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On the Spirit of Rights the Life of Ideas On the Spirit of Rights the life of ideas Series Editors Suzanne Marchand, Louisiana State University Darrin M. McMahon, Dartmouth College After a period of some eclipse, the study of intellectual history has enjoyed a broad resurgence in recent years. The Life of Ideas contributes to this revitalization through the study of ideas as they are produced, disseminated, received, and practiced in different historical contexts. The series aims to embed ideas— those that endured, and those once persuasive but now forgot- ten— in rich and readable cultural histories. Books in this series draw on the latest methods and theories of intellectual history while being written with elegance and élan for a broad audience of readers. On the Spirit of Rights Dan Edelstein The University of Chicago Press Chicago and London The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London © 2019 by The University of Chicago All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission, except in the case of brief quotations in critical articles and reviews. For more information, contact the University of Chicago Press, 1427 E. 60th St., Chicago, IL 60637. Published 2019 Printed in the United States of America 28 27 26 25 24 23 22 21 20 19 1 2 3 4 5 ISBN- 13: 978- 0- 226- 58898- 8 (cloth) ISBN- 13: 978- 0- 226- 58903- 9 (e- book) DOI: https:// doi .org /10 .7208 /chicago /9780226589039 .001 .0001 Library of Congress Cataloging-in-Publication Data Names: Edelstein, Dan, author. Title: On the spirit of rights / Dan Edelstein. Other titles: Life of ideas. Description: Chicago: The University of Chicago Press, 2018. | Series: Life of ideas Identifiers: lccn 2018019709 | isbn 9780226588988 (cloth: alk. paper) | isbn 9780226589039 (e-book) Subjects: lcsh: Human rights—History. | Natural law—History. | Human rights— France—History. | Human rights—United States—History. Classification: lcc jc571 . e357 2018 | ddc 323.09—dc23 lc record available at https://lccn.loc.gov/2018019709 ♾ This paper meets the requirements of ANSI/NISO Z39.48– 1992 (Permanence of Paper). To Keith M. Baker Contents I How to Think about Rights in Early Modern Europe 1 1. Introduction 1 2. Tectonic Shifts and Tectonic Plates: Two Models for the Transformation of Culture 7 3. A Revolution in Natural Law? From Objective to Subjective Right (and Back Again) 9 4. Rights and Sovereignty: Beyond the State 15 5. Inalienability vs. the Alienation of Rights 17 6. Roman Law, the Lex Regia, and the Genealogy of Rights Regimes 18 7. Writing Intellectual History in a Digital Age 21 Part I Early Modern Rights Regimes 25 II When Did Rights Become “Rights”? From the Wars of Religion to the Dawn of Enlightenment 27 1. Monarchomachs and Tyrannicides: Natural Rights in the French Wars of Religion 28 2. English Liberties and Natural Rights: Leveller Arguments in the English Civil War 34 3. Abridging Natural Rights: Hobbes and the High Church Divines 39 4. Entrust, but Verify? The Transfer Regime from Spinoza to Locke 46 5. Into the Enlightenment: “Cato” and Hutcheson 57 III From Liberalism to Liberty: Natural Rights in the French Enlightenment 61 1. Sources for Natural Law Theory in France, 1700– 1750 63 2. Physiocracy and the Dangerous Ignorance of Natural Rights 74 3. Natural Rights Talk in the Late Enlightenment: The Philosophes Carry the Torch 85 4. The (Meek) Conservative Reaction 90 5. Resisting Despotism: National Rights and Constitutionalism 92 Part II Social Naturalism in Early Modern France 101 IV The Laws of Nature in Neo- Stoicism and Science 107 1. The Many Receptions of Stoicism 107 2. Laws of the Natural World: The New Science 115 V Roman Law and Order: From Free- Market Ideology to Abolitionism 118 1. The Jansenist Ethic and the Spirit of Capitalism: Jean Domat, the Natural Order, and the Origins of Free- Market Ideology 119 2. “All Men Are Originally Born Free”: Slavery, Empathy, and the Extension of Human Rights 127 3. Conclusion 139 Part III Rights and Revolutions 141 VI Natural Constitutionalism and American Rights 143 1. Boston, Locke, and Natural Rights (1715– 64) 147 2. Blackstone and English Common Law 157 3. Natural Rights and Revolution 162 4. Declaring Rights: From Natural Law Back to English Common Law 166 VII From Nature to Nation: French Revolutionary Rights 172 1. Whose Rights Are They, Anyway? Rights Talk in the Cahiers de Doléances 175 2. Debating Rights at the National Assembly 179 3. The Legal Spirit of the French Declaration of Rights 185 4. The Revenge of National Rights 188 5. Conclusion 191 VIII Conclusion: A Stand- in for the Universal Declaration: 1789– 1948 194 1. The Catholic Church, Natural Law, and Human Rights 196 2. From National Constitutions to an International Declaration 201 3. The Archaeology of the Universal Declaration of Human Rights 220 Acknowledgments 225 Notes 229 Selected