十八世纪末的权利宣言
法律入门：关键概念和定义 ● 国家：职能、结构和政治制度 ● 法律的不同部门 ● 法律渊源 ● 法律的主要形成传统 ● 法律关系的要素 ● 法律的适用 ● 法律的实施 ● 瑞士从起源到20世纪的发展 ● 瑞士的国内法律框架 ● 瑞士的国家结构、政治制度和中立 ● 19世纪末至20世纪中叶国际关系的演变 ● 世界组织 ● 欧洲组织及其与瑞士的关系 ● 基本权利的类别和世代 ● 基本权利的起源 ● 十八世纪末的权利宣言 ● 二十世纪基本权利普遍概念的构建
18 世纪末的权利宣言，如法国的《人权和公民权利宣言》（1789 年）和美国的《权利法案》（1791 年），标志着基本权利历史上的高潮。然而，这些权利的起源可以追溯到 18 世纪以前。
基本权利通常被视为人类尊严的固有原则，是随着历史的发展而演变的。18 世纪之前的文件，如英国的《大宪章》（1215 年），通过限制君主的权力和承认贵族的某些权利，进而承认人民的某些权利，为这些权利奠定了基础。在中世纪和文艺复兴时期，哲学家和法学家开始构思后来影响权利宣言的理念。例如，当时已经开始讨论个人自由和公平正义的概念，并将其纳入各种法律和政治实践中。启蒙运动是 17 和 18 世纪的一场思想运动，在基本权利的发展中发挥了至关重要的作用。约翰-洛克（John Locke）、孟德斯鸠（Montesquieu）和让-雅克-卢梭（Jean-Jacques Rousseau）等哲学家提出了关于自然权利、社会契约和三权分立的理论，对 18 世纪末权利宣言的起草者产生了极大的影响。尽管十八世纪末的权利宣言是重要的里程碑，但它们是漫长历史和思想进程的顶点，而这一进程早在十八世纪之前就已开始。
美国权利法案 1776 - 1783
1776 年 7 月 4 日，美国十三个殖民地宣布从大不列颠王国独立，他们实际上断绝了与英王乔治三世的联系，建立了一个新的国家：美利坚合众国。这一独立宣言不仅标志着殖民地历史上的一个历史性转折点，也标志着全世界主权和民主治理思想的发展。
在《宣言》发表之前，这些殖民地处于英国主权之下，受英国议会和国王颁布的法律和政策管辖。与英国决裂的动机多种多样，其中包括经济上的不满，如没有议会代表的征税（"没有代表就没有税收"），以及日益增长的自治和自我治理的愿望。宣布独立后，十三个殖民地（即现在的各州）形成了邦联结构，作为其最初的政府形式。这种结构的特点是各州之间结成松散的联盟，每个州都保留了很大程度的主权和独立。邦联受《邦联条款》制约，该文件建立了各州的永久联盟，但授予联邦政府的中央权力却很少。邦联时期的政府结构暴露出一些弱点，尤其是在征税、管理贸易和维持秩序的能力方面。这些问题最终导致了1787年《美国宪法》的起草和批准，该宪法建立了一个更强大的联邦制度，平衡了中央政府和各州的权力。
1776 年《美国独立宣言》发表后，现已转变为主权国家的十三个殖民地开始起草自己的宪法。这一运动标志着以人民主权原则为基础的欧洲君主制的彻底决裂。这种做法是革命性的，它将政府的权力和合法性直接掌握在人民手中，而不是君主手中。
这些美国新州的宪法内容各不相同，但对人的自然和不可剥夺的权利有着共同的承诺。其中八个州，包括乔治-梅森（George Mason）于 1776 年起草了《权利法案》的弗吉尼亚州，更进一步在其宪法开头纳入了《权利法案》。这些宣言深受启蒙运动和约翰-洛克等哲学家思想的影响，他们提出了生命权、自由权和财产权的概念。这些权利宣言有几个基本功能。首先，它们明确承认基本自然权利的存在，如言论和宗教自由以及获得公平审判的权利。例如，《弗吉尼亚权利法案》明确规定了政府不得侵犯的自由，从而肯定了这些权利。其次，通过列举这些权利，他们试图限制政府的权力，从而提供保护，防止滥用权力和专制主义。最后，他们确认了民主原则，即政府是为人民服务而建立的，其合法性来自人民的意愿。这些宣言对人权历史产生了重大影响。它们不仅塑造了新美国各州的治理和政策，还影响了《权利法案》的起草，即 1791 年批准的《美国宪法》前十条修正案。这些历史性文件奠定了公民权利的基础，并继续影响着世界各地关于自由和正义的当代辩论。
1776 年 6 月通过的《弗吉尼亚权利宣言》实际上是新世界第一部正式的权利法案。然而，有必要澄清托马斯-杰斐逊在其中扮演的角色。虽然人们普遍认为杰斐逊起草了 1776 年 7 月 4 日通过的《美国独立宣言》，但事实上，乔治-梅森才是《弗吉尼亚权利宣言》的主要作者。弗吉尼亚权利宣言》对《独立宣言》和其他基本文件产生了重大影响。梅森在文中阐述了个人自由和人权的原则，如言论自由、新闻自由、宗教自由和获得公平审判的权利。这些思想与《独立宣言》中阐述的原则产生了共鸣，《独立宣言》阐明了反对英国压迫的自由和自治理想。
杰斐逊在起草《独立宣言》时，借鉴了这些理念以及启蒙哲学家的思想，为殖民地脱离英国进行辩护。这两份文件之间的联系证明了当时的思想和政治氛围，自然权利和民主政府的思想正被越来越多的人所接受。弗吉尼亚权利宣言》还成为美国未来权利法案的范本，并影响了《权利法案》（美国宪法前十条修正案）的制定。因此，它对美国建国和西方世界人权发展的影响是毋庸置疑的。
1787 年，美利坚合众国通过了《美国宪法》这一建国文件，确立了美国联邦政府的框架。这部宪法是在费城会议上起草的，标志着从《邦联条款》下的邦联结构向更强大、更集中的联邦制度的重大过渡。弗吉尼亚权利法案》对美国宪法的影响，尤其是第一修正案，是美国宪法史的一个重要方面。虽然 1787 年的原始宪法并未包含《权利法案》，但明确保护个人权利的要求是许多代表和公民的主要关切。
