Raymond Carré de Malberg
From Jurispedia
France > Great lawyers > Great lawyers (fr)
Raymond Carré de Malberg (1861-1935) belongs to this generation of professeurs of right general practitioner, covering consequently immense knowledge the field of a discipline now divided. Historien of the right in its youths, it supports in 1887 a thesis devoted to the Histoire of the exception in Roman law , then, young professor with Faculté of right of Caen, he sticks to the teaching of droit civil and publishes rather regularly in Pandectes Frenchwomen. It is only gradually and rather tardily that it engages in the matter which will enable him to give the measurement of its talent, it droit constitutional. In 1914, Carré of Malberg is 53 years old when it publishes its first significant article, devoted to “the legal condition of Alsace-Lorraine in the German Empire”, (R.D.P., 1914, pp. 5-47) and it is only in 1920 that it publishes the first volume of its Master works, the Contribution to the general theory of the State . Follow then the productive years, which see the publication of the second volume of its general theory of the state (1922), its principal articles, the law, expression of the general will (1931) and finally the Confrontation of the Theory of the formation of the right per degrees with the ideas and the institutions devoted by the French substantive law relative to its formation (1933). This evolution of its center of professional interest towards droit constitutional inseparable from its condition from is exiled Alsatian in “France of interior”. Its family, of Strasbourg, originating in Metz, fact part of this small minority (approximately 1/15e) the Alsatian ones and the Lorraine ones which chooses, after the annexation of Alsace and the Moselle by German Reich, in accordance with the stipulations of the Treaty of Frankfurt, to preserve it nationality French and, consequently, to leave the annexed countries, to come to be established in Paris in particular. But Raymond Carré of Malberg will keep his fidelity in his native Alsace, where its family preserves a property in which it goes each year and where it writes most of his work. As of the end of the First World War, it asks and obtains its change in Strasbourg where, after a passage in Nancy, it finishes its career. The first article of droit constitutional, we said it, the day before the Large war, is devoted to the evolution of the legal statute of Alsace-Lorraine in Reich allemand. Placed initially under the direct control of the Empire, the local authority of Alsace-Lorraine is gradually seen recognizing a statute of legislative autonomy which leads to the granting of the Constitution 1911. Alsace-Lorraine is then almost one federate State, with autonomous legislative system, two rooms and of true ministries charged to lead its own policy. But this organization obeys naturally the monarchical principle which structure the unit of Reich and subordinates the entry into force of the law to the sanction of a monarch. In its article on the legal condition of Alsace and the Moselle, occasion of a tight discussion of the various theories of federalism, Carré of Malberg tries to show that the political freedom of Alsatian and Lorraine would be larger within the framework of République Frenchwoman indivisible that within the framework of a monarchical Federation which organizes only one apparent freedom of the various people which make it up. The tone of its constitutional work is given. It will consist, for a great part, in a comparison of the French and German institutions in the light of French revolution, of the democratic principle and the monarchical principle. To thus underline the biographical anchoring of its interest for droit constitutional and to recall that it starts with a strong attachment with the French Republic, that its family as it at the same time nationality French, and a rather sharp resentment chooses to the place of Germany, does not have to lead us to conclude that work for very whole would be as much ordered by its origin. All effort of author, on the contrary, as the beautiful pages translate it which open the Contribution to the general theory of the State, is to try to abstract itself from the political context which haunts it to find, under the political emotion and the party taken spontaneous, the rigour of the concept. Léon Duguit was very unjust when it reproached Carré of Malberg for introducing in France, with the German concepts of the constitutional law, doctrines of the authority incompatible with the Republic. All the work of Square of Malberg, on the contrary, was to test of dépolitiser the concepts of the right to ensure the science of the constitutional law a certain autonomy of reasoning compared to the policy. Its least merit is not certainly to have known to strip a whole whole of concepts to the service of the ideology of the war then dominant in Reich, and whom one expresses well Treitschke when he says that the force made the right, to show that if the right is not reduced to the force, there remains however always founded on a consideration of power relating to the identification of the sovereign. The general dimension of its theory is precisely to show that these