French Revolution: Power, Law, and the People
No constitutional despotism. Sections seven, eight, and nine claim classical liberal principles: the typicality of offenses, the prohibition of analogy in criminal matters, the non-retroactivity of criminal law, and the presumption of innocence.
The adoption of an individualistic and contractarian scheme brings up two factors that require reformulation.
The first is the legicentrist right present in the Bill of Rights. Legicentrism is the point in the revolution mediating between individual and state. For French revolutionaries and the Bill of Rights, law is more than a technical instrument reinforcing pre-existing rights and freedoms.
Legicentrism corrects the statist individualist model. The image of pre-state rights joins the equally strong image of rights existing only when law makes them possible. These two images coexist in the French Revolution, expressed in the myth of the legislator embodying the general will, speaking the language of generality and abstraction. Full authority ensures that no person can be limited in their rights by another except by law, the only legitimate authority.
Due to the legicentrist factor, the revolutionary culture of rights and freedoms is neither radically individualistic nor radically statist. Against the former, the law’s general and abstract nature is the first condition for rights and freedoms. Against the latter, Article Two of the Bill of Rights states: “The end of all political association is the conservation of natural and inalienable rights of man,” existing before the state’s political will and its law.
The constitutional factor, linked to the individualistic model, especially its contractual aspects, necessitates legicentrism. In a strictly individualistic contractualism, the state is not merely what best protects pre-existing individual rights and freedoms; the state exists because of the need to protect them.
The French Revolution’s nation or people is, from the outset, a combative political concept. Rights and freedoms must be actively constructed by the revolution against its enemies, prescribing a better, fairer future.
This leads to the second key difference between the French Revolution and the traditional British model. The French Revolution has not only a strong, authoritative legislator regarding rights and freedoms but also a constituent power of the people or nation, dynamically projected toward the future. This power legitimizes the legislature but can also threaten or destroy its authority, creating the unprecedented problem of the relationship between constituent and legislative power.
Article 6: “The law is the expression of the general will. All citizens have the right to participate personally or through their representatives in its formation.” The Framers deliberately left open the choice between direct democracy (“personally”) and representative democracy (“through their representatives”).
The revolution rejects the institutional dimension of representation, affirming the inherent right of the self-represented people or nation, thus avoiding the old regime’s logic where the kingdom was a unified political entity only through the monarch’s representation. Accepting representative democracy meant betraying the revolution, which aimed to return to a situation where the sovereign constituent body existed without representation by a constituted public authority, even a democratically elected legislature.
The revolution contains a doctrine rejecting representative democracy and another extolling its virtues, nearly canceling the constituent power of citizens.
The second line of thought arose from separating from another aspect of the old regime: the imperative mandate. The denial of this practice—the power to instruct and withdraw representatives by regional and professional communities—led to the exaltation of representative democracy. Elected officials could finally represent the entire nation or people, free from corporate and estate ties.
Making revolution meant freedom from the monarchical principle, a statist tradition where the body politic existed as a nation only through the monarch’s representation. Revolution prevented the formation of a new sovereign legislator, like the monarch, claiming to be the prius of the political dynamic. Making revolution meant dismantling the political model; revolution is suspicious of established power, mobilizes citizens, aims for direct democracy and universal suffrage, and involves the people directly in legislation.
Representative democracy, based on citizen consensus but separating the force of special interests from the sovereign electorate, was envisioned. Revolutionary contractualism becomes political voluntarism, subjecting the political structure and constitution to the sovereign people’s direct will. Conversely, the doctrine of representative democracy, in opposition to this, assumes statist accents, incorporating the nation’s or people’s original sovereignty into the legislature’s and established powers’ sovereignty.
The French Revolution presents two opposing versions of political freedoms:
- Voluntarism: The exercise of freedoms and the right to vote becomes meaningful only through active citizenship and the continuous presence of the sovereign people in primary assemblies.
The 1793 Jacobin Constitution aimed to connect all state agencies and public functions to the original sovereign power of the people.