The Philosophical Manifesto of the Historical School of Law

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When this article was published in the Rheinische Zeitung, one of the sections, “The Chapter on Marriage”, was banned by the censors. It appeared in full only in 1927. In the present edition the article is reproduced, as in all previous complete publications, according to the manuscript, which is extant. The article was published in English in Writings of the Young Marx on Philosophy and Society, New York, 1967, pp. 96-105. (Notes MECW, 1975)

It is commonly held that the historical school is a reaction against the frivolous spirit of the eighteenth century. The currency of this view is in inverse ratio to its truth. In fact, the eighteenth century had only one product, the essential character of which is frivolity, and this sole frivolous product is the historical school.

The historical school has taken the study of sources as its watchword, it has carried its love for sources to such an extreme that it calls on the boatman to ignore the river and row only on its source-head. Hence it will only find it right that we go back to its sources, to Hugo's natural law. Its philosophy is ahead of its development; therefore in its development one will search in vain for philosophy.

According to a fiction current in the eighteenth century, the natural state was considered the true state of human nature. People wanted to see the idea of man through the eyes of the body and created men of nature, Papagenos, the naivety of which idea extended even to covering the skin with feathers. During the last decades of the eighteenth century, it was supposed that peoples in a state of nature possessed primeval wisdom and everywhere one could hear bird-catchers imitating the twittering method of singing of the Iroquois, the Indians, etc., in the belief that by these arts the birds themselves could be enticed into a trap. All these eccentricities were based on the correct idea that the primitive state was a naive Dutch picture of the true state.

The man of nature of the historical school, still without any of the trappings of romantic culture, is Hugo. His textbook of natural law is the Old Testament of the historical school. Herder's view that natural men are poets, and that the sacred books of natural peoples are poetic works, presents no obstacle to us, although Hugo talks the most trivial and sober prose, for just as every century has its own peculiar nature, so too it gives birth to its own peculiar natural men. Hence, although Hugo does not write poetry, he does write fiction and fiction is the poetry of prose corresponding to the prosaic nature of the eighteenth century.

By describing Herr Hugo as the forefather and creator of the historical school, however, we are acting in accord with the latter's own view, as is proved by the gala programme of the most famous historical jurist in honour of Hugo's jubilee. By regarding Herr Hugo as a child of the eighteenth century, we are acting even in the spirit of Herr Hugo himself, as he testifies by his claim that he is a pupil of Kant and that his natural law is an offshoot of Kantian philosophy. We shall begin with this item of his manifesto.

Hugo misinterprets his teacher Kant by supposing that because we cannot know what is true, we consequently allow the untrue, if it exists at all, to pass as fully valid. He is a sceptic as regards the necessary essence of things, so as to he a courtier as regards their accidental appearance. Therefore, he by no means tries to prove that the positive is rational; he tries to prove that the positive is irrational. With self-satisfied zeal he adduces arguments from everywhere to provide additional evidence that no rational necessity is inherent in the positive institutions, e.g., property, the state constitution, marriage, etc., that they are even contrary to reason, and at most allow of idle chatter for and against. One must not in any way blame this method on his accidental individuality; it is rather the method of his principle, it is the frank, naive, reckless method of the historical school. If the positive is supposed to be valid because it is positive, then I have to prove that the positive is not valid because it is rational, and how could I make this more evident than by proving that the unreasonable is positive and the positive unreasonable, that the positive exists not owing to reason, but in spite of reason? If reason were the measure of the positive, the positive would not be the measure of reason. “Though this be madness, yet there is method in't!” [Hamlet Act II, Scene 2] Hugo, therefore, profanes all that the just, moral, political man regards as holy, but he smashes these holy things only to be able to honour them as historical relics; he desecrates them in the eyes of reason in order afterwards to make them honourable in the eyes of history, and at the same time to make the eyes of the historical school honourable.

Hugo's reasoning, like his principle, is positive, i.e., uncritical. He knows no distinctions. Everything existing serves him as an authority, every authority serves him as an argument. Thus, in a single paragraph he quotes Moses and Voltaire, Richardson and Homer, Montaigne and Ammon, Rousseau's Contrat social and Augustine's De civitate Dei. The same levelling procedure is applied to peoples. According to Hugo, the Siamese, who considers it an eternal law of nature that his king should have the mouths of charterers sewn up and the mouth of a clumsy orator slit to the ears, is just as positive as the Englishman, who would consider it a political anomaly if his king were autocratically to impose even a penny tax. The shameless Conci, who runs about naked and at most covers himself with mud, is as positive as the Frenchman who not only dresses, but dresses elegantly. The German who brings up his daughter as the jewel of the family, is not more positive than the Rajput, who kills his daughter to save himself the trouble of feeding her. In short, a rash is just as positive as the skin itself.

In one place, one thing is positive, in another something else; the one is as irrational as the other. Submit yourself to what is positive in your own home.

