of these (and many of their peers) were disillusioned, however, and

turned away from what they regarded as the hypocritical moralism of

jurisprudence and the status quo which it was in effect designed to pre-

serve. In the late 1830s Marx railed against what he called ‘the metaphysics

of law’ and the legalist ‘opposition between what is and what ought to

be’; and (turning viciously against the historical school as represented by

Gustav Hugo), he rejected the law and the legal tradition as expressions of

‘ideology’ in his pejorative use of the ter m (Kelley 1978). This view was

shared by many of his generation, including Proudhon, who had also taken

the law as his point of departure and who likewise turned to more scientiﬁc

and effective ways of understanding and confronting the looming ‘Social

Question’.

Abandoning the empty ideals of jurisprudence both of these young

activists turned to what Marx called the ‘new gods’ of political economy.

‘How could these men’, Proudhon asked about the lawyers, ‘who never

had the faintest notion of statistics, calculation of value, or political econ-

omy, furnish us with principles of legislation?’ (Proudhon 1993). Political

economy was ‘social science par excellence’, declared Pellegrino Rossi; and

Proudhon, who had attended Rossi’s lectures in the Coll

ege de France,

could not agree more (Rossi 1840,p.34). For Proudhon political economy

represented the ‘code’ of bourgeois property, but it had the potential to

be much more. In the right hands it could change the face of the world.

‘The revolution today’, declared Proudhon in 1847,‘is political economy’

(Proudhon 1960, ii,p.66).

In this way law, formerly considered a rigorous science treating ‘causes’

and at the same time a form of wisdom because it considered ‘things divine

and human’, suffered a fall from intellectual grace and lost out in its rivalry

with newer disciplines, especially political economy, which had the best

claims to follow the natural-science model. As Cambac

es had observed at

the end of the old century:

‘Political economy, legislation, and moral philosophy all have the same goal, which is

the perfection of social relations; but their means are not the same: the ﬁrst links men

through their interests, the second through authority, and the third through sentiment.

Political economy considers men in terms of their physical f aculties, legislation in terms

of their rights, and moral philosophy in terms of their passions. (Cambac

es 1789)

In its explanatory efforts economics, drawing on the assumptions and ideas

of natural law, dispensed with sentiments and human values and turned

to the statistically measurable and the quantitatively calculable and on this

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Donald R. Kelley

basis could claim a method in accord with the value-free natural-science

model of conceptualisation, which came to prevail in the later nineteenth

century. It was also in accord with the values of both the right and the

left: of both the selﬁsh and competitive spirit of the bourgeois conqu

erants

who regarded themselves as heirs of the Revolution and of the socialists

and radicals who resisted such ‘egoism’ and looked to economic science –

political or social economy – as a way of transforming society according to

newer revolutionary goals.

Political science, of course, has had to come to terms with these new

forces, ideals and methods, in which the gradualism, the conservatism and

the moralism retained in the intellectual baggage of historians and jurists

have become increasingly problematic, if not irrelevant. Instead of being

central and sovereign, history and the law have in effect become observers

and critics of the projects of political thought.

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Social science from the French

Revolution to positivism

cheryl b. welch

Today we deliberately refer to social sciences in the plural. For much of the

nineteenth century, however, writers more characteristically spoke of social

science or la science sociale in the singular. Although there was perhaps as little

consensus then as now on either the meaning of ‘social’ or the methods of its

‘science(s)’, there was an often unspoken agreement about the relationship

of social science to politics: la science sociale would provide the master plan

for a new political order. My purpose in this essay is not to canvas all the

uses of social science as political blueprint, but rather to reconsider some

key debates about the relationship of social science to political argument

in France and England from the French Revolution, when the term science

sociale became current, t o the 1880s, when ‘positivism’ had come to prevail

on both sides of the Channel. To this end, I will contrast the reach and

resonance of the idea of ‘social science’ in two political milieux.

On the surface, writers in England and France shared a common dis-

course about social science during much of the nineteenth century. They

often drew on the same sources and read each other’s texts. Yet the implicit

political assumptions of these writers, as well as the moral and politi-

cal sensibilities of their readers, were quite different. What follows is a

rough charting of these assumptions and sensibilities. Any such attempt

to navigate in the treacherous channels of intercultural comparison, espe-

cially on so complex a topic, is bound to be both partial and particular.

I deliberately limit myself here to comparing debates surrounding two

claimants for the title of exemplary social science: political economy and

Comtean positivism.

I hope thereby to explore several historical puzzles:

1 There is a large debate and literature over the term ‘positivism’. Even setting aside the differences

between twentieth-century ‘logical positivism’ and nineteenth-century ‘sociological positivism’, there

is the problem of how best to circumscribe the latter. D. C. Charlton, for example, had in mind an

ideal type of scientiﬁc analysis, and applied the term to many individuals whose ideas differed from

Comte’s and who were not inﬂuenced by him. Usually these writers were judged to be deﬁcient in

their positivism, and Comte himself appears as one of the worst offenders against ‘pure’ positivism.

