The Declaration of the Rights of Man and of Citizens Part 1

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The Declaration of the Rights of Man and of Citizens.

by Georg Jellinek.

CHAPTER I.

THE FRENCH DECLARATION OF RIGHTS OF AUGUST 26, 1789, AND ITS SIGNIFICANCE.

The declaration of “the rights of man and of citizens” by the French Const.i.tuent a.s.sembly on August 26, 1789, is one of the most significant events of the French Revolution. It has been criticised from different points of view with directly opposing results. The political scientist and the historian, thoroughly appreciating its importance, have repeatedly come to the conclusion that the Declaration had no small part in the anarchy with which France was visited soon after the storming of the Bastille. They point to its abstract phrases as ambiguous and therefore dangerous, and as void of all political reality and practical statesmanship. Its empty pathos, they say, confused the mind, disturbed calm judgment, aroused pa.s.sions, and stifled the sense of duty,–for of duty there is not a word.[1] Others, on the contrary, and especially Frenchmen, have exalted it as a revelation in the world’s history, as a catechism of the “principles of 1789” which form the eternal foundation of the state’s structure, and they have glorified it as the most precious gift that France has given to mankind.

Less regarded than its historical and political significance is the importance of this doc.u.ment in the history of law, an importance which continues even to the present day. Whatever may be the value or worthlessness of its general phrases, it is under the influence of this doc.u.ment that the conception of the public rights of the individual has developed in the positive law of the states of the European continent.

Until it appeared public law literature recognized the rights of heads of states, the privileges of cla.s.s, and the privileges of individuals or special corporations, but the general rights of subjects were to be found essentially only in the form of duties on the part of the state, not in the form of definite legal claims of the individual. The Declaration of the Rights of Man for the first time originated in all its vigor in positive law the conception, which until then had been known only to natural law, of the personal rights of the members of the state over against the state as a whole. This was next seen in the first French const.i.tution of September 3, 1791, which set forth, upon the basis of a preceding declaration of rights, a list of _droits naturels et civils_ as rights that were guaranteed by the const.i.tution.[2]

Together with the right of suffrage, the “_droits garantis par la const.i.tution_”, which were enumerated for the last time in the const.i.tution of November 4, 1848,[3] form to-day the basis of French theory and practice respecting the personal public rights of the individual.[4] And under the influence of the French declaration there have been introduced into almost all of the const.i.tutions of the other Continental states similar enumerations of rights, whose separate phrases and formulas, however, are more or less adapted to the particular conditions of their respective states, and therefore frequently exhibit wide differences in content.

In Germany most of the const.i.tutions of the period prior to 1848 contained a section upon the rights of subjects, and in the year 1848 the National Const.i.tutional Convention at Frankfort adopted “the fundamental rights of the German people”, which were published on December 27, 1848, as Federal law. In spite of a resolution of the _Bund_ of August 23, 1851, declaring these rights null and void, they are of lasting importance, because many of their specifications are to-day incorporated almost word for word in the existing Federal law.[5]

These enumerations of rights appear in greater numbers in the European const.i.tutions of the period after 1848. Thus, first of all, in the Prussian const.i.tution of January 31, 1850, and in Austria’s “Fundamental Law of the State” of December 21, 1867, on the general rights of the state’s citizens. And more recently they have been incorporated in the const.i.tutions of the new states in the Balkan peninsula.

A noteworthy exception to this are the const.i.tutions of the North German Confederation of July 26, 1867, and of the German Empire of April 16, 1871, which lack entirely any paragraph on fundamental rights. The const.i.tution of the Empire, however, could the better dispense with such a declaration as it was already contained in most of the const.i.tutions of the individual states, and, as above stated, a series of Federal laws has enacted the most important principles of the Frankfort fundamental rights. Besides, with the provisions of the Federal const.i.tution as to amendments, it was not necessary to make any special place for them in that instrument, as the Reichstag, to whose especial care the guardianship of the fundamental rights must be entrusted, has no difficult forms to observe in amending the const.i.tution.[6] As a matter of fact the public rights of the individual are much greater in the German Empire than in most of the states where the fundamental rights are specifically set forth in the const.i.tution. This may be seen, for example, by a glance at the legislation and the judicial and administrative practice in Austria.

