THE LEGAL ENLIGHTENMENT'S RISE OF THE MANAGERIAL CLASS

PART 11: LESSONS OF LEGAL PLURALISM

This post is part of a lengthy series exploring the world of legal pluralism, particularly (though not exclusively) as it was grounded in the world of the medieval constitution. For a full index of the installments so far, see the introductory post, here.

In the last installment, Grossi explored the role played by the transformation of law in European history away from the hardnosed factuality of real-world consequences, requiring complex and pluralist notions of land ownership, to a new abstraction of individuality, property, and ownership. The ratio scripta of this new rationalism rendered property as the inherent quality and natural right of deracinated individualism – in which the individual is an atomized unit severed from the historical bonds of corporations and institutions embedded in custom and tradition.

In this installment, Grossi further expands upon this new abstraction of possessive individualism. Additionally, though, he enters a new player upon the stage; one with whom we’re all so familiar today. As the scholastics had paved the way for the natural law jurists, so did the latter pave the way for those jurists of what Grossi calls the legal Enlightenment. And in these legal Enlightenment jurists and legal theorists of Grossi’s, we see the early sprouts of the contemporary manifestation of the managerial class. And in all this Grossi discovers the rudiments of contemporary spatialism, including the leftist symbionts of centralized sovereignty and the mass of hyper-individuals, and the pretense of these symbionts being rivals as a means of veiling the real power of this new ruling class. So, let’s look at what he has to say here:

…whilst the natural lawyers of the seventeenth century showed a great determination to translate their ideas into a reformist project affecting the social, political and religious world, the Enlightenment lawyers of the next century were even more determined in that regard. In the specific area of this study, the law, they sought to enact a nakedly political view of the law…attacking head-on the nexus of relationships between subject, nature and political power that was undoubtedly present in the seventeenth-century legal project but far from fully implemented in law.

Hence one of the first qualities of the legal Enlightenment: the movement represented a broad community of intellectuals who had gained emancipation thanks to the cultural revolutions of humanism and natural law and were now convinced of their ability to read the natural and social world correctly and of the capacity of their insights to align historical reality with the recently identified natural laws.

This emergent managerial class, though, with their already hallmark bureaucratic paternalism and aspiring social engineering, naturally, as we’d expect from what we know of them in more recent history, rather than make an open, naked claim for their own power, relied upon their ventriloquist verbal dexterity to appear to invest power in another agent. Long before, led my Marx, they discovered the promise of putting their words and ideas into the mouths of the working class, they used their ventriloquism to invest their monist, aspiring absolutism, into the monarch – as the newly discovered sovereign.

The legal Enlightenment represents a truly political view of the law: it tackles the problem of the relationship between natural law and political power and resolves it via an innovative reorganization of the sources of law.

The law itself becomes the privileged object of intellectual reflection and political action, something which rocks the discipline to its core, bringing to it a new absolutist dimension.

A new idea of the monarch came about: sovereigns now delighted in entering into cultural disputes and in presenting themselves as generators of legal thought.

Legislators were also different: they felt obliged to make their legislative projects represent a manifesto on behalf of the new philosophy.

This new legal absolutism, though, had to be intellectually championed by this new, embryotic managerial class. It’s ventriloquist investment of power in the monarch or the prince, as variously worded, had to be advanced, not only as a bulwark against lingering vestiges of customary law and legal pluralism, but to divert attention away from the actual power and influence of the legal Enlightenment jurists and theorists – the nascent managerial class.

We should not forget that eighteenth-century intellectuals tended to be aristocrats, often belonging to Masonic lodges or other exclusive groupings. The idea of a system of law which grows from the ground up, from the complexity of human activity, was thus foreign to their way of thinking.

The process of legal reform thus had to begin with a drastic repudiation of the past, in order to clear out the old sources of law and eliminate them as if they were a source of shame.

