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The London School of Economics and Political Science The London School of Economics and Political Science The Constitutional Thought of Joseph de Maistre John Dominic Upton A thesis submitted to the Department of Law of the London School of Economics for the degree of Doctor of Philosophy, London, November 2008 1 UMI Number: U615681 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U615681 Published by ProQuest LLC 2014. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 -Weses f aipaito®1 Declaration I certify that the thesis I have presented for examination for the MPhil/PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others (in which case the extent of any work carried out jointly by me and any other person is clearly identified in it). The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without the prior written consent of the author. I warrant that this authorization does not, to the best of my belief, infringe the rights of any third party. 2 Abstract This thesis, the first in English on this topic, is an examination of central aspects of Joseph de Maistre’s constitutional thought: namely the concepts of constituent power, constitutions, sovereignty and forms of government. Research for the thesis has been conducted with the use of archival sources and French texts and it describes and analyses the above concepts in some detail. The thesis also takes into account both historical and modem scholarship written in French and English. It argues that Maistre’s constitutional thought is a useful tool with which to investigate some contemporary constitutional problems in liberal constitutional theory, e.g. those of constitutional self - binding, the circularity of the notion of the sovereignty of the people and the nature of sovereignty in the modern state. Maistre’s thought provides a view of constitutional matters which opposes certain enlightenment - inspired perspectives that now dominate constitutional discourse and which treat the constitution as a purely normative phenomenon, rather than as a relational concept which cannot be separated entirely from political considerations. The thesis carries out these tasks with reference to other constitutional and public law thinkers in order historically and intellectually to contextualise Maistre’s constitutional thought. It seeks to place Maistre within an intellectual tradition stretching from Bodin, Hobbes and Pufendorf, through Rousseau and Montesquieu, to Carl Schmitt and Michael Oakeshott. In doing this, the thesis argues that Maistre is a modern thinker, whose work although cast in the language of reaction, actually belongs to a mainstream constitutional tradition. 3 Acknowledgements I would like to thank my doctoral supervisors, Professor Martin Loughlin and Doctor Tim Hochstrasser and my wife, Helen. 4 CONTENTS Chapter One: Situating Maistre 6 Chapter Two: Maistre and Constituent Power 56 Chapter Three: Maistre and Constitutions 114 Chapter Four: Maistre and Sovereignty 173 Chapter Five: Maistre and Forms of Government 234 Chapter Six: Conclusions 300 Appendix: The French Text of Maistre’s Quotations 322 Bibliography: 417 5 CHAPTER ONE: SITUATING MAISTRE Introduction Despite the apparently unexpected upheaval of the Revolution, a retreat from constitutional traditionalism in France had begun some time before 1789. A far more convoluted affair than in many other emerging modern European states, where religious dissenters allied themselves with ‘enlightened’ monarchs against ecclesiastical establishments, in France religious dissent found secular support against a monarchy that was allied to the ecclesiastical establishment. This dissent was expressed within the constitutional and legal structure of the country - in the Courts andParlements. The religious history of France in the lead-up to the Revolution was thus inseparable from constitutional considerations,1 and once the ancien Regime had fractured irreparably this rich marrow of theology, law and politics oozed from the broken bone. Joseph de Maistre’s constitutional thought, which is permeated with these vital ingredients of religion, law and politics, gives an insight into the moment after the French Revolution, that dramatic period of transformation in the nature of the State that was inspired by the Enlightenment.2 This thesis examines central aspects of 1 Dale K.Van Kley,The Religious Origins of the French Revolution, (Yale: Yale University Press, 1996) p. 7: . .the religious history of eighteenth-century France is entwined in that of constitutional contestation between the parlements and Bourbon absolutism - entwined in political history, that is, even more than elsewhere on the European continent”. 