Marie Seong-Hak Kim has written a very thoughtful, informative account of sixteenth-century French Chancellor Michel de L'Hôpital's efforts to unify French law by means of royal legislative authority. Whereas legal humanist contemporaries shared a similar vision of the importance of creating a unified French law, L'Hôpital, she persuasively argues, was unique in the extent to which he sought to do so by means of royal legislation, rather than through more gradual, decentralized processes, such as unifying customary law or coordinating jurisprudence. In his various efforts thus to legislate a unified French law, L'Hôpital, she claims, was motivated in no small part by his desire to help resurrect a nation ravaged by the disaster of civil war. In her account, L'Hôpital thus appears as France's savior—a man, in her words, who possessed “a vision to seek peace, justice, and concord,”Footnote ¹ who sought to “lay the groundwork for a moral society”Footnote ² and to “remov[e] injustice in law contrary to reason and equity,”Footnote ³ and who was motivated above all else by a “spirit of reform and ardor for unity.”Footnote ⁴ Indeed, according to Kim, the end result of L'Hôpital's reforming efforts was a significant amount of “legal progress.”Footnote ⁵ In particular, the law became “more organized . . . rationalized . . . [and] professionalized”Footnote ⁶ and “the Crown's legislative authority [was bolstered as] against the prerogatives of local law.”Footnote ⁷ By the latter half of the sixteenth century, in short, and due in no small part to L'Hôpital himself, France was well on its way to towards becoming the law-bound, centralized, administrative state that would fully flower under later Napoleonic rule. Indeed, she suggests, his reforms might be properly viewed as “prefigurations of the Napoleonic codification of law over two hundred years later.”Footnote ⁸

Author of a recent biography of L'Hôpital,Footnote ⁹ Kim is better positioned than most anyone (I included) to assess the chancellor's own understanding of his motivations in pursuing legal unification and reform. And she is no doubt right when she asserts that, in his eyes, the need to pursue such unification and reform was grounded in “evangelical certitude and a sense of duty and conscience.”Footnote ¹⁰ But Kim largely fails to distinguish between L'Hôpital's self-perception of his actions, on the one hand, and their broader, social and political meaning, on the other. Like many biographers, she is perhaps too close to her subject and thus gives at times largely uncritical voice to his own self-understanding. Accordingly, we are left to understand that L'Hôpital's efforts to create a uniform French law were a product almost exclusively of his patriotic devotion to the national welfare—and, moreover, that they should be seen as facilitating France's progressive development towards the modern, centralized administrative state that it would eventually become. But such an implicitly Whiggish frame is not the only one through which we might view L'Hôpital and his chancellorship.

L'Hôpital's various legislative reforms played a key role in constructing the foundations of an increasingly powerful, centralized monarchy. And while he no doubt viewed his efforts in this regard as fully consonant with the public good, the reality of his drive to augment royal authority—as an end in and of itself—ought not to be lost from view. Indeed, if L'Hôpital and his chancellorship ought to be seen as setting France on a forward-moving trajectory, then this trajectory might just as well be described as that of the monarchy's inexorable drive to power. In suggesting that L'Hôpital's reforming efforts were motivated by his self-proclaimed desire to promote peace and justice, Kim, in short, obscures the reality of politics and interests. She emphasizes the importance of the fact that he promoted his legal reforms during a period of intense civil war—suggesting that the war motivated him to pursue unity through law—but she fails to interrogate the nitty-gritty details of what this pursuit entailed. And what it entailed first and foremost was a commitment to building the institutional and economic power of the state (as embodied in the person of the monarch) over and above that of all other (largely noble) competitors.

The extent to which L'Hôpital's reforming efforts take on a different hue when we distance ourselves from his own self-serving rhetoric is best suggested by reviewing a number of the legislative reforms that Kim herself discusses. Consider, for example, L'Hôpital's attempts at procedural reform, including, in particular, his efforts to reduce the number and length of lawsuits. As Kim observes, L'Hôpital believed these to be vital to “lay[ing] the groundwork for a moral society.”Footnote ¹¹ We need not dismiss the sincerity of his belief that litigation is morally deleterious—a belief sustained by a long tradition of Christian thought—to recognize an additional motivation for L'Hôpital's efforts: namely, concern that lawsuits might result in judgments contrary to royal policy and thus impede the free exercise of sovereign will. Hints of such a motive are evident in language that Kim herself quotes without comment. As she notes, L'Hôpital claimed that multiple, unending lawsuits were “‘detrimental not only to the parties but also to the officials executing the decisions and sometimes even to those who execute them for the king’” [my emphases].Footnote ¹² Indeed, as Kim describes, L'Hôpital expressed great impatience with the parlements, whose noble judges frequently resisted his legislative reforms, either by refusing to register a statute or by interpreting it in a manner contrary to its evident intent.Footnote ¹³ Decreasing the amount of litigation (and thus the opportunities for the parlements to act) was surely, for L'Hôpital, at least in part a means of limiting the power of these obstructionist institutions.