But whatever may be one’s opinion to-day upon the formulation of abstract principles, which only become vitalized through the process of detailed legislation, as affecting the legal position of the individual in the state, the fact that the recognition of such principles is historically bound up with that first declaration of rights makes it an important task of const.i.tutional history to ascertain the origin of the French Declaration of Rights of 1789. The achievement of this task is of great importance both in explaining the development of the modern state and in understanding the position which this state a.s.sures to the individual. Thus far in the works on public law various precursors of the declaration of the Const.i.tuent a.s.sembly, from Magna Charta to the American Declaration of Independence, have been enumerated and arranged in regular sequence, yet any thorough investigation of the sources from which the French drew is not to be found.

It is the prevailing opinion that the teachings of the _Contrat Social_ gave the impulse to the Declaration, and that its prototype was the Declaration of Independence of the thirteen United States of North America. Let us first of all inquire into the correctness of these a.s.sumptions.

FOOTNOTES:

[Footnote 1: First of all, as is well known, Burke and Bentham, and later Taine, _Les origines de la France contemporaine: La revolution_, I, pp. 273 _et seq._; Oncken, _Das Zeitalter der Revolution, des Kaiserreiches und der Befreiungskriege_, I, pp. 229 _et seq._; and Weiss, _Geschichte der franzosischen Revolution_, 1888, I, p. 263.]

[Footnote 2: t.i.tre premier: “Dispositions fondamentales garanties par la const.i.tution.”]

[Footnote 3: Helie, _Les const.i.tutions de la France_, pp. 1103 _et seq._]

[Footnote 4: _Cf._ Jellinek, _System der subjektiven offentlichen Rechte_, p. 3, n. 1.]

[Footnote 5: Binding, _Der Versuch der Reichsgrundung durch die Paulskirche_, Leipzig, 1892, p. 23.]

[Footnote 6: When considering the const.i.tution, the Reichstag rejected all proposals which aimed to introduce fundamental rights. _Cf._ Bezold, _Materialen der deutschen Reichsverfa.s.sung_, III, pp. 896-1010.]

CHAPTER II.

ROUSSEAU’S _CONTRAT SOCIAL_ WAS NOT THE SOURCE OF THIS DECLARATION.

In his _History of Political Science_–the most comprehensive work of that kind which France possesses–Paul Janet, after a thorough presentation of the _Contrat Social_, discusses the influence which this work of Rousseau’s exercised upon the Revolution. The idea of the declaration of rights is to be traced back to Rousseau’s teachings. What else is the declaration itself than the formulation of the state contract according to Rousseau’s ideas? And what are the several rights but the stipulations and specifications of that contract?[7]

It is hard to understand how an authority upon the _Contrat Social_ could make such a statement though in accord with popular opinion.

The social contract has only one stipulation, namely, the complete transference to the community of all the individual’s rights.[8] The individual does not retain one particle of his rights from the moment he enters the state.[9] Everything that he receives of the nature of right he gets from the _volonte generale_, which is the sole judge of its own limits, and ought not to be, and cannot be, restricted by the law of any power. Even property belongs to the individual only by virtue of state concession. The social contract makes the state the master of the goods of its members,[10] and the latter remain in possession only as the trustees of public property.[11] Civil liberty consists simply of what is left to the individual after taking his duties as a citizen into account.[12] These duties can only be imposed by law, and according to the social contract the laws must be the same for all citizens. This is the only restriction upon the sovereign power,[13] but it is a restriction which follows from the very nature of that power, and it carries in itself its own guarantees.[14]

The conception of an original right, which man brings with him into society and which appears as a restriction upon the rights of the sovereign, is specifically rejected by Rousseau. There is no fundamental law which can be binding upon the whole people, not even the social contract itself.[15]

The Declaration of Rights, however, would draw dividing lines between the state and the individual, which the lawmaker should ever keep before his eyes as the limits that have been set him once and for all by “the natural, inalienable and sacred rights of man.”[16]

The principles of the _Contrat Social_ are accordingly at enmity with every declaration of rights. For from these principles there ensues not the right of the individual, but the omnipotence of the common will, unrestricted by law. Taine comprehended better than Janet the consequences of the _Contrat Social_.[17]

The Declaration of August 26, 1789, originated in opposition to the _Contrat Social_. The ideas of the latter work exercised, indeed, a certain influence upon the style of some clauses of the Declaration, but the conception of the Declaration itself must have come from some other source.