2 See Joseph de Maistre,Oeuvres Completes (Hildesheim, Zurich: Georg Olms Verlag, 1984) Volume 1, Tome 1, p. 2 “But the French Revolution and all that took place in Europe at that moment is as marvelous of its kind as the instantaneous fructification of a tree in the month of January”. Hereafter 6 Maistre’s constitutional thought in its historical context and uses it as a tool with which to probe some of the most widespread assumptions of modem liberal constitutional theory. With the publication in 1797 ofConsiderations sur la France, those opposed to the French Revolution discovered a voice.3 In its pages, conservative thought met the radicalism of the French Revolution head on. Maistre’s work - a masterpiece of counter-revolutionary invective - did not simply criticise parts of the revolution or bemoan its excesses, it excoriated it in its entirety.4 And the Considerations was to be only the first of a series of works, many published posthumously, in which Maistre fiercely opposed the Enlightenment inspirations of the revolution, and challenged the onset of post-revolutionary modernity on religious, philosophical and political grounds. As a result, Maistre5 has become not only a symbol of reactionary thought and authoritarianism, a patron saint of dark and irrational right wing forces, but also an illiberal critic of the overwhelming political and cultural dominance of liberal discourse. all quotations from Maistre’s complete works will be cited in the OCform V [ ]T [ ], p. [ ] All translations from the French are my own unless otherwise stated. The original French text of Maistre’s writing is set out in an Appendix to this thesis. 3 Dictionnaire des Oeuvres Politiques (Paris: PUF, 1986), p. 501. 4 See, for example,OC V 1, T 1, p. 13: “Each drop of Louis XVI’s blood will cost France torrents; perhaps four million Frenchmen will perhaps pay with their heads for the great national crime of an antireligious and antisocial insurrection, crowned by a regicide”. 5 When only his surname is cited, this thesis does not use the prefix ‘de’. This is in accordance with Maistre’s own preference, as stated in a letter to M. de Syon dated 11 November 1820: “Would you permit me to make a little grammatical diversion? The participle ‘de’ in French may not be joined to a proper noun commencing by a consonant, at least when it does not follow a title: thus you may very correctly say ‘le Viscomte de Bonald said’ but not ‘ de Bonald said’ : one must say ‘Bonald said’ even though one would say ‘D ’Alembert said’ : thus grammar commands. You are therefore obliged, Monsieur, to say, ‘Finally Maistre appeared etc...” 7 Yet for a thinker renowned for his extreme intransigence, a “praetorian of the Vatican”,6 Maistre has proved to be a surprisingly mutable object in the eyes of his many commentators. A debate has continued for two centuries as to what exactly constitutes his thought, and what is its significance. He has been presented as a thinker whose ideas belong more properly in the medieval era; conversely, his work has also been portrayed almost as a vade mecum for the critical theorist of a postmodern bent. The common feature of both of these positions is their failure appropriately to contextualise Maistre’s thought, which has been portrayed as having somehow fallen outside of time, a characterisation made perhaps most famously (in the English speaking world at least) in Isaiah Berlin’s study.7 Due to the brilliance of his invective, Maistre’s words were, and are, considered as pearls of wisdom by some and as corrosive as acid by others, but either way they are frequently considered to possess a transcendental, a-historical value. Seeing him as an a-historical prophet figure has come at an inevitable price: commentators have, despite their best intentions, typically seen him as a one-dimensional figure, an austere “prophet of the past”,8 whether or not they agree with his views. One example will go some way to demonstrating that Maistre does not deserve this unique reputation, but should take his place within a genreanti-philosophe of 6 Emile Faguet, Politiques et Moralistes du Dix Neuvieme Siecle (Paris: Boivin (Nouvelle Bibliotheque Litteraire), 1890), p. 60. 7 Isaiah Berlin, The Crooked Timber of Humanity (London: Pimlico, 2003), p. 91. 8 Barbey d’Aurevilly,Les Prophetes du Passe (Paris: Calmann Levy, 1889), p. 63. 8 discourse. Here are the words of Charles-Louis Richard, written in 1785, which match the content of any of Maistre’s supposedly unique flights of prose for their intensity: Everywhere philosophie lights the torch of discord and of war, prepares poisons, sharpens swords, lays fires, orders murder, massacre and carnage, sacrifices fathers by the hands of sons and sons by the hand of fathers.
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