Law, Theories of
LAW, THEORIES OFrevolution and legal reform
the romantic era reaction
conceptualism and the "free school"
Nineteenth-century law belonged to the same intellectual culture as nineteenth-century art and nineteenth-century politics, and legal theory underwent changes typical of the period from 1789 to 1914. The French Revolution was marked by efforts at rationalization and reform, inspired by Enlightenment critiques of the ancien régime. By the end of the Napoleonic period a Romantic reaction had set in, which insisted on the virtues of tradition and the perils of overconfident reason. The middle decades of the nineteenth century were years of a sober materialism, and of the emergence of new social scientific traditions on the Continent. They were also years of increasingly assertive left-wing critiques of "bourgeois" law. Finally, the 1890s and after saw the efflorescence of self-consciously "modernist" theories, which were blossoming all over the Continent in the years before the outbreak of World War I. Britain, with its distinctive common law tradition, stood aloof from Continental developments in some measure, but in various ways British legal thinkers were carried along by the same cultural currents.
Reformers of the French Revolution mounted a comprehensive attack on the evils of the ancien régime as they saw them. Those evils fell into five broad categories: problems of authority, problems of legality, problems of systematicity, problems of equality, and problems of individualism. The approach of the revolutionaries to these five problems set most of the agenda for nineteenth-century legal thought.
The problems of authority and the problems of legality were closely linked. Both had to do largely with the role of judges in the legal system. The judges of the pre-Revolutionary French parlements exercised great authority: they had the power to resist royal legislation, and they exercised considerable power of local government. These powers seemed illegitimate to Revolutionary reformers committed to the supremacy of a single sovereign. Pre-Revolutionary judges also often administered "arbitrary" punishments, that is, punishments whose measure was determined by the judge rather than specified by statute. In the eyes of reformers, such judge-made punishments violated the basic norm of legality, according to which all crimes and punishments had to be specified in advance by law, and applied equally to all, without discrimination. Nor were judges the only actors who violated the norm of legality. The king did so too, through issuing lettres de cachet, which ordered the imprisonment of political dissidents and wayward members of French families without notice or trial.
In response to these perceived problems, the French revolutionaries insisted on strong norms of sovereignty and legality. There was to be a single locus of sovereign power: the Nation. There was also to be a strong insistence on legality. Judges were to act simply as "the mouth of the law," mechanically applying the provisions of duly-enacted statutes. Every person who committed a given offense was to be punished in exactly the same way. The law itself was to be framed in clear and unambiguous language, easily grasped by laypeople and therefore immune to manipulation by the legal profession. The Revolutionary reformers also insisted on systematicity. Law was to be embodied in Codes, founded on a few fundamental principles and framed in easily comprehensible language. All cases were to be resolved by reference to rules directly deduced from such fundamental principles as the duty to repair damage caused by unjustifiable acts, or the principle of property absolutism—the principle that every thing must have a single identifiable owner with plenary rights. The Code Napoléon (1804), later renamed the Code Civil, was the most important product of this reform effort.
Revolutionary reformers further insisted on formal equality and individualism. The law of the ancien régime had been marked by an elaborate law of ascriptive status, which accorded differing rights and responsibilities to persons of different social orders. It also accorded rights to many collectivities, such as guilds. These doctrines were sharply attacked by Revolutionary reformers, who framed the law in the language of formal equality, making no distinctions between male persons who had reached the age of majority. The reformers also attacked the rights of collectivities, notably in the Le Chapelier law of 1791, which banned guilds and the similar institutions, acknowledging only individuals as cognizable actors in the marketplace.
French Codes embodying these principles were introduced in much of western Europe during the Napoleonic period. Many of the same principles were also defended with great vigor by the Englishman Jeremy Bentham. With the collapse of the Napoleonic empire, though, a Romantic reaction began, led in particular by the German scholar Friedrich Carl von Savigny.
Savigny embraced many of the same ideals embraced by the French Revolution. He was strongly oriented toward individualism and formal equality. He was a great champion of systematicity in the law, believing that law could indeed be based on a few fundamental principles. He certainly believed in legality and was no advocate of the power of judges.
Nevertheless, Savigny rejected the principle that change could be made through revolutions, and opposed anything that smacked of the direct interference in the law by a putative sovereign authority. New Codes were inevitable, but they were to be made through the slow collective efforts of legal scholars with a rich consciousness of the values of the past. These legal scholars were the representatives of what German Romantics called the Volksgeist, the slowly evolving national spirit. Savigny's argument made a Europe-wide sensation, and presumably did much to halt the progress of codification. Only in the later nineteenth century did important codification programs resume, and when they did they were dominated by legal scholars, who no longer pursued the goal of drafting Codes in language easily accessible to laypeople. The most important product of this second wave of scholarly codification was the German Civil Code (1900).
By the 1830s and 1840s, other forms of opposition to the legal ideas of the French Revolution began to appear. These involved in part opposition to the fundamental principles the Revolution had established as the basis of the Code Civil. Property absolutism was attacked by Pierre-Joseph Proudhon and Karl Marx. Both men argued that the dogma of unimpaired property rights favored the interests of the rich over those of the poor. Marx also attacked the principle of formal equality, arguing that the formal equality of the law masked differences in power between workers and capitalists, and permitted exploitative labor contracts. These attacks did little at first to shake the dominance of the ideas of the Revolution. On the contrary, into the 1860s most leading figures continued to believe that the doctrines of the Code Civil represented an inevitable step in the march of human evolution—an evolution most famously characterized by Sir Henry Maine in 1851 as a "movement from status to contract."
