Paul Vinogradoff, Historical Jurisprudence, and the Critique of Sociology August 19, 2012Posted by Christopher Donohue in History of Economic Thought, History of the Human Sciences.
Tags: Alfred Marshall, Emile Durkheim, Franklin Giddings, Friedrich Engels, Gabriel Tarde, Henry Buckle, Henry Maine, Herbert Spencer, J.S. Mill, Karl Bucher, Karl Marx, Max Weber, Paul Vinogradoff
Sir Paul Vinogradoff (18 (30) November 1854, Kostroma, Russia – 19 December 1925, Paris, France) is remembered primarily as an early practitioner of historical jurisprudence in Russia and Britain (as distinguished from the earlier comparative, perhaps unsystematic, studies of Henry Maine), and as a historian of medieval England, particularly of the medieval village. He was also a keen critic of late nineteenth and early twentieth century social sciences. Vinogradoff’s understanding of the scope and method of historical jurisprudence was intimately connected with his critical gaze of the intellectual projects of Karl Marx and Emile Durkheim, among others. Essential to his view of the role of law in the evolution of human culture was his organicist view of society, the distinction, which he shared with J.S. Mill and Alfred Marshall, between statics and dynamics, and his adoption of Weberian ideal types.
Vinogradoff was in many ways extending enlightenment thinking about the nature of society, if we consider the enlightenment to begin with Montesquieu’s Spirit of the Laws and end with Hegel’s Lectures on the Philosophy of History, and as well as the nineteenth century obsession with the empirical verification of causal historical laws, which reached its early perfection in Henry Buckle’s History of Civilization in England. The second tendency was crystallized in the flood of studies describing in fine-grained detail all aspects of primeval, ancient, and medieval customs and communities. Such a level of discussion was possible not only through a revolutionary increase in the variety and quality of ethnographic, archaeological, and primitive legal accounts, but also through the adoption of an evolutionary perspective, borrowed in equal parts from Comte, Spencer, and Karl Bucher.
Vinogradoff thought many of the writings of the social theorists to be useful but only in a limited way. They were to him, to use a modern term, “instrumental.” Of Tarde’s idea that the principle mechanism behind group behavior was “imitation” and that individuals were in a continual “somnambulism,” Vinogradoff remarked that it was as equally one-sided as Durkheim’s contention that group behavior is principally motivated by “social pressure and compulsion.” The well-regarded sociologist and economist Franklin H. Giddings’ account of “consciousness of Kind” was, according to Vinogradoff “hardly free of the same taint.”
Vinogradoff continued, “Surely social life in material and spiritual intercourse does not consist exclusively of the conflicts and cross-influences of socially conscious groups.” The growth of science, he noted, could not be explained in this way. Durkheim or Giddings, or Herbert Spencer for that matter, could explain very well certain types of behaviors, but could not, in his estimation provide a theory of society, or aspire to that explanatory monism so popular among turn of the century practitioners (and today’s systems theorists.) Vinogradoff, in a similar way, considers Marx and Engels explanatory scheme of only instrumental utility. Vinogradoff declared, “We are confronted with an attempt to unite economic analysis and the concrete process of history into one comprehensive scheme….” However, the “dynamic formula of the Marxists discloses both positive and negative features.”
Like Durkheim, Spencer, and Tarde, the materialism of Marx and Engels was useful insofar as it “considers the life from a single point of view- that of the production and the distribution of the means of existence; and by doing so it undoubtedly throws a strong light on the importance and the influence of the economic factor in the process of evolution.” More negatively, Vinogradoff observed, “By willfully curtailing our range of view, by treating one train of thought and treating all other interests- political, religious, artistic, scientific…as mere adjuncts and reflexes, the Marxists expose themselves to the certainty of miscalculation and misrepresentation. Quite pointedly, but instructively, Vinogradoff declared that Marxism was quite dangerous in its explanations of the “domain of law” (shades of Martin Malia, the sadly deceased Soviet historian and pugilist.) Law according to the Marxists was “a reflex manifestation of a preponderance of one or the other economic class.”
