Revolution and the Republic
Page 8
jettisoned without recall.
The most persuasive and eloquent exponent of a constitution and a declara-
tion designed to protect the natural and civil rights of the citizen was undoubt-
edly Emmanuel Sieyès.19 Having announced the advent of the Revolution with
an attack on privilege and a defence of the claims of the Third Estate, in his
famous phrase, ‘to be something’, Sieyès next provided the National Assembly
with a carefully crafted and detailed document entitled Préliminaire de la
Constitution: Réconnaissance et exposition raisonnée des droits de l’homme et du
12 See Keith Michael Baker, ‘The Idea of a Declaration of Rights’, in Van Kley, French Idea of
Freedom, 154–96.
13 Arnaud Gouges-Cartou, ‘Projet des Déclaration des droits’, in Fauré, Les Déclarations, 203–17.
14 Cte d’Antraigues, ‘Au Sujet de la Déclaration des droits de l’homme et du citoyen’, in Fauré, Les
Déclarations, 172.
15 Cte de Castellane, ‘Sur la Déclaration des droits’, in Fauré, Les Déclarations, 134.
16 Archives Parlementaires, 8 (1875), 453.
17 Jean-Louis Seconds, ‘Essai sur les droits des hommes, des citoyens et des nations; ou addresse au
roi sur les états généraux et les principes d’une bonne constitution’, in Fauré, Les Déclarations, 60.
18 Pierre-Toussaint Durand de Maillane, ‘Opinion sur les divers plans de Constitution, et la
Déclaration des droits de l’homme et du citoyen’, in Fauré, Les Déclarations, 140–1.
19 See Jean-Denis Bredin, Sieyès: La Clé de la Révolution française (1988); Murray Forsyth, Reason
and Revolution: The Political Thought of the Abbé Sieyès (Leicester, 1987); William H. Sewell Jr,
A Rhetoric of Bourgeois Revolution: The Abbé Sieyes and What is the Third Estate? (Durham, NC, and
London, 1994); and Pasquale Pasquino, Sieyès et l’invention de la constitution en France (1998).
Rights, Liberty, and Equality
33
citoyen,20 a text premised upon the belief that the primary purpose of any
constitution was to protect and extend the rights of man and the citizen. Thus
Sieyès’s introductory remarks led him to the initial conclusion that ‘the social
state does not establish an unjust inequality of rights by the side of a natural
inequality of means: on the contrary, it protects the equality of rights against
the natural and harmful inequality of means’.21
Sieyès then felt able to assert that the first of man’s rights was the ‘ownership of
his person’ and to argue from this that it followed that man also had the right to
ownership of his own actions and labour. When combined with the Lockean
maxim that the mixing of one’s labour with an object provided an entitlement to
ownership this produced a definition of liberty in terms of the enjoyment of one’s
‘personal’ and ‘territorial’ property and the overall conclusion that ‘every citizen had
the right to remain, to go, to think, to speak, to write, to print, to publish, to work,
to produce, to protect, to transport, to exchange and to consume’.22 The only
limitation to the exercise of these rights was infringement upon the rights of others
and as such, in Sieyès’s view, was a matter to be settled by law. The principal threats
to their enjoyment were deemed to come in the form of ‘malevolent citizens’,
abuses by the ‘public power’, and external attack.
Where Sieyès moved beyond the Lockean position was in his argument that, in
addition to the legitimate expectation that a citizen’s rights and liberties would be
protected, the citizen had a ‘right’ to the benefits of association, amongst which he
included public works, poor relief, and a system of education. Eschewing the details
of their provision, Sieyès nevertheless commented that ‘it is sufficient here to say
that the citizenry as a whole have a right to everything that the State can do in their
favour’.23
All of the above rights were categorized by Sieyès as natural and civil rights,
with the latter appearing, not without ambiguity, to be distinguishable from the
former by their more obvious social origin. Both categories, however, were to be
differentiated from political rights. If all citizens enjoyed natural and civil
rights––everyone, Sieyès affirmed, had a right to the protection of their person,
property, and liberty––only a restricted number, the so-called ‘active’ citizens,
had a right to participate in the affairs of the public power. ‘The difference
between these two types of rights’, Sieyès explained, ‘is that natural and civil
rights are those for the maintenance and development of which society is formed
whilst political rights are those by which society is formed’.24 Explicitly excluded
from the possession of political rights were women (‘in their present condition’),
children, foreigners and those not contributing financially to the support of the
‘public establishment’. For those described by Sieyès as ‘the real shareholders of
the great social enterprise’, on the other hand, equality of political rights was to be
a fundamental principle.
20 Three versions of this document exist. The version cited here is the one read before the National
Assembly on 20–21 July 1789: see Fauré, Les Déclarations, 91–107.
