Declarations of human rights always make universalistic claims that resound with brave confidence. In 1948, for example, when the United Nations (UN) adopted the Universal Declaration of Human Rights, it proclaimed that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”1 Yet these confident claims rest on a series of troubling paradoxes. Human rights are supposed to be eternal and universal, engraved, as it were, in human nature. But not everyone believes them to be inscribed in human nature, and the notion itself of human rights has a distinct history; it entered into political discourse only at certain times and in specific places. What is imagined to be universal and above history turns out to be contingent and grounded in a particular history. Does this paradox undermine their validity?
The paradoxes do not end with a vexed relationship to history in the abstract. Human rights also have a paradoxical relationship to the concrete histories of revolutions. Rights, especially property rights, have a long history in the West, but they would never have become human rights without revolutions. What political theorists take to be the chief dividing line between present-day democracy and totalitarianism—the guarantee of individual human rights—had its origins in revolution. Although the development of a legal tradition of rights and social contract theories helped shape the concept of human rights, without revolutions human rights would never have become a political reality. Revolutions—the supposed origins of totalitarianism—turn out to be the origins of human rights as well.
To understand these paradoxes, it is essential to be dear about the definition of human rights. Human rights depend on three related assumptions: 1) that rights are universal and equal, which means that all human beings have certain inherent rights simply by virtue of being human and not by virtue of their status in society, whether that is defined by sex, race, ethnicity, a group of families, a social class, an occupational group, or even an entire nation; 2) that these rights are consequently imagined as natural, as stemming from human nature itself, and they have in the past often been called natural rights; and 3) that the legitimacy of any government rests on its ability to guarantee under the law the human rights of all its members. Although these assumptions sound abstract and universal, they only came to make sense to some, by no means all, people in the eighteenth century. Without the universalism of the eighteenth-century Enlightenment and the political shocks of the American and French Revolutions of 1776 and 1789, respectively, there would have been no concept of human rights in the West.
Although rights have a long intellectual, legal, and political history in the West, dating back to the Greeks, rights did not turn into human rights through a straightforward, continuous development. This story is rather one of jumps and discontinuities, largely marked by revolutionary episodes in Europe during the seventeenth and eighteenth centuries. Many scholars agree that an important first step was taken in the seventeenth century by the Dutch philosopher Hugo Grotius when he defined natural rights as something self-possessed and something conceivable separate from God’s will. He suggested that people could use their rights—unaided by religion—to establish the contractual foundations for social life. Grotius published his book in 1625 in the midst of the Dutch revolution for independence from Spain.2
The next important stage in development of the notion of human rights came during the English Civil War of the 1640s. The English Levellers took Grotius’s theory and gave it a practical, political sting. In The Agreement of the People of 1647, for instance, the Levellers insisted on their “common” or “native” rights, implying that the government must guarantee them: “[F]or, as it cannot be imagined that so many of our countrymen would have opposed us in this quarrel if they had understood their own good, so may we safely promise to ourselves that, when our common rights and liberties shall be cleared, their endeavors will be disappointed that seek to make themselves our masters.” After listing their demands, they concluded, “These things we declare to be our native rights, and therefore are agreed and resolved to maintain them with our utmost possibilities against all opposition whatsoever.” The Levellers did not carry the day, but they nonetheless showed the radical implications lurking in natural rights and showed, moreover, how a revolutionary upheaval could bring these implications into the light of day.3
In these early days—indeed right down to 1789—the actual composition of natural rights was vague. For Grotius, they were life, body, freedom, and honor (a list that seemed to call slavery, in particular, into question). John Locke equated natural rights with “Life, Liberty and Estate,” in other words, with property of various sorts (and so he did not call slavery into question). 4 Most English discussion about rights swirled around their existence or nonexistence rather than their precise makeup. Thomas Hobbes inaugurated an enduring countertradition that argued that the idea of rights was meaningless, either because such rights had to be given up to establish an orderly civil society (Hobbes’s own position) or because they counted for nothing compared to positive law (Jeremy Bentham’s position) or compared to divine right (in the case of Robert Filmer, for example). In one of the strongest statements of one version of this position Bentham insisted that “Natural rights is simple nonsense; natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts.”5
Both the pro-rights and anti-rights positions had their origins in political crisis. Natural rights got an important boost (and gained some important opponents) during the revolutions of the seventeenth century. At the end of the eighteenth century, the Americans and French turned to rights arguments in the midst of their own political upheavals. At the moment that rights were perceived to be violated, they could be defined as either traditional or universal. The English tended to define them as the traditional rights of freeborn English men in the seventeenth century (though Locke did not), but the Americans and especially the French defined them in universal terms at the end of the eighteenth century. By dispensing with historical traditions, the Americans and especially the French (because Americans still clung to traditional arguments to some extent) made rights potentially accessible to everyone. In other words, rights had to shed their historical garments to become human rights—rights potentially applicable to everyone.
