Historians and the Law in Postrevolutionary France

Historians and the Law in Postrevolutionary France

by Donald R. Kelley

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In the Romantic fascination with Europe's past, scholars of Restoration France proposed to reconstruct their national traditions with more attention to social and cultural factors than older-fashioned political historians had shown. Donald R. Kelley examines a major feature of this new history": the convergence of the profession of law and the study of history


In the Romantic fascination with Europe's past, scholars of Restoration France proposed to reconstruct their national traditions with more attention to social and cultural factors than older-fashioned political historians had shown. Donald R. Kelley examines a major feature of this new history": the convergence of the profession of law and the study of history between 1804 and 1848.

Originally published in 1984.

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Historians and the Law in Postrevolutionary France

By Donald R. Kelley


Copyright © 1984 Princeton University Press
All rights reserved.
ISBN: 978-0-691-05428-5


Clio and Themis

Il faut éclairer l'histoire par les lois, et les lois par l'histoire.

— Montesquieu (1748)

This is an essay in a rather specialized area of intellectual history, but it touches on larger concerns. One is the familiar point, argued and illustrated a generation and more ago by Herbert Butterfield and before him Lord Acton, that the history of historiography is more than an exercise in hagiography, a trivial version of the "Whig fallacy"; it is also a path to cultural self-criticism and self-understanding. Of all scholars, historians should be least susceptible to that academic "amnesia" lamented by Sorokin that leads each generation to invent the wheel anew, to claim a novelty that on reflection turns out to be an old construct given a new dress. Yet fashion and generational divergence seem to affect historiography almost as immediately as they have philosophy or literary criticism, despite irrepressible "scientific" claims.

How many faces has Clio shown us over the centuries? How many "new histories" have there been since La Popelinière's project of 1599? The claims have been many, and consistently grandiose. Not superficial events but deep structures of society, Annalistes have argued; not drums and trumpets but the life of the people, J. R. Green proclaimed; not just religion and politics but all of civilization, Voltaire pleaded, as James Harvey Robinson has done in our century. In this book we encounter still another histoire nouvelle, whose novelty was likewise defined in invidious contrast to a prevailing style of historical writing perceived as narrow and inadequate. As with the other "new histories," however, we have paid too much attention to the rhetoric and the pretensions of the conspicuous figures and not enough to the practice and accomplishments of their less visible or less fashionable colleagues. My first purpose is to take a closer look at this seminal period of historical scholarship, roughly the two generations between 1804 and 1848, and so to gain a better general perspective on the history of history.

Related to this is a still less appreciated point about the history of humanistic scholarship in general. This is a field, or set of fields, that should not be a mere chronicle of achievements catalogued within a narrow disciplinary framework, still less an uncritical record of programmatic statements and theoretical claims (another "new history," say) about humanity in general. Yet curiously and lamentably, the history of scholarship, and especially of historical scholarship, seems to be in its conceptual infancy compared to the history of science, philosophy, political thought, and even literature. In the past generation the history of science, for example, has been transformed from a chronicle to a critical stage — with discussions of "scientific revolutions" being the counterpart, perhaps, to new histories — and in many ways placed in social and cultural context. By contrast history, which one would expect to be even more amenable to such treatment, has remained in an embarrassingly backward condition, especially because of its self-imposed isolation from philosophy and the social sciences (except in certain technical ways). Unreflective empiricism is the bane of historical understanding, and the widespread discredit that intellectual history has brought upon itself should not produce a contempt for theory or what Collingwood called "historical self-knowledge." Cut off from interdisciplinary awareness and from their own disciplinary past, historians may end up talking to themselves — and perhaps not listening.

Conspicuously, this was not the case in the first half of the nineteenth century, when "social science" (the term, anyway) was indeed novel, exciting, and enhancing, and when history itself was open and cordial to many other fields and international exchanges. While much of the story of "Romantic" historiography has been told, at least in narrative fashion, there are aspects of it, substantive as well as conceptual, that remain obscure. Its narrative form has been studied with care and affection, but little attention has been paid to its analytical and interpretive depth; its "political uses" have been followed in some detail, but its social correlates hardly at all; its novelty has been celebrated at length, but its roots in and carry-overs from the Old Regime have been largely ignored. The present essay in interdisciplinary contact is intended to expand our view of this period of historical thought and scholarship on all of these counts.

