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Society for French Historical Studies

The "Public Sphere," the State, and the World of Law in Eighteenth-Century France
Author(s): David A. Bell
Source: French Historical Studies, Vol. 17, No. 4 (Autumn, 1992), pp. 912-934
Published by: Duke University Press
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The "Public Sphere," the State, and the
World of Law in Eighteenth-Century France
David A. Bell

On 20 July 1735 a small pamphlet was published illegally in Paris
under the title An Amnesty Granted to the Lawyers.' The Parisian
Order of Lawyers, which enjoyed a well-deserved reputation for
haughtiness at the time, had just suffered a ritual humiliation in the
Parlement (high court) af ter a dispute over protocol with several young
magistrates. The Amnesty, whose author probably belonged to the law
clerks' raucous Kingdom of the Basoche, spoke for all the underlings of
the Palais de Justice eager to gloat over this long-awaited comeup-
pance.2 The pamphlet, presented as a parody of royal letters of pardon,
magnanimously forgave the lawyers their sin of pride, freed them from
further punishment, and urged them to humility in the future.
At first glance, this distinctly minor work of satirical literature-
according to police reports it circulated mainly within the Palais de Jus-
tice itself and quickly vanished from sight-would hardly deserve
inclusion in a discussion of the public sphere.3One point, however, dis-
tinguishes it from other, similar ephemera. Although it precisely fol-
lowed the legal form of royal letters of pardon, it was issued in the name

David A. Bell is assistant professor of history at Yale University. His study of lawyers and
politics in eighteenth-century France will be published next year by Oxford University Press.
' Amnistie en faveur des avocats (n.p., [1735]).
2 The pamphlet was published in conjunction with an "arretde la Basoche," and other satiri-
cal documents typical of the eighteenth-century clericature. See the copies in AN, U 384; BN,
Fonds Joly de Fleury 154; BN, MSS Clairambault 526. The fullest account of the dispute can be
found in the journal of Louis-Adrien Le Paige for 1735, in Bibliotheque de Port-Royal, Collection
Le Paige (hereafter BPR-LP) 460, no. 23.
3 According to police reports, readers bought it "under the counter" from a bookseller of the
Palais who also did a brisk trade in parlementaire propaganda under the tacit protection of the
procureur general. Saunier (lieutenant general du bail lage du Palais) to Joly de Fleury (procureur
general), 20 July 1735: BN, Fonds Joly de Fleury 154, fol. 317r; Herault (lieutenant general de
police) to Chauvelin (garde des sceaux), 21 July 1735:Archives des Affaires Etrangeres, MWmoires
et Documents: France (hereafter AAE-MDF) 1297, fol. 98r.
French Historical Studies, Vol. 17, No. 4 (Fall 1992)
Copyright ? 1992 by the Society for French Historical Studies

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PUBLIC SPHERE, STATE, AND LAW 913

not of the king, but of "the public." In the text, it was "the public"
which claimed to be "touched" by the lawyers' moral delinquency, and
"the public" which approved the pardon and pressed the offenders to
repent. The pamphlet even announced that it had been issued "in the
council of the public." In fact, throughout the little work, the words "le
public" appeared wherever the words "le roi" would be found in a real
pardon letter. The public replaced the king as sovereign.
Coming nearly fifteen years before French political writers began
associating "the public" and "public opinion" with sovereign politi-
cal power in earnest, the Amnesty stands out as something of a curios-
ity.4 To be sure, only a singularly humorless reader could consider it a
turning point in the history of French political language. But the pam-
phlet does help understand two other, more subtle historical develop-
ments. First, it testifies to the growing awareness, as early as 1735, of the
nebulous social phenomenon that went by the name of "the public" -a
phenomenon defined above all by the rapidly increasing readership of
printed works.5 Second, and more importantly for the purposes of this
article, it exemplifies the process by which eighteenth-century authors
quickly assimilated this phenomenon into existing, familiar mental
categories. Precisely because of the nebulous nature of the "public"
(and "public opinion"), eighteenth-century authors described it most
readily in metaphor: a king for the author of the Amnesty and Jacques
Necker; a "queen" for many others; most commonly of all a "tribu-
nal."6 In doing so, they subtly associated it with certain known charac-
teristics and modes of behavior. Thus the process by which the term
entered the French political lexicon in the eighteenth century amounted
less to the simple labeling of a new social development than to a dia-
logue in which this development was situated within certain existing
schemes of meaning, and these schemes of meaning themselves flexed
and changed in response.7
Why should the vicissitudes of the concepts "public" and "public
opinion" matter for the history of eighteenth-century France? They
matter, first of all, because eighteenth-century authors used the terms to

I See Keith Michael Baker, Inventing the French Revolution: Essays on French Political Cul-
ture in the Eighteenth Century (Cambridge, 1990), esp. 167-99.
5 For a handy summary of recent treatments of print culture in eighteenth-century France, see
Roger Chartier, The Cultural Origins of the French Revolution (Durham, 1991), 38-66.
6 For a brief overview of images of the public, see Paul Ourliac "L'Opinion publique en
France du XIIkme au XVIIIme siecles," in L'Opinion publique (Nice, 1957), esp. 36.
7 A useful general discussion of these issues may be found in Marshall Sahlins, Islands of
History (Chicago, 1985), esp. 136-56. For a particularly acute case study, see Sarah Hanley, "En-
gendering the State: Family Formation and State Building in Early Modern France,"French His-
torical Studies, 16 (1989): 3-27.

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914 FRENCH HISTORICAL STUDIES

denote the most striking cultural development of the age: the enormous
increase in printed matter available to literate men and women. In the
decades preceding the French Revolution, the newest writings on litera-
ture, art, philosophy, and politics no longer belonged exclusively to
rarefied urban elites. Instead, a burgeoning publishing industry, oper-
ating both within and without the law, brought them to an ever-
expanding readership at an ever-increasing tempo. There was clearly
something innovative, and even subversive, about what was happen-
ing, for the new reading "public" corresponded to none of the tradi-
tional social categories of the ancien regime: no corps, no ordre, no
etat.8 Contemporaries could hardly ignore the phenomenon, and ac-
cording to their temperament either marvelled or despaired.9
Secondly, political authors of all stripes increasingly treated the
judgment of "public opinion" as the ultimate criterion of political le-
gitimacy. One could say that the invocation of an undefined, abstract
"public" became something of a mantra for political writers between
roughly 1750 and 1789. While the king might still retain absolute au-
thority in practice, the theory of politics as enunciated in the polemical
literature treated him as but one litigant before this new tribunal and
accorded moral weight to his commands only when they coincided
with the public's judgments.'0 It does not take a great leap of faith to see
in the idea of a "sovereign public" a presage of the sovereign nation of
the French Revolution.
It is hardly surprising, then, that as the old "social interpretation"
of the French Revolution (as an expression of class conflict) has col-
lapsed, and as social history has ceded pride of place among scholars to
the "new cultural history," the eighteenth-century French "public" has
become a significant subject of study. In order to understand it, how-
ever, historians have turned above all to a general European model
developed three decades ago: Jurgen Habermas's The Structural

8 When the pamphleteer Joseph Charron tried, in 1788, to devise a particular, limited social
definition for the "public" as a literate elite, opposed to the "people" and the "populace," he was
quickly ensnared in a confusing ontological tangle. Joseph Charron, Lettre ou memoire histo-
rique sur les troubles populaires de Paris en aofit et septembre, 1788 (London, 1788).
9 For an overview of recent research, see Chartier, Cultural Origins, 69-70. Dale Van Kley has
located one particularly acute comment on the phenomenon: "Writing in 1753, the councillor of
state Gilbert de Voisins noted with alarm that the 'public' had begun 'to occupy itself seriously
with matters of state' and that whereas formerly the French had reasoned 'frivolously and without
consequence concerning the conduct of the government,' it was now 'the very foundations of the
constitution and the order of the state that they called into question.' " Dale Van Kley, The Da-
miens Affair and the Unraveling of the Old Regime (Princeton, 1984), 184.
10These developments are discussed in Baker, Inventing the French Revolution, 167-99; and
Mona Ozouf, "L'Opinion publique," in The Political Culture of the Old Regime, ed. Keith Mi-
chael Baker (Oxford, 1987), 419-34.

