On the Spirit of Rights

Dan Edelstein

• Publisher: University of Chicago Press
• Year: 2018
• Print ISBN: 9780226794303, 9780226588988
• eBook ISBN: 9780226589039
• Topic: History
• Subtopic: Early American History
• Index: History

By the end of the eighteenth century, politicians in America and France were invoking the natural rights of man to wrest sovereignty away from kings and lay down universal basic entitlements. Exactly how and when did "rights" come to justify such measures?
 
In On the Spirit of Rights, Dan Edelstein answers this question by examining the complex genealogy of the rights that regimes enshrined in the American and French Revolutions. With a lively attention to detail, he surveys a sprawling series of debates among rulers, jurists, philosophers, political reformers, writers, and others who were all engaged in laying the groundwork for our contemporary systems of constitutional governance. Every seemingly new claim about rights turns out to be a variation on a theme, as late medieval notions were subtly repeated and refined to yield the talk of "rights" we recognize today. From the Wars of Religion to the French Declaration of the Rights of Man and of the Citizen to the 1948 Universal Declaration of Human Rights, On the Spirit of Rights is a sweeping tour through centuries of European intellectual history and an essential guide to our ways of thinking about human rights today.

Part I

Early Modern Rights Regimes

II

When Did Rights Become “Rights”? From the Wars of Religion to the Dawn of Enlightenment

In 1576 a three-volume work appeared in Geneva, with a false imprint, entitled Mémoires de l’état de France sous Charles IX. It contained a text that would go down in the annals of political thought: Etienne de La Boétie’s Discours sur la servitude volontaire, published there for the first time in full.1 The author, who died in 1563, had penned this treatise as a college student, around mid-century; since then, it had circulated only in manuscript. Its sentences still burned with youthful incandescence, castigating tyrants with the torch of liberty. But within pages redolent of Plutarch, whom La Boétie had also translated, there arose a more modern note as well, a justification of political liberty in terms of individual rights. “[M]an must [ . . . ] regain his natural right [se remettre en son droit naturel],” the author insisted, “and, so to speak, go from beast to man.” Regaining our rights was both a political liberation and a return to our natural social condition: “If we lived with the rights that nature has given us [les droits que la nature nous a donnés] and the lessons she imparted, we would be naturally obedient to our parents, subject to reason, and the serfs of no-one.”2 Natural rights, as this passage clearly indicates, should remain in force in political society; to abandon them was to subject ourselves to the whims of tyrants and to alienate ourselves from our very humanity.

Already in the middle of the sixteenth century, then, there were authors who passionately defended the preservation regime of rights. In fact, La Boétie’s dear friend Michel de Montaigne would later suggest that such arguments were banal, “a common theme hashed over in a thousand places in books.”3 While it is unclear which other books (ancient? contemporary?) Montaigne had in mind, there was some truth to his claim: as we saw in chapter 1, neo-Thomist theologians at the University of Paris such as John Major and Jacques Almain had put the language of individual, inalienable rights back into circulation. La Boétie was not the founder of any rights discourse. But Montaigne had other reasons to dismiss his friend’s text as a piece of immature juvenilia: the volumes in which it first appeared were the work of Huguenot revolutionaries.4 Their interest lay not in Greek tyrants, but in the sitting French king, Henri III, whose brother, Charles IX, had reigned over the massacre of Protestants on Saint Bartholomew’s Day, 1572. Their appropriation of La Boétie signaled the extent to which debates about rights would henceforth be caught up in the turmoil of the religious wars and in their political consequences.

1. Monarchomachs and Tyrannicides: Natural Rights in the French Wars of Religion

It pays to recall that natural rights, in early modern Europe, were not only used to advance political claims. Ecclesiastical literature regularly intoned about the natural rights of the clergy and churches, the Gallican Church in particular.5 Kings had natural rights, though in their case this expression referred to their rights by birth, following the Latin roots of “nature” (from nascio, to be born).6 In the same vein, legal texts discussing the succession rights of children often referred to their “natural rights.”7

