The State and the Rule of Law:

The State and the Rule of Law:

Blandine Kriegel
Marc A. LePain
Jeffrey C. Cohen
With a Foreword by Donald R. Kelley
Copyright Date: 1995
Pages: 192
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  • Book Info
    The State and the Rule of Law:
    Book Description:

    Blandine Kriegel, at one time a collaborator with Michel Foucault, is one of France's foremost political theorists. This translation of her celebrated workL'Etat et les esclavesmakes available for English-speaking readers her impassioned defense of the state. Published in France in 1979 and republished in 1989, this work challenged not only the anti-statism of the 1960s but also generations of romanticism in politics that, in Kriegel's view, inadvertently threatened the cause of liberty by refusing to distinguish between the despotic and the lawful state.

    In a work that addresses the urgent concerns of Europe and the contemporary world as a whole, Kriegel examines the background of modern liberal democracy in the late seventeenth and eighteenth centuries and argues cogently for the future of constitutional social-democracy. She maintains, among other positions, that European liberal democracies would have been impossible without the political basis provided by the lawful state first developed by monarchies. She also shows that early modern centralized states became liberal insofar as they developed a centralized legal system, rather than a centralized administration. In developing these ideas, she presents a picture of the state as a major force for human liberty.

    eISBN: 978-1-4008-2176-1
    Subjects: Philosophy

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword
    (pp. vii-2)
    Donald R. Kelley

    A specter has been haunting European intellectuals in our century—the specter of “anti-statism.” All the forces of ideology—right, left, liberal, and uncommitted—have entered into an unholy alliance to protect this specter. This is the first message of Blandine Kriegel’sThe State and the Rule of Law, a book published first in 1979, then (still more opportunely) in 1989, and now in translation, at a time when cultural critics are still trying to find a way out of the ideological chaos left by the decline (if not disappearance) of the Left, new as well as old.

    In France...

  4. INTRODUCTION The Paradoxes of Anti-statism
    (pp. 3-8)

    These are hard times for the state. For those who have already reached their verdict, there is a single perpetrator of the troubles of our times, of the crimes and the camps. The guilty party is what Marxcalled the parasite that clogs all the pores of society, what Nietzsche dubbed the coldest of all cold monsters. The rumbling swells. It is said that the most extreme and rigid forms of power are the natural consequences of its ordinary and benign manifestations, that the socialism of concentration camps is an avatar of both Platonism and Nazism. Totalitarian society, we are told,...

  5. Part One: The State and the Rule of Law
    • CHAPTER I Problems for a History of the State
      (pp. 11-14)

      What is a state under the rule of law? A number of lawyers would respond without hesitation that it is a state in which there is a body of laws, in which there is a constitution. Such a definition, generous to the point of irresolution, is geared to the new type of state that historians usually call the nation-state, which emerged in Western Europe in the seventeenth and eighteenth centuries, notably in France, England, and Holland. There are two reasons for this terminological development.

      First, there was a desire to appropriate the early modern legal tradition, the source of the...

    • CHAPTER II Sovereign Power
      (pp. 15-32)

      The early modern doctrine of power can be summed up in a word: sovereignty. Amid the most strident of the civil wars against Henry III, Jean Bodin articulated the doctrine, “A commonwealth [or republic] may be defined as the rightly ordered government of a number of families, and of those things which are their common concern, by a sovereign power.”¹ A century later, it was restated dramatically by Charles Loyseau: “Sovereignty is the defining moment and culmination of power, the moment when the State must come into being.”² The concepts of legitimate power and of beneficent power are present in...

    • CHAPTER III Human Rights
      (pp. 33-50)

      Individual rights, or human rights as they are called today, are less recent acquisitions than we tend to think. Faced with Amnesty International’s battery of accusations in the form of numbered, itemized, quantified documents depicting the daily attacks on individual rights by states—entombment in dungeons without rhyme or reason, condemnations without trial, tortures conducted patiently and systematically—we are driven to attach ourselves to a Robinson Crusoe myth. According to this myth, there arose, at the beginning of the eighteenth century, a new island, this absolute beginning called the individualist doctrine of human rights. Pure, smooth, round, healthy, and...

    • CHAPTER IV Law and Morality
      (pp. 51-63)

      Often the indictment of the state is accompanied by an offensive against law itself. Critics remark on the imprint of the law on the arms of condemned prisoners headed for execution, as well as the proletariat en masse. Hatred for the state and for the law mutually reinforce each other. This is quite logical, since the modern state has indeed linked itself tightly with law, as Hegel was quite aware.¹ A rarity among the German philosophers, capable of resisting the romantic juggernaut, he extended Enlightenment political thought by explaining that there is no state without a public morality, withoutSittlichkeit,...