21 Ibid. 95.
22 Ibid. 96.
23 Ibid. 99.
24 Ibid. 101.
34
Rights, Liberty, and Equality
The outline déclaration which followed––with thirty-two articles, later amended to
thirty-seven25––was intended to summarize these ‘eternal rights’ in a codified and
easily accessible form. It is interesting to note, therefore, that if Sieyès concentrated
upon emphasizing the rights to liberty, property, and security, the specifics of the
déclaration included the right to free speech, freedom of the press, the right to travel,
and the inviolability of letters. All citizens were to be equally subject to the law and
no one could be arrested or imprisoned without just cause. Moreover, it was,
according to Marcel Gauchet,26 this déclaration and not that presented by Lafayette,
nor indeed that of the sixième Bureau (which on 19 August had received by far the
highest number of votes), that played the decisive role in shaping the final document
approved on 26 August.27 Starting from the premise that ‘ignorance, forgetfulness or
contempt of the rights of man are the sole causes of public misfortune and the
corruption of government’, the Déclaration des Droits de l’Homme et du Citoyen
went on inter alia to assert that natural rights existed prior to the formation of society,
that the only legitimate limitation upon their enjoyment was the rights of others, and
that these limits could only be established by legislation. In this way, with both
astonishing speed and audacity, the members of the National Assembly established
rights as the basic language of the new politics.
Why then when, as Jeremy Waldron has observed,28 the belief in universally
applicable principles of justice and right had lost all ‘philosophical respectability’
did the language of the rights of man occupy such a central place in the delibera-
tions of the National Assembly during the months of July and August 1789? In
part (although this must not be exaggerated)29 the explanation lies in the immense
prestige accorded to the American precedent, a prestige given greater force by the
strong personal relationships that existed between such figures as Jefferson and
Franklin and those who initially led the Revolution. For example, the philosopher
and mathematician Condorcet, who in 1789 was one of the most tireless advocates
of the need for a declaration of rights, did not hesitate to cite with approval the
simplicity and wisdom of the American declaration of 1776 and of Virginia’s Bill of
Rights or to draw attention to the numerous commercial and moral benefits which
had resulted from their application.30 ‘The spectacle of a great nation where the
rights of man are respected’, he wrote in 1787, ‘is of use to all the others, despite
differences in climate, morals and constitutions.’31 A further influence was the
25 ‘Déclaration des droits du citoyen français’, ibid. 219–24.
26 Gauchet, ‘Droits de l’homme’.
27 ‘Motion de M. le Mquis de La Fayette relativement à la Déclaration des droits de l’homme’, in
Fauré, Les Déclarations, 87; ‘Projet de Déclaration des Droits de l’homme et du citoyen, discuté dans le
sixième Bureau de l’Assemblée nationale’, ibid. 231–4.
28 Jeremy Waldron, Nonsense upon Stilts (London, 1987), 18.
29 See François Furet, ‘From Savage Man to Historical Man: The American Experience in
Eighteenth-Century French Culture’, in Furet, In the Workshop of History (Chicago, 1984), 153–66,
and Marcel Thomann, ‘Origines et sources doctrinales de la déclaration des droits’, Droits, 8 (1988),
55–70.
30 Jean-Antoine-Nicolas Caritat, marquise de Condorcet, ‘De l’Influence de la Révolution
d’Amérique sur l’Europe’, Œuvres de Condorcet (1847), viii. 3–113.
31 Ibid. 13.
Rights, Liberty, and Equality
35
remonstrances of the French law courts, the parlements.32 As J. H. Shennan has
shown, starting out from conservative premises the vocabulary of the magistrates of
Paris shifted ground dramatically during the eighteenth century, with new implica-
tions and meanings being attached to such words as ‘man’, ‘humanity’, and
‘society’. ‘The concept of specific rights for legally constituted groups’, he writes,
faded ‘before that of the universal rights of man’.33
More generally, if the Déclaration des Droits de l’Homme et du Citoyen was not
a direct product or expression of the Enlightenment, the members of the National
Assembly were nevertheless able to turn to the philosophes for inspiration as part of
what Alexis de Tocqueville was later to describe as their ‘revolutionary education’.34
Locke, Rousseau, the physiocrats, and others, misinterpreted and radicalized,
provided, in Cheryl Welch’s words, ‘a ready-made vocabulary of revolution’ and
one that was imbued with the language of natural rights.35 Despite the criticisms
directed against arguments from ‘nature’ during the eighteenth century by writers
such as David Hume and d’Alembert such formulations, as Dan Edelstein has
shown,36 continued to be commonplace and to retain their credibility. To para-
phrase Diderot, many were those who believed that the best legislation was that
which conformed most closely to nature. To take but one example: Condorcet,
using a sensationalist epistemology that in the hands of Helvétius had produced a
crude utilitarianism, insisted that the facts of human nature logically gave rise to
principles of universal rights and justice.37 ‘We call these rights natural’, Condorcet
wrote in 1787, ‘because they derive from the nature of man, because from the
moment that a sensate being capable of reasoning and of having moral ideas exists,
it follows as an obvious and necessary consequence that he must enjoy these rights,
that he cannot be deprived of them without injustice.’38 Such was the unproblem-
atic character of these rights, according to Condorcet, that only the right to equality
needed explanation.39
32 See William Doyle, ‘The Parlements’, in Keith Baker (ed.), The French Revolution and the
Creation of Modern Political Culture, i. The Political Culture of the Old Regime (Oxford, 1987), 157–68.