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PUBLIC SPHERE, STATE, AND LAW 915

Transformation of the Public Sphere." Habermas sees eighteenth-
century Western Europe as the birthplace of the modern "civic public
sphere" (bfirgerliche Offentlichkeit), which he defines as an arena sep-
arate from the realm of state authority in which "private" individuals
can engage in unhindered rational conversation. He locates this sphere
in nonpolitical settings, such as cafes and salons, but adds that because
the conversation did not exclude the hitherto off-limits subjects of
church and state, the public sphere soon engendered an enlightened cri-
tique of these privileged institutions. Thus the sphere itself became po-
liticized. In France, as Roger Chartier adds in his own reading of
Habermas, it then provided fertile ground for a Revolution waged in
the name of the new "private" virtues of the domestic household and
civil society against the public corruption of the court and aristocracy.'2
Thirty years after publication the clarity and conceptual strength
of Habermas's work continues to impress, but does it still provide a use-
ful prism for viewing the French ancien regime? The Structural Trans-
formation, while in no way dogmatic, nonetheless reflects a Marxist
perspective whose relevance to the French case has been lef t in tattersby
thirty years of diligent revisionism. Habermas gives primacy to eco-
nomic developments and closely links the rising tide of print to the ex-
pansion of commercial capitalism. His central concept, that of a
"public sphere constituted by private people," refers explicitly to peo-
ple who come from a "realm of commodity exchange and of social la-
bor."'3 This "civic" or "bourgeois" public sphere derives its salient
characteristics from the way in which an emerging capitalist civil so-
ciety interacts with the absolutist and mercantilist state.
Yet as Habermas himself admits at several points, civil society in
this classic Hegelian sense barely existed in France before the Revolu-
tion, and the revisionist scholarship has only strengthened the point.'4
In France, the expanding reading public of the eighteenth century was
11JUrgenHabermas, The Structural Transformation of the Public Sphere: An Inquiry into a
Category of Bourgeois Society, trans. Thomas Burger and Frederick Lawrence (Cambridge, Mass.,
1989). For an examination of Habermas's influence on historians of prerevolutionary France, see
Benjamin Nathans, "Habermas's 'Public Sphere' in the Era of the French Revolution," French
Historical Studies 16 (1990): 620-44; and for a more critical view, Robert Darnton, "An Enlight-
ened Revolution?" New York Review of Books 38 (24 October 1991): 33-36. Dena Goodman,
"Public Sphere and Private Life: Toward a Synthesis of Current Historiographical Approaches to
the Old Regime," History and Theory 31 (1992): 1-20.
12 Chartier, Cultural Origins, esp. 193-98, drawing on themes explored more fully in Roger
Chartier, ed., A History of Private Life, vol. 3: Passions of the Renaissance, trans. Arthur Gold-
hammer (Cambridge, Mass., 1989).
13 Habermas, Structural Transformation, 14-26, 30.
14 For example, "Ultimately, the social basis for such institutions was lacking." Ibid., 67. A
handy summary of the revisionist work can be found in William Doyle, Origins of the French
Revolution (Oxford, 1980).

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916 FRENCH HISTORICAL STUDIES

not a public of merchants and industrialists. It was a public of office-
holders, financiers, idle rentiers, nobles, and above all, of lawyers (it
was only with slight exaggeration that Tocqueville remarked: "the
whole middle class was concerned in one way or another with the ad-
ministration of justice.")'5 In France, then, theories about the public
and public opinion developed in advance of the social "reality" that
supposedly underpinned them.
In France it can be argued that if an arena for open, rational public
discussion emerged in the early modern period, it did so in large part as
a result of political changes. Consider, for a moment, Tocqueville's
description of the effects of royal centralization upon French social rela-
tions. Thanks to the monarchy's effective consolidation of all authority
within itself, Tocqueville argued, other, previous ties of obligation,
whether of vassals to lords, clients to patrons, or members of corps to
each other, all withered away. There remained only artificial, dessi-
cated barriers of privilege between atomized individuals, who were es-
sentially equal because they stood in the same relation to the central
power. An organic, unified nation thus gave way to one divided be-
tween stateand society, the lattercomposed wholly of privateindividuals-
private, because they could neither discuss nor participate in affairs of
state.'6
Tocqueville's model, admittedly, has not fared particularly well in
recent years. Historians no longer describe the agents of the monarchy
as authoritarian, proto-Napoleonic bureaucrats, but as fairly prag-
matic sorts, who had their greatest success when they coopted or cooper-
ated with established elites instead of trying to run roughshod over
them. Far from abolishing corporate privilege, constant fiscal pressure
generally forced the crown to strengthen it (the better to milk it for rev-
enue).'7 Nonetheless, Tocqueville's central insight into changing so-
cial relations remains suggestive. Did the expansion and consolidation
of the central government not have the effect of breaking up local soli-
darities and creating a larger, national community composed of "pri-
vate" individuals?
"5 Alexis de Tocqueville, The OId Regime and the Revolution, trans. Stuart Gilbert (Garden
City, N.Y., 1957), 193. There were proportionally more lawyers in early modern France than there
are in France today, and lawyers, of course, dominated the successive revolutionary assemblies. See
Maurice Gresset, Gens de justice d Besan(on de la conquite par Louis XIV d la Revolution fran-
(aise, 2 vols. (Paris, 1978), 1:8, 39, 93.
16 Tocqueville, Old Regime and the Revolution, esp. 77-107.
17 The most important recent work on this subject is William Beik, A bsolutism and Society in

Seventeenth-Century France: State Power and Provincial Aristocracy in Languedoc (Cambridge,
1985); David Bien, "Offices, Corps and a System of State Credit," in Baker, ed., Political Culture,
89-114; Gail Bossenga, The Politics of Privilege: Old Regime and Revolution in Lille (Cam-
bridge, 1991); and Roger Mettam, Power and Faction in Louis XIV's France (Oxford, 1988).

