The Declaration of 1789 Does Not Protect Rights

The 1789 Declaration of the Rights of Man and of the Citizen is widely regarded as a foundational text of European liberalism. For more than two centuries, it has undoubtedly helped to restrain many egregious violations of individual rights by European governments against their subjects. Its influence goes far beyond France, as the Elysée palace proudly explains:

“[It] inspired similar texts in several European and Latin American countries throughout the 19th century; it is on this one that the French constitutions of 1852, 1946 and 1958 were founded. 

The Universal Declaration of the Rights of Man, signed in Paris on 10 December 1948, just like the European Convention on Human Rights, signed in Rome on 4 November 1950, have the same origins.”

The question then arises why the Declaration continues to be celebrated by states who restrict freedom with so little compunction? The reason is that the 1789 Declaration placed limitations on the rights it proclaimed; it added caveats to the lofty principles. This certainly explains why many governments publicly embrace it, even de jure.

The Bright Side: Freedom and Property Rights

The Declaration is exceptional in that it was ratified in 1789 and approved by King Louis XVI just months after the start of the French Revolution. It is thus an immediate and radical departure from absolute monarchy and the institutional inequality of the Ancien Régime.

Its Article 4 states, simply, that: “Liberty consists in being able to do anything that does not harm others”. It recognizes in Article 17 that the “right to Property is inviolable and sacred”, not a privilege for some. It says in Article 11 that “the free communication of ideas and of opinions is one of the most precious rights of man.”

Article 6 affirms the equality of all men before the Law and confirms that the people have a right of “resistance to oppression” to the state. This links to its idea of consensual taxation, as opposed to oppressive or confiscatory taxation, as expressed in Article 14:

“All citizens have the right to ascertain, either personally or through their representatives, the necessity of the public contribution, to consent to it freely, to monitor its use, and to determine its amount, basis of assessment, collection, and duration.”

If this summed up the 1789 Declaration, it would truly defend freedom and represent a bulwark against state coercion and property rights violations. But then it would hardly have become the publicly celebrated document that it is today; taught in public schools and shown in administrative buildings all over Europe.

The Dark Side: Legal Positivism and State Power

There is, indeed, a darker side to the 1789 Declaration that explains why it has received such prominence in the official political narrative in Europe. Like most human creations it has its unintended flaws, but this document also has obviously intentional caveats, which allow for the very rights it affirms to be easily violated by future governments.

The complete Article 17 states that nobody can be deprived of property “unless public necessity, legally ascertained, obviously requires it”. It clearly is not the owner who can decide what is “public necessity”. The Declaration also states that a “general tax is indispensable”, even though involuntary taxation is an obvious violation of property rights. Calling property rights “inviolable” and “sacred” becomes a bad joke when linked to such conditions.

Article 4 states that “the exercise of the natural rights of every man has no bounds” but then adds the major caveat that there are indeed bounds, which must be “determined only by Law.” The Law is simply justified using Rousseau’s equivocal expression: “the Law is the expression of the general will”, which is a euphemism for the Legislator (Art. 6). Further, “the Law has the right to forbid only those actions that are injurious to society.”; but it is clear who determines what actions are “injurious”.

The legal positivism rears its ugly head again in Article 7: “no man may be accused, arrested or detained except in the cases determined by the Law”, and “any citizen summoned or apprehended by virtue of the Law, must give instant obedience; resistance makes him guilty”. Such language obviously exposes the individual to state coercion and legal property rights violations. While this may not have been obvious in 1789, it should certainly be crystal clear in today’s statist societies reeking of crony capitalism.

Freedom of speech is not guaranteed either in the 1789 Declaration, since it is valid only “provided that their manifestation does not trouble the public order established by Law.” (Art. 10). Today, European governments’ attempts to legally introduce controls on speech (digital censorship, hate speech legislation, and emergency mandates) are thus not fundamentally contrary to the 1789 Declaration; they are possible by its statutory loopholes.

No Document Can Protect Rights

Today, European states violate property rights every day through its confiscatory taxation and inflation policy (regressive taxation). Thus, the lesson from this review is that it is naïve to think that the defense of liberty can rely on an old parchment. Any legal document, even one fully protective of the citizens’ rights against the state (unlike the 1789 Declaration), would still depend on the unlikely goodwill of generations of state legislators and judges to adhere to it, regardless of how “sacred” it is declared to be.

The only way to protect property rights is for the people to learn about public affairs, to continuously hold the government to account, and to demand a reduction of state power over society. As Benjamin Constant said in a famous speech to the French assembly in 1819, “In order to benefit from the liberty that they would like, the people must exercise an active and constant surveillance of their representatives.”

Perhaps, therefore, the most important sentence of the 1789 Declaration is not in the body of the text but in the preamble: “Ignorance, forgetfulness or contempt for human rights are the only causes of public misfortunes and government corruption.” In fact, it seems that the Declaration itself shows a certain “contempt for human rights” since it affirms the necessity to strictly corral them.

When states publicly show their affiliation to the Declaration of 1789, this must act as an alarm bell with the people. It signals that this legal text was mainly designed, not to strictly protect individual rights against the state, but to allow the state to restrict these rights as it sees fit. Only an education in liberty can lead to a political consciousness in the people, so that the state’s property rights violations can be met with a moral indignation.