A French-American Dialogue: The Problem of Human Rights for Constitutional Government

In their youth, Americans learn that in 1776, with a “shot heard ’round the world,” theirs was the first country in history to be established on the basis of a Declaration of the universal rights of man. In France, school children learn that the first country to have this honor was theirs, in 1789. These harmless illustrations of the possible tension which exists between love of one’s own and love of universals may conduce to reflecting on the problematic character of rights, and on the bearing of this problem on the policy designed to secure them.

Since antiquity, reflections induced by this tension have given rise to diverging doctrines, not only with respect to means for resolving the tension but with respect to its very significance. Indeed, since the eighteenth century, consideration thereof has contributed to abandoning the idea that universal rights have any veridical significance whatever. Such abdication is found across the political spectrum of philosophy, beginning with Burke’s conservative critique, continuing through Bentham’s “Enlightened” utilitarianism, qualifying universal rights as “nonsense on stilts,” and extending to Marx’s scientific socialism and to Heidegger’s national socialism. More broadly, the abdication can be traced, in university departments of law, philosophy, or political science, to the influence of modern philosophies of science or of history.

Yet in recent years, not only movements for civil rights, but also the vast and terrible experiences of some of the cruelest tyrannies ever known, have reawakened intellectual interest in the idea of human rights. But on considering the most-cited authors associated with this renewal, for example John Rawls or Ronald Dworkin, one discovers, at the base of their thought, only a “sentiment” of justice and not a reasoned argument. Thus, observing the bicentenary of the Declaration of Human Rights recently provided an occasion for rethinking the meaning of these rights, by considering the thought of those who defended them at the time they were first proclaimed.

The study of these “original positions,” however, requires taking account not only of the universal spirit which they share but also of the diverging versions which distinguish them. In the United States, these differences within the movement for human rights were not marked by the same intensity and bitterness which divided the Montagnards from Girondins and Monarchiens. Yet such differences very nearly miscarried the constitutional project of 1787; and during the debates between Federalists and Antifederalists, they involved on competing sides the most eminent men in America. Moreover, these divisions within the United States and France extended beyond their shores and resulted in a dialogue between the two allies, the first nations to defend in their own names the rights of all men everywhere.

Turgot and Condorcet, for example, criticized the American version of separation of powers, which they deemed appropriate for containing monarchical authority but illegitimate when used for bridling the popular will. On the other side, Madison and Hamilton considered formal declarations of rights to be fitting under monarchical rule, but dubious for a constitutional democracy. Just as certain Americans shared the views which came to dominate in France, by the same token eminent Frenchmen took positions favorable to the American practice. In addition to the four men just mentioned, this transatlantic dialogue included such figures as Jefferson, Lafayette, Adams, Paine, Sieyes, Washington, Crevecoeur, Franklin, Chateaubriand, Morris, Saint-Simon, and Destutt de Tracy. And in their background one may discern the deeper but differing philosophical positions of those anticipating this new world order: for example, Locke, Montesquieu, Hume, and Rousseau.

To interpret the political issue of these exchanges, so different for the two countries, as due uniquely to differing historical conditions or to local relations of power, would lead to ignoring whether or not there are lessons to draw from reasons given at the time concerning the general problem: namely, what are the principles of right; and how do these principles bear on the question of political ends, or on the means of attaining them? Indeed, celebrating Declarations of universal rights while abstracting from the problem of means in historical application would give warrant, it seems, to Burke’s criticism, that such an idea alienates the judgment of its partisans from the prudence required for political practice. It suffices to mention in this respect the crimes committed during the war in the Vendee, where over 300,000 men, women, and children were slaughtered at the behest of the French Revolutionary Assembly in the name of the Rights of Man. Or, one may recall the plebiscitary use made by Hitler of the Wilsonian principle of a people’s right to self-determination; or Stalin’s claims of the people’s right to employment, with the result of establishing the unlimited power of the people’s defenders. Moreover, since Kant the distinction between principled judgment and prudence has had the effect of rejoining the idea of human rights to that of morality, but only to separate them both from deliberate attention to the “Machiavellian” practices of history.

Such a reconciliation of “norms,” in opposition to “empirical” questions, further obscures the reasons behind the differing ideas of rights. But in the midst of the recent bicentennials, observing the contemporary academic disjunction of normative and empirical theory might itself conduce to recalling the connection between the problem of political perception and that of the basis of rights. And this recollection may in turn permit a deeper grasp of the debates of 1787 to 1789.