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PUBLIC SPHERE, STATE, AND LAW 917

A possible "revised Tocquevillian" argument along these lines
might proceed as follows. Over the course of the seventeenth and eigh-
teenth centuries the crown did much to build up national lines of
communication. The intendants and subdelegues, even if they often
served principally as conduits of information rather than as governors,
nonetheless brought vast numbers of Frenchmen into direct contact
with the central administration for the first time. The monarchy
itself -rather than the capitalist interests described by Habermas-first
sponsored a national press in France, with the institution of the Gazette
de France, followed by the Mercure and Journal des Savants. Under
Louis XIV the monarchy bound members of ruling elites around France
into large, and increasingly bureaucratized patronage networks.'8
Yet even as the monarchy helped create a national community for
the first time, it also tried to elevate itself far above this community. The
Bourbon kings rejected any notion of the monarchy as merely the great-
est link in an interlocking chain of corporate bodies possessing an in-
dependent, divinely sanctioned existence.'9 They promulgated the idea
that the monarch could modify the institutions of his realm as he
pleased and generally direct the affairs of his individual subjects. They
put an end to, or twisted the meanings of the great public ceremonies
such as the royal entry and the lit de justice in which the kings had
shown themselves to the nation; royal ceremonial now focused on the
grandiose but remote court rituals of Versailles (subjects could still
come to view the king, but he no longer came to them). Finally, they
promoted the image of themselves as demi-gods, wholly removed from
their subjects.20These later developments occurred mostly on the level
of political symbolism, but they arguably had the effect of making large
numbers of French men and women aware of a dichotomy between
state and society. They also demonstrated the transient, malleable na-
ture of all associations below the level of the royal administration and
therefore encouraged the formation of new, less formal, noncorporate
ties, particularly after the passing of a powerful and charismatic mon-
arch in 1715.
18 See Beik, Absolutism and Society, esp. 223-44; Mettam, Power and Faction, 194-217;

Sharon Kettering, Patrons, Brokers and Clients in Seventeenth-Century France (New York, 1986).
19For one portrait of French society that portrays the social structure as having a natural hi-
erarchy similar to that of the heavens, ordained by God, see Charles Loyseau's famous 1613 work,
Traite des ordres et simples dignitez, in Les Oeuvres de maistre Charles Loyseau, avocat en parle-
ment (Paris, 1678). The most famous use of the metaphor of the chain is avocat general Seguier's
1776 description of France as a great chain of corporate bodies in Jules Flammermont, ed., Les
Remontrances du Parlement de Paris au XVIIIe siecle, 3 vols. (Paris, 1888), 3:344.
20 See, most recently on these themes, Michel Antoine, "La Monarchie absolue," and Ralph
Giesey, "The King Imagined," both in Baker, ed., Political Culture, 3-24 and 41-59. See also
Roger Chartier's comments on Giesey in Cultural Origins, 124-35.

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918 FRENCH HISTORICAL STUDIES

Obviously, all these developments did not take place under condi-
tions of social and economic stasis. Still, for non-Marxists there is no
reason automatically to assume that they are derivative or insignificant,
particularly in a country such as France, where government has bulked
so large in daily life from the seventeenth century to our own day. It is
also worth remembering the tremendous transformative force that con-
temporaryobserversattributed to their kings. "Nothing is more influen-
tial for the well-being of the social order than the public life of princes,
which is the living law," wrote Richelieu. And as one of Montesquieu's
Persian travellersobserved in The Persian Letters: "The French change
their customs according to the age of their kings. . . . The Prince im-
prints the character of his own mind on the court, the court does the
same to the city, and the city to the provinces. The sovereign's soul is a
mold which gives form to all others."92'
Any analysis that stresses the peculiar role of the French state also
necessarily puts the differences between France and Britain in high re-
lief. Yet Habermas, noting the roughly concurrent emergence of the
terms "public" and "public opinion" in Britain, France, and Germany
as well as the rising tide of print throughout the West, placed little em-
phasis on the individual national experiences. Indeed, he offered Brit-
ain as a "model case" and relegated France to a bit part as one of several
"continental variants."22The collapse of the old social interpretation,
by removing the common denominator of capitalist development and
opening the door to interpretations that stress the importance of politi-
cal history, has also highlighted the heterogeneity of eighteenth-
century European nations.23 We must now ask whether the differences
between the French, British, and German experiences are not more im-
portant than their similarities.
Where do these shifts in historical viewpoint leave our interpreta-
tion of late eighteenth-century France's political vocabulary? Haber-
mas assumed that the terms "public" and "public opinion" possessed a
clear meaning under the ancien regime: they expressed the bourgeois
public sphere's awareness of its own existence as a distinct social forma-
tion which existed in opposition to the "representative public sphere"
of the royal court, and whose values derived from private, domestic ex-

21 Richelieu, The Political Testament of Cardinal Richelieu, trans. Henry Bertram (Madi-

son, Wis., 1961), 68; Montesquieu, Lettres persanes (Paris, 1964), 161.
22 Habermas, Structural Transformation, 57-73, 89-102.
23 Unless, of course, one accepts J. C. D. Clark's somewhat exaggerated efforts to portray

eighteenth-century England as an ancien regime on the French model. SeeJ. C. D. Clark, English
Society, 1688-1832 (Cambridge, 1987).

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PUBLIC SPHERE, STATE, AND LAW 919

perience.24 In short, they provided a new label for a distinct and impor-
tant new social phenomenon. But where, now that this social phenom-
enon has come to seem such a paltry thing, are the novel experiences
that distinguished eighteenth-century readersfrom earlier ones? Where
is the emerging civil society whose interests and perspective diverged
from those of the court, giving "public opinion" its peculiarly critical
edge?
To understand the significance of the terms "public" and "public
opinion" in eighteenth-century French political language, then, one
must turn from partly illusory social changes to political changes and
to the venerable, but still lively, currents of thought that continued to
shape French political culture until the very end of the ancien regime.
In place of the rising bourgeoisie and the development of civil society,
one must examine the rising state and return to seemingly archaic ques-
tions of "true monarchy" and despotism, heresy and grace, and the way
they fared when presented by the printing press to a steadily growing
readership.

In the remainder of this article I would like to consider the relationship
between emerging notions of "the public" and one particularly impor-
tant ancien regime cultural site: the world of the law courts. As histori-
ans are only now coming to realize, the odd coexistence of a corporate
social structure and a repressive absolute monarchy in early modern
France made the court system the principal arena for legally expressing
social and political claims ("It cannot be emphasized enough," Wil-
liam Beik recently wrote, "that law suits were the society's principal
form of regulation and enforcement."25).The corporate system allowed
otherwise powerless individuals to articulate their claims in suits by
collective bodies, while the monarchy's intolerance of a free press or rep-
resentative institutions, combined with its inability to extend full con-
trol over the unruly parlements, drove nearly all licit political activity
into judicial channels. The conflicts between parlements and crown
dominated French political life throughout the eighteenth century,
with the parlements casting themselves as the defenders of the tradi-
tional French constitution against royal aggression.26

24 "The self-interpretation of the function of the bourgeois public sphere crystallized in the

idea of 'public opinion'." Habermas, Structural Transformation, 89.
25 Beik, Absolutism and Society, 225.
26 On the use of lawsuits by corporate bodies, see Michael Sonnenscher, "Journeymen, the

Courts and the French Trades, 1781-179 1," Past and Present, no. 114 (1987), esp. 90; and Hilton
Root, Peasants and King in Burgundy: Agrarian Foundations of French Absolutism (Berkeley,
1987), esp. 183-93. On the parlements as the main arena for political contestation there is a bur-

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920 FRENCH HISTORICAL STUDIES

I will argue that j urists, who did so much to introduce the figure of
"the public" into French political language in the context of these con-
flicts, naturally drew on their own training and experience in their at-
tempts to rethink a political landscape altered by the ambitions of the
monarchy. They drew both on the habits of the law courts and on a par-
lementaire political tradition that stretched back to Renaissance au-
thors such as Seyssel and Loyseau, and retained surprising vigor until
the very end of the ancien re'gime.27 This tradition provided an initial
context for the jurists' understanding of what "the public" meant, and
their invocation of "the tribunal of public opinion" served as a means
of continuing and vindicating it. Thanks to the central position of the
legal system in French political culture, moreover, the jurists' concep-
tion of the "public" had extensive influence. Tocqueville first advanced
this point of view in the 1850s:
The practices of the law courts had entered in many ways into the pat-
tern of French life. Thus the courts were largely responsible for the
notion that every matter of public or private interest was subject to
debate and every decision could be appealed from; as also for the
opinion that such affairs should be conducted in public and certain
formalities observed. Obviously incompatible with the concept of a
servile state, such ideas were the only part of a free peoples' education
furnished by the old regime.28

