Christian Human Rights in the French Revolution
This essay explores the early Catholic response to the concept of human rights. It is widely assumed that the Catholic Church opposed human rights talk in the wake of the French Revolution, and only slowly came around to accepting it in the twentieth century. However, a more systematic analysis of Pius VI’s stance toward the French Revolution reveals that he approved of human rights, but had a more Thomistic understanding of them than what was found in the French Declaration. The Vatican’s embrace of human rights in the 1930s should accordingly be seen as a continuity of more long-standing practices.
Catholic Church, human rights, French Revolution, Enlightenment, neo-Thomism
Did the Catholic Church oppose human rights during the French Revolution? The commonly accepted answer is “yes,” and that this antagonism typified most of the Vatican’s “modern” attitude toward rights.1 No less than a pontifical commission recognized, in 1975, that the Church had not always “defended and promoted the rights of the human person with enough clarity of energy,” in reference to the revolutionary age.2 Samuel Moyn has accordingly described Pius XI’s embrace of human rights in his 1937 encyclical, Mit brennender Sorge, as marking “a novel and fateful departure in the history of political discourse,” given that “the Catholic Church had previously rejected the hitherto secular and liberal language of human rights.”3
The critical assessment of the Church’s stance on human rights during the French Revolution largely rests on an encyclical published in April 1791 by Pius VI, Adeo nota. Here he qualifies the human rights (jura hominis) [End Page 411] proclaimed by the French as “contrary to religion and to society (religioni et societati adversantia).”4 As I argue in this article, however, these were not Pius’s last or only words on human rights. In fact, closer readings of this and of a prior encyclical, alongside other efforts by the Curia during this period, reveal that, on the contrary, the Church was fully in favor of human rights—just not those that the French had declared. This revision of the Church’s stance reveals how it retained a Thomistic perspective on human rights throughout the modern period, and that this perspective, far from being antithetical to rights, may in fact have been what encouraged the Church to embrace them later on.
Indeed, when Jacques Maritain defended human rights in the early 1940s as “a heritage of Christian and classical thought,” this was not “a sleight of hand,” as Samuel Moyn suggests in Christian Human Rights.5 The genealogy that Maritain retraced—not “to the philosophy of the eighteenth century,” but rather “to Grotius, and before him to Suárez and Francisco de Vitoria; and further back to St. Thomas Aquinas”—was more than an invented tradition, opportunistically chosen to overlook the influence of the French Revolution. Neo-Thomism—that is, the revival of Thomas Aquinas’s theology, particularly by the Spanish school of Salamanca—had fully integrated human rights.6 Vitoria (1492–1546) defended the natural property rights of Native Americans; for Francisco Suárez (1548–1617), property was similarly a subjective ius ad rem (right to an object).7 It was this neo-Thomist tradition that the papacy reaffirmed during the French [End Page 412] Revolution, and it would be the same general philosophy of rights that it defended in the decades leading up to the Universal Declaration of Human Rights.
To be sure, disputes abounded about the specific content of our rights, and whether we retain (all of) them in political societies, as opposed to handing them over to the state.8 But from Aquinas onward, the rights that all humans held from nature always included the fundamental principle of self-preservation: “every substance by nature seeks to preserve itself,” Aquinas argued, “and . . . means that preserve our human life and prevent the contrary belong to the natural law.”9 Here the human right to self-preservation is expressed indirectly, as a duty to obey the law of nature. While this formulation perpetuates a classical, Stoic outlook, it does not require any major intellectual revolution to recast one person’s duty as another’s right.10 As Brian Tierney and others have argued, rights and duties are inherently correlative.11 By the time the Spanish neo-Scholastics revisited Thomist theories of natural law, they slipped fairly seamlessly between “objective” arguments about natural law and “subjective” definitions of individual rights.12 Domingo de Soto, for instance, considered self-preservation as the “the right that overrides every other right . . . it can never be ‘trumped,’ ” as Annabel Brett has argued.13 This slippage was facilitated by the fact that, in Latin, the same word (ius) was used to refer both to a body of laws and a subjective right (a double meaning still found in the French word “droit”—see the expressions le droit civil and mon droit naturel). Arguments by Vitoria, Suárez, Soto, and others (including the notorious defender of tyrannicide, Juan de Mariana) would be picked up [End Page 413] by the better-known Protestant natural lawyers of the seventeenth century (from Grotius to Pufendorf), but as we will see, they also persisted in Catholic theological and ecclesiastic texts.
Many rights that we enshrine today as fundamental human rights were of course not to be found in these neo-Thomist (or, for that matter, Protestant) theories of natural law. But the fact that we have expanded human rights in modern times or that we have a different basis for arguing around them does not mean that the concept of human rights is new.14 This distinction is crucial for understanding the modern history of the Church’s attitude toward human rights. The Church objected (and still objects) to specific rights being recognized as human rights, but was never opposed to the concept of human rights per se. This becomes evident when we explore the particular issues that Pius VI raised in the 1790s.
