The Political Morality of Freedom: The Liberal Legacy of the French Revolution in the “Atlantic” Perspective

Every year for the French national holiday on July 14, the anniversary of the storming of the Bastille, news reports and articles about the French Revolution appear in the media. But what became the image of the Revolution and what the French celebrate on July 14—the storming of the French monarch’s, then almost empty, prison—is merely a symbol of the events of that time that has since become a myth, but by no means the main event of a revolution that not only changed a nation, but stands for the beginning of modern Europe.

Even less than the storming of the Bastille, do the guillotine and Jacobin terror stand for what the French Revolution was in its essence and, despite its trials and tribulations—up to and including the bloody revolutionary wars— its lasting legacy. Not even critics of the Revolution such as Edmund Burke started here. Rather, they criticized the rationalist-constructivist attempt to create something radically new from scratch, as it were, disregarding the continuity of what had grown up historically. This criticism indeed hit a sore spot but ultimately missed the crucial point.

For unlike the development in Great Britain, which took place on the basis of the Anglo-Saxon legal tradition and as its continuous evolution, there was no path of continuity in France to lead the country out of its impasse and save it from political and financial bankruptcy. Rather, what was needed was a constitutional and political break with the past. Burke had not understood this, despite his ultimately liberal intentions, and so this freedom-loving “Old Whig” was then reinterpreted in a tendentious manner as an advocate of the Restoration, even in the German-speaking world, by his translator, the Metternich advisor Friedrich von Gentz, and—wrongly—became an apologist for the ancien régime for all legitimists and conservatives who continued to adhere to the pre-revolutionary monarchies. But not for long, for very soon the spirit of the Revolution was to reshape the European continent as well.

Against Absolutism: Freedom as a Prerequisite for Peace

The French Revolution did not fall abruptly from the sky. It was part of a secular process, indeed of a long-lasting “crisis of European consciousness” (Paul Hazard). There was a seething among European intellectuals and politically influential legal scholars and philosophers. The bitter experiences with the absolute state and its claims of undivided and, as was all too soon realized, uncontrolled and arbitrary sovereignty led to the demand for freedom as a condition and prerequisite for citizens to live together in peace and security, especially in France, where—in contrast to Prussia, for example—absolutism was by no means “enlightened absolutism” even in the Age of Enlightenment, but corrupt and economically inefficient.

An additional ferment were the “encyclopedists,” who with their Encyclopédie ou Dictionnaire raisonné des sciences, des arts et des métiers (published from 1751 to 1780 in 35 volumes and with contributions from 142 authors) not only claimed to summarize the entire knowledge of their time and make it accessible to all, but also struck a thoroughly critical note toward the ruling authorities, including the church and the dogmas of the Christian faith. This also prepared the more educated strata of the bourgeoisie and not a few representatives of the nobility, many of whom collaborated on the encyclopedia, to accept the ideas of the Revolution. It is interesting to note that the Encyclopedia’s thrust was thoroughly Anglophile: in the spirit of its occasional collaborator Voltaire and his Lettres Anglaises, it was directed against Descartes and spread Newtonian physics against Cartesian physics, and empiricist philosophy, especially that of John Locke, against Cartesian rationalism.

England, on the other hand, was already anti-absolutist from its tradition going back to the Middle Ages and, of course, also empiricist in orientation. The attempt of the Catholicizing James II of the House of Stuart to introduce an absolutist regime in England and to re-Catholicize the crown led to the “Glorious Revolution” in 1688: the restoration of continuity, above all of the rule of parliamentarism and of parliamentary limitation and control of royal power—all this in the name of Protestantism and marked by opposition to Catholic France and an increasing, almost hysterical fear of papal influence over the fate of Great Britain. The Whig Edmund Burke—an Anglican Irishman—also celebrated this Glorious Revolution as a triumph of liberty and parliament over the crown, because the events of 1688 restored the anti-absolutist tradition (king-in-parliament) and thus the continuity of law.

The political ethos of freedom, as it developed in the course of the 17th and 18th centuries against absolutism, can admittedly also be understood as a mere extension of the political morality of peace, as it had been articulated in reaction to the bloody confessional civil wars of the 16th and 17th centuries, above all in the form of the doctrine of sovereignty of the French jurist Jean Bodin and that of the English philosopher Thomas Hobbes. These held that what was needed first was a strong, internally sovereign ruler who would establish peace between opposing parties by leaving aside contentious ideological and religious matters. But the anti-absolutism of the 17th and 18th centuries went far beyond such formulas of peace, while, like Hobbes and Bodin, regarding civil war as the highest of all evils.

In real-world absolutist etatism, there were no citizens, only subjects. Power was unchecked and subjects had no rights. Freedom was subordinated to peace, and property was unsecured. Free expression of opinion or even criticism of the rulers was frowned upon, and economic life was organized from above—at least according to French understanding. In France, the monarch surrounded himself with a “noblesse de robe”: upstarts, opportunists and sycophants who enriched themselves at the expense of most of the poor population and gradually ruined the country.

The Powerlessness of the Philosophers – The Rule of Law

Intellectuals objected to this, but to no avail. The Dutch optical lens grinder and philosopher Baruch Spinoza, for example, wrote that where there was no freedom (of expression, of religion, of the search for truth), there could be no peace. Spinoza was indeed attached to Hobbes’ doctrine of sovereignty and its absolutist ethos of peace, but he wanted to overcome its freedom-jeopardizing one-sidedness. Therefore, according to Spinoza, the state, precisely as a guarantor of peace, is above all the protector of human freedom (Spinoza, Theological-Political Treatise, Preface). Yes, Spinoza formulated programmatically, “the purpose of the state is freedom,” and a state that suppresses it has no legitimacy [ibid. chap. 20]. This was new: peace requires not only efficient sovereign rule, but the freedom of the citizen. Without freedom, no peace.

