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. These dramatic claims initiated what became a political and legal revolution. Power thus derives from its function as government, which is to promote social solidarity. 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]. This notion of the general will expresses the will of the sovereign. The Jacobins used the concept of natural right to bolster the legitimacy of the laws underpinning the Terror.

It was not just a French concern [1] , and neither was there a simple unity to Enlightenment thought [2]. In so doing, the disorder and uncertainties of the Revolution would be resolved. So, what impact did this positivist, scientific turn have on the concept of droit politique? Nothing has corrupted a state more than the attempt by the sovereign, whether prince or people, to assume the authority of a Senate, the command of magistrates, or to remove the processes of justice from their ordinary course. But although it is still expressed in the jural form of droit politique , it is philosophers rather than lawyers who now use this conceptual language, and in certain respects this is regrettable. 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]. This is acquired through a series of symbolic representations, such as the nation, the state, and the constitution.

This somewhat paradoxical declaration provides the foundation of the concept of droit politique.

The French philosophical style has distinctive traits: The objective element, he contends, does not subsist in a juridical rule, but in the institution with its directing idea and organized power. Society, Hauriou asserted, is not founded on violence but on power, a power that builds its authority through gradual social acceptance over time. So, what impact did this positivist, scientific turn have on the concept of droit politique?


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.

dissertation la constitutionnalisation de létat durgence

rurgence But the Revolution soon veered out of control. He explains that since sovereignty expresses the general will its exercise cannot be transferred, represented or divided.

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.

Droit politique

This is because the directing idea is not exterior but intrinsic. Liberty for Rousseau is not the mere absence of constraint: 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 []. Challenging the authority of traditional ordering, Enlightenment scholars had to devise new legitimating principles for modern societies.

This is not the same as its function: These two basic assumptions combine in a third, derivative, claim: It is to build the power and authority of government by enhancing its capacity for collective action. The nation exists prior to the constitution, and its government serves only at the pleasure of the national will. A study of positive law is important, but it should not be confused with a deeper inquiry: Was a phase of violent dictatorship necessary in order to make a new people receptive to the precepts of true liberty?

But it is evident that his overall purpose is juridical: 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. The solution, some argued, must be to start from a different premise and anchor political ideas in experiential reality.



Its function is to ensure that society and government operate in harmony []. The philosophers of the Enlightenment maintained that reason and experience were the sole sources of authority.

dissertation la constitutionnalisation de létat durgence

In this sense, law, meaning droit politiqueis not the instrument of an extant power: They had little to say about its darker side. Saint-Just questioned whether France even needed a formal constitution. 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.

Rather than conceiving law the command of the sovereign as imposing a restriction on freedom, it is an expression of freedom. Power thus derives from its function as government, which is to promote social solidarity.

Constant welcomed the Revolution as marking the end of the old feudal order [80]but criticized the manner of its unfolding. Following Saint-Simon, he contends that the true basis of public law is not command: Innovators such as Saint-Simon, Comte and Durkheim situated themselves in a Cartesian tradition of thought defined as: Political power is simply a fact.

The Jacobin error stemmed from their adherence to an ancient léhat of liberty in an emerging modern world founded on equality and the abhorrence of slavery. Whereas the constitutionnal texts emphatically recognize the competences of the parliamentary opposition in Morocco and Tunisia, the place set aside for this opposition during the constitutional process gives grounds for doubting the sincerity of such a consecration.