I. PIUS VI AND THE DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN
Let us begin with the encyclical that provides so much fodder for the narrative of the Church’s opposition to the idea of human rights at the time of the French Revolution. A first point to keep in mind is that the primary target of the encyclical Adeo nota was not the Declaration of the Rights of Man and of the Citizen, which had been approved by the National Assembly a year and half earlier (in August 1789). It was rather the political disturbances in the papal states of Avignon and the Comtat Venaissin, where revolutionary sympathizers sought to impose the French civil constitution of the clergy.15 They also agitated to place their territory under French sovereignty. The Assembly in Carpentras signaled its desire to join the French state by voting to adopt the Declaration of Rights in June 1790.16
It was in reference to this particular vote that Pius expressed his disfavor of the French Declaration. The characterization of its contents as contrary to religion and society comes as an aside in his broader attack of the [End Page 414] Assembly’s vote as illegitimate. But the topic of the Declaration does not resurface anywhere else in the encyclical. It is accordingly difficult to know exactly what to make of Pius’s comment. While clearly negative, it does not betray a hostility to the idea of human rights in general. Indeed, elsewhere in the text, he alludes favorably to “the most sacred rights of nations” (sanctiora gentium jura).17 This appeal to ius gentium, the law of nations, suggests that the pope was comfortable with the natural law framework out of which the concept of human rights itself evolved—and also that he did not view this framework as antithetical to rights, even if the rights in question here do not belong to the individual but rather to a community.
The thrust of Pius’s criticism of human rights becomes clearer when we consider comments he had made a month prior, in the encyclical Quod aliquantum (March 10, 1791). Addressed to the cardinal Dominique de la Rochefoucauld and the archbishops and bishops in the National Assembly, this letter sought to offer some guidance on how they should react to the civil constitution of the clergy (approved by the Assembly on July 12, 1790). Pius was deeply disturbed by the civil constitution, yet hesitated to condemn it fully—after all, it had received royal sanction.18 But the pope could not accept that a temporal power claimed authority over the Church’s spiritual sovereignty. Such drastic overreach could only stem, he reasoned, from the Assembly’s insistence that it was a right “of a man in society to enjoy any kind of liberty [omnimoda libertate]” in religious matters. Pius was referring here to articles 10 and 11 of the Declaration of Rights, which guaranteed, respectively, that “no one shall be bothered on account of his opinions, including his religious views” and that “the free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.”19 From the Church’s perspective, however, it was totally [End Page 415] “insane” (inanius) to proclaim liberty “without any consideration of reason” (ut nihil rationi tribuatur). Liberty was not license, and could only be genuine if it was reasonable. This was particularly true of rights preserved in society, though Pius took the Aristotelian (and Thomist) view that nature destined humans for social life (naturare inductione in societatem communionemque coierunt). To determine human rights, he concluded, one cannot start from the principle of total liberty, but rather from the Stoic-Thomist rule to live life in accordance with reason (vitamque suam ad rationis).20
As this rapid summary of Quod aliquantum makes clear, Pius was not opposed to human rights per se, only to the manner in which the French had interpreted and declared them. No doubt there were other aspects of the Revolution that disturbed him as well: he rejected the revolutionary theory of national sovereignty, for instance, repeating many times (on Paul’s authority) that all power comes from God, and so kings must be obeyed. But the pontiff did not oppose the French Revolution en bloc, and insisted that he did not want a return to the old regime.21 In its beginnings, he even found things to praise, such as the Revolution’s initial efforts to “reduce the burdens of the people” (populorum levanda onera).22 The Declaration only drew his ire to the extent that he saw its scope extend to spiritual matters over which the National Assembly should have no say.
But the best evidence that Pius remained favorably inclined toward human rights, at least in his more “rational” expression, can be found in his involvement in, and praise of, another publication, Nicola Spedalieri’s De’ diriti dell’uomo (The Rights of Man, 1791). Spedalieri, a priest and professor, received a benefice in St. Peter’s from the pope in 1784.23 He does not appear to have undertaken his study of human rights coincidentally: both the timing of this work, and Spedalieri’s position, make it likely to have been the Vatican’s semi-official response to the French Declaration [End Page 416] of Rights.24 It proved to be a risky gamble: Spedalieri’s book set off a firestorm of criticism. But what raised ecclesiastic eyebrows was not his defense of human rights; rather it was his justification of tyrannicide: “it is lawful for anyone to kill a Prince,” Spedalieri affirmed, drawing on the authority of none other than the infamous Juan de Mariana, who had justified the assassination of Henri III as tyrannicide.25 Despite this controversy, Pius himself celebrated the work, allegedly asserting, “For a long while rulers have been asking quid est papa. Your book will teach them quid est populus.”26