In fact, within the philosophical tradition defending the idea of transhistorical principles, one may discern three modes of reasoning through which human things are perceived: science, practical reason, and aesthetics. And according to whichever mode is selected, human affairs will appear under profoundly altered lights. Whereas under the aegis of Enlightenment, academic perceptions of politics have been filtered through scientific method, the subsequent revolts against this movement, whether in the thought of Rousseau or in contemporary post-modernism, have led to interpreting humanity through the sensibility of aesthetic perception. And both of these methods of political perception derive from a repudiation of the classical mode, based on practical reason.

Corresponding to the three modes of perception are three philosophical traditions adhering to the idea of transhistorical rights; and each of these traditions has in turn traced radically different paths to constitutional government. To understand why, it is necessary first to understand what distinguishes the three modes of reason in question. Whereas scientific reason is concerned with things that cannot be other than they are, such as the invariable E=MC², practical reasoning and aesthetics deal with things that can be other. But while in elaborating their work both artist and physicist can combine excellence of conception even with baseness in character, a man of practical excellence cannot. An example of the latter is the judge, who cannot accurately perceive the cases before him if his deliberation is dominated by his passions or interests. All the more is this true, beyond the policy analyst, of the statesman who must discern the common good and the means to attain it. But it bears noting that the practical wisdom of the equitable judge or statesman seems to depend on a rare love of wisdom, surpassing within him any other desire.

While constitutional government refers to non-despotic rule, the meaning of such rule, and thus of what is rightful, alters with each of the three modes in question. In the classical tradition, for example, the political art is distinguished from the despotic by virtue of the difference, which is not merely “normative” but empirical, between a free human being and a slave. Unlike servile or dependent beings, one who is free, according to this tradition, not only possesses the capacity for deliberating well over questions of practice. He also has the strength of character to obey reasoned judgment, both in the face of another’s will or against the influence of his own desires. Ancient constitutionalism expresses, therefore, a paradoxical art: that of ruling free human beings. And obtaining in practice this manner of rightful rule depends in some measure on sustaining such dispositions of character and judgment not only in citizens, but in those who seek to perceive political things as they are.

By contrast, at the origin of modernity the idea of rights developed from the Machiavellian separation of ethics from politics. Partisans of Enlightenment thus maintained that “in the state of nature, no action can be called evil” and that men have a natural right to all that their power can acquire. Under this dispensation human rights supersede morality; and a constitutional government, limited to the task of protecting these rights, has no legitimate concern for educating the human soul. Corresponding to this view of constitutionalism, perceiving politics in terms of power relations makes the political amenable to interpretation according to methods of natural science governed not by the love of wisdom, but by an acquisitive desire to master nature for the relief of man’s estate. The separation between rights and ethics thus established in early modernity thereby expresses a fundamental break with the ancient tradition concerning both the principle of justice and the principle of perception.

Although, well before Kant’s “Copernican Revolution” in science, Jean-Jacques Rousseau sought a principle of perception and action to reconcile again morality with rights, their mutual quest represents not a redintegration of classical ethics but a novel idea of morality and constitutional rule, grounded neither in science nor in practical reason but rather in an aesthetic principle: the sentiment of humanité. Thus each of the three associated sets of ideas, of perception, of right and of constitutional liberty, is moved by a thoroughly distinct disposition. The emphasis in classical thought, on measured judgment as the condition of freedom, implies the concern to educate or refine the passions so that passion does not dominate and misguide the intellect. By contrast, the emphasis on freedom in early modernity promotes an impulse-seeking liberation from “taboos” or constraints on the passions. Finally, the aesthetic emphasis on humanité, or generalized compassion, elicits anew a moral impulse, but one now favoring sentiment to supersede “cold” reason and “interested” passions alike. The differences in 1789 among partisans of transhistoric principles of right and constitutional government thus reflect the multiple origins of these ideas in the course of their history. Uncovering the reasons informing their partisans may therefore serve to clarify contemporary convictions derived from this founding era.

