The Declaration of the Rights of Man and of CitizensJellinek, Georg
History
The Declaration of the Rights of Man and of Citizens
Jellinek, Georg
Constitutional history -- France; Constitutional history -- United States; Natural law
The immediate cause thereof lies clearly before us. The antagonism
between the dynasty of the Stuarts, who came from a foreign land and
relied upon their divine right, and the English national conceptions of
right, and also the religious wars with royalty in England and Scotland,
seem to have sufficiently favored the spreading of doctrines which were
able to arouse an energetic opposition. Yet similar conditions existed
in many a Continental state from the end of the sixteenth to the middle
of the seventeenth century. There, too, arose a strong opposition of the
estates to royalty which was striving more and more towards absolutism,
fearful religious wars broke out and an extensive literature sought with
great energy to establish rights of the people and of the individual
over against the rulers. The revolutionary ideas on the continent led it
is true in France to regicide, but there was nowhere an attempt made at
a reconstruction of the whole state system. Locke's doctrines of a Law
of Nature appear to have had no influence at all outside of England. The
Continental doctrines of natural law played their important part for the
first time at the end of the eighteenth century in the great social
transformation of the French Revolution.
It was not without result that England in distinction from the Continent
had withstood the influence of the Roman Law. The English legal
conceptions have by no means remained untouched by the Roman, but they
have not been nearly so deeply influenced by them as the Continental.
The public law especially developed upon an essentially Teutonic basis,
and the original Teutonic ideas of right have never been overgrown with
the later Roman conceptions of the state's omnipotence.
The Teutonic state, however, in distinction from the ancient, so far as
the latter is historically known to us, rose from weak beginnings to
increasing power. The competence of the Teutonic state was in the
beginning very narrow, the individual was greatly restricted by his
family and clan, but not by the state. The political life of the Middle
Ages found expression rather in associations than in a state which
exhibited at first only rudimentary forms.
At the beginning of modern times the power of the state became more and
more concentrated. This could happen in England all the easier because
the Norman kings had already strongly centralized the administration.
As early as the end of the sixteenth century Sir Thomas Smith could
speak of the unrestricted power of the English Parliament,[108] which
Coke a little later declared to be "absolute and transcendent".[109]
But this power was thought of by Englishmen as unlimited only in a
nominal legal sense. That the state, and therefore Parliament and the
King have very real restrictions placed upon them has been at all times
in England a live conviction of the people.
Public-domain text, read in full here on John Shaqi.
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