of society, in the same way that the true nature of man and his necessary state is
society in general’. It was, in other words, the constitutive and statutory laws of a
society that were its natural laws, that embodied what was just, reasonable, and
necessary, and it was because this had not been recognized that people had been
preached such absurd nonsense about the disorders inflicted upon man by society.
Like Maistre, Bonald had only contempt for the supposed merits of the ‘entirely
man-made’ American republic: its enthusiasts proclaimed it to be eternal when it
had only existed for a mere fifteen years. It would inevitably disintegrate.78
Similarly, Bonald rejected the view that natural laws were somehow ‘engraved’
upon the heart and therefore did not require any ‘visible authority’ or instruction to
77 Bonald, Législation Primitive, considérée dans les derniers temps par les seules lumières de la raison
(1800), in Œuvres complètes, (1864), i. 1050–1402.
78 Bonald, Théorie du pouvoir, 347–50.
Rights, Liberty, and Equality
47
make them known. A wiser philosophy, he argued, would recognize that these
truths needed to be inculcated and that this could be achieved by, amongst other
things, the influence of a good education and of good laws. Above all, Bonald found
a place for religion in this process and so much so that it was imperative that laws be
imprinted with the sacred character of divinity. Human justice, he believed, could
not be separated from divine justice. Civil legislation needed to draw inspiration
not from the pagan world (as had been the case with the philosophes) but from the
eternal principles of Christianity, from the Ten Commandments. Men, in short,
should be taught what they owed to God and to each other before being told what
they can do to others. One day, Bonald believed, governments––enlightened by
their own errors and mistakes––would realize that these long-established truths
formed the foundation of all social and moral order. ‘Therefore’, Bonald concluded,
‘the sovereign legislator must be placed at the head of all legislation and we must get
this philosophical truth, the most philosophical of truths, into our minds: that the
revolution began with a declaration of the rights of man and that it will only finish
with a declaration of the rights of God.’79
Among supporters of the monarchical cause, therefore, the language of rights was
progressively abandoned as support for a moderate constitutional settlement hard-
ened into outright opposition towards the Republic and all its ills. At first suspected
only of undue abstraction, the language of rights was progressively superseded by a
harsher discourse which associated talk of rights with a rampant egalitarianism and
which came increasingly to hold the entire natural law philosophy of the eighteenth
century responsible not just for the disorder of the Revolution itself but also for
the Terror. Faced with the political, moral, and social disintegration of France,
for the theorists of counter-revolution there was no room for compromise with such
an atheistic doctrine.
I V
It was not only from the perspective of the post-revolutionary resurgence of
Catholic thought that the Déclaration des Droits de l’Homme et du Citoyen was
subject to censure and disparagement. The logic and epistemological bases of
natural law were treated with growing scepticism among philosophers as the
eighteenth century progressed and, if its rhetoric continued to enjoy considerable
popular esteem, it was utilitarianism––in the shape, for example, of Helvétius’s De
l’Esprit––that came to occupy a central place in Enlightenment philosophical and
political thinking. Certain writers, most notably Condorcet, had little difficulty in
recognizing the threat posed to rights by utilitarian principles but others––attempt-
ing to rescue what perhaps could not be saved––showed little hesitation in attempt-
ing to break out of the straitjacket imposed by David Hume’s distinction between
fact and value and, as a consequence, in deriving rights from the basic needs and
79 Bonald, Législation Primitive, 1133.
48
Rights, Liberty, and Equality
capacities of human nature. However, the tension between the potentially compet-
ing claims of utility and rights remained and would be cruelly exposed in the decade
after 1789. The primary locations of this debate were the salon of Helvétius’s widow
at Auteuil and the Institut National des Sciences et des Arts, founded in 1795.
Its principal participants were the group of writers who were to be known as the
Idéologues.80
In the case of Condorcet, a refusal to endorse a utilitarian logic which
countenanced the transgression of the rights of the minority in the interests of
the ‘greater number’, and therefore condemned society to ‘perpetual war’, brought
with it the deployment of a sophisticated probabilistic analysis of voting behaviour
designed to demonstrate that a pure democracy of the type envisaged by Rousseau
was appropriate neither to contemporary France nor indeed to any situation where
the existence of the unenlightened many posed a threat to the emergence of a
rational politics.81 It was this that explained his opposition to the Jacobin constitu-
tion of 1793. Nevertheless, it was recognized by many that the principle of the
equality of rights, when grounded in a conception of the natural equality of man,
appeared to offer the possibility, however unwelcome, of demands for greater
political and (even) economic equality. For example, Condorcet had no logical
alternative but to argue that political rights should be extended to include women.