这种担忧部分源于《弗吉尼亚权利宣言》等文件的影响。弗吉尼亚宣言》中提出的言论自由、宗教自由和公平审判权等原则被视为保护公民免受过于强大的中央政府侵害的必要条件。这就是为什么在《宪法》获得批准后，美国第一届国会的首批行动之一就是提出一系列修正案来保障这些权利。这些修正案统称为《权利法案》，深受《弗吉尼亚权利宣言》和乔治-梅森思想的影响。这些修正案由詹姆斯-麦迪逊于 1789 年提出，并于 1791 年获得批准，成为《宪法》的前十条修正案。权利法案》保障了许多公民自由，限制了联邦政府的权力，反映了几年前《弗吉尼亚权利法案》所表达的关切和理想。
法国权利宣言 1789 - 1795
Between 1789 and 1804, a period marked by the French Revolution and its aftermath, France experienced a rapid succession of constitutions, each incorporating a declaration of rights. This period of intense political transformation reflected the revolutionary ideals of liberty, equality and fraternity, and the desire to break with the old monarchical regime.
The first of these constitutions, adopted in 1791, drew heavily on the Declaration of the Rights of Man and of the Citizen, proclaimed in 1789. This influential and revolutionary declaration set out universal principles of individual rights and popular sovereignty. It was strongly influenced not only by Enlightenment philosophers such as Jean-Jacques Rousseau and Montesquieu, but also by the examples of American bills of rights. Indeed, the French constitution-makers were well aware of constitutional developments in the United States. The declarations of rights in the various constitutions of the American states, as well as the Declaration of Independence of 1776, were important references. They served as models for the development of principles of rights and governance in French constitutional documents.
During this period, each new French constitution attempted to respond to changing political and social challenges. For example, the Constitution of Year III (1795), adopted during the Directoire period, and that of Year VIII (1799), which marked the beginning of the Consulate under Napoleon Bonaparte, both included declarations of rights, although their practical application varied according to the political realities of the time. This series of constitutions in France, with their declarations of rights, demonstrates how the ideals of the French Revolution evolved and were put into practice in different ways. At the same time, the transatlantic influence of American constitutional developments on France at the time is an early example of the interconnectedness of revolutionary ideas and human rights across the world.
