intertitle.gif (2406 bytes)
Volume 5.2 1997
ISSN 1048-3721
This page was last updated on 03/15/99

contentsHomeE-mail

Amalia D. Kessler
Book Review

CHARLOTTE C. WELLS
LAW AND CITIZENSHIP IN EARLY MODERN FRANCE
BALTIMORE: JOHNS HOPKINS UNIVERSITY PRESS, 1995

In her fascinating study, Wells disputes the traditional view that the concept of national citizenship was born in the French Revolution by tracing its lineage back to sixteenth-century France. She suggests that the notion of the citizen as an individual with certain legally defined rights and duties identical to those of other members of the state developed in essentially linear fashion from its early modern beginnings through the nineteenth century. Thus, in her chronology, eighteenth-century developments no longer appear as radical ruptures within traditional ancien régime society. Instead, she asserts that it is the absolutism of the seventeenth century, with its view of the citizen as an obedient subject of the king, that constitutes the only break in an otherwise continuous narrative.

According to Wells, the concept of citizenship in France developed in the context of laws imposing certain unique restrictions on the foreigner or aubain, the most important of which, known as the droit d’aubaine, was the ruler’s right to claim the land of foreigners who died in his territory. In defining the foreigner, these laws also established by implication what it meant to be a citizen. During the feudal middle ages these laws defined aubains as foreign to the local community and deemed the seigneur their ruler. Thirteenth- century royal jurists, however, attempted to magnify royal authority by defining the entire French kingdom as a single community. In so doing, they created the logical underpinnings of a new definition of the aubain as foreign to all of France, rather than merely to the territory of a particular seigneur. Thus, the monarchy began to establish itself as the direct lord of all aubains within France and, consequently, of all citizens as well. By the sixteenth century, asserts Wells, aubain laws had become sufficiently defined for jurists such as René Choppin and Jean Bacquet to develop a full-fledged theory of national citizenship.

In order to develop such a theory, these men relied on a model of citizenship established by fourteenth-century Italian Roman law Commentators like Bartolus of Sassoferato and Baldus de Ubaldis whose thought had long served as the basis of French legal education. Four of the Commentators’ ideas concerning the state and its citizenry seem to have been particularly influential. First, French jurists adopted the Commentators’ view that the state is a community of individuals who share the same location and legal system and that, consequently, the state and its rulership are not one and the same. Second, they embraced the position that individuals gain citizenship within a particular state by choice and that this choice is manifested by the decision to reside in the state. Although they held, like the Commentators, that the monarch’s permission is required for naturalization, they argued that the king’s power in this regard derived not from royal privilege, but rather from his capacity as head of state to act for and protect the interests of the entire citizenry. In other words, those desiring naturalization were understood to seek a relation that was not primarily with the king but with fellow citizens. Third, French jurists adopted the Commentators’ belief that only citizens could be trusted to act in the best interest of the state and that, therefore, only they should be allowed to dispose freely of property and to serve in government and Church offices. Finally, they accepted the view that citizens had a duty to serve the state by defending it in times of war, paying taxes, obeying the law, and even holding government office. According to Wells, the experience of the sixteenth- century religious wars endowed this purely theoretical construct of citizenship with real meaning for the population as a whole. With its emphasis on community welfare and belonging, the sixteenth-century discourse of citizenship served as a means of reintegrating bitter Catholic and Protestant enemies into a single state.

As the monarchy increased its power over the course of the seventeenth century, argues Wells, the model of the state shifted from a community of citizens to a family of subjects obedient to the father-king. The power to grant citizenship became merely one among many royal privileges. By the end of the century, revenue collected from the droit d’aubaine and from other such restrictions on the foreigner—revenue that had previously been distinguished from other sources of the monarchy’s income—was collected by tax farmers along with all other levies. Since citizenship was now defined in terms of the relationship between subject and king, the citizen’s principal duty became absolute obedience, rather than promotion of the entire citizenry’s well-being. As a result, individuals were no longer free to choose their citizenship and, instead, had to obtain the monarch’s permission to seek naturalization in another state. At the same time, however, it became much easier to gain French citizenship. Once citizenship became defined as a bond of loyalty linking the subject to the king, only the king’s permission seemed necessary to acquire it. Previous requirements for naturalization, such as residency within France, were increasingly deemed superfluous.

Wells’s otherwise highly persuasive narrative falters in the final chapter, which assesses eighteenth-century and Revolutionary developments in the concept of national citizenship. Enlightenment thinkers, she claims, returned to sixteenth-century conceptions of the state as a community of individuals existing under the same civil law and of the citizen as an individual bearing certain rights and duties vis-à-vis the entire community. In fact, she suggests that they broke from the ideas of the sixteenth-century jurists in only two main ways. First, they repudiated the aubain laws that had by now degenerated into but another royal prerogative. Second, they excluded women from citizenship. In order to prove, however, that the philosophes adopted and modified a sixteenth-century discourse of citizenship, it is not sufficient to indicate similarities between their ideas and those of Choppin and Bacquet. Wells must also demonstrate that thinkers like Diderot, whose ideas concerning citizenship are central to her analysis, employed (or were even familiar with) the highly specialized juristic thought of legists who preceded them by two centuries.

More troublesome is Wells’s attempt to assimilate Revolutionary ideas within a continuous narrative of citizenship. She acknowledges that the Revolution instituted two changes in citizenship, civic equality and the right to vote, but seems to imply that these were but extensions of earlier notions. The pre-seventeenth-century definition of the state as a community of citizens, she argues, assumed that a fundamental equality underlay corporate distinctions. Once the corporate order was dismantled, she suggests, civic equality was, so to speak, found "underneath." Similarly, she implies, the Revolutionary citizen’s political right and duty to vote can be understood as a variation of the sixteenth-century citizen’s political capacity and obligation to hold government office. As the two defining features of the modern nation-state, however, civic equality and the right to vote seem to differ from earlier attributes of citizenship far more than Wells’s analysis indicates. The Revolutionary shift from corporate order to civic equality and from monarchy to democracy was, as the nineteenth-century reaction would amply demonstrate, much more of a leap than a gradual transition.

bottom4.gif (3812 bytes)