Rights Protection: British vs. French Revolutionary Models

Understanding the Guarantee of Rights

The guarantee of rights is a fundamental aspect of any political system. Different models approach this crucial task with distinct philosophies and structures.

The British Model of Rights Guarantee

In the traditional British model, the guarantee of rights is primarily resolved through:

• The **priority of the judiciary**.
• The **role of the legislature**.

The French Revolutionary Experience

In contrast to the British model, the French Revolution's experience with rights and freedoms was profoundly shaped by its historicist character. The Revolution *could not and would not* grant a major guarantor role to judges.

Rejecting Judicial Guarantors

This stance stemmed from the historical experience of the absolute state, where certain judges or officials, often seen as enemies of national political unity and inheritors of aristocratic privilege, sought independence from the political sovereign.

Natural Law and the Declaration of 1789

Instead, the Revolution sought refuge in the pre-state revolutionary statement regarding natural law. This belief that rights and freedoms are inherent led to the formulation of the first two articles of the Declaration of the Rights of Man and of the Citizen of 1789.

The Legislature and the General Will

How and why should the legislature and the powers that be feel linked to individual natural rights? The French revolutionary perspective held that the legislature *cannot* infringe upon the rights of individuals because it is inherently just. It embodies the general will of the people or nation.

The challenge was not to limit the legislature's discretion, as in the British model, but rather to assert its authority as the domain of the general will, overcoming the 'spirit of faction.' The stronger the legislature, the better it was believed to reflect the general will, and thus, the safer liberties and rights would be.

Legislative Virtue and Individual Rights

During the Revolution, there was no serious attempt to oppose the natural right to freedom with the positive law of the state. The true goal of the Revolution was to construct a *virtuous legislator*, one necessarily respectful of the rights of individuals as a fundamental expression of the general will.

Ensuring Rights Through National Representation

Ultimately, rights and liberties are considered secure if those who govern and those who legislate are truly an expression of the nation or the people. This means their authority must genuinely stem from the will of citizens, particularly concerning revolutionary issues of rights and freedoms, including civil or 'negative' rights.