In 1789, France was plunged into a period of deep crisis, marked by political, economic and social turmoil. It was a pivotal year in French history, marking the beginning of the French Revolution, a movement that would radically transform French society and influence the whole world. The crisis was fuelled by a variety of factors, including economic difficulties exacerbated by France's involvement in the American War of Independence, financial mismanagement by the monarchy, poor harvests leading to higher bread prices, and general dissatisfaction with a rigid and unequal feudal system. Against this backdrop, on 17 June 1789, deputies from the Third Estate, joined by some members of the clergy and nobility, proclaimed themselves the National Constituent Assembly, stating their intention to draft a new constitution for France. This action was revolutionary in itself, as it challenged the absolute authority of King Louis XVI and claimed the power to govern in the name of the people.
One of the first and most important acts of this Constituent Assembly was the drafting of the Declaration of the Rights of Man and of the Citizen, adopted on 26 August 1789. This declaration established the fundamental principles that were to become the cornerstones of the French Revolution and modern democracies. It proclaimed rights such as liberty, property, security, resistance to oppression, equality before the law, and freedom of speech and religion. The Declaration of the Rights of Man and of the Citizen was strongly influenced by the ideals of the Enlightenment and by documents such as the American Declaration of Independence and the Declarations of Rights of the American States. It represented a radical break with the old order and established the principles of a new regime based on the rights and sovereignty of the people. The Declaration became an emblematic document of the French Revolution and had a lasting impact on the development of human rights and liberal democracies around the world.
The 1789 Declaration of the Rights of Man and of the Citizen, adopted in the context of the French Revolution, represents a pivotal moment in the history of human rights and political thought. Strongly influenced by the ideas of the Enlightenment and documents such as the Virginia Declaration, the Declaration sought to codify the universal principles of liberty, equality and the inalienable rights of the individual.
The articles of the Declaration, reflecting these ideas, are deeply rooted in the context of the times. For example, Article 1 states: "Men are born and remain free and equal in rights. Social distinctions can only be based on the common good". This affirmation of fundamental equality and innate freedom was part of a reaction against the feudal structures and aristocratic privileges of the Ancien Régime. Article 2, which states: "The aim of every political association is the conservation of the natural and imprescriptible rights of man. These rights are liberty, property, security and resistance to oppression", echoing the philosophy of John Locke and other Enlightenment thinkers, emphasising the role of government as protector of the fundamental rights of the individual. As for individual freedom, Article 4 defines its scope: "Freedom consists in being able to do whatever does not harm others: thus the exercise of the natural rights of each man has no limits other than those which ensure the enjoyment of these same rights by the other members of society. These limits can only be determined by law". This concept of freedom, limited by the rights of others and governed by law, is a pillar of modern liberal theory. Article 6, which addresses the notion of law and democracy, states: "The law is the expression of the general will. All citizens have the right to contribute personally, or through their representatives, to its formation. It must be the same for all, whether it protects or punishes. As all citizens are equal in its eyes, they are equally eligible for all public dignities, positions and jobs, according to their ability, and without any distinction other than that of their virtues and talents". This article highlights the idea of a society based on equality before the law and the right to political participation. Article 7 addresses the issue of legal justice: "No one may be accused, arrested or detained except in the cases determined by law and according to the forms it has prescribed. Those who solicit, dispatch, carry out or cause to be carried out arbitrary orders must be punished; but any citizen summoned or seized by virtue of the law must obey immediately: he renders himself guilty by resisting". This protection against arbitrary arrest and detention was a direct response to the abuses of the Ancien Régime. Finally, Article 11, which states: "The free communication of thoughts and opinions is one of the most precious rights of Man: every citizen may therefore speak, write and print freely, without being held accountable for the abuse of this freedom, in the cases determined by the law", and Article 17, which states: "As property is an inviolable and sacred right, no one may be deprived of it, except when legally established public necessity obviously requires it, and subject to fair and prior compensation", illustrate the importance attached to the civil liberties of speech, press and property. These articles, which were incorporated into the Declaration of the Rights of Man and of the Citizen, laid the theoretical foundations of modern democratic regimes, having a profound influence on the development of democracy.
