Status Updates From After Kant: The Romans, the...

It meant, Tocqueville continued, that the question of how “to establish agreement between the principles of administrative law and political laws, between the needs of government and the necessary existence of centralization with the spirit and rules of representative government, is a subject that awaits a book.” It would, he concluded, “be one of the greatest works that our generation could undertake.”

“Roman law,” Tocqueville wrote in a letter to his godson shortly before he died, “has played a very important part in the history of almost every modern nation. It has done them much good and, in my view, even more harm. It perfected their civil law and perverted their political law.”

Without welfare, life under conditions of economic and social interdependence would produce the same process of social dissolution that it had done to imperial Rome.

“L’état doit à tous les citoyens une subsistance assurée, la nourriture, un vêtement convenable et un genre de vie qui ne soit point contraire à la santé.” Ibid., p. 94, citing Montesquieu, De l’esprit des lois, bk. 23, ch. 29 (see, for example, the two-volume Paris, 1979, Garnier- Flammarion edition, ed. Victor Goldschmidt, 2:134).

Instead of sociability preceding politics, politics now preceded sociability because politics had become the force driving the range and variety of overlapping allegiances that societies had now come to house. In this sense, the end of history was not, as has sometimes been said, the end of ideology, however much it has sometimes been easy to conflate the two terms.

In another sense, however, it also calls for something broader because, in the last analysis, it is likely that almost any noun or adjective can turn into a word ending in -ism. This, it could be said, was the real message of the concept of unsocial sociability.

Roman law was a product of conflict but had the ability to turn one type of conflict into conflict of a different kind. It could accommodate utilitarianism and idealism just as, for Smith and Kant, it could reconcile legality with morality.

Anyone, in short, could recognize utility. Only a Roman, however, could be a utilitarian.

As with Hegel, the resulting system would have three parts: a state, a civil society, and a government that straddled them both. The binding mechanism, however, had to come from conflict, but from conflict expressed as argument and ideas rather than as real material and physical force.

Usually, romanticism is taken to be a reaction against the Enlightenment. In this broad sense, the assertion is mistaken. But if romanticism is taken to be a reaction against Kant’s philosophy of history, the assertion is more plausible. In this more narrowly contextual interpretation romanticism was, as its authors envisaged, an effort to protect the concept of enlightenment from Kant’s bleak philosophy of history.

Justice, Smith emphasized, was the only virtue that would retain its character even when it was backed up by force, usually in the form of the power and authority of the state. This was why justice was not quite the same as the other virtues.

Gierke’s political thought was a mirror image of Lassalle’s. Where Lassalle set out to show how the legacy of Roman law could be used to emancipate individuals from the collective character of Germanic custom, Gierke set out to show how the legacy of Germanic law could be used to add a collective character to the individualism of Roman law.

“The world,” Quinet ended, “is still trying to find its way between these two dreams.” If it could do so, and if it could find a way between Robinson Crusoe and the City of the Sun, it would be- come a home for both autonomy and democracy.

Humanity might have begun with “the materialised, individualised idea,” but had proceeded towards “the pure and general idea,” or, as Michelet put it, “in the motionless chrysalis of the symbol is operated the mystery of the transformation of the mind.”

What both Michelet and Quinet found in Vico was a philosophy of history that lent itself not only to legal history but also to the more difficult problem of explaining why Roman law and Roman institutions had outlived the Roman Empire.

In fact, the real outcome was more complicated because the victors in this iteration of the argument were not, in fact, the apologists of the ancients but the apologists of the moderns.
The twist, however, was that the qualities of the moderns had turned into the qualities of the ancients, but in a romantic rather than a classic guise.

The mixture, Desmarais argued, was an effect of what he called “the complex state of our civilization.” While “our industry improves, our moral state goes backwards and a sort of intellectual anarchy that seems to presage barbarism becomes ever more visible.”

The outcome was a further series of transformations as centralized royal government grew up alongside decentralized municipal government. The long-term efect of the process was that a “great social class, the bourgeoisie, was the necessary result of local bourgeois enfranchisement.”

Instead of the hollowing out of imperial Rome under a centralized system of patronage and power, the hollowing out of feudal Europe enabled the towns to recover their capacity to govern themselves. In place of the fortified towns of the Middle Ages, Europe began to be dotted by the commercial towns of the modern age.