• 1 See Isabelle Anselme, L’invocation de la Déclaration des droits de l’homme et de la constitution da (...)

6Edelstein’s contention is that the 1776 and 1789 Declarations marked the triumph of “subjective” rights. It is true that the two declarations were soon inserted into the constitutional apparatus of the two regimes. The US Bill of Rights shortly followed the adoption of the Constitution, whereas in France legal provisions were part and parcel of the 1789 Declaration, which itself figured (with minor variations) as a preamble to the 1791 Constitution. In so doing, revolutionaries did not limit themselves to stating broad principles or asserting individual or collective liberties, they also thought they were providing a bulwark against future encroachment by the State or by other individuals. Edelstein’s book is a clear reply to those who, in the wake of Samuel Moyn’s The Last Utopia (2010), have argued that the normative value of human rights is essentially a twentieth-century invention. Indeed, in France, though the recognition of the constitutional validity of the 1789 declaration derived from a decision of the Conseil constitutionnel on July 16, 1971, recent work by legal historians has tended to stress that in the first few years of the Revolution rights were conceived as normative and represented a driving force for positive legislation.1 It must however be pointed out that the normativity of Enlightenment declarations of rights was neither immediate nor universal – American slaves remained excluded from its remit and in France, far from being set in stone, the text of the 1789 Declaration was modified in the following decades, in a long series of constitutional upheavals. Edelstein’s statement that “subjective and objective theories of natural right continued to intermingle all the way up through the Age of Revolutions” (p.13), may in fact be taken further into the nineteenth and the twentieth centuries, in that respect the Enlightenment declarations were no watershed.

• 2 Jeremy Waldron, Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man, (London, Methue (...)

7The existence of subjective natural rights was, in itself, a contentious point throughout the eighteenth century, and well into the nineteenth.2 Opponents claimed that the idea of natural and imprescriptible rights was as historically and conceptually false as it was politically dangerous. Though more attention has been paid to the way this critique developed in the course of the nineteenth century, be it in conservative, catholic or Marxist circles, this position was alive and well in the eighteenth century. Jeremy Bentham – born in 1748, three years after Nicolas de Condorcet – expressed it forcefully in 1795 in his commentary of the version of the Declaration attached to the 1791 Constitution (which contained only minor variations from the 1789 version):

• 4 Philip Schofield, “Jeremy Bentham’s Nonsense Upon Stilts”, Utilitas, 15-1, 2003, p. 1‑19.

8Bentham’s opinion was without appeal: “[n]atural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts.” (p.330). Moreover, to use Edelstein’s categories, Bentham’s attack is levelled specifically at the supporters of the preservation regime: in the same paragraph, Bentham explains, against those who claim that their natural rights have been encroached upon by the actions of government: “[t]hat [ie. a supposed right] which has no existence cannot be destroy’d: that which can not be destroy’d can not require any thing to preserve it from being destroy’d.” As Philip Schofield has pointed out, this included not only the French revolutionaries, but also, closer to home, the ideas defended by Thomas Paine in Rights of Man, part I (1791).4

• 5 Frederick Rosen, Classical Utilitarianism from Hume to Mill (London, Routledge, 2003), pp. 209-255.
• 6 David Lieberman, “Declaring Rights: Bentham and the Rights of Man”, in eds Ian Hunter et Richard Wh (...)
• 7 These points could also be made for Helvétius’s utilitarianism. Helvétius is not such a clear-cut d (...)

9Bentham’s critique of natural rights is often presented as the logical conclusion of his utilitarianism: setting up the greatest happiness of the greatest number as the standard of right and wrong in morals and as the criterion of legislation implies a consequentialist approach that seems to conflict with any a priori assessment of value, or statement of right. However, Bentham’s utilitarianism did not exclude the appeal to external principles: namely, “subsistence, abundance, security and equality”,5 nor to indicative declarations of principles to guide the legislator.6 For Bentham, natural and imprescriptible rights, be they expressed in the words of Pufendorf, Grotius, Locke or Blackstone were fictions: they did not refer to any “real entities” and for this reason, they could not be backed with legal sanctions. As fictions, natural rights did not and could not have any legal value. As Schofield and Lieberman have pointed out, this position is to be distinguished from later legal positivism, held for instance by John Austin. Bentham did not minimise the role of passions and individual representations in politics, nor did he believe that moral values were irrelevant to law or government. On the contrary, the principle of utility united the moral and the legal spheres, for it was sovereign in both.7

• 8 Jeremy Bentham, A Comment on the Commentaries and A Fragment on Government, eds. J. H. Burns and H. (...)

