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Published online by Cambridge University Press: 20 July 2015
How can one explain the normative outcome of the initial law-creating practices without any reference to some pre-existing natural laws “guaranteing” the lawgiver’s enterprise? The challenge which the rejection of the classical natural law model represents amounts to explaining the normative dimension of law despite the arbitrariness of the social practices from which it stems. Montaigne gave both an exemplary formulation and a peculiar solution to that question: in order to reconstruct the authority of law despite the “dangerous arbitrariness” from which it flows, Montaigne decides to avoid any inquiry regarding the original law-creating practices by positing a “law of pure obedience”.
The writing of this article would not have been possible without reference to Thomas Berns' doctoral thesis—T. Berns, Violence de la loi à la Renaissance : l'originaire du politique chez Machiavel et Montaigne—which I will quote extensively. For helpful comments and discussion I am grateful to Nigel Simmonds, Emran Mian and Christoph Kletzer.
1. This position will be referred to as the “classical natural law model”.
2. Montaigne, Michel de, The Complete Essays (London: Penguin Books, 1991) at III: 13, 1216. [hereinafter CE].Google Scholar
3. Emphasising the historicity of law essentially amounts to underlining the importance of the contingent relationship that exists between any law and a particular epoch, State or regime.
4. On this subject, see Tournon, André, Montaigne: la glose et l’essai (Paris: Honoré Champion, 2000)Google Scholar, particularly interesting for the understanding of the link between Montaigne and Alciati, the main figure of the humanist movement.
5. There exist two essentially contradictory theses on this issue. While some authors—notably Gilmore, Myron P., Argument from Roman Law in Political Thought (Cambridge, MA: Harvard University Press, 1941)Google Scholar—defend the thesis according to which the legal humanist school initiated an awareness of the historicity of law, others underline that the impact of the humanist movement has to be relativised, especially as its philological methods kept it distanced from the practical concerns of the legal profession (See Kelley, Donald R., “Vera Philosophia: The Philosophical Significance of Renaissance Jurisprudence” in History, Law and the Human Sciences: Medieval and Renaissance Perspectives (London: Variorum Reprints, 1984) IV, 267 Google Scholar, who retreated from his previous defense of the first thesis, establishing a direct link between legal humanism and the awareness of the historicity of law). For more complete references on this debate, see Berns, Thomas, Violence de la loi à la Renaissance : l’originaire du politique chez Machiavel et Montaigne (Paris: Kimé, 2000) [hereinafter VL] at 226-27.Google Scholar
6. Kelley, ibid. “Clio and the Lawyers: Forms of Historical Consciousness in Medieval Jurisprudence” II at 29.
7. Ibid at 29.
8. D. R. Kelley emphasises that these empirical methods actually developed themselves before the 16th century, but only bore scholarly fruit in the 16th century: “[t]he point was that while laws were in theory universal in application, in fact they varied according to the diversity of national traditions (gentes), of which the Roman itself (as canonists in particular were pleased to point out) was one .... In the legal tradition of the fourteenth century, as in philosophy, there was what may be called a nominalist school that inclined to an empirical approach. So Andrea de Isernia (+1316) objected to the common practice of identifying feudal with ancient Roman institutions, and he argued that feudal terms were unprecedented” (ibid. at 274).
9. CE, supra note 2 at III 13, 1215.
10. CE, supra note 2 at II 12, 653-54.
11. CE, supra note 2 at I 23, 132.
12. Regarding this issue, see the analysis of Thomas Berns (VL, supra note 5 at 223 and 269) who quotes the full references to the works of Valla.
13. Arising mainly out of a deep dissatisfaction with the obscurity bred by a dual system of justice (Roman law versus custom), legal Gallicanism mainly aimed at establishing the freedom of regional parliaments in relation to Roman law as well as asserting the preponderance of regional customs (see Tournon, supra note 4 at 189-90ff).
14. On this point see VL, supra note 5 at 225.
15. “Can anyone deny that glosses increase doubts and ignorance, when there can be found no book which men toil over in either divinity or the humanities whose difficulties have been exhausted by exegesis? The hundredth commentator dispatches it to his successor prickling with more difficulties than the first commentator of all had ever found in it. Do we ever agree among ourselves that ‘this book already has enough glosses: from now on there is no more to be said on it?’ That can be best seen from legal quibbling.” CE, supra note 2 at III 13, 1210.
16. On the term “origins” and its ambiguity in this context, see discussion infra 2.2.
17. CE, supra note 2 at II 12, 605.
18. Ibid. at II 12, 607.
19. “Take those rings wrought in the shape of plumes which are called in heraldry Feathers without ends. Can any eye ever be sure how wide they are and avoid being taken in by the optical illusion? For they seem to get wider on one side, narrower and more pointed on the other, especially if you turn them round your finger; yet to your touch they all appear to have the same width all the way round.” CE, supra note 2 at II 12, 677.
20. Ibid. at II 12, 678.
21. Ibid. at II 12, 633-34.
22. Ibid at II 12, 608 (emphasis mine).
23. Starobinski, Jean, Montaigne en mouvement (Paris: Gallimard, 1982) at 7 Google Scholar (my translation).
24. At the end of this section, we will see how Montaigne turns this negative into a positive conclusion by recommending that one accept appearances as legitimate (which makes his scepticism very special).
