French traditions

As mentioned in the foregoing, the French declaration of human rights and citizen’s rights (Déclaration des droits de l’homme et du citoyen) can be considered one of the sources of inspiration for present-day human rights conventions. At the time of its adoption as a result of the French revolution, it was also one of the most advanced instruments protecting the rights of citizens. The emergence of the French Constitution and of the idea of protecting the rights of citizens, resulting in the adoption of the Declaration, have their origins in the period of Enlightenment and the revolution of 1789 referred to above, which clearly distinguish the French developments from the English and German ones¹⁷⁸, for example, where no comparable revolution took place. Further, as explained in the foregoing, there was influence from the United States, although the degree of impact has been subject to debate¹⁷⁹. According to Boyron, the revolution of 1789 meant a total shift in constitutional change, and modern constitutional history is often regarded as having begun at that time¹⁸⁰. The Declaration of human rights and citizen’s rights can also be considered to have launched the gradual change in the culture of protecting the rights of citizens at a European level.

178 See Zweigert & Kötz 1998, p. 136.

179 Favoreu 1990, p. 39.

180 Boyron 2011, p. 116. There was an ideological, societal, cultural and legal change.

When looking into the constitutional texts of France, existing at the moment of drafting the European Convention on Human Rights, it becomes clear that there are certain provisions in the Declaration that have served as a source of inspiration for those of international instruments. Those provisions include, in particular, the early equivalents of the prohibition of forced labour, the liberty and security of person, the principle of no punishment without law, the freedom of religion and thought, the freedom of expression and the freedom of assembly¹⁸¹. The Declaration also became an important source from which general principles of law have been derived in France, such as the equality of citizens before the law¹⁸². However, considering that the French Declaration of human rights and citizen’s rights is a product of an earlier century, it is evident that the provisions of the European Convention on Human Rights and other international instruments are considerably more detailed and provide for more extensive lists of rights as a result of negotiations. One may note, for example, that the existing French constitutional texts did not provide for the protection of private life. In comparison, the Belgian constitution of 1831 did provide for a right to enjoy such protection¹⁸³. Both the French and Belgian constitutions provide for the right to equality before the law. However, although the Belgian constitution appears to have bor-rowed several elements from the French Declaration, it had a few additional elements including an explicit prohibition of death penalty, which is an indirect way to provide for the right to life¹⁸⁴. Thus, despite that the French Declaration has been a source of inspiration for several national and international instruments protecting fundamental and human rights, it is not the only one but the international instruments are prod-ucts joining a large number of constitutional traditions, and the efforts to provide an even stronger protection of human rights after World War II lead to more advanced instruments than any national ones. Nevertheless, the fact that the fundamental rights provisions of the Belgian constitution have considerable similarities with those of the French one, demonstrates that the influence of the French constitutional traditions is not limited to the drafting of the European Convention on Human Rights, but there is further going influence. Both have been looked into even in the drafting of the Finnish Constitution, as well as a variety of other ones such as the German and Dutch ones.

Historical reasons may be found for the relatively strong influence of French con-stitutional traditions on the European Convention on Human Rights. The creation of

181 See Déclaration des droits de l’homme et du citoyen de 1789. The French Declaration, supplemented by a Preamble to the Constitution in 1946, is most clearly a document underlining natural rights, deriving from the sovereignty of the nation, when compared with other continental European instruments.

182 Steiner 1997, p. 268 and 269.

183 To be precise, the Belgian constitution provides for the inviolability of home and secrecy of communications.

184 See Constitution de la Belgique du 7 février 1831, Titre II – Des Belges et de leurs droits.

new constitutional law in France began as a result of the revolution in 1789 through the drafting of a declaration of human rights and citizen’s rights which was adopted in 1789, whereas the new Constitution was adopted two years later in 1791.¹⁸⁵ Al-though the Declaration was the first advanced instrument protecting human rights in continental Europe, only a certain privileged group of the nation could exercise political rights. That limitation on the enjoyment of political rights appears to have been shared with the other legal systems covered by the present study. Furthermore, a distinction was made between passive and active rights, i.e. civil rights and political rights.¹⁸⁶ The concepts of civil rights and political rights have later found their way to the International Covenant on Civil and Political Rights, albeit their meaning today may be somewhat modified, and the enjoyment of political rights is not limited to a privileged group of the nation. Thus, the early French idea of drawing a distinction between passive and active rights is visible in the Covenant, and even in the European Convention on Human Rights. Also, the European Convention on Human Rights provides for both sets of rights despite some differences in terminology.

