The Theory of the State in France in Historical Perspective
The purpose of the theory of the state, which emerged in France under the Third Republic, is to provide a judicial definition of the state so that political relations may be resolved on the basis of legal relations. A priori a-historical, it has not stood the test of time so well. The judicialization of the state was practically inexistant before it was reinvented by scholars. From the Middle Ages, it was the sovereign incarnate (the king) or the sovereign desincarnate (the crown) that controlled sovereignty and the law. In 1789, it was the nation alone which embodied sovereignty, whereas rights partook of the foundation of politics. Because liberal constitutionalism does not take the state into consideration, the theorisation of the state cannot be a politically neutral operation.
Gregoire Bigot is professor of legal history at the Université de Nantes
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