The second half of the nineteenth century, however, witnessed more widespread and influential attacks on the legacy of the Revolution. Some of these attacks carried the initiative of Marx forward, raising doubts about both formal equality and individualism in the law. In Germany, the drafters of the German Civil Code enshrined principles of formal equality in their published draft of the 1880s. That draft was assailed by both the German jurist Otto von Gierke and the Austrian economist Anton Menger. Gierke in particular argued influentially that contracts between workers and employers could not be analyzed as contracts between abstract equals: the work relationship was more complex and socially charged than ordinary market transactions.
Labor law was not the only field in which formal equality was attacked. The same was true of criminal law, with a number of leading thinkers arguing that the law should not treat all persons as formal equals. One notable exponent of this view was the Italian Cesare Lombroso, who insisted that criminals were biologically defective and thus not to be equated with other human beings. Other important criminal law scholars, including the Frenchman Raymond Saleilles and the German Franz von Liszt, favored "individualization," the tailoring of criminal punishment to the particular circumstances of the offender.
The legal individualism of the French Revolution also came under assault. The jurists of the Revolution, determined to break the power of the guilds, had insisted that the law could not recognize collective actors. This was incompatible with later nineteenth-century efforts to unionize laborers. It was also incompatible with the formation of industrial cartels, and difficult to reconcile with the developing law of the business corporation. These concerns led a number of thinkers to insist that the law should recognize collective and corporate persons. Here again Gierke was a leading figure, deploying arguments about medieval German law to demonstrate that collectivities were cognizable in law. Of comparable importance were the so-called Kathedersozialisten, the German "Socialists with Tenure" who defended various forms of cartelization as healthy and appropriate in a modern economy. The Kathedersozialisten also argued on behalf of various early welfare state initiatives.
During the second half of the nineteenth century, there were also dramatic new movements in technical jurisprudence. Later nineteenth-century continental jurists generally accepted the principle of systematicity. The law, in their minds, should represent a systematic effort to give effect to certain basic philosophical commitments necessary for the maintenance of a just system. Bernhard Windscheid, for example, the principal architect of the German Civil Code, argued that law had a basic commitment to the principle that individuals should create their own rights and duties through the exercise of their free will. Individuals, jurists like Windscheid believed, must be held responsible for their freely made decisions. This was the basic concept, from which the particularities of the law should flow deductively: The decision in every particular case should flow logically from the basic commitment to individual responsibility.
This deductive approach, sometimes referred to as "conceptualism," was derided in a series of famous parodies by the German Rudolf von Jhering, beginning in the late 1850s. Jhering argued that law was a mere "means to an end," a flexible tool of social policy, to be manipulated in the service of social interests. Toward the end of the nineteenth century, Jhering's writings inspired a Europe-wide modernist movement in the law. Among the principle figures in this movement were Franz von Liszt, who argued for a criminal law based, not on principles of abstract justice, but on the pursuit of social policy goals; and Raymond Saleilles.
At the turn of the century, Jhering's parodistic attack on conceptualism was elaborated into a sustained jurisprudential theory by the Frenchman François Gény. Gény attacked the claim that it was logically possible to deduce a complete array of legal rules from any set of basic principles. There would always be gaps—cases that could not be resolved through an appeal to any basic principle. The law could never be a perfect deductive system. When the law presented a gap, judges had no choice but to make a decision through "free scientific inquiry." Such free scientific inquiry could include social scientific research as well as intuitive and theologically informed ideas of justice.
By the early years of the twentieth century, German and French scholars alike were joining in a modernist revolt against the ideal of deductive systematicity in the law. Alongside Gény, the leading figures in this movement included Hermann Kantorowicz, a medievalist and legal philosopher; Eugen Ehrlich, the founder of legal sociology; and Ernst Fuchs, the most radical of the group. Together, these figures are generally referred to as the "Free School" of law. These self-consciously modern scholars insisted on the ultimate indeterminacy of the law, at least in some cases. They also generally idealized the law-making authority of the judge. This idealization of the judge reflected the admiration many of these scholars felt for the English common law; and it embodied their strong rejection of the jurisprudential program of the French Revolution. The ideas of the Free School were forcefully rejected by Max Weber and others, and they had fallen into eclipse by 1914. They had considerable influence in the United States, though, and experienced renewed vigor in Germany during the Weimar and Nazi periods.
All of these nineteenth-century Continental developments had echoes in Britain. For the most part, though, English legal thought developed independently and had less influence. There were major reform movements in Britain, but they were largely concerned with matters like the technical rules of common pleading, of little interest to the outside world. There were major developments in the conceptualization and characterization of the common law as well. Nevertheless, the intellectual world of English law was less lively than that of the Continent. This probably reflects the fact that the teaching of English law remained in the hands of practitioners, with university scholars mostly standing on the sidelines until the late nineteenth century.
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Proudhon, Pierre-Joseph. What Is Property? Edited by Donald R. Kelley and Bonnie Smith. Cambridge, U.K., and New York, 1994.
Watson, Alan. The Making of the Civil Law. Cambridge, Mass., 1981.
Whitman, James Q. The Legacy of Roman Law in the German Romantic Era: Historical Vision and Legal Change. Princeton, N.J., 1990.
Wieacker, Franz. History of Private Law in Europe with Particular Reference to Germany. Translated by Tony Weir. Oxford, U.K., and New York, 1995.