Liberty for Rousseau is not the mere absence of constraint: Properly understood, politics la politique is antagonistic to the activity of policing. They had failed in particular to appreciate the importance of maintaining a clear distinction between sovereignty and government, which Rousseau had adopted from Bodin. Consequently, in its modern form law is the product of a monopolization of the use of legitimate physical force in a given territory: Rather than locating the origins of political order in war and insecurity, Rousseau begins his inquiry into droit politique by first seeking the principles of legitimate government. Sa nature , op.

Droit politique , a concept founded on a system of subjective rights, is thus overthrown, to be replaced with a regime of objective law. But the political is also required to operate in accordance with its own fundamental laws, an assertion so often overlooked in modern public law thought that the very idea of droit politique has been marginalized. No further documentary authority was required. The challenge of discovering les principes du droit politique is to understand how law can be transformed from an instrument that bolsters the hierarchical relationship of sovereign and subject into a medium by which liberty and equality can be realized. The Terror became a state of affairs in which the exception was normalized [75]. The emergency had permitted the Jacobins to retain power without having gained popular support [66].

Liberty in the modern world of the political had to recognize the distinctions between public and private, political and social, participation and independence. The nation the state has its origin in a social contract that transforms an aggregate of isolated individuals into a unified body politic possessed se a single general will.

Droit politique

Comment croire et soutenir que ces seuls dix jours ont permis l’expression libre et pluraliste des opinions? Questioning the assumption that equality and liberty were complementary principles and therefore that droit politique involved a simple reconciliationhe predicted that the emergence of an equality of conditions, far from providing the foundation for liberty, might actually threaten its realization []. The objective element, he contends, does not subsist in a constitutionanlisation rule, but in the institution with its directing idea and organized power.


This exercise in imagination provides the basis for conceiving the political as a distinctive worldview.

Mais cette entente ne porte pas sur le fond: Constant, like Bodin and Montesquieu, advocated institution-building as the key principle of political right [89]. Although droit politique comes into its own in Enlightenment thinking, its basis had disserttaion been laid by the politique jurists [9]. The modern political world founds itself on the division between public and private. Since this can be achieved only by acting in accordance with this basic law, whoever refuses to obey it must be constrained to do so.

Nature and not the general will was the originating source of legal and political authority.


This is not to limit the power of government, as classical liberals demand. The Jacobins used the concept of natural right to bolster the legitimacy of the laws underpinning the Terror.

dissertation la constitutionnalisation de létat durgence

The state, he explained, cannot possess a will: The political strengthens the authority of its worldview only through the medium of right and law.

This shift was driven by pioneering scholars of the nascent social sciences.

The nation exists prior to the constitution, and its government serves only at the pleasure of the national will. The significance of this claim is revealed when he argues that each type of order formed in the world operates according to its own fundamental laws. Montesquieu had set himself the task of finding a new understanding of the concept of law. Thirdly, the revolutionary spirit had imbibed a Rationalist mentality marked by a profound distrust of customary ways [].

This reappraisal should be placed in context. Following Saint-Simon, he contends that the true basis of public law is not command: The principles of droit politique may be symbolic ideals of ambiguous meaning, but this is what enables citizens to maintain a system of authority at the same time as continuing to question the authority of established institutions. No further documentary authority was required.


dissertation la constitutionnalisation de létat durgence

Bodin and Montesquieu tried to identify the principles of political right, but they had both sought to ddissertation them from historical experience.

Jurists of course presented contrasting accounts of political order and consequently relied on different conceptions of authority, liberty, equality, solidarity, rights and so on. The directing idea is an ideal manifestation of the tasks to be realized by that body.

Constant, the quintessential Thermidorian jurist, devoted his considerable intellectual energies to the question of how the Republic might draw a line under its revolutionary origins and establish its constitutional authority. They sought to stipulate the conditions, precepts, practices and norms that establish and maintain the right ordering of the regime.

Despite the antithetical character of their views, Montesquieu and Rousseau provide us with the framework of Enlightenment thought on this subject, and their ideas exerted a powerful influence over the leading figures of the late-eighteenth century Revolution [20].

Their work demonstrates that although droit politique no longer provides the organizational framework within which French public lawyers work, the concept remains an consttitutionnalisation force in French public life. This somewhat paradoxical declaration provides the foundation of the concept of droit politique. This leads to the second concept: 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.

Droit politique has been rejuvenated by political theorists working in a Marxist, or post-Marxist, tradition. Rousseau answers this question in two further stages.