Réflexions politiques (French Edition)

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This was generated by the need for a political division of labour in an advanced modern state, in contrast with the constitutions of the ancient republics Rousseau extolled [55]. A representative body must take the place of an assembly of the entire nation and be charged with making a constitution.

But the Revolution soon veered out of control.

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This was a bourgeois constitution whose general purpose was to put distance between the legislature and the sovereign people, not least by dividing between an active and passive citizenry [58]. Their recognition of the importance of political culture as a set of symbolic practices throws into relief the juristic implications of the revolutionary debates. To these aspects, and especially to the failure of the Revolution to establish a stable constitutional form, I now turn. 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.

As the Revolution unfolded it became the theatre for many of the unresolved issues over the principles of political right. Was Burke then right in predicting that the attempt to establish a political regime on a set of abstract principles divorced from social and political realities could lead only to violence and dictatorship [65]? Was the Terror an inevitable stage in the transition from the old feudal order of servitude to a modern regime based on equal liberty?

Was a phase of violent dictatorship necessary in order to make a new people receptive to the precepts of true liberty? These questions, which continue to provoke intense controversy, set the context within which the juristic foundation of the Jacobin dictatorship must be assessed. The emergency had permitted the Jacobins to retain power without having gained popular support [66].

But it would not be accurate to say that during the Terror they simply suspended the law. Their objective was to supplant principles of political right. Saint-Just questioned whether France even needed a formal constitution. No further documentary authority was required. Ruling authority was legitimated by its adherence to the principles of liberty and equality inscribed in natural right. Nature and not the general will was the originating source of legal and political authority.

In these respects, the Jacobins were hardly faithful followers of Rousseau. Rousseau never claimed that political order rested on natural law: he invoked the social contract, the basic political pact, as a device to transform a world of natural inequality into a civil order of political equality. 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].

The Jacobins, in short, were sceptical about the value of assertions of popular sovereignty. They had discovered the foundation of law: it was neither in the general will nor in a common will, but in the precepts of natural right. Constitutional law decreed that the king was inviolable, but this provision was set aside in favour of a discourse of natural right. The Jacobins maintained that since the king had presided over a regime that had destroyed order and put France back into a state of nature, he could be tried as a criminal against humanity [74].

Droit politique

The Terror became a state of affairs in which the exception was normalized [75]. The Jacobins used the concept of natural right to bolster the legitimacy of the laws underpinning the Terror. In effect, right triumphed over law. Laws were replaced by a cult and an abstract concept of natural right provided the cloak for violent repression. Their key task was to provide the Republic with a stable constitution. Previous attempts had failed and their main proponents, most notably Condorcet, had perished [78].

The question remained: how could the supreme principle of popular sovereignty be reconciled with the protection of basic rights? 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. He produced the most innovative work on droit politique of the period. Constant welcomed the Revolution as marking the end of the old feudal order [80] , but criticized the manner of its unfolding.

It could lead the people only to slavishness or to insurrection, both of which subverted political authority. And a primary source of this evil had been the revolutionary devotion to a purely abstract conception of right. Constant was a liberal by conviction but, more precisely, he was a political jurist [83]. 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.

If the birth of states is traced to their origins, this warlike characteristic — the criterion of friend-enemy — offered a perfectly serviceable account of their formation. Constant maintained that all governments, whether despotic or liberal, have a repressive and coercive aspect: without such a monopoly on the use of force, governments cannot build their authority to ensure that citizens obey and order is maintained.

The critical distinction between liberal and despotic government is not the absence or presence of coercion: it is the existence of institutional arrangements that accord with the customs of a people. Only by strengthening institutional arrangements which command the respect of the people could authority be acquired and political power generated. Constant, like Bodin and Montesquieu, advocated institution-building as the key principle of political right [89].

His Principes de politique , founding the political on the concepts of state and sovereignty, provides an authoritative statement of droit politique for the modern world. From Rousseau, he derives the principle that a regime acquires its legitimacy from popular sovereignty: monarchical regimes could be established by popular will, but they are commonly the product of force rather than right [91].

From Montesquieu, he derives the principle that the ruling power acquires its authority not only from its legitimating source as an expression of popular will, but also from the manner in which power is exercised [92]. Modern governments must not only claim a democratic mandate but must also act through accepted constitutional forms. They had failed in particular to appreciate the importance of maintaining a clear distinction between sovereignty and government, which Rousseau had adopted from Bodin.

Instead, they instituted a regime of political liberty suffused with allusions to the republican virtues of ancient Greece and Rome which even Rousseau had recognized was inappropriate for modern nation states.

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Modern liberty, founded on individual subjective right, protected a zone of privacy, independence, and protection from the exercise of arbitrary power. It was a concept unknown to the ancient world. The ancient idea of liberty, by contrast, expressed collective independence from rule by foreigners and required the active participation of citizens in collective self-government.

This could only be achieved in small, culturally homogeneous city-states that promoted a politics of virtue founded on a martial spirit [95]. Constant accepted the contemporary value of both concepts but advocated the need for balance. The prevalence of the modern conception, he suggested, was just as distortive as the dominance of the ancient, since the atrophy of the political could be as dangerous as a total politicization of society.