Vinogradoff was far kinder to the members of the German historical school, most of all to Max Weber. For Vinogradoff, the German historical school, as well as Weber’s notion of ideal types, though partial in its explanations, robustly explained a wider range of phenomena and with more sensitivity than Marx or Durkheim. Though the use of the “ideological method undoubtedly presents great difficulties and dangers…if the besetting dangers are realized….” then the conclusions derived from such a work can indeed have great utility. The fundamental insights of the German historical school may be applied to the study of historical jurisprudence through a theory of the “general jurisprudence for civilized mankind.” This theory of general jurisprudence would have to take as its standpoint, much like Weber, of that of methodological individualism or that of the “coordination of individual wills.”
Vinogradoff concluded that the reconstruction of the history of jurisprudence as well as society as a whole by way of ideal types or the “ideological order” in no way ignored the “conditions…which have determined the actual course of events. Ideas do not get their own way in real life; they are embedded in facts, and these latter appear influenced by material necessities and forces.” He continued, “The chronological process of history cannot fail to affect the ideological deductions from a social type,” and an ideological theory of historical jurisprudence would not, in Vinogradoff’s opinion, seek to explain all social phenomenon, but simply enough to explain certain classes of phenomena. For Vinogradoff, the theory of ideal types could robustly explain legal institutions and codes of law, embracing many forms of social life. As importantly, it was not only important that a theory of historical jurisprudence be able to contend with legal institutions as they now existed, but could also give some sense of how legal institutions had come about and perhaps how they would develop in the near future.
Showing a debt not only to August Comte but also Alfred Marshall, Vinogradoff declared that any theory attempting to explain an element of social life should not only contend with static institutions but put forward a dynamical theory of change. He declared, “ideas are mobile entities,” they are “dynamic” “passing through various stages - indistinct beginnings, gradual differentiation, struggles and compromises, growth and decay.” The fusion of the static and dynamic elements, though difficult and not without hurdles but would, Vinogradoff thought, emerge as a collaborative effort among those truly interested in “historical types as the foundation of a theory of law.”
Vinogradoff’s application of the principles of the German historical school may be viewed in his schematic description of at the very least all European societies advancing through the following stages: t0temistic society, tribal law, civic law, medieval law (a combination of canon and feudal law,) “individualistic jurisprudence,” and socialistic jurisprudence. Such a schematic overview, produced at the end of his writing career, does not give a sense of the richness and subtlety of his account of medieval English history.
Of the period of the Norman Conquest and its impact on English society, Vinogradoff noted, “From the eleventh century most of the great forces of English history,” the royalty, church, the landed aristocracy, “proceeded on their course of development through a momentous crisis, but without substantial break. While before the Conquest, English society resembled a “Teutonic state” similar to that of Denmark or Norway. After the Conquest, the Teutonic element was reduced greatly while the existing Old English system of laws was integrated with French elements. However, and this was a point made by F.W. Maitland as well, “English legal history does not know of a ‘reception’ of foreign law in the sense in which Roman law was received by Germany in the fifteenth century.” One finds in the Doomsday book “the whole complex of rights acquired by French conquerors 0n English soil is determined in a sense by Old English law….We come across constant references and contests in regards to rights derived from occupation and ownership in Old English law.” There was a deference to Old English law particularly in local matters, but this existed alongside an imported tradition of French legal practice in such things as “the classification of persons according to their status, legal procedure, police responsibility and punishment of criminals, military tenure….”
Much like Max Weber, Vinogradoff ascribed the primary motive force in history to those ideas which defined conduct and expectations. Max Weber’s discussions concerning capitalism hinged on the connections between belief and behavior, and addressed those religious ideas which lay behind the drive towards the acquisition of worldly goods and the expectation of a state of grace if material success manifested. For Vinogradoff, law embraced those ideas concerning the relationship between persons and the connection between persons and things. A code of laws, though governing the relations between individual persons, nonetheless reflected the workings of society as a whole. It was these characteristics of laws which allowed Vinogradoff to maintain the standpoint of methodological individualism while also addressing how one form of social organization gave way to another. An emphasis on law , both as history and as current guide to behavior, allowed for Vinogradoff to explain more behaviors, expectations, institutions, and institutional manifestations than economics or a “collective conscience.”