Constitutionnalisme et idéologie de robe. L'évolution de la théorie juridico-politique de Murard et Le Paige à Chanlaire et Mably

摘要

Constitutionalism and Robe Ideology: The Evolution of the Juridical and Political Theory from Murard and Le Paige to Chanlaire and Mably. F. Di Donato. This article proposes a structural analysis of the foundations of legal ideology under the Ancien Régime and gives particular emphasis to its final critical period. It considers how "patriarchal mediation" was revived through the jurist's affirmation of the indispensable role of the magistracy as the very buttress of the Absolutist State's institutional structure. Faced with the subversive influence of the Enlightenment, the judicial body's response can be found in the attempt to oppose a credible legal discourse (capable of being put into effect politically) to the abstract discourse characteristic of modern thinkers. The essential elements of the parliamentary magistrate's program are summed up in an epistolary exchange between L.-A. Le Paige and A.-F. de Murard. The most significant passages of the unpublished correspondance are used in the article to show that the respublica perfecta of the jurists was one directed by a government founded on the symbolic and formal supremacy of the monarchy and the real sovereignty of the courts. This explains the paradoxical thought of the jurists who had never abandoned the absolutist cause, but rather defended it with an attitude which was even more royalist than the king's. The basis of this "juridical constitutionalism" was the arcana juris. This ideology was not opposed to the theory of absolutism, but simply to its pratical implementation. The person who best exemplifies the crisis of this legal and political theory was C.-L. Chanlaire, an obscure Parisian lawyer whose ideas can be distinguished quite easily from Le Paige's program. He considered the underground power of the judges as the principal cause of judicial confusion and of the general uncertainty of law. Mably would carry the conflict to its logical and radical conclusion several years later.