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11 - France: Foundational Importance of the Declaration of 1789

from PART II

Published online by Cambridge University Press:  15 December 2017

Florence Benoit Rohmer
Affiliation:
Professor of Law, University of Strasbourg; Secretary General of the European Inter-University Centre for Human Rights and Democratisation, France.
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Summary

INTRODUCTION

Much has already been said about the Declaration of the Rights of Man and of the Citizen adopted in 1789, a fundamental text in the field of human rights in France. The Declaration has often been considered as a model, in Europe and also in the rest of the world.

The Declaration was adopted during the emergency of the French Revolution of 1789, at the cost of several compromises. It took just a week to draft the document, between 20 and 26 August 1789. It was originally used only as the preamble to the first French constitution, the Constitution of 1791, but it outlived this constitution, and is now part of French positive law. Indeed, the French Constitutional Council stated in a decision of 16 July 1971 that the Declaration of the Rights of Man has constitutional value and therefore must be respected by the French legislature. This means that it has an impact on all French legislation and that any text that violates the Declaration, whether it comes from the administration or the legislature, will be censored by judges.

MULTIPLE SOURCES OF PHILOSOPHICAL INSPIRATION

BACKGROUND

The origin of the Declaration is unclear and has given rise to much debate. The Chinese even believe that the revolutionaries of the time were inspired by the writings of Confucius, thanks to translations made by Jesuits in China, and that Confucius thus influenced the Declaration of the Rights of Man.

In fact, there were many philosophical influences that impacted on the Declaration of the Rights of Man and the Citizen, and they arose from various schools of modern political philosophy. Modern natural law played a leading role in the drafting of the Declaration and Judeo-Christianity also had an influence on the humanist thought of the time.

MODERN NATURAL LAW

The theories of natural law based on the social contract and developed in particular by Hobbes and Locke in the UK and Rousseau in France were a determining source of inspiration for the Declaration of the Rights of Man. The very term ‘Declaration’ means that all the text does is declare and therefore record the rights inherent to human nature, and pre-existing in nature. However in the French Declaration natural law no longer has divine origin, which it does in the American Declaration.

Type
Chapter
Information
First Fundamental Rights Documents in Europe
Commemorating 800 Years of Magna Carta
, pp. 139 - 150
Publisher: Intersentia
Print publication year: 2015

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