25. CE, supra note 2 at II 12, 680.
26. Ibid. at II 12, 682.
27. Ibid. at II 12, 680.
28. Ibid. at II 12, 683.
29. Ibid. at II 12, 655.
30. Ibid. at II 12, 683.
31. Ibid. at II 12, 653-54.
32. Ibid at III 13, 1216 (emphasis mine).
33. Ibid at III 9, 1083.
34. Thomas Berns develops brilliantly this idea in VL, supra note 5 at 194 and 195: “A cet égard, le moment de l’origine lui-même ne s’exprime en tant que tel et comme visée du mouvement de retour […] que de manière absolument formelle: Principio, du latin principium, signifie tout autant le début historique que le début logique; c’est le moment où l’histoire et la logique se rejoignent, où le principe est le début”.
35. CE, supra note 2 at II 12, 658 (emphasis mine).
36. Ibidat I 23, 131.
37. Ibid. at I 23, 131.
38. VL, supra note 5 at 276 (my translation).
39. Because of (and thanks to) this reconstruction, a logical and fundamental dimension will be added to the empirical character of these origins, as the principle in whose function a reconstructed theory of authority will be possible (see infra at section 2.3).
40. CE, supra note 2 (emphasis mine).
41. Rousseau, Jean-Jacques, The Social Contract and Other Later Political Writings (Cambridge: Cambridge University Press., 1997) at II. 7 at 69–70.Google Scholar
42. G. A. Cohen has ex Pressed the problem very clearly in Cohen, G. A., “Reason, Humanity, and the Moral Law” in Korsgaard, , ed., The Sources of Normativity (Cambridge: Cambridge University Press., 1996) at 167.CrossRefGoogle Scholar
43. Rousseau, supra note 41 at II. 7, 69.
44. Kant, Immanuel, The Metaphysics of Morals (Cambridge: Cambridge University Press, 1991) at §49 A, 130 (emphasis mine).Google Scholar
45. CE, supra note 2 at II 12, 543 (emphasis mine).
46. Ibid. at III 13, 1215.
47. Ibid. at II 12, 603.
48. It is worth noting here that in Kelsen’s work this first norm ultimately takes the form of a fiction, asking us to proceed as though the law were irreducibly normative.
49. CE, supra note 2 at III 13, 1216. This English translation (perhaps too aesthetically concerned) can be quite misleading. In the French version, it appears clearly that Montaigne criticises any obedience to laws that would be founded on the justice of the laws. If anyone obeys the laws because they are just then he does not obey them for the right reason (“par où il doit”). Montaigne leaves open the reasons why we should obey the laws, but sets one wrong reason out: the justice of the laws, because in any case we don’t have access to the concept of justice as such, which takes a different appearance in every kingdom.
50. Montaigne, Michel de, Essais (Paris: Gallimard, 1965) at 362.Google Scholar
51. This “positivist” tradition later bifurcates into a Hobbesian stand, distinguishing the law’s moral bindingness from the justice of its content, and a Kelsenian or Hartian stand, distinguishing legal from moral bindingness.
52. CE, supra note 2 at III 13, 1216.
53. For a synthesis of the history of the term “mystical”, see VL, supra note 5 at 386-89.
54. See the brilliant analysis of Michel de Certeau in Certeau, M. de, La fable mystique (Paris: Gallimard, 1982) at 132 Google Scholar (for the English translation, see Certeau, M. de, The Mystic Fable (Chicago/London: University of Chicago Press, 1992).Google Scholar
55. In Force de loi, Derrida endeavours to explain Montaigne’s reference to the term “mystical” by reference to that founding point where “the discourse comes up against its limit”, enclosed in the “performativity” of its enunciation: “Here a silence is walled up in the violent structure of the founding act” ( Derrida, Jacques Force Of Law: The Mystical Foundation Of Authority in Carlson, David, Cornell, Drucilla & Rosenfeld, Michel, eds., Deconstruction and the Possibility of Justice (New York/London: Routledge, 1992) 2 at 13–14)Google Scholar.
56. CE, supra note 2 at III 8, 1058.
57. VL, supra note 5 at 371, note 2.
58. CE, supra note 2 at III 10, 1138.
59. It seems worth mentioning here as an interesting echo the propositions of Wittgenstein regarding “what is mystical”:
“6.44—Not how the world is, is the mystical, but that it is.
6.45—The contemplation of the world sub specie aeterni is its contemplation as a limited whole.
The feeling of the world as a limited whole is the mystical feeling.
6.5—For an answer which cannot be ex Pressed the question too cannot be ex Pressed.
The riddle does not exist.
If a question can be put at all, then it can also be answered.
6.51—Scepticism is not irrefutable, but palpably senseless, if it would doubt where a question cannot be asked.
For doubt can only exist where there is a question; a question only where there is an answer, and this only where something can be said [...]
6.522—There is indeed the inex Pressible. This shows itself; it is the mystical. [... ]
7—Whereof one cannot speak, thereof one must be silent.”
( Wittgenstein, Ludwig, Tractatus Logico-Philosophicus, trans. C.K. Ogden (London/New-York: Routledge, 1981) at 187 and 189)Google Scholar.
60. This insistence that obedience to law can only be conceived independently of any discretion, out of pure “subjection” and not out of choice (obeying to law on the basis of one’s will would, according to Montaigne, question the obligatoriness of the law itself) establishes another con nection with the works of Kelsen, who rejects any kind of “theory of recognition”, which “con sciously or unconsciously, presupposes the ideal of individual liberty as self-determination, that is, the norm that the individual ought to do only what he wants to do.” ( Kelsen, Hans, Pure Theory of Law (Berkeley and Los Angeles: University of California Press, 1967) at §34 i, 218, note 83)Google Scholar.
61. CE, supra note 2 at III 13, 1216. See supra note 49 regarding the merits of this English translation.