The Declaration of the Rights of Man and of the Citizen, proclaimed in 1789 at the height of the French Revolution, is a fundamental historical document, establishing principles that would redefine the notions of fundamental rights in modern society. Reflecting the spirit of the times and influenced by Enlightenment philosophers such as Jean-Jacques Rousseau and John Locke, this Declaration formulated rights that embodied the deep aspirations of the French people in the face of oppression and injustice.
Liberty, a central pillar of the Declaration, is addressed in several of its articles. It is defined not only as an intrinsic human right, but also as a principle that must be exercised with respect for the rights of others, marking a transition from absolute notions of freedom to a more social and interdependent understanding of the concept. In addition, the Declaration recognises security as an essential right, guaranteeing the protection of individuals against abuse and arbitrary treatment. In the context of the time, when arrests and imprisonment without just cause were commonplace, this right took on particular significance, symbolising a rejection of the abusive practices of the Ancien Régime. The right to resist oppression is also affirmed, directly reflecting the revolutionary circumstances of 1789. This inclusion was revolutionary because it legitimised revolt against an unjust government, a concept that was in direct contradiction with the monarchical principles of divine right and absolute obedience to the sovereign. Property, declared to be an inviolable and sacred right, testifies to the importance attached to the protection of personal assets. In a society in the throes of change, where feudal rights were being called into question, the recognition of property as a fundamental right was a step towards modern social and economic organisation. Finally, security, understood as protection against unjust and arbitrary treatment, is a fundamental right set out in the Declaration. It provides legal protection for citizens, ensuring that government actions are based on legal and just principles.
These rights, articulated in the Declaration of the Rights of Man and of the Citizen, are not just abstract ideals; they reflect the struggles and aspirations of a nation in the throes of transformation. They were conceived in direct response to the challenges and abuses of the time, and their influence extended far beyond the borders of France. This document became a model for future declarations of human rights and has had a profound influence on the development of democratic constitutions and legal systems throughout the world.
The Declaration of the Rights of Man and of the Citizen of 1789 in France and the Virginia Declaration of Rights of 1776 in the United States are two crucial historical documents that laid the foundations for first-generation fundamental rights. These first-generation rights focus primarily on civil and political liberties, emphasising the principles of individual freedom, political participation, justice and protection against arbitrary government. In both declarations, there is a strong emphasis on rights such as freedom of expression, freedom of religion, the right to a fair trial, protection against arbitrary arrest and detention, and the right to property. These rights are considered fundamental because they are essential to individual dignity and effective participation in a democratic society.
The Virginia Declaration, drafted principally by George Mason, was one of the first to codify these rights in a government document. It influenced not only the US Constitution and its Bill of Rights, but also other bills of rights around the world, including France's Declaration of the Rights of Man and the Citizen. For its part, the Declaration of the Rights of Man and of the Citizen, adopted in the tumultuous context of the French Revolution, marked an important step in the recognition of individual rights against the oppression of a monarchical regime. It reflected and amplified the ideas of Enlightenment philosophy, particularly with regard to popular sovereignty and the inalienable rights of the individual. These documents laid the foundations for subsequent developments in human rights. The first-generation rights, as set out in these declarations, continue to form the core of modern democratic constitutions and international declarations of human rights, underlining their enduring importance and relevance in the struggles for freedom and justice.
France's 1789 Declaration of the Rights of Man and of the Citizen, while laying the foundations for civic and political rights, did not actually contain any provisions relating to social rights. This absence reflects the historical context and ideological priorities of the time, which focused primarily on individual liberty, protection from government oppression, and the establishment of democratic principles. The emphasis at the time was on building a parliamentary democracy, and in some cases a direct democracy, where sovereignty resided with the people. The rights set out in the Declaration of 1789 were primarily designed to limit the power of government and guarantee individual freedoms, such as freedom of speech, freedom of religion, and the right to property.
Social rights, such as the right to work, education, health and social security, only began to be widely recognised in the late nineteenth and early twentieth centuries. This development was largely due to social and economic changes, in particular industrialisation and the emergence of workers' movements, which highlighted the social inequalities and difficulties caused by industrial capitalism. These social rights were gradually incorporated into national constitutions and international human rights instruments over the course of the twentieth century, notably with the adoption of the Universal Declaration of Human Rights in 1948, which included both civil and political rights and economic, social and cultural rights. The Declaration of 1789, while a fundamental document in the history of human rights, represented an initial stage in the evolution of human rights, with a focus on civil and political rights. The inclusion of social rights in human rights discourse came later, in response to the needs and challenges of an industrial and post-industrial age.
