TY - JOUR
AU - Gazeau,, Chrystelle
AB - The security principle which emerged in 1789 during the Enlightenment has two complementary implications: the protection of the individual in the exercise of his or her rights and the protection of the community. It acknowledges that the State must have the means to assume the protective role assigned to it under the social contract, but which it could not perform if it was itself in danger. As is well known, the debates concerning the equilibrium between protection of the individual and protection of the State continues to this day among the democracies. Under exceptional circumstances, could the State be at risk of losing its founding liberal aspirations? The first French constituents acknowledged this difficult problem, when the structural and intellectual transformation that accompanied the regime change led to political trials. In fact, revolutionary justice was not born with the Terror. As early as 1789, members of the Assemblée nationale advocated for replacing the former crime of lèse-majesté with that of lèse-nation; outrage against the monarchy being replaced with outrage against the nation. The work of Jean-Christophe Gaven, professor of legal history at Toulouse 1 Capitole University, sheds much needed light on this little-known criminal and political qualification. The book, entitled “Le crime de Lèse-Nation. Histoire d'une invention juridique et politique (1789-1791)”, (“The Crime of Lèse-Nation. History of a legal and political invention”), was published by the Presses de Sciences Po in 2016. It was the revised version of a doctoral work accepted in 2003, based on an extensive survey of the archives. It was acclaimed by the academic world and received the National Assembly thesis prize. Its publication is good news for anyone interested in the principles of public law and the conceptions of justice introduced during the revolutionary period, and, ultimately, in the democratic equilibrium between security and individual rights. First, the author seeks to return to the intellectual and political context that engendered the crime of lèse-nation. The contemporary French writer and philosopher Germaine de Stael considered that the proclamation of the National Assembly (Assemblée nationale) on 17th June 1789 “was the actual revolution”. The phrase was no exaggeration as it indicates the extent of the subversion involved. The French social order and its law were completely subverted. The States-General (États généraux) freed themselves of royal authority following deputy Sieyès's initiative. Collectively, Third Party deputies, supported by some others, referred to the principle of a united, sovereign nation, represented by a united legislative body, which they wanted to be considered as indivisible. But this new-born nation which had to elaborate the future regeneration, could not work without protection. The concept of lèse-nation is both the incarnation and the extension of national vitality. On this basis, the deputies wanted the offence to be permanent, considering it to be a founding, central contribution to their project. Nevertheless, the crime of lèse-nation would disappear in 1791. The “crime against the public good” entered the 1791 Penal Code, which sounds much more modern, the word “lèse” being too evocative of the initial revolutionary period. Even if it lasted only a short period of time, the experience was nonetheless significant. Jean-Christophe Gaven shows that this first experiment with political justice embodied an appropriate balance between the two protecting principles of security and individual rights. In the name of national protection, the principle of legality suffers from the circumstances. There was no clear definition of lèse-nation, but it was gradually formulated in the context of legislative debate, depending on the circumstances and the fears expressed. Finally, the offence seems to affect different kinds of people: conspirators, monopolists, rumour-mongers, counter-revolutionaries and even ultra-revolutionaries on the basis of a sort of ethics of moderation. The indeterminacy of the concept of lèse-nation was no good news for the emerging liberal democracy, as it created uncertainty on what situations could be punished; the way proceedings were to be set in motion was also far from reassuring. This is the subject of the second section of the book, which unveils institutions and practices. Jean-Christophe Gaven's arguments nevertheless diverge from common assumptions. First of all, by “demanding compliance with the criminal reform of 8 and 9 October 1789, the constituent assembly decided (…) to introduce the experience of political justice which entered the very heart of ordinary justice” (p. 430). The political justice did not turn away from the rule of law and enforced both liberal principles and the rights of the accused. The book reminds us that the judges of the former Châtelet de Paris, and of the National Court of Orléans after 1791, extracted themselves from the exception by interpreting the legislative texts in favour of the accused, demanding proof and above all, condemning few. Unlike what we might have expected of a law that could endanger civil liberties, the jurisdictions abided by the rule of law when enforcing the law on lèse-nation. Outside of the judicial field, however, it was a locus of procedural arbitrariness, as the denunciations were mainly received by the local administrations and the investigations conducted by the research committees, a true incarnation of a new form of political justice. This ”dark side” reminds us that, in respect of lèse-nation, even a healthy dose of liberalism cannot entirely counteract the authoritarian nature of the mechanism. © The Author(s) 2019. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Jean-Christophe Gaven, Le Crime de Lèse-nation: Histoire d'une Invention Juridique et Politique
JF - American Journal of Legal History
DO - 10.1093/ajlh/njz026
DA - 2020-03-01
UR - https://www.deepdyve.com/lp/oxford-university-press/jean-christophe-gaven-le-crime-de-l-se-nation-histoire-d-une-invention-s3qRdJ080H
SP - 103
VL - 60
IS - 1
DP - DeepDyve
ER -