CONSTITUTIONALISM AND ROBE IDEOLOGY - THE EVOLUTION OF THE JURIDICAL AND POLITICAL-THEORY FROM MURARD AND LE-PAIGE TO CHANLAIRE AND MABLY

This article proposes a structural analysis of the foundations of lega l ideology under the Ancien Regime and gives particular emphasis to it s final critical period. It considers how ''patriarchal mediation'' wa s revived through the jurist's affirmation of the indispensable role o f the magistracy as the very buttress of the Absolutist State's instit utional structure. Faced with the subversive influence of the Enlighte nment, the judicial body's response can be found in the attempt to opp ose a credible legal discourse (capable of being put into effect polit ically) to the abstract discourse characteristic of modem thinkers. Th e essential elements of the parliamentary magistrate's program are sum med up in an epistolary exchange between L.-A. Le Paige and A.-F de Mu rard. The most significant passages of the unpublished correspondance are used in the article to show that the respublica perfecta of the ju rists was one directed by a government founded on the symbolic and for mal supremacy of the monarchy and the real sovereignty of the courts. This explains the paradoxical thought of the jurists who had never aba ndoned the absolutist cause, but rather defended it with an attitude w hich was even more royalist than the king's. The basis of this ''jurid ical constitutionalism'' was the arcana juris. This ideology was not o pposed to the theory of absolutism, but simply to its practical implem entation. The person who best exemplifies the crisis of this legal and political theory was C.-L. Chanlaire, an obscure Parisian lawyer whos e ideas can be distinguished quite easily from Le Paige's program. He considered the underground power of the judges as the principal cause of judicial confusion and of the general uncertainty of law. Mably wou ld carry the conflict to its logical and radical conclusion several ye ars later.