Modern public law shifted from founding sovereignty to limiting governmental power.

Evidence

So, there is a shift of the center of gravity of public law. The fundamental problem of public law will no longer be the foundation ofsovereignty, the conditions of the sovereign’s legitimacy, or the conditions under which the sovereign’s rights can be exercised legitimately, as it was in the seventeenth and eighteenth centuries. The problem becomes how to set juridical limits to the exercise of power by a public authority. Schematically, we can say that at the end of the eighteenth and the beginning of the nineteenth century there were basically two ways of reSolving this. The first I will callthe axiomatic, “jui’idico-deductive approach, which was, up to a point, the path· talcen by the French Revolution-we could also call it Rousseau’s approach~* In what does it consist? It does not start from government and its necessary limitation, but from law in its classical form. That is to say, it tries to define the natural or original rights that belong to every individual, and then to define under what conditions, for what reason, and according to what ideal or historical procedures a limitation or exchange of rights was accepted. It also consists in defining those rights one has agreed to cede and those, on the other hand, for which no. cession has been <!-greed and whiGh.thus remain imprescriptible rights in all cirmmstances and under any possible government or political regime. Finally, on this basis, and only on this basis, having thus defined the division of rights, the sphere of sovereignty, and the limits of the right of sovereignty, you can then deduce from this only what we can call the bounds ofgovernmental competence, but within the framework determined by the armature constituting sovereignty itself. In other words, put clearly and simply this approach consists in starting from the rights of man in order to arrive at the limitation of govemmentality by way of the constitution of the sovereign. — Michel Foucault, The Birth of Biopolitics, 352

Categorization

• DEFINE: Foucault introduces the axioMatic jurido-deductive approach (Rousseau’s/revolutionary path) as one of two ways to limit governmental power — starting from the rights of man to arrive at the bounds of government via the constitution of the sovereign.
• QUESTION: Worth chasing: how does this distinction between the axiomatic/revolutionary approach and the governmental-practice approach (developed in ¶356) map onto contemporary public-law and constitutional theory debates?
• XREF: connects to: State governments shifted power from legislatures to executives and courts over time — Lawrence M. Friedman, A History of American Law, 668

Broader Connections

• State governments shifted power from legislatures to executives and courts over time #exemplifies (0.82) — Lawrence M. Friedman, A History of American Law, 668