Hugo, therefore, is the complete sceptic. With him, the eighteenth-century scepticism in regard to the rationality of what exists appears as scepticism in regard to the existence of rationality. He accepts the Enlightenment, he no longer sees anything rational in the positive, but only in order no longer to see anything positive in the rational. He thinks the appearance of reason has been expelled from the positive in order to recognise the positive without the appearance of reason. He thinks the false flowers have been plucked from the chains in order to wear real chains without any flowers.

Hugds relation to the other Enlighteners of the eighteenth century is about the same as that between the dissolution of the French state at the debauched court of the Regent and the dissolution of the French state during the National Assembly. In both cases there is dissolution! In the former case it appears as debauched frivolity, which realises and ridicules the hollow lack of ideas of the existing state of things, but only in order, having got rid of all rational and moral ties, to make sport of the decaying ruins, and then itself to be made sport of by them and dissolved. It is the corruption of the then existing world, which takes pleasure in itself. In the National Assembly, on the other hand, the dissolution appears as the liberation of the new spirit from old form, which were no longer of any value or capable of containing it. It is the new life's feeling of its own power, which shatters what has been shattered and rejects what has been rejected. If, therefore, Kant's philosophy must be rightly regarded as the German theory of the French revolution, Hugo's natural law is the German theory of the French ancien rigime. We find in it once more the whole frivolity of those roues, the base scepticism, which, insolent towards ideas but most subservient towards what is palpably evident, begins to feel clever only where it has killed the spirit of the positive, in order to possess the purely positive as a residue and to feel comfortable in this animal state. Even when Hugo weighs up the force of the arguments, he finds with an unerring sure instinct that what is rational and moral in institutions is doubtful for reason. Only what is animal seems to his reason to be indubitable. But let us listen to our enlightener from the standpoint of the ancien régime! Hugo's views must be heard from Hugo himself. To all his combinations should be added: he himself said.

Introduction

“The sole juristic distinguishing feature of man is his animal nature.”

The Chapter on Freedom

“A limitation of freedom” (of a rational being) “lies even in the fact that it cannot of its own accord cease to be a rational being, i.e., a being which can and should act rationally.”

“Absence of freedom in no way alters the animal and rational nature of the unfree man or of other men. All the obligations of conscience remain. Slavery is not only physically possible, but also possible from a rational standpoint, and any research which teaches us the contrary must be based on some kind of error. Of course, slavery is not absolutely lawful, i.e., it does not follow from man's animal nature, or from his rational nature, or from his nature as a citizen. But that it can be provisionally lawful, just as much as anything acknowledged by its opponents, is shown by comparison with private law and public law.” The proof is: “From the point of view of animal nature, he that is owned by a rich man, who suffers a loss without him and is heedful of his needs, is obviously more secure against want than the poor man whom his fellow men make use of so long as he has anything for them to use, etc.” “The right to maltreat and cripple servi [slaves] is not essential, and even when it occurs it is not much worse than what the poor have to endure, and, as regards the body, it is not so bad as war, from participation in which slaves as such should everywhere he exempt. Even beauty is more likely to be found in a Circassian slave girl than in a beggar girl.” (Listen to the old man!)

“As regards its rational nature, slavery has the advantage over poverty that the slave-owner, even from well-understood economic considerations, is much more likely to expend something on the education of a slave who shows ability than in the case of a beggar child. Under a constitution the slave is spared very many kinds of oppression. Is the slave more unfortunate than the prisoner of war, whose guards' only concern is that they are temporarily responsible for him, or more unfortunate than the convict labourer over whom the government has placed an overseer?”

“Whether slavery as such is advantageous or disadvantageous for reproduction is a question still in dispute.”

The Chapter on Marriage

“Regarded from the philosophical standpoint of positive law, marriage is already often considered much more essential and much more rational than world appear from a quite free examination”.

It is precisely the satisfaction of the sexual instinct in marriage that suits Herr Hugo. He even draws a wholesome moral from this fact:

“From this, as from countless other circumstances, it should have been clear that to treat the human body as a means to an end is not always immoral, as people, including presumably Kant hinuelf, have incorrectly understood this expression.”

But the sanctification of the sexual instinct by exclusiveness, the bridling of this instinct through laws, the moral beauty which idealises the bidding of nature and makes it an element of spiritual union, the spiritual essence of marriage, that is precisely what Herr Hugo finds dubious in marriage. But before we go further into his frivolous shamelessness, let us listen for a moment to the French philosopher in contrast to the historical German.

“By renouncing for one man alone that mysterious reserve which divine law has implanted in her heart, the woman pledges herself to this man for whose sake she momentarily suspends the modesty which she never loses, for whom alone she lifts the veils which otherwise are her refuge and her adornment. Hence this intimate confidence in her husband, the result of an exclusive relation which can only exist between her and him, and without which she feels herself dishonoured. Hence her husband's thankfulness for the sacrifice and that mixture of desire and respect for a being who, even while sharing his pleasures, seems only to be submitting to him. Hence the source of all that is orderly in our social system”.

