The Open Republic or Kafka’s Doorman

Abstract

This is the pivotal chapter in the book, covering the period when rights for nationals only are supplemented by universal human rights for the first time in history. It begins with the history of events leading to the statement of universal human rights as law in the French revolution of 1789–95. Analysis of the new approaches to law, rights and the state that emerged in sixteenth and seventeenth century France shows that they pre-exist the new state power and underpin it. Debates on the structure of the innovations proposed in the declaration of the Rights of Man and the Citizen of 1789 are examined in detail, highlighting their distance from earlier formulations of human rights for nationals only, typically made in Holland, Britain and the American colonies. The intentions behind the 1789 and 1793 declarations are emphasised because they became crucial to explaining why other systems of law, based on primacy for nationals, could not tolerate the universal rights intended in them. It also explains how the international system that emerged after the French defeat anathematised the notion of universal rights, thereafter typified as a sort of French disease. Only in France were there later attempts to restate those principles, particularly in 1848, as is shown in Chap. 5.