Academic Year 2011-2012
Michel Troper has been teaching Constitutional Law and Legal theory since 1969, first at the University of Rouen then at Paris X. In 1993 he received an appointment to a chair at the Institut Universitaire de France and has been emeritus professor since 2006. He has been a visiting professor or scholar and gave lectures in a number of universities across the world. He has served in several scientific societies and is honorary president of the French Society for legal and political philosophy (SFPJ) and the French association for Constitutional Law.
His views on the epistemology of legal science and on legal interpretation played a part in the revival of legal theory in France. His writings include one of the standard French manuals in Constitutional law “Droit constitutionnel” (that he wrote with Francis Hamon), (31st edit. 2009); Le droit, la théorie du droit, l'Etat; La philosophie du droit »; Terminer la Révolution : la constitution de 1795. He is the co-editor of an International Treaty of Constitutional Law, to be published in 2011 (Paris, Dalloz).
The Legal System and the Emergence of the State
I am planning to write a long essay or a short book on the relation between the Law and the State. The question usually discussed is how the State can be said to be under Law when Law is produced by the State. It is based on the assumption that the Law and the State are two different entities. I will start however from Kelsen’s well-known theory that they are one and the same phenomenon. On the main advantages of Kelsen’s monistic view is that it offers an elegant solution to the classical dilemma of the supremacy of Law or the State and that it helps to understand the State as a form of political power exercised by Law.
But it can be carried further, if one combines it with another classical theory, according to which some principles, such as sovereignty, the distinction between public and private law, the theory of State organs, or the unity of the State across time, are constitutive of the State, in the sense that one cannot think of the State without them or that the State can only operate through those principles.
We can then make the hypothesis that there is some relation between changes in the structure of the legal system and the appearance and transformations of the constitutive theories of the State. I want to test that hypothesis by looking into the transformations that have taken place in the theories of the State during two periods, first during the French Revolution and secondly between the French Revolution and the ongoing process of European integration.