Montaigne: The Concept of Authority (Summary)

Montaigne’s Concept of Authority [Summary] This study is about collecting, classifying and understanding all the original meanings of authority in Michel de Montaigne’s Essays, published from around 1560 onwards. I take his ‘Of Experience’ (Montaigne, Essays, vol. 3, ch. 13, Everyman’s Library, 1965, pp. 322–86. [III:13 322–86]) as the initial text to be construed, focusing as it does on the ‘mystical authority’. Elaborating an intensive historical-philological analysis is inevitable, given the fact that there are several versions of the Essays and because ‘authority’ itself has different meanings in the three different languages used in the course of the research – Latin (auctoritas), French (autorité), and English (authority). Intellectual history should provide some important help in philological research in the case of Montaigne, who grew up under a strong paternalistic authority and because of this authority, in a Latinized social context; who was later taught by both home-grown lecturers like the humanist and protestant Jean de Coras (1515–1572) and professors from abroad, such as the Scottish scholar George Buchanan (1506–1582), the leading Latin expert of his time who, by the way, had even better French than his ‘French’ pupil, Montaigne. The importance of this research on Montaigne for contemporary legal philosophizing lies in the fact that the influential French postmodern philosopher Jacques Derrida has made Montaigne popular again, but in so doing has paid insufficient attention to the original meanings of the concept of ‘authority’ and ‘mystical[l]’ in Montaigne. Let us remember how Derrida’s Force of Law [Force du droit, (1990) 1994] invokes at the outset, indeed in the very subtitle of the book, Montaigne’s astonishing opinion on the ‘mystical’ foundation of law’s authority: ‘Lawes are now maintained in credit, not because they are essentially just, but because they are lawes. It is the mysticall foundation of their authority; they have none other’ (Montaigne, 1965, III: 13, 331). The ‘mystical’, according to Derrida, ‘is an abyss in the heart of what is supposedly well founded: vanished cruelties at the moment of constituting a state, forgotten terror when new law comes into force, events which remain historically uninterpretable or indecipherable’ (Derrida, 1994:990) While I accept without reservation that Derrida successfully rescued Montaigne from the constraints of philistine historical philology, I fear that his interpretation seeks to actualize Montaigne’s account of law uncritically, as if he were an avant la lettre legal realist scholar. Delivered in 1990 at the Cardozo Law School, Derrida’s lectures were nevertheless a watershed in the development of studies on ‘authority’ in both French and AngloAmerican legal philosophy. Before him, the concept of authority (l’autorité) was brought to the fore by Alexandre Kojève (in his La notion de l’autorité, 1942), whose source was Hegel rather than Montaigne. In Anglo-American legal philosophy, theories of authority developed a little later, largely thanks to Joseph Raz (The Authority of Law, 1979), without any reference to French legal philosophy. The great and obvious merit of Derrida’s Cardozo lectures was to fill the gap between French and Anglo-Saxon legal theories. Using Montaigne, he interprets mystical authority as a discursive restriction on the rational foundation of law: people should accept that law is a kind of force and nothing more. I contend that this interpretation does not do justice to the original intention of Montaigne, who paid more attention to the complexity of the legal phenomenon. In Montaigne, law is more than statutes: it embraces doctrinal literature on law or customary rules of law, ‘proceedings’ (I:23, 122) and the views of practicing lawyers (solicitors, barristers, judges, advocates, counsellors, etc.), as well as of the legislator himself (i.e. the king). It is to be differentiated from the law as understood by ‘ordinary’ people, who should ‘simply’ obey it. Successful interpretation requires to engage in a text-based systematic study of all original meanings of authority in Montaigne’s Essays – authority of judges (III:13, 322), of custom (I:22, 105), of the tutor (I:25, 160), of judgements (I:22, 121; II:12, 126, 127), and even of Alexander the Great (II: 36, 485). Once collected, I shall classify these into two categories of legal authority (see Roscoe Pound, American LR, 1910, 12s): as that authority appears in law books, toward which Montaigne