In Spedalieri’s work the pope would have found a discussion of human rights more to his liking. The first right that Spedalieri defended, following the Thomist tradition, was that of self-preservation; the second was a right to self-perfection, in accordance with reason; and the third, a right to property.27 Against Hobbes, he insisted that a right is only a power “conforming to reason,” and so endorsed a fairly Lockean theory of natural property rights based on labor. He further affirmed a right to liberty, defined as “doing everything that concerns the rights to self-preservation, self-perfection, and property,” and the liberty “to think, or be the judge of what is said.”28 And critically, he endorsed a right to self-defense.29 These were the human rights we enjoyed in accordance with reason; and due to the “natural equality of the human condition,” they were universal.30 Spedalieri joined to this list of rights a number of duties, insisting that the two go hand-in-hand.31 Here he explicitly follows Pufendorf,32 whose natural law textbook was entitled De officio hominis et civis juxta legem naturalem, or “On the Duty of Man and of the Citizen According to the Natural Law” (1673). [End Page 417]
Spedalieri also took pains to distinguish the rights he had in mind from those proclaimed by the French. He criticized article 10 of the Declaration of Rights as “insane” (insensate), since it granted “unlimited toleration” in religious matters—precisely the same objection Pius had made in Quod aliquantum.33 And Spedalieri did not stop there, pointing out how, bewitched by the philosophes, the French revolutionaries had placed their Declaration under the aegis of the Supreme Being, rather than Jesus Christ.34 Clearly, they had abandoned Christianity and were promoting deism, even atheism!35 By contrast, Spedalieri argued, the surest safeguard of human rights lay not in such dubious state declarations, but in the teachings of Christianity. And what did the doctors of the Church teach, other than that “the measure of a right should always be reason”?36 While Spedalieri also embraced Enlightenment concepts of happiness and sensationalism, his understanding of human rights and natural law remained firmly rooted in a Thomist framework.37
A more detailed reconstruction of the Vatican’s views on human rights thus contradicts the received wisdom that the Church opposed them in 1789–91, and hints instead at a much greater and longer continuity in Catholic doctrine. To be certain, the pope was in a delicate position at the time: given the widespread identification of les droits de l’homme with the French Revolution, it was difficult to wrestle this doctrine away from the French while also protesting their reorganization of the clergy. It is thus easy to see how historians could have missed the subtlety of Pius VI’s position. At any rate, even if the Church did not loudly promote human rights during the revolutionary decades, it certainly did not turn against the idea.
II. THE FIRST ESTATE AND THE DECLARATION OF RIGHTS
Just how widespread was this acceptance? Did the Curia alone harbor a curious fondness for human rights, or was this appreciation baked deeper into Catholic doctrine? One way to assess the clergy’s attachment to rights [End Page 418] is to examine the discourse of the French First Estate around the Declaration of Rights. While this approach cannot shed light on the attitudes of all French clergymen, it does reveal that most elected members of the First Estate were generally supportive of human rights, and did not oppose their expression in the Declaration itself.
Before the Revolution broke out, the language of human rights was already current in clerical circles. At the close of the Assembly of the Clergy, in the summer of 1788, the archbishop of Narbonne, Arthur Richard Dillon, celebrated the king for having granted civil and legal rights to Protestants with the Edict of Versailles (1787): “We will bless Your Majesty for having ended the stunning contradiction that fortified laws against natural rights,” he declared.38 This edict continued to be celebrated as a milestone in the Cahiers de doléances of the clergy: “We are far from ignoring the imprescriptible rights of nature that our errant brothers possess,” wrote the first estate of Beauvais.39 The clergy also invoked human rights in support of other reforms. Their cahier from Caen lambasted the excessive taxes that “violate all the rights of men at once,” and the clergy of Clermont-en-Beauvaisis denounced lettres de cachet as violating “the most sacred of natural rights.”40 Underpinning some of these assertions was the old doctrine of conciliarism: “The clergy also wish to see the return of synods, provincial councils, and a national council,” wrote the first estate of Caen, a demand that many other clerical cahiers would echo.41 This conciliarist note points to the lasting influence, in French circles, of such sixteenth-century neo-Thomists as Jacques Almain, who continued to be read and cited, notably in Jansenist circles.42
During the initial debates at the National Assembly, the clergy occasionally expressed some concerns about the desirability of declaring [End Page 419] rights.43 The bishop of Auxerre, Champion de Cicé, expressed the view that “this declaration is currently useless . . . we must begin by establishing laws that bring people together, before telling them, indistinctly, as in the United States: you are equal.”44 But his opposition was directed only toward the Declaration’s timing, not its existence or content. Even those clergymen who came down more strongly against the Declaration did not express hostility toward the idea of human rights: hence, the bishop of Langres, César-Guillaume de La Luzerne, opposed the motion to declare rights, arguing that the proper place to discuss rights was in books (“My opinion is not that we should keep the people ignorant; but I would have us enlighten them by books, not by laws or the constitution”).45 These bishops were not alone in their trepidations about the Declaration; plenty of members of the Second and Third Estates shared their concerns.