Most historians, however, have not yet paid heed.
There is one (rather Tocquevillian) historian-Keith Michael
Baker-who has pointed to the crucial importance of the juridical tra-
dition in what he calls "the invention of public opinion."29 The ab-
stract figure of the public, Baker argues, first began to acquire attributes
of sovereignty in the context of the great political struggles of the 1750s
between the crown and the sovereign courts. These struggles amounted
to a crisis of royal authority in which both sides-crown as well as
courts-needed to find new criteria of legitimacy for their political
claims. They did so by appealing to the abstract "tribunal of public
opinion," which they portrayed as rational, depoliticized, and infalli-
ble. In fact, in the hands of the polemical authors of the mid-century,
"the public" came to seem a sort of shadow monarch, possessing the

geoning literature. See notably Van Kley, The Damiens Affair; and Jean Egret, Louis X V et l'op-
position parlementaire (Paris, 1970).
27 See Dale Van Kley, "The Jansenist Constitutional Legacy in the French Pre-Revolution,
1750-1789," in Baker, Political Culture, 169-202.
28 Tocqueville, Old Regime and the Revolution, 117.
29 Baker, Inventing the French Revolution, esp. 167-99.

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PUBLIC SPHERE, STATE, AND LAW 921

same qualities of justice, reason, and will formerly attributed to the
king himself. It would remain the highest standard of legitimacy in
France until the revolutionaries found a more satisfactory way of knit-
ting up the unravelled strands of "monarchical discourse" in their vi-
sion of the sovereign nation.30
Baker's account is an attractive one. For one thing, it removes the
need to attribute the explosion of political discussion in the 1750s
simply to the slow development of a civic public sphere, itself rooted in
a supposedly expanding civil society. Baker has provided a specific,
political genealogy for these changes. He has also shown the impor-
tance of relating eighteenth-century discussions of "the public" to the
iongue duree of French political language. In his overtly Tocquevil-
lian scheme, the French ideal of public opinion, which its exponents
contrasted to the unsettling and chaotic democracy found in England,
reveals the continued French longing for some sort of "absolute"
authority-even in the midst of terrible strife over the reality of Bour-
bon rule.
Baker, however, tends to describe the French political scene before
1750 as somewhat static and monolithic. He argues that until this date
France had but a single "theory of royal absolutism," premised on the
notion that politics, properly speaking, should take place only within
the king's head. This theory supposedly exercised hegemony over polit-
ical thought until the nation abruptly "broke out of the absolutist
mold" following the refusal of sacraments crisis that began in 1749.31
The break itself, however, seems largely fortuitous in Baker's account,
and his somewhat schematic contrast between the supposedly placid
waters of the first half of the century and the stormy seas of the second
half lead him to underestimate the continuities between the two.
Was the "theory of royal absolutism" so generally accepted before
the 1750s?The idea would doubtless have pleased early modern apolo-
gists for the crown, but it would have sent good parlementaires leaping
to their feet to offer a remonstrance. To be sure, few parlementaires,
even during the heat of the Fronde, ever denied the king's God-given
right to rule or asserted the subject's right to resist.32Nonetheless, in a

30 In Baker's account, a unified "monarchical discourse" broke apart in the 1750s into three
separate strands: the "discourse of justice" expressed in parlementaire claims; the "discourse of
reason" expressed by enlightened royal administrators such as Turgot; and the "discourse of will"
expressed by Rousseauian exponents of popular sovereignty. See ibid., esp. 109-27.
31 Ibid., 169-70. The refusal of sacraments crisis pitted the Parlement against the crown in a
dispute over whether parish priests, at the instigation of the ultramontane Archbishop of Paris,
could withhold the last rites from suspected Jansenists and whether they could be overruled by the
magistrates. See Van Kley, The Damiens Affair, 99-127.
32 Even Louis-Adrien Le Paige, the master parlementaire theorist, carefully resisted the temp-

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922 FRENCH HISTORICAL STUDIES

thoroughly Catholic nation, where the very idea of a written constitu-
tion remained mostly unthought, political claims turned less around
the king's statutory prerogatives than around his moral obligations,
and on this score two very different ideas of monarchy had competed
since the sixteenth century.
The jurists' vision of monarchy remained deeply rooted in medi-
eval political thought. Thus it emphasized the distinction between the
king's own frail and sinful political body and a "royal majesty" envel-
oping the institutions of justice that never died.33Ever since 1610 royal
publicists had attempted to reject this distinction, but jurists continued
to assert it explicitly as late as 1715, and it remained a fundamental
premise of parlementaire thought for much longer.34The jurists also
emphasized the king's moral duties as a Christian ruler. As Claude de
Seyssel wrote, the unwritten constitution of the realm imposed certain
restraints (freins) upon him.35 It dictated that he take counsel conscien-
tiously from his priests and his judges and that he respect both the fun-
damental laws of the kingdom and those positive laws laid down by his
predecessors and himself. This conception of royal authority differed
thoroughly from the one advanced by apologists for the Bourbon kings
(notably Bossuet) who stressed the king's God-given right to determine
as he saw fit the institutions through which his power passed and the
individuals who staffed them.
As Marc Fumaroli suggests in his history of rhetoric, the differ-
ences between these conflicting theories of monarchy lay embedded in a
series of broad cultural divisions.36 The Palais de Justice constituted a
separate cultural sphere that stood in stark opposition-sometimes po-
lar opposition-to the world of the royal court. The court was the
realm of mannerist painting, Ciceronian paeans to the greatness of the

tation to follow heretical predecessors such as Hotman and Duplessis Mornay on the question of
the right of resistance. See Louis-Adrien Le Paige, Lettres historiquessur lesfonctions essentielles
du Parlement, sur le droit des pairs, et sur les loix fondamentales du Royaume, 2 vols. (Amster-
dam, 1753-54), 1:152.
33 See Ernst H. Kantorowicz, The King's Two Bodies:A Study in Medieval Political Theology
(Princeton, 1957); and, for the French incarnation of these ideas, Ralph E. Giesey, The Royal
Funeral Ceremony in Renaissance France (Geneva, 1960).
34 Sarah Hanley, The Lit de Justice of the Kings of France: Constitutional Ideology in Leg-
end, Ritual and Discourse (Princeton, 1983); The jurist Claude-Joseph Provost, in 1715, still dis-
tinguished between "the King's own person," and "the invariable and perpetual order of the
Kingdom, which is independent of the life and death of Kings." Claude-Joseph Prevost, Memoire
pour les trois docteurs et curez de Reims, au sujet des poursuites contre eux faites pour raison de la
Constitution Unigenitus (Paris, 1716), 7.
35 Claude de Seyssel, The Monarchy of France, trans. J. H. Hexter (New Haven, Conn., 1981),
esp. 49-51.
36 Marc Fumaroli, L'Age de l'eloquence: Rhetorique et "res literaria" de la Renaissance au
seuil de l'epoque classique (Geneva, 1980).