The enduring popularity and influence of the 1789 Declaration of the Rights of Man and of the Citizen lies in its universal scope and innovative character. Drafted in August 1789, at the height of the French Revolution, the Declaration was revolutionary not just for France, but for the whole world, establishing principles that transcended national borders and cultural particularities. The main aim of the Declaration was to clearly define fundamental rights, laying the foundations for the drafting of France's future constitution. The Constituents wanted to establish a set of principles that would guide the transformation of French society from an absolute monarchy to a society based on popular sovereignty and individual rights. The speed with which it was drafted, in just one week, testifies to the urgency and intensity of the political and social debates of the time. Despite this, the Declaration managed to capture the spirit of the times and articulate ideas that resonated deeply with the aspirations of the people. It dealt with concepts such as freedom, equality, property, and resistance to oppression, themes that were at the heart of revolutionary concerns.
The Declaration gained such popularity and respect that it has not been substantially altered since, acquiring an almost sacred status in French constitutional history. Its reputation and influence quickly spread beyond France, inspiring democratic movements and human rights struggles around the world. Its universalism and originality made the Declaration a fundamental text in the history of human rights, a document that continues to be cited and referenced in discussions on civil and political rights around the world. Its rapid drafting, far from diminishing its significance, seems to have captured the essence of revolutionary ideals in a succinct and powerful way, which partly explains its popularity and longevity.
The 1789 Declaration of the Rights of Man and of the Citizen, revolutionary in its content and scope, is distinguished by its universalism, intended to apply not just to French citizens but to all mankind. This approach marks a significant break with previous rights documents, which were often limited by national contexts or specific statuses. The intention of the drafters of the Declaration was to create a document that would transcend national boundaries and speak to a universal set of human rights and principles. This reflects the influence of Enlightenment philosophers such as Jean-Jacques Rousseau and John Locke, whose ideas on natural rights and popular sovereignty were based on concepts of universal humanity and inalienable rights. The emphasis placed on "man" and "the citizen" in the Declaration underlines this universal ambition. The term "man" refers to humanity as a whole, affirming rights and freedoms that are intrinsic to all human beings, regardless of their nationality or social status. At the same time, the use of the term "citizen" emphasises the active role of individuals in governance and political society, reflecting the ideals of democratic participation and popular sovereignty. The Declaration thus established a framework in which individual rights and freedoms were not just the prerogative of French citizens, but principles applicable to all peoples. Its influence has been global, inspiring human rights movements and democratic reforms far beyond France. The principles set out in the Declaration have been incorporated into numerous national constitutions and international human rights instruments, affirming its central role in the history of human rights.
The brevity of the 1789 Declaration of the Rights of Man and of the Citizen is in fact linked to its objective of universalism. By focusing on the expression of major fundamental principles, the Declaration aimed to set out clear, powerful and widely acceptable ideas that could be understood and embraced by everyone, regardless of their national or cultural context. This approach reflects the desire of the drafters to create a document that would transcend local specificities and speak to universal aspirations for justice, freedom and equality. By refraining from getting bogged down in details or overly specific provisions, the Declaration has been able to articulate principles that are both profound and general enough to be applicable in a variety of contexts.
These principles, such as liberty, equality before the law, popular sovereignty, and the rights to property and security, were designed to withstand the tests of time and changes in political or social circumstances. Their concise wording and universal character facilitated their adoption and incorporation into legislation and constitutions throughout the world, as well as in subsequent international declarations on human rights. The brevity of the Declaration of the Rights of Man and of the Citizen is not a limitation, but rather a strength. It allowed the document to capture the essence of revolutionary ideals in a clear and memorable way, contributing to its iconic status and lasting influence in the history of human rights.