A somewhat more distinctive reaction of the clergy concerned the attempt to add duties to the Declaration of Rights.46 Hinted at by various members of the First Estate, it was the abbé Henri Grégoire who made this demand most forcefully: “It has been suggested that you place at the head of your constitution a declaration of the rights of man and of the citizen. Such a work is worthy of you; but it will be imperfect if this declaration is not also one of duties.”47 This parallel emphasis on duties was viewed by other clergymen as a way to incorporate religious tenets in the Declaration. The bishop of Chartres, Jean-Baptiste-Joseph de Lubersac, warned that,
If a declaration of rights is needed, there is one pitfall to avoid. We risk inflaming egoism and pride. The flattering statement of rights must be carefully managed; it should be accompanied by that of duties, which would serve as a corrective. It would be suitable for a number of religious ideas, nobly expressed, to figure at the head [End Page 420] of this document. Religion, to be sure, should not be incorporated into political laws; but it shouldn’t be excluded.48
The demand to list duties alongside rights was not merely a ploy to stymie attempts at producing a declaration. Pufendorf’s textbook, in which many deputies at the National Assembly would have learned about the subject, had emphasized duties over rights.49 Its title echoed Cicero’s De Officio, a text that was required reading for every schoolboy, and which tied respect for, and knowledge of, natural law with religious ceremonies and duties.
More broadly, though, the deputies were explicitly stressing the correlative nature of rights and duties, one of the principles of rights theory today.50 Grégoire made this very point in his initial plea: “Rights and duties are correlative; they are parallel to one another; we cannot speak of the former without the latter; just as they cannot exist independently from each other, they present ideas that contain them both.”51 Of course, this same argument could be turned against Grégoire’s proposal, as it was by the marquis de Clermont-Lodève: if rights and duties are joined at the hip, then it would be redundant to list both (“The title should simply announce a declaration of the rights of the citizen, not duties. The word citizen implies a correlation with other citizens, and this correlation entails duties”).52 Again, there was nothing to indicate that the clergy’s push to insist on duties alongside rights betrayed a deeper antagonism toward the idea of rights per se. What’s more, their insistence was supported by many members of the other two estates.
Spedaleri had chided the French for addressing the Deity as the [End Page 421] Supreme Being in the preamble to the Declaration, but the irony is that this phrase was inserted at the express bequest of the bishop of Nîmes, Pierre Marie-Magdeleine Cortois de Balore. With the support of many other members (from all three estates), he insisted, “When we make laws, it is pleasing to place them under the aegis of God.”53 The original draft preamble, written by the comte de Mirabeau’s comité des Cinq (which included the bishop of Langres in its number), had simply concluded, “The National Assembly recognizes and proclaims the following rights of man and of the citizen.” Rather than revealing the dangerous influence of deistic philosophes, the addition of the clause “in the presence and under the auspices of the Supreme Being” was intended to place a religious stamp on the Declaration.
The only moment when the clergy genuinely seemed to break ranks with the rest of the Assembly occurred during the debate over article 10—one of the two articles that Pius later singled out for disapproval. As they had throughout the debates, the Assembly took as its point of departure the draft by the sixth bureau. The discussion of articles 16 and 17 proved to be the most controversial of the entire declaratory process.54
Art. 16. Because the law cannot condemn hidden crimes, it must be supplemented by religion and morality. It is accordingly essential, for the good of society, that both be respected.
Art. 17. A public cult is required to maintain religion. Respect for this public cult is indispensable.55
The major bone of contention concerned the proclamation of a “public cult.” The clergy naturally expected this cult to be Catholicism. Even Charles Maurice de Talleyrand-Périgord, the irreligious bishop of Autun, assumed as much, though he deftly suggested postponing the issue (“It is there [in the Constitution] that the sacred and saintly words of Catholic [End Page 422] religion should be pronounced”).56 Some arch-liberals, following Mirabeau, would have nothing to do with this argument, and did not want religion even to be mentioned in the Declaration. Many members of the clergy expressed the view which Spedalieri would later defend, namely that religion was the true basis of human rights. The bishop of Clermont, François de Bonal, declared, for instance, that “the principles of the French Constitution depend on religion as their eternal basis.”57 Others simply wanted the exercise of religion to be defended, with the conservative abbé Jean-François-Ange d’Eymar observing, “Religion is man’s duty; but he has a right to worship peacefully . . . this must be mentioned in the Declaration of Rights.”58 In the end, the Assembly followed Talleyrand’s recommendation and punted on the question of a culte publique; its resolution, the civil constitution of the clergy, would ultimately become the breaking point between Paris and Rome. For now, the deputies settled instead on the minimalist proposal by the comte Boniface de Castellane: “No one should be bothered for their opinions, including religious views.” But again it was a bishop, Jean-Baptiste Gobel, who proposed the rest of this article’s wording (“provided their manifestation does not disturb the public order established by law”).59 While this qualifier could be read as restricting the right to freedom of religion, it is telling that it does so in the secular language of law and order, and not by imposing any theological constraints.
The other article that Pius objected to was the following one, on the freedom of expression. The deputy who proposed the winning language of article 11, the duc de La Rochefoucauld-d’Enville (who, with Benjamin Franklin, had previously published a French translation of the American state declarations), presented its purpose as a defense of publishing: “It is what destroyed despotism; it is what previously destroyed fanaticism.”60 But what La Rochefoucauld depicted as ancient history (the destruction of fanaticism) was a very vivid memory for the clergy. The bishop of Amiens, Louis Charles de Machault d’Arnouville, warned against such unlimited [End Page 423] freedom of expression: “How many attacks has religion suffered from that were caused by licentious writing!” To protect the sanctity of religious dogma, he proposed an amendment, “for the conservation of morals and the integrity of faith.”61 Tellingly, these were precisely the concerns that Pius would later voice about this same article.