The Jacobin error stemmed from their adherence to an ancient idea of liberty in an emerging modern world founded on equality and the abhorrence of slavery. Liberty in the modern world of the political had to recognize the distinctions between public and private, political and social, participation and independence. Political liberty presupposes civil liberty; modern constitutional ordering involves a complicated interlocking arrangement in which these two distinct forms of freedom reinforce one another.


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. Authority could be enhanced only by establishing institutional arrangements which acquire the same degree of permanence and independence as kingship. His objective, then, was to discover the principles of modern constitutional ordering that could meet such tests. The modern political world founds itself on the division between public and private. Differentiation between state and society is created by the emergence of a distinct sphere of civil society.

But this does not diminish the domain of the political; rather, the autonomy of the political and the autonomy of the social form a collective self-division that is a distinctive feature of modernity.

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The domain of the political, underpinned by an absolute concept of sovereignty, remains but sovereignty now expresses the autonomy of the political. Modernity leads to a growth in both social and political power, with each drawing on the other in a reflexive process. The democratic impetus releases social power at the same time as it extends the nature, scale and range of governmental power.

But this is a constitution arranged not on the principle of command and obedience but on that of organization. In order to maintain its authority and legitimacy, modern governments must fulfil the crucial function of representing society. Their primary goal was not the promotion of virtue but the maintenance of peace and for this an impartial rule structure — a constitutional arrangement of considerable institutional complexity — is required [98].

This is not to limit the power of government, as classical liberals demand. It is to build the power and authority of government by enhancing its capacity for collective action.

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Constant here touches on the central issue of how a constitution establishes its authority. He recognizes that the political power generated through a constitution contains an element that is not derived from delegation and mandate. Expressed in constitutional language, authority is established only if the constitution is recognized as autonomous. And for this an authority independent of both the people and the executive is needed []. Its function is to ensure that society and government operate in harmony []. Constitutions are more than mere declarations of principles.

In order to establish their authority, they must be in accordance with the social mores of their subjects []. The philosophers of the Enlightenment maintained that reason and experience were the sole sources of authority. Relying heavily on the power of reason, their revolutionary disciples had destroyed the old political order without successfully fashioning a new one.

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The solution, some argued, must be to start from a different premise and anchor political ideas in experiential reality. Most prominent was Henri, Comte de Saint-Simon, who contended that the reason the Revolution had failed was that it had been directed by lawyers and their abstract theories. Instead of metaphysical doctrines, which led to the Terror and an unworkable form of government, modern political leaders must be guided by scientific principles.

Political authority is acquired, he suggested, not through abstract reasoning founded on metaphysical beliefs but according to the material benefits government confers. Authority is generated through the supply of collective goods — defence, law and order, and physical and social infrastructure — that enhance the security, wellbeing and happiness of subjects.

During the nineteenth century, the growth in technical knowledge about the functions of government brought about a shift in its sources of legitimacy. This shift was driven by pioneering scholars of the nascent social sciences. They drew on the work of the philosophes , especially Montesquieu and Condorcet, in their attempts to trace the trajectory of human progress, but were critical of their methods. Science, not metaphysics, was needed. A functional orientation had not been altogether absent from revolutionary discourse. 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.

Command will be replaced by co-ordination. Comte argued that human knowledge passes sequentially through three developmental stages: the theological or fictional , the metaphysical or abstract , and the scientific or positive. Only in the scientific era, he argued, can we, through observation and inductive reason, discover the laws that govern phenomena.

In so doing, the disorder and uncertainties of the Revolution would be resolved. The abstractions of metaphysics, Comte was suggesting, must be replaced by the science of social physics, when the government of men could be replaced by the administration of things.

It was society as an integrated unity rather than the state as the source of political unity that should now come under scrutiny. So, what impact did this positivist, scientific turn have on the concept of droit politique? The processes of nineteenth century industrialization and urbanization had eroded traditional means of social cohesion including religion and opened up deep divisions in society. To address them, governmental action on an unprecedented scale was needed.

These developments raised profound questions about the state, political unity, and the relationship between legality and legitimacy, issues which underpinned the most contentious jurisprudential issues of the Third Republic. The orthodox response from both the profession and the academy to the growing influence of positivist ideas was to confine their discipline to the study of positive law.

Configure custom resolver. Levine - - Theoria 53 Torkel Brekke - - Journal of Military Ethics 3 1 The Media and Political Violence. Virginia Held - - The Journal of Ethics 1 2 Reginald Bretnor - - Borgo Press. The Paradox of Terrorism in Civil War. Stathis N. Kalyvas - - The Journal of Ethics 8 1 Violence: Six Sideways Reflections. Ronald E. Santoni - - Sartre Studies International 11 s Eleanore Holveck - - Hypatia 14 4 :3 - Bleienstein , du commentaire de Nicole Oresme sur la Politique A.

Jackson , du Songe du vergier M. Solente, Ch. Willard, R. Lucas, A. Kennedy et J. Ornato et G. Sources et citations ne disent pas tout. Il ne convient pas pour autant de nourrir trop d'illusions. Pour l'heure, de plus modestes perspectives restent ouvertes. II - Quelques orientations. Le champ est immmense.

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