The basic ideas in the Declaration, deriving influence from the earlier texts drafted in the English-speaking world¹⁸⁷, are that all human beings were born free and equal, insofar as their rights and obligations were concerned, which is also the underlying idea of the existing international human rights instruments including the European Convention on Human Rights. However, there is no explicit prohibition of discrimi-nation in the Declaration comparable with Article 14 of the Convention, which is a stronger expression of the principle of equality, except that the Preamble of 1946 pro-hibits discrimination between men and women. In the view of Glenn, the emergence of rights is linked with the idea of the centrality of person¹⁸⁸, which thus interestingly coexisted with the developments of the law of property. However, as referred to in the foregoing, certain groups of persons still at the end of the 18^th century enjoyed stronger rights than others, and only certain types of rights belonged to all. The principle of equality of citizens before the law has found its way to constitutions in other States and is also visible in the European Convention on Human Rights.

The Declaration was attached as preamble to the 1791 Constitution. In addition, the first chapter of the Constitution consisted of a provision protecting certain fundamental rights (Dispositions fondamentales garanties par la Constitution). The guaranteed rights were still considered natural rights that the Constitution also defined as rights of the

185 Jyränki 1989, p. 145.

186 See Jyränki 1989, p. 148 and 149, and Steiner 1997, p. 269.

187 Ségur 2007, p. 13. In the view of Ségur, the main difference between the Anglo-Saxon texts and the French Declaration was that the first-mentioned ones were rather pragmatic, whereas the latter was more ideological.

188 Glenn 2004, p. 142.

citizen that could not be restricted by the legislator.¹⁸⁹ Apart from those rights, important aspects included in the 1793 Constitution were a stronger protection of property rights and the idea of the freedom of religion, which included the right to civil marriage and divorce as well as the separation of the state and the church. The early property rights can be considered as the origin of modern economic, social and cultural rights.¹⁹⁰ The early emergence of the protection of property rights should perhaps be seen in the context of the development of society in general, particularly the growing industriali-sation and trade and the growing influence of those involved in trade. Such a special status afforded to property rights, along with the classic civil liberties, also existed in other legal systems, including the English, German and Nordic ones. As regards the European Convention on Human Rights, the protection of property is included in a separate protocol, which is due to that the level of protection is considerably different in the various States parties. Including the provisions in a separate protocol allows for those with a higher level of protection or protection by national constitutions to advance with implementation faster.

Further amendments were made to the Constitution in 1814, 1830 and 1848¹⁹¹, but despite the ideological change, no major changes really took place insofar as the material contents of the rights were concerned, apart from included the freedom of expression in 1814 and a possibility of derogating from the rights in time of ‘état de siège’ in 1848¹⁹². Freedom of association was recognised for the first time in 1901¹⁹³. Later, the fundamental rights provisions of the French Constitution became a combi-nation of the old Declaration of 1789 and the preamble of the Constitution of 1946.

Particularly the old Declaration links citizens’ rights strongly with the sovereignty of the people, but this fundamental idea is also reflected in the 1946 addition. The list of rights – as understood today – is also included in the preamble to the Constitution of 1958 which is still in force. Thus, the present Constitution affords a relatively strong protection of fundamental rights, following the spirit of early times. However, when compared with the provisions of the European Convention on Human Rights and the Basic Law of Germany, the fundamental rights provisions of the French Declaration and Constitution appear to be rather outdated, and therefore the strong protection of human rights and fundamental rights is a combination of the Constitution and the Convention.

189 Jyränki 1989, p. 163. See also Ségur 2007, p. 13. Ségur names three particular characteristics of the rights protected by the Declaration: first, they were individual i.e. they could not be enjoyed by groups or communities; second, they were absolute; and third, there is a strong focus on the idea of liberty (of which the political rights were derived).

190 Jyränki 1989, p. 163 and 164.

191 Boyron 2011, p. 116, footnote 2.

192 Jyränki 1989, p. 182, 190 and 195.

193 See Boyron 2011, p. 137.

The impact of the French constitutional traditions on the development of the text of the European Convention on Human Rights can be said to be particularly strong, when compared with that of other States parties to the Convention covered by the present research. This is even more so because the French traditions have also served as a significant source of inspiration for the constitutions of other European states, meaning also indirect influence on the Convention through the other States parties at-tending the negotiations. One may note, however, that the economic, social and cultural rights (apart from the freedom of religion) existing in the French constitution as from early times, particularly employment rights and educational rights, did not end up in the text of the Convention. Instead, a separate international instrument at universal level has been drawn up to protect those rights, and another one at the European level.

In principle, the French legal system should have been more prepared to adopt the European Convention on Human Rights and the case law of the European Court of Human Rights than the Finnish one, if assessed purely in the light of constitutional law which in Finland was until recently less developed in respect of the protection of fundamental rights. However, the question of legal and technical preparedness is not that simple. Even though the French constitutional fundamental rights provisions were more detailed than the Finnish ones, they were not necessarily that well suited either for being directly applied by the judiciary.