Spinoza’s compromise between sovereignty and freedom, however, remained a mere philosophical appeal. That such appeals could sometimes acquire real and historical substance was not the work of philosophers. This was also true of the liberal philosopher John Locke, for whom no state could be the owner of society or of the individual. All governmental power, he says, is at the service of society, and society must make possible the free development of the individual person. Those who govern are only trustees of society; government is a “trust,” that is, it acts in trust on behalf of and in the service of the individuals who join to form society. Society, as a “community” of individuals, can therefore recall any government when necessary and replace it with a new one.

This was spoken into a concrete historical situation: into the situation of English parliamentarism, which was gaining strength at the beginning of the 18th century in the wake of the Glorious Revolution of 1688. Locke, for his part, had come to England from the Netherlands as a naval surgeon with the invasion fleet of the new English king, William of Orange—William III [cf. Kluxen 1983]. Locke was thus not writing in a vacuum or in a philosophical ivory tower; he was a participant in and witness to a thoroughly revolutionary political process.

The newly strengthened English parliamentarism was the fruit of a long development that had ultimately begun in the Middle Ages. It acknowledges the “Magna Carta” written in 1215, the first and, as it were, embryonic form of English constitutional law, as its founding document. In the centuries that followed, it was not only a matter of the process of the formation of a parliament that was gaining more and more power vis-à-vis the crown, but also of the emergence of an independent legal profession, of the typically Anglo-Saxon development of common law, which was further developed through the law of judges, and of the understanding of the rule of law that resulted from both: the rule of law and the laws enacted by parliament on this basis against the claims to power and political arbitrariness of the crown. One only has to think of the “Petition of Right” of 1628 as well as the Bill of Rights of 1688/89, influenced by the ideas of Locke, in which the principle of “No taxation without representation”—i.e., the prohibition of the Crown from levying taxes without the consent of Parliament—was laid down in law for the first time. This then became the revolutionary battle cry of the colonies against the British Crown in the American War of Independence (1775–1783)!

“Rule of Law” as a Political Institution

It was thus institutional developments and circumstances, above all the existence of legal institutions and the typical English legal consciousness, that made the literary and thus also political success of a John Locke possible in the first place. English freedom consciousness was first and foremost legal consciousness. And as such it became the mainstay of the liberal political ethos of modernity.

This only partially contradicted the positions of a Jean Bodin, the French theorist of the sovereign state, as an instance of peace having priority over confessional parties. For Bodin, after all, recognized as unquestionable the natural law. This was in contrast to Thomas Hobbes, whose concern was indeed aimed in the same direction—absolutist law-making competence of the sovereign as a price to pay for peace—but this with means that were directed above all against the tradition of common law as “historically evolved reason”— called, by Edward Coke, “artificial reason”—in whose place Hobbes set the arbitrary law of the sovereign.

As an integral part of the steadily developing common law, the English tradition of the Rule of Law established an authentic constitutional law. This was already asserted against Hobbes by Chief Justice Sir Matthew Hale (who died in 1676). Hobbes—inspired by Francis Bacon, whose secretary he had been for a time—tried to discredit the common law in order to limit, as mentioned, existing law to statute law, that is, positive statutory law [cf. Hale, 1956-64; Rhonheimer 2000].

Rule of law meant that both against the crown and against parliament there was the possibility of suing for liberties before an independent judge, and that the sovereignty of the crown was understood as both established by and bound by law (Henry de Bracton’s principle rex infra legem, “the king is under the law,” from the later 13th century as expressed in Bracton’s De legibus & consuetudinibus Angliæ). The Magna Carta Libertatum of 1215 had set this development in motion, even if it was still entirely rooted in the ideas of feudal times. But from the very beginning, the English constitutional development clearly contradicted the basic principle of continental absolutism stemming from Roman public law Quod principi placuit legis habet vigorem: “what seems good to the ruler has the force of law” [see Rhonheimer 2012, 107].

The Magna Carta was ultimately the source of the “original fundamental right” (“Urgrundrecht” [Kriele, 1990, 149ff), called habeas corpus: the right of every “free man” to be arrested only based on a judicial order. A “free man” in 1215 was, of course, only the small minority of barons. The Magna Carta is still feudal law, but from its own spirit it gradually developed into the general law of liberty.

In the Petition of Right (1628) formulated by the then Chief Justice Edward Coke—which is also still English constitutional law today—the explicit, almost mythical reference to the document of 1215 and the adoption of a reformulation that had already taken place in the 14th century that instead of “no free man,” by which only the barons were meant, there is now only “no man, of whatever estate or condition he may be.” The right to be deprived of one’s liberty only by a judge’s decision—that is, within the framework of due process—now applied to everyone, at least on paper.

Locke, Montesquieu, and the “English Constitution”

The independence of judges—they were irremovable—and the division of power between Parliament, the Crown and the judiciary provided the material for the famous sixth chapter of the eleventh book of Montesquieu’s The Spirit of the Laws. It is no coincidence that it is entitled “On the Constitution of England”—although there was no such constitution in the modern sense (and there still is not). Montesquieu did not invent the separation of powers, as one learns in school, but merely described to the French, admittedly in an idealized way, this “splendid system” of the English, which was “found in the forests.”

Since then, Montesquieu has been regarded as the “inventor” of the separation of powers—not entirely without reason since he provided the theory for it based on the English constitutional reality (although the English constitutional theorist William Blackstone and the description of parliamentarism in his Commentaries on the Laws of England—published between 1765 and 1769—describing it as a system of “checks and balances” should also be mentioned). Montesquieu, however, wrongly thought that the English had inherited the idea of their form of government from the ancient Germanic tribes (this was what was meant by the allusion to the “forests” quoted above). This is demonstrably not true, because Germanic law was cooperative law and was to assert its influence only later. And there was no “English constitution” at all, and it does not exist in codified form even today; rather it exists as legal norms of common law and as parliamentary acts whose constitutional significance is recognized—again, to this very day.

