nature of man. Recognizing that of these rights it was the right to property that was
the most contested, Roederer went on to provide an extensive defence of property
and its hereditary possession that combined the language of Locke with that of
social utility.
The Lockean dimension of Roederer’s argument was clearly visible in his assertion
that ‘it is a natural right that an object becomes the possession of the first man who,
in order to satisfy his needs, mixes his labour with it’.101 To challenge this was to
challenge a man’s right to live. In response to those who argued that a man required
possession only of the product of the earth and not of the earth itself, Roederer replied
that a man needed not only food today but also to be free of worries for the future.
Property, in other words, provided security as well as liberty. The argument from
utility, in contrast, asserted that common ownership was effective neither as a means of
satisfying human needs nor of enhancing overall production. The needs of individuals
varied and only private property could ensure the expenditure of the amount of labour
appropriate to their satisfaction. Moreover, it was not merely a question of enjoying
the benefits of property but of developing the means of production through industrie
and the division of labour. The inequality of wealth, Roederer added, was not a
necessary consequence of private property and it could in any case be diminished
through the introduction of what he described as ‘des institutions douces’. He
categorically denied Robespierre’s charge that private property was a source of waste
and luxury.
98 Ibid. 29. See ‘De la Terreur’, in Roederer, L’Esprit de la Révolution de 1789, 197–233.
99 Pierre-Louis Roederer, Cours d’organisation sociale, in Œuvres complètes (1859), viii. 129–305.
100 Ibid. 137.
101 Ibid. 235.
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Rights, Liberty, and Equality
The argument, then, is that as the language of rights became embedded in
Robespierrean discourse and subverted into an instrument of Jacobin dictatorship,
men of a liberal disposition such as Daunou and Roederer found themselves
increasingly ill at ease with a form of speech that threatened to turn an equality
of rights into an aspiration towards both political and economic equality. One
dimension of this––displayed with brilliance by the Abbé Sieyès––was a penchant
for increasingly complex constitutional and electoral arrangements designed to
place limitations upon the powers of popular sovereignty. Another was to argue
that formal declarations of rights were superfluous and largely ineffective as a means
of preventing the abuse of power.102 Still another was the attempt to develop a
political economy which sought to unite patterns of industriousness––especially
frugality––with the republican manners associated with moderate wealth and the
absence of social hierarchy.103 More generally, in the years immediately following
the fall of the Jacobins, the Idéologues sought to stabilize the Republic and to place it
upon solid institutional foundations. If Roederer spoke of the need to provide a
government which combined ‘rectitude’ with ‘strength’,104 the physician Pierre
Cabanis argued for a government ‘capable of efficiently protecting its citizens
without ever being able to subvert public liberty’.105 A large republic of 30 million
inhabitants, the latter argued, needed ‘a vigorous executive power’.106 For his part,
Destutt de Tracy developed a detailed programme, covering educational, econom-
ic, and domestic reform, that in political terms focused upon the need to restructure
the State and to ensure the rigorous application of ‘repressive laws’.107
Of greater significance was the attempted development of idéologie itself. As
conceived by Destutt de Tracy, idéologie, or the science of thought and action, was
the fundamental building block upon which the possibility of all human advance
rested. This, in turn, entailed an almost limitless enthusiasm for the possibilities of
conceptual reform, a characterization of religious belief and speculative metaphysics
as obsolete sources of ignorance, and the search for means of perfecting our
intellectual capacities. Less clear is the extent to which Destutt de Tracy was able
to resolve the tension arising from his need to reconcile an advocacy of limited
government with a philosophical position pointing towards government by an
educated elite and a conception of objective interests. Even less certain is the extent
to which the Idéologues, when faced with the demise of civil and political liberties,
rekindled their original enthusiasm for the language of rights. Cheryl Welch takes
the view that the search for stable government led the Idéologues to emphasize ‘the
utilitarian side of the revolutionary legacy’.108 Martin Staum, by contrast, asserts
102 Jean-Baptiste Say, ‘Quelques idées sur le projet de Constitution de la Commission des Onze’,
Décade philosophique littéraire et politique, 6 (1795), 79–90.
103 Richard Whatmore, Republicanism and the French Revolution: An Intellectual History of
Jean-Baptiste Say’s Political Economy (Oxford, 2001).
104 Pierre-Louis Roederer, Du Gouvernement (1795), 14.
105 Pierre Cabanis, Quelques considérations sur l’organisation sociale en général et particulièrement sur
la nouvelle constitution (1799), 1.
