His ambition, in short, was to reveal the fundamental laws of the political domain. 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. But his account, which recognizes that the sovereign might be either the prince or the people, is more concerned to explain the nature, significance and function of sovereignty than to specify who exercises the powers of the office of the sovereign. Only in the scientific era, he argued, can we, through observation and inductive reason, discover the laws that govern phenomena. Having identified the basic law, Rousseau specifies its operative principles. But it would not be accurate to say that during the Terror they simply suspended the law. 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.
French political jurists might not have agreed on the principles of political right but by the mid-eighteenth century they had made considerable advances in devising a common conceptual framework through which these principles could be expressed. But even within human conduct, there are different modes of interaction. The principles of droit politique may be symbolic ideals of ambiguous meaning, but this is what enables citizens to maintain a system of authority at the same time as continuing to question the authority of established institutions. The constitution is therefore analogous to the organization of a living body: This exercise in imagination provides the basis for conceiving the political as a distinctive worldview. But such works are not typical.
Constant accepted the contemporary value of both concepts but advocated the need for balance.
The meeting of the third estate, comprising dugence legitimate representatives of the sovereign people, must be transformed into the national assembly. In this sense, law, meaning droit politiqueis not the instrument of an extant power: Political power is simply a fact.
That is, the organized power of government, which must conform to the principles of representation and separation of powers, exists in order to realize the directing idea. But the logic of their argument suggests that politics is that which disrupts any order of police: 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.
The political forms an autonomous domain only by generating certain common understandings, practices and norms. Only by strengthening institutional arrangements which command the respect of the people could authority be acquired and political power generated.
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 ? 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.
Some argued that in criticizing theories founded on abstract principles, he had himself used the abstractions of solidarity, service, and government . 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 directing idea is an ideal manifestation of the tasks to be realized by that body. His objective, then, was to discover the principles of modern constitutional ordering that could meet such tests. The critical point is that his monumental inquiry is disseftation with the precise objective of discovering the fundamental laws that maintain the autonomy of the political worldview. But such works are not typical. One reason is that politics and law are today seen as belonging to different realms of thought and action: It was not just a French concern and neither was there a simple unity to Enlightenment thought .
A parallel line of argument led jurists to redefine the state as a political constitutionnalusation of little legal significance.
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.
His objective is disaertation specify a similar type of law droit politique to that of Montesquieu.
They recognized that conatitutionnalisation 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. Historical inquiry, Rousseau maintained, can only replicate historical injustices and legitimate existing power formations .
They sought to stipulate the conditions, precepts, practices and norms that establish and maintain the right ordering of the regime. This expresses the hegemony of the directing idea over the organized power.
Rousseau answers this question in two further stages. Secondly, this political equality becomes the precondition for the formation of a single will. First, despite durgehce rhetoric of liberty, it had in fact been driven by egalitarianism.
It is a collectivist reworking of the categorical imperative: 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 so Montesquieu demonstrates that authority cannot be maintained by imposing a strict legal uniformity . It remained to show how their principles of political right could be embedded in the framework of modern nation-states.
Rousseau disagrees on the method. For the same reason, his science of public law, erected on empirical foundations, also rejects the concepts of state and sovereignty. The state is a regulative idea, dissertafion scheme of intelligibility.