This overview of the clergy’s positions on the Declaration of Rights highlights a consistent and coherent attitude toward human rights. In no case was the First Estate opposed to human rights in general, even if they rejected certain rights in particular, such as the freedom of expression on religious matters. These particular objections could occasionally lead them to criticize the Declaration as a whole: Machault d’Arnouville later protested that “the Declaration of the rights of man includes a number of maxims entirely opposed to holy Scripture.”62 But they never called into doubt the existence of human rights, and even used the Declaration to argue against other pieces of legislation targeting the Catholic Church. The bishop of Clermont attacked a bill condemning monastic vows, arguing that “if we struck them down for being contrary to the rights of man, it would be a contradiction, since the greatest and most beautiful use of liberty is to choose the way of life we prefer.”63 The language of rights was a language that the clergy could speak with ease and familiarity.
As the National Assembly increasingly took up bills that infringed on traditional religious governance, privileges, and properties, many clergymen turned against the Revolution and emigrated. The short period of “dechristianization” consumed the rupture between the Republic and the Catholic Church, and has left ever since an impression of total disharmony between the ideals of the French Revolution and Christian doctrine. But this broader conflict should not blind us on areas of actual agreement. The Church may have toned down its support of human rights during and after the revolutionary decade, but it did not abandon this theory to the revolutionaries. [End Page 424] Clergymen from Pius VI on down persisted in defending human rights, only in a form different than what is found in the Declaration of Rights.
What this means for the longer history of Christian human rights is that Pius’s successor and namesake in the 1930s did not need to steer Catholic doctrine 180 degrees. In fact, as Mary Elsbernd demonstrated, nineteenth-century popes perpetuated the Church’s commitment to natural rights: under Gregory XVI (in office 1831–46), “a vocabulary of right began to enter the papal encyclical language,” whereas under Pius IX (1846–78), “the vocabulary of jus increased and diversified in the encyclicals.”64 In his encyclical Respicientes (1870), the pontiff even referred to “the sacred and inviolable rights of so many” (iura tot titulis sacra atque inviolabilia) which “for centuries had been investigated and settled in disputes, unchanged” (per saecula semper explorata et inconcussa habita in controversiam).65 This emphasis on rights reached a high point under Leo XIII (1878–1903), whose 1891 encyclical Rerum novarum made a strong case for social rights. This encyclical also sought to wrestle the defense of the poor away from socialists, whose doctrine, Leo claimed, was “contrary to the natural rights of mankind” (naturalibus singulorum iuribus repugnat), since “the State has for its office to protect natural rights, not to destroy them” (est autem ad praesidium iuris naturalis instituta civitas, non ad interitum).66
The central place of Rerum novarum in twentieth-century Church doctrine has long been acknowledged: Pius XI hailed it has an “immortal document,” and his successor, Pius XII, celebrated its fiftieth anniversary.67 If one wishes to recount the modern history of human rights and the papacy, then, the logical place to start is not in the 1930s, but in 1891. But even substituting Leo XII for Pius XI is insufficient, since it implies that modern popes had to break with past doctrine in order to reconcile the church with human rights. In reality, no significant break had to occur.
What does this continuity imply for the history of the Universal Declaration of Human Rights? To answer this question, it pays not to heed too [End Page 425] closely to the Church’s own party line. Where Maritain was quick to credit Christian thinkers for bringing about the 1948 Declaration, his victory lap skirts a causal hurdle. If the Church did not change its tune about human rights at some juncture in the 1930s, why then should we even look to papal encyclicals and Christian political networks for understanding the international demand for a new declaration of rights? Perhaps it was not the Church at all, but other social groups and intellectual milieus that were more critical drivers. For instance, there was a strong push for a new “international declaration of human rights” among the secular and republican human rights leagues that emerged across Europe after WWI.68 These leagues took the French Ligue des Droits de l’Homme (LDH) as their model, and the French ligueurs were particularly active at their international congresses. In 1936, delegates from all leagues gathered in Luxembourg, and approved a new international declaration. It took the form of a “complement” to the 1789 and 1793 French Declarations of the Rights of Man and of the Citizen. At the congress of the LDH later that year in Dijon, the French ligueurs also endorsed it.69 In attendance that year was René Cassin, who would go on to play a critical role in drafting the Universal Declaration of Human Rights. More than any papal endorsements, it may have been the universalist promise of the French Revolution that led lawyers and politicians, after 1945, to proclaim a new Declaration of Rights. [End Page 426]
1. See notably Mary Elsbernd, “Rights Statements: A Hermeneutical Key to Continuing Development in Magisterial Teaching,” Ephemerides Theologicae Lovanienses 62, no. 4 (1986): 308–32; Gérard Pelletier, Rome et la Révolution française: La théologie et la politique du Saint-Siège devant la Révolution française, 1789–1799 (Rome: École française de Rome, 2004); Thomas D. Williams, Who Is My Neighbor? Personalism and the Foundations of Human Rights (Washington, DC: Catholic University of America Press, 2005), 33; and, more indirectly, Samuel Moyn, Christian Human Rights (Philadelphia: University of Pennsylvania Press, 2015), 51, 59.