Even before Montesquieu, however, John Locke had translated English constitutional reality into political philosophy. However, Locke’s thinking was not “constitutionalist” in the strict sense. The core of his political doctrine did not aim to protect fundamental rights of individuals from political powers by independent judges, but to promote the goals of individuals by a government acting on their behalf, and therefore responsible to them. Locke’s sovereign community, the bourgeois society formed by social contract, does not establish a constitution at all, but directly establishes a parliamentary government (parliament is the government in Locke; the modern cabinet, as a kind of parliamentary committee, emerged only over the course of the eighteenth century).

As can be seen from Chapter 13 of the Second Treatise on Government, Locke was thus still a theorist of sovereignty, but now one of the sovereignty of the community and its trustee: parliament. According to the German constitutional lawyer Martin Kriele, Locke’s influence in England was not to promote individual liberties, but rather to strengthen parliamentary sovereignty [Kriele 1990, 202], which manifested itself, among other things, in the almost unheard of fact of a temporary suspension of the right of habeas corpus—that is, of the fundamental right par excellence—by parliament at the beginning of the 19th century. This was the price to pay for not having a written constitution, although there were English constitutional theorists, such as the later and aforementioned William Blackstone and, much later, Walter Bagehot. It was not until the American colonies, influenced by Montesquieu’s theory of the English constitution, that Locke was read in a constitutionalist lens, which then led to various civil rights declarations, the most famous of which is the Virginia Declaration of Rights (1776) written by George Mason, with significant revisions from James Madison and two others. What every child learns in school today, especially in the Anglo-Saxon countries, namely that John Locke was the “discoverer” of human rights, is not true.

American Constitutionalism and the French Revolution

The constitutionalist transformation of Locke’s ideas can be attributed to the influence of Montesquieu—who, of course, had also read Locke—but American constitutionalism also stems from the typically Anglo-Saxon political-legal spirit that continued to live in the American colonies and was able to develop in the struggle against the English mother country.

In addition, there was a second, equally democratic ferment in America: the pronounced sense of community of Presbyterian Calvinism, which goes back to the Pilgrim Fathers—a group of so-called nonconformists, so named, moved from England to America in 1620 on the sailing ship the “Mayflower” with the desire for the free practice of their religion and landed in today’s Plymouth, Massachusetts.

A historically unique symbiosis of diverse ideological roots with a political sense of reality finally led the American colonies to proclaim human rights as a positive right, that is, as rights of the individual that could be enforced in court, and to constitute themselves as a federal state on the basis of a written constitution, which from the very beginning saw itself as a government by the people and for the people, that is, as a democracy—albeit with the initial stigma of slavery in the southern states inherited from the British colonial era.

The basic idea, already dominant in the Virginia Declaration of Rights of 1776, was to subject political power and the people who exercise it to law and institutional control, thus guaranteeing the freedom and free development of the individual. The demand for legal protection of individual freedom, which originated in America, crossed the Atlantic in no time and demonstrably became the basis of the ideas of the French Revolution. To be sure, this “Atlantic” view is by no means widespread, let alone popular, in France itself, since it is part of the self-image of the French to consider themselves the inventors of human rights [cf. the discussion between Georg Jellinek and Émile Boutmy, Boutmy, 1964]. However, the Atlanticist view, which sees the American and French Revolutions as interdependent events in their intellectual foundations, most probably corresponds largely to historical truth and also helps to correct an often one-sided picture of the French Revolution.

Indeed, the Virginia Declaration of Rights found its imitation in the French Declaration of the Rights of Man and of the Citizen of 1789, which, partly as a result of the influence of Abbé Sieyès—actually Emmanuel Joseph Sieyès— was formulated in the way of philosophical principles and considered an integral part of the new Constitution of 1791 then drafted by the Constitutional Convention. In essence, however, the Declaration of 1789 was drafted by Lafayette—Marquis de La Fayette, fellow combatant in the American War of Independence and friend of George Washington—with editorial help from Thomas Jefferson. The latter was staying in Paris at the time as ambassador of the United States of America, which had been founded shortly before [see Palmer, 1959; Schnur (ed.) 1964; Bobbio 1990, 89-120]. Lafayette then also delivered as a gift to his friend Washington the key of the Bastille, which hung in Washington’s Mount Vernon country residence until President George Bush (Sr.) “gave it back” to French President Mitterand in the anniversary year of 1989.

The birth of modern constitutionalism was the fruit of a long development of legal institutions and legal consciousness, the formation of institutions, in other words, designed and realized by personalities with a pronounced legal sense of reality. This is precisely why political history cannot be limited to the history of political ideas or to the literary history of philosophical texts. Equally important is the institutional history and the thinking of those who advanced this development as protagonists; in England, for example, Chief Justice Sir Edward Coke [see Beauté, 1975], in the American colonies people like Alexander Hamilton, James Madison, and John Jay, the authors of the Federalist Papers [Hamilton, Madison, Jay]. Nevertheless, this was not the creation of a state system from scratch, but rather the reshaping of the results of a long development that held together many components, yet was by no means designed on the drawing board, as it were, but was the fruit of a political, legal, and social process that was unintended in its final form and in its totality.

The Federalist Papers were originally a series of articles that successfully argued for the creation of an American federal state along the lines of the draft Constitution of 1787. The authors, who initially published their articles under the pseudonym “Publius” in various New York newspapers, were not theorists: Hamilton was a politician, economist, and financier; Madison was also a politician and became the fourth president of the United States; Jay was a lawyer and politician and later became the first Chief Justice of the Supreme Court.

The Ideas of 1789: Imported from the USA?

