Halpérin - Five legal revolutions since the 17th Century : an analysis of a global legal history

Springer International Publishing Switzerland 2014

Jean-Louis Halprin 1

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The concept of modern State is generally used by historians to avoid anachronism and to make a sharp distinction between the ancient polities (some of them as powerful as the Roman Empire at its zenith, but supposedly based on the old conception of the city and lacking some characteristics of the impersonal state order) and our western (but nowadays extended to all continents) conception of State, a moral person separated from the physical person of the sovereign, a Leviathan involving the gathering of all the subjects, an apparatus concentrating public powers and monopolizing the legitimized violence upon a territory and its inhabitants.

Such a cautious attitude, when we are tempted to use the word State for remote periods of the history, brings advantages and drawbacks at the same time. If we consider Roman civilization, which is indubitably associated with the construction of a legal science and what seems prima facie a legal system (perhaps the first one in the Western world!), it can be argued that the expression res publica , used by Latin writers and lawyers for a long period, does not correspond to our conception of State, inasmuch as the Romans did not conceive the res publica as a moral person, but (in a explicit way) as a thing or a community identified with the city ( civitas ), its people ( populus Romanus ) and its organs (the Senate, then increasingly the emperor with the risk of confusing, notably inside the imperial treasury, both the private and the public domains. In particular, there was never, in Rome, a constitutional law deemed superior to the ordinary laws emanating from the assemblies (during the republican era) or from the emperor.

But, on the other hand, we cannot ignore that Roman lawyers distinguished between private and public law and that Ulpian, the great jurist of the third century A. D., defined the jus publicum as quod ad statum rei Romanae spectat (Digest, 1, 1, 1, 2), a sentence where a status (the Latin word which, many centuries later, gave birth to stato in the language of Machiavelli and to the word State in all European languages) of the res Romana (the term res publica was less adapted at this time of the Roman Empire and at the zenith of the imperial power) is clearly envisaged. If one adds that, at this same period of the Severan dynasty, a larger bureaucracy of hierarchical offices (many of them held by the members of the equestrian order with the organization of a career) developed a centralized control of the law creating process combining legislation and jurisdiction, notably with the use of rescripts (answers from the imperial chancery about questions of law implying a method to subsume a concrete case to an abstract rule and provoking the beginnings of reflection on the hypothesis of rescripts inconsistent with the law?

If we accept the existence of a Roman State or of medieval States, the question remains when and in what ways the so-called modern State appeared in the Western world. There is no doubt that this modern State was not simply the product of the revolutionary movements beginning (in America and in France) at the end of the eighteenth century: the transfer of sovereignty (from the British crown to the United States of America or from the French king to the French nation) indicates that modern States already existed in the Old Regime and before the outcomes of Enlightenment. The medieval roots of State power (as opposed to feudal institutions, with the phenomenon of the revival of legislative acts, largely influenced by the rebirth of Roman Law , then the parallel development of military duties and taxation during the Hundred Years War between England and France), as well as its significant development during the sixteenth century (with the political consequences of the Reformation, the development in France and Spain of standing armies and of tax pressure accompanied by the theoretical reflection upon sovereignty and the emblematic work of Jean Bodin in 1576.

It is easy to feel exhausted and rather disappointed by this interminable search for the birth act (and birth place) of the modern State through objective (but questionable and often fuzzy) criteria. Michel Foucault, in his 19781979 course about biopolitics, believed that it was a futile pursuit to look for the essence of the State and its apparition in a precise historical time. According Foucault, the State has no essence and is not universal: it is neither an object that is always already there, nor the source of an autonomous power. The political discourse about sovereignty, in the tradition inaugurated by Jean Bodin, has given the false impression that the State, once created as an impersonal apparatus, was a living force at the origins of all laws and decisions in the subjected territory. On the contrary historians only know facts, notably acts and discourses directed by the rulers towards the ruled. These facts can be organized through processes, which are the true creators of the State: in a way, laws form states rather than states produce laws. Foucault thus proposed to study the State as the mobile effect of a regime of multiple governments (with the use of the neologism gouvernementalit for these different forms of governmental techniques). Foucault has obliged us to be more cautious not only towards the employment of vocabulary (historians have not waited for the philosopher to propose different words for the diverse stages of development of the State) but also towards the idea of this on-going process of statization. He has attacked our certainties about State as a monolithic institution, which could reach a point of equilibrium in some historical situations, and he asked whether the State would not be a transactional reality ever changing, called into question and renewed. This critical attitude can also be interpreted as a salutary warning for legal historians who are prone to anticipate the development of modern state structures (seen as a progress and a linear process) and to believe in the direct effects of political discourses (notably the absolutist ideology).

The historical approach of the process of statization, focused on the political transformations of the powers (and the power techniques) of the rulers has of course always integrated the legal point of view, as much in works focusing on the relationship between State and society as in the specialized approach of legal historians. But, in both cases (and from both professions of society and legal historians), the enquiry has been related to state institutions, in other words amalgamated sets of power organs, office holders and political ideologies bestowing upon princes authority a real impact on the administration of justice, finance or of the military . With some exceptions, such as Alan Hardings assertion regarding medieval times?

A more attentive reading of Kelsen shows that it was, in fact, his intention to conflate the legal order of today with the modern State (as distinguished from primitive legal orders or pre-States and from the international legal order) and that he has not, by any means, excluded the evolution of concrete States through different stages. As he proposed to distinguish between centralized legal orders and decentralized legal orders (in fact not an absolute dichotomy, but a gradation scale, every concrete legal order being relatively centralized or decentralized), Kelsen conceded that modern States were preceded in history by pre-states or more primitive polities with a decentralized legal order.