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.

“History” and “story” are derived from the same root, and they have converged again in modern times, especially through the recognition of their common dependence on imagination. Both history and literature are forms of cultural memory, and in this respect, too, they have a link with imagination. Historians pretend to recapture the past in all its fullness, but in fact they are bound by the limits and conventions of narrative prose. Nor can literary artists, even the most “classic” among them, remain free of the toils of history; for as Shelley admitted, “this is an influence which neither the meanest scribbler nor the sublimest genius of any era can escape.”

Since antiquity the ars historica and the ars poetica were sister genres, with overlapping issues and similar values. From the time of Cicero and Quintilian the art of history has made claims on truth, but like poetry, it has also aimed at beauty, or pleasure (voluptas), and goodness, or utility (utilitas). In more recent times, too, the realization of such a common pedigree and such common purposes has reinforced the ties between historians and literary scholars and opened further what has been called “the open boundary of history and fiction.” As historians have come to recognize the aesthetic dimension of their craft and the necessity to resort to imagination to fill in gaps in the narrative, so literary scholars are acknowledging the historicity of literature, its value as a reflection of bygone worlds not recoverable through conventional documents, and the use of literary criticism for the interpretation of such documentation.

Imagination in its highest form is said to be the creative faculty of the mind, the department engaged in framing new images and conceptions, things and ideas hitherto unknown and previously nonexistent. As such, it has always been connected with the arts, verbal as well as visual. Imagination lives in the realm of fancy and of fiction, the antithesis of observable facts and empirically testable propositions. In a more general sense, however, the word “imagination” refers to the capacity of the mind to form images or concepts of what is not actually present to the senses and to evoke their relations with one another. As such, it can bring into view remote, absent, or previously occurring events as well as purely imaginary ones. In this meaning, it enjoys an intimate connection with the idea of memory, and has a close tie to the work of historians and to the purposes and practices of historical writing. History of necessity deals with the need to make present what has left only traces or remains by which it can be known. As a discipline concerned with recovering the past, history cannot but come to terms with the limits of representation this process entails; so despite its prosaic form, it has enjoyed an affinity, and sometimes an intense sibling rivalry, with poetry, its sister genre, and one of imagination's main fields of play.

This kinship was a subject of particular interest and concern in the early modern period, an era in which strenuous efforts were being made on many fronts – in the institutions of church and state as well as in the various arts and sciences and in popular culture – to recover and emulate the truths and traditions of the past and to command time-bound processes of change or overcome them.