Once hopes of a political reconciliation between Catholics and Protestants were dashed, however, Huguenot pamphleteers latched onto the idea of natural rights in order to challenge the legitimacy of the French monarch. Fragments of La Boétie’s treatise had first appeared in a work that signaled the new Huguenot line after the 1572 massacre, Le Reveille-matin des François.8 The author (possibly Nicolas Barnaud) struck many of the same themes as La Boétie, denouncing the bestial condition of humans who lived without rights: “[O]h wretched people! Must their condition be worse than beasts, who nature has at least taught to preserve themselves? Are they to be treated worse than the slave, whom natural right [le droict de nature], the law of nations, and also civil law grant protection from a master who he seeks to kill him?”9 Here the author still employed droit de nature in the classical (objective) sense of ius naturale, that is, the body of natural laws. This was the more common usage throughout this work, though it came with some innovations in terminology: the author raged that “our enemies [ . . . ] attack us and violate their conscience and every right of humanity [tout droit d’humanité] to satisfy the tyrant’s will.”10 This right of humanity was not a human right; it was closer to natural law. But subjective rights were not foreign to the Huguenot revolutionaries: if every individual could legitimately “defend himself from tyranny” by “withdrawing from [the tyrant’s] subjection,” it was because “my right [mon droit], my fortune, my honor, and my life, even my salvation” cannot be “abandonned and lost.”11 Tellingly, one of the fragments of La Boétie’s Discours that the author cited was precisely the passage on the need to “regain his natural right [son droit naturel].”12

These rights-based arguments also informed another important pamphlet published in the aftermath of the Saint-Bartholomew’s Day Massacre, Théodore de Bèze’s Du droit des magistrats sur leurs subjets (1574). The Huguenot theologian, and Calvin’s successor in Geneva, once again reached for the language of subjective rights to rail against tyranny: “[W]ho is guiltier of this crime [of lèse-majesté] than the Tyrant who manifestly violates all divine and human rights [tous droits divins & humains]?”13 This expression, “divine and human rights,” appears repeatedly throughout his text (occasionally in the singular, as well). For Bèze, these rights functioned chiefly as a barrier against political subjugation: “[I]t is for magistrates, and especially for sovereigns, to rule; this I grant, but add that their power is limited by divine and human rights [les droits divins & humains].”14 While his early use of the expression “human rights” is arresting, what is perhaps more significant is that these rights were conceived in opposition to sovereign power, not as its result.15

If the Huguenot revolutionaries rallied around the notion of natural rights, it was also because they provided support for their constitutional claims. Bèze discussed the dissolution of political bonds in terms that foreshadowed the social contract theorists of the following century: “when a sovereign becomes a tyrant, and the people use their right against him, he is the one who unbinds [deslié] the people by his perjury, not the contrary.”16 This appeal to constitutional, rather than confessional, arguments, was part of a concerted effort to turn even French Catholic readers away from their ruler.17 But it must also be viewed within the context of the multiple constitutional documents that Huguenot communities drafted around this time.18 While these texts did not contain anything resembling a declaration of rights, they did propose such revolutionary ideas as convoking the Estates General without the first estate (i.e., the clergy), and even proposed doubling the representation of the third estate.19

There was a certain ambiguity with the natural rights that these texts affirmed. On the one hand, they were firmly affixed to individuals.20 For the Huguenots, religious freedom was the most fundamental of natural rights, and it was the Catholic sovereign’s violation of this deeply personal right that, in their eyes, justified political resistance. As Bèze argued, “every individual [un chacun particulier] must defend his oppressed fatherland with all his power, especially when his religion and liberty are at stake.” On the other hand, this individual action only gained recognition when exercised collectively; “the people [les peuples] use their right against [the Tyrant],” Bèze asserted elsewhere.21 Le Reveille-matin made the same assumption: “[T]here is no statute of limitations against the rights of the people [les droits du peuple] and the estates” (2:88). In this reading, our individual natural rights are bundled into collective rights, exercised not only by the people as a whole, but by their representative bodies, namely, the Estates General. In the sixteenth century, this ambiguity does not appear to have been particularly significant, as these two conceptions of natural right (individual vs. collective) did not come into conflict. It was a different story, however, during the French Revolution, as we will see in chapter 6.

