La conception du droit naturel dans la pensée et la pratique des juristes français et italiens (XVIe-XVIIIe siècles)

This paper addresses a crucial issue in the institutional history of early modern law. It looks into the relationship which existed between the doctrine of natural law and the patriarchal mediation of the politically oriented legal apparatus (all the major courts and firstly the Parlements of the kingdom of France). The study holds that legal ideology is the basis of conceptions of natural law and not vice versa. At the early stage of its “launch” the doctrine of natural law served mainly constitutional purposes, i.e. to set boundaries to the insurmountable power of the sovereign, that being "Most Christian King" (in France) or "Catholic King" (in Spain) could not deviate from the behaviour dictated by the rules of religious faith. The contents of the law of nature could not obviously be cleared but by means of interpretation and the lawyers felt the only exegetes allowed, since the possession of Scientia Juris placed them in a condition of exclusivity as well as of absolute legitimacy in the work of Juris (i.e. Veritatis) dictio. The lawyers considered themselves the owners of the true “Lights of the Reason.” They held that their jurisprudential exegesis was the sole basis of “common sense.” Thus, based on a corpus of sacred texts, exegetical activity of the lawyer authorized by its institutional role as a magistrate became the pivot of the whole political life of the state, being immense, indeed almost limitless was his libertas interpretandi et judicandi. The focal point of the jurisdiction being the libera existimatio, the free judgement of texts and facts by the judex became, between the Middle Ages and the early modern age, a real generator of political and social values, produced and controlled by the legal exegesis monopolized by the judges. This scheme, among other deep effects, effectively influenced the process of creation of the laws, which if formally and publicly they were expression of the will of the King, in practice they were instead the result of multiple negotiations and inspections by the courts, which guarded the respect of every new rule with the consolidated "legal deposit", i.e. the entire corpus of the ordo juris. Of this very broad heritage of laws, the most varied and diverse (so as to revive in the language of lawyers the famous aphorism of Azo “Omnia in corpore juris inveniuntur”), the judiciary felt and were (through the material possession of the archives parlementaires) the only owners and jealous guardians. That judgment – which can be considered a forerunner of the contemporary judgment of constitutionality – was based on the comparison of the new law (positive law, because established ad libitum by the king) with the natural-divine right. Being the meaning of the latter the exclusive prerogative of the supreme courts of justice, the judges then spoke of a “natural-divine-parliamentary law”, which thus became, in their view of things, the foundation of the public law of the kingdom and the pivotal structure of the constitutionalism and of what Montesquieu shall define the ‘balance des pouvoirs.’ Finally it can be concluded that the defense of natural law carried by the lawyers for several centuries between the Middle Ages and early modern age actually hid in their political intentions the aim of establishing the model of jurisdictional constitutionalism. It was the understanding of this mysterious dimension of the power of the lawyer-exegets and the necessity of overcoming it to create, between the seventeenth and eighteenth centuries, a new theoretical category that for opposition to the logic of natural law was called "jusnaturalism". The last part of the essay explores the genesis and the development of this new and important trend, fraught with consequences also on the genesis of codification.