Yet, at first glance, a comparison of the Declarations of 1776, of 1789, and of the Bill of Rights of 1791 suggests no significant differences in their contents. One may immediately observe, however, that in the United States, unlike what occurred in France, the Declaration of 1776 was not formally incorporated into the Constitution; and the subsequent Bill of Rights, contrary to the wishes of some, was placed not at the head of the Constitution but at its conclusion. Moreover with respect to the French Declaration of 1789, if one juxtaposes Article XVI on the separation of powers and Article VI on the general will, an ambiguity appears in the French text distinguishing it from the American version of separation of powers. Upon examination, these differences reflect more generally the differences among alternative versions of constitutionalism corresponding to the three modes of perceiving political things. And choosing among these modes bears indeed on the aforesaid problem concerning the relation of prudence to rights and concerning the tension between self-love and attachment to universal principles.

With respect to the ambiguity of the French text, one need recall that the doctrine of separating legislative from executive power equivocates over at least two competing bases of the separation: the principle of independence and the principle of specialization. The first principle signifies, for example, that a chief executive will not be appointed by the legislature, which in turn he will not be empowered to dissolve, and that members of one branch will not depend on the other for remuneration. By contrast, the principle of specialization means that members of the legislature and of the executive will be uniquely concerned with their respective functions and will not be involved in the tasks of other branches. The first principle corresponds to that of “checks and balances” derived from Montesquieu. The second, drawing from Rousseau, anticipates the modern parliamentary system. Article XVI of the French Declaration allows for either one of these principles, whereas the American Constitution seems clearly to adopt that of Montesquieu.

Although remote in other respects from Rousseau’s perspective, Condorcet anticipates, in his critique of American constitutionalism, a Rousseauist interpretation of Article XVI, particularly when this Article is associated with that concerning the general will. And yet Article XVI is doubly ambiguous, since even when juxtaposed to Article VI it can also be interpreted on the basis of principles expressed in the article Droit naturel (“natural right”) by Diderot in the Encyclopedia. This ambiguity, in effect, accommodates the rivalry in the Constituent Assembly between associates of Condorcet, the principle founder of the first French Republican Constitution, and associates of Robespierre, the Jacobin disciple of Rousseau. Nonetheless, whatever differentiates the Encyclopedists and Condorcet from Rousseau over the grounds of the general will, the very idea of this will refers to a principle of right differing radically from that implicit in the American Constitution.

This difference is clarified by examining the reasons for which James Madison, primary author of the American Bill of Rights, was opposed to placing this Bill at the head of the Constitution. According to Madison, if a declaration of rights is not first undergirded by a constitutional regime, such a declaration poses no more than a “parchment barrier” to despotic rule. But the founding of constitutional or non-despotic government requires, beyond the imposition of effective limits on the exercise of power, also establishing suitable conditions allowing government to be at once stable, competent, and energetic in accomplishing its tasks. Indeed, according to Madison liberty is no less imperiled by insufficient as by excessive governmental power. But an ill-conceived Bill of Rights risks promoting among the people a critical spirit that is either so waspish as to reduce popular government to abject incompetence, or else so demanding as to undermine all proper limits on power.

Since the American Founders sought to establish a popular regime respectful of human rights and also capable of accomplishing the quotidian tasks of politics, they aimed at integrating the principles of right with the requirements of practical reason. Unlike Condorcet, however, they did not consider that a synthesis of right and reason could be obtained by attaching to a declaration of rights a distribution of civil authority designed simply for the most efficient application of popular choices. Says Publius,

The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. It is a just observation, that the people commonly intend the Public Good. This often applies to their very errors. But their good sense would despise the adulator, who should pretend that they always reason right about the means of promoting it.

Thus, while Condorcet criticized the constraints imposed on popular will by the constitutional system of checks and balances, the American Founders were concerned with the fact that this will may issue not from a reasoned deliberation of the common good but rather from the competition of diverse ambitions and interests. The fact that a choice is widely popular or even general does not signify that it is wise or just.

“In a nation of philosophers,” says Madison, “this consideration ought to be disregarded. A reverence for the laws, would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato.” Whereas in a popular government the people are sovereign, nonetheless “the aim of every political Constitution is or ought to be first to obtain for rulers, men who possess most wisdom to discern, and most virtue to pursue the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous, whilst they continue to hold their public trust.” The controls imposed by the American Constitution to channel popular choice are intended to “refine and enlarge” this choice, to render it more deliberate or prudent than it might otherwise be when not determined above all by the love of wisdom. The Founders’ idea of prudence is thus clearly distinguished not only from the principle of legitimacy advanced by Rousseau and Kant but also from the idea of natural right found in the writings of Diderot and Condorcet.

