Constant welcomed the Revolution as marking the end of the old feudal order [80] , but criticized the manner of its unfolding. El Mossadeq Rkia, Consensus ou jeu de consensus? But how can this public person of the state be said to have a single will? 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. During the nineteenth century, the growth in technical knowledge about the functions of government brought about a shift in its sources of legitimacy.

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. They had discovered the foundation of law: 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. This notion of the general will expresses the will of the sovereign. On the basis of his historical inquiries, he was able to claim that, contrary to Hobbes, the state of nature does not amount to a state of war. But this is a constitution arranged not on the principle of command and obedience but on that of organization. Was the Terror an inevitable stage in the transition from the old feudal order of servitude to a modern regime based on equal liberty?


Rousseau answers this question in two further stages. The paper considers the pioneering contributions of Bodin, Montesquieu and Rousseau, examines the role the concept performed in revolutionary debates, and explains its subsequent development in the nineteenth and twentieth centuries. Constant here touches on the central issue of how a constitution establishes its authority.

dissertation la constitutionnalisation de létat durgence

For Bodin, the political domain is sustained through the establishment of robust institutional arrangements. Some argued that in criticizing theories founded on abstract principles, he had himself used the abstractions of solidarity, service, and government [].


dissertation la constitutionnalisation de létat durgence

The sovereign is the public person formed by the union of all i. As an autonomous worldview, the political presents itself cinstitutionnalisation a domain without limitation.

Droit politique

It confers no rights: Constitutions are more than mere declarations of principles. The laws of the physical world are certainly different from those that regulate human interaction. This could only be achieved in small, culturally homogeneous city-states that promoted a politics of virtue founded on a martial spirit [95].

dissertation la constitutionnalisation de létat durgence

Constituionnalisation is a collectivist reworking of the categorical imperative: This exercise in imagination provides the basis for conceiving the political as a distinctive worldview. Although droit politique comes into its own in Enlightenment thinking, its basis had earlier been laid by the politique jurists [9].

With this claim, Abensour makes a direct connection with Jacobinism. Droit politiquea concept founded on a system of subjective dossertation, is thus overthrown, to be replaced with a regime of objective law.

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.

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. These two basic assumptions combine in a third, derivative, claim: Relying heavily on the power of reason, their revolutionary disciples had destroyed the old political order without successfully fashioning a new one.

They had failed in particular to appreciate the importance of maintaining a clear distinction between sovereignty and government, which Rousseau had adopted from Bodin. Their declaration demanded that sovereign authority be transferred from the king to the nation.

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.


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

A representative body must take the place of an assembly of the entire nation and be charged with making a constitution. Their aim légat to specify the fundamental laws of the political domain.

Most prominent was Henri, Comte de Saint-Simon, who ,état that the reason the Revolution had failed was that it had been directed by lawyers and their abstract theories. His Principes de politiquefounding the political on the concepts of state and sovereignty, provides an authoritative statement of droit politique for the modern world. From these books, then, a constitutional thesis can be derived.

Their recognition of the importance of political culture as a set of symbolic ddissertation throws into relief the juristic implications of the revolutionary debates. They had discovered the foundation of law: The nation exists prior to the constitution, and its government serves only at the pleasure of the national will.

But the Revolution soon veered out of control. The doctrinaires — liberals such as Royer-Collard and Guizot who were highly influential in the first half of the nineteenth century — sought a resolution by incorporating the authority to express the constitutiobnalisation will entirely into the legislative power [].

Le changement, entre myth