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Cheryl B. Welch

Why did political economy, so integral to nineteenth-century intellectual

life in England, fail to emerge as the model social science in France? And

why did positivism, a quintessentially French transformation of eighteenth-

century empiricism, nevertheless have a greater cultural and moral impact in

England than in France? Finally, what can the differing receptions of Comte

tell us more generally about what prompted the turn to a discourse centred

on social science? My aim in revisiting these particular puzzles is to sharpen

a sense of the ways in which inherited political vocabularies and cultures

shaped the interaction of social scientiﬁc and political discourse during these

years.

1 Social science during the revolutionary era

During the period of the French Revolution the distinction between ‘social’

and ‘political’ came to be articulated in France as an antagonism between

the natural needs of society and the unnatural actions of governments. The

term science sociale, i.e. the body of knowledge that would allow one to

pronounce deﬁnitively on the ‘natural needs of society’, was heard in the

salons and clubs of the moderate republicans from the early 1790s (Baker

1964). It usually signalled an attention to the natural facts affecting social

life in opposition to a reliance on religious or metaphysical dogmas; a belief

in self-evident principles of natural r ight (usually moral axioms based on

sensationalist psychology); and an endorsement of the general will, the

sovereignty of the people, and the French Republic.

Condorcet’s conception of social science well illustrates the coexistence

of these different elements. He sometimes used the term ‘social science’ for

a collection of factual observations about social life, sometimes for the results

of applying probability theory to social reasoning, but most characteristi-

cally for the set of truths revealed by introspective psychology (Baker 1975,

p. 198). For Condorcet, as for other members of the so-called philosophical

party, these psychological data logically implied conceptions of equal rights

W. M. Simon, on the other hand, conﬁnes the term strictly to the writings of Comte and his

certiﬁable epigone. The difﬁculty is that contemporaries rarely used the term in either Charlton’s or

Simon’s senses, but often much more loosely to mean something like ‘a scientiﬁc thinker who denied

the authority of theology or spiritual intuition, but who tried t o ﬁnd in service to humanity a form of

quasi-religious belief free of the supernatural’. See, for example, Cashdollar 1989,p.18. In this usage

Comte was readily identiﬁed as perhaps the pre-eminent positivist of the age, though one did not

have to swallow his theory whole. My use of ‘positivism’ generally follows this contemporary usage

when unmodiﬁed; when I wished to signal a closer discipleship to Comte, I have used the phrase

‘Comtean positivism’.

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Social science from the Revolution to positivism

and universal justice. Hence, initially the attempt to ground revolutionary

politics scientiﬁcally was quite easily swept up in an apotheosis of the Decla-

ration of the Rights of Man and Citizen. Although never explicitly stated, the

logic of the connection between the positive fact of psychological equal-

ity and equality in civil and political rights seemed obvious to Condorcet

from the very deﬁnition of man as a sensate being endowed with reason

(Condorcet 1847, ix,p.14). Philosophical liberals saw a declaration of

such rights as both a useful distillation of the truths of social science and a

powerful political expedient.

As the Revolution progressed, however, the rhetoric of rights accelerated

and broke through the tacit economic and political assumptions of moder-

ate republicans. Frightened at the radicalising trajectory of the Revolution,

and uneasy about their own earlier embrace of revolutionary slogans, many

moderates abandoned talk of the rights of man (Welch 1984,pp.23–34).

During the Thermidorian reaction and the rule of the Directory, Con-

dorcet’s younger associates from the early phase of the Revolution, who

emerged as a distinct group of thinkers known as the Id

eologues, began to

drive a wedge between ‘social science’ and ‘revolutionary right’. Like the

English utilitarians, the Id

eologues self-consciously wedded la science sociale

more closely to social utility, in the process divorcing the idea of social

science from the notion of natural right with which it had been conﬂated

in the works of such earlier theorists as Siey

es, Condorcet, Price and Priest-

ley. Deliberately following the lead of the physical scientists in the new

French Institut National, the Id

eologues also resolved to be more ‘positive’,

i.e. more exact and careful in their methodology. During the Directory

years, they argued that the French Republic should use the dictates of social

science – now seen as an alternative to the ideology of the rights of man

rather than its complement – to establish the ‘French era’ in history, a union

of peaceful democratic republics ﬁlled with individuals pur suing their own

and society’s interests in effortless symbiosis. In this way they launched the

search for a new ‘meta’ social science that would legitimise an ever elu-

sive political nouvel r

egime to replace the discredited ancien r

egime.

It has

often been argued that the force of this intellectual impulse was not spent

in France until a generation of scientiﬁc republicans helped to forge the

political and educational institutions of the Third Republic.

2 James Livesey’ s (2001) work on the Directory continues a revisionist view of the period, a view t hat

suggests the regime was at least potentially a viable ‘republic’ and that the political ideology of the

period was more than self-serving opportunism or cynical exploitation of revolutionary discourse.

173