Ch. 1.2. Declaring Rights
(Hunt, pp. 113-26.)
Declaring Rights
WHY MUST RIGHTS be set forth in a declaration? Why do countries and citizens feel the need for such a formal statement? The campaigns to abolish torture and cruel punishment point to one answer: a formal, public statement confirms the changes in underlying attitudes that have taken place. Yet the declarations of rights in 1776 and 1789 went further still: they helped effect a transfer of sovereignty, from George III and the British Parliament to a new republic in the American case, and from a monarchy claiming supreme authority to a nation and its representatives in the French one.
These acts of declaring were at once backward- and forward- looking. In each case, the declarers claimed to be confirming rights that already existed and were unquestionable. But in so doing they effected a revolution in sovereignty and created an entirely new basis for government. They created some thing radically new: governments justified by their guarantee of universal rights.
Declaring Rights in America
Two versions of rights language were available in the eighteenth century: a particularistic version (rights specific to a people or national tradition) and a universalistic one (rights of man in general). The Americans used one or the other or both in combination, depending on the circumstances. During the Stamp Act crisis of the mid-l760s, for example, both American pamphleteers and the Stamp Act Congress’s Declaration (1765) emphasized American rights as colonists within the British Empire. In contrast, the Declaration of Independence of 1776 clearly invoked the universal rights of all men. The Americans then set up their own particularistic tradition in the Constitution of 1787 and the 1791 Bill of Rights.
Before the Americans and French declared the rights of man, the leading proponents of universalism lived on the margins of the great powers. Perhaps that very marginality enabled a handful of Dutch, German, and Swiss thinkers to take the initial lead in arguing that rights were universal. As early as 1625, a Dutch Calvinist jurist, Hugo Grotius, put forward a notion of rights that was applicable to all of mankind, not just one country or legal tradition. He defined “natural rights” as something self-possessed and conceivable separately from God’s will. He also suggested that people could use their rights–unaided by religion–to establish the contractual foundations for social life. His German follower Samuel Pufendorf, the first professor of natural law at Heidelberg, featured Grotius’s achievements in his general history of natural law teachings published in 1678. Although Pufendorf criticized Grotius on certain points, he helped solidify Grotius’s reputation as a prime source of the universalist stream of rights thinking.
The Swiss natural law theorists built upon these ideas in the early eighteenth century. The most influential of them, Jean-Jacques Burlamaqui, taught law in Geneva. He synthesized the various seventeenth-century natural law writings in The Principles of Natural Law (1747). Like his predecessors, Burlamaqui provided little specific legal or political content to the notion of universal natural rights; his main purpose was to prove their existence and their derivation from reason and human nature.
Immediately translated into English and Dutch, Burlamaqui’s work was widely used as a kind of textbook of natural law and natural rights in the last half of the eighteenth century. Rousseau, among others, took Burlamaqui as a point of departure. Burlamaqui’s work fed a more general revival of natural law and natural rights theories across Western Europe and the North American colonies. Grotius, Pufendorf, and Burlamaqui were all well known to American revolutionaries, such as Jefferson and Madison, who read in the law.
The English had produced two major universalist thinkers in the seventeenth century: Thomas Hobbes and John Locke. Their works were well known in the British North American colonies, and Locke in particular helped shape American political thinking, perhaps even more than he influenced English views. Hobbes had less impact than Locke because he believed that natural rights had to be surrendered to an absolute authority in order to prevent the “war of all against all” that would otherwise ensue.
Whereas Grotius had equated natural rights with life, body, freedom, and honor (a list that seemed to call slavery, in particular, into question), Locke defined natural rights as “Life, Liberty and Estate.” Since he emphasized property–Estate–Locke did not challenge slavery. He justified slavery for captives taken in a just war. Locke even proposed legislation to ensure that “every freeman of Carolina shall have absolute power and authority over his negro slaves.”
Yet, despite the influence of Hobbes and Locke, much if not most English, and therefore American, discussion of natural rights in the first half of the eighteenth century focused on the particular historically based rights of the freeborn English man, not universally applicable rights. Writing in the 1750s, William Blackstone explained why his countrymen would focus on their particular rights rather than on universal ones: “These [natural liberties] were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England.” Even if rights had once been universal, claimed the prominent jurist, only the superior English had managed to hold on to them.