…judges could not avoid being immersed in the particular conflicts they were assigned to resolve; school-men in departments of law could not lift themselves above the technicalities with which their knowledge dealt; only the prince, in his ideal role as the model of mankind and champion of all virtues, could remain untouched by human emotions and accomplish the objective contemplation of the common good necessary for maintaining public contentment.

[According to Antonio Muratori (1672–1750)] ‘if Princes write the laws, the only thing they will have in mind is the public good’ – a quotation that high-lights the astounding process of idealization of the role of the prince that had occurred in European Enlightenment legal thought.

The law, which emanates from a model, from a symbolic figure, has none of the hatefulness and subjectivity of a command issued by a person of flesh and blood. Instead the law is seen as the expression of ‘human reason’ (as Montesquieu would term it) or ‘general will’ (to follow Rousseau’s formulation). Obeying the law does not impact on citizens’ liberty, since freedom consists exclusively in security from violence by others: a security that only the law, with its general, abstract and rigid commands, can offer.

Behind the figleaf of ‘natural reason’ and the ‘general will’ lies the deposition of the whole mechanism of the production of law in the hands of the politically powerful. The old chaos of legal pluralism is replaced by an extremely rigid legal monism: the law is now bound to the apparatus of state power and tends to become conflated with legislation.

Grossi here acknowledges the symbiont creature of modernity and the spatialist regime, which we’ve noted since first introducing the insights of Karl Polyani in his discussion of the English Enclosure movements. The sovereign state and free market individualism (in Grossi’s language, “economic liberalism”), far from rivals, are symbionts. And for Grossi, a deep abstraction binds these symbionts, while simultaneously obscuring the real power dynamic shift which the misleading promotion of the new legal order obscures. As we saw in the last post, for Grossi, the core legal reimagination in these developments is the reconceptualization of property – as individualized, and individualizing.

…the culture of economic liberalism does not hesitate to don the armoured suit of legal absolutism in its attempts to gain control of the law, which is so integral to the social order.

…a completely new meaning was attributed to property, which was now seen as the external projection of the subject.

Property was also generalized beyond things: it became and sought to become Locke’s property, the central expression of the internal reality of the subject, interchangeable with a person’s liberty.

The legal innovations of abstraction and generality seemed tailor-made for a bourgeoisie, and the celebrated new legal principle of equality was also very favourable to the middle class since it ignored differences in wealth.

The idea of a strong, unified and robust state with a firm grip on the production of law, by now entrenched across Europe, was a further advantage.

Economic liberalism and legal absolutism are only apparent opposites: on the contrary, the symbiosis of the two soon becomes very successful, as can be seen [in] the extraordinary increase in the power of the legislature and of acts of legislation, especially on the continent, and the codification of all law which soon follows the rise of the middle classes.

Entangled in all of this is the abstraction which presumes to assume the triumph of rationalism, ratio scriptia, above the history of custom and tradition. This assumption is immanent in the fancy for declarations of rights, which appeal to the abstractions of natural law, while simultaneously obscuring the material and other benefits accruing to the very particularistic interests that aspire to veil themselves in the garb of abstract universalism.

…the American declarations are refusals to obey orders from the British monarch that are deemed arbitrary and despotic, whilst the French situation represents a comprehensive rejection of a whole social, political and legal structure grounded in social class and a post-feudal legal system.

The original sin of natural law hangs over the bills and declarations here, which all seek to base themselves on a point of arrival/departure that claims to be a state of nature but is in reality an intellectual construct and, as such, supremely artificial.

So much for the bills of rights: they may be the first historical manifestations of modern constitutional thought, but they are constitutionalism without a constitution, as it were.

Grossi does note some distinctive features of these developments as they played out within the specific context of probably the two most influential legal histories within Europe. In England, he acknowledges that while these trends toward universalism and abstraction, removing legal legitimacy from customary law, and the implicit emergence of a managerial class are present, they are moderated by the previously mentioned failure of Roman law to successfully cross the Channel. This gave resistance to royal sovereignty a toehold which it lacked across the continent, which manifest in the conjuring of common law.