2. Commission pontificale, “Justitia et pax,” L’Eglise et les droits de l’homme (Vatican, 2011), 15.
3. Moyn, “Introduction,” Christian Human Rights, 3.
4. Pius VI, Adeo nota, in Marie-Nicolas-Silvestre Guillon, ed., Collection générale des brefs et instructions de notre très-saint père le Pape Pie VI, relatifs à la Révolution françoise (Paris: Chez Le Clere, 1798), 2 vols., 2:38.
5. See Jacques Maritain, The Rights of Man and Natural Law (1942), in Christianity and Democracy, the Rights of Man and Natural Law (San Francisco: Ignatius Press, 2011), 103; Moyn, Christian Human Rights, 83.
6. On human rights in Vitoria and Suárez, see notably Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150–1625 (Atlanta: Scholars Press, 1997) and Annabel Brett, Liberty, Right and Nature: Individual Rights in Later Scholastic Thought (Cambridge: Cambridge University Press, 2003). On the revival of Thomism in the early sixteenth century, see Quentin Skinner, Foundations of Modern Political Thought (Cambridge: Cambridge University Press, 1978), vol. 2.
7. For Vitoria, see De indis et ivre belli relectiones, ed. Ernest Nys, trans. John P. Bate (Washington, DC: Carnegie Institution, 1917) and Anthony Pagden, “Dispossessing the Barbarian: The Language of Spanish Thomism and the Debate over the Property Rights of the American Indians,” in The Languages of Political Theory in Early-Modern Europe, ed. Pagden (Cambridge: Cambridge University Press, 1987). For Suárez, see On the Laws and God the Lawgiver, in Selections from Three Works of Suárez, trans. and ed. Gwladys L. Williams et al. (Oxford: Clarendon Press, 1944), 2 vols., 1:30 (1.3.9); and Tierney, Idea of Natural Rights, chap. 12.
8. I discuss these disputes in Edelstein, On the Spirit of Rights (Chicago: University of Chicago Press, forthcoming), from which some of the material in this article is drawn.
9. Thomas Aquinas, Summa Theologica, I–II.94.2 in Treatise on Law, trans. Richard J. Reagan (Indianapolis: Hackett, 2000), 36.
10. This had been the thesis championed by Michel Villey: see notably “La genèse du droit subjectif chez Guillaume d’Occam,” Archives de philosophie du droit 9 (1969): 97–127. A related argument is found in Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953). See also Richard Tuck, Natural Rights Theories: Their Origins and Development (Cambridge: Cambridge University Press, 1979).
11. See Tierney, Idea of Natural Rights; see also Brett, Liberty, Right and Nature. I return to this point below.
12. See Skinner, Foundations of Modern Political Thought, 2:176; Tierney, Idea of Natural Rights; Brett, Liberty, Right and Nature; and Brett, “Scholastic Political Thought and the Modern Concept of the State,” in Rethinking the Foundations of Modern Political Thought, ed. Brett and James Tully (Cambridge: Cambridge University Press, 2006), 130–48, esp. 144.
13. Brett, Liberty, Right and Nature, 21.
14. I develop this methodological point in more detail in Edelstein, “Is There a ‘Modern’ Natural Law Theory? Notes on the History of Human Rights,” Humanity 7, no. 3 (2016): 345–64.
15. For a tendential, yet detailed, history of Avignon during the French Revolution, see Charles L. Souvay, “The French Papal States during the Revolution,” Catholic Historical Review 8, no. 4 (1923): 485–96, at 488. More recently, see Edward Kolla, “The French Revolution, the Union of Avignon, and the Challenges of National Self-Determination,” Law and History Review 31, no. 4 (2013): 717–47.
16. See Souvay, “French Papal States during the Revolution,” 487.
17. Adeo nota, 2:70.
18. See Dale Van Kley, The Religious Origins of the French Revolution: From Calvin to the Civil Constitution, 1560–1791 (New Haven, CT: Yale University Press, 1996); and Nigel Aston, Religion and Revolution in France, 1780–1804 (Washington, DC: Catholic University of America Press, 2004).
19. Declaration of the Rights of Man, The Avalon Project: Documents in Law, History and Diplomacy, Yale Law School Lillian Goldman Law Library, http://avalon.law.yale.edu/18th_century/rightsof.asp. Pius acknowledges that the Declaration granted citizens the right “not to be disturbed for religious matters” (turbari scilicet circa religionem non debeat) and also to “think, discuss, write, and publish” whatever they wished (quidquid velit, opinari, loqui, scribere, ac typis etiam evulgare): see Quod aliquantum, in Guillon, ed., Collection générale des brefs et instructions, 1:124.
20. Quod aliquantum, 124–28.
21. See Quod aliquantum: “ad pristinum civilem statum redintegrentur,” 130.
22. See Allocutio habita in Consistorio secreto, March 9, 1790, in Guillon, ed., Collection générale des brefs et instructions, 1:2.