How did this happen? Although the English Whigs had defended the notion of natural rights in the Revolution of 1688, they had not attempted to found the legitimacy of all government on their guarantee. Deriving from English history, the Bill of Rights of 1689 referred to the “ancient rights and liberties” established by English law. It did not declare the equality, universality, or naturalness of rights, which are all essential requirements for a true concept of “human rights.” In contrast, the American Declaration of Independence of 1776 and the French Declaration of the Rights of Man and of the Citizen of 1789 both claimed a right of revolution to establish or reestablish the natural, equal, and universal rights of individuals, and both linked legitimacy to the guarantee of individual, natural rights.6
Until 1774 at least, Americans drew on a mishmash of philosophical, legal, and historical arguments about British rights. As British authority collapsed in 1774 and 1775, Americans came to consider themselves in something like a state of nature; they called conventions to represent popular will and began drafting state constitutions that sometimes included bills of rights. Rights had to be declared as part of this transition from a state of nature back into civil government. Thus the Declaration of Independence maintained: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” Rights would never have been declared as applicable to all men without the revolutionary moment created by the collapse of traditional British authority. Everyone did not agree on the importance of declaring rights or on the content of the rights to be declared; and as a testament to that the Bill of Rights of the U.S. Constitution was not ratified until the end of 1791. Nevertheless, the revolutionary moment opened the door to the declarations of rights.7
The impact of revolution is even more striking in the French case, because before 1789 French legal and philosophical commentary on rights did not enjoy the depth and vibrancy characteristic of the British rights tradition. Under the French monarchy, rights were a form of privilege; individuals had rights only insofar as they were members of social networks or institutions (the nobility, a guild, a city, a monastery, etc.) with legal standing. As the Parlement (high court) of Paris argued in 1776, “[t]he first rule of justice is to preserve for every man what belongs to him ... a rule that consists not only in maintaining the rights of property, but also in preserving rights attached to the person and those which derive from the prerogatives of birth and estate.”8 Despite, or perhaps because of, this lack of a previous tradition of natural rights, the French revolutionaries developed the most self-consciously universalistic conception of rights ever seen in the world at that time. During the discussion of a declaration of rights in the opening days of the French Revolution, one deputy exclaimed, “[The Americans] have set a great example in the new hemisphere; let us give one to the universe.”9 In August 1789 the deputies to the National Assembly declared, “Considering that ignorance, neglect or contempt of the rights of man are the sole causes of public misfortunes and governmental corruption, [we] have resolved to set forth in a solemn declaration the natural, inalienable and sacred rights of man.” They declared the rights of all men, that is, human rights. Before 1789 such a declaration was inconceivable in France.
The impact of the declarations of rights in the new United States and in France was immediate. It can even be traced in Great Britain, where no revolution occurred. According to the English short title catalogue (ESTC), the number of titles that included some mention of rights steadily declined from the early 1700s to the 1750s and then steadily rose until the 1790s, when the number literally exploded, quadrupling in the 1790s as compared to the 1780s or any other decade in the eighteenth century. Human rights had entered the discourse.10
The history of the forward revolutionary spurts in rights shows that something happened to the conception of rights between 1689 and 1776 to 1789 to transform them from the rights of a particular people, such as “freeborn English men,” into universal natural rights, the French droits de l’homme (rights of man). Men—especially men and only later women—began to talk fervently about universal rights in ways that at least implied their equality for all men, remembering that men could mean either males or humankind. Yet as historians have repeatedly emphasized, these men excluded whole categories of people—slaves, servants, the propertyless, women, and at first, religious minorities—from this supposed equality. How could people hold such seemingly contradictory views?
Such contradictions were sustainable in the eighteenth century because the conception of rights of man was originally vague (many would argue that human rights are still too vague). By the end of the eighteenth century many French political commentators, even supporters of the monarchy, considered the existence of natural rights to be self-evident, even though they were hard-pressed to say just what those rights entailed. With the help of the American Resource, Treasury of the French Language (ARTFL) Project, online at the University of Chicago and developed over the years in collaboration with the National Center for Scientific Research in France, it is possible now to trace the emergence of this language of the rights of man.11
The earliest use of rights of man that I have found in ARTFL is in Jean-Jacques Rousseau’s Social Contract of 1762. Rights had been used as a term before but not rights of man. Rights appeared relatively rarely in any form in the seventeenth century. Rights appeared in all kinds of contexts: The rights of the church, the rights of the tomb, the rights of the father, and indeed, the rights of the church were dominant between 1600 and 1620. The most important predecessor to rights of man was natural right or natural law (droit naturel has both meanings in French). However, droit naturel did not always mean natural law or right in the sense of Grotius or Locke; it sometimes meant simply making sense within the traditional order. Thus, for example, Bishop Bossuet, a spokesman for Louis XIV’s absolute monarchy, used natural right when describing Jesus Christ’s entry to heaven (“he entered heaven by his own natural right”).12 Throughout the eighteenth century natural right continued to be used in this context (as what was fitting for a particular individual or group), but such usage paled next to increasing use of the term to mean a right given by nature and hence applicable to all men.