This shows how deep is the extremely common misunderstanding of interpreting the French Revolution in light of Jean-Jacques Rousseau’s writings or even understanding its outbreak as a consequence of Rousseau’s ideas. The French Revolution is in fact a complex and convoluted historical event that dragged on for years, if not decades—some leading historians of the French Revolution, such as François Furet, to think it never really ends until after 1870, the founding of the Third Republic. In a sense, at least, its first stage did not come to a preliminary conclusion until the promulgation of the Code Napoléon (1804) the civil code enacted by Napoleon. The latter no longer contained a right for the subjects of a monarch and the privileged status of the aristocracy, but rather establishes a right of free citizens that applies equally to all, thereby establishing the egalitarian thrust of the Revolution.

It was thus in this body of law, which—like the earlier Prussian Land Law and the Austrian General Civil Code—breathed the liberal spirit of the Enlightenment and civic emancipation, that the French Revolution came to a conclusion—and not in the totalitarian spirit of the Jacobins, who set the tone only briefly but became the symbol of the aberrations of an overthrow that at times got out of hand.

Even if Jacobin terror and its ideological aberrations are part of the French Revolution, it would be a gross mistake to interpret the Revolution, its liberal, bourgeois-egalitarian intention and achievement, only in the light of the Jacobin phase. However, the totalitarian mischief of the Jacobins—the program of public coercion to virtue—has remained in modern European history as an antithesis to everything liberal and to the spirit of bourgeois freedom to this day and continues to flourish. Jacobins, by the way, have always liked to invoke Rousseau—rightly or wrongly.

Rousseau, however, is a complex, inherently contradictory, and actually nostalgic thinker. He is modern and, at the same time, downright ancient in his Platonic search for the ideal legislator. Perhaps for this very reason, and because the mixture is impracticable and illusory, his thinking is full of explosive power. This becomes clear in Rousseau’s later admission, full of resignation, that his idealistic concept of a “pure” rule of laws, in which all egoism of particular interests is eliminated and there is a full identity of the governing and the governed, has proved to be impracticable; therefore, in fact, only the naked despotism of the de facto ruler is still possible.[1] Marxist utopia in particular is based on this “identitarian” program, and therefore, if one tries to realize it, it inevitably leads to despotism and oppression.

The Revolution Proper: The “National Assembly”

In terms of its concrete political dynamics, it is true that the French Revolution—quite unlike the events in the American colonies—sprang from the injustices of a system privileging the nobility and higher clergy at the expense of the great mass of citizens and peasants. This was combined with a dysfunctional system of government and a financial and food crisis caused by the interplay of these factors. The intellectual foundations of the Revolution, however, as should be reiterated, were more complex and, above all, not purely French.

They sprang from a mixture of Anglo-Saxon constitutionalism or parliamentarism and French doctrinaire rationalism, represented above all by the best-known journalistic activist of the revolutionary period (he was an ordained Catholic priest), the aforementioned Abbé Sieyès, who identified one opponent above all: the nobility and its privileges. Sieyès’s 1788 Essai sur les privilèges was only a prelude to his most famous writing, published a year later, Qu’est-ce que le Tiers-État? (“What is the Third Estate?”) in which he equated the Third Estate—the bourgeoisie and the lower clergy—with the nation, an explosive and momentous statement, as we shall see soon.

Precisely for this reason, the politically and legally decisive event, indeed the actual revolution in the precise sense of a radical break in legal continuity with the ancien régime, was not the storming of the Bastille and the violent “revolutionary” events associated with it. Rather, it was a decision taken earlier by the so-called Estates General, the assembly—after decades of practical elimination—of the three status groups convened under pressure by the king in 1789. These consisted of the Nobility, the (higher) clergy (especially bishops, they too were consistently nobles), and the “Third Estate,” as mentioned, which consisted of the bourgeoisie, urban workmen and wage laborers, the rural population and the lower clergy, and together about 98% of the population!

Traditionally, each estate had collectively one vote, which amounted to a steady 2:1 voting majority of nobles and higher clergy over the Third Estate—although the latter numerically provided many more representatives in the assembly. In June 1789, this voting system was overturned by Abbé Sieyès, who argued that the representatives of the Third Estate (about 98 percent of the votes) represented practically the entire French population and were thus identical with the nation. Thereupon the assembly of the Estates General, against the resistance of the king, but in the end with his forced consent, declared itself to be the Assemblée nationale, the “National Assembly!” This was the real revolution. The nobility and the higher clergy were deprived of their power, and from then on, the king had to cooperate with the bourgeoisie. The name of the French parliament is still Assemblée Nationale to this day.

Thus, the French Revolution was by no means anti-monarchical in its origins, but anti-aristocratic. And it advocated parliamentary representation of the nation as a whole, to which representatives of the First and Second Estates were allowed to join, which in some cases they did (Mirabeau, one of the protagonists of the National Assembly, comes to mind), and whose decisions—following the English model of the king-in-parliament—the king would also have to abide by. The fact that Louis XVI, who was popular in his own right, prepared restoration plans together with the monarchs of Europe a little later, behind the backs of the revolutionaries, led to the revolution’s turning away from the monarchy, to popular anger and, last but not least, to the rise of the Jacobins and their reign of terror, whose first victim, after an unsuccessful escape, was the king himself.

But back to Sieyès and Thomas Jefferson, who was U.S. ambassador to Paris at the time of the Revolution: they were supporters of an Anglo-Saxon-style parliamentary representative constitution (in combination with a catalog of fundamental rights on the same level of constitutional law). This was exactly the opposite of Rousseau’s ideas, who rejected any representation as contradictory to popular sovereignty and in whose conception there is no room for civil “fundamental rights” but rather for duties of the citizen.