Indeed, while differing from Rousseau’s aesthetic, the Encyclopedists’ thesis on the general will corresponds to the view that law must be formulated according to the universal criteria of scientific reason. If the law is expressed in universal or non-contradictory form, it cannot err. Since such a formalism corresponds to the thesis that human beings are equal in their natural freedom or their autonomous wills, the differences among human beings are thereby ignored in favor of what is universal or common among them. By dint of this universalism, whenever a law is expressed in general terms, applicable equally to all, it is “legitimate” or rational. Accordingly, under such a constitutional system there is no justification for resorting to bicameralism, or to checks and balances, to restrain the general will. Moreover, under such a constitutionalism there is no place in the Code Civil for the law of equity, something sometimes keenly noted by those having to deal with the unvarying rules of its civil administrators.

Although the American Declaration of 1776 adumbrates the universalism of 1789, by affirming that “all men are created equal” and that “they are endowed by their Creator with certain inalienable rights,” nonetheless the Declaration of 1776 also refers in the context to what “prudence . . . will dictate” and to what “all experience hath shown.” Thus, when the American Founders maintain that all men are created equal in their rights, this does not mean that, in establishing a regime to secure these rights, one should ignore inequalities among men in their virtues and defects. Each independently of birth or social station equally deserves justice; but the content of justice varies, again independently of birth or social station, according to what each in particular deserves.

Unlike scientific rationalism, therefore, “prudence will dictate” that, when elaborating a Constitution, one take account of the virtues and weaknesses or defects diversely found among men. This implies that separation of powers be conceived, not on the basis of a functional analysis of political institutions, but on the basis of a consideration of human psychology or nature. And this reflection requires that the formal logic of legal science be displaced by the prudential logic of practical reason.

Although, says Madison, there are “qualities in human nature which justify a certain portion of esteem and confidence” and “republican government presupposes the existence of these qualities in a higher degree than any other form,” nonetheless the establishment of such a government does not betoken the disappearance of contrary qualities.

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is no doubt the primary control on the government: but experience has taught mankind the necessity of auxiliary precautions.

Since ambitions and interests always bedevil political disputes, public authority must be divided so as to conserve, in the midst of such contention, the possibility for a more noble or reasonable disposition to influence events. But as Martin Diamond has shown, a simple, functional separation of powers will not prevent a majority, organized in favor of unjust or unreasonable policy, from taking simultaneous control of the legislative and executive powers. To frustrate such a contingency, the American Founders separated the civil powers in such a way that the bases of the presidential and the legislative majorities would always differ. In addition to bicameralism, the staggered system of elections and the differing terms of office are examples of this strategy for protecting minority rights under majority rule. But more important for this strategy is the attempt to attenuate the strength of political passions by the multiplication of the interests to which they are attached. And accomplishing this required a diversification of the economy, then overwhelmingly agricultural, by inducements favoring the development of commerce.

From this strategy derive the Constitutional protections of patent rights, promoting technological variety, and also the security granted to private property and to contracts, as well as the Constitution’s elimination of tariff barriers among the states. Given the aim of multiplying “factions,” or autonomous interest groups, the inducements promoting commerce also require maintaining multiple foci of authority, as provided by federalism in the United States. If real power were concentrated in a single place, as the lone objective for ambitions, then interest groups would be inclined to abandon their autonomy and forge permanent alliances aimed at obtaining the sole power at hand. Conversely, dispersing political power into diverse localities contributes to maintaining the mobile autonomy of influence-seeking factions that a commercial economy begets. Through “these inventions of prudence” the American Founders deemed that: “in the extended republic of the United States, and among the great variety of interests, parties and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good . . .”

Yet, to succeed in preventing bitter struggle among large, self-interested movements or classes, this strategy requires eliminating obstacles to equality of individual opportunity while simultaneously opposing policies which favor equality of result. In the first instance, inequality of opportunity fosters a class consciousness among those who have no hope as individuals for ameliorating their conditions. In the second instance, a policy of equality of result extinguishes hope for amelioration through individual endeavor, and thus obstructs the multiplication of interests required by the Constitutional strategy. Thus, the American idea of equal rights ultimately relies on a political judgment apt at properly discerning where equality is right and where it is unjust.