considerations relating to the power are common to the constitutional laws allemands, français, but also suisse, américain and that the constitutional law is initially the right of the official power. But on another Carré side of Malberg intends well to show that the modern constitutional law is founded on the principles resulting from the French revolution and, in particular, the principle of national sovereignty, while German monarchical right former to the First World War, founded on monarchical principle, translated a completed concept of right exceeded and, for any statement, reactionary. Square of Malberg was not satisfied to describe to compare them the constitutional laws French and German but it has of course to confront their deserve respective in order to emphasize the superiority of the French constitutional law, the principle of the legal State, the definition of the law like the expression of the general will, on the German monarchical constitutional law, the State of right monarchical and the principle of the monarchical sanction. It is there an aspect of its work which contrasts with positivism it makes profession and that one too often takes for money cash by neglecting the way in which the author itself is concerned with his subject and tries to formulate methodological principles against his own preventions very continuously to be inhabited by the revolutionary principles of 1789. Thereafter, in the law expression of the general will , Carré of Malberg will endeavour to show that them trois constitutional laws of 1875 - enigmatic laws in what they endeavour to say the least possible on the nature of the mode that they institute, in the obvious concern to be able to adapt them to monarchy as with the republic - rest in fact on the revolutionary definition of the law like expression of the general will. It is, in particular, by examining the problem of the base of the obligatory force of the law and by noting that the laws voted by Parlement are accompanied by no formula of command, that it deduces some, in a subtle but effective way, that this absence reveals that the people order themselves from itself and that the law is well the expression of its autonomy. By doing this, Carré of Malberg completes on the legal level this republican collecting of the heritage of the French revolution that Alphonse Aulard had started as of the end of 1880. Whereas the heritage of French revolution was asserted, throughout the XIXe century, by the republicans as by the partisans of parliamentary monarchy or of empire liberal, it is finally it Republic which manages to anchor the republican tradition on the principles resulting from the French revolution. The republican interpretation of the statute of the law in the constitutional laws of 1875 then enables him to release the base of this supremacy of the law which remains a fundamental principle until under 5th Republic. In its ultimate work, to 1933, the Confrontation of the Theory of the formation of the right per degrees with the ideas and the institutions devoted by the French substantive law relative to its formation , Carré de Malberg endeavours to discuss the theses of Weyr and Kelsen opposing to the Germanic theories of the hierarchy standards considered abstractedly, the hierarchy of the bodies according to their proximity with the source of any legitimacy, the will of the people. It thus works out the principle even of a design of the formation of the right which was essential a long time like the most rational representation of the structure of the Sovereign state. Eric Maulin University Robert Schuman
Bibliographie
- Square of Malberg, Raymond (1861-1935), Contribution to the general theory of the State, especially according to the data provided by the constitutional law French , Paris, 1920 & 1922, éd. Sirey, reprinting C.N.R.S., 1985, 2 volumes. ISBN 2-222-00579-5: Ces works (volume 1 and 2) is also available à this address on the site of National Library of France via Gallica which proposes an access to 70.000 digitized works, more than 80.000 images and several tens of hours of sound resources. This unit constitutes one of the most important accessible numerical libraries free on the Internet.
- Square of Malberg, Raymond (1861-1935), the Law, expression of the general will , Paris, 1931, éd. Sirey, Economica reprinting, 1984. Square ISBN 2-7178-0811-6 * of Malberg, Raymond (1861-1935), Confrontation of the Theory of the formation of the right per degrees with the ideas and the institutions devoted by the French substantive law relative to its formation , Paris, 1933, Bookshop of the Sirey Collection, 174 p. to =Voir aussi= Bacot (Guillaume), Carré of Malberg and the distinction between sovereignty of the people and national sovereignty , Paris 2001, éd. C.N.R.S. 200p. ISBN 2-271-05858-9 Beaud (Oliver) “the biography of Square of Malberg and its thought”, French legal science and the German legal science of 1870 to 1918, Acts of the conference held in Strasbourg on December 8, 1995, under the direction of O. Beaud and P. Wachsmann, Annales of the University of Strasbourg , 1997, n°1. Maulin (Eric), the theory of the State de Carré of Malberg , Paris, 2003, PUF, coll Léviathan, 344p. ISBN 2-13-053607-7