33 J. H. Shennan, ‘The Political Vocabulary of the Parlement of Paris in the Eighteenth Century’,
Società italiana di storia del diritto: Atti del IV congresso internazionale, 951–64. Of less importance were
the cahiers de doléances prepared for the meeting of the Estates-General; see George V. Taylor,
‘Revolutionary and Nonrevolutionary Content in the Cahiers of 1789: An Interim Report’, French
Historical Studies, 7 (1971–2), 479–502. See Lucien Jaume (ed.), Les Déclarations des droits de l’homme
(1989), 75–91.
34 See Wolfgang Schmale, ‘Les Droits de l’homme dans la pensée politique des Lumières’, in
Antoine de Baecque, L’An 1 des droits de l’homme (1988), 332–53.
35 Cheryl Welch, Liberty and Utility: The French Ideologues and the Transformation of Liberalism
(New York, 1984), 7. See also André Jardin, Histoire du Libéralisme politique: De la crise de l’absolutisme
à la constitution de 1875 (1985), 94–112.
36 The Terror of Natural Right: Republicanism, the Cult of Nature and the French Revolution
(Chicago, 2009).
37 See Keith M. Baker, Condorcet: From Natural Philosophy to Social Mathematics (Chicago, 1975),
195–263.
38 Condorcet, ‘Lettres d’un bourgeois de New-Haven à un citoyen de Virginie’, Œuvres de
Condorcet, ix. 14.
39 Condorcet, ‘Idées sur le despotisme: à l’usage de ceux qui prononcent ce mot sans entendre’,
ibid. 166.
36
Rights, Liberty, and Equality
Thus the language of rights, for all its philosophical frailty, retained a definite
plausibility and amongst France’s political representatives in the summer of 1789
attained almost the status of a common linguistic currency. Ironically, however, the
limitations to its popularity were immediately visible, even in the debates within the
National Assembly that surrounded the actual formulation of the Déclaration des
Droits de l’Homme et du Citoyen. For men such as Sieyès the recent American
experience provided not so much an example to be followed as something that
France, imbued with a universalistic spirit, could improve upon. Such a belief
implicitly assumed that the situations faced by the two nations were not necessarily
comparable. This was made explicit by Rabaut Saint-Étienne on 18 August when
he stated categorically that ‘the circumstances are not the same: [America] was
breaking with a distant parent State; it was the case of a new people destroying
everything in order to renew everything’.40 It was this theme that was repeatedly
developed by Lally-Tollendal when he argued that the differences between a
colonized people freeing itself from a far-away government and an ‘ancient’ people
which had experienced the same form of government for fourteen centuries and
been ruled by the same dynasty for eight centuries were immense, and so much so
that any statement of natural rights in France had of necessity to be accompanied
by the immediate disclosure of ‘positive’ rig
hts in a written constitution. ‘I ask’,
Lally-Tollendal stated, ‘that this declaration of rights should be as short, as clear
and as concise as possible; that, having established the principle, its correct
application is speedily carried out in order that others might not be able to apply
it incorrectly; that, having transported man to the forests, he is brought back at
once to the midst of France.’41
In short, whilst Lally-Tollendal remained committed to a declaration of rights,
he recognized that unless these rights could be quickly located in a precisely
defined, concrete context they ran the risk of unleashing excess and disorder.
Others amongst the monarchiens or moderates were not slow to take up and to
amplify this theme.42 ‘We will never abandon our rights’, Jean-Joseph Mounier
declared, ‘but we should not exaggerate them. We must not forget that the French
are not a new people, recently emerged from the depths of the forest in order to
form an association, but a society of 24 million men which wishes to strengthen the
ties between its various parts, which wishes to regenerate the kingdom so that the
principles of a true monarchy might be forever sacred.’43 The French people,
having freed itself from servitude, now needed to establish the empire of law.
It was initially the Comte de Mirabeau who most forcefully expressed what
were perceived to be the dangers and absurdity of undue abstraction. As early as
15 June 1789 when opposing the proposal of the citoyen-philosophe Sieyès to
40 Archives Parlementaires, 8 (1875), 452.
41 Ibid. 222–3, 458.
42 See Robert Griffiths, Le Centre perdu: Malouet et les « monarchiens » dans la Révolution française
(Grenoble, 1988).
43 Archives parlementaires, 8 (1875), 214.
Rights, Liberty, and Equality
37
rename the Estates-General as the ‘Assemblée des représentants connus et verifiés
de la nation française’, he commented that
it is not always expedient, it is not always appropriate to consult only what is right
without regard to the circumstances . . . The metaphysician, travelling on a map of the
world, crosses everything without difficulty, has no trouble either with mountains or
deserts or rivers or chasms; but when he wishes to make a journey, when he wishes to