In an important text entitled Sur l’admission des femmes au droit de cité. 3 juillet
179082 he drew the following conclusions: ‘the rights of men result solely from the
fact that they are sensate beings, capable of acquiring moral ideas and of reasoning
about these ideas. Thus women, having the same capacities, necessarily have the
same rights.’83 The only serious grounds for denying political rights to women
were those of social and public ‘utility’ but this, Condorcet contended, was the
language of tyrants and justified slavery. ‘It was’, he argued, ‘in the name of public
utility that the Bastille was filled, that books were censored.’ Such motives could
never outweigh the claims of ‘un véritable droit’.
It was this conundrum that was faced by those prepared to conflate a discussion of
rights and utility. An early illustration of this is provided by the two best-known texts
of the Comte de Volney: La Loi naturelle ou principes physiques de la morale, published
in 1789,84 and Les Ruines ou Méditations sur les Révolutions des Empires, published in
1793.85 Nature, Volney argued, had given to all men ‘the same organs, the same
sensations, and the same needs’.86 From this it followed that all men had the same
rights to the use of their possessions and that all men had an equal right to life and to
the means which sustained it. The good therefore was defined in terms of ‘everything
80 Welch, Liberty and Utility, and Martin S. Staum, Minerva’s Message: Stab
ilizing the French
Revolution (Montreal and Kingston, 1996). See also B. W. Head, Ideology and Social Science: Destutt
de Tracy and French Liberalism (Dordrecht, 1985); Emmet Kennedy, A Philosophe in the Age of
Revolution: Destutt de Tracy and the Origins of Ideology (Philadelphia, 1978); and François Azouvi
(ed.), L’Institution de la raison: La Révolution culturelle des idéologues (1992).
81 See Baker, Condorcet, 225–48.
82 Œuvres de Condorcet, x. 119–30.
83 Ibid. 122.
84 Volney, Œuvres complètes (1821), i. 251–310.
85 Ibid. 1–245.
86 Ibid. 102.
Rights, Liberty, and Equality
49
which tends to preserve and to perfect man’ and the bad as ‘everything which tends to
destroy or diminish man’. Yet, when confronting himself with the possibility that
these ‘eternal and immutable laws’ might engender a descent into anarchy––France,
he readily acknowledged, was a country ‘divided into two unequal and contrasting
bodies’, the people and the privileged––he showed no hesitation in resorting to a
series of soothing maxims designed to alleviate any such fears. ‘We are men’, Volney
has the people remark, ‘and experience has taught us well that each one of us tends to
rule and to enjoy life at the expense of others.’87 In Volney’s opinion, therefore, the
people would accept with equanimity that the task of establishing ‘the true principles
of morality and reason’ was best left to ‘hommes choisis’, to experts. In similar
fashion, Volney believed that the rules of behaviour which would operate in the new
society could be reduced to one overriding principle: ‘the simplicity of manners’.
This he defined as ‘the narrowing of needs and desires to what is truly useful to
the existence of the citizen and his family: that is, the man of simple tastes has few
needs and lives happily with little’.88 Discord within society, Volney contended,
thereby disclosing the inspiration behind the entire educational programme of the
Idéologues, derived not from the order of things themselves but from the manner in
which they were ‘perceived’ and ‘judged’. We had to be taught to see things as they
really were.
Nevertheless, among those who came to gravitate around the salon at Auteuil the
emphasis in the first place fell resolutely upon the defence of the rights of man and
if this was to an extent the result of philosophical confusion it did not prevent
Destutt de Tracy, arguably the most important of the Idéologues, from formulating
the very first hostile response to Edmund Burke’s diatribes against the Revolution
or from deflecting criticism of the Déclaration des Droits de l’Homme et du
Citoyen in the process. Burke, Destutt de Tracy argued, was not only wrong to
suggest that France would have been better advised to follow the English constitu-
tional model but, he continued, ‘if our declaration of rights is a load of nonsense,
our conduct is an excellent commentary on it. It was at the moment when America
busied herself with nonsense that she became invincible to the whole force of
England.’89 The real problems for the Idéologues, however, began as the demands of
the Parisian populace, the sans-culottes, became ever more strident and as France
lurched towards Jacobin dictatorship.
P. C. F. Daunou, for example, began his Essai sur la constitution90 with a biting
and detailed attack upon the Déclaration des Droits de l’Homme et du Citoyen.