Ostensibly, this solution seems derived from writings on the commercial republic by John Locke, Montesquieu, Hume, and Adam Smith. According to these authors, if the acquisitive spirit is freed from ethical constraints and channeled by well-conceived institutions, it can supply “the defect of better motives” in securing the rights of men. In this way, the tension between self-love and love for the common good can be suppressed, but seemingly at the price of nobler, classical ends of justice.

Almost from the moment of its appearance, 40 years prior to the debates of 1789, this solution to the problem of political economy elicited the well-known objection of Jean-Jacques Rousseau: “Ancient politicians incessantly talked about morals and virtue, those of our time talk only of business and money.” And this voice, isolated in 1750, produced such an echo that Rousseau would subsequently be dubbed “The Legislator of the French Revolution.”

The Rousseauist critique of “bourgeois society” has since had the effect of promoting the classification of Madison, together with the Encyclopedists and Condorcet and modern liberalism generally, under a common rubric: defenders of a society of egoists, marked by indifference to the exploitation or suffering of the unfortunate. And this critique accompanies a diverging idea of human rights, destined to confront the foregoing vision. According to Rousseau, the Enlightenment, as defined by the preceding perspective, undermines by its skepticism the civic spirit required for effectuating the rights it promotes. Instead of adhering to classical prudence or to scientific rationalism, Rousseau seeks, for “completing” men, “to perfect (their) reason by sentiment.”

Yet despite the differences separating Rousseau from the Enlightenment, Rousseau’s project displays an agreement with the latter, in opposition to the classical tradition, with respect to subordinating reason to the non-rational. As with the Encyclopedists, for Rousseau as well, self-love and not love of universals is the point of departure for establishing the ground of practice. Nonetheless, the project “to perfect reason by sentiment” proceeds from a different idea of the “function of the observer and the philosopher,” redefined henceforth as he “who knows the art of sounding hearts while working to form them.” In Rousseau’s view, the philosopher becomes a poet, and his function that of the creative founder, the Legislator. Differentiating himself thereby from the Encyclopedists, and undertaking his “sounding” among the passions and interests which divide men, Rousseau seeks a sentiment which can unite them.

According to him, the primacy of moral sensibility over judgment can be achieved in political dispositions by a synthetic composition of several elements of the modern consciousness: notably, dogmatic skepticism, utilitarianism, compassion, egalitarianism, and self-love (amour-propre). The first two elements constitute the intellectual horizon of the Encyclopedists. With a novel version of egalitarianism, Rousseau adds to this horizon of consciousness the elements of pity and of pride (amour-propre). Thus, by his literary power Rousseau seeks to duplicate what was formerly achieved by the Bible or the Encyclopedia, to shape the minds of intellectuals who in turn would form statesmen and citizens.

Rousseau’s starting point is identical to that of the Encyclopedists: the rejection of philosophy, or “metaphysics,” in favor of dogmatic skepticism. Indeed, if wisdom is impossible, so is its pursuit. By virtue of rejecting philosophy, or the quest for wisdom, the Enlightenment reveals its vision instead to be an emanation of the imagination. Yet, while wisdom is thus conceived to be impossible and men consigned to live under illusions, according to Rousseau this conclusion does not imply that within the Cave there can be no free regimes. Democracy does not depend upon Enlightenment, and modern skepticism, far from undermining the civic spirit, might even serve it.

Among the greatest number, the propagation of skepticism leads, in the first instance, to utilitarianism, or to an incapacity to take seriously ideas which do not refer to what can be sensed and which are not “useful.” The appearance of an open mind with respect to the “empirical” masks its closure with respect to examining the premises of its perceptions. Like Emile, the modern citizen must have a “precise and limited” mind. In the moral order, his empirical “inductions” indeed lead at first to Epicureanism. Yet, contrary to the vulgar or reductionist Epicureanism of the Enlightenment, Rousseau accentuates, with respect to the principles of human action, the distinction between pleasures or afflictions associated with sensation and those associated with sentiment. And on the basis of this distinction, Rousseau finds in the sentiment of pity an epicurean principle which unifies men beyond the interests dividing them.