The 1789 Declaration of the Rights of Man and of the Citizen does indeed place particular emphasis on the individual, asserting rights that fall within the personal sphere and requiring the State to adopt an attitude of non-interference in certain private affairs. This approach is fundamentally rooted in individualism, a key feature of the liberal thinking that was emerging at the time. One of the central principles of the Declaration is the freedom of the individual, understood as the right to be and act without unwarranted interference by the state. This principle implies an obligation on the part of the State to limit its action in the lives of its citizens, except where necessary to protect the rights of others or for the common good. This notion of individual liberty is a reaction against the abuse of power and arbitrary interference by the State that were typical of the Ancien Régime. The importance attached to the right to property in the Declaration also reflects this trend towards individualism. Property is considered an inviolable and sacred right, underlining the value that liberal society places on individual possession and economic autonomy. The right to property is seen not only as a pillar of personal freedom, but also as an essential element of the social and economic order.
It is interesting to note that, from this perspective, the right to property does not impose any explicit obligations on society or the state beyond the recognition and protection of this right. This vision reflects the idea that the protection of individual rights, including the right to property, is in itself sufficient to guarantee a fair and balanced society. The Declaration of the Rights of Man and of the Citizen is deeply rooted in an individualist framework, in which personal freedom and property are seen as fundamental to the development of the individual and the functioning of the State. This orientation had a considerable influence on the subsequent development of political and legal theories, particularly in Western countries.
The 1789 Declaration of the Rights of Man and of the Citizen, adopted in the tumultuous aftermath of the French Revolution, quickly gained widespread popularity in France and beyond for its innovative approach and universalism. Its success can be attributed to a number of contextual and historical factors that interacted to make this document a powerful symbol of freedom and human rights. At the heart of the French Revolution, society was going through a period of profound political and social change. The ideas of Enlightenment philosophers such as Jean-Jacques Rousseau's "Social Contract" and John Locke's "Natural Rights" had already paved the way for a challenge to the established order. These philosophers defended the principles of individual liberty, equality and democratic governance, which are reflected in the Declaration. The Declaration, in its conciseness, brilliantly encapsulated these ideals. By emphasising individualism and property rights, it responded to a deep-seated desire for protection against abuses of state power and for recognition of individual freedoms. Individualism, in particular, resonated with the aspirations of a population eager to free itself from the shackles of the feudal and monarchical structure. In addition, the right to property was seen as a fundamental pillar of economic and personal independence, in stark contrast to the inequalities of wealth and status of the Ancien Régime.
The Declaration's impact extended far beyond France's borders. Its universalism inspired human rights movements and democratic reforms in other parts of the world. For example, the Declaration's ideals influenced revolutionary movements in nineteenth-century Europe and also played a role in the development of the Universal Declaration of Human Rights in 1948, underlining its enduring and global influence. The popularity of the 1789 Declaration of the Rights of Man and of the Citizen was no accident of history, but the result of a perfect alignment between the aspirations of the moment, the philosophical influences of the time and the clear and powerful presentation of universal principles that continued to resonate with the emerging values of the modern age. Its legacy lives on, still symbolising the struggle for freedom and justice throughout the world.
The influence of the declarations of rights that emerged from the French Revolution, notably the Declaration of the Rights of Man and of the Citizen of 1789 and the revised version of 1795, extended far beyond the borders of France, touching many countries in Europe, including Switzerland. This period was marked by the spread of French revolutionary ideals across the continent, often accompanied by political and constitutional changes in territories conquered or influenced by France. Switzerland, with its first constitution in 1798, is a notable example. The Helvetic Republic, established under French influence, adopted a constitution that reflected the principles of the French Revolution. Although this constitution was inspired by French ideas, particularly with regard to the centralisation of power and individual rights, it also had to take account of Swiss specificities and traditions.
The French Revolution had a considerable impact on Europe, not only in terms of territorial conquests but also in exporting its political and legal ideals. French declarations of rights served as a model for reformers and revolutionaries in other countries, inspiring constitutional changes and legislative reforms. They introduced concepts such as popular sovereignty, equality before the law, and individual liberties, which were new and revolutionary for many European societies at the time. However, the adoption of these ideals was not always simple or straightforward. In many cases, efforts to implement French revolutionary principles met with local resistance, entrenched traditions and complex political contexts. For example, although the Constitution of 1798 marked a milestone in Swiss constitutional history, it also gave rise to controversy and internal conflict, reflecting the challenges of adapting French revolutionary ideas to other national contexts. The influence of the French Revolution's declarations of rights spread across Europe, having a profound effect on the continent's political and legal development. Switzerland, with its constitution of 1798, is an example of how these ideas were adapted and integrated into other political systems, illustrating the lasting and widespread impact of French revolutionary principles.