Denis Diderot’s article on droit naturel in the Encyclopedia (1755) called attention to the self-evidence of natural law or right: “NATURAL LAW (RIGHT). The use of this term is so familiar, that there is almost no one who would not be convinced inside himself that the thing is obviously known to him. This interior feeling is common both to the philosopher and to the man who has not reflected at all.”13 This brief quote goes to the heart of the central paradox of human rights: Belief in them rests on their self-evidence, which can only be proved by belief in them. The belief is nonetheless powerful for its tautological foundation: “There is almost no one who would not be convinced inside himself that the thing is obviously known to him.” Or as Thomas Jefferson asserted in the Declaration of Independence, “We hold these truths to be self-evident.” The self-evidence of natural rights helps explain why they depend on revolutions rather than continuous development. They had to be discovered, but they had to be already present. Their existence is not proved or disproved by their actual presence in the legal tradition but by their resonance with each individual’s interior feeling.
The self-evidence of the rights of man did not preclude vagueness about their actual legal and political content. In 1787 a Calvinist pastor, Jean Paul Rabaut Saint-Etienne, wrote to the French government to protest the government’s language in the recently released and long-sought Edict of Toleration for Calvinists:
They have moved into the preamble of the edict the thinking expressed by the Keeper of the Seals in his speech on the subject: that non-Catholics only get from the law what natural rights cannot refuse them, that is, the legal expression of their natural rights. But we know today what natural rights are, and they certainly give to men much more than the edict accords to Protestants: it seems to me that it would have been better to suppress this thought. The time has come when it is no longer acceptable for a law to overtly overrule the rights of humanity that are very well known all over the world.14
Rabaut did not go on to specify those rights, however, and he explicitly agreed in his letter that the king could not authorize public worship by non-Catholics. In other words, by 1787 the concept of natural rights seemed self-evident, at least to the intellectual elite, but its content was uncertain. As late as 1787 Rabaut thought it meant some kind of religious toleration, but even he, a Protestant minister, did not think it necessarily meant full civil and political rights for religious minorities.
So sometime around the middle of the eighteenth century, perhaps particularly in the decade of the 1760s, the rights of man came to make sense where they had not before. The term enters into the discourse. An underground newsletter has this entry for June 13, 1763:
the actors of the comédie française today played, for the first time, Manco, of which we previously spoke [a play about the Incas in Peru]. It is one of the most badly constructed tragedies. There is a role in it for a savage, which could be very beautiful; he recites in verse everything that we have read scattered about on kings, liberty, the rights of man, in The Inequality of Conditions, in Emile, in The Social Contract.15
Apparently the rights of man had already entered ordinary language thanks to the influence of Rousseau (though Rousseau himself only used it one year before), and most interestingly, the term came up in particular in reference to colonial peoples. It is the savage who recites verses on liberty and the rights of man.
Whatever the precise origins of the term, the notion of the rights of man appeared rather suddenly and with little definition of the content of those rights. Most of those using the phrase in the 1770s and 1780s referred to the rights of man as if they were obvious and needed no justification or definition. Baron D’Holbach argued, for instance, that if men feared death less, “the rights of man would be more boldly defended.” Honoré Mirabeau denounced his persecutors who had “neither character nor soul, because they have no idea at all of the rights of men.”16 Just what these rights were remained unspecified.
Tracing the use of a term such as rights of man is only a first step. Explaining its self-evidence—its credibility to large numbers of people—requires something further. Intellectual and legal influences alone cannot account for the believability of human rights in the second half of the eighteenth century. Required in addition were subtle but momentous changes in the perception of bodies and selves. The rights of man only made sense because individuals were increasingly seen as capable of moral autonomy. The philosopher Charles Taylor insists that “to talk of universal, natural, or human rights is to connect respect for human life and integrity with the notion of autonomy. It is to conceive people as active cooperators in establishing and ensuring the respect which is due them.”17
Moral autonomy is not just a notion; it is a set of practices that concern bodies and selves. Two related sets of developments helped establish the belief that individuals could be equally and universally morally autonomous, at least in theory: 1) an increasing sense of the separation and sacredness of bodies—your body is yours and my body is mine by self-possession, and we should both respect the boundaries and integrity of each other’s bodies; and 2) an increasing sense of empathy between psyches across space—we are alike in some fundamental fashion. To be morally autonomous a person has to be legitimately separate, but to have rights go along with that autonomy, a person’s selfhood must be appreciated in some more affective or emotional fashion. Human rights depend both on self-possession and on the recognition that all others are equally self-possessed; it is the incomplete development of the latter, of course, that gives rise to all the inequalities of rights that we now know so well. In the eighteenth century, women, children, slaves, servants, and men without property were most often viewed as moral as well as economic dependents not autonomous individuals.
Some of the changes behind these developments took place over the long term. Legally and psychologically individuals extricated themselves from the webs of community and became more independent agents (for example, in choosing marriage partners or occupations). The rising threshold of shame about bodily functions and the growing sense of bodily decorum (sleeping alone or only with a spouse in bed, using utensils, not throwing food on the floor, or wiping body excretions on clothing) created clearer lines of demarcation between individual bodies and greater respect for bodily integrity. The constant evolution of notions of interiority and depth of psyche from the Christian soul to the Protestant conscience to notions of sensibility filled the self with a new content in the eighteenth century. All these processes took place over a period of many centuries.
