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De l'état légal à l'état de droit. L’évolution des conceptions de la doctrine publiciste française 1879-1914

Abstract : The Third Republic regime is defined byCarré de Malberg as the regime of the État légal for it promotes the rule of law formulated by a parliament now elected by universal male suffrage. This regime is therefore characterized by the apparent supremacy of the Parliament.The study of the public law doctrine from 1879 to 1914 demonstrates, however, that, for these authors, such a system is unsatisfactory as parliamentary omnipotence turns out to be more a danger than a safeguard. This calling into questions concerns both the theories of sovereignty and of representation.
Accordingly, public law theorists have progressively substituted the more juridical sovereignty of the State for the political theory of national sovereignty. This shift lessens the importance of both the electorate and the legislative body. All Public law theorists wish to limit the effects of the unorganized Universal suffrage and reestablish the balance of power. Having lost confidence in the virtues of the law and the political guarantees of the État légal, the public law theorists try to find in the law away to preserve the liberal values which they consider threatened by the extension of the franchise. The judge becomes the main guarantor of freedom and juridical order. Judicial appeals should ensure the people’s security against state interventionism and permit the triumph of abstract and juridical « True Democracy ». Viewing the rule of law as providing a solution for all conflicts, the public law theorists insisted that politics should be subjected to Law because they regarded politics as an area of anarchy and individual interests. Law should reintroduce order and rationality into a society transformed by industrialization.Thus the État de droit seems to be the end of the French Revolution and the condition for the efficacy of Public Law which in turn gives the State the means for its legitimacy.
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Submitted on : Tuesday, October 5, 2021 - 4:49:31 PM
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Redor-Fichot Marie-Joëlle. De l'état légal à l'état de droit. L’évolution des conceptions de la doctrine publiciste française 1879-1914. Droit. Université Paris 2, 1988. Français. ⟨NNT : 1988PA02T078⟩. ⟨tel-03366507⟩



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