However, the French implemented the system of parliamentary representation in the first constitution (that of 1791) in the most unfortunate way: as a result of census suffrage and, of course, the exclusion of women from politics, the National Assembly represented the nation only very imperfectly, which the Jacobins were then able to exploit for propaganda purposes a little later in their agitation against the Constitution. The census suffrage was practically the inversion of the principle of “no taxation without representation,” that is, “no representation without taxation”: whoever did not pay taxes—and, since there were only property taxes, this meant in practice: whoever did not own property or landed property—had no right to be representative of the nation. Needless to say, this also excluded the peasant rural population from political participation.

Second, the Constitution of 1791 did not contain any provisions for a possible constitutional revision and the procedure to be followed for it. This meant that the constitution could only be suspended by a new revolution, which was carried out by the Jacobins in 1793. The consequence was the pure opposite, namely a plebiscitary “democracy” that trampled on the idea of representation and, of course, also of basic civil rights, and finally led to terror. It is not even appropriate to associate this with Rousseau.

The rationalist-constructivist attempt of the French constitutional theorists, above all Sieyès, to found a state system in no way rooted in the French constitutional tradition and history, as it were from intellectual resources foreign to tradition, has been criticized by Edmund Burke with some justification, though also, as said above, with some misunderstanding. Would there have been an alternative to the radical new beginning? The total blockade by the crown and the nobility and their lack of understanding for the needs of the people, indeed the sheer egoism of the “noblesse de robe,” as well as, on the other hand, the constitutional impossibility of a reorganization of the state system on the basis of the existing and the downright screaming incompetence of the king and his entourage, left hardly any other option open than the revolutionary one. In reality, it could be argued, things could have been much worse, namely if help from the United States and its models such as the Virginia Declaration of Rights had been lacking and France’s politicians and jurists had been left without the intellectual support and fertilization of the Americans in 1789. But how history would have continued without the Revolution—better? worse? —nobody can know and is an idle question.

Rousseau as the Antipode of the French Revolution

Neither the American Founding Fathers nor the early French revolutionaries (such as Abbé Sieyès or Mirabeau) adhered to Rousseau’s ideas. As already stated, the latter’s idea of popular sovereignty—a kind of “absolutism of the people”—was hardly compatible with the idea of human rights as positive, constitutionally guaranteed fundamental rights of the human individual and citizen—and thus with the idea of a subordination of sovereignty and governmental power to the rule of law. Likewise, Rousseau’s ideas were not compatible with the idea of government through parliamentary representation, since Rousseau rejected the idea of representation as a relic of feudalism in favor of the aforementioned identity of the governing and the governed.

The American Founding Fathers, on the other hand, were staunch supporters of the idea of government by representation. This is even more true of Sieyès. As the classic research of Karl Loewenstein [1990] has shown, the ideas of the French constituent National Assembly of 1789 contrasted considerably with those of Rousseau, whose ideas had much less influence on the French Revolution than is commonly assumed [Fetscher 1975, 258–304].

The fathers of modern, ultimately Anglo-Saxon constitutionalism—even if there had been other forms of constitutionalism in Europe since the Middle Ages, for instance in Aragon and also in France—did not dream of popular sovereignty and grassroots democracy; rather, they wanted to teach humanity “enough with the “sovereigns!” Every sovereignty, even that of the people or the “nation,” must be subordinated to law, ultimately to the true and inalienable rights of man and citizen. Without respecting them, there can be no legitimate governmental power. Therefore, the people have the power to get rid of a regime that disregards these rights.

Liberal constitutionalism—the combination of Locke, Montesquieu, and Anglo-Saxon rule of law—is closely related to the tradition of the right of resistance, which dates back to the Middle Ages [see Kern, 1980]. Indeed, constitutionalism is the modern form of the right of resistance integrated into a political institutional ethics of peace. Unlike the medieval right of resistance, the constitutionalist variant is not anarchic, but is itself a constitutionally ordered legal institution.

Because of his fundamental rejection of the idea of the right of resistance, incidentally, Kant can also be counted among the founding fathers of the political ethos of modernity only with reservations. The idea of the Rechtsstaat —specifically German and co-founded by Kant—must be distinguished from the Anglo-Saxon idea of the “rule of law” underlying constitutional forms of government (“constitutional State”, in German Verfassungsstaat). Rechtsstaat merely meant state sovereignty, governmental power, public life, and the relationship between the state and the individual to be shaped according to principles of law. But it did not yet mean that the sovereign—the supreme legislative and governmental power—is also under the law and bound by it.

Accordingly, every modern constitutional state is also a Rechtsstaat; but not every Rechtsstaat is necessarily a constitutional state in which the rule of law applies, that is, in which there is no sovereign power above the law. This can now be elaborated further, on the basis of a groundbreaking distinction, still relevant in constitutional law today, which we owe to none other than Sieyès: the distinction between pouvoir constituant (constituent power) and pouvoir constitué (constituted power). (Cfr. for this and the following also Kriele, 1990).

Sieyès’ Contribution: Constituent and Constituted Power

A Rechtsstaat can, as for instance German history shows, also be a monarchical autocracy in which there is a sovereign who stands above the law and is “subject” to it only insofar as he subjects himself to it. To repeat, however, “rule of law” ultimately means the non-existence of a sovereign who is above the law and who can, as it were, rule and reign in a lawless space and thus, as in the so-called constitutional monarchies of the 18th century, simply abolish a constitution at his own discretion—just as it had been put into force at the monarch’s pleasure.

In the liberal constitutional state, such a sovereign exists formally only in the form of the constituent power—the pouvoir constituent—but no longer as constituted government power—the pouvoir constitué. The latter, and thus all governmental power, is subject to the constitution and judicial control. By contrast, the monarchs of the 19th century—even if they also call themselves “constitutional” monarchs—were constituted and constituent power in a single person. The pouvoir constituant did not precede them, was not superior to them, but they were themselves this power, which decided on the existence or non-existence of the constitution and ultimately also on its content.