But several important cultural shifts took place quite suddenly in the eighteenth century. Audiences began to watch theatrical performances and listen to music in silence; portraiture and genre painting displaced the great mythological and historical canvases of academic painting; the absolute authority of fathers over their children came under fire; and novels and newspapers proliferated. All of these contributed in one way or another either to a sense of the separation, self-possession, and integrity of individual bodies or to the possibility of empathy between separate psyches. Benedict Anderson explored the ways in which newspapers and novels created new forms of “imagined community,” such as nationalism; I want to argue for a parallel development of “imagined empathy,” which provided the psychological foundation of democracy and human rights. Empathy was not imagined in the sense of made up; it was a new sense of psychological identification that had real effects. Equality of rights is unimaginable without a strong sense that others are like you in body and mind. Social relations based on hierarchy and deference cannot foster this experience of equality. Social and cultural changes in the eighteenth century meant that equality could now be thought possible.18
New forms of print culture, such as newspapers and novels, helped produce this imagined empathy. Reading a novel (in the eighteenth century and not before) a reader identified with an ordinary person unknown to him or her personally but with whom the reader empathized thanks to the narrative form itself. The novel disseminated a new psychology and a new social and political order all at once; by its forms of narration it made servants like Pamela, the heroine of Samuel Richardson’s novel by that name of 1740, the equal and even the better of rich men, such as Mr. B, her employer and would-be seducer. The novel made the point that all selves are fundamentally similar because of their inner psychic processes; reading the novel drew the reader into those psychic processes and created a sense of equality through passionate involvement in the narrative. Can it be coincidental that the three greatest novels of psychological identification of the eighteenth century—Richardson’s Pamela and Clarissa (1748) and Rousseau’s Julie (1761)—were all published in the two decades that preceded the appearance of the concept of the rights of man?
Novels of all sorts had been published before, of course, but after 1740 they took off as a genre. In France, 8 new novels were published in 1701, 52 in 1750, and 112 in 1789. In Britain, the number of new novels increased sixfold between the first decade of the eighteenth century and the 1760s. In addition, more people could read, and novels now featured ordinary people facing the everyday problems of love, marriage, and getting ahead in the world as central characters. Literacy had increased to the point where even servants, male and female, read novels in the big cities, but novel reading was not then, nor is it now, common among the lower classes. French peasants, who made up as much as 80 percent of the population, did not usually read novels, when they could read at all.19
Novels created empathy through the magical power of narrative, not by means of explicit moralizing. Many distrusted this power, but some notable figures were won over. The Scottish jurist and philosopher Henry Home, Lord Kames wrote that fiction’s potential to “generate passion is an admirable contrivance to excellent purposes.” Fiction creates a kind of “ideal presence” or “waking dream,” in which the reader imagines himself or herself to be an eyewitness: “[T]he reader’s passions are never sensibly moved, till he be thrown into a kind of reverie; in which state, losing the consciousness of self, and of reading, his present occupation, he conceives every incident as passing in his presence, precisely as if he were an eye-witness.” Most important for Kames, this ideal presence fosters morality: “from it [ideal presence] entirely is derived that extensive influence which language hath over the heart; an influence, which, more than any other means, strengthens the bond of society, and attracts individuals from their private system to exert themselves in acts of generosity and benevolence.”20
Jefferson apparently shared this view, which is perhaps not surprising as he recommended Kames’s book, among others, to Robert Skipwith in 1771. Skipwith, who married the half sister of Jefferson’s wife, wrote to Jefferson asking for a list of recommended books. Jefferson suggested many of the classics, ancient and modern, in politics, religion, law, science, philosophy, and history, but he began his catalog with poetry, plays, and novels, including those of Laurence Sterne, Henry Fielding, Jean-François Marmontel, Oliver Goldsmith, Richardson, and Rousseau. In the letter that went with the reading list Jefferson waxed eloquent on “the entertainments of fiction.” “Every thing is useful which contributes to fix us in the principles and practice of virtue,” he affirmed. Citing William Shakespeare, Marmontel, and Sterne by name, Jefferson explained that in reading such works we experience the “strong desire in ourselves of doing charitable and grateful acts” and are disgusted by the deformity of an evil deed and “conceive an abhorrence of vice.” This constitutes a kind of “exercise of our virtuous dispositions,” which produces “a habit of thinking and acting virtuously.” Fiction, he insisted, produces “emulation” more effectively than reading history.21
Ultimately at stake in the novel of the eighteenth century was nothing less than the valorization of ordinary secular life as the foundation for morality. In the eyes of the critics of novel reading, sympathy with a novelistic heroine encouraged the worst in the individual (illicit desires and excessive self-regard) and demonstrated the irrevocable degeneration of the secular world. For the adherents of the new view of empathetic moralization, in contrast, such identification showed that the arousal of passion could help transform the inner nature of the individual and produce a more moral society. They believed that the inner nature of humans provided grounding for social and political authority. For human rights to resonate as a notion, people had to learn to think of others as their equals and as like them in some fundamental fashion. They learned equality, at least in part, by experiencing identification with ordinary characters who were by definition unknown to them but who seemed nonetheless dramatically present and familiar.