Consistent with the modern rejection of classical teleology, Rousseau places less emphasis on pleasure than on the painful impression which images of suffering make on popular sensibilities. The sufferings from which one shrinks, or a negation, unifies men in the sentiment of humanity, or of pity “generalized and extended to the whole of mankind.” Yet in fact, while founded on a negation, pity is not devoid of pleasure. “Pity is sweet because, in putting ourselves in the place of the one who suffers, we nevertheless feel the pleasure of not suffering as he does.” The image of suffering bestirs pity to the extent that, when not suffering oneself, one can imagine oneself suffering like the other. Thus pity, or the sentiment of humanity, represents a projection by the imagination of love for oneself.

Indeed, how do we allow ourselves to be moved to pity, if not by transporting ourselves outside of ourselves and identifying with the suffering animal, by leaving, as it were, our being to take on its being? We suffer only so much as we judge that it suffers. It is not in ourselves, it is in him that we suffer. Thus, no one becomes sensitive until his imagination is animated and begins to transport him outside of himself.

To perfect this alienation, the poet-legislator must therefore consistently express himself in tones which evoke the image of suffering humanity.

[W]e are attached to those like us less by the sentiment of their pleasures than by the sentiment of their pains, for we see far better in the latter the identity of our natures with theirs and the guarantees of their attachment to us. If our common needs unite us by interest, our common miseries unite us by affection.

To awaken this sentiment, therefore, all obstacles to the capacity for identifying with another, such as those posed by class distinctions, must be eliminated. The sentiment of humanity, as a principle of right, enjoins an egalitarian politics. But this requirement no less compels dissimulation of the rare and specific happiness of the natural man who alone perceives correctly. “The appearance (aspect) of a happy man inspires in others less love than envy. They would gladly accuse him of usurping a right he does not have in giving himself an exclusive happiness; and self-love (amour-propre) suffers, too, in making us feel that this man has no need of us.” Since the image or the idea of another’s superiority stirs envy, the pride or amour-propre of the common man thus paradoxically becomes a guardian of the egalitarian spirit. “Let us extend amour-propre over other beings. We shall transform it into a virtue, and there is no man’s heart in which this virtue does not have its root.”

Reconciled with the sentiment of humanity by way of egalitarianism, the sentiment of amour-propre shares the pleasures accompanying the former sentiment and augments these pleasures by those derived from having a “favorable witness of oneself.” Thus composed, the critical spirit of the democratic consciousness extinguishes at the same time the honor of classical nobility and the interestedness which moves the Enlightenment. Unlike Madison’s strategy for securing the rights of man, that of Rousseau and those he inspires consists largely in the attempt to raise this democratic consciousness. Yet, since this consciousness rests on sentiment, its evocation requires a new rhetoric, that of “the language of signs,” of images or symbols, of music.

One of the errors of our age is to use reason in bare form, as if men were only mind. In neglecting the language of signs that speak to the imagination, we have lost the most energetic of languages. The word’s impression is always weak, and one speaks to the heart far better through the eyes than through the ears.

The poet-legislator conducts the citizen to take pleasure in alienating his nature through the sentiment of humanity, the principle of judgment which “perfects” political reasoning.

When Kant proclaimed Rousseau “the Newton of the moral universe,” he perceived the revolution that Rousseau had introduced into judgments of good and evil. This revolution prepared the ideas on human rights later developed by Kant’s critical philosophy, which by abstracting from psychology is faithful to the Rousseauist premise that the citizen must forget his nature. However, abstracting from the origins also obscures the composition of the critical spirit itself, while at the same time leading to a misperception of its consequences.

Certainly, unlike the nihilistic results of the Enlightenment, the pleasures of a “favorable witness of oneself” provide critical philosophy with an anchor to brace the convictions underlying its moral or political judgments. Composed of amour-propre, refined Epicureanism and dogmatic skepticism, the sentiment of humanity responds with indignation to any image of manifest oppression or injustice. Yet, as the principle of practical judgment, this sentiment contains no measure beyond itself. Thus, under the impression caused by images of “inequality,” the moral indignation fomented by the sentiment of humanity would hardly be disposed to deliberate or seek after the veritable nature of an apparent injustice. Moreover, with respect to those who are so disposed, whenever the result of their deliberation does not seem humane, one would be inclined, not to seek after their reasoning, but to charge them with “insensitivity.” In this way amour-propre, linked to the sentiment of humanity, conduces to a democratic version of the disdain held by the noble towards vulgarity. “These diverse impressions,” says Rousseau,

have their modifications and degrees, which depend on the particular character of each individual and his previous habits. But they are universal and no one is completely exempt from them. There exist later and less general impressions which are more appropriate to sensitive souls.

