The Encyclopedia of Libertarianism

Declaration of the Rights of Man and of the Citizen

On August 26, 1789, the Declaration of the Rights of Man and of the Citizen was adopted by the French National Assembly, which also was known as the Constituent Assembly, owing to its self-appointed task of framing a constitution for the French nation. This body began as one of three Estates, or orders, within the Estates-General, which had been convened in early May by King Louis XVI. The three orders of which the Estates-General consisted were the nobility, the clergy, and the Third Estate, made up of all other French citizens.

This remarkable event—the summoning of the Estates- General, the first since 1614—was precipitated by the bankruptcy of the French government and its desperate need to raise revenue. The crown’s attempts to levy taxes on those who could afford them generated a power struggle with the nobility (especially the reform-minded Parlement of Paris), and both sides decided they had something to gain by convening an Estates-General. Events, however, soon took on a life of their own as both the King and the aristocracy found themselves unable to control the course of events.

The Third Estate first acted in a revolutionary manner on June 17, when, by a majority of 491 to 89, it renamed itself the National Assembly. Although deputies from the other two orders were invited to join the National Assembly—and were later ordered to do so by Louis XVI after he had lost a significant political battle—this assumption of political sovereignty by the Third Estate was a clear sign that a number of ancient legal privileges that the crown and nobility possessed would not be permitted to stand. Indeed, many members of the nobility and clergy strongly supported the abolition of feudal privileges and other radical reforms that were about to follow.

The Declaration was intended to serve as a preamble to the French Constitution of 1791, which established a constitutional monarchy. (A purely republican form of government awaited the Constitution of 1793, after the treason conviction of Louis XVI had led to his execution and the abolition of monarchy.) Historians continue to debate the extent to which the Declaration was influenced by American precedents, such as George Mason’s Virginia Declaration of Rights (1776) and various state constitutions adopted during the 1780s. The Marquis de Lafayette, who emphasized the need for a Declaration of Rights and played a prominent role in its drafting, was among the 8,000 Frenchmen who had participated in the American Revolution. Moreover, key documents in the American struggle, such as Thomas Paine’s Common Sense and various state constitutions, had been translated into French and were widely read.

Some historians maintain that this situation is more a case of correlation than of causation. As the historian George Rudé observed, “both Americans and Frenchmen acknowledged a common debt to the ‘natural law’ school of philosophy, in particular to Locke, Montesquieu, and Rousseau.” At the least, however, the American experience provided an inspiration and example, if not an exact model, for the French Declaration of Rights. According to John- Joseph Mounier, a member of the National Assembly who contributed to the Declaration, the American Revolution had instilled in the French “a general restlessness and desire for change.” Americans had shown that it was possible to begin anew and construct a government on rational principles.

The Declaration, which contains 17 articles, is a short document. The preamble describes it as a “solemn declaration [of] the natural, inalienable, and sacred rights of man.” Failures to protect these rights, it notes, are the “sole causes of public misfortunes and the corruption of governments.” By codifying the basic rights and duties of citizens, the Declaration’s intent was to legitimize the new French government and to encourage respect for the legislative and executive powers by providing citizens with “simple and incontestable principles” that could be used to evaluate the justice and social utility of governmental institutions and actions.

Article 1 begins with the statement: “Men are born and remain free and equal in rights.” It should be noted that the words man and men, when used in this context, referred to all individuals, male and female alike. Both men and women were viewed as possessing equal natural rights in the Lockean tradition. Gender inequalities, such as the inability to vote—which the Constitution of 1791 did nothing to rectify—were viewed as an issue of civil rather than natural rights.

Unlike some versions of social contract theory, in which natural rights are irrevocably transferred or surrendered to government, this passage suggests that (a) the power to enforce rights, rather than the rights themselves, is delegated to government; and (b) this “executive power” (as Locke called it) may be reclaimed by individuals in those cases where a government becomes despotic or tyrannical.

The purpose of government is to preserve the “natural and imprescriptible rights of … liberty, property, security, and resistance to oppression.” “The natural rights of individuals” are limited by the equal rights of other individuals. “Liberty consists in being able to do anything that does not injure another,” and the primary function of law is to define and specify these limits. Thus, natural rights constitute a standard of public utility that determines the common good. The law may forbid only those actions that are “harmful to society.” All actions not expressly forbidden by law are permitted, and no one may be compelled to do anything that is not mandated by law.

Although much of the Declaration may be broadly described as Lockean, another influence—that of J. J. Rousseau—also is evident at various points, particularly Article 3, which holds that “the source of all sovereignty resides essentially in the nation,” and Article 6, which reiterates the Rousseauian notion that “the law is the expression of the general will.”