It was not until Henry VIII, a monarch who initiated religious reforms in order to further his absolutist aims, that there was any attempt to discredit the common law, in favour of civil law, whose remote ancient Roman authorities described the sovereign as free (absolutus) of any limit or bond.

Here we must note the principle, laid out in the Bill of Rights of 1689, that legislative power is vested in ‘the king in Parliament’: a complex entity formed of the House of Commons, the House of Lords and the monarch. In formal terms, legislation most certainly had primacy over the common law. However, at least until the late nineteenth century, legislative interventions remained sporadic, unconnected and even somewhat timid.

Legislation always presupposed the existence of the common law and sought to integrate itself or modify what already existed. In any case, legislation and the common law were always in dialectic, making together a broad and plural legal system.

A few of the major staging points of this expansion by apparent continuity include:

…the great contribution made by the eminent judge Sir Edward Coke (1552– 1634), whose minute knowledge of the medieval ‘Year Books’ (a sort of informal summary of legal proceedings) leads him to proclaim the supremacy of the common law courts; the security of tenure and consequent independence granted to judges by the 1701 Act of Settlement that followed the Glorious Revolution; the elevation of the status of jurists by the writings of another eminent judge, Lord Mansfield (1705–93), whose widely accepted redefinition of the role of the common lawyer changed that figure from a simple technician versed in formulae and procedures into a scholar of society with his own politics of law.

As will be discussed in a forthcoming installment to this series, the tortuous story of English Common Law, contrary to the impression of some that it manifests the recovery of customary law, in fact constituted the triumph of an emergent managerial class over the legal pluralism of customary law. Still, for all that, Grossi observes that having avoided a full instantiation of Roman Law, England retained a degree of legal pluralism uncharacteristic for the continent during the same era. Rather, of course, given Grossi’s emphasis upon the role of the legal Enlightenment, it shouldn’t be surprising that he sees France, and its revolution, as the guiding light of legal history across European modernity.

People became individuals who were perfectly equal in the eyes of the law, as if they were statues cast from the same mould; they became individual subjects, whose only differentiation was between men and women; they were seen as solitary subjects under the banner of one national macro-community, and no longer bound by the religious, social and professional micro-communities of the Ancien Régime, which were now abolished for good.

The so-called Le Chapelier Declaration, promulgated in June 1791, which established the authority of a strand of thought that was present from the outset of the revolution, called for the anéantissement, the absolute annihilation and elimination, of all corporate structures.

(Incidentally, though Grossi doesn’t go into it in great length, it is noteworthy that the Le Chapelier Declaration, as noted in the above quotation, came nearly two years after the guilds were initially declared outlawed, August 4, 1789. There’s a fascinating history of the constant power struggles, both on the part of the guilds, and within the Revolutionary government, which delayed fulfillment of that original proclamation. I’ve not yet found a scholar who has been able to identify which forces precisely were at work on the committee of agriculture and commerce, to apparently obstruct the carrying through of the guilds’ abolition.¹ )

This development was cast, in the words of “the most intransigent but also most brilliant Jacobins,” Maximilien Robespierre, the ‘dictatorship of liberty.”

…any social structures barring the biological family that might compromise the compactness of the new system are eradicated, as all forms of legal particularism that might harm its unity. In other words, nation and law are in perfect unity.

The revolution, the daughter and heir of the Enlightenment proclaimed at the outset of the 1789 Déclaration (para. 6) and at the end of the 1795 Constitution (para. 6), that ‘the law is the expression of the general will’ and that ‘submission to the law is essential to the preservation of liberty’ (Déclaration des droits de l’homme, 29 May 1793, para. 8), that the law ‘cannot order anything but what is just and useful to society’ (Acte constitutionnel, 24 June 1793, para. 4).