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PUBLIC SPHERE, STATE, AND LAW 923

king, Jesuitical theology, and the cult of luxury. The parlements, by
contrast, stood for austerity, self-denial, and a pessimistic Augustinian
faith that, if not wholly Jansenist, was at least jansenisant. Needless to
say, this world-view was well suited to men who saw themselves as a
restraint upon an all-too human, all-too fallible monarch. Thus the
parlementaire critique of royal absolutism extended quite naturally to
what Norbert Elias has dubbed "the court society."37
During the late seventeenth and eighteenth centuries, as the crown
began to advance the notion of an "administrative monarchy," the par-
lements reacted in two somewhat contradictory ways. On the one hand,
they called for a return to the days of a "judicial monarchy" which
firmly enmeshed the crown within a system of restraints and corporate
obligations. Increasingly, however, they accepted the existence of a di-
chotomy between king and "nation," but rather than treating the latter
as a passive substance to be acted upon by the royal administration,
actively defended its rights and prerogatives. As this point of view cir-
culated in printed copies of the high courts' remonstrances, the
parlements too contributed to the creation of a self-conscious national
community.38

When examining the polemical conflicts of the 1750s, it is important to
look particularly at one group within the Parlement: the lawyers,
whose ranks produced the most important legal thinkers and publi-
cists. In the previous century, the practice of venality of offices had pro-
pelled magistrates into a higher, noble stratum of French society (the
noblesse de robe), and led them to adopt many of the values of the court
society. Matters were different for the non-noble lawyers. They re-
mained loyal to the late Renaissance idea that men of the law as a whole
constituted a separate, elite "order" of society and that they possessed a
special vocation requiring continuous study and self-sacrifice. The
leaders of the bar privately reproached the magistrates for aristocratic
airs and for undue submission to the imperious Louis XIV, who had
severely curtailed the parlements' right of remonstrance. The lawyers
in fact saw themselves as the last beleaguered defenders of a once-proud
"judicial monarchy." This attitude toward the crown was only exacer-
bated by the fact that a rigid and uncompromising Jansenism com-
pletely dominated the bar.39

37 Norbert Elias, The Court Society, trans. Edmund Jephcott (New York, 1983).
38 See Roger Bickart, Les Parlements et la notion de souverainete nationale au XVIII siecle
(Paris, 1932); and more recently Van Kley, The Damiens Affair, 166-225.
39 See David A. Bell, "Lawyers and Politics in Eighteenth-Century Paris (1700-1790)" (Ph.D.

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924 FRENCH HISTORICAL STUDIES

In the early eighteenth century the lawyers began to assert this sep-
arate identity in several ways. First, they created a powerful, autono-
mous bar association devoted to the defense of Jansenism and to the
parlementaire vision of the French constitution. While a small core of
zealous Jansenist lawyers did most of the work, they had the open sup-
port of more than a third of all lawyers in active practice (who risked
royal censure by signing Jansenist manifestoes), and they ruthlessly
disbarred anyone who opposed them.40 In other words, in the mid-
eighteenth century membership in the bar virtually connoted taking a
critical view of the monarchy. Second, the lawyers developed a weapon
that allowed them to articulate this criticism before a wide readership
with virtual impunity: the so-called memoires judiciaires, or printed
legal briefs.4' Under the ancien regime, these pamphlet-like documents
had the unique privilege of circulating without preliminary censor-
ship, and in the 1720s and 1730s the lawyers used them to turn trials of
Jansenists into sensational causes celebres that greatly embarassed the
government of Cardinal Fleury. A frustratedadvisor to the government
exclaimed in 1731 that the Order of Lawyers had become "a sort of abso-
lutely independent little republic in the very center of the state."42
Thanks to the freedoms it now enjoyed, which stood in stark con-
trast to the strictly controlled French press, the Paris bar soon became
the most important breeding-ground of political publicists-a virtual
grande ecole of propaganda. Of sixty-four important polemical texts
printed between 1750 and 1775 and cited by Carroll Joynes in his study
of "opposition theory in the Parlement of Paris," fully forty-three-as
well as portions of the Parlement's remonstrances-came from the pens
of Parisian lawyers.43As soon as a young member of the bar demon-
strated any polemical skills, the Parlement sought to recruit his ser-

diss., Princeton University, 1991), 79-109. A revised version is forthcoming from Oxford Univer-
sity Press in 1993.
40 Ibid., 147-208. In the single case of a Jansenist priest suspended by the bishop of Cambrai
in 1740, 126 lawyers affixed their signatures to widely circulated printed briefs for his defense.
Recueil des Consultations de MM. les Avocats du Parlement de Paris au sujet de la procedure
extraordinaire instruite a l'Officialite de Cambrai, contre le Sieur Bardon (Paris, 1740).
41 See Sarah Maza, "Le Tribunal de la nation: Les MWmoires judiciaires et lopinion publique
a la fin de l'ancien regime," Annales: E.S.C. 42 (1987): 73-90.
42 AAE-MDF 1270, fol. 279v.
4 D. Carroll Joynes, "Jansenists and Ideologues: Opposition Theory in the Parlement of Paris
(1750-1775)" (Ph.D. diss., University of Chicago, 1981). Speakingof these lawyers, Dale Van Kley
writes that "it was they who, to a much larger extent than the magistrates, laid the legal founda-
tions upon which the parlement's positions on the religious and ecclesiastical controversies of this
period were erected." Dale Van Kley, The Jansenists and the Expulsion of the Jesuits from France,
1757-1764 (New Haven, 1975), 60. For participation by lawyers in the composition of remon-
strances, see Van Kley, The Damiens Affair, 190, and Van Kley, The Jansenists, 54-55.

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PUBLIC SPHERE, STATE, AND LAW 925

vices.44Lawyers proved such effective publicists that the crown, once it
joined the ideological battle, recruited its own hired pens from among
discontented members of the same small stable.45The crown's decision
to appeal to public opinion in the first place came on the advice of the
lawyer Jacob-Nicolas Moreau, who himself wrote some of the most
popular royalist works.46

Given the ways in which conflicts involving the judicial system helped
create an independent sphere of public discussion in France, it is worth
asking how much the parlementaire vision of monarchy shaped the
idea of "sovereign public opinion" which grew up during this period.
It would, of course, be simplistic to speak of a single idea of public
opinion, or to privilege one particular set of intellectual influences. As
Jurgen Habermas and Keith Baker have both stressed, eighteenth-
century French writings on the subject were hardly unanimous and
drew on diverse philosophical traditions. Nonetheless, it is possible to
trace important filiations between the world of the law courts and ideas
of public opinion. These filiations lie particularly in three areas.
Consider, first of all, the idea that the "public" judged all matters
according to the moral standards of the intimate domestic sphere. Par-
ticularly during the heyday of Rousseauism, authors invoking the
"tribunal of public opinion" often presented social and political con-
flicts as familial strife writ large, while infusing certain family dramas
with great political significance. Seen through the prism of newssheets
such as the Memoires secrets, the last twenty years of the ancien regime
resemble nothing so much as an endless series of domestic soap operas:
the Veron-Morangies dispute over an unpaid loan; the countess de Sa-
nois's imprisonment of her husband; the separation of M. and Mme.
Kornmann; above all, the notorious affair of the Diamond Necklace.47