Although novel reading cannot be linked in lockstep fashion to human rights (I am not arguing that Jefferson wrote the Declaration of Independence because of his fondness for Sterne), the general influence of the changing perception of bodies and selves can be seen in the movement to abolish legal torture and the most extreme forms of corporal punishment. As a consequence of the revival of Roman law and the example of the Catholic Inquisition, torture that was supervised judicially to extract confessions had been introduced or reintroduced in most European countries in the thirteenth century. In the sixteenth, seventeenth, and eighteenth centuries, many of Europe’s finest legal minds devoted themselves to codifying, regularizing, and justifying the use of judicial torture. They focused their energies on preventing abuses by overly zealous or sadistic judges. Great Britain had supposedly replaced judicial torture with juries in the thirteenth century, yet torture still took place there in the sixteenth and seventeenth centuries in cases of sedition and witchcraft. For example, the more severe Scottish magistrates used pricking, sleep deprivation, and torture by “boots” (crushing legs), “pinniewinks” (thumbscrews), burning with hot irons, “thrawing” with a rope (dislocating arms), and the “turcas” (tearing out nails) for witches. Torture to obtain the names of accomplices was allowed under Massachusetts colonial law but apparently never ordered. French courts had two forms of torture at their disposal: the question préparatoire (torture to extract confession of guilt) and the question préalable (torture just prior to execution to get the names of accomplices). The procedure used in torture varied from jurisdiction to jurisdiction in France and included crushing the leg between wooden or metal braces, raising hands tied behind the back by a rope or pulley device while holding down the feet with a stone, and pouring pitchers of water down the throat of the accused with the mouth held open by small sticks. In other places, thumbscrews, tight tying of hands, enforced sleeplessness, burning of the soles of the feet, and stretching on the rack were in use.22
Brutal forms of punishment on conviction were ubiquitous in Europe and the Americas. Although the British Bill of Rights of 1689 expressly prohibited cruel punishment, British judges still sentenced criminals to the whipping post, ducking stool, stocks, pillory, branding, and execution by drawing and quartering (dismemberment by horses) or for women, drawing and quartering and burning at the stake.23 Most sentences mandated by the French courts in the last half of the eighteenth century still included some form of public bodily violation, such as branding, whipping, or wearing the iron collar (which was attached to a pole or to the pillory). In 1762, for example, the Parlement of Paris rendered appellate penal judgments against 235 men and women first tried by the Châtelet court (a lower court) of Paris: 82 were sentenced to banishment and branding, usually combined with whipping; 9 to the same combination along with the iron collar; 19 to branding and imprisonment; 20 to confinement in the general hospital after branding or the iron collar; 12 to hanging; 3 to breaking on the wheel; and 1 to burning at the stake. If all the other courts of Paris were included in the count, the number of public humiliations and mutilations would climb to five or six hundred with some eighteen executions numbered among them—in just one year in one jurisdiction.24
The death penalty could be imposed in five different ways in France: decapitation for nobles; hanging for common criminals; drawing and quartering for offenses against the sovereign known as lèse-majesté; burning at the stake for heresy, magic, arson, poisoning, bestiality, and sodomy; and breaking on the wheel for murder or highway robbery. Judges ordered drawing and quartering and burning at the stake infrequently in the eighteenth century, but breaking on the wheel was quite common; in the southern French jurisdiction of the Parlement of Aix-en-Provence, for example, nearly half the fifty-three death sentences imposed between 1760 and 1762 called for breaking on the wheel.25
Breaking on the wheel, reserved to men convicted of homicide or highway robbery, took place in two stages. First, the executioner tied the condemned man to an x-shaped cross and systematically crushed the bones in his forearms, legs, thighs, and arms by striking each one with two sharp blows. Using a winch fastened to the halter around the condemned man’s neck, an assistant under the scaffold then dislocated the vertebrae of the neck with violent tugs on the halter. Meanwhile, the executioner struck the midsection with three hard blows of the iron rod. Then the executioner took down the broken body, and fastened it, limbs bent backward, to a carriage wheel on top of a ten-foot pole. There the condemned man remained long after death, concluding “a most dreadful spectacle.” As an act of mercy the court could order that the convict be strangled to death before his body was attached to the wheel.26
Not surprisingly punishment in the colonies followed the patterns established in the imperial center. Thus one-third of all sentences in the Massachusetts Superior Court even in the last half of the eighteenth century called for public humiliations, ranging from wearing signs to cutting off an ear, branding, and whipping. A contemporary in Boston described how “women were taken from a huge cage, in which they were dragged on wheels from prison, and tied to the post with bare backs, on which thirty or forty lashes were bestowed amid the scream of the culprits and the uproar of the mob.” Until 1785, those who could not pay fines for property offenses could be sold into servitude. Capital crimes included not only murder and treason but also manslaughter, rape, infanticide, polygamy, sodomy, burglary, robbery, arson, forgery, and petty treason (the murder of a husband by a wife, a father by a child, or a master by an apprentice). The British Bill of Rights did not protect slaves because they were not viewed as persons with legal rights. Virginia and North Carolina expressly permitted the castration of slaves for heinous offenses, and in Maryland, in cases of petty treason or arson by a slave, the right hand was cut off and the slave then hanged, the head cut off, the body quartered, and the dismembered parts displayed in public. As late as the 1740s, slaves in New York could be burned to death in agonizingly slow fashion, broken on the wheel, impaled, or hung in chains until death by starvation.27