23. See Umberto Benigni, “Spedalieri, Nicola,” in Catholic Encyclopedia, ed. Charles G. Herbermann et al. (New York: Robert Appleton, 1912), 14:213; Bernard Plongeron, Théologie et politique au siècle des Lumières (1770–1820) (Geneva: Droz, 1973); Hanns Gross, Rome in the Age of Enlightenment: The Post-Tridentine Syndrome and the Ancien Regime (Cambridge: Cambridge University Press, 1990), 262–63; Gérard Pelletier, Rome et la Révolution française: La théologie et la politique du Saint-Siège devant la Révolution française, 1789–1799 (Rome: École française de Rome, 2004); and Dale Van Kley, “From the Catholic Enlightenment to the Risorgimento: The Exchange Between Nicola Spedalieri and Pietro Tamburini, 1791–1797,” Past and Present 224 (2014): 109–62.
24. As Pelletier writes, Spedalieri enjoyed “protection in high places,” Rome et la Révolution française, 253; Van Kley speaks of “unofficial papal sponsorship,” in “From the Catholic Enlightenment to the Risorgimento,” 122.
25. “E’ lecito a chiunque di uccidere un Principe,” Spedalieri, De’ diriti dell’uomo (Assisi [Rome], 1791), 81, 93 [unless otherwise specified, all translations here and elsewhere are my own]; Pelletier, Rome et la Révolution française, 253.
26. Benigni, “Spedalieri, Nicola,” 213.
27. Spedalieri, De’ diriti dell’uomo, 16.
28. “Il diritto è un potere conforme alla ragione”; “Ogni uomo ha un diritto di libertà in fare tutto ciò, che concerne i diritti della conservazione, e della perfezione di sè stesso, e del la sua proprietà. . . . Ogni uomo ha il diritto di libertà anche in pensare, o sia in giudicare circa ciò, di che si è parlato,” Spedalieri, De’ diriti dell’uomo, 18–20.
29. Spedalieri, 20.
30. “La naturale egualianza della condizione degli uomini,” Spedalieri, 17.
31. “La idea della obbligazione è relativa a quella del diritto,” Spedalieri, 22.
32. Spedalieri, 25.
33. “Come la tolleranza, che si vorrebbe da loro, sarebbe di natura sua illimitata,” Spedalieri, 346.
34. Spedalieri, 328.
35. Spedalieri, 188.
36. “La misura del diritto debb’ esser sempre la ragione,” Spedalieri, 12.
37. See Plongeron, Théologie et politique au siècle des Lumières, 122; Van Kley, “From the Catholic Enlightenment to the Risorgimento,” 123.
38. “Nous bénirons Votre Majesté d’avoir enfin mis un terme à l’étonnante contradiction qui armait les lois contre les droits de la nature,” Discours au roi, prononcé à Versailles, par M. l’archevêque de Narbonne, à la clôture de l’assemblée du clergé, le dimanche 27 juillet 1788, in Archives parlementaires de 1787 à 1860, ed. M. J. Mavidal et al. (Paris: P. Dupont, 1862–), 1:387 [hereafter cited as AP].
39. “Nous sommes bien loin de méconnaître les droits imprescriptibles de la nature dans la personne de nos frères errants,” AP, 2:287.
40. “Violent à la fois tous les droits des hommes,” AP, 2:488; and “droits naturels les plus sacrés,” AP, 2:746.
41. “Le retour des synodes, des conciles provinciaux, d’un concile national, est encore le voeu du clergé,” AP, 2:486.
42. See, for example, Maximes du droit public françois (Amsterdam: M.-M. Rey, 1775), 2 vols., 1:268 and passim. See also Skinner, Foundations of Modern Political Thought, vol. 2.
43. In general, see Stéphane Rials, La Déclaration des droits de l’homme (Paris: Hachette, 1988), 155–70.
44. “Cette déclaration est pour le moment inutile . . . il faut d’abord commencer par établir des lois qui rapprochent les hommes avant de leur dire, indistinctement parmi nous, comme dans les Etats-Unis: vous êtes égaux,” AP, 8:322.
45. “Mon opinion n’est pas qu’on doive tenir le peuple dans l’ignorance; mais je veux qu’on l’éclaire par des livres, et non par la loi ni la constitution,” AP, 8:322.
46. See Keith Baker, “The Idea of a Declaration of Rights,” in The French Idea of Freedom: The Old Regime and the Declaration of Rights of 1789, ed. Van Kley (Stanford: Stanford University Press, 1994), 177–82.
47. “L’on vous propose de mettre à la tête de votre constitution une déclaration des droits de l’homme et du citoyen. Un pareil ouvrage est digne de vous; mais il ne serait qu’imparfait si cette déclaration n’était pas aussi celle des devoirs,” AP, 8:340.
