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On the Nature of Rights as Described by the French National Assembly

The question of whether or not humans have intrinsic rights is not one that is frequently asked. We are taught from childhood that we must pursue and protect our intrinsic rights as far and as fiercely as we possibly can. The pursuit of rights has become such a major preoccupation that the language of justice itself is in danger of being utterly trivialized by the ever-expanding pantheon of newly discovered inherent human rights. We in the modern world are told that our rights are a part of us. The idea that they can be justly limited, however, is still present in most discussions of these rights. In this paper we will briefly explore the French National Assembly’s Declaration of the Rights of Man and of the Citizen, a founding document in this tradition that describes inherent rights and yet claims to limit them severely. A key question this document raises is if it is truly possible for the determination or exposition of natural rights to be different than merely bestowing non-natural privilege. Did the French National Assembly write this document as an exposition of natural rights, or is it merely a bestowal of certain privileges that must be limited or, if need be, rescinded?

     The Declaration opens with the observational claim that “the ignorance, neglect or contempt of the rights of man are the sole causes of public calamities and of the corruption of governments.”[1] There is something about the human person that entitles an individual to certain rights, and to ignore these is to disregard the natural order of things, to the detriment of society and the individual alike. But what are rights? An explicit definition is never given, but the fourth point in the document reads, “Liberty consists in being able to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of society the enjoyment of the same rights”[2] It seems as if natural rights as presented here are essentially limitless; they are limited only by those of others. In other words, rights are limited by rights via mutual exclusivity.

     Section five of the Declaration says, however, that actions may not be prevented apart from the law, and defines the law as an “expression of general will” through which “every citizen has the right to participate.”[3] Now it seems that the only means by which we can determine where competing and mutually exclusive rights collide, i.e., the limits of rights, is through the general will of the populace. The idea that that which limits an individual’s rights is not empirically and objectively their collision with the rights of others but instead is merely the whim of the populace as expressed through the general will subjects the intrinsic rights of man to human discretion and makes their formerly intrinsic and inviolable nature justly violable again. This seems clearly indicated in the myriad of qualifiers that accompany the rights listed by the National Assembly. The right of free speech is described as precious, but the citizen is “responsible for such abuses of this freedom as shall be defined by law.”[4] Man’s right to property is described as “inviolable” and “sacred”, but the provision for an individual’s deprivation of property is made if such a seizure is deemed “public necessity.”[5] At these points, one comes to wonder if the nature of rights in this document is actually as intrinsic as is claimed. It seems that all of the qualifications, limitations, and potential suspensions regarding the rights listed indicate not that these rights are intrinsic properties being regulated, but that they are functional tools being bestowed -and limited- by the government and laws of the land. For how can an intrinsic property be justly regulated by the general will if it is intrinsic, and if these rights are indeed inviolable? How can a citizen’s property be sacred if it is just for the community to decide that he may be deprived of it for the common good? In short, how are rights consonant with a concept of the common good as described in this document?

     If man is truly naturally endowed with the right to resist oppression, for example, as is claimed by section two of the document, then one must ponder who defines oppression. If we put this right and the right of free expression previously mentioned in contrast, at what point does the government who reserves the right by law to punish the abuse of free speech become the oppressor, and, under its own constitution, relinquish its hold on the society since the man has the right to resist them by its own admission? The whole house of cards seems to tumble down when intrinsic properties of men must be governed by un-empirical judgment, for that which is intrinsic seems to be by nature empirical: it is that which is in a person. Certain rights are inherent to persons, the Assembly declares, and yet somehow they may be limited — perhaps even violated in this limitation— not simply by the rights of others, as it seems an intrinsic property logically should be, but instead by the mere decision of the general will. The rights described here, thus, seem not to fit the title of natural rights, but of vested or bestowed privileges, since that which is not given cannot be justly taken away, but that which is given may be limited or rescinded justly.

     The claim that the rights being offered to the citizens in the new French republic are intrinsic to their persons is not what the details of the document actually describe. The assembly clearly lays out that “law can only prohibit such actions as are hurtful to society.”[6] Indeed, it seems as if the political body is not actually formed to preserve inherent rights, but to maintain order over and against the abilities of the individual persons. This is much more akin to the philosophy of Thomas Hobbes than something transcendent and natural; here, social order is formed to prevent senseless slaughter and competition. Man has no “natural” rights: he only has abilities by which he can choose to effect certain outcomes to his advantage. Though the language of the Declaration of the Rights of Man and of the Citizen speaks of the natural rights of man, the content of the document belies this idea.

     How then do we talk about rights as described by the Declaration if they are not intrinsic? The argument for intrinsic rights usually is defined by the concern that privileges which are bestowed can be revoked at any point by the governing body. If the government gives “rights” which are really privileges, the government has the ability to revoke them just as easily. However, the government in the French document is retaining the jurisdiction to limit individual rights to an unlimited degree: “these limits can only be determined by law.”[7] There is no specific provision for the extent to which they may be eroded. Where, then, is the difference? If it is admitted that inviolable natural rights may indeed be violated for the common good, how is this different than having privileges bestowed upon the populace by the government, in whom they participate?

     The language of rights as used in this revolutionary document does not need to resonate with such transcendent airs of the natural and intrinsic. Instead, it seems much more rational to view rights in the French revolutionary sense as self-bestowed and limited privileges. This is not to say that rights do not exist, though it would be difficult to find a modern civilization that did not treat rights in a similar sense as the Declaration. Perhaps the use of rights as intrinsic and natural in this document is no more than an inspiring falsehood, a Platonic noble lie designed to give the society a hopeful and higher calling than a mere Hobbesian escape from death, brutality, and inequality.


[1] Oliver Thatcher et al., The Library of Original Sources: Volume Vii. (Milwaukee: University Research Extension, 1907), 415.

[2] Ibid, 416.

[3] Ibid, 416.

[4] Ibid, 417.

[5] Ibid, 417.

[6] Ibid, 416.

[7] Ibid, 416.

Reference

Thatcher, Oliver J, Murray W. Mansfield, Edmund Burke, Adam Smith, Patrick Henry, Benjamin Franklin, Thomas Paine, Thomas Jefferson, Arthur Young, Honoré-Gabriel R. Mirabeau, and Emmanuel J. Sieyès. The Library of Original Sources: Volume Vii. Milwaukee, Wisconsin: University Research Extension, 1907. Print.