Huguenot revolutionaries were not alone in using pre-political rights to advance their political agenda. After Henri III had the duc de Guise (leader of the Catholic League) assassinated in 1588, his Catholic subjects now became even more shrill in their calls for armed resistance, adding demands for tyrannicide. A notorious case was the ligueur and University of Paris professor Jean Boucher, who approved of the assassination of Henri III (in 1589) and also applauded the Jesuit-educated Jean Châtel’s attempt on the life of Henri IV (in 1594). In his Apologie pour Iehan Chastel Parisien, Boucher invoked Cicero on tyrants: “[W]e know how they have always been described and judged, whether it be by nature, or the agreement of wise men. [ . . . ] Cicero wrote [ . . . ] that all the rights of nature are suspended with tyrants [tous droicts de nature cessent envers les tyrans]. . . .”22 In addition to encouraging the more extreme measure of assassination, Boucher’s claim here is somewhat different than, say, Bèze’s, as it implies that our natural rights would normally not extend to authorizing such an act, rather than stating that sovereigns who invade our rights are tyrants. In both cases, however, these natural rights are presumed to remain active and exercisable in society.

What one might call the political “weaponization” of natural rights in the sixteenth century does not therefore appear to have been triggered by any theological specificities of the Protestant or Catholic faiths.23 Huguenot revolutionaries published the Catholic La Boétie (himself an opponent of religious toleration); Catholic ligueurs advanced similar arguments to their confessional foes. There was obviously a more general Christian dimension to this story: it was, after all, the revival of neo-Thomism at the University of Paris that reintroduced the language and logic of inalienable natural rights. From there, however, rights talk flowed into both the Spanish Catholic school of natural law theory and into Calvinism. Indeed, the founders of both schools spent their formative years in Paris, with Jean Calvin studying directly under John Major, and Francisco de Vitoria under one of his pupils (Pierre Crockaert).24

Even before the Reformation ripped states apart, theologians who insisted on the existence of natural rights in society were of course making political claims. As we saw in the chapter 1, many of the rights-based arguments fashioned by advocates of conciliarism would later resurface in constitutionalist theory. John Major argued that it was “within the rights of the people to transfer from one race to another the kingly power,” so long as it was done “with deliberation.”25 Vitoria would go so far as to place the question of natural rights, and more specifically of dominium, at the heart of imperial debates.26 But if these earlier emphases on rights paved the way for their later revolutionary roles, they still lacked a crucial element—the very element that arguably made them revolutionary. What “weaponized” the preservation regime of rights was its merger with the even older political theory of tyrannicide.27 Because classical justifications of tyrannicide already rested on natural law theory, it was a fairly seamless, almost self-evident merger, one that could have occurred to any number of students who, like La Boétie, were reading Plutarch and Cicero alongside Major and Almain. Before 1572, such accusations of tyranny in the name of natural rights still retained a bookish quality that made them seem more appropriate for the ancient world. The same words, after the Saint-Bartholomew’s Day Massacre, cut much closer to home. The scholarly brio that La Boétie’s friends had once admired now dazzled with subversive audacity. The revolutionary potential of rights had been fully activated.

Its threatening power revealed, rights talk itself would soon come under withering scrutiny. It would be the Catholic, and more specifically Jesuit, connection that led to its severe censorship in the first decades of the seventeenth century. Following the discovery of Châtel’s connection to their Society, the Jesuits were briefly expelled from France.28 When François Ravaillac successfully murdered Henri IV in 1610, they again fell into disrepute, notably since the Spanish Jesuit theologian Juan de Mariana had recently justified tyrannicide, and more particularly the assassination of Henri III, in his De rege et regis institutione (1598).29 The Paris Parlement condemned this work to be publicly burned in the immediate aftermath of Henry IV’s death; other Jesuit authors, including Francisco Suárez, would soon be banned as well. Any claim that individuals retained natural rights in political societies was viewed with suspicion: the University of Paris purged scholars who had expressed sympathy for what was now viewed as a regicidal doctrine.30 Fifteen years later, when Grotius published De jure belli ac pacis in Paris, where he was living at the time, he studiously avoided citing any of these Jesuitical works, which he knew well and praised elsewhere.31 More critically, the preservation regime ...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• I   How to Think about Rights in Early Modern Europe
• part i   Early Modern Rights Regimes
• part ii   Social Naturalism in Early Modern France
• part iii   Rights and Revolutions
• Acknowledgments
• Notes
• Selected Bibliography
• Index