44 See, for instance, the reminiscences of Jacob-Nicolas Moreau, in Mes souvenirs, 2 vols. (Paris,
1898-1901), 1:49.
45 See Bell, "Lawyers and Politics," 212-13.
46 For Moreau's recommendation to the crown, see his memorandum Principes de conduite
avec les parlements, Bibliotheque du Senat 402, fols. 27-135. On Moreau's contribution to the
ideological debate, see Baker, Inventing the French Revolution, 59-85. Among Moreau's work
was the notorious Lettre du Chevalier de *** diMonsieur ***, Conseiller au Parlement, ou Ref lex-
ions sur 'arrest du Parlement du 18 Mars 1755 (n.p., [1755]). For indications of its success, see
Moreau, Mes souvenirs, 1:50, and, for Le Paige's view, BPR-LP 535, no. 155.
47 These developments are discussed above all in the work of Sarah Maza. See, among her
articles, "Le Tribunal de la Nation"; "Domestic Melodrama as Political Ideology: The Case of the
Comte de Sanois," American Historical Review, 44 (1989): 1249-64; and "The Diamond Necklace
Affair Revisited (1785-1786): The Case of the Missing Queen," in Eroticism and the Body Politic,
ed. Lynn Hunt (Baltimore, 1991), 63-89. For further reflections on these themes, see Chartier, Cul-
tural Origins, 34-36 and 195-97; Lynn Hunt, The Family Romance of the French Revolution
(Berkeley, 1992), 17-52; and Chartier, ed., A History of Private Life. The Memoires secrets pour

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926 FRENCH HISTORICAL STUDIES

The court system and lawyers' memoires judiciaires became the prin-
cipal arena for this collision of intimate scandal and high politics, as
they had been for so many ancien regime conflicts. Roger Chartier sug-
gests that through these cases, "people became accustomed to seeing
individual affairs transformed into general causes." He sees an imposi-
tion of "private" values on political life and interprets it as a harbinger
of Revolutionary political culture.48
Scholars influenced by Habermas naturally explain these cultural
shifts in terms of his model of a "public sphere" grounded in bourgeois
civil society and domestic experience. As Habermas himself writes:
"The public's understanding of the public use of reason was guided
specifically by such private experiences as grew out of the audience-
oriented subjectivity of the conjugal family's intimate domain." And
he adds: "The status of private man combined the role of owner of
commodities with that of head of the family, that of property owning
with that of 'human being' per se."49Thus the sentimental, melodra-
matic, subjective language that became so fashionable toward the end
of the ancien regime, with its constant references to good and bad fa-
thers, to dutiful and prodigal sons, is read as the sign of a new series of
social relationships. Moreover, it is the language itself, with its pre-
scriptions for the structure of the family and the relations between the
sexes, which historians now see as the most important feature of prere-
volutionary political writing. The interest of the great causes celebres
of the end of the ancien regime, for instance, is said to lie less in their
overtly political content (the word of a noble versus a bourgeois in the
Wron case, habeas corpus in the Sanois affair), than in the language of
"intimate experience" used by the lawyers who publicized them.50
The difficulty with this approach is that it tends to conflate two
different phenomena: first, the literary styles derived from Rousseau
and the drame bourgeois, and secondly, the strategy of transforming
individual dramas into universal morality plays. The second of these
was hardly an invention of the end of the ancien regime. In one sense, it
constitutes a fundamental part of legal practice, particularly in nations
(such as prerevolutionary France) where interpretation of the law relies
on the notion of precedent; that is to say, the notion that all legal cases
have potential exemplary value. In France, moreover, the extraordinary

servir a l'histoire de la republique des lettres, 36 vols. (London, 1777-89), is commonly attributed
to Louis Petit de Bachaumont.
48 Chartier, Cultural Origins, 197.
49 Habermas, Structural Transformation, 28-29.
50 Maza, "Domestic Melodrama," 1263.

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PUBLIC SPHERE, STATE, AND LAW 927

litigiousness described above had long accustomed members of the elite
to put their individual grievances before the reading public (in the form
of memoires judiciaires), and to present their cases in "universal"
terms so as to garner as much sympathy as possible.
The causes cele'bresof the 1760s, 1770s, and 1780s indeed featured a
number of victims transformed by their advocates into paradigmatic
victims of a corrupt regime and martyrs in the struggle for enlighten-
ment: Calas and Sirven are only the most well known. Yet long before
these cases came to trial, Jansenist parlementaire lawyers had used ex-
actly the same strategy to advance their campaign against an allegedly
corrupt and despotic church. The scores of memoires judiciaires they
published between 1715 and 1750 featured a series of what amounted to
stock characters, notably saintly, preternaturally innocent Jansenist
clerics and the deceitful, corrupt ecclesiastical opponents of Jansenism,
behind whom could be discerned the withered, evil hand of the Society
of Jesus.5' The most spectacular case involved a Jesuit father, Jean-
Baptiste Girard, accused in 1731 of having seduced a young woman
under his spiritual care. The memoires composed by the Jansenist law-
yers gleefully associated the priest's theological and sexual corrup-
tion.52 In order to endow specific cases with universal meaning, Roger
Chartier writes of the later memoires, "a different writing style had to
replace the customary legal prose [to] give narration a dramatic
form."53Yet just as the late-eighteenth century lawyers borrowed from
fashionable literary genres for this purpose, so their predecessors also
had literary models of their own in the Bible and the rhetoric of the
pulpit, which allowed them too to reach beyond the dusty covers of
their lawbooks.54
Perhaps, then, the self-conscious appropriation of Rousseau and
the drame bourgeois by the authors of memoires judiciaires toward the
end of the ancien regime amounted to something less than a fundamen-

1' See David A. Bell, "Des strategies d'opposition sous Louis XV: L'Affaire des avocats,
1730-31," Histoire, economie et societ&,9, no. 4 (1990).
52 On the case, see Georges Hardy, Le Cardinal de Fleury et le mouvement janseniste (Paris,
1925), 261; and Felix Rocquain, L'Esprit revolutionnaire avant la Revolution, 1715-1789 (Paris,
1878), 79.
53 Chartier, Cultural Origins, 35.
54 Consider this typical peroration by the Jansenist lawyer Louis Chevallier in 1716, noting
the subtle replacement of the "they" of his clients (Jansenist theologians suspended by their arch-
bishop) by an all-embracing "we": "But we are not slaves. We do not have to put up with the yoke
of blind obedience. We are the children of a free woman [that is, the Church], and we hold our
freedom from our divine master."Louis Chevallier, "Premier plaidoyer," in Plaidoyers de Mr. Joly,
en faveur des trois chanoines, &des trois Curez de Reims, pour &tredecharges de la Sentence d'ex-
communication prononcee contr'eux, le 17. juin 1715, au sujet de la Constitution Unigenitus
(nip., n.d.), 19.

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928 FRENCH HISTORICAL STUDIES

tal transformation of the genre. The new language of sentiment and
subjectivity allowed lawyers to play the old game of using a case to
make broad political points in a particularly intense and effective
manner, particularly after the strict overseeing of memoires by the con-
servative, Jansenistic lawyers' corporations collapsed in the wake of the
Maupeou crisis of the early 1770s.55But it was not the language itself
that "accustomed people to seeing individual affairs transformed into
general causes." Nor was it a fundamental new set of social relations,
woven around the bourgeois private sphere, that led individual readers
to search for universal significance in particular, exemplary cases. In
France, where the very social structure had long made individual law-
suits the vehicles for the claims of entire corporations and orders, the
legal pyrotechnics that blazed in the twilight of the ancien regime rep-
resented the adaptation of a long-standing means of political expres-
sion to a world of rapidly expanding readership and to a society
increasingly conscious of its separation from the state.
The practices of the law courts also had an influence on the con-
ception of the "public" as something exclusively masculine. Feminist
scholars have recently drawn attention to the misogynistic assumptions
present in much eighteenth-century French political writing, particu-
larly that which drew on the traditions of classical republicanism. Both
before and during the revolution, this writing condemned the politics
of the court and high aristocracy not only for its corruption and despo-
tism but for its effeminacy. The authors depicted a Versailles inhabited
by unrestrained, domineering women and weak, androgynous men.
They contrasted it to a model "public" made up of virtuous, masculine
men who took part in rational conversation and relegated their wives to
the management of the household and the upbringing of children.56
Joan Landes has recently gone one step further and argued, relying
heavily on Habermas, that the construction of a "civic public sphere"
entailed the physical exclusion of women from positions they had once
held in French public life.57 She contrasts the highly visible role of

