Guillaume de Thieulloy
A PhD in political science (EHESS), Guillaume de Thieulloy is the publisher of a group of French conservative media properties. He’s also a former staffer of the vice president of the French Senate, Jean-Claude Gaudin. This paper was originally presented at the Notre Dame Center for Ethics and Culture fall conference, November 3, 2018. An Italian translation of this essay can be found here.
It is striking for historians of the French Revolution that, a few months after the Declaration of the Rights of Man and of the Citizen (26 August 1789), the Terror began and, with the Terror, the first experiment of massive murders decided by a political power against its own population—especially in the Vendée. This huge gap between human rights and Terror seems strange: one cannot easily understand how, after the public recognition of human dignity, the same political power can organize massive slaughters of human beings.
My thesis is that Terror or, generally speaking, totalitarianism is not against the Declaration of the Rights of Man and of the Citizen. On the contrary, it’s one possible consequence of the separation of human rights from human nature and from the Creator of this human nature—separation which is official in that same Declaration of 1789.
Of course, I have to admit that this thesis is somehow provocative, not only from a political perspective, but also from a Christian perspective. All the recent teaching of Church says or at least implies, on the contrary, that the Declaration of the Rights of Man and of the Citizen is the secular version of the Decalogue. On this score the magisterium is following the great French Thomist philosopher Jacques Maritain who wrote in Les droits de l’homme et la loi naturelle (published in 1948, just when United Nations was publishing its own Universal Declaration of Human Rights): “Natural law and the light of moral conscience within us do not prescribe merely things to be done and not to be done; they also recognize rights, in particular, rights linked to the very nature of man.” This statement is, no doubt, largely correct. But I want to insist on this point: the modern vision of human rights—and moreover the postmodern vision of human rights—is not simply a word-for-word secular translation of the natural law, but has a very different logic and, in a way, an opposite logic.
The Declaration against Human Nature
The human being of the declaration is not a concrete human being: he is an individual separated from other human beings. We could see him as a “monad,” as Leibniz put it. Or, better, with the words of Ernest Renan—a great supporter of the principles of 1789—as an “abstract being, born as an orphan, living as a single man, and dead without children.”
To be more precise, it means that the Declaration of 1789 stands strongly against any roots for the human being: no family, no province or corporate tradition.
Most of the Constituents of ’89 didn’t believe that the natural law, and human nature itself, were cognizable through human reason. This fact could perhaps surprise the reader, since after all the Declaration’s authors speak very often of nature. But when they speak of nature, they generally speak about the mythic state of nature, not about real human nature. And even those who believe in a human nature which could dictate human rights refuse the historical nature of human being.
The Declaration and Utopia
The Constituents dreamt of a totally new society and a totally new human being, or tabula rasa.
They were especially interested in promoting a clear egalitarianism: they not only condemned privileges but they condemned every inequality. Some moderates tried to declare in the first article: “Men were born equal in rights”—without the word “remain”—but the majority refused and imposed this sentence which is clearly false: “Men are born and remain free and equal in rights.”
The question of the equality in rights at the birth is mainly a question of understanding the words: one can say that all men share the same human nature and share a fundamental equality; the same was said by many French kings and was not essentially opposed to the notion of privilege. Or one can say that to be born in this family or that family means an inequality from birth. But, anyway, it’s easy to understand what we mean by equality in rights at birth. The question of fundamental equality after birth and throughout life is much more complicated. One could say also that the common nature and the common dignity are shared throughout life. But in this case, we cannot understand the second sentence of the article: “Social distinctions can only be based on the common usefulness.” I think that it means that the human being of this article is not a real human being but rather a goal of the new society: society should now work to build a “true” equality in rights. And, that’s why, after 1789, egalitarianism and especially socialism has had such a great career in French political debate.
A last clue about this utopianism of the Constituents lies in their attachment to the myth of a “state of nature” and the linked myth of a “social contract.” As I said above, when the Constituents speak about nature, they usually speak about this nonexistent state of nature, not about human nature.
Generally speaking, they refused to hear the voice of history and of the experience of the Ancients. And it drives them to some very strange statements. For example, the declaration of August 1789 tells in its article 16: “Every society in which the guarantee of rights is not assured, nor the separation of powers determined, has no constitution.” Which means clearly that France in 1789 was not “constituted” – even though, at that time, France had been living as a nation for almost 12 centuries!
The Declaration and Statism
Another opposition between the Declaration and human dignity, and especially human freedom, lies in the statism of the text. Once again, it tends to surprise. We are more familiar with the individualism of the principles of 1789. And, of course, statism was, at that time, only in its dawn. We have seen much worse during the twentieth century.
