Droit et philosophie à la lumière de l’Encyclopédie by Luigi Delia (review)

The title of this work suggests that it will provide an analysis of the treatment of jurisprudence in the Encyclopédie. In reality it appears to deal with two separate topics, presented in two separate parts. Part One is a study of a selection of articles on legal issues from the Encyclopédie. While Luigi Delia does note the well-established interpretation of this emblematic Enlightenment compendium as a polyphonic work giving voice to a range of opinions, he focuses on those of one contributor in particular — Louis de Jaucourt (1704–79) — and one particular aspect of his contributions, namely, the influence of natural law theory on legal philosophy. The areas emphasized are those in which natural law theory would transform legal norms by the end of the eighteenth century, such as slavery, the death penalty, and torture. In spite of the significant emphasis on one thinker and one perspective, space is given to discussing alternatives to Jaucourt’s view. In Part Two the approach changes to a study of a range of authors and texts. The rationale for this division is that Part Two outlines the evolution of judicial thought from Cesare Beccaria’s Dei delitti e delle pene (1764) to the Revolution through a more detailed analysis of some of the same issues — torture, the death penalty — and the way they are dealt with in a series of later encyclopaedic works, such as Jacques-Vincent Delacroix’s Réflexions philosophiques (1778), or Fortuné Barthélemy de Félice’s Code de l’humanité (1778). The emphasis on lesser-known texts, especially the Code de l’humanité, and the more detailed discussion of the central issues, make this second part of the book more interesting than the first. While Delia does attempt to provide an over-arching framework that situates his analysis in a debate about the influence of Diderot’s Encyclopédie on the Déclaration des droits de l’homme et du citoyen, this operates more on the level of an assumption than as a finding of his study. For example, after the discussion of slavery Delia concludes that by condemning the slave trade the philosophes ‘[ont] contribué à la formation d’une opinion publique naissante de plus en plus sensible aux raisons de l’humanité: en quinze ans, le législateur français en vient à abolir la torture judiciaire (1780) et l’esclavage colonial (1794)’ (p. 96), a point repeated in the conclusion (p. 241). Such a conclusion is simply not convincing in a study which never addresses the complexity of the notion of public opinion, and which does not deal with the reception of the works studied. At the same time, interesting evolutions are alluded to rather than developed, such as, in Part Two, the transformation of natural rights theory from a theological context to a modern theory of human rights and the influence of Protestant thinkers in this regard. Overall, this is an interesting work that would have benefited from a more clearly defined methodology. It will be of use to students and scholars interested in the evolution of legal thought in the Enlightenment.