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 Constituent
Assembly 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 passions, 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
document 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 document 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 class, 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 constitution 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 constitution.2
Together with the right of suffrage, the "droits garantis par la constitution", which were
enumerated for the last time in the constitution 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 constitutions 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 constitutions of the period prior to 1848 contained a section upon
the rights of subjects, and in the year 1848 the National Constitutional 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
constitutions of the period after 1848. Thus, first of all, in the Prussian constitution 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 constitutions of the new states in the Balkan peninsula.
A noteworthy exception to this are the constitutions 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 constitution of the Empire, however, could the
better dispense with such a declaration as it was already contained in most of the
constitutions 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 constitution 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 constitution.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 constitution. 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
constitutional 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 assures to the
individual. Thus far in the works on public law various precursors of the declaration of
the Constituent Assembly, 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 assumptions.
reference:
Georg Jellinek, The Declaration of the Rights of Man
and of Citizens: A Contribution to Modern Constitutional
History (1895)