106 Ibid. 39–40.
107 Destutt de Tracy, Quels sont les moyens de fonder la morale chez un peuple? (1798).
108 Welch, Liberty and Utility, 6.
Rights, Liberty, and Equality
53
that ‘the Idéologue confrontation with arbitrary power led to a resurgence of the
language of rights’.109
To resolve this issue we should look at the two most important treatises on
politics provided by the Idéologues in the periods of the First Empire and of the
Restoration: Destutt de Tracy’s Commentaire sur ‘l’Esprit des lois’ de Montesquieu,
written in 1806–7 and first published in French in 1817,110 and Daunou’s Essai sur
les garanties individuelles qui réclame l’Etat actuel de la société, published in 1819.111
Daunou provided a compelling account of the iniquities of arbitrary and
despotic government. It was a self-perpetuating system that corrupted men and
rested upon ambition and hatred. Nevertheless, as a counter-model he spoke of the
need for guarantees of, rather than rights to, personal liberty, domestic security, and
the development of industrie through production and trade. Liberty itself was
defined as the ‘full enjoyment of these individual guarantees’,112 with their safe-
guard resting not in ‘general propositions’ but in the ‘positive rules’ associated with
long-established practice. Amongst the desirable practices listed were freedom of
opinion and trial by jury. ‘Nowhere’, Daunou wrote, in stark contrast to the
position he had adopted in his Essai sur la constitution of 1793, ‘will I have resort
to abstract principles, to the hypothesis of the social pact, to a discussion of its
clauses, or to the anterior or natural rights that it presupposes.’113
Destutt de Tracy’s Commentaire sur ‘l’Esprit des lois’ de Mon
tesquieu was written
for Thomas Jefferson. In a footnote to the text he kindly commented that the
declaration of rights presented by Jefferson’s friend, Lafayette, to the National
Assembly on 11 July 1789 remained ‘the best that had been produced’.114 In the
main body of the text, however, he argued that such declarations were a sign of
political immaturity. It was far better to preface a constitution with a set of general
principles which had their origin in ‘the observation of man’ and which, Destutt de
Tracy believed, could be reduced to three ‘eternal verities’: governments are made
for the governed; there should never exist in society a power that could be changed
only by recourse to violence or that, when changed, altered the entire workings
of society; governments should always seek to preserve the independence of the
nation and the liberty of its members.115 In general terms, therefore, Destutt de
Tracy recommended a system of what he termed ‘national government’, resting
upon free but indirect elections, civil liberty (including freedom of the press and
from arbitrary arrest), legal but not economic equality, and a society in which every
citizen would benefit from the liberalization of commerce and industry. However,
the limitations of his attachment to rights were amply demonstrated by his
argument that women should be excluded from public life. ‘Women’, he wrote,
‘as sensate and reasoning beings, certainly have the same rights and, roughly
109 Martin Staum, ‘Individual Rights and Social Control: Political Science in the French Institute’,
Journal of the History of Ideas, 48 (1987), 422.
110 Destutt de Tracy, Commentaire sur ‘l’Esprit des lois’ de Montesquieu, in Œuvres (1819).
111 Pierre-Claude-François Daunou, Essai sur les garanties individuelles que réclame l’Etat actuel de la
société (1819).
112 Ibid. 210.
113 Ibid. 6.
114 Destutt de Tracy, Commentaire, 255.
115 Ibid. 252–3.
54
Rights, Liberty, and Equality
speaking, the same capacities as men; but they are not called upon to assert these
rights and to employ this capacity in the same way.’ Women, in short, were
destined for ‘domestic functions’ and men for ‘public functions’.116 More telling
still was Destutt de Tracy’s definition of liberty as the ‘power to exercise one’s will’.
To be free was to be able to do what one wished.117
This argument received its fullest expression in the fourth part of Destutt
de Tracy’s Elémens d’Idéologie, the Traité de la volonté et de ses effets.118 The
contention was that our needs and means, rights and duties, derived from the faculty
of the will and this in turn was defined entirely in terms of the desire to maximize
pleasure and to minimize pain. Liberty was understood as the power to execute our
will, to act according to our desires, and therefore was ‘the solution to all our ills,
the fulfilment of our desires, the satisfaction of our needs’.119 As such, liberty was to
be equated with happiness. Our rights were equal to our needs and, consequently,
the ‘rights of one person are nothing to do with the rights of another’.120 Our duty was
to satisfy these needs ‘without any extraneous consideration’. Restrictions upon our
rights only emerged with the appearance of the social conventions associated with the
concepts of justice and injustice but this changed merely the means of implementation
and not the substance of our duty. The goal of the ‘good society’, accordingly, was
always to augment the power of each person by making that of others converge with
it and by preventing them from reciprocally nullifying each other.121 Viewed thus,
society could be described as ‘purely and uniquely a continuous series of exchanges’122
and therefore the remainder of Destutt de Tracy’s argument focused upon an analysis
of the mechanisms of production and distribution.