But the Declaration of 1789 also promotes a strong statism. In its article 3, it says: “The principle of all Sovereignty resides essentially in the Nation. No body, no individual can exercise authority which does not expressly emanate from it.” Which means that no authority can be found except a political authority: for example, a manager or a father is supposed to receive from the nation his authority in and over his company or his family. This is an absurd consequence of the Rousseau’s Social Contract, which knows only individuals and the whole political body, but nothing in between.
Therefore this text is not exactly a Déclaration des droits de l’homme et du citoyen, as the title says explicitly: This human being is a “nonbeing”; it’s an abstraction, as we have seen before. Thus these human rights are the rights of a virtual human being, in a state of nature which doesn’t exist. And the political rights of the “citizen” mentioned are rights in a city which was thought not yet to be constituted. I have to recall that the Declaration was thought to be the first step in constituting France, because, for these strange constituents, France which had been living as a nation since the end of the fifth century was supposed not yet to be constituted at the end of the eighteenth!
The Declaration and Almighty Law
All revolutionary thought is pointed to the law and to the legislative power: French political philosophers call this légicentrisme, a political vision focused on the law. But this law is not the traditional vision of the law, summed up by Aquinas who explains that “Law is an order of reason for the common good established and promulgated by the person in charge of the community” (ST 2.2.90).
On the contrary, Article 6 of the Declaration says, “The law is the expression of general will.” So law has nothing to do with truth, and everything with will—and, more precisely, an almighty will. Therefore, if the “general will” decides that the inhabitants of Vendée are “animals,” they can no more claim the protection of human rights—hence the Terror was logically compatible with the Declaration.
In such a vision, the law is almighty: it can reshape society and the human being itself. And this vision, still effective, explains why the Parliament sees itself as able to fix the historical truth or to change the nature of marriage—and even to change a male into a female.
The Declaration and God
We could read the Declaration of the Rights of Man and of the Citizen as given by God. That is clearly Jacques Maritain’s reading. As God gave us the Decalogue, which sums up our duties toward him and toward our neighbor, he also gave us the Declaration, which sums up our rights.
There are some arguments supporting this reading. The most powerful is in the very text of the Declaration. Just before the articles themselves, we can read this sentence in the preamble: “The National Assembly recognizes and declares, in the presence and under the auspices of the Supreme Being, the following rights of Man and Citizen.”
But, if we read carefully, the Supreme Being is not the author: he is just a prestigious witness of this solemn moment. Even more, one of the most famous constituents of that time, Virieu, said the follows: “What touches me more, is the invocation to the Supreme Being. One doesn’t say that we receive these rights from the Nature; it’s an agreement negotiated by the nation under the auspices of the divinity.” The rights of the Declaration are not natural rights in the classical sense of the word: if they were, they should have been rooted in human nature, but human nature means nothing for the constituents.
The real author of the declaration is the National Assembly. And its action is double. First, it recognizes rights existing before. But, contrary to classical natural right, these rights are not deducted from a higher law, to which the National Assembly should obey: the Supreme Being is not telling something to the constituents. He’s a mute witness. And second, the National Assembly declares the rights, in a way creating them from nothing.
So, whatever the mention of the Supreme Being could mean, it is pretty certain that the rights of the Declaration are not given by a higher law. Recently, a socialist senator, Jean-Pierre Michel, explained this notion very clearly: “What is just is what the law says. That’s all. And the law does not refer to a natural order. It refers to a balance of power at a given moment. And that’s all.”
Human Rights after 1789
Modern human rights follow their way after 1789.
The first next step is the Universal Declaration of Human Rights of 1948. A lot of people read this new text as a return to the real human being—seen as a worker, a father or a husband, or (to say it briefly) as a concrete human being, rooted in his communities and social or religious bodies. But utopia remains: many of the social or economic rights mentioned in the Universal Declaration have nothing to do with human rights. Of course, it’s better that everybody should have food and a roof to live under, but this is not a human right in the same sense as the right to life is. The right to life implies that nobody has the right to take the life of an innocent human being and that the state is obliged to protect the life of the innocent. But the state is not obliged to lodge or feed everybody—and even not every citizen.
But, the further step is perhaps more important. After 1968, human rights changed their very nature: they became rights of individuals as part of “minorities”—and, very often, against human nature itself.
Some new “rights” are rights to the negation of some natural good: for example, not a right to life, but a right to abortion or to euthanasia, which negate life. And some other new “rights” are rights to go beyond nature or against nature. For example, a right for same-sex couples to raise children, even though by nature same-sex couples cannot give birth to a child. Or, perhaps even more striking, if I were born as a boy, I have the “right” to be seen as a woman. This new vision of human rights drives us from human rights to transhumanism and to the right not to be bound by a “fascist” human nature—as the deconstructionist philosophers like Derrida or Foucault say.
