Historians and the Law in Postrevolutionary France

Historians and the Law in Postrevolutionary France

DONALD R. KELLEY
Copyright Date: 1984
Pages: 196
https://www.jstor.org/stable/j.ctt7ztkr4
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  • Book Info
    Historians and the Law in Postrevolutionary France
    Book Description:

    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.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-5564-3
    Subjects: Law, History

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. LIST OF ILLUSTRATIONS
    (pp. vii-viii)
  4. ACKNOWLEDGMENTS
    (pp. ix-2)
  5. CHAPTER ONE Clio and Themis
    (pp. 3-12)

    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.¹ 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...

  6. CHAPTER TWO The “New History” of the Restoration
    (pp. 13-27)

    “History, that task and aptitude of our age, falls heir, in effect, to all other branches of human culture.”¹ So wrote Sainte-Beuve, devotee as well as critic of history, and during the second quarter of the nineteenth century this discipline seemed indeed to be taking over the whole range of human and even natural sciences, not to speak of literature and the arts. As Auguste Comte put it, “The present century is characterized above all by the irrevocable preponderance of history, in philosophy, in politics, and even in poetry.”² As philosophy had replaced theology, so now history replaced philosophy as...

  7. CHAPTER THREE In the Wake of Revolution
    (pp. 28-40)

    The “new history” was obsessed with European antiquity but could not escape the pressure of the most recent past. The French Revolution had been all things to all men—especially French men. An end and a beginning, a sharp “break with the past” (in Thierry’s words), a culminating phase of history (according to Tocqueville), another face of Romanticism (Victor Hugo decided), the birth of the nation (urged Michelet), the start of a great liberation (liberals were confident), and the source of great injustice (lamented royalists). In any case, the Revolution produced an enormous mythology. In the following generations every public...

  8. CHAPTER FOUR History and the Civil Code
    (pp. 41-55)

    Clio was only a muse, but Themis, the title of more than one nineteenth-century work devoted to legal reform, was wife of Jupiter and goddess of social order. She was “the force that brings and binds men together” and the personification of the science of law.¹ Before 1848, jurisprudence was still the major vehicle of thought and action about society, though it was in the process of being superseded by its upstart offshoots, political (or “social”) economy, sociology, and then anthropology.² In the post-Napoleonic age, however, the study of law noticeably increased in prestige and was reinforced by the general...

  9. CHAPTER FIVE The Legal Tradition
    (pp. 56-71)

    “History is the source of all human science,” declared the jurist F. F. Poncelet in the public course he gave in 1820, “and the history of jurisprudence is the basis of the science of the legist.”¹ This was in effect an axiom of legal studies in the Restoration, and the consequences were momentous for the legacy of the Enlightenment and of the Revolution. What this principle signified, not to put too fine a point on it, was simply a return to many of the assumptions, attitudes, methods, and materials of the Old Regime, even for lawyers who were busy summoning...

  10. CHAPTER SIX The German Impulse
    (pp. 72-84)

    The crisis of jurisprudence, which was still regarded widely as the major science of society, went deeper than pedagogy, methodology, and even financing. It was an ideological problem with international as well as national dimensions. Put crudely and in terms of public opinion, France seemed to have violated the deepest traditions of European society: 1789 betrayed social order, 1792 betrayed political conventions, 1794 betrayed human values, and 1804, to listen to some of Napoleon’s critics, betrayed everything, especially the future of the family of European nations. Conservatives, liberals, and “socialists” alike agreed that the times of the Caesars, of Justinian,...

  11. CHAPTER SEVEN La Thémis
    (pp. 85-92)

    France was invaded by the historical school of law during the 1820s, and the principal vehicle was a remarkable journal, frankly modeled on and continuing the editorial line of Savigny’sZeitschrift. CalledLa Thémis, the journal was represented as a “library for the jurist” and brought out in 1819 in order to promote a renaissance of jurisprudence after the presumed dark age of the new French law since 1804.¹ It was sponsored by a distinguished international committee including Victor Cousin, Dupin, and Isambert, but the moving spirits were Athanase Jourdan and L. A. Warnkönig. Its purpose was not only to...

  12. CHAPTER EIGHT A Pléiade of Legal Historians
    (pp. 93-100)

    By the 1830s the impact of the German historical school was abundantly apparent, not only in historical scholarship but also in professional jurisprudence, for instance in the work of such later commentators on the Code as J.L.E. Ortolan and R. T. Troplong. Also apparent, at least marginally, was the impact of Vico. By then the “new history,” too, was well established. The members of Michelet’spléiadehad accomplished most of their important work; four of them—Guizot, Thiers, Mignet, and Barante—had moved from scholarship to political activism, while Thierry was engaged from 1836 in collecting the sources of the...

  13. CHAPTER NINE Michelet and the Law
    (pp. 101-112)

    In reach if not in grasp, Michelet surpassed both thispléiadeand the one defined by himself. He was a true product of 1830—indeed he found his ideological identity in that revolution and proclaimed that history in general would be an “eternal July.”¹ For thetrois Glorieusessignified the victory of “liberty” over “fatalism” and the basis of that “resurrection” of the French past that had become his life’s obsession. By this time, Michelet had already served his apprenticeship and was emerging as the leading practitioner of the “new history” established in the previous decade. In addition to his...

  14. CHAPTER TEN Between History and Reason
    (pp. 113-126)

    What has been called “the German mirage” fascinated some members of the post-Napoleonic generation, but it repelled many others. This foreign influence had reached the highest echelons of the legal profession in France, reflected, for example, in the last edition of Camus’Profession of Advocate(1832). TheRevue encyclopédiquecharged Dupin with “encouraging a small sect that is trying to introduce Germanism into jurisprudence,” especially in the university. Dupin responded by distinguishing erudition from conceptualization. “One can compare the Germans to laborers adept at quarrying stone,” he wrote. “In this sort of work, that of research, of patient and laborious...

  15. CHAPTER ELEVEN The Question of Property
    (pp. 127-138)

    “Good God!” cried the younger Proudhon. “Whoever inquired into the origins of the rights of liberty, security, or equality?”¹ His liberal nemesis Adolphe Thiers, in an attack on the very work in which this question appeared, shared his adversary’s puzzlement. “How has it happened,” Thiers asked in 1848, “that property, the natural instinct of man, child, and animal, single aim and indispensable reward of labor, has been put in question?”² In France the question seemed especially offensive, even blasphemous. “Do we wish to know the fixed idea, the ruling passion of the French peasant?” asked Michelet. Just follow him on...

  16. CHAPTER TWELVE The End of the “New History”
    (pp. 139-148)

    Montesquieu’s dictum that “history illuminates law, and laws history” was never so well illustrated as in the generation before the revolutions of 1848.¹ The encounters between Clio and Themis were on the whole mutually reinforcing, with the muse of history turning to the goddess of justice for materials, methods, and values, and providing in return a sense of social reality, process, and perspective. The alliance was strengthened by intellectual reactions to the great Revolution, then by attempts to continue it by evolutionary means and identification with the idea of progress. In a sense, history and law joined in the support...

  17. NOTES
    (pp. 149-178)
  18. INDEX
    (pp. 179-184)
  19. Back Matter
    (pp. 185-185)