There was much of merit in Destutt de Tracy’s argument, not least his fulmina-
tions against the desire for luxury displayed by les oisifs and his determination to
defend the merits of the various categories––be they manufacturers or merchants––
who comprised la classe laborieuse. This entailed, first, a rejection of the physiocratic
notion that agriculture was the primary source of wealth and, second, a repudiation
of the attachment of the physiocrats to a centralized state as a vehicle of economic
progress. At issue was a fundamental disagreement about the nature of productive
activity, Destutt de Tracy wishing to argue that to produce was to give to things a
utility that they did not previously possess and, therefore, that all labour from
which utility arose was productive. But his text does indicate how far the utilitarian
equation of liberty with the satisfaction of individual desires left him with the
troubling conclusion that what made one form of social organization preferable to
another was only the extent to which it enhanced the happiness of its members.
The argument was not framed in terms of the protection of rights––be they natural,
civil, or political––and the actual form a government took––beyond the distinction
between ‘national’ and ‘special’ governments––was not considered to be over-
important. The government that governed best, that maximized our liberty, was the
116 Destutt de Tracy, Commentaire, 193.
117 Ibid. 154.
118 Destutt de Tracy, Elémens d’Idéologie, iv. Traité de la volonté et de ses effets (1815).
119 Ibid. 110.
120 Ibid. 130.
121 Ibid. 137.
122 Ibid. 144.
Rights, Liberty, and Equality
55
government that made us the happiest.123 This was a far cry from the sentiments
informing the debates of the National Assembly in 1789.
V
It would take a mind of far greater subtlety than that possessed by any of the
Idéologues to appreciate the dangers of this unwillingness properly to discriminate
between the claims of utility and those of rights. ‘Right’, Benjamin Constant
recognized, ‘is a principle, utility is only a result’ and to subject the former to the
latter was like subjecting ‘the eternal rules of arithmetic to our daily interests’.
Nothing could excuse a man who assisted a law he believed to be iniquitous, a judge
who sat in a court he knew to be illegal, or a henchman who arrested a man he knew
to be innocent in order to deliver him up to the executioner. To justify that
statement, Constant not only outlined what he took to be the ambiguities inherent
in the concept of utility (especially as it had been set out by Jeremy Bentham) but
also fell back upon a position that, in his view, had been the guiding thread behind
the aspirations of 1789: ‘all citizens possess individual rights independently of every
social and political authority and any authority that violates these rights becomes
illegitimate’. For Constant, these rights were summarized as the rights to individual
and religious liberty, freedom of speech, the possession of property, and protection
from arbitrary interference. Most importantly, they were to be enjoyed by all and
could not therefore be abrogated in the name
of some utilitarian calculation.124
That the restored Bourbon monarchy proved itself unable to honour even the
modest concessions made to such a doctrine in the Charte of 1814 was itself
testimony to the limited appeal of the language of rights. Much the same occurred
with the advent of the July Monarchy of Louis-Philippe. The Charte of 1830, like
its predecessor, reaffirmed many of the basic principles of the declaration of 1789––
equality before the law, the equal eligibility of all for civil and military posts, the
inviolability of property––but did so without speaking of the rights of the individ-
ual citizen.125 This was probably sufficient to guarantee France further years of
political turmoil.
Other pressing matters were on the horizon. During the revolutionary decade,
what was understood by property was essentially land. Suggestions for the redistribu-
tion of private wealth, for example, usually took the form of demands for periodic
redivision of landed property––the Jacobins opposed primogeniture for this reason––
rather than the socialization of the means of production. This began to change in the
early decades of the nineteenth century as it became increasingly obvious to some that
the bourgeoisie appeared to be the principal beneficiaries of the emerging industrial
123 Destutt de Tracy, Commentaire, 161.
124 See Stephen Holmes, Benjamin Constant and the Making of Modern Liberalism (New Haven,
Conn., 1984), 125–7 and Biancamaria Fontana, Benjamin Constant and the Post-Revolutionary Mind
(New Haven, Conn., 1991), 114–17.
125 See Pierre Rosanvallon, La Monarchie impossible: Les Chartes de 1814 et de 1830 (1994).
56
Rights, Liberty, and Equality
system. This was a view that received dramatic confirmation with the uprising by
starving workers in Lyons in 1834. The eradication of pauperism, as it became
known, called for radical measures. To these demands were then added, especially
from 1840 onwards, a secularized religious impulse that saw the attainment of
equality as being the key component in the advance towards the rediscovered goal
of fraternity.126 A good example of this style of thinking is Pierre Leroux’s De
l’Egalité, where equality was described as ‘a divine law’ anterior to all others and
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