It is tempting to bring some of the insights of Thomas Kuhn to bear upon the emergence of the "new history" of the Romantic age, or at least to the conceptual framework assumed by thinking historians. At the turn of the century the "normal science" of history had indeed reached a low point. Many young writers, most notably Augustin Thierry, saw the need for revitalization, for a "reconstruction" (Kuhn's term) within a new framework. In general, in the wake of the great Revolution, natural law concepts were proving illusory and impractical — "anomalous" with respect to historical and political experience. In the first quarter of the century there was a perceptible "crisis" in historical thinking that went beyond political reaction or changing sensibilities associated with Romanticism to a profound dissatisfaction with the shallow and utilitarian view of history inherited from the Enlightenment. Making the distinction between chronicle and true history, Thierry expressed his desire to "reproduce with fidelity the ideas, sentiments, and customs of the men who gave us the name we bear." He wanted to look further into the depths of social history than anyone had done before and to see it with new eyes, and so did other young historians of his generation. The larger intellectual context of this enterprise was a general movement away from the abstract and lifeless mechanism, and equally abstract and lifeless empiricism, of old-fashioned natural law toward a biological and evolutionary model of perception and explanation. It would no doubt be an exaggeration to claim that the change of intellectual climate represented a "paradigm-shift" from naturalism to historicism. Still, the postrevolutionary period did witness the emergence of a more consciously historical cast of mind that was indeed the basis for historical reconstruction and much of the newness of the so-called new history of the second quarter of the century.

Even at second hand, however, I would not presume to demonstrate the structure of "historical revolutions" (though the term has been applied to the Romantic age by Acton and Thierry, among others). For one thing, I am persuaded that the intellectual continuities between the new and the old history were too extensive even for unqualified claims of "novelty," not to speak of "revolutionary" advance. More important, perhaps, devotees of the new history of the Restoration period quite consciously took insights and inspiration from presumably outmoded authors, not only earlier innovators like Vico and Herder but also pre-"scientific" scholars of the Renaissance like Poliziano and Cujas. In any case, what is a controversial thesis even for the "hard" sciences can hardly be more than vaguely suggestive for a humanistic field like historiography and for a "new history" whose provenance was as much literary as philosophical, inspired as directly by Walter Scott and Chateaubriand as by Herder and Vico. My concern here is mainly to clarify the pattern of historical investigation and interpretation in the postrevolutionary age and to reveal what I believe to be the roots of that "scientific" history usually attributed to a later period. In particular, the establishment of institutional history on a solid and exhaustive documentary basis was accomplished in the environment, so to speak, not of Realism but of Romanticism, as indeed professional historians of the later nineteenth century were disposed to acknowledge.

Another distinction given currency in the debates over Kuhn's thesis — though in fact it was well established in the Romantic age and is traceable back at least to Leibniz — is that between "externalist" and "internalist" history. Here I hope to throw some light on both aspects. For what early nineteenth-century historians called "external history" I offer discussions of the political, institutional, legal, and social heritage of the Revolution of 1789; of some of the relevant public issues, including the relationship between the legislative and the judiciary and the problems of private property; of the most articulate parts of the French intelligentsia, including lawyers and journalists as well as scholars; of the hopes, fears, and problems generated by the revolution of 1830; and of course of some of the principal published works associated with the new history. The "internal history" is represented by parallel discussions of conceptions of historical process and perspective, of continuity and change, of the interconnections between institutions, of the role of human values and human will, and especially of the doctrines of the German "historical schools." All of these factors go into an adequate account of a major intellectual transformation — if not "revolution" — which in the largest and most impressionistic terms is represented by the rise of "historicism," but is here defined more restrictedly as a fundamental stage in the development of modern historical scholarship.

Before the Revolution, history had played at best an auxiliary role in social and ideological controversies. The language of analysis and debate was dominated by "three competing vocabularies," according to Keith Baker, who defines them respectively as "political discourse," corresponding to governmental and legislative will; "judicial discourse," which invoked ideals of justice; and "administrative discourse," which appealed to reason. Both defenders and opponents of the monarchy argued in these terms and within the "political culture" defined by them before 1789. A quarter of a century later, all three types of discourse seemed in a sense discredited, or at least exhausted. Royal "will" could never be fully resuscitated, administrative "reason" smacked of Bonapartism, and "justice" in any universal sense seemed a mockery to all but the direct beneficiaries of the Revolution, and even then only if they could maintain their share of the spoils. So a new language had to be devised to accommodate the issues of Restoration and the new confrontations provoked after 1815. History seemed a promising access to the common ground of social experience, though of course there were as many readings and "meanings" of history as there were interest groups. How could historical discourse be given a focus for such a variety of political interests? How could historical perspective give definition to the urgent questions, much less the answers, of the postrevolutionary age?