The principles of natural law were left ever further behind, replaced instead by a statist ideology to which the legal Enlightenment had lent legitimacy with its idealization and aggrandizement of the figure of the prince.

As in England, except much more aggressively in France, custom is supplanted by legislation. The idea that law is to be determined by the long, lived experience of the community, and enshrined in its traditions, is supplanted by the idea that wise thinkers, bathed in the rationalism and universalism of the Enlightenment, should implement the profound insights of natural law into codes dictating the law to the community through legislation.  

The revolutionary constitution does not merely deal with this code in generic terms; rather, it sets out the task in detail: the civil law that the ordonnances of the Ancien Régime had left to the age-old tutelage of custom is to be brought under the aegis of legislation. Legislation would now be the hallmark of innovation; the whole legal order was to be legislated for.

The central aspects of private law, left untouched since the reforms of commerce in 1673, were finally to be regulated.

…the intellectual revolution wrought by the doctrine of natural law and by the Enlightenment, which reasserted the possibility of deciphering the perfect forms of the natural world, brought with it a horror of the sedimentary nature of the old legal order, whose historicity was now seen as disorganized and muddled complexity. This was a great innovating project that gave rise to the rediscovery of the state of nature and of the authentic state of mankind before the ruinous intervention of history, and faithfully granted the prince-legislator and his supreme representative, the law, the power to transform the chaos of the previous system of law into geometrically clear and certain legal principles. But it could only have one result for the production of law: a complete take-over of the legal order by the state.

Political power inevitably became the supreme and only source of law; a rigorous legal monism replaced the earlier pluralism. What I have defined above as legal absolutism now conditioned the shape of the law.

…there are no more classes, associations or institutions – only an individual reflective of an active subject in the state of nature.

The French Civil Code, promulgated in 1804 and universally known as the Code Napoléon, has very little in common with previous legislative consolidations because it is a bona fide product of the legal Enlightenment and of the French Revolution. The Napoleonic Code is a completely new species of legal source, a new means of producing law; it does not aim to perfect the legal structures of the past, not even those of the recent past, but instead sets up new rules that look towards the future, and even towards eternity.

In Grossi’s analysis, this triumph of the legal Enlightenment, manifest through the French Revolution, and Napoleon’s aggressive expansion of that revolution, constituted the triumph of legal modernity. And legal modernity is the triumph of legal monism. In Grossi’s words, this new legal condition “does not tolerate any diversity that might ensue from membership of a religious faith…nor from the participation in any of the corrupting old intermediary social structures.” Rather, under the new monist legal reality: “Persons are now abstract, socially naked individuals.”

The triumph of spatialism, with its symbiotic marriage of radical, deracinated individuals, directly subject to the legal absolutism of the centralist sovereignty, is fully manifest. The temporalist world of organic community, tradition, and customary law, with its legal pluralism, has been vanquished.  

Or…so it might have seemed, by time of the French Revolution’s apparent triumph, in the post-WWI period. However, as Grossi reflects in the closing of his book: reports of the demise of legal pluralism were greatly exaggerated. In our final installment on Grossi, we’ll look at how, despite the triumph of the legal Enlightenment and its legal monism (at least in the halls of official power), pluralism has continued to fight its way back into the story of European legal history.

So, if you want to be among the first to see this exciting conclusion to Grossi’s sweeping history of European law, and you haven’t yet, please…

And, as always, if you know of anyone else who’d be interested in topics discussed here, please…

Meanwhile: Be seeing you!

1. William H. Sewell, Work and Revolution in France: The Language of Labor from the Old Regime to 1848 (Cambridge, UK: Cambridge University Press, 1980); Michael P. Fitzsimmons, “The National Assembly and the Abolition of Guilds in France,” The Historical Journal 39, no. 1 (1996): 133–54, https://doi.org/10.1017/S0018246X00020707.