DISSERTATION LA CONSTITUTIONNALISATION DE LÉTAT DURGENCE

Constant, like Bodin and Montesquieu, advocated institution-building as the key principle of political right [89]. Droit politique was therefore in danger of disappearing from French thought. His objective, then, was to discover the principles of modern constitutional ordering that could meet such tests. This reappraisal should be placed in context. The modern political world founds itself on the division between public and private.

The civil order established by this pact is dictated by the sovereign people as an expression of the general will, not by a vanguard who consults their own hearts and minds to reveal the dictates of natural right [71]. Not oblivious to the threats pose by bureaucratization, they do not assume that the administrative state must necessarily be a state of servitude. Modern governments must not only claim a democratic mandate but must also act through accepted constitutional forms. And while it remains so, it provides no adequate basis for political jurisprudence. That is, the organized power of government, which must conform to the principles of representation and separation of powers, exists in order to realize the directing idea. He recognizes that the political power generated through a constitution contains an element that is not derived from delegation and mandate.

Consequently, in its modern form law is the product of a monopolization of the use of legitimate physical force in a given territory: A parallel line of argument led jurists to redefine the state as a political fact of little legal significance.

But to appreciate why we must move beyond the liberal interpretation that his objective was to show the importance of curtailing political power by operation of law. Having explained the social conditions leading to the formation of the state, he turns to his major task: Innovators such as Saint-Simon, Comte and Durkheim situated themselves in a Cartesian tradition of thought defined as: Their declaration demanded that sovereign authority be transferred from the king to the nation.

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They recognized the autonomous character of the political domain and the need to devise an immanent structure of public law based on the concepts of state, sovereignty and constitution.

dissertation la constitutionnalisation de létat durgence

With this claim, Abensour makes a direct connection with Jacobinism. Like Hobbes before him, Rousseau invokes the idea of a social contract.

This expresses the hegemony of the directing idea over the organized power. Ruling authority was legitimated by its adherence to the principles of liberty and equality inscribed in natural right.

Droit politiquea concept founded on a system of subjective rights, is thus overthrown, to be replaced with a regime of objective law.

Droit politique

So, what impact did this positivist, scientific turn have on the concept of droit politique? But although it is still expressed in the jural form of droit politiqueit is philosophers rather than lawyers who now use this conceptual language, and in certain respects this is regrettable. And although some might létxt these antagonistic notions, one of the great traits of French thought has been its ability to reconcile opposites.

The modern political world founds itself on the division between public and private. El Mossadeq Rkia, Consensus ou jeu de consensus? But my objective here is only to consider the degree to which, during the revolutionary period, sound principles of political right had the prospect of being institutionalized in a new constitutional arrangement. Challenging the authority of traditional ordering, Enlightenment scholars had to devise new legitimating principles for modern societies.

dissertation la constitutionnalisation de létat durgence

Montesquieu explains that laws exist in order to regulate three main types of social relations: French political jurists might not have agreed on the principles of political right but by the mid-eighteenth century they had made considerable advances in devising a common conceptual framework through which these principles could be expressed. Science, not metaphysics, was needed. The civil order established by this pact is dictated by the sovereign people as an expression of the general will, not by a vanguard who consults their own hearts and minds to reveal the dictates of natural right [71].

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This began to change during the first half of the eighteenth century, when two scholars produced works that would bring the science of political right to maturity. A functional orientation had not been altogether absent from revolutionary discourse.

There has, of course, continued to be intense reflection on the nature of the modern republic and the conditions of its flourishing.

Historical inquiry, Rousseau maintained, can only replicate historical injustices and legitimate existing power formations [35]. Some jurists have resisted this reductive manoeuvre []and some continue to adopt a concept of public law that operates within the broader concept of droit politique []. Situating himself in the tradition of Montesquieu and Rousseau [84]he built his argument from the elementary concepts of war and peace, state and sovereignty.

The second assumption was that this distinctive worldview could only be formulated in the language of law.

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They recognized that continuing material progress would lead to the growth of administrative power, but did not see that this expansion of bureaucracy might lead to a loss of individual autonomy and creativity. Although droit politique comes into its own in Enlightenment thinking, its basis had earlier been laid by the politique jurists [9].

This shift was driven by pioneering scholars of the nascent social sciences. Pour citer cet article: As an autonomous worldview, the political presents itself as a domain without limitation. Constant was a liberal by conviction but, more precisely, dissertatoon was a political jurist [83].