DISSERTATION LA CONSTITUTIONNALISATION DE LÉTAT DURGENCE
To address them, governmental action on an unprecedented scale was needed. Was a phase of violent dictatorship necessary in order to make a new people receptive to the precepts of true liberty? Contrary to the received legal positivist view that law makes institutions, Hauriou maintained that institutions make law . Secondly, this political equality becomes the precondition for the formation of a single will. Some scholars locate it in his claim that the modern idea of the state depends on recognizing the existence of a supreme centre of authority incorporating all governmental powers  , the origin of the modern idea that law is an expression of the will of the sovereign. Condorcet would later criticize Montesquieu for failing to speak of the justice or injustice of the laws .
The second assumption was that this distinctive worldview could only be formulated in the language of law. Since the mid-nineteenth century, French public lawyers mainly worked within a legal positivist philosophy that saw the state as a legal person and presupposed the authority of the state as a fact. Montesquieu had set himself the task of finding a new understanding of the concept of law. Expressed in constitutional language, authority is established only if the constitution is recognized as autonomous. Neo-Jacobinism has not gone unchallenged. But when the Revolution came the basics of the conceptual framework, and not just the elements of political right, were subjected to intense debate.
Following Saint-Simon, he contends that the true basis of public law constitutionnalisation not command: Constant maintained that all governments, whether despotic or liberal, have a repressive and coercive aspect: These two basic assumptions combine in a third, derivative, claim: This leads to the second concept: These emergency responses were quickly extended into a system of government which subsequently descended into a dictatorial regime of violence and fear known as the Terror.
Modern liberty, founded on individual subjective right, protected a zone of privacy, independence, and fissertation from the exercise of arbitrary power.
Faced with the imminent bankruptcy of the state, the king had convened a meeting of the Estates-General. This is acquired through a series of symbolic representations, such as the nation, the state, and the constitution. The political forms an autonomous domain only by generating certain common understandings, practices and norms.
Arab springs – Separation of power – Constitutionalisation – Parliament – Constitutional review – Democracy – Rule of law – Opposition rights – Parliamentary opposition – Majority – Minority – Filibustering. The essential criterion of being able to conceive itself as a state, he explained, is the establishment of absolute collective authority. In effect, right triumphed over law.
Although droit politique comes into its own in Enlightenment thinking, its basis had earlier been laid by the politique jurists . 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.
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. But the Revolution soon veered out of control.
The sovereign is the public person formed by the union of all i. Rousseau never claimed that political order rested on natural law: This is because the directing idea is not exterior but intrinsic. They had little to say about its darker side. But it is evident that his overall purpose is juridical: It was society as an integrated unity rather than the state as the source of political unity that léhat now come under scrutiny.
Although now split into various factions, many contemporary scholars who have revived Jacobin thought to offer novel reworkings of droit politique came under his influence.
Droit politique has been rejuvenated by political theorists working in a Marxist, or post-Marxist, tradition. Public law scholarship continued to be based on the concept of the state but, in accordance with positivist orthodoxy, the state was conceived to be a legal person and its authority simply a political fact.
Droit politiqueDuguit suggests, is merely a scholarly invention that confers legitimacy on the exercise of force. Was the Terror an inevitable stage in the transition from the old feudal order of servitude to a modern regime based on equal liberty?
The democratic impetus releases social power at the same time as it extends the nature, scale and range of governmental power. Political equality may be a symbolic ideal, but material inequality becomes visible only within its purview.
French pioneers of sociology saw the evolution of modernity as positive, material progress based on advancements in scientific knowledge. Each recognized that the rapid growth of governmental powers was having an impact on legal form, to which they responded with innovative accounts of the way modern legal order should be conceptualized. Only in the scientific era, he argued, can we, through observation and inductive reason, discover the laws that govern phenomena.
Power thus derives from its function as government, which is to promote social solidarity. La constitutionnalisation comporte une vocation performative: He makes this point in order to highlight another: Although its ripples were felt across Europe, its epicentre lay in France. Their work demonstrates that although droit politique no longer provides the organizational framework within which French public lawyers work, the concept remains an active force in French public life.