55 On the effects of the Maupeou crisis, see David A. Bell, "Lawyers into Demagogues: Chan-
cellor Maupeou and the Transformation of Legal Practice in France, 1771-1789," Past and Present,
130 (1991), 107-41.
56 See, for instance, Maza, "Domestic Melodrama," 1259-61; Lynn Hunt, "The Many Bodies
of Marie Antoinette: Political Pornography and the Problem of the Feminine in the French Revo-
lution," in Hunt, ed., Eroticism and the Body Politic, 108-30; Dorinda Outram, "Le Langage mdle
de la vertu: Women and the Discourse of the French Revolution," in The Social History of Lan-
guage, ed. Peter Burke and Roy Porter (Cambridge, 1987), 120-35.
57 Joan B. Landes, Women and the Public Sphere in the Age of the French Revolution
(Ithaca, 1988). See, however, Olwen Hufton's telling criticism in a review in theAmerican Histori-
cal Review, 46 (1991), 528-29.

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PUBLIC SPHERE, STATE, AND LAW 929

women in the court society of Versailles and in salons to the exclusively
male world of the Revolutionary assemblies, which was itself prefig-
ured in the late eighteenth-century "public sphere."58Adopting a
Marxist perspective that is, if anything, more emphatic than Haber-
mas's, Landes argues that the critique of the court society as "effemi-
nized" and hence corrupt began with "aristocratic" opponents of salon
culture and was later appropriated by "bourgeois" republicans.59
It is perhaps worth recalling that whatever toleration of powerful
women may have existed in the salons and the royal court certainly did
not extend to that opposite pole of French political life, the parlements.
The world of the law had always been exclusively male. Indeed, legal
orators could receive no greater compliment than to hear that they had
spoken with "male eloquence."60 While magistrates and their wives
(who had, of course, partially assimilated into the older aristocracy)
sometimes participated in salon culture, lawyers and their wives re-
mained aloof from this milieu until the last decades of the old regime.
Consider that the greatest portrayal of subdued feminine domestic
virtue in eighteenth-century French literature is none other than the
wife of a magistrate: la presidente de Tourvel of Choderlos de Laclos's
Les Liaisons dangereuses. Sarah Hanley, in her recent research, has
argued that jurists led the way in constructing a "male model of author-
ity" in France. From the late sixteenth century, she suggests, they spear-
headed a movement to limit women's rights within the family as a
means of protecting the transmission of their venal offices.6' One
might also recall the young Bordeaux magistrate named Montesquieu
who wrote, in the 1721 Persian Letters, that women secretly controlled
the levers of power in France.62
It is true that the Jansenist movement was, in some ways, remark-
ably open to female participation. 63Father Pasquier Quesnel, in a pas-

58 This argument depends on identifying the public sphere with the Rousseauian version of
classical republicanism. See Keith Baker's criticism in "Defining the Public Sphere in Eighteenth-
Century France: Variations on a Theme by Habermas," in Habermas and the Public Sphere, ed.
Craig Calhoun (Cambridge, Mass., 1992), 181-21 1, esp. 198-208.
59 Landes, Women and the Public Sphere, 39-65.
60 See for instance, the recollections of the magistrate Pierre-Augustin Robert de Saint-
Vincent: "J'avoue que j'admire avec plaisir que l'Yloquence forte, male et nerveuse de Port-Royal
se soit &endue d&slors sur le barreau du Parlement de Paris." Memoires du conseiller Pierre-
Augustin Robert de Saint-Vincent, typed copy, Archives de la Famille Vinot Prefontaine, p. 6.
61 Sarah Hanley, "Engendering the State," 27.
62 Montesquieu, Lettres persanes, 173-74.
63 See particularly F. Ellen Weaver, "Erudition, Spirituality and Women: The Jansenist Con-

tribution," in Women in Reformation and Counter-Reformation Europe, ed. Sherrin Marshall
(Bloomington, Ind., 1989), 189-206; and Shanti-Marie Singham, "Vox populi, vox Dei: Les
Jansenistes pendant la revolution Maupeou," in Jansenisme et Revolution, ed. Catherine-
Laurence Maire, published as Chroniques de Port-Royal, no. 39 (1990), 183-93.

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930 FRENCH HISTORICAL STUDIES

sage condemned by the notorious Bull Unigenitus, argued that men
and women had an equal right to read Scripture: "The abuse of the
Scriptures, and heresy, come not from the simplicity of women but
from the arrogant science of men."64It is also true that open attacks on
Louis XV's morality came less from the Jansenists (who abstained for
tactical political reasons) than from the Jesuits.65 Still, if Jansenism af-
forded women a greater say in religious matters, it did so only in the
context of a larger effort to remove religion from the public sphere alto-
gether. Jansenists stressed the relationship between individuals and
God, downplayed the importance of the ecclesiastical hierarchy, and
argued (particularly in Quesnel's case) for the complete subordination
of the church to the state. The greater liberty offered to women in reli-
gious matters, therefore, was entirely compatible with their seclusion
in the domestic realm.
Meanwhile, Jansenist-parlementaire criticism of the royal court as
lax, sensual, and corrupt openly indicted its effeminacy and the influ-
ence of royal mistresses. The Jansenist theologians Antoine Arnauld
and Jacques-Joseph Duguet both warned, for instance, that the promi-
nence of women in the court and salons would lead to a weakening of
the state (Joan Landes, unfortunately, cites these two men as her exam-
ples of the "traditional aristocracy").66By the end of the Old Regime,
lawyers schooled in Jansenist-parlementaire ideology had emerged as
some of the harshest critics of court society, particularly, as Sarah Maza
has shown, in the best-selling memoires judiciaires of the Diamond
Necklace affair.67 Here, effeminacy and despotism were explicitly
equated. The monarchy's refusal to submit itself to the proper moral
restraints in matters of sexuality helped explain its refusal to submit
itself to the proper, parlementaire restraints in matters of governance.
Perhaps, then, the increasingly exclusionary nature of writings on the
"public" (and, if Landes is to be believed, the physical exclusion of
women from public life) derived at least in part from the growing abil-
ity of moralistic parlementaire lawyers to shape political discussion ac-
cording to their own preconceptions.
The culture of the law courts also had an impact on the peculiarly
French definition of public opinion as something stable, rational, un-
divided, and removed from the hurly-burly of day-to-day politics. Ac-

64 Quoted in Catherine-Laurence Maire, Les Convulsionnaires de Saint-Medard: Miracles,
convulsions et propheties a Paris au XVIIIe sicle (Paris, 1985), 37.
65 Van Kley, The Damiens Affair, 238.
66 Landes, Women and the Public Sphere, 26-27.
67 Maza, "The Diamond Necklace Affair Revisited."