Perhaps the most crucial point about the strategy of this book is the interdisciplinary emphasis, and this brings us back to another implication of the Kuhn thesis. In order to "see new things when looking at old objects," as Kuhn put it, it is useful and perhaps necessary to bring different presumptions, methods, and values to bear upon a question. As Galileo looked at the problem of local motion with the eyes not of a natural philosopher but of a mathematician, so practitioners of the new history had to learn to look at the process of history with the eyes not of political chroniclers but of sensitive social critics. There were several places (including literature, political economy, and philosophy) where they could find new spectacles, but each of these fields presented problems. Philosophy still inclined to system, if not to idealism, as Goethe among others complained; and meanwhile the task of historiography, especially in Germany, was to extricate itself from this influence (the starting point, indeed, of Ranke's work). Political economy, at least the dominant liberal model, had preserved and was in the process of strengthening its ties with naturalism. Literature was most relevant, and in fact furnished a vital ingredient for the new history; but most historians (Michelet being a partial exception) were afraid that the siren song of poetry, or of imaginative fiction, would lead them astray.

Where then could they look? For a variety of reasons, the field of law seemed most promising because of its materials and methods. Jurisprudence still claimed to be a "science" — but of a human rather than natural variety — and was joined to a comprehensive view of anthropology that might accommodate a comparably encyclopedic vision of history. The careers of history and jurisprudence had of course converged more than once in earlier centuries (most notably in the context of the "new history" of the Renaissance), but the nineteenth century saw an intersection of unprecedented intensity and significance for both disciplines. It was, in a sense, the fulfillment of Montesquieu's hope that "history should illuminate laws, and laws history." So it was that in the Romantic period, after what some regarded as a generation of lawlessness, the muse of history joined forces with Themis, goddess of human law.

I would point out four aspects of the law that made it fruitfully relevant for history: First, the law required and inspired respect for documentary evidence that led, especially in the nineteenth century, to that assault on archival sources so essential to the new science of history. Second, jurisprudence, in some ways even more than politics, was bound up with the most crucial public issues of the age, starting with the institution of property and ending with the Social Question, and so could join historical scholarship to vital contemporary issues, directly as well as indirectly. Moreover, the law was by its very nature concerned with the substance of history as envisioned by Thierry and others, namely, social institutions and the texture, structure, and processes of the private sector — the "civil society" that Hegel set apart from (and that Marx would set above) the state. Finally, the questions posed by jurisprudence in the post-Napoleonic age were absolutely central to the orientation of the new historiography, especially in the case of the debate over codification and the rival notion of law as an expression of popular culture (a sort of surrogate for the contrast between political and social history). It is an ironic, though perhaps it should be a commonplace, comment on the "novelty" of early nineteenth-century historical scholarship that it was in part a transformed extension of the old legal tradition.

The vitality of this scholarship is to be explained in terms of its international environment as well as its interdisciplinary roots. The Eclectic philosophy of Victor Cousin, the most influential professor of Restoration France, has not enjoyed good press in the past century and a half, but it was indicative of the formative influx of the foreign ideas and discoveries in the early nineteenth century, especially German, Italian, and English. The influence of British Constitutionalism, the massive invasion of German historicism in various forms, the discovery of Vico — these and other impulses contributed to the upsurge in historical studies; and repercussions could be heard and seen in many fields of culture, especially painting and music. Seldom before and never since (not even in the heyday of late nineteenth-century historical "science," and certainly not in the "new histories" of twentieth-century confection) has historical scholarship had such an international base and intercultural character. Perhaps the most striking illustration of this cosmopolitanism (specifically in connection with the study of law) is in the work of that most nationalistic of all historians, Jules Michelet. Although Michelet has never lost his position as founding father of modern French historical studies, his example in this regard has not often been followed.

For intellectual history broadly conceived, however, it will not do to accept the conceptual limitations inherited from conventional histories of literature or philosophy, which is to say to surrender to the confines of a retrospectively canonized text, even Michelet's or Thierry's. Recent narrativist (or "narratological") studies of historiography have yielded fascinating insights and connections; but certain rhetorical analyses, such as those of Hayden White and Lionel Gossman, nevertheless do aspire to reach beyond the textual world to a social, or shared, "ideology." Without denying the value of this (newest of new) history, I would suggest that it not only accepts but tries to make a virtue of one of the weaknesses of old-fashioned intellectual history, which is to leap directly from a publicly (and often artistically) formulated interpretation to some collective consciousness or intellectual model conceived of in excessively (and perhaps inaccessibly) "internalist" terms. A more comprehensive appreciation of historical scholarship, beyond but including historical narrative, requires attention also to other considerations. Among these I would emphasize the importance of trying to gain familiarity with the wider world of historical discourse beyond privileged literary texts and formally defined disciplines. The study of history is an enterprise carried on in a large arena of discourse, with intrusions from other conversations and fields of interest, with scholarly interchange and criticism, and, last but not least, with input from source materials. If history is not a hard science, we should not forget that at some points it is constrained by an uncaring reality, or at least evidence thereof.


Excerpted from Historians and the Law in Postrevolutionary France by Donald R. Kelley. Copyright © 1984 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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