Dominique Schnapper - The Democratic Spirit of Law

Originally published in French by Editions Gallimard, C, Gallimard, Paris, 2014.

Published 2016 by Transaction Publishers

Published 2017 by Routledge
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Copyright 2016 by Taylor & Francis

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Library of Congress Catalog Number: 2015015694

Library of Congress Cataloging-in-Publication Data

Schnapper, Dominique, author.
[Esprit dimocratique des lois. English]
The democratic spirit of law / Dominique Schnapper.
pages cm
Includes bibliographical references and index. ISBN 978-1-4128-6252-3 (acid-free paper)
1. Democracy. 2. Democracy--France. 3. Civil society. 4. Civil society--France. 5. Law--Political aspects. 6. Law--Political aspects--France.
I. Title.
JC423.S33613 2016 340.115--dc23

2015015694

ISBN 13: 978-1-4128-6252-3 (hbk)

ISBN: 9781351483872 (ebk)

This text was translated by Bernice Dubois, and revised by Paul Seaton, Marion Kozak Miliband, and the author.

Every democracy conceives of democracy differently. Americans think of it almost exclusively as a system of government ensuring basic equal rights to individuals; its opposite, they may say, is tyranny. Germans speak of democracy in psychological terms, as a relatively new way of thinking opposed to fascism, nationalism, and militarism. The contemporary French, I would say, have the most capacious understanding of democracy, which incorporates both of these outlooks. From Mon-tesquieu they take the idea that all societies embody comprehensive forms of life held together by a web of principles, institutions, mores, and psychological assumptions. To this they then add the historical assumption that modern democracy is a novel form of life born out of a radical break with a world governed by absolute monarchy and religious authority. The grand debate between the French Right and Left in the nineteenth century was essentially over whether the Revolution that inaugurated the democratic age was a messianic blessing or an apocalyptic curse.

On the sidelines for much of this period was a liberal tradition of thought that accepted the Revolutionary legacy as a given but remained clearheaded about the challenges and paradoxes of the democratic age. Tocqueville did much to shape this tradition, but so did the fathers of French sociology like August Comte and Emile Durkheim, who focused on the presumed effects of secularization and the desacralization of political authority caused by the Revolution. This is a somewhat parochial assumption. The development of democracy in Britain and the Netherlands was gradual and less anti-religious than in France; and the United States had no experience with an ancien rgime. Still, parochialism can bring with it certain intellectual advantages. In the case of French liberals, it has kept their attention fixed on subtle social transformations that would otherwise escape attention, and helps them investigate impartiallyor at least more impartially than in the United States, where melodrama and moralism so often cloud the mind.

The renowned French sociologist Dominique Schnapper is heir to this liberal tradition of thinking. The portrait she sketches of our societies in The Democratic Spirit of Law is remarkable in its subtlety and sangfroid, and for this reason alone deserves a wide American readership. She keeps her hat on. Her analysis departs from a simple but powerful observation of Montesquieus: that once the principles and virtues that characterize a political regime are corrupted, seemingly good laws can begin to undermine society. By principles and virtues, Montesquieu did not mean moral laws; he meant the kind of habits and psychological assumptions that silently keep a political society functioning. And his assumption was that the principle undergirding democratic society is public spiritedness, a love of the laws and the homeland. When that is lost, democracy cannot long survive. This assumption might be questioned. Benjamin Constant was convinced that modern liberty focusing on individuals was different from ancient liberty focusing on commonwealths, and that nostalgia for the latter was out of place and counter-productive. Dominique Schnapper sides with Montesquieu, and in the pages that follow the reader can judge how much light their shared assumption sheds on our contemporary predicaments.

Much of her argument depends on a distinction she makes, somewhat similar to Constants, between democratic autonomy and democratic independence. The first, to her mind, pertains to individuals as citizens, both authors and subjects of laws with reciprocal rights and duties; the second pertains to individuals who think of themselves as unique monads struggling to be free from externally imposed authority. Schnapper brings this distinction to life sociologically by showing convincingly how the shift from autonomy to independence in our time is adversely affecting different realms of social life: the couple, the family, the planning and raising of children, education, medicine, religion, governance, and more. (Apart from her academic work, Schnapper also spent ten years on Frances Constitutional Counsel, which delivers judgments on whether proposed and existing laws are congruent with the constitution. Her talent for linking principles to cases is put on excellent display here, and gives the book a grounding in empirical reality rare in contemporary French books on the crisis of democracy.) Particularly illuminating and original is her discussion of times discordance. On one hand, she notes, we all want to live longer, and advances in medicine and technology are making that possible. But as independent democratic individuals, we are mainly concerned with our own happiness now, not that of future generations. So although our time horizon as individual beings has expanded, our sense of responsibility toward future generations has not, which helps to explain our unwillingness to make sacrifices to preserve and protect the environment for those who come after us. This is just one of the insights that will give readers pause to reconsider how we live now.

Twice in the book Dominique Schnapper quotes Raymond Arons remark that democracies can be corrupted either by the exaggeration or the negation of their principles. We Americans rightly pride ourselves on our vigilance when the basic principles of democracy are being threatened. But it never occurs to us that we might also exaggerate those principles and extend them into domains where they dont belong and where they can cause damage. And also sap our commitment to public life. In light of Dominique Schnappers analysis, it no longer seems surprising that the extension of freedom and choice in our private lives, which seems a left-liberal project, has coincided with the growing unwillingness of Americans to fund the welfare state or to make investments benefitting future generations.