5 - Historians and lawyers

Summary

Law and political thought

How is law related to political thought in modern European history? There are three different answers to this question that apply here. One derives from what may be called the legislative or statutory model of legal philosophy, which, following good classical precedent, identified law with the will of the sovereign, whether located in a monarchical or in a republican form of government. In the eighteenth century the legislative paradigm can be seen in the theory and practice of enlightened despotism and especially in the codification movement, which touched many European states, including Prussia, Austria and France (Tarello 1976; cf. Wisner 1997). European codes, modelled largely on the Corpus Juris Justiniani (ad 529–33), were intended to organise all private law (especially the law of persons and property) into a single system and in this way, whether directly or indirectly, to politicise it. This agenda was realised most famously in the Napoleonic Code, but it can also be seen in monarchists such as Joseph de Maistre, Louis de Bonald, and Friedrich von Stahl and Utilitarians such as Jeremy Bentham and John Austin, who defined law simply as a command of sovereign power.