As with human rights more generally, new attitudes about both torture and cruel punishment first crystallized some time around the 1760s, not only in France but also elsewhere in Europe and the American colonies. King Frederick the Great of Prussia abolished judicial torture in his lands in 1754.28 Laws forbidding torture were enacted in Sweden in 1772 and in Austria and Bohemia in 1776. In 1780 the French monarchy eliminated the use of torture to extract confessions of guilt before sentencing, and in 1788, it provisionally abolished the use of torture just prior to execution to produce the names of accomplices. In 1783 the British government discontinued the public procession to Tyburn where executions had become a major popular entertainment and introduced the regular use of “the drop,” a raised stage dropped by the executioner to ensure quicker and more humane hangings. In 1789 the French revolutionary government renounced all forms of judicial torture, and in 1792 it introduced the guillotine to make the execution of the death penalty uniform and as painless as possible. By the end of the eighteenth century public opinion seemed to demand an end to judicial torture and to the many indignities visited on the bodies of the condemned. As the U.S. physician Benjamin Rush insisted in 1787, we should not forget that even criminals “possess souls and bodies composed of the same materials as those of our friends and relations. They are bone of their bone.”29
Before 1789 Enlightenment authors and state officials argued over the status of rights in general, and as we have seen, under pressure the French monarchy began to enact some rights reforms, such as allowing religious toleration to Protestants and shutting down the practice of judicial torture. During 1789 and afterward both supporters and opponents of the revolution had to take a stand not only on whether rights existed and what weight they should have in constitutional affairs but also on the precise content and purview of those rights. So even though the notion of rights of man had begun to take shape before 1789, the revolution gave it an immense push forward. The Declaration of the Rights of Man and of the Citizen aimed to define “the natural and imprescriptible rights of man”: liberty, property, security, and resistance to oppression. It also outlined several other rights: equality before the law, admissibility to all public offices, protection from arbitrary orders or imprisonment, freedom of religion, and freedom of the press.
When the National Assembly passed the Declaration of the Rights of Man and of the Citizen in August 1789, it did not resolve the issue of rights; it only began to open them up. In December 1789 the deputies began to debate the unresolved status of non-Catholics; the Declaration said nothing explicit about religious minorities, and the king had never granted political rights to Protestants, much less to Jews. Immediately the new National Assembly agreed to extend all civil and political rights to Protestants, and after considerable back and forth, it voted full civil and political rights to Jews in September 1791. The rights of free blacks and slaves were bound to come up for discussion, too, but as the experience of the new United States showed most dramatically, rights could be declared even as slavery was maintained. In March 1790 the Assembly voted to exempt the colonies from the constitution and to prosecute anyone who attempted to prompt uprisings against the slave system. Agitation on the question did not end, and in May 1791 the Assembly granted political rights to a limited number of free blacks and mulattos. Then in August 1791 the slaves of Saint Domingue began what was to become over the next several years the first successful slave revolt in history. A month later, the National Assembly rescinded the rights of free blacks, only to reinstate them a few months later. Between August and September of 1793 French agents officially suppressed slavery in Saint Domingue. Although their actions were initially denounced in the National Convention as part of a plot with England, the Convention voted to abolish slavery in all the French colonies in February 1794.
Previously excluded groups did not win rights because the French revolutionaries were not free from prejudice. The deputies shared many of the values of their age that we now judge to be religiously bigoted, racist, or sexist. The priest Henri Grégoire, for instance, who was one of the most consistent and broad-minded advocates of rights for Jews and blacks, referred to the Jews as “parasitic plants who eat away the substance of the tree to which they are attached.”30 But to label these views anti-Semitic (and conclude, as some have, that Gregoire’s actions led straight to Auschwitz) is only to anachronistically pat ourselves on the back for our own historical superiority. Even more important, this kind of labeling distorts the historical record because it obscures what was truly new and different in the eighteenth century; in the case of the Jews, for example, what was new was not the ubiquity of anti-Semitism, a feature of European life for centuries, but rather the fact that French revolutionaries like Grégoire felt called upon to discuss the status of Jews in a public forum and after such discussion felt compelled to grant Jews the same forms of citizenship enjoyed by other French men. Nowhere else in the world, not even in the new United States, did Jews have full civil and political rights. In most of Europe, governments did not emancipate them until the late nineteenth or early twentieth century. In the United States, they gained rights on a state-by-state basis from 1776 to the 1820s. In France, in contrast, they gained full rights in 1791 because the deputies could see no good rationale for continuing to exclude them once they had agreed to the principles underlying the Declaration of the Rights of Man and of the Citizen.
