chapter  28
14 Pages

The eighteenth-century declarations of rights and their destinies

WithBLANDINE KRIEGEL

By proclaiming the rights of man and of the citizen, rights found at the heart of modern democracies, the two legal declarations of the eighteenth century are considered to have marked a crucial turning point in the evolution of political law. However, the destinies of the two declarations have not been the same. The Declaration of Independence has never been dissociated from the Preamble of the American Constitution, into which it was inserted at an early stage. Rather, the sprit of the Declaration was reinforced by the Bills of Rights that headed all constitutions written by British colonies that became independent States, and which were drawn up during that same period. Such a spirit was further strengthened by the first 10 amendments of the Federal Constitution of 1787. In turn, the Declaration had a direct and continuous influence on positive American law in that, preceding even the possible intervention of the Supreme Court, the control of diffuse and decentralised constitutionality was entrusted to every court in the land.2 The 1789 Declaration, on the other hand, was uprooted from its bedding within our French constitutions very early on. Either new texts were substituted in its place, as was the case in 1793, 1795 and 1848, or its insertion was omitted, as happened in imperial and monarchical constitutions. This was even the case under the Third Republic, as much in the constitutional laws of 1875 as in the revisions introduced on 21 June 1879, 14 August 1884 and 10 August 1926. The Declaration only reappeared in the Preamble to our Constitution belatedly, in 1946 – consequently, its influence on positive law has been but very indirect. As Jean Rivero has stressed, today the Declaration of the Rights of Man has no strict legal status.3 French law has ended up endowing a large number of these rights with a positive quality, but it has done so on the basis of different qualifications which have in turn led to distinct legal consequences. For example, where the case law of the Council of State has ‘General Principles of Public Law’, the Constitutional Council has ‘Principles of Constitutional Value’. Says Rivero,

The insertion of human rights into positive law is being achieved through the intermediary of categories – categories in which, moreover, the rights of man may come into proximity with principles that are distinct from them, such as the continuity of public service.4