‘We have drawn up’, he wrote, ‘seventeen articles whose incoherence, ambiguity
and lack of precision have served as a prelude to injustice, to the feebleness of our
laws, to the constitutional humiliation of our people, and to our long-drawn-out
disasters’.91 The source of these errors, he argued, lay in what he described as the
‘synthetic method’ used to formulate the original declaration, a method which had
87 Ibid. 100.
88 Ibid., p. 305.
89 Antoine-Louis-Claude Destutt de Tracy, M. de Tracy à M. Burke (1790).
90 Pierre-Claude-François Daunou, Essai sur la constitution (1793).
91 Ibid. 2.
50
Rights, Liberty, and Equality
led subsequently to the continued merging of natural, civil, and political rights into
one amorphous and confused block. To formulate a new, more complete, and
better structured declaration, Daunou argued, ‘we ought to go back to the origin of
our moral ideas: that is, to the first sensation which showed us a man unnecessarily
preventing another from satisfying his needs’.92 On this account, it was out of the
relationships between men––principally those of injury and oppression––that
natural rights were born. Moreover these rights––detailed by Daunou as the natural
rights to liberty, equality, and the resistance to oppression––themselves quickly
gave rise to a set of civil rights––essentially the rights to security and to property––
that had their origin in a ‘social contract’ associating ‘the force of all for the
maintenance of the rights of everyone’. Finally, political rights emerged as each of
the contractees realized that they should ‘combine in order to establish the means to
guarantee natural and civil rights’.93 The outline declaration that followed––in
which it was made explicitly clear that strict equality in the ownership of property
was an impossibility––was intended to refute criticism that such principles were a
matter of ‘pure speculation, inapplicable to the current condition of both morals
and society’.
The significance of this argument was at least two-fold. By taking as his starting
point the analysis of the relationship between men and thereby dismissing ‘the
figure of a primordial man enclosed in the solitude of his needs’, Daunou effectively
shifted the emphasis away from the natural to the social.94 The threat to the
established order posed by the concept of a state of nature where all were equal,
in other words, was diminished. Second, in purely political terms, it provided
Daunou with the grounds for arguing that the exercise of executive power should
be neither abused nor weak. ‘The civil right to property’, Daunou commented, in
Rémarques sur le plan proposé par le comité du salut publique,95 ‘is the only possible
tie between twenty-five million individuals joined together in an indivisible repub-
lic: all other systems will create anarchy.’ If he acknowledged the dangers that
flowed from an excessively unequal distribution of wealth, Daunou ceased to refer
to the right to resist oppression, preferring to talk instead of preserving ‘the right to
petition and the right to assemble, peacefully and without arms’.
Another, altogether more sophisticated, attempt to deprive the language of rights
of its radical dimensions was made by Daunou’s fellow Idéologue, the journalist and
politician Pierre-Louis Roederer.96 Writing in De la philosophie moderne et de la part
qu’elle a eue à la Révolution française,97 Roederer devoted nearly fifty pages to
92 Pierre-Claude-François Daunou, Essai sur la constitution (1793) 7.
93 Ibid.
94 Gauchet, La Révolution des droits de l’homme, 282.
95 Pierre-C
laude-François Daunou, Rémarques sur le plan proposé par le comité du salut public
(1793), 5.
96 See Kenneth Margerison, P-L. Roederer: Political Thought and Practice during the French
Revolution (Philadelphia, 1983). See also Ruth Scurr, ‘Social Equality in Pierre-Louis Roederer’s
Interpretation of the Modern Republic, 1793’, History of European Ideas, 26 (2000), 105–26, and
‘Pierre-Louis Roederer and the Debate on the Forms of Government in Revolutionary France’,
Political Studies, 52 (2004), 251–68.
97 Pierre-Louis Roederer, De la philosophie moderne et de la part qu’elle a eue à la Révolution française
(1799).
Rights, Liberty, and Equality
51
challenging the argument advanced by Rivarol that the new ‘analytical’ philosophy
was predominantly destructive. ‘If ’, he wrote, ‘the Revolution was not a necessary
product of philosophy, the Terror was less a necessary product of the Revolution
and even less the fruit of philosophy itself.’98 In so doing he denied Rivarol’s charge
that the declaration of 1789 was a ‘criminal’ and ‘impossible’ text, contending
that to affirm rights was also (implicitly) to impose duties and that the text had
recognized the limits to liberty in a ‘social state’. He further argued that neither the
constitution of 1791 nor that of 1793 had asserted that ‘man was naturally equal
without restriction’. Nor, he claimed, had any philosophe endorsed a doctrine of
‘natural equality’.
Despite these assurances, in the Cours d’organisation sociale,99 written some six
years earlier, Roederer had been obliged to go to great lengths to show that property
must be included amongst the natural rights of man and therefore must not be
restricted. Starting from what he described as our ‘anatomical and physiological’
knowledge of men, Roederer had little difficulty in arguing that morality in general
had its origin in man’s desire to satisfy his needs and therefore that the primary
guarantors of subsistence––namely, liberty, security, and property––must be cate-
gorized as ‘an abridgement of the rights of man’.100 The point was that these rights
pre-dated what Roederer described as ‘le pacte social’, indeed that the very purpose
of such a pact was to ensure the protection of rights deemed to be inherent to the
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