If there is such a thing as inalienable human rights, which is precisely what the thinkers of the French Revolution claimed, these must necessarily also be recognized by the constituent power. They therefore have, as it were, the force of natural law.

It is precisely this subordination of each constituted power to a constituent power distinct from it that is the decisive feature of the liberal constitutional state.[2] This distinction, still fundamental in today’s constitutional law, between a constituent power, which is unbound, “can do anything,” and creates the constitution, and a constituted power, which is bound by a valid constitution and the legal institutions established in it, comes, as said, from Sieyès. As long as the constitution is in force, there is no person or authority that can override it or is above it. Only the rules of constitutional amendment, or even complete revision through the election of a new constituent body (a constituante), grounded in the Constitution itself, can pave the way—in a legal, non-revolutionary manner—for a new Constitution (in which case the final say is usually, but not necessarily, given to the people, who decide on the adoption of a new Constitution and are thus, if so provided in the rules for the creation of a new Constitution, the actual sovereign or constituent power).

Inalienable Human Rights and Natural Law

However, according to the ideas of 1789, strictly speaking, not even the pouvoir constituant is absolute and sovereign. In material respects it is just not. If there is such a thing as inalienable human rights, which is precisely what the thinkers of the French Revolution claimed, these must necessarily also be recognized by the constituent power. They therefore have, as it were, the force of natural law. The constitution-making power is therefore not faced with a normative nothing, as the Austrian constitutional lawyer Hans Kelsen and with him legal positivism maintain. A constitution that did not respect these rights would not be legitimate based on the criteria of the French Revolution.

In other words, no sovereignty that conceives of itself as absolutely boundless can have legitimacy in its exercise. Its limits are the fundamental rights of man and citizen. Every sovereign state power, as a political power, must submit to that which justifies every political power in the first place. Even if—according to the words of Sieyès—the constituent power “can do anything,” this only means that it cannot be put in its place by any other institution in terms of formal law and power politics, because it acts, so to speak, in a positive-law vacuum. This does not mean, however, that this legally-institutionally “omnipotent” power is not bound to certain contents in terms of legal ethics—that is, in the perspective of political morality. The fathers of the French Revolution recognized this by declaring the catalog of human and civil rights to be a preamble and part of the constitution.

However, these human and civil rights must also be codified in some way, and there is often no agreement on this. The problem of the original creation of rights cannot therefore be solved with geometric precision and no ambiguity. Ultimately, what is written is valid, also because otherwise there would be no legal certainty. Already Thomas Aquinas held the opinion that a judge may base his judgment solely on written law. This is the true core of legal positivism. But this positively valid law is always subject to the possibility of legal-ethical criticism based on principles of natural law, which, even if there is no agreement about them, nevertheless remain as a horizon and criterion of legal-ethical foundation. This demand is also a legacy of 1789.

In short, the pouvoir constituant is, in the political sense, an original law-creating power—and in this sense “sovereign” and “omnipotent”—but this is understood solely in terms of its function of creating positive law. By recognizing inalienable human rights, the pouvoir constituant also declares that it is not legitimized to do anything and everything; thus, if it wants to preserve its legitimacy, it submits to limits imposed by natural law. Thus, it cannot create law in itself according to the maxim “law is what pleases the sovereign,” but must also recognize already existing law as a constitutional power. At the very least, it must search for this law and elevate it as far as possible—that is, as in 1789 in the sense of a constitutionally binding “Declaration of the Rights of Man and of the Citizen” —to valid positive law, that is, codify it, and thus also make it legally enforceable.

By linking constitutionalism back to the idea of human rights, there is thus not only room to speak of illegitimate governance, but also illegitimate constitutional and legal orders, and under certain circumstances it also makes sense to call a state an “illegitimate state.” All this corresponds to the classical spirit of the right of resistance.[3]

Immanuel Kant: Not a Liberal Constitutional Theorist

Immanuel Kant, already briefly mentioned above, is considered by many to be the prototype of a liberal constitutional theorist. But this is a misunderstanding. Certainly, Kant’s legal philosophy breathes liberal spirit, but this is not true of his constitutional theory, which ultimately falls short of the basic characteristics of liberal constitutionalism—in the sense of the Anglo-Saxon Rule of Law—and is rather close to what is called typical German Obrigkeitsdenken (“authoritarianism”).

For Kant—and in this the difference to the spirit of a John Locke or Montesquieu becomes apparent—explicitly rejected any right of resistance [Über den Gemeinspruch, A 249–260; Metaphysik der Sitten B 203 ff.]. His arguments are indebted to the doctrine of sovereignty of Hobbes, who saw in the right to resist the very source of strife and civil war, the avoidance of which is for Hobbes the highest political good par excellence. For Hobbes, the worst legacy of the Middle Ages was the legitimization of “tyrannicide”—whereby, for him, the evil of tyrannicide lay in the fact that one or some thereby arrogated to themselves a judgment of what is just and unjust, a competence which, in the service of peace and the avoidance of civil war, the sovereign alone possessed.

Kant agreed with this in principle. Much like Spinoza mentioned at the beginning, Kant disagreed with Hobbes only on one point: the subject, ultimately the philosopher, was to be granted the “freedom of the pen,” the freedom of public criticism. The “liberal way of thinking of the subjects,” Kant said, is “the only palladium of the people’s rights” [Gemeinspruch A 265]. Hobbes had believed criticism must not be expressed publicly, indeed that the peace-loving subject must renounce it in the interest of the stability of the polity and may harbor reservations solely within himself, but not let them pass his lips, let alone discuss them publicly.