maintained a singularly skeptical attitude, and in legal action, that is to say, as a socio-cultural phenomenon. Regarding this second form of authority, Montaigne takes a much more appreciative attitude. As commentaries on Montaigne’s make clear, there are abundant textual evidence that the origin concept of authority in Montaigne are antique classics like Cicero (e.g., Obest plerumque iis qui discere volunt, auctoritas eorum qui docent, De Nat., i, I:25, 155) as well as contemporary authors, such as Guy de Bruès, author of the Dialogues contre les nouveaux académiciens (1557). Yet, the present research tackles authority-related but unresolved issues, like the question whether Montaigne’s use of authority is completely secular or, at least to some extent, religious. His famous peer, Jean Bodin’s innovation was to secularise theological concepts by omitting adjectives, for instance he introduces ‘republics’ without the adjective ‘Christian’ (respublica christiana), without questioning personally the basic dogmas of the Catholic faith. The fact that Montaigne stripped authority of its religious pedigree or not makes it even more intriguing that he should have placed the adjective ‘mystical’ before ‘authority’ in the above quote. Contrary to Bodin, Montaigne is not at all reluctant to add secular adjectives to the normative terms such as for instance ‘custom’, one of the legal sources: for example, ‘fantasticall’ (I:25, 165) and ‘civill’ (I:25, 155) or ‘Publike’ (III:13, 372). If there is nothing ‘mystical’ in custom (which is the most important source of law in Montaigne’s legal thought), why in general should law’s authority be mystical? Montaigne probably seeks to depersonalize authority and proves that the force of law (i.e. statutes) should be kept separated from the intellectual capacity of its authors: ‘Lawes ... are often made by fooles’ (III:13, 331). But what of law as customs and cases? Does Montaigne presume that these are depersonalized bodies of rules, too? Does he claim that just like individuals (obviously including Montaigne) who follow the daily routine without asking why, so members of society should obey any law ‘blindly’? But if Montaigne’s concept of law is overwhelmingly identical to customary law, why does he place the accent on the force of law as a typical reason for obeying statutes or a king’s commandments? What is the original meaning of ‘force of law’ in Toulouse and Bordeaux at the time, when Roman law was the official legal source there? In the meantime, the adjective ‘mystical[l]’ should also be grasped. Montaigne rarely uses this word, and therefore there must be some reason for doing so in relation to authority. If he had been either a scholastic natural lawyer who believed that God’s ‘mystical’ law was the ultimate foundation of law, or a legalist scholar maintaining that the king has two bodies – a physical one and a mystical one – and that law is the expression of the king’s will, then his use of this adjective would not pose a serious question. But none of these schools of legal thought Montaigne belonged to. What is more, instead of searching for law’s authority in law books (III:13, 324, 325), he preferred to attach it to normal social reality, familiar to ordinary people living their everyday lives. In this context authority is emerging from the law as a social phenomenon, as observed by Montaigne as a judge or the mayor of Bordeaux or simply as an intellectually independent nobleman, studying himself ‘more than any other subject’ (III:13, 331). Without qualifying it as ‘mystical’, in other texts, Montaigne calls people’s habitual obedience as such ‘rule of rules, ... generall law of laws’ (I:22, 118). But why the very fact that these ordinary people would obey the law ‘just because these are the laws’ is ‘mystical’? The philological part of the research is entirely devoted to clarify the original meaning of this term. The working hypothesis is, then, on the one hand, that in the case of ‘law in books’ authority in Montaigne refers overwhelmingly to leading lawyers as authors of glosses and other forms of doctrinal legal literature; and on the other hand, in the case of ‘law in action’, his concept of authority refers to abstract social institutions – and above all, to custom. The first concept of law is denounced, the second is rather endorsed by Montaigne. In both cases, the tension between ‘authority’ and ‘mystical’ is extremely significant and my account on ‘mystical authority’ in Montaigne shows the deceptive character of Derrida’s interpretation, too.