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 develop- 
ment; 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 ev- 
erywhere 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 be 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!”> 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 para- 
graph he quotes Moses and Voltaire, Richardson and Homer, Mon- 
taigne 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 chatterers 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 shame- 
less 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, @ 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. 

Hugo's 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 forms, 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 régime. 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 in- 
stitutions 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: 

° wv b 
QVTOG Ea. 

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 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 be 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 oppres- 
sion. 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 would 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 himself, 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. 

“C’est en renoncgant pour un seul homme 4 cette réserve mystérieuse, dont la 
régle divine est imprimée dans son coeur, que la femme se voue a cet homme, pour 
lequel elle suspend, dans un abandon momentané, cette pudeur, qui ne Ja quitte 
jamais; pour lequel seul elle écarte des voiles qui sont d’ailleurs son asile et sa 
parure. De la cette confiance intime dans son époux, résultat d’une relation 
exclusive, qui ne peut exister qu’entre elle et lui, sans qu’aussitot elle se sente 
flétrie; de la dans cet époux la reconnaissance pour un sacrifice et ce mélange de 
désir et de respect pour un étre qui, méme en partageant ses plaisirs, ne semble 
encore que lui céder; de 1a tout ce qu'il y a de régulier dans notre ordre social.” * 

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 person!” “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” (educa- 
tion 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 de- 
pends 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 imagi- 

nary 
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 be regarded only as codices rescripti? 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. 

Rheiniche Zeitung No. 221, August 9, 1842; °° te copy of the manuscript