    • CHAPTER V Toward a History of the French State
      (pp. 64-90)

      A new reality calls for a new word. The institution of the state is no exception to this principle. In the fifteenth century, Claude de Seyssell and Machiavelli used the word “state” in its modern meaning to signify the power to command men and, by extension, as government or regime. At first, the termstatuswas a genitive, as inStatus Rei Publicae, Imperii, Regni, Regis.¹ Earlier, one had spoken ofRes Publica, Corona, Regnum,when the state still lay dormant in the depths of kingdoms. But in England and Bohemia at the end of the Middle Ages, the crown...

    • CHAPTER VI Inflections
      (pp. 91-96)

      In the second half of the eighteenth century and the early nineteenth, the doctrine of the state under the rule of law progressively declined, over-shadowed by the novel doctrines of liberalism and democracy. This break with the early modern period was long neglected but today is the object of renewed interest and commentary.¹ Here we can only deal with it in summary fashion. What is important is to see how these liberal and democratic doctrines may have deviated from the early modern teaching and to note the inflections they brought to political right. Of course, we do not intend to...

  6. Part Two: The State and Despotism
    • CHAPTER VII Romanticism and Totalitarianism
      (pp. 99-105)

      The metamorphosis of the state under the rule of law into the state under despotic rule would not be so pernicious if the number of states currently belonging to the first category were not so small and uncertain and if the mutant of the totalitarian system had not appeared in the growing swarm of new states.

      The post-1968 generation that awoke from the Chinese dream, as others had from the Soviet dream, has tried to understand the dark workings of totalitarianism. One recent writer, André Glucksmann, went searching in Germany, the nation that begat the fundamental doctrines of totalitarianism’s two...

    • CHAPTER VIII Anti-statism and Nationalism
      (pp. 106-111)

      Society against the state!” Before wasting one’s effort in reviving this generous slogan, it might be good to reflect on its fate in Germany, where this rallying cry arose from the rude awakening that everyone felt after Napoleon’s defeat of the German armies. As Hegel put it in the opening sentence ofThe German Constitution, “Germany is a state no longer.”¹ In Germany the state became everyone’s enemy and all were crying, “Society against the state!” The country’s backwardness, caused by the prejudicial balance between the strength of the multiprincipalities and the weakness of the emperor, who had kept the...

    • CHAPTER IX Anti-juridism
      (pp. 112-122)

      The attack on law follows in the wake of the assault on the state. In view of the disproportionate place law occupies in early-nineteenth-century thinkers, such as Fichte, Krause, and Hegel, and the bitter debates that resulted in the establishment of a new school of legal thought, the historical school of law, one hesitates to take the pulse of anti-juridism.¹ One is especially reluctant to do so since the questions raised by romanticism about law, society, and sovereignty all fall under classical categories without getting any closer to the heart of the matter.² The definition of law engages the modalities...

    • CHAPTER X The Secularization of Faith
      (pp. 123-134)

      Every political experience is to a certain degree a religious experience. Who does not already know that? The early modern thinkers understood well that the recognition of religion’s part in politics and of theologico-political authorities was a necessary condition of the new historical spirit. In our time, however, it is no longer a sufficient condition. We want to know more: from what type of religion does such and such a politics derive its dynamic, its collective unconscious, its morality, and its consensus? What is it that leads men to live and die for it?

      The early nineteenth century was a...

    • CHAPTER XI Marx’s Romanticism
      (pp. 135-143)

      The existence of the concentration camps inallthe soviet regimes under the banner of Marxism imposes an obligation on the partisans of socialism to undertake a critique of Marxist notions of political right. The historical record summons us to understand the move from Marxism to the gulag. Oddly enough, however, Marx’s political thought remains an un-charted no-man’s-land.

      The same critique that Marxlevied at others all his life needs to be applied to Marxhimself. Not a criticism in its immediate and brutal form, “criticism in a hand-to-hand fight,” since, as Marxsays, “in such a fight it is of no interest...

    • CHAPTER XII The State under the Rule of Despotism
      (pp. 144-148)

      Is there anything left now that the principles of the state under the rule of law are despised and its foundations are destroyed? Nothing, unfortunately, for the critics of romanticism did not preside over the disappearance of the state. They rather oversaw the erection of hitherto unseen and gigantic monoliths, the nation-state and the party-state, the modern and arrogant forms of power. Much more than the states under the rule of law, they have sown their seeds throughout our world and have reawakened despotism.

      Fichte made for the nation-state; Lenin followed Marx’s lead in the direction of the party-state. But...

    • CONCLUSION The State and the Slaves
      (pp. 149-152)

      What is the way out of slavery? The only way is through law, the way discovered over two thousand years ago by a shrill and impassioned people who had been slaves themselves. No better way has yet been found. There are other ways and means to build a nation, to pursue a conquest, or to fortify an empire, but the chains of oppression can be broken and a community of men freed from bondage only by passing through a narrow gate. Other doors open and close to the rhythm of feudal regimes.

      In the end this is what we have...

  7. Notes
    (pp. 153-170)
  8. Index
    (pp. 171-173)