48. “S’il faut une déclaration des droits, il y a un écueil à éviter. On court risque d’éveiller l’égoïsme et l’orgueil. L’expression flatteuse de droits doit être adroitement ménagée; on devrait la faire accompagner de celle de devoirs, qui lui servirait de correctif. Il conviendrait qu’il y eût à la tête de cet ouvrage quelques idées religieuses noblement exprimées. La religion ne doit pas, il est vrai, être comprise dans les lois politiques; mais elle ne doit pas y être étrangère,” AP, 8:341.
49. This work was translated by Jean Barbeyrac as Les Devoirs de l’homme et du citoyen tels qu’ils lui sont prescrits par la loi naturelle (Amsterdam, 1707). On Pufendorf’s influence in eighteenth-century France, see Robert Derathé, Jean-Jacques Rousseau et la science politique de son temps, rev. ed. (Paris: Vrin, 1992).
50. See, for example, Wesley Hohfeld, Fundamental Legal Concepts (New Haven, CT: Yale University Press, 1919).
51. “Les droits et les devoirs sont corrélatifs; ils sont en parallèle; l’on ne peut parler des uns sans parler des autres; de même qu’ils ne peuvent exister l’un sans l’autre, ils présentent des idées qui les embrassent tous deux,” AP, 8:340.
52. “Le titre seulement doit annoncer une déclaration des droits du citoyen, et non des devoirs. Ce mot de citoyen annonce une corrélation avec les autres citoyens, et cette corrélation engendre les devoirs,” AP, 8:341.
53. “Quand on fait des lois, il est beau de les placer sous l’égide de la Divinité,” AP, 8:463.
54. So contentious, in fact, that the Archives parlementaires do not capture the discussion well; I refer instead to the reconstruction of the debates in L’An 1 des droits de l’homme, ed. Antoine de Baecque, Wolfgang Schmale, and Michel Vovelle (Paris: Presses du CNRS, 1989).
55. “Art. 16. La loi ne pouvant atteindre les délits secrets, c’est à la religion et à la morale à la suppléer. Il est donc essentiel, pour le bon ordre même de la société, que l’une et l’autre soient respectées. Art. 17 Le maintien de la religion exige un culte public. Le respect pour le culte public est donc indispensable,” Rials, Déclaration des droits de l’homme, 623.
56. “C’est là [dans la Constitution] que sera prononcé le mot sacré et saint de religion catholique,” de Baecque, L’An 1 des droits de l’homme, 171.
57. “Les principes de la Constitution française reposent sur la religion comme sur une base éternelle,” de Baecque, L’An 1 des droits de l’homme, 165.
58. “La religion est un devoir pour l’homme; mais c’est un droit qu’il a de l’exercer paisiblement . . . il faut en faire mention dans la déclaration des droits,” de Baecque, L’An 1 des droits de l’homme, 167.
59. The final version of article 10 reads, “Nul ne doit être inquiété pour ses opinions, même religieuses, pourvu que leur manifestation ne trouble pas l’ordre public établi par la Loi.”
60. “C’est elle [la presse] qui a détruit le despotisme; c’est elle qui précédemment avait détruit le fanatisme,” AP, 8:482.
61. “Combien la religion n’a-t-elle pas souffert des attaques que la licence des écrits lui a portées!” and “pour la conservation des moeurs et l’intégrité de la foi,” AP, 8:483.
62. “La déclaration des droits de l’homme présente nombre de maximes entièrement opposées à la sainte Ecriture,”AP, 11:462.
63. “Si on les anéantissait comme contraires aux droits de l’homme, ce serait une contradiction, parce que le plus grand, comme le plus bel usage que l’on puisse faire de sa liberté, c’est de choisir le genre de vie qui plaît le plus,” François de Bonal, AP, 11:545.
64. Elsbernd, “Rights Statements,” 309–10.
65. Pius IX, Respicientes, in Acta Sanctae Sedis 6 (1870): 136–45, at 142, http://www.vatican.va/archive/ass/documents/ASS-06-1870-71-ocr.pdf.
66. Rerum novarum, para. 15 and 51, http://w2.vatican.va/content/leo-xiii/la/encyclicals/documents/hf_l-xiii_enc_15051891_rerum-novarum.html.
67. See Ernest L. Fortin, Human Rights, Virtue, and the Common Good: Untimely Meditations on Religion and Politics, ed. J. Brian Benestad (Lanham, MD: Rowman & Littlefield, 1996), 191; and Christianity and Human Rights: An Introduction, ed. John Witte, Jr. and Frank S. Alexander (Cambridge: Cambridge University Press, 2010). Moyn alludes to this encyclical, but does not discuss how its contents foreshadow Pius XI’s own: see Christian Human Rights, 76.
68. See Emmanuel Naquet, “La Ligue des Droits de l’Homme: Une association en politique (1898–1840)” (PhD diss., Institut d’etudes politiques de Paris, 2005); William Irvine, Between Justice And Politics: The Ligue des Droits de l’Homme, 1898–1945 (Stanford: Stanford University Press, 2007); and Edelstein, “Conclusion,” On the Spirit of Rights.
69. Ligue des Droits de l’Homme, Le Congrès national de 1936: Compte rendu sténographique (Dijon, juillet 1936) (Paris: LDH, 1936).