FOOTNOTES:

[Footnote 7: “Est-il necessaire de prouver, qu’un tel acte ne vient point de Montesquieu, mais de J.-J. Rousseau?… Mais l’acte meme de la declaration est-il autre chose que le contrat pa.s.se entre tous les membres de la communaute, selon les idees de Rousseau? N’est ce pas l’enonciation des clauses et des conditions de ce contrat?”–_Histoire de la science politique, 3me ed._, pp. 457, 458.]

[Footnote 8: “Ces clauses, bien entendues, se reduisent toutes a une seule: savoir l’alienation totale de chaque a.s.socie avec tous ses droits a toute la communaute.”–_Du contrat social_, I, 6.]

[Footnote 9: “De plus, l’alienation se faisant sans reserve, l’union est aussi parfaite qu’elle peut l’etre et nul a.s.socie n’a plus rien a reclamer.” I, 6.]

[Footnote 10: “Car l’etat, a l’egard de ses membres, est maitre de tous leurs biens par le contrat social.” I, 9.]

[Footnote 11: “… Les possesseurs etant consideres comme depositaires du bien public.” I, 9.]

[Footnote 12: “On convient que tout ce que chacun aliene, par le pacte social, de sa puissance, de ses biens, de sa liberte, c’est seulement la partie de tout cela dont l’usage importe a la communaute; mais il faut convenir aussi que le souverain seul est juge de cette importance.” II, 4.]

[Footnote 13: “Ainsi, par la nature du pacte, tout acte de souverainete, c’est-a-dire toute acte authentique de la volonte generale, oblige ou favorise egalement tous les citoyens.” II, 4.]

[Footnote 14: “La puissance souverain n’a nul besoin de garant envers les sujets.” I, 7.]

[Footnote 15: “Il est contre la nature du corps politique que le souverain s’impose une loi qu’il ne puisse enfreindre … il n’y a ni ne peut y avoir nulle espece de loi fundamentale obligatoire pour le corps du peuple, pas meme le contrat social.” I, 7.]

[Footnote 16: Const.i.tution du 3 septembre 1791, t.i.tre premier: “Le pouvoir legislatif ne pourra faire aucune loi qui porte atteinte et mette obstacle a l’exercise de droits naturels et civils consignes dans le present t.i.tre, et garantis par la const.i.tution.”]

[Footnote 17: _Cf._ Taine, _loc. cit._: _L’ancien regime_, pp. 321 _et seq._]

CHAPTER III.

THE BILLS OF RIGHTS OF THE INDIVIDUAL STATES OF THE NORTH AMERICAN UNION WERE ITS MODELS.

The conception of a declaration of rights had found expression in France even before the a.s.sembling of the States General. It had already appeared in a number of _cahiers_. The _cahier_ of the _Bailliage_ of Nemours is well worth noting, as it contained a chapter ent.i.tled “On the Necessity of a Declaration of the Rights of Man and of Citizens”,[18]

and sketched a plan of such a declaration with thirty articles. Among other plans that in the _cahier des tiers etat_ of the city of Paris has some interest.[19]

In the National a.s.sembly, however, it was Lafayette who on July 11, 1789, made the motion to enact a declaration of rights in connection with the const.i.tution, and he therewith laid before the a.s.sembly a plan of such a declaration.[20]

It is the prevailing opinion that Lafayette was inspired to make this motion by the North American Declaration of Independence.[21] And this instrument is further declared to have been the model that the Const.i.tuent a.s.sembly had in mind in framing its declaration. The sharp, pointed style and the practical character of the American doc.u.ment are cited by many as in praiseworthy contrast to the confusing verbosity and dogmatic theory of the French Declaration.[22] Others bring forward, as a more fitting object of comparison, the first amendments to the const.i.tution of the United States,[23] and even imagine that the latter exerted some influence upon the French Declaration, in spite of the fact that they did not come into existence until after August 26, 1789. This error has arisen from the French Declaration of 1789 having been embodied word for word in the Const.i.tution of September 3, 1791, and so to one not familiar with French const.i.tutional history, and before whom only the texts of the const.i.tutions themselves are lying, it seems to bear a later date.

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