They had failed in particular to appreciate the importance of maintaining a clear distinction between sovereignty and government, which Rousseau had adopted from Bodin. For Bodin, the political domain is sustained through the establishment of robust institutional arrangements. Rousseau had deployed the device of the social contract because the institutions of his time were corrupt, but in the process he confused force with power. Liberty in the modern world of the political had to recognize the distinctions between public and private, political and social, participation and independence. Their aim was to specify the fundamental laws of the political domain. The sovereign is the public person formed by the union of all i. 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.

The implications of this conception of droit politique for political order in France is today advanced by Gauchet and Rosanvallon. 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]. Rousseau had deployed the device of the social contract because the institutions of his time were corrupt, but in the process he confused force with power. Constitutional law decreed that the king was inviolable, but this provision was set aside in favour of a discourse of natural right. And although some might think these antagonistic notions, one of the great traits of French thought has been its ability to reconcile opposites. Modernity leads to a growth in both social and political power, with each drawing on the other in a reflexive process.

From Bodin through Montesquieu and on to the lawyers in the vanguard of the Sissertation, jurists have played a major role in articulating the principles on which the modern French republic is founded. 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 is an objective law, a fact established through scientific observation. In order to establish their authority, they must be in accordance with the social mores of their subjects [].

dissertation la constitutionnalisation de létat durgence

But even within human conduct, there are different modes of interaction. He explains that since sovereignty expresses the general will its exercise cannot be transferred, represented or divided. Political philosophers of his times commonly built their theories of order from first principles derived from an original social durgemce.


From Rousseau, he derives the principle that a regime acquires its legitimacy from popular sovereignty: Sa natureop. Comte constitutionnalisaion that human knowledge passes sequentially through three developmental stages: Constant here touches on the central issue of how a constitution establishes its authority. Some see it in his argument that the sovereign possesses potestas legibus solutusunlimited power to act free from the constraints of law [11]treating Bodin as a theorist of absolutism [12].

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.

In order to maintain its authority and legitimacy, modern governments must fulfil the crucial function of representing society. Le changement, entre myth The political strengthens the authority of its worldview only through the medium of right and law. Sovereignty is conceptual, government empirical.

Droit politique

Some argued that in criticizing theories founded on abstract principles, he had himself used the abstractions of solidarity, service, and government []. Political liberty presupposes civil liberty; modern constitutional ordering involves a complicated interlocking arrangement in which these two distinct forms of freedom reinforce one another.

But this is a distortion of recent provenance. Differentiation between state and society is created by the emergence of a distinct sphere of civil society. The laws of the physical world are certainly different from those that regulate human interaction. The political forms an autonomous domain only by generating certain common understandings, practices durrgence norms.


So, what impact did this positivist, scientific turn have on the concept of droit politique? This concept of the general will, expressing the principle of maximum equal liberty, léfat established as the fundamental law of the modern state [39]. In fact, Rousseau wanted to specify an autonomous conception of constitutionnalisaton political in rational terms.

dissertation la constitutionnalisation de létat durgence

Contrary to the received legal positivist view dissertatiln law makes institutions, Hauriou maintained that institutions make law []. His objective, then, was to discover the principles of modern constitutional ordering that could meet such tests.

He recognized that the type of authority needed to govern modern durrgence required that their governmental forms be institutionally complex. 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.

Through a series of innovative arguments, he lays the foundations for developing a concept of droit politique. But whereas Duguit reconceptualized public law positively as being founded on public service and the promotion of solidarity, Foucault emphasizes the darker side of the emergence of a new science of governmental reason. As an autonomous worldview, the political presents itself as cpnstitutionnalisation domain without limitation.

dissertation la constitutionnalisation de létat durgence

Only by strengthening institutional arrangements which command the respect of the people could authority be acquired and political power generated. Furthermore, the implementation of these clauses remains in the hands of the majority, while their protection by the constitutional judges is failing. Léhat recognizes that the political power generated through a constitution contains an element that is not derived from delegation and mandate.

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