So says the liberal philosophical Frenchman Benjamin Constant! And now let us listen to the servile, historical German:

“Much more dubious is the second circumstance, that outside marriage the satisfaction of this instinct is not permitted! Animal nature is against this restriction. Rational nature is still more so, because”... (guess!)... “because a man must be almost omniscient in order to foresee what result it will have, because it is therefore tempting God to pledge oneself to satisfy one of the most powerful natural instincts only when this can take place with one particular persons” “The sense of the beautiful, which is free by its very nature, has to be fettered and what depends on it has to be wholly divorced from it.”

See what kind of schooling our Young Germans have received!

“This institution conflicts with the nature of civil society insofar as ... finally the police undertake an almost insoluble task!”

Clumsy philosophy, which has no such consideration for the police!

“Everything that follows as a consequence from a more precise definition of the marriage law, shows us that marriage, whatever principles are adopted in relation to it, is still a very imperfect institution.”

“This restriction of the sexual instinct to marriage has nevertheless also important advantages, namely, by its means infectious diseases are usually avoided. Marriage saves the government a lot of trouble. Finally, there is also the consideration, which is everywhere so important, that in regard to marriage civil law is the customary one.” “Fichte says: An unmarried man is only half a man. I” (i.e., Hugo) “am extremely sorry, however, to have to declare that such a beautiful utterance, putting me above Christ, Fénelon, Kant and Hume, is a monstrous exaggeration.”

“As regards monogamy and polygamy, this is obviously a matter of man's animal nature”!!

The Chapter on Education

We learn at once that: “The art of education gives rise to no less objection against the juridical relation connected with it” (education in the family) “than the art of loving does against marriage.”

“The difficulty that education may only be carried out within such a relation, however, gives rise to far fewer doubts than is the case with the satisfaction of the sexual instinct if for no other reason than that it is permissible to entrust education by contract to a third person, so that he who feels a very strong urge in this respect can easily satisfy it, only not, of course, necessarily in regard to the particular person whom he would like to engage. It is, however, also irrational that, by virtue of such a relationship, someone to whom no one would entrust a child, may carry on education and exclude others from education.” “Finally, here also there is compulsion partly because the educator is often not permitted by positive law to give up this relationship, and partly because the one to be educated is compelled to let himself be educated by this particular teacher.” “The reality of this relationship depends mostly on the mere accident of birth, which is connected with the father through marriage. This way of originating the relationship is obviously not very rational, if only because it usually opens the way to preference, which itself is already an obstacle to a good education. That it is not even absolutely necessary is evident from the fact that education is given also to children whose parents are already dead.”

The Chapter on Civil Law

§ 107 tells us that the “necessity of civil law in general is imaginary”

The Chapter on Constitutional Law

“It is a holy duty of conscience to obey the authorities in whose hands power lies.” “As regards the division of governmental powers, it is true that no particular constitution is absolutely lawful, but every constitution is provisionally lawful, whatever the division of governmental powers.”

Has not Hugo proved that man can cast off even the last fetter of freedom, namely, that of being a rational being?

These few extracts from the philosophical manifesto of the historical school suffice, we think, for pronouncing a historical verdict on this school, instead of unhistorical fantasies, vague figments of the brain, and deliberate fictions; they suffice for deciding whether Hugo's successors are fit to be the legislators of our time.”

At all events, in the course of time and civilisation, this crude genealogical tree of the historical school has been shrouded in mist by the smokescreen of mysticism, fantastically wrought by romanticism, and inoculated with speculation; the many fruits of erudition have been shaken off the tree, dried and deposited with much boasting in the great storehouse of German erudition. Truly, however, little criticism is needed to recognise behind all these fragrant modern phrases the dirty old idea of our enlightener of the ancien régime, and his dissolute frivolity behind all the extravagant unctuosity.

If Hugo says: “Animal nature is the distinctive juristic feature of man”, from which it follows: law is animal law, the educated moderns say, instead of the crude, frank “animal” law, something like “organic” law, for who on hearing the word “organism” thinks at once of the animal organism? If Hugo says that marriage and other moral-legal institutions are irrational, the moderns say that these institutions are indeed not creations of human reason, but are representations of a higher “positive” reason, and so on in regard to all the other articles. Only one conclusion is voiced by all with equal crudity: the right of arbitrary power.

The juridical and historical theories of Haller, Stahl, Leo, and their fellow thinkers should he regarded only as codices rescriptia of Hugo's natural law, which after some operations of critical analysis allow the old original text to be made legible again, as we shall show in more detail at a suitable time.

All the tricks of embellishment are the more in vain as we still have the old manifesto, which, if not intelligent, is nevertheless very easy to understand.