Since “sensitive souls” and “bourgeois” souls will not perceive human things in the same way, there could not really be a dialogue between them. The same applies to their relations with those disposed to deliberate prudently over public affairs. And from these differences derives the misunderstanding among various partisans of human rights.

Condorcet fell victim to it. In his venture to make politics into an objective science, he ignored the power of another sensibility than that of self-interest. Disdaining in his calculations the “inventions of prudence” which explained the separation of powers, he suffered with the Vendee the consequences of his innocence, as soon as the Assembly produced a majority ready to exercise differently its unchecked power.

It was not egotism that led Madison to support the separation of powers by creating a commercial republic. Rather, it was the concern to attenuate the force of passions which differences provoke among human beings. Conceived by another moderation than that nurtured by Rousseau against vulgar Epicureanism, Madison’s commercial republic is not an end in itself, but a prudential means for securing justice or the common good. It remains to be seen whether this different moderation can still attenuate the hostility it provokes among the partisans of humanity, the “new class” anticipated by Rousseau. However this may be, the compromises at the time made by Madison with the slave states did not signify on his part abandoning the principles of right. Rather, the compromises were so conceived as to induce the slave states to adhere peacefully, against their interests, to a regime dedicated to these principles and destined, through commercial diversification of the economy, to place the despotism then established in the South “in course of ultimate extinction.” Deferring neither to puritanical rigidity nor to epicurean weakness, Madison’s design represents a synthesis of prudence and the principles of right. The encouragement provided by the American Constitution to equality of opportunity, combined with the barriers it places to equality of results, correspond to the constitutional protection within the regime of the practical reason which founded it.

The provisional failure of this project, culminating in the tragedy of the Civil War, reveals nonetheless that the constitutional protection of political virtues does not suffice to produce them. Madison himself had no illusions thereon, as is shown by the significance he attached to a liberal and civil education. Unlike other views on human rights, the Madisonian synthesis of rights and prudence derives finally from another source than Montesquieu or Hume, Locke or Voltaire. An attentive reading of The Federalist reveals that the practical reason it manifests is founded not on a passion for security but on a concern for the disposition of soul requisite to a just or reasonable deliberation of public affairs.

The support that Madison subsequently gave to the Revolution of 1789 is confirmed by his acceptance of honorary French citizenship. He thereby considered that the Declarations of 1776 and of 1789 illustrate the same, universal principle: that rights are based not on class or birth, but on the particular merit of each individual. But his idea of this universal principle, associated to that of practical reason, derives from a mode of thought antecedent to that which determined the Enlightenment and the Revolution in France. Contrary to the modern view, according to which wisdom and thus philosophy are impossible, Madison merely accentuated the probable absence of both among those involved with practical affairs. But this absence does not signify that one may forget the permanent need for qualities which are wanting. On the contrary, this signifies that in elaborating the institutions of a non-despotic regime, one need take into account the absence of such qualities, and with a view to obtaining them to a degree that is plausible.

Such a synthesis of prudence and right indicates a different political science from that which inspired the principles of 1789, and which since has prevailed in American and European universities alike. For the Founders meeting in Philadelphia, the best guarantee for the rights of man; or for liberty and equality properly understood, depends not simply on the formulation of Declarations thereof, but particularly on the sound establishment of constitutional government. And such non-despotic rule depends in turn, not on a generalized humanistic amour-propre lacking any superseding measure, but rather on the recognition that ordinary men, while invested with rights, are neither gods nor angels. Beyond the confines of history, the rational grounds for human rights depend, it seems, on recollecting the wisdom that men lack and need, and on a recognition of the unpredictability of its presence in politics.

By

Terence E. Marshall is Maître de Conférences at the University of Paris X-Nanterre. Presented at the American Enterprise Institute in December 1993, this essay will also appear, with critical apparatus, in Ralph Hancock and Gary Lambert, eds., The Legacy of the French Revolution (Rowman & Littlefield, forthcoming).

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