The philosopher of Königsberg, on the other hand, trusted the “freedom of the pen” and also used it in often courageous ways. Kant, however, failed to recognize the necessity of legal-institutional control of government; rather, he trusted the course of history, the power of enlightened consciousness, which, he was convinced, would prevail on its own. Even though Kant advocated a “republican” form of government based on the separation of powers, he was opposed to a democratic constitution instead advocating rather a monarchical-autocratic “constitution” in which sovereignty remained undivided.

This was also the position of another great Enlightenment thinker—and co-editor of the Encyclopedia—Denis Didérot, and his “enlightened despotism”: one trusted in the power of the ideas of the ”Enlightenment” and tried to convince those in power—in Didérot’s case, the Russian Tsarina Catherine the Great— of them, but did not demand that rulers be subjected to the institutions of law or the rule of law.

Even today, Enlightenment pathos is often the flip side of a lack of a sense of reality. Kant thought that law would of itself “obtain supreme power” through the “irresistible will of nature” [Zum ewigen Frieden B 62]. It was the position of a philosophy professor ultimately alienated from politics. And so it was to remain for a long time in Germany, the “belated nation” [Plessner 1974]. The “liberal way of thinking of the subjects” was controlled at will by the sovereign, and despite the liberal Stein-Hardenberg reforms in Prussia (1807–1815), it was ultimately not law that gained supremacy in the German Empire, but the power of a nationalistic militarism, which used the Rechtsstaat as a smoothly functioning, purely formal mechanism and finally perverted it during the Weimar Republic—certainly with the support of the German legal profession, one thinks of Carl Schmitt (“The Führer protects the law”)—into the unjust state of the Nazis.

Of course, Kant cannot be blamed for all this, his liberal attitude and legal sensibility is beyond any doubt. But Kant does stand for that German tradition which—in contrast to the Anglo-Saxon tradition—underestimated, even ignored, the practical-institutional necessity of legal control of political power. Here, the French were clearly several lengths ahead of the Germans![4]

Liberal Constitutionalism and Democracy: The Ethos of Freedom

“Liberal constitutionalism” did not mean a return to the pre-absolutist state—such a state had never actually existed as a “state” —but rather a transformation of the modern, sovereign territorial state, which had initially been born as an absolutely governed and mostly large-scale administrative unit. And it was a transformation based on the recovery and activation of pre-absolutist republican traditions as well as the medieval idea of the right of resistance. Without the formation of centralized state bureaucracies in late medieval and early modern times— this is true even for the American colonial administration—there would certainly never have been such a thing as a “state” that could have been constitutionally tamed [cf. on this Friedrich, 1951, 40ff.]; but the task of subjecting it to legal and then also democratic control and support was still to be accomplished.

In his famous 1856 treatise “The Old Regime and the Revolution,” Alexis de Tocqueville demonstrated that there was unbroken continuity between the pre-revolutionary state of the ancien régime and the modern French post-Napoleonic state with respect to its backbone—the state administration or state bureaucracy. The same is true for all modern states. There is also unbroken continuity between the administration of the Wilhelmine empire, the Weimar Republic, the Nazi state and the Bonn or Berlin Federal Republic of Germany.

However, Johannes Althusius’ classical understanding of human society as consociatio and his doctrine of the “corporate” unity of society and sovereign state power, as well as Spanish Baroque scholasticism (Vitoria, Suárez), also played a mediating role in the aforementioned return to pre-absolutist traditions. Likewise, the influence on John Locke of the Anglican theologian Thomas Hooker, who followed Thomas Aquinas’ Aristotelianism, should not be underestimated [cf. Rosenthal, 2008]. Locke speaks of the “judicious Hooker” and cites him as a key witness against the patriarchal absolutism of a Sir Robert Filmer. And again, Puritan-Calvinist covenant theology—an “ecclesiology” turned to the political—was everywhere anti-absolutist ferment where it worked; but this already belongs to the modern history of democracy. Liberal constitutionalism alone, however, is not yet democracy.

Liberal constitutionalism, one could say somewhat simplistically, means first the institutionalization of the political-ethical substance of the right of resistance within the framework of a specifically modern political culture of peace, which would not have been possible without the emergence of the modern territorial state and would probably not have been necessary in this form. The key words here are “rule of law,” the backbone of which is an independent judiciary, and “limited government,” government power efficiently limited by law. In this way, fundamental rights of freedom are transformed into positive law, which can be claimed by individuals before independent judges, as can be seen in the American Bill of Rights.

Thus—in favor of individual freedom—the exercise of political power is subjected to legal control. Powers are shared so that they form a system of checks and balances. “Ambition must be made to counteract ambition” [James Madison, Federalist 51, Nov. 22, 1787]: Distrust of human exercise of power and safeguarding of freedom are the key words—thus just the opposite of that “enlightened despotism” of Didérot, who put all his trust in the absolute power of the ruler enlightened (by philosophers), or Kant’s mere “freedom of the pen” to bring the powerful to insight and thus to steer the course of history in the right direction.

From Liberal Constitutionalism to Liberal Democracy

Left to itself, however, the freedom of the legally based constitutional form of government did not by itself already tend to become freedom for all. Until the mid-19th century, the English Parliament was largely in the hands of an aristocratic and urban oligarchy. The French liberals of the Restoration period (Benjamin Constant, Adolphe Thiers and others) were convinced that “democracy”—universal suffrage—was no good: people without education and property could not be entrusted with political power. A severely restrictive census suffrage was initially a general demand of the liberals—as they were now gradually called—not without a certain sense of reality. And even the first French Revolutionary Constitution, as already mentioned, restricted the right to vote to such a small number of “active citizens” that the majority of the people did not feel represented, a flaw that the Jacobins then knew how to exploit in a demagogic manner for their own legitimization.

