From Rousseau, he derives the principle that a regime acquires its legitimacy from popular sovereignty: Some argued that in criticizing theories founded on abstract principles, he had himself used the abstractions of solidarity, service, and government []. 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. Just as Bodin had shown that there could be no universal form of scientific jurisprudence in his day, one that was derived from Roman law [30] , so Montesquieu demonstrates that authority cannot be maintained by imposing a strict legal uniformity [31]. The French philosophical style has distinctive traits: These two basic assumptions combine in a third, derivative, claim: French pioneers of sociology saw the evolution of modernity as positive, material progress based on advancements in scientific knowledge.

The philosophers of the Enlightenment maintained that reason and experience were the sole sources of authority. The dominant tradition of French scholarship in public law throughout the twentieth century has been built on a relatively orthodox acceptance of legal positivism. The critical distinction between liberal and despotic government is not the absence or presence of coercion: Their recognition of the importance of political culture as a set of symbolic practices throws into relief the juristic implications of the revolutionary debates. The Jacobins used the concept of natural right to bolster the legitimacy of the laws underpinning the Terror. Political historians have successfully advanced this discourse in recent years.

They had little to say about its darker side. In these respects, the Jacobins were hardly faithful followers of Rousseau. First, despite the constitutionnalisaion of liberty, it had in fact been driven by egalitarianism.

Droit politique

But he felt that Hobbes erred in treating the foundational pact as a trade-off between liberty the absence of constraint and law the will of the sovereign. This leads to the second concept: Constitutionnalisatoon governments must not only claim a democratic mandate but must also act through accepted constitutional forms.


But that contribution was not especially original or profound; by the mid-eighteenth century the idea that constitutional government needed to differentiate between governing tasks was well understood.

Liberty in the modern world of the political had to recognize the distinctions between public and private, political and social, participation and independence. 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 essential criterion of being able to conceive itself as a state, he explained, is the establishment of absolute collective authority. It was a concept unknown to the ancient world. Yet, the great strength of this tradition of droit politique has been its ability to hold in tension the relationship between norm and fact, legal and political, and between abstract and concrete.


Constant argued that a system of government whose source rests entirely on the will of the people through election will struggle to maintain its authority. Pour citer cet article: Sovereignty is absolute, perpetual and indivisible, while government is conditional, limited and divisible. These emergency responses were quickly extended into a system of government [63]which subsequently descended into a dictatorial regime of violence and fear known as the Terror.

The question then arises: Montesquieu explains that laws exist in order to regulate three main types of social relations: The underlying problem, he suggested, was that revolutionary leaders had only placed power into a different set of hands, whereas the real challenge was to recognize the changing nature of power in modern society. They sought to stipulate the conditions, precepts, practices and norms that establish and maintain the right ordering of the regime.


Rousseau answers this in stages.

Expressed in constitutional language, authority is established only if the constitution is recognized as autonomous. This notion of the general will expresses the will of the sovereign. This could only be achieved in small, culturally homogeneous city-states that promoted a politics of virtue founded on a martial spirit [95]. Once the principle of equal liberty is acknowledged as the fundamental law, the concept of law is transformed.

This is acquired through a series of symbolic representations, such as the nation, the state, and the constitution. A parallel line of argument led jurists to redefine the state as a political fact of little legal significance.

dissertation la constitutionnalisation de létat durgence

Montesquieu showed, by contrast, that law is not, in essence, command: He acknowledged the importance of power as potestasa central concept of political right. Their declaration demanded that sovereign authority be transferred from the king to the nation. Modernity leads to a growth in both social and political power, with each drawing on the other in a reflexive process.

dissertation la constitutionnalisation de létat durgence

Authority could be enhanced only by establishing institutional arrangements which acquire the same degree of permanence and independence as kingship. The critical distinction between liberal and despotic government is not the absence or presence of coercion: One reason is that politics and law are today seen as belonging to different realms of thought and action: But such works are not typical.