Conservative critics of the French Revolution, such as J. L. Talmon, have focused on these elements to denounce the Declaration, following on the argument first proposed by Edmund Burke in his Reflections on the Revolution in France (1790). According to these critics, the references to national sovereignty and the “general will” contain the seeds of totalitarian democracy—a tendency that would later manifest itself in events such as the Reign of Terror and Jacobin one-party rule. However, this criticism is misplaced. The claim that sovereignty resides in the nation was intended to rebut the doctrine of absolute monarchy, according to which sovereignty resides solely in the king. To state that no body or individual “can exercise authority that does not explicitly proceed” from this source is merely to affirm, if in a somewhat roundabout fashion, the Lockean principle that all legitimate political authority must be based on the consent of the governed.

The “general will,” an expression that appears only once in the Declaration, was closely associated with Rousseau, who failed to make its meaning clear. But we at least know what Rousseau did not mean because he explicitly cautions against confusing the “general will” with the will of the majority.

Although many deputies in the National Assembly were familiar with Rousseau’s writings, it is unlikely that these practical men—many of whom were lawyers—intended to inject his abstruse notion the “general will” into the Declaration. It is more plausible that their understanding was based on the argument put forward by the Abbé Sieyès, an active member of the assembly, in What Is the Third Estate? Throughout this highly influential tract, published early in 1789, Sieyès expressly equated the “general will” with majority rule. Although Rousseau, who had died 11 years earlier, would not have been happy with this simplistic interpretation of his theory, majority rule is possibly all that most members of the National Assembly understood by the “general will.”

When viewed in this light, this mention of the “general will” becomes far less sinister than its many critics would have us believe—especially when we keep in mind that the Declaration was drafted specifically to establish limits on government power. The government envisioned in the Declaration is far closer to the limited constitutional State described by Locke than to the totalitarian democracy that is often attributed, whether rightly or wrongly, to Rousseau. Indeed, Article 16 states that a “society in which the guarantee of rights is not secured, or the separation of powers not clearly established, has no constitution.” This emphasis on the separation of powers is not something we find in Rousseau, whereas it is essential to Locke’s theory.

The rule of law is a recurring theme in the Declaration; 9 of the 17 articles refer to it. This insistence is understandable given the many legal privileges and inequities of the Old Regime. All citizens, it proclaims, have the right to participate in the making of law, whether personally or through their representatives. All citizens are equal in the eyes of the law, which should be applied impartially regardless of social distinctions. The holding of public offices should be determined solely on the basis of “virtues and talents.”

No person may be accused, arrested, or detained except under the forms prescribed by law, and those public officials who abuse their power should be held accountable. Those legal punishments are alone justifiable, which are “strictly and evidently necessary” for the protection of rights, and no one may be tried for violating a law that was not in effect at the time of the offense. Moreover, “Every man is presumed innocent until he has been found guilty,” and only the minimal amount of force necessary to secure an arrest is warranted.

Freedom of religion is guaranteed, “provided [religious] expression does not trouble the public order established by law.” This proviso probably owed its inclusion to the Catholic clergy. The Constitution of 1791 did not abolish laws against blasphemy, nor did it establish a separation of church and state.

A similar proviso is attached to “one of the most precious rights of man” (i.e., “the free expression of thought and opinions”). Every citizen is free to speak, write, or print what he pleases, “subject to accountability for abuse of this freedom in those cases determined by law.” This broad qualification, however troublesome it may seem, may have been intended merely to accommodate libel laws and similar measures that are found even today in countries that pride themselves on free speech.

The Declaration concludes by stressing the importance of property rights: “Property being an inviolable and sacred right, no one can be deprived of it, unless legally established public necessity obviously demands it, and upon condition of just and prior indemnity.” The Declaration proved to be one of the great documents in the history of freedom. It was translated and published in all the countries of Europe, and served it as the basis of countless demands throughout the continent for a society based on liberal principles.

 

Further Readings

Acton, John Edward Emerich Dalberg, Lord. Lectures on the French Revolution. John Neville Figgis, ed. Indianapolis, IN: Liberty Fund, 2000.

Burke, Edmund. Reflections on the Revolution in France. Francis Canavan, ed. Indianapolis, IN: Liberty Fund, 1999.

Locke, John. “Second Treatise on Government.” Two Treatises on Government. Peter Laslett, ed. Cambridge: Cambridge University Press, 2005.

Mason, George. “Virginia Declaration of Rights.” The Papers of

George Mason 1726–1792. Robert A. Rutland, ed. Chapel Hill: University of North Carolina Press, 1970.

Paine, Thomas. Paine: Political Writings. Bruce Kuklik, ed. Cambridge: Cambridge University Press, 2000.

Rousseau, Jean-Jacques. “The Social Contractand Other Later Political Writings. Victor Gourevitch, ed. Cambridge: Cambridge University Press, 1997.

Sieyès, Emmanuel Joseph. Political Writings: Including the Debate between Sieyes and Tom Paine in 1791. Michael Sonenscher, trans. Indianapolis, IN: Hackett, 2003.

Van Kley, Dale. The French Idea of Freedom: The Old Regime and the Declaration of Rights of 1789. Stanford, CA: Stanford University Press, 1997.

Originally published .