The “democratization” of the constitutional state—which the American federal government had inherited from the beginning (allowing discretion to states who gradually expanded suffrage)—became the main demand of the so-called radicals of the nineteenth century. This was also a consequence of the unique process of the Industrial Revolution, which not only assigned a completely new function to the bourgeoisie, but also generated masses of industrial workers, pushing them “upward,” as it were, and urging them to demand political representation.

The experience, formulated classically by John Stuart Mill, was that a parliament in which the “working class” is not directly represented will not deal with any question “with the eyes of a working man” [J. S. Mill, Considerations on Representative Government, III, 209].

Representation of interests presupposes direct representation of those interests, and that means universal suffrage. J. S. Mill is one of the first liberals for whom representation and universal suffrage went together as a matter of course. The modern constitutional state, bound in the tradition of representative parliamentarism, had to become a democratic constitutional state if it was not to lose its legitimacy. In the process, however, the principle of “representation” itself was reinterpreted: Whereas in the English tradition it was understood as the “virtual” representation of the interests of all by a few, people now began to demand—and this was already the case in the American War of Independence, directed against the British mother country—the effective representation of interests. But that is another story.

In any case, the rule of law, parliamentarism and the principle of representation alone do not constitute democracy in today’s sense. But—and this is the crucially important point that must be emphasized again and again against the Jacobins of every epoch—there can be no liberal democracy that is not characterized at the same time by the rule of law, by parliamentarism, and by the principle of representation—that is, by bodies in which a few legitimately make binding decisions for the totality of citizens, and in a legally regulated and thus also clearly limited manner. The democratic constitutional state must also be characterized by the rule of law and what the Anglo-Saxons call “limited government” if it does not want to become a tyranny of the majority.

Liberal Democracy: Not Simple “Rule by the Majority.”

Whoever rejects this in favor of what is called an identity-based conception of democracy, which starts from the fiction of the identity of the governing and the governed, claims a homogeneity of interests and declares war on particular interests, even whoever unilaterally plays off direct democracy against the principle of parliamentary or congressional representation and sees in it an irreconcilable opposition, is in the tradition of Rousseau and the Jacobins. As such, however, they do not represent the spirit of the French Revolution, but only one of its transitory phases, namely one which would not be ultimately successful.

Nor are majority suffrage or “rule by the majority” by themselves democracy in the sense in which we understand it today in the Western world. Critics of democracy, for example from the libertarian-anarcho-capitalist and conservative camps (such as Hans-Hermann Hoppe or Erik von Kuehnelt-Leddihn), usually reduce democracy—polemically but improperly—to mere “majority suffrage” or “rule of the majority.” This is a caricature and both factually and historically incorrect. “Liberal democracy” is the liberal constitutional state as it springs from the Anglo-Saxon tradition—that is, rule of law, separation of powers, independence of the judiciary, parliamentary or congressional representation, etc.—but in its democratized form with universal suffrage. Majority rule plays a decisive procedural role but does not determine in the last instance what is politically and legally possible [on this also Dahl, 1991].

Majority decisions are subject to the rule of law in a liberal democracy; they must in any case be constitutional and respect human and civil rights. It is therefore always important to protect minorities and their constitutional rights. It is not a Jacobin “rule of the majority” that is the lasting legacy of the French Revolution, but rather the liberal, constitutional component, even if it has to be extracted, as it were, from the nevertheless abundantly confused history of revolutionary events.

Notes

[1] In a letter of July 26, 1767—eleven years before his death—to the elder Marquis de Mirabeau, the Physiocrat, Rousseau confessed that his ideas of realizing the classical idea of the rule of law over man were indeed like “squaring the circle” and hardly feasible. Therefore, Hobbes’ solution of placing man above the law in the sense of a despotisme arbitraire was to be given justice. But now—a new squaring of the circle —a rule of succession had to be found for this despotism that was based neither on heredity nor on choice, a rule “par laquelle on s’assure, autant qu’il est possible, de n’avoir ni des Tibère, ni des Néron.” Never, however, would he, Rousseau, probably have the misfortune to have to deal with this folle idée [text in Mayer-Tasch 1976, 127–130].

[2] The direct democracy of the Swiss type is a historically unique exception, namely a combination of Rousseau’s ideas—rejecting the idea of representation—with those of the Anglo-Saxon parliamentarism of the US-American type (a bicameral system). For in Swiss direct democracy, the “sovereign”—the people—can theoretically become constitutionally active at any time, namely through its right to ultimately take a binding vote on constitutional initiatives submitted by itself; moreover, the people can bring decisions of parliament, that is, the “constituted power” —which represents this people in the ordinary legislative process—before a referendum and thus become directly legislative. However, there are also hurdles and brakes here, such as the so-called Ständemehr (majority of the cantons): For constitutional amendments, the simple majority of votes of all “voters” is not sufficient, but the majority of the Stände (cantons) is also necessary. The votes of the less populous cantons are weighted exactly the same as those of the more populous cantons: each has one vote.

[3] The American Constitution recognized from the beginning—although only later in its Ninth Amendment of 1791 also explicitly—that also the rights not mentioned in the Constitution remained with the people. Thus, right is not identical with positive right. This was also the reason why many constitutional Fathers were fundamentally opposed to including a catalog of human rights in the Constitution: They feared that this might give rise to the opinion that rights which were not explicitly in the Constitution, but which were recognized as such in individual states, would then no longer be valid as such at the federal level.

[4] Of course, jurists or judges themselves have no political power to enforce their decisions; but as part of a constitutional system of government based on separation of powers and checks and balances, and integrated into procedural rules of (democratic) government formation whose observance can itself be enforced by means of the state’s monopoly on the use of force, judicial decisions possess precisely the enforcement capacity necessary for effective “rule of law.”

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Translated from German by Thomas and Kira Howes

This article, first published in German by the Austrian Institute, has also appeared in English on the website of The Vital Center (USA).