Moreover, a review of the actual content of the legislation by means of which, according to Kim, L'Hôpital sought “to tighten procedural rules deemed critical for efficient disposition of disputes”Footnote ¹⁴ suggests an additional factor that may have motivated L'Hôpital—and one that is equally statist in orientation. According to Kim, this legislation—the Edicts of Fontainebleau of August 1560—should be viewed as embodying the fulfillment of his reformist, procedural vision. But she never describes the content of this legislation, stating simply that it was designed “to streamline procedural rules.”Footnote ¹⁵ A review of the precise terms of the legislation reveals that it was concerned in significant measure with streamlining procedure in commercial cases. Thus, to the extent that the Edicts of Fontainebleau embodied L'Hôpital's procedural vision, this was a vision that seems to have stemmed at least in part from concerns that overly lengthy and complex litigation would hinder commercial activity, thereby preventing the kind of economic development vital for the state's survival and growth. As explained in the edict itself, the monarchy sought to promote the arbitration of commercial disputes because lawsuits between merchants tended to decrease the mutual trust so essential for the exchange of credit, such that in their wake, “the flow of merchandise [is] diminished and destroyed.”Footnote ¹⁶ This, in turn, was disastrous, in that “there is nothing that greater enriches cities, states and kingdoms than traffic in merchandise.”Footnote ¹⁷ Here as well, therefore, L'Hôpital's desire to augment sovereign wealth and power likely played a significant role in motivating his legislative reform.

As in her account of L'Hôpital's procedural reforms, so too in her discussion of his efforts to remake substantive, private law, Kim seems largely to embrace L'Hôpital's own self-serving account of his activities. Thus, for example, she presents his attempt to reform the law governing substitutions in trust, or trust-entails, as part and parcel of his broader commitment to promoting “simplification and unification”Footnote ¹⁸ in such a way that “inequitable laws and customs . . . [would] be quashed.”Footnote ¹⁹ Kim discusses, among other pieces of legislation, the Ordinance of Moulins of 1566, which sought to limit the extent to which owners could entail their land and thereby ensure that it would remain for generations within the same family. In her account, L'Hôpital's primary motivation in pursuing this legislation was “to protect unsuspecting parties”Footnote ²⁰—namely, individuals who purchased land in the mistaken belief that it was in fact alienable—and to prevent the lawsuits generated by such fraudulent or mistaken sales.

That this was, in fact, L'Hôpital's motivation is entirely plausible. But to end the analysis here is to avoid the key question of why precisely he had come to view the protection of third-party purchasers as a vital matter of justice. Given the state of the law, such purchasers were arguably on notice of the risk that they assumed in seeking to purchase land. Accordingly, the fact that they did not discover (prior to purchase) that the land was entailed might well have been characterized as a failing on their part—and, in particular, a failure to undertake sufficient investigation. Indeed, from the perspective of the various parlements that opposed L'Hôpital's proposed reforms, it was the noble landowner, seeking to protect his family's wealth and name against the possible depredations of future spendthrifts who was the unsuspecting innocent deserving of protection.Footnote ²¹ The notion that the third-party purchasers were the ones deserving of protection thus did not stem from some universally applicable, Platonic ideal of justice, but instead from a particular (and contestable) social and economic vision. Pursuant to this vision, it was important to promote the alienability of land in order to facilitate the commercial and economic growth so vital for the state's ability to augment its wealth and power.

Indeed, in promoting reform of the law governing substitutions, L'Hôpital's statist ambitions may have been even more direct. To the extent that the preservation of land within the family was essential to the nobility's ability to retain its wealth and power across generations, L'Hôpital's effort to limit substitutions was at least in part an attack on noble power. As Kim herself argues, L'Hôpital placed the goal of protecting third-party purchasers over and above “the desire to preserve the patrimony of great noble houses.”Footnote ²² But perhaps it was precisely the desire to destroy noble patrimony and thus power—and thereby bolster a monarchy enfeebled by civil war—that helped to motivate the reform in the first place.

Ironically, in adhering so closely to L'Hôpital's own conception of his legal reforms, and thus obscuring the extent to which they were part and parcel of a broader effort to augment royal power, Kim may actually minimize the centrality of his historical contribution. In her account, L'Hôpital's self-proclaimed efforts to promote peace and unity ultimately culminated in significant “legal progress”—namely, the rationalization and centralization of law through the state's increasingly powerful and unified administrative apparatus. As she concludes, his reforming efforts marked “the evolution from medieval legal pluralism to a distinct legal nationalism.”Footnote ²³ In this sense, L'Hôpital appears as one (albeit important) figure ensuring France's continued, inexorable path towards modernity. But as Kim herself notes, L'Hôpital's vision for unifying French law—his notion of what she calls “legal nationalism”—was but one of several competing programs outlined by contemporary jurists, all of whom worked within a broader tradition of legal humanism. And others, including perhaps most notably François Hotman, embraced a very different conception of how best to create a unified French state—a conception more akin to that eventually embraced in England, pursuant to which electoral procedures would enable power to be more broadly dispersed and controlled.Footnote ²⁴ The kind of highly centralized legal nationalism that L'Hôpital promoted (and that in fact triumphed) was thus but one of several paths towards the modern state that France might have followed. To the extent that his legislative efforts marked the triumph of a strongly centralized, state-centered model of governance over competing alternatives, his chancellorship might perhaps be better depicted not as occupying a place along a progressive continuum, but instead as a vital point of rupture.