Title Page, Copyright

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Contents

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pp. v-vi

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Foreword

Donald R. Kelley

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pp. vii-xv

Aspecter has been haunting European intellectuals in our century— the specter of “anti-statism.” All the forces of ideology—right, left, liberal, and uncommitted—have entered into an unholy alliance to protect this specter. This is the first message of Blandine Kriegel’s The State and the Rule of Law, a book published first in 1979, then (still more opportunely) in 1989, and now in translation,...

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Introduction

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pp. 3-8

These are hard times for the state. For those who have already reached their verdict, there is a single perpetrator of the troubles of our times, of the crimes and the camps. The guilty party is what Marxcalled the parasite that clogs all the pores of society, what Nietzsche dubbed the coldest of all cold monsters. The rumbling swells. It is said that the most extreme and rigid forms of power are the natural consequences of its ordinary and benign manifestations...

Part One

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I Problems for a History of the State

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pp. 11-14

What is a state under the rule of law? A number of lawyers would respond without hesitation that it is a state in which there is a body of laws, in which there is a constitution. Such a definition, generous to the point of irresolution, is geared to the new type of state that historians usually call the nation-state, which emerged in Western Europe in the seventeenth and eighteenth centuries, notably in France, England, and Holland. There are two reasons...

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II Sovereign Power

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pp. 15-32

The early modern doctrine of power can be summed up in a word: sovereignty. Amid the most strident of the civil wars against Henry III, Jean Bodin articulated the doctrine, “A commonwealth [or republic] may be defined as the rightly ordered government of a number of families, and of those things which are their common concern, by a sovereign power.”1 A century later, it was restated dramatically by Charles Loyseau: “Sovereignty is the defining moment...

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III Human Rights

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pp. 33-50

Individual rights, or human rights as they are called today, are less recent acquisitions than we tend to think. Faced with Amnesty International’s battery of accusations in the form of numbered, itemized, quantified documents depicting the daily attacks on individual rights by states—entombment in dungeons without rhyme or reason, condemnations without trial, tortures...

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IV Law and Morality

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pp. 51-63

Often the indictment of the state is accompanied by an offensive against law itself. Critics remark on the imprint of the law on the arms of condemned prisoners headed for execution, as well as the proletariat en masse. Hatred for the state and for the law mutually reinforce each other. This is quite logical, since the modern state has indeed linked itself tightly with law, as Hegel was quite...

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V Toward a History of the French State

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pp. 64-90

Anew reality calls for a new word. The institution of the state is no exception to this principle. In the fifteenth century, Claude de Seyssell and Machiavelli used the word “state” in its modern meaning to signify the power to command men and, by extension, as government or regime. At first, the term status was a genitive, as in Status Rei Publicae, Imperii, Regni, Regis.1 Earlier, one...

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VI Inflections

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pp. 91-96

In the second half of the eighteenth century and the early nineteenth, the doctrine of the state under the rule of law progressively declined, overshadowed by the novel doctrines of liberalism and democracy. This break with the early modern period was long neglected but today is the object of renewed interest and commentary.1 Here we can only deal with it in summary fashion. What is important...

Part Two

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VII Romanticism and Totalitarianism

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pp. 99-105

The metamorphosis of the state under the rule of law into the state under despotic rule would not be so pernicious if the number of states currently belonging to the first category were not so small and uncertain and if the mutant of the totalitarian system had not appeared in the growing swarm of new states. The post-1968 generation that awoke from the Chinese dream, as others had from the Soviet...

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VIII Anti-statism and Nationalism

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pp. 106-111

Society against the state!” Before wasting one’s effort in reviving this generous slogan, it might be good to reflect on its fate in Germany, where this rallying cry arose from the rude awakening that everyone felt after Napoleon’s defeat of the German armies. As Hegel put it in the opening sentence of The German Constitution, “Germany is a state no longer.”1 In Germany the state became...

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IX Anti-juridism

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pp. 112-122

The attack on law follows in the wake of the assault on the state. In view of the disproportionate place law occupies in early-nineteenth-century thinkers, such as Fichte, Krause, and Hegel, and the bitter debates that resulted in the establishment of a new school of legal thought, the historical school of law, one hesitates to take the pulse of anti-juridism.1 One is especially reluctant to...

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X The Secularization of Faith

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pp. 123-134

Every political experience is to a certain degree a religious experience. Who does not already know that? The early modern thinkers understood well that the recognition of religion’s part in politics and of theologico- political authorities was a necessary condition of the new historical spirit. In our time, however, it is...

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XI Marx’s Romanticism

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pp. 135-143

The existence of the concentration camps in all the soviet regimes under the banner of Marxism imposes an obligation on the partisans of socialism to undertake a critique of Marxist notions of political right. The historical record summons us to understand the move from Marxism to the gulag. Oddly enough, however, Marx’s political thought remains an uncharted no-man’s-land....

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XII The State under the Rule of Despotism

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pp. 144-148

Is there anything left now that the principles of the state under the rule of law are despised and its foundations are destroyed? Nothing, unfortunately, for the critics of romanticism did not preside over the disappearance of the state. They rather oversaw the erection of hitherto unseen and gigantic monoliths, the nation-state and the party-state, the modern and arrogant forms of power. Much more than the states under the rule of law, they have sown their...

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Conclusion

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pp. 149-152

What is the way out of slavery? The only way is through law, the way discovered over two thousand years ago by a shrill and impassioned people who had been slaves themselves. No better way has yet been found. There are other ways and means to build a nation, to pursue a conquest, or to fortify an empire, but the chains of oppression can be broken and a community of men freed from bondage only by passing through a narrow gate. Other doors open...

Notes

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pp. 153-170

Index

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pp. 171-173