Bibliography 309 Index 313 I How to Think about Rights in Early Modern Europe 1. Introduction There are some seams of political thought that, when mined, threaten to col- lapse the entire mountain of Western culture on your head. The history of rights is one such seam. Tug at the threads woven into the French Declaration of the Rights of Man and of the Citizen, and you are sent in dizzying directions: toward the American Revolution, the French Enlightenment, British political history, Dutch and German natural law theory, Spanish neo- Scholasticism, Huguenot resistance theory, late medieval conciliarism, and Roman law. Drop down these different rabbit holes, and a distinct sense of déjà vu sinks in. Every “original” claim about rights turns out to have precedents; when a claim does break new ground, it is usually as a variation on a theme. Little is lost, little is gained, everything is transformed. On the surface, this book presents itself as a history of how natural rights became human rights, from the Wars of Religion to the Age of Revolutions, and ultimately up to 1948. But it would be presumptuous to describe its argument in that way: too much of that history is missing from the present account. This book is, more modestly, a genealogy of the rights regimes en- shrined during the American and French Revolutions. Reconstructing this ge- nealogy, however, requires reaching back to the sixteenth century and casting glances further back still. The purpose of these historical soundings is not to hit rock bottom and locate ground zero of revolutionary rights. It is rather to gain sufficient perspective on the sprawling series of debates between jurists, theologians, philosophers, political reformers, writers, and others pushing rival rights regimes to defend conflicting ideologies. These disputes were not 2 chapter one merely academic quarrels, but flared up most during moments of political turmoil, when the very structure of governments was called into question. The bone of contention in these quarrels was not whether humans pos- sessed natural rights per se; by the mid- sixteenth century, few disputed that everyone can lay claim to some rights by virtue of natural law.1 The real debate was over what happened to these rights in political society. Some of the early theorists of natural rights insisted that we maintained them in all circum- stances. One group, the revolutionary French Huguenots, made this claim a key tenet of their arguments against the French crown; it was also central to the political demands of the Levellers during the English Civil War. And it was this same “self- evident truth” that eighteenth- century revolutionaries in America and France later proclaimed in their declarations. This conception of natural rights, which I term the “preservation” regime, remains a defining feature of human rights to this day. But the preservation regime was not the only game in town and had two competitors. Political theorists with a more authoritarian bent privileged an “abridgment” regime, according to which upon joining a body politic, the abandonment of (most of) our rights was a prerequisite for security and peace. The most famous author to defend this thesis was Hobbes, though the outlines of this argument stretch back much earlier. It would also resonate well into the eighteenth century and even into the American Revolutionary War.2 Against this claim, more republican- leaning authors defended a “transfer” regime of rights. In this model, we cease to enjoy our rights as individuals in a political society, because we hand them over to the body politic as a whole, or more narrowly to government. This regime typically included a proviso that we can regain these rights under certain conditions, as with Locke’s famous right of resistance. These three rights regimes were not mutually exclusive, and some accounts of natural rights in political society drew upon more than one (see fig. 1.1). But together they map out the basic frameworks available for thinking about rights during this period. I examine how these frameworks came about in chapter 2. I describe these frameworks as “regimes” for two main reasons.3 First, this term allows me to distinguish between the concept of a particular kind of right and the treatment of rights in general by a given theorist. For instance, many theologians and philosophers, going back to the late medieval period, insisted that all humans have a natural right to self- preservation, which they can never give up. On that basis, one could say that these authors defended the concept of an inalienable right. But just because they believed that this one right was inalienable does not mean that they believed humans should necessarily retain all their rights. On the contrary, the concept of an inalienable right is wholly how to think about rights in early modern europe 3 Figure 1.1.
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