Rusing with the Law: Montaigne and the Ethics of Uncertainty

The paradox of the former magistrate who lacks confidence in the law to mete out justice and in the ability of the jurist to judge justly stands among the most striking in Montaigne's Essais. We might see this incongruence also implied in the essayist's emblematic use of the balance to which he juxtaposes his skeptical motto "Que sçay-je?" The scales are a polysemous device in the Essais, a commercial and philosophical figure of weighing and of weighing in the mind that captures the self-reflective assaying of the text, and one that appears entirely compatible with the interrogative "What do I know?" as Montaigne's expression of Pyrrhonist doubt. But there is also something disquieting about the balance serving in the work, as it had since Antiquity, as the symbol of Justice, translating the sense of weighing of evidence and conflicting arguments, of judging equitably to implement the law and dispense justice. Here with the dishes of Montaigne's scales in equilibrium, the interrogative motto can easily be taken as a sign not only of initial doubt but also of ultimate indeterminacy, of an inability to judge and pass judgment that would appear to undermine both the system of the law and the application of justice itself. How are we to understand Montaigne's insistence on the paradox of the judge who cannot judge, and the law that cannot legislate? In the context of uncertainty that both produces the "weighing" and is its product, what is the status of justice?¹

Montaigne's affirmation of the uncertainty of the law places him squarely within a Medieval and Renaissance legal tradition that resonates with expressions of Aristotelian contingency and that repeatedly eschews claims to absolute knowledge in favor of what can only be considered probable. The law, we might say, not only accommodated but also incorporated the concept of uncertainty as a first principle to which the legislator, the jurist, and the exegete reacted but which they could never entirely overcome. Elements and techniques drawn from grammar, logic, dialectics, and rhetoric provided the means not to absolute truth but to degrees of probability and plausibility that were intended only to carry the authority of truth. There were of course those who sought to transcend contingency and uncertainty in the appeal to the intention or will of the legislator (mens) or to the objective sense of words (ratio), as if the truth existed, and were accessible, in a pre-verbal form, as if the spirit of the law could exist independent of the letter. But any recourse to the 'real' that would exist prior to and outside of language also had to pass through language itself, and the amount of interpretive gloss generated by this effort to master the law bears testimony to the fact that the law could never be mastered and that uncertainty could never be overcome once and for all.

In this unsettled and unsettling context, in the face of a long legal tradition whose obsessive preoccupation with interpretation and commentary both reveals a longing for certainty and betrays its absence, where the competing claims of Roman and of customary law challenge and fragment the integrality of the law, where the humanist attack on the validity and accuracy of conventional late-scholastic glossing and argumentation undermines the very sources of juridical authority, and in an atmosphere of extreme religious partisanship challenging both the social order and royal authority, Montaigne, the former magistrate, takes up the subject of the law. Legal interpretation had long distinguished between the necessary and the probable, both to differentiate the authority of legislators from that of magistrates and to qualify differing modes of interpretation. By Montaigne's time, the judicial system itself was operating according to a logic of relative probability in which both traditional glosses and the contemporary interpreter's own reading were considered to be of the order of opinion.² Thus we might expect the former magistrate to take issue, as he does, with legal argument or decision that speaks categorically or with the very authority of the law itself when it...