Although the Declaration of the Rights of Man and of the Citizen had pushed the deputies to recognize rights in ways that were unimaginable before 1789, in one major area of rights, there was little official movement. The rights of women did not excite the same kind of interest in prerevolutionary France as the rights of Protestants, Jews, or even slaves. Women’s rights remained in the shadow despite the centrality of women characters in the fiction of the eighteenth century. In fact, the dramatic tension of the novels of Richardson and Rousseau had been built on the paradoxical situation of women. In their novels as in many others, the eighteenth-century obsession with freedom and constraint—with moral autonomy as a new feature of social life—revolved around female characters created by male authors. Novelists invented important male characters, such as Robinson Crusoe and Tom Jones, and many prolific female authors wrote, too. But the iconic figures of intense psychological identification were the three female characters—Pamela, Clarissa, and Julie—created by Richardson and Rousseau. Men as well as women identified with their fates. From letters to the authors we know that upper-class men, even military officers, intensely identified with these women. Apparently, the antinomies of autonomy and dependence, of freedom and constraint, could be most intensely experienced via characters who could only aspire to autonomy and never really fully attain it, that is, women. A problem lurked in this paradox: If women could be shown to be so noble, so intensely human, so longing for freedom, then how could they be deprived of their rights? Men, and women, too, would expend great effort in providing an answer to that question.
Women’s rights did pop up as an issue in the wake of the Declaration of the Rights of Man and of the Citizen, most notably in the writings of Condorcet (July 1790) and Olympe de Gouges (especially September 1791). Women organized their own political clubs and participated in a variety of new ways in political life but never got political rights like those of Protestant, Jewish, or black men. Still, the issue of women’s rights did make it onto the table and could only have made it onto the agenda of political discussion because human rights were under discussion. Without the French Revolution, there would have been no Mary Wollstonecraft with her Vindication of the Rights of Woman (1792). As Constance Pipelet, later de Salm, argued, “it is especially during the revolution . . . that women, following the example of men, have most reasoned about their true essence and have acted in consequence.” Like many others, she saw that the notion of human rights had an implacable logic, even if it had not yet worked itself out in the case of women, that other half of humanity.31
Wherever we turn, the origins of human rights point to paradoxes: paradoxes about history (how can a self-evident notion that claims to depend only on human nature have a history?), paradoxes about revolution (how can revolution be the origin both of rights and the denial of rights?), paradoxes about universalism (how can equal, natural, and universal rights be denied to some?), and paradoxes about psychological origins (why are women the focus of psychological identification if they are to be denied full participation as humans?). The paradoxes of human rights do not in any way diminish their historical importance or their relevance today. They simply measure the depth of the challenge that human rights posed to hierarchical societies based on privilege and birth and the continuing challenge they offer to inequality, injustice, and despotic authority of all kinds. As long as inequality, injustice, and despotic authority endure, the self-evidence of “the inherent dignity and of the equal and inalienable rights of all members of the human family” will seem paradoxical.
The text of the Declaration was approved on December 10, 1948, by the General Assembly of the United Nations. Yearbook on Human Rights for 1948 (Lake Success, N.Y.: United Nations, 1950), 466.
On the origins, see Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1996) and Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press, 1996).
Samuel Rawson Gardiner, The Constitutional Documents of the Puritan Revolution, 1625-1660 (Oxford: Clarendon Press, 1906), 333-35.
John Locke, Two Treatises of Government (Cambridge: Cambridge University Press, 1963), 366-67.
In “Nonsense upon Stilts, or Pandora’s Box Opened, or The French Declaration of Rights prefixed to the Constitution of 1791 Laid Open and Exposed,” reprinted in Philip Schofield, Catherine Pease-Watkin and Cyprian Blamires, eds., The Collected Works of Jeremy Bentham. Rights, Representation, and Reform: Nonsense upon Stilts and Other Writings on the French Revolution (Oxford: Clarendon Press, 2002), 319-75, quote on 330. The pamphlet, written in 1795, was not published until 1816 (in French) and 1824 (in English).
On the difference between the American Declaration of Independence and the English Declaration of Rights of 1689, see Michael P. Zuckert, Natural Rights and the New Republicanism (Princeton: Princeton University Press, 1994), 3-25.
Jack N. Rakove, Declaring Rights: A Brief History with Documents (Boston: Bedford Books, 1998), 32-38.
As quoted in Keith Michael Baker, Inventing the French Revolution: Essays on French Political Culture in the Eighteenth Century (Cambridge: Cambridge University Press, 1990), 114.
Mathieu de Montmorency, August 1, 1789, Archives parlementaires, 8 (1875), 320.
I am grateful to Jennifer Popiel for research on this point. I have made no distinction in the use of the terms rights and have not excluded the considerable number of reprints over the years. The number of uses of rights in titles increased twofold from the 1760s to the 1770s (from 51 in the 1760s to 109 in the 1770s), stayed about the same in the 1780s (95) and then quadrupled to 418 in the 1790s.
http://humanities.uchicago.edu/ARTFL.html. ARTFL includes a selection of largely canonical texts from the Middle Ages to the present; it does not have every French language text. Nevertheless, because it includes whole texts, it is a wonderful resource for tracing changes in language.
ARTFL gives as the citation Jean-Baptiste Bossuet [1704], Méditations sur L’Evangile (Paris: Vrin, 1966), 484.
Denis Diderot and Jean Le Rond d’Alembert, eds., Encyclopédie ou Dictionnaire raisonné des sciences, arts, et des metiers, 17 vols. (1751-1780), vol. 5 (Paris, Briasson: 1755): 115-16.