From the 1760s on, nonetheless, the universalistic strand of rights began to intertwine with the particularistic one in the British North American colonies. The universalistic strand of rights thickened in the 1760s and especially the 1770s as the breach widened between the North American colonies and Great Britain. If the colonists wanted to establish a new, separate country, they could hardly rely merely on the rights of freeborn Englishmen. Otherwise, they were looking at reform, not independence. Universal rights provided a better rationale, and accordingly, American election sermons in the 1760s and 1770s began to cite Burlamaqui by name in defense of “the rights of mankind.” Grotius, Pufendorf, and especially Locke appeared among the most frequently cited authors in political writings, and Burlamaqui could be found in increasing numbers of private and public libraries.
When British authority began to collapse in 1774, the colonists came to consider themselves in something like the state of nature they had read about. Such universalist thinking enabled the colonists to imagine a break with tradition and British sovereignty.
Even before Congress declared independence, the colonists called state conventions to replace British rule, sent instructions with their delegates to demand independence, and began drafting state constitutions that often included bills of rights. The Virginia Declaration of Rights of June 12, 1776, proclaimed that “all men are by nature equally free and independent and have certain inherent rights,” which were defined as “the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” More important still, the Virginia Declaration went on to offer a list of specific rights such as freedom of the press and freedom of religious opinion; it helped set the template not only for the Declaration of Independence but also for the eventual Bill of Rights of the U.S. Constitution. By the spring of 1776, declaring independence and declaring universal rather than British rights had gathered momentum in political circles.
The events of 1774-76 thus temporarily fused particularistic and universalistic thinking about rights in the insurgent colonies. Universalistic rights would never have been declared in the American colonies without the revolutionary moment created by the resistance to British authority.
The new articulation of natural rights engendered its own countertradition, which continues to the present day. Like natural rights, which grew up in opposition to governments perceived as despotic, the countertradition too was reactive, arguing either that natural rights were a fabrication or that they could never be unalienable (and thus were irrelevant). Hobbes had already argued, in his 1651 book Leviathan, that natural rights had to be given up (and therefore were not unalienable) in order to establish an orderly civil society. Robert Filmer, the English proponent of patriarchal authority and divine right monarchy, explicitly refuted Grotius in 1679 and pronounced the doctrine of “natural freedom” an “absurdity.” In Patriarcha (1680), he again contradicted the notion of the natural equality and liberty of mankind, arguing that all people are born subjects of their parents; the only natural right, in Filmer’s view, inhered in the regal power that derives from the original model of patriarchal power and is confirmed in the Ten Commandments.
More influential in the long run was the view of Jeremy Bentham, who argued that only positive (actual rather than ideal or natural) law mattered. In 1775, long before he became famous as the father of Utilitarianism, Bentham wrote a critique of Blackstone’s Commentaries on the Laws of England. In it he laid out his rejection of the concept of natural law: “There are no such things as any ‘precepts,’ nothing by which man is ‘commanded’ to do any of those acts pretended to be enjoined by the pretended law of Nature. If any man knows of any let him produce them. If they were producible, we should not need to be puzzling out the business of ‘discovering’ them, as our author [Blackstone] soon after tells us we must, by the help of reason.”
Bentham objected to the idea that natural law was innate in the person and discoverable by reason. He therefore basically rejected the entire natural law tradition and with it natural rights. The principle of utility (the greatest happiness of the greatest number, an idea he borrowed from Beccaria), he would later argue, served as the best measure of right and wrong. Only calculations based on fact rather than judgments based on reason could provide the basis for the law. In a pamphlet reviewing the French Declaration the Rights of Man and Citizen article by article, he categorically denied the existence of natural rights: “Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts.”
The universalist idiom of rights essentially returned back home to Europe after 1776. The new state governments of the United States began adopting individual bills of rights as early as 1776, yet the Articles of Confederation of 1777 included no bill of rights, and the Constitution of 1787 was approved without one. The U.S. Bill of Rights only came into being with the ratification of the first ten amendments to the Constitution in 1791, and it was a deeply particularistic document: it protected American citizens against encroachment by their federal government. In comparison, the Declaration of Independence and the Virginia Declaration of Rights of 1776 had made much more universalistic claims. By the 1780s, rights in America had taken a back seat to concerns about building a new national institutional framework. As a consequence, the French Declaration of the Rights of Man and Citizen of 1789 actually preceded the American Bill of Rights, and it immediately attracted international attention.