Abstract
Chapter 5 discusses developments in the 18th-century French Enlightenment. At the time of the Enlightenment the spiritual and material foundations of the modern constitutional state were established. Of central importance was the rejection of divine authority, both in respect of the truth of science and the authority of politics and law. In its place came the ideal of human autonomy: every person is equally responsible for his own life. With this, monarchy lost its traditional ground of justification. In terms of the new view, government should serve the people, not the other way around. The Enlightenment philosophers thus arrived at a radical critical stance vis-à-vis existing political and social relationships: the French absolute monarchy and feudal division of estates with their inequality and lack of freedom were in blatant conflict with human dignity. The political and legal philosophy of the French Enlightenment showed two different responses to this social exploitation: a liberal response, by Montesquieu and his kindred spirits, and a perfectionist response, by Rousseau. Both would become prominent in philosophy and science, and in addition attain significant historical influence. The chapter furthermore discusses the important contribution of Beccaria to the reform of criminal law and procedure. Beccaria was the first to sketch a criminal law of which not vengeance and retaliation, but the prevention of criminal acts, is the central rationale; and in which criminal procedure does not only serve to detect and punish, but also to protect the fundamental rights of citizens and suspects against the prosecuting authority.
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Notes
- 1.
This was stated by Leibniz, who prepared the way for the Enlightenment, but whose thinking will not be dealt with here.
- 2.
An Italian, but who became famous by virtue of the French Enlightenment.
- 3.
Montesquieu and Rousseau were also contributors, although Montesquieu refused to write about democracy and despotism. He restricted his contribution to a section on taste. Rousseau wrote the section on music, and thus kept a similar distance from his regular subjects, politics and law.
- 4.
An allusion to the massive wars and their unwilling victims among both serfs and citizens which troubled the 18th century. Later Voltaire would expose the madness thereof, likewise satirically, in Candide ou l’optimisme and in his story Micromegas, in which the insanity of warmongering humanity is assessed from the point of view of a giant, with reference to the death of millions for the sake of a piece of ground as large as a stamp.
- 5.
Montesquieu was undoubtedly influenced by the parliamentary system in England, and possibly, in addition, by the separation of legislative and executive powers which is found in Locke’s Two Treatises of Government (Section 4.2).
- 6.
A recently invented, very effective mechanism, which replaced the imperfect handiwork of the former executioner. The guillotine had humane intentions because the executioner sometimes chopped inaccurately. The effectiveness of this new execution mechanism, however, also encouraged an increase in death penalties, as the next few years would illustrate.
- 7.
The famous conservative Burke wrote in Reflections on the Revolution in France (1790): The French revolution is a ‘strange chaos of levity and ferocity’ (1982, p. 92), and amounts to a disregard of the value of the historically grown, extremely complex interaction of forces on which the institutions of society are based.
- 8.
Around the time of the celebration of the bicentenary of the French revolution in 1989, public conflicts broke out concerning the disappearance from official historiography of what has been termed the first genocide in modern European history. In Vendée, for example, the populations of whole regions were eradicated by drowning them in tightly sealed river boats. According to current estimates, more than a million people met their deaths in these cleansings, which matches the deaths due to famine.
- 9.
This was based on the pragmatic consideration that the people require religious rituals, even if these do not have any truth value.
- 10.
The Cambodia of Pol Pot’s Khmer Rouge is the most recent in a long chain of repetitions of the deadly utopianism of the Reign of Terror, as well as of the violent paranoia of the defenders of the revolution against the countless enemies and traitors in their own ranks of the ‘true society’.
- 11.
A radical critique of the Enlightenment reforms under the influence of Beccaria and kindred spirits like Bentham was voiced in the 20th century by Michel Foucault in Surveiller et punir: Naissance de la prison (Discipline and Punish: The Birth of the Prison, 1975). According to Foucault, these reforms were simply the result of contingent changes in society in the 18th century which called for a different form of economic calculation from that which had preceded it.
- 12.
In a letter to Herder, 18 May 1765; see Berlin (2000, p. 255).
References
Beccaria, Cesare. 2004. Of crimes and punishments. Whitefish, MT: Kessinger Publishing.
Berlin, Isaiah. 2000. Three critics of the enlightenment: Vico, Hamann, Herder. Princeton, NJ: Princeton University Press.
Montesquieu, Charles de Secondat. 2005. The spirit of laws. Clark, NJ: The Lawbook Exchange Ltd.
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Maris, C., Jacobs, F. (2011). Eighteenth-Century French Enlightenment. In: Maris, C., Jacobs, F. (eds) Law, Order and Freedom. Law and Philosophy Library, vol 94. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-1457-1_5
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