The French Idea of Freedom:
The Old Regime and The Declaration of Rights of 1789

Dale Van Kley (editor)

Stanford University Press 1994
A book review by Danny Yee © 2000 http://dannyreviews.com/
The eight essays in The French Idea of Freedom set the 1789 Declaration of the Rights of Man in its Old Regime context. Though they are scholarly papers focused on specialised topics, they fit together nicely to give a broad picture both of the immediate background of the Declaration and the deliberations of the National Assembly and of the deeper context of eighteenth century French politics and political thought. The reader will want to be familiar with the outlines of French history, but no specialist knowledge is necessary. (A translation of the Declaration and a twenty page glossary of terms are useful here.)

David D. Bien begins with a look at the Old Regime origins of democratic liberty. One significant factor was the state's need to raise loans. In France this was done through a large number of intermediate bodies or corps, and connected with the distribution and maintenance of offices and privileges. The internal operation of these corps helped to promulgate ideas of equality and democracy, which with the Declaration entered into the public sphere.

Dale Van Kley's own essay looks at the historical context of an ahistorical declaration. He surveys pamphlets from the 1787-88 conflict between ministers and Parlement, which can be roughly divided into "patriotic" and "ministerial". Their negative arguments undermined any possible historical foundation for the eventual "national" synthesis.

By damning French history as either "despotic" or "aristocratic", the circumstances of the prerevolution had severely impaired the case for a historical declaration and greatly enhanced the chances for one in a universalist and "metaphysical" mode.

In "Betwixt Cattle and Men" Shanti Marie Singham looks at the application of the Declaration to Jews, Black slaves, and women. Despite the complications of rural politics (fear of anti-Semitic pogroms) and colonial politics (notably in Saint Domingue), Jews were emancipated and slavery abolished. The nineteenth century, however, saw renewed anti-semitism and the reintroduction of slavery in the West Indies. French women made some gains during the Revolution, but many proved short-lived; they were largely excluded from the political and civic rights of the Declaration (and had to wait 130 years for the franchise).

Keith Michael Baker considers the general idea of a declaration of rights, looking at American precursors, debates between views of a constitution as a reform of existing system and a new creation, and the key events in July and August leading up to the Declaration. He explains how

the story of its composition is one of profound uncertainty and conflict over the meaning and essential purpose of any declaration of rights; over its necessity or desirability; over its benefits or potential dangers; over the form it should take; over the procedures by which it might be composed; ...

J.K. Wright examines the "political program" of the Declaration, embodied in articles 3, 6, and 16, addressing national sovereignty, "the general will", and the separation of powers. This political program was not just the result of conflict and compromise between Anglo-American liberal ideas and Gallic forms of absolutism or ancient constitutionalism, but part of the evolution of a modern French republicanism from earlier republican traditions.

There was little dispute in the National Assembly over articles 7, 8, and 9 of the Declaration, safeguarding the rights of the accused. David A. Bell finds an explanation in the legal history of the previous century. Trial briefs were not subject to censorship and high profile trials (opposing arbitrary arrest by lettres de cachet and defending Jansenist clergy and Protestants) and appeals to "public opinion" provided a ready entry to politics for lawyers. The eighteenth century also saw a gradual shift from support for an autonomous judiciary as guarantor of individual rights towards legislative guarantees, laying the groundwork for the Declaration.

Separate articles (10 and 11) of the Declaration covered freedom of religion and freedom of expression; the first was the subject of acrimonious debate, resulting in a complex compromise, while the second was relatively uncontroversial. Raymond Birn finds some parallels in the eighteenth century histories of religious discrimination and censorship, however, with both dominated by official fictions — that there were no Protestants in France (that they were all in the process of converting to Catholicism) and that all publications were censored.

In the last essay Thomas E. Kaiser traces the course of Old Regime debate on the nature of property and its legal basis — issues such as seigneury versus sovereignty and the status of allods — and the effects of this legacy on both the Declaration and the subsequent operations of the Feudal Committee and the Convention.

[T]he "natural and imprescriptable", "sacred and inviolable" right of property sanctioned by Articles 2 and 17 of the Declaration and implicitly acknowledged in Article 14 had important precedents in Old Regime jurisprudence. ... [M]odern French property right is better envisaged as the product of a wider application of certain elements of Old Regime jurisprudence than of a violent Lockean assault from without.

October 2000

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%T The French Idea of Freedom
%S The Old Regime and The Declaration of Rights of 1789
%E Van Kley, Dale
%I Stanford University Press
%D 1994
%O hardcover, glossary, notes, index
%G ISBN 0804723559
%P x,436pp