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PUBLIC SPHERE, STATE, AND LAW 931

cording to Keith Baker, eighteenth-century writers, horrified by the
unruly example of English politics and the memory of civil war, turned
away from earlier notions of "public opinion" as fickle and easily
misled (notions linked to the classical opposition between opinion and
knowledge). Instead, they increasingly portrayed it as a possible re-
straint on the Hobbesian tendencies towards conflict and violence pres-
ent in every political society. They also insisted that because rational,
empirical consideration of the facts could only lead to a single conclu-
sion, true "public opinion" was necessarily unanimous.68 They did
not, however, see any direct institutional outlet for public opinion; it
functioned in the political realm principally as a moral restraint.
Necker, one of the most influential contemporary analysts of the phe-
nomenon, admitted as much in De ladministration des finances: "It
reigns over all minds, and princes themselves respect it, whenever they
are not carried away by excessive passions" (emphasis mine).69
In some ways, this conception of public opinion sounds quite
novel. Baker links it above all with the physiocratic school exemplified
by Turgot.70 In many respects, however, it recalls nothing so much as
the parlementaire vision of the French nation. Jurists from the time of
the Fronde to the Revolution justified their opposition to the crown by
casting the high courts as the descendants of the general assemblies of
the Frankish people on the Champ de Mars. These assemblies, they
claimed, reached decisions by acclamation, not by majority rule.71To
be sure, the parlements did not have a monopoly on the notion of una-
nimity, which also appears in the Social Contract and in the stream of
Rousseauian writings Keith Baker has labeled the "discourse of will."72
Rousseau and his followers, however, hardly saw an assembly of the
people as a mere moral restraint. By contrast, the parlements, except
when at their boldest, stressed that they had no direct institutional
power, only the privilege of presenting "humble remonstrances and rep-
resentations" to the ruling monarch. They amounted to a mere "re-
straint" on the king, and more broadly, on a naturally degenerative
society.73 All in all, this sense of a morally powerful but institutionally

68 See Baker, Inventing the French Revolution, esp. 193-97.
69 Quoted in ibid., 194.
70 Baker, "Defining the Public Sphere," 194-98.
71 See Joynes, "Jansenists and Ideologues," and Van
Kley, The Damiens Affair, 166-225.
Medieval conciliarist theory, which also emphasized unanimity and continued to influence
eighteenth-century jurists, gave powerful reinforcement to these ideas. See Dale Van Kley, "The
Estates General as Ecumenical Council: The Constitutionalism of Corporate Consensus and the
Parlement's Ruling of September 25, 1788,"Journal of Modern History, 61 (1989), 1-52, esp. 32.
72 Baker, Inventing the French Revolution, 123-26.
73 To quote the Great Remonstrances of 1755: "Without justice [embodied in the magistrates

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932 FRENCH HISTORICAL STUDIES

impotent restraint comes much closer to late eighteenth-century ideas
of "public opinion" than any Rousseauian political vision did.
As usual, the magistrate Malesherbes put matters most clearly. In
his "Remonstrances of the Cour des Aides of May 6, 1775," one of the
greatest statements of parlementaire theory, he included a reworking of
Claude de Seyssel's scheme of "restraints" (freins) on the monarchy, but
this time with a new set to replace the aging trio of justice, religion, and
police. "Thus, in a well-governed country (pays police) . . . all the
holders of sovereign power should be subject to three sorts of restraints:
that of the Laws, that of recourse to higher authority, and that of public
opinion."74 In other words, Malesherbes explicitly assimilated public
opinion into the framework of parlementaire ideology and likened its
operation to the operation of the law courts themselves.
Later on in the remonstrance, Malesherbes drew this connection
between the "public" and the world of the law even more closely. In an
apparent digression from his complaints against the king's agents, he
presented a brief history of France, divided into three sections: the age
of oral communication, the age of writing, and the age of printing.75 He
noted that in the first age, all public affairs took place transparently, in
the midst of open assemblies, and left no room for secrecyand dissimula-
tion. In the second age, however, justice and administration became
more specialized and fell into the hands of a small number of literate
experts (particularly the agents of royal finance) who tyrannized over
the population. The age of printing, however, promised an end to this
arbitrary rule. Now, "Judges themselves can be judged by a learned
Public," he wrote.76 Malesherbes added, however, that the effects of
printing had only developed slowly:
The whole Nation has had to develop the tasteand habit of instruct-
ing itself through reading, and enough men have had to become
skilled in the art of writing to lend their ministry to all the Public,
and to take the place of those endowedwith naturaleloquence who
spoke to our fatherson the Champ de Mars.77

themselves], there would be nothing but trouble, discord and anarchy among men . . . natural
liberty would be but monstrous license." "Remontrances du Parlement de Paris du 27 novembre,
1755," in Remontrances du Parlement de Paris au XVIII siecle, ed. Jules Flammermont, 3 vols.
(Paris, 1888), 2:86.
74 Chretien-Guillaume de Lamoignon de Malesherbes, Les 'Remontrances' de Malesherbes,
1771-1775, ed. Elisabeth Badinter (Paris, 1978), 204. See Keith Baker's cogent commentary on this
text in Inventing the French Revolution, 117-20.
75 Malesherbes, 'Remontrances,' 270-73.
76 Ibid., 272.
77 Ibid., 273.

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PUBLIC SPHERE, STATE, AND LAW 933

Significantly, Malesherbes used a phrase- "lend their ministry" (preter
leur ministere)-normally used to describe the activities of lawyers.
Did he have lawyers as well as men of letters in mind? His papers indeed
suggest that he sketched out many of the ideas for the "Remonstrance"
a year earlier in two "Essayson the Lawyers" written for Turgot, which
defended the unique status of memoires judiciaires.78 Thus it seems
clear that Malesherbes saw the emergence of "public opinion" as a re-
turn to the primordial Frankish assemblies that lay at the heart of par-
lementaire theory and attributed men of the law a special position
vis-a-vis the public as the inheritors of the original Frankish orators.

These three examples show that the law courts shaped the changing
political language of late eighteenth-century France, and particularly
conceptions of the "public," in important ways. They suggest that
when eighteenth-century French men and women sought to under-
stand the continuing changes brought by the advance of the printing
press, commerce and the centralized state, they used mental tools de-
rived in great part from their nation's powerful "legal culture." At the
same time, this culture itself flexed and changed as the expansion of
readership opened up new possibilities for jurists, and as the notion of
"public opinion" intruded upon the venerable terrain of parlementaire
conflicts.
Obviously, the new politics of public opinion amounted to far
more than a reworking of the old these parlementaire. But it should be
emphasized that in an Old Regime that was still so much more a "judi-
cial society" than a "bourgeois society" the experiences of the law
courts were central to the way in which political action was conceptual-
ized. Historians should not assume immediate connections between the
"public" and the "modern" phenomena of Enlightenment thought
and proto-capitalist economic development, while consigning devel-
opments within the French legal system to the antechambers of the dark
ages. As Malesherbes's writings show, the juridical tradition remained
quite supple until the very last years of the ancien regime. It gained
strength as the parlements began to present themselves as the defenders
of society against the state, and when its still combustible substance was
exposed to the pure oxygen of vastly increased readership, impressive
reactions could still take place. It is not necessary, then, to follow Ha-
bermas in linking the rise of "public opinion" to the emergence of a

78 See Bell, "Lawyers and Politics," 316-20. For a brief exposition of the essays in question,
see Pierre Grosclaude, Malesherbes: Temoin et interprte de son temps (Paris, 1961), 291-303.

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934 FRENCH HISTORICAL STUDIES

"civil public sphere" tied to a growing precapitalist civil society, out-
side and independent of the "representative public sphere" of French
government. In France, civil society was weak under the ancien regime
(and has remained weak down to the present day). Criticism of the state
came more from within the ambit of the state itself than from outside,
as the roster of deputies to the Revolutionary Assemblies-overwhelm-
ingly lawyers and petty officials-makes clear. Thus, if eighteenth-
century French writers spoke of "the tribunal of public opinion," we
should not dismiss the phrase as a figure of speech. They had very defi-
nite, culturally specific ideas of what a "tribunal" meant, and they ex-
pected public opinion to behave in very much the same way.

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