10Bentham’s rejection of natural rights as fictions is not only the product of his own specific epistemology. In political terms, his position appears to be steeped in eighteenth-century Toryism, which Bentham himself acknowledged as the political milieu he grew in, and which had a direct impact on his rejection of Whig conceptions of rights and contractual politics.8 Like Filmer in Patriarcha, Bentham dismissed together the ancient liberties of Englishmen and natural rights. Shortly before Bentham wrote A Fragment on Government, which came out in 1776, Samuel Johnson had voiced similar arguments against the American colonists in a pamphlet entitled “Taxation No Tyranny. An Answer to the Resolutions and Address of the American Congress”:

• 10 In his 1958 essay “The Norman Yoke”, while retracing how arguments from English liberty and from ri (...)

11What unites this indictment with Bentham’s is the accusation that rights are solely the product of caprice, that they have no foundations in history. The issue of the historicity of rights is therefore crucial to understand eighteenth-century debates on natural rights in the English-speaking world. Edelstein rightly points out the specificity of the Anglo-American tradition which combines natural rights with the historical liberties of Englishmen, with a careful analysis of Burke’s position, for instance: Burke believed that “Anglo-American rights were grounded in the long constitutional history of the English monarchy, stretching from the Magna Carta to the Glorious Revolution” (p.172). But dissenting opinions were in fact numerous, across the political spectrum.10

• 11 https://www.rousseauonline.ch

16“Where is Locke’s Second Treatise of Government in the French Enlightenment?”, Dan Edelstein asks. Provocatively, his answer is that in France “Enlightenment rights talk cannot be described as ‘Lockean’” (p. 69-71). This move parallels the much less recent side-lining of Locke’s Second Treatise in eighteenth-century English-speaking political culture. It rests on the well-documented idea that Locke’s fame in Enlightenment France was mostly derived from the Essay concerning Human understanding and from the Reasonableness of Christianity, which circulated much more widely than the Two Treatises. In his study, Dan Edelstein weaves together qualitative and quantitative evidence, but his close reading rests mostly on the Encyclopédie and on Diderot (p.70). One can wonder whether the picture would be different if one were to look more closely at other types of sources (such as periodicals and newspapers, for which no exhaustive database exist for the period, a point he rightly makes) and other political traditions, such as classical republicanism, were to be examined. Ultimately, one may wonder whether the relative fading of Locke into the background isn’t liked to Edelstein’s attempt to write a history of rights which deliberately moves away from Rousseau. The 1780-89 Genevan edition of the Œuvres complètes de Rousseau, searchable through FRANTEXT, returns 48 mentions of Locke.11 Rousseau was a critical reader of Locke, but a reader nonetheless, and the publicity he gave to the Englishman’s ideas no doubt played a part in the surge of interest of the revolutionaries for Locke’s political thought. Indeed, the 1794 French edition of the Traité du gouvernement civil flagged the topicality of Locke’s ideas in the 1790s:

• 13 Keith Baker, “Transformations of classical Republicanism in Eighteenth-Century France”, The Journal (...)
• 14 A good introduction is provided by “Le républicanisme anglais dans la France des Lumières et de la (...)

17Second, picking up on Keith Baker’s insight,13 a number of recent studies have proved the vivaciousness of French republicanism in the age of Enlightenment and have mapped out its intellectual and political relations with English-language republicanism.14 This is also a channel through which a more radical idea of rights gradually gained ground in France, and one which is surprisingly absent from the book. In this scholarship, close attention has been paid to the circulation of republican ideas in print through translations and in the periodical press.

• 15 François Quastana, La pensée politique de Mirabeau (1771-1789) : “Républicanisme classique” et régé (...)

18Within these republican networks, the figure of the younger marquis de Mirabeau (Honoré Gabriel Riqueti de Mirabeau) stands out.15 Mirabeau is regularly quoted in On the Spirit of Rights as one of the main proponents of the “preservation regime” of rights in the revolutionary period. He was also, as Dan Edelstein reminds us, the son of a prominent Physiocrat, the marquis de Mirabeau, nicknamed “l’ami des hommes” and close to Mercier and Quesnay. Mirabeau fils thus appears in the book as a key link between the physiocratic discourse of rights (focused as it was on property) and revolutionary claims of a natural and imprescriptible right to liberty (p. 81). But Mirabeau’s long political career and his extensive writings and journalism which span the 1770s and 1780s cannot be limited to the transmission of physiocratic ideas. His reading and writing moved across several intellectual, political and religious traditions which he drew on to construct an increasingly scathing indictment of absolute monarchy. These traditions included Protestant natural law, the economic laissez-faire of the Physiocrats, Locke…. A truly cosmopolitan figure, Mirabeau supported Genevan exiles, translated works from the English and German (or had them translated) and moved in diplomatic circles. In Mirabeau’s case influence was always cumulative, and never exclusive. Mirabeau’s prolific writings and his journalism played a key role in building up political unrest against the French monarchy. Indeed, claims of natural rights figured prominently among the intellectual, political and rhetorical tools he employed and he gained an increasing audience in the years preceding 1789, but in the book, the diversity of influences and the cross-fertilisation between different ideologies falls victim to the prominent role given to the Physiocrats.