The essay deals with the theme of the conflict between the judiciary and the political power in early modern France illustrating both the theoretical and doctrinal articulations and the impact on the political and institutional practices. It continues the research begun in the monograph La rinascita dello Stato and begins to further the ideas presented in the third and the sixth (and last) chapter of that previous contribution. The heuristic path proposes an unconventional reading of the conflict based on its interpretation as the effect of the clash between two conceptions of the institutional structure: on the one hand, the hidden and "feminine" power of the judiciary, on the other the divine-statual phallocracy embodied by the powerful image of the Leviathan. Starting from this main axis, the paper analyzes in detail the main tools used by the judiciary of the ancien regime to conduct its struggle against the political power represented by the so-called "absolute" King and his ministerial offices. In particular, the paper analyzes the complex process of registration (enregistrement) of the legislative acts and the structure of the hierarchy of laws and its actual functioning in what Denis Richet defined the "practice of the system." This depended largely on the mindsets of the protagonists of political life, which is why it is impossible to reconstruct these phenomena without understanding the social psychology of the active groups and individual political-institutional actors. The essay therefore explores the dominant ideological aspects in the ancien regime and focuses in particular on the Scientia Juris, understood by lawyers as a fragment and privileged vehicle of the Veritas and the divine Verbum. The lawyer perceived himself as the absolute custodian of the Verbum, therefore his patriarchal mediation was essential to reveal not only the quid juris but the Voluntas itself of the creator expressed through the royal will. The latter was valid only if externalized in the procedural forms of constitutional legality, the pivot of which was therefore the vérification made by the Parlement as supreme court justice of the kingdom. This is why the registration of laws was seen as the "loi des lois," the cornerstone of the entire constitutional system of the absolute monarchy. According to the vision of the robins, in spite of the appearances and propaganda disseminated by the Regalist doctrine, in the absolute monarchy the only absolute thing was the will of the Parlement. Therefore, when the political will (and strategy) of the king and his government tried to push further ahead of the querulous, but harmless verbal skirmishes against the judiciary (e.g. as it happened in the crisis caused by the “Maupeou reform” between 1771 and 1774), the lawyers felt authorized to use any remedy in order to safeguard the foundations of their power. Thus was born a porno-political literature on commission and inspiration of the robins in which the King and his courtiers were painted (literally, since the words were accompanied by satirical gravures) in the public eye as a bunch of thieves, corrupt, vicious, and ruthless. The purpose of the lawyers was to maintain that the constitution of the kingdom was of a judicial nature and that this legal-political power of the Parlement was a sword of Damocles hanging over the head of the sovereign. The judiciary could thus perform the miracle of draining towards itself (and against the ministerial court) the popular consensus, without being aware though that this would prove soon fatal to both powers, swept along by the wave of the Revolution. With the wind of the ‘89, the prophecy of Louis-Adrien Le Paige, the leading lawyer of the robe parlementaire, would be paradoxically fulfilled: since the 1750s he had warned that the monarchy and the judiciary were born together and together they would fall.

Le conflit entre magistrature et pouvoir politique dans la France moderne

DI DONATO, Francesco
2010

Abstract

The essay deals with the theme of the conflict between the judiciary and the political power in early modern France illustrating both the theoretical and doctrinal articulations and the impact on the political and institutional practices. It continues the research begun in the monograph La rinascita dello Stato and begins to further the ideas presented in the third and the sixth (and last) chapter of that previous contribution. The heuristic path proposes an unconventional reading of the conflict based on its interpretation as the effect of the clash between two conceptions of the institutional structure: on the one hand, the hidden and "feminine" power of the judiciary, on the other the divine-statual phallocracy embodied by the powerful image of the Leviathan. Starting from this main axis, the paper analyzes in detail the main tools used by the judiciary of the ancien regime to conduct its struggle against the political power represented by the so-called "absolute" King and his ministerial offices. In particular, the paper analyzes the complex process of registration (enregistrement) of the legislative acts and the structure of the hierarchy of laws and its actual functioning in what Denis Richet defined the "practice of the system." This depended largely on the mindsets of the protagonists of political life, which is why it is impossible to reconstruct these phenomena without understanding the social psychology of the active groups and individual political-institutional actors. The essay therefore explores the dominant ideological aspects in the ancien regime and focuses in particular on the Scientia Juris, understood by lawyers as a fragment and privileged vehicle of the Veritas and the divine Verbum. The lawyer perceived himself as the absolute custodian of the Verbum, therefore his patriarchal mediation was essential to reveal not only the quid juris but the Voluntas itself of the creator expressed through the royal will. The latter was valid only if externalized in the procedural forms of constitutional legality, the pivot of which was therefore the vérification made by the Parlement as supreme court justice of the kingdom. This is why the registration of laws was seen as the "loi des lois," the cornerstone of the entire constitutional system of the absolute monarchy. According to the vision of the robins, in spite of the appearances and propaganda disseminated by the Regalist doctrine, in the absolute monarchy the only absolute thing was the will of the Parlement. Therefore, when the political will (and strategy) of the king and his government tried to push further ahead of the querulous, but harmless verbal skirmishes against the judiciary (e.g. as it happened in the crisis caused by the “Maupeou reform” between 1771 and 1774), the lawyers felt authorized to use any remedy in order to safeguard the foundations of their power. Thus was born a porno-political literature on commission and inspiration of the robins in which the King and his courtiers were painted (literally, since the words were accompanied by satirical gravures) in the public eye as a bunch of thieves, corrupt, vicious, and ruthless. The purpose of the lawyers was to maintain that the constitution of the kingdom was of a judicial nature and that this legal-political power of the Parlement was a sword of Damocles hanging over the head of the sovereign. The judiciary could thus perform the miracle of draining towards itself (and against the ministerial court) the popular consensus, without being aware though that this would prove soon fatal to both powers, swept along by the wave of the Revolution. With the wind of the ‘89, the prophecy of Louis-Adrien Le Paige, the leading lawyer of the robe parlementaire, would be paradoxically fulfilled: since the 1750s he had warned that the monarchy and the judiciary were born together and together they would fall.
978-972-556-551-3
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11367/25994
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