Now is not the occasion to speak in detail about this postmodern subversion of human rights. But I have to mention two recent and stimulating books on this issue. The first one is the one of my dear teacher Pierre Manent, La loi naturelle et les droits de l’homme. As you can see, this title twists that of Maritain: I don’t know if Maritain is targeted, but surely Maritain’s thesis is here criticized. Anyway, Manent’s book contains some fascinating pages about the LGBT rights as opposing to the very notion of human nature. The second book is from a practitioner of the law and of the European court of human rights, my friend Dr. Grégor Puppinck, Les droits de l’homme dénaturé, which explains very clearly how far the new international jurisprudence about human rights is from the classical natural law and even from the modern notion of human rights.
As I noted at the outset, the French Catholic philosopher Jacques Maritain explained that Declaration of the Rights of Man and of the Citizen was, in a way, a secular translation of the natural law summarized in the Ten Commandments. It seems to be obvious: if God asks me not to kill my neighbor, it means that this neighbor has a right to life. To deprive him of his life would be to deprive him of his ius his right; it would be unjust. I should add that Maritain and the contemporary Church teaching are correct to remind us that human rights were largely revealed to humankind through biblical revelation.
But the secular translation changes the whole meaning of the text. In the Declaration of the Rights of Man and of the Citizen, we find three important characteristics. First, these rights are not rooted in a human nature created by God: so they can change. Second, these rights are not the consequences of duties. The only duties we can see in the Declaration are political duties, not moral duties. So the Declaration begins to flatter our instincts for pleasure, not to stimulate our desire for good. It’s thus far from the best ground for a society. And, third, these rights are not given by God, they are negotiated among peers. This negotiated contract is a very fragile ground on which to promote human dignity.
The totalitarianisms of the twentieth century claimed to respect even better than liberal democracies the human rights, and claimed to be acting within the framework of a legal process officially bound by Declaration of 1789. But in these regimes, the political power had the possibility to exclude legally any category of human beings from humankind. Their formal respect for the Declaration was hiding a very harsh fight against human dignity.
We have now what Pope Benedict XVI called the “dictatorship of relativism,” in which one can claim human rights to administer death (with abortion or euthanasia) or one can decide that a human being is no longer human (for example, an “unwanted” embryo) or, on the contrary, that an animal or even a robot shares something of our human nature. So we can now claim human rights to change or kill human nature.
As the famous postmodern sentence puts it: “There is no longer right or wrong, only rights.” But these “rights” have neither ground nor stability. It’s therefore urgent to propose a new critique of these human rights, both modern and postmodern, and to come back to the Aristotelian or Thomistic natural law as the best safeguard for human dignity.
 Editor’s note: Even this statement of Maritain’s would need to be further qualified. The Roman jurists and the greatest scholastic doctors used right (ius) in the sense of the object of the virtue of justice. That is, most basically, the thing due to another. For example, the bread that a baker owes someone who has paid him for bread. But in early modernity right comes to be used in the sense of a moral power, that is what someone ought to be allowed to do without interference. As Petrus Hispanus shows, the modern sense is an analogical extension (made by Baroque Schoolmen such as Suárez), and originally means that if a thing is one’s right, then the power or licence that one has to do certain things to or with the thing is also due to one, i.e. one’s right. For example, if a piece of bread is someone’s ius, then eating the bread is also his ius. That is, he ought to be allowed to eat the bread. But already in early modernity a switch takes place. The analogical extension of ius, right as a power, comes to be seen as the prime analogate, and objective right, the object owed to the other, as an analogical extension. The Enlightenment theorists hold that something is due to another, because of the inviolable moral power that he has of demanding it. Rather than the power being an effect of his being owed something. Henri Grenier explains the consequences: «If objective right is understood as right in the strict sense, it follows that subjective right, i.e., right as a power, is measured by the just thing, according to conformity to law. Moreover, since law is an ordinance for the common good, it follows that the whole juridical order is directed to the common good. But, if subjective right is understood as right in the primary, strict, and formal meaning of the term, it follows that the juridical order consists in a certain autonomy, independence, and liberty. For subjective right is not measured by the just thing, but the just thing is measured by the inviolable faculty, which is a certain liberty. Therefore, according to moderns, the juridical order is directed to liberty rather than to the common good. This gives rise to errors among moderns, who speak of liberty of speech, liberty of worship, economic liberty, — economic liberalism, — without any consideration of their relation to the common good.» (Moral Philosophy § 960). In early modern theories (manifest, for example in the American Declaration of Independence), the subjective power is still seen as rooted in created human nature. But as Guillaume de Thieulloy shows in the present essay, the French Revolution moves even further into subjectivism.