“Lettre de Rabaut Saint-Etienne sur l‘Edit de Tolerance de 1787,” Bulletin de la Société de l’histoire du protestantisme francais, 33 (1884): 360-61. Emphasis his.
Mémoires secrets pour servir à l‘histoire de la République des lettres en France, depuis MDCCLXII jusqu’à nos jours, vol. 1 (London, 1780; reprint 1970), 230.
P. H. d’Holbach, Système de la Nature (1770: London, 1771), 336 and H. Comte de Mirabeau, Lettres écrites du donjon (1780: Paris, 1792), 41.
Charles Taylor, Sources of the Self: The Making of Modern Identity (Cambridge: Harvard University Press, 1989), 12.
Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, 1983), 25-36. Anderson sees novels and newspapers as creating a sense of simultaneity of time in which ordinary life is validated, thus giving rise to a new sense of community that facilitates nationalism. I am more interested in how they generated a new sense of self and empathy between separate selves across space (thanks to this simultaneity in homogenous, empty time).
On the general evolution of the French novel, see Jacques Rustin, Le Vice à la mode: Etude sur le roman français du XVIIIe siècle de Manon Lescaut à l’apparition de La Nouvelle Héloïse (1731-1761) (Paris: Ophrys, 1979), 20. I compiled figures on the publication of new French novels from Angus Martin, Vivienne G. Mylne, and Richard Frautschi, Bibliographie du genre romanesque français, 1751-1800 (London: Mansell, 1977). On the English novel, see James Raven, British Fiction 1750–1770 (Newark: University of Delaware Press, 1987), 8-9.
Henry Home, Lord Kames, Elements of Criticism [1762] 3rd ed., 2 vols. (Edinburgh: A. Kincaid & J. Bell, 1765), I: 80, 82, 85, 92. See also Mark Salber Phillips, Society and Sentiment: Genres of Historical Writing in Britain, 1740-1820 (Princeton: Princeton University Press, 2000), 109-10.
Julian P. Boyd, ed., The Papers of Thomas Jefferson, 30 vols. (Princeton: Princeton University Press, 1950- ), I: 76-81.
On the general establishment and abolition of torture in Europe, see Edward Peters, Torture (Philadelphia: University of Pennsylvania Press, 1985). Although torture was not abolished in some Swiss cantons until the mid-nineteenth century, the practice largely disappeared in Europe in the aftermath of the revolutionary and Napoleonic wars. For example, Napoleon abolished it in Spain in 1808, and it was never reestablished. On witchcraft cases and the use of torture, see Christina A. Larner, Enemies of God: The Witch-hunt in Scotland (London: Chatto & Windus, 1981), 109. Kathryn Preyer, “Penal Measures in the American Colonies: An Overview,” The American Journal of Legal History, 26 (Oct., 1982): 326-53, especially 333.
On the general methods of punishment, see J. A. Sharpe, Judicial Punishment in England (London: Faber and Faber, 1990). Punishment on the pillory could include having one’s ears cut off or having one’s ear nailed to the pillory (p. 21). Stocks were a wooden device to hold the feet of an offender. The pillory was the device in which the offender stood with their head and hands between two pieces of wood.
Richard Mowery Andrews, Law, Magistracy, and Crime in Old Regime Paris,1735-1789 , vol. 1: The System of Criminal Justice (Cambridge: Cambridge University Press, 1994), 385, 387-388.
Benoit Garnot, Justice et société en France aux XVIe, XVIIe et XVIIIe siècles (Paris: Ophrys, 2000), 186.
I base my description of breaking on the wheel on an eyewitness account of an execution in Paris by James St. John, Esq., Letters from France to a Gentleman in the South of Ireland: Containing Various Subjects Interesting to both Nations. Written in 1787, 2 vols. (Dublin, P. Byrne, 1788), II: Letter of July 23, 1787, 10–16.
Linda Kealey, “Patterns of Punishment: Massachusetts in the Eighteenth Century, The American Journal of Legal History, 30 (Apr. 1986): 163-86, quote p. 172. William M. Wiecek, “The Statutory Law of Slavery and Race in the Thirteen Mainland Colonies of British America,” The William and Mary Quarterly, 3rd Ser., 34 (Apr. 1977): 258-80, esp 274-75.
J. D. E. Preuss, Friedrich der Grosse: eine Lebensgeschichte, 9 vols (Osnabrück, West Germany: Biblio Verlag, 1981; reprint of 1832 Berlin edition), I: 140-41.
Benjamin Rush, An Enquiry into the Effects of Public Punishments upon Criminals, and Upon Society. Read in the Society for Promoting Political Enquires, Convened at the House of His Excellency Benjamin Franklin, Esquire, in Philadelphia, March 9th, 1787 (Philadelphia: Joseph James, 1787); reprinted in Reform of Criminal Law in Pennsylvania: Selected Enquiries, 1787-1810, (New York: Arno Press, 1972, with original page numbering), 7.
As quoted in Patrick Girard, La Révolution française et les juifs (Paris: Robert Laffont, 1989), 81.
Constance D. T. Pipelet, “Rapport sur un ouvrage du cit. Théremin, intitulé: De la condition des femmes dans une république.” Le Mois 5, no. 14, year VIII (apparently prairial), 232.