The first constitution to make human dignity its leading principle was…

…the Vichy constitution of 1944.

 

Its first article read: “The liberty and dignity of the human person are supreme values and intangible goods.”

 

I have recently been looking into this, on a tip from James Chappel, with help from my research assistant Rachel Craft, and advice from my honored former colleague Bob Paxton. In case it is of general interest, or anyone out there knows more, I am reporting my findings here, which I am incorporating in the final version of my historical work on dignity in constitutions in my forthcoming book Christian Human Rights.

 

It should be quite revealing that dignity could figure so prominently in a Vichy text. It is also fascinating chronologically. As I have recorded elsewhere, dignity’s big entry into constitutional history occurred in 1937, in the preamble to the Irish constitution, before it entered the UN Charter, the Bavarian and other Länder constitutions, the Italian Constitution, and later the Universal Declaration of Human Rights and the German Federal Basic Law (in that order) between 1945 and 1949. Below the international level what we get, in short, is a workable correlation with the makings of Christian Democracy as a political regime, in the crucial era of its formation. Nowhere else – except, so far as I know, South Korea, before its own later authoritarian interlude – did human dignity register in national constitutions, until the rise of the contemporary human rights movement and the example of the South African constitution made it obligatory.

 

The Vichy constitution, though never enacted, is extremely interesting, not least since it helps us see that human dignity was very promiscuous, in an era before World War II was over and when it became more necessary for political Christianity to be compatible with parliamentary democracy (with certain exceptions, like the Iberian peninsula for decades).

 

Where the Irish constitution had merely registered human dignity in passing in its preamble (and pioneered a kind of Christian Democratic response to secular liberalism), the Vichy constitution made dignity leading first article. This occurred across a number of stages.

 

After the fall of France and the “National Revolution,” Marshal Philippe Pétain governed the unoccupied south under emergency rule, a situation that he soon saw the need to think about regularizing. According to Vice Admiral Jean Fernet, Philippe Pétain’s adviser who left the most detailed published memoirs on the subject, the marshal was never sure his fealty to the French nation was compatible with the whole exercise of written constitutions.[1] In 1941 the goal was to break thoroughly with the Declaration of the Rights of Man and Citizen in the name of different principles — nation, family, religion, and duties to community far more than rights for individuals — in a restorative act after republican dissolution.[2]

 

And yet, already when an initial draft of a constitution was entertained in that summer, a greater emphasis than ultimately obtained on the authoritarian nature of the state remained compatible with a section on “the human person” with his “duties and rights.” (The rest of Christian Human Rights details where the formula of “the human person” came from — which is important since it also appears in the Universal Declaration of Human Rights.) The rationale for the section was a vision of far-right rule that leaned more towards Christianity and its unique version of counteracting liberalism than the Nazi regime countenanced. In this vision, according to the constitution’s text, above sovereignty, including that of the authoritarian leader, was the (Christian) moral law — something Adolf Hitler would never have acknowledged. But the moral law supported authoritarianism as much constrained it, and it provided a recipe for social order much more compatible with religious thinking.

 

Often inspired the Christian corporatism and familialism of António Salazar’s 1933 authoritarian constitution, but also by an explicit desire for Christian personalism to replace liberal individualism, the 1941 draft — unlike the Portuguese document — even mentioned “dignity” in a subsidiary article that explained: “The state recognizes and guarantees the rights of the human person, liberties that are essential to his dignity and the realization of his higher ends.”[3]

 

As the war wore on, this first constitutional try began to look premature; and the winds shifted against the mood of a more purist National Revolution that the initial draft had reflected. In two more stages, however, the revision process made Christian personalism even more important to the text, as the document was “republicanized” in order to seek an adjusted path.[4]

 

Grudgingly, Pétain — pressured and to some degree displaced by head of government Pierre Laval on this matter, especially as ultimate German defeat seemed ever more likely — was prepared to allow more continuity with the “habits” of overthrown democracy, rather than constitutionalize formal autocracy, even though it meant disappointing hard core reactionaries. (According to Fernet, some trusted confidants whom Pétain consulted were “shocked by the liberal character of the project” especially “given the Marshal’s justified critiques of the shortcomings of demagogic parliamentarism.”)[5]

 

Finalized in late 1943, the constitutional proposal now placed human dignity at the very top, within a larger persisting scheme of reference to communitarian social principle. Indeed, the result was a first article disturbingly similar to more famous postwar ones: “The liberty and dignity of the human person are supreme values and intangible goods.” It added: “To guarantee them demands order and justice of the state, and discipline from the citizens.”[6] But German proconsul Otto Abetz would not allow the plan to be enacted because of its “clerico-bourgeois-reactionary” character.[7]

 

There was not just dignity at the top, but a fuller schedule of rights than in the 1941 draft. A recent survey of French constitutions notes: “it is amazing to register that, during the very period during which the laws of the French state organized a profound discrimination against people of Jewish origins…, the constitutional draft began by a declaration of rights, made up of twelve articles that are perfectly democratic in their inspiration, at least on paper.”[8] This was because the constitutional project undertook a difficult balancing act in which the overthrow of liberalism could take many different forms – and the acknowledgment of the importance of the human person could coexist with the rejection of obsolete liberal individualism.

 

A decade after the war, former Vichy official Xavier Vallat, who organized Jewish deportation for the regime, claimed that Pétain later asked him to revise the now excessively republican constitution further into the summer of 1944, just before D-Day and Liberation; but it now seems doubtful that this is true — and in any case Vallat’s own text left the leading article on dignity undisturbed.[9]

 

I infer from all this simple couple of lessons. For one thing, human dignity left many options open long into the war, for the simple reason that the forms of Christian politics had not yet been fully winnowed. Second, human dignity was much more about imposing order than affording liberation, before and after the war. It is unsurprising that when dignity initially graced constitutions after World War II – as in the Irish constitution before it — the goals were as much a program to domesticate individual entitlements within a communitarian politics as anything else.

 

A final note: The Fourth Republic Constitution of 1946 omitted “human dignity” (though it does feature the human person). Perhaps it was out of awareness of Vichy discourse — and the strength of socialism at the time — that, as Stéphanie Hennette-Vauchez has examined, French law skirted “dignity” until as late as the 1990s, in spite of its mushrooming in Christian Democratic Europe before.[10]

 

[1] Jean Fernet, Aux côtés du maréchal Pétain: Souvenirs (1940-1944) (Paris: Plon, 1953), 216.

[2] Michèle Cointet, Le conseil national de Vichy: Vie politique et réforme de l’État en régime autoritaire (Paris: Amateur de livres, 1989), 137-56 at 137, 142.

[3] Ibid, 412-13; see also Étienne Le Floch, “Les projets de constitution de Vichy (1940-1944)” (Ph.D. diss., University of Paris, 2003), 67-70 (personalism), 101-2 (the Portuguese model).

[4] Cointet, Le conseil, 301-6, 324-27.

[5] Fernet, Aux côtés, 219-20.

[6] “Projet de constitution de la République française,” (30 janvier 1944), rpt. in Fernet, Aux côtés, 287.

[7] Robert O. Paxton, Vichy France: Old Guard and New Order, 1940-1944 (New York: Knopf, 1972), 193n.

[8] Michel de Guillenschmidt, Histoire constitutionnelle de la France depuis 1789 (Paris: Economica, 2000), 102.

[9] Xavier Vallat, “La Constitution voulue par le Maréchal,” Écrits de Paris no. 128 (June 1955): 53.

[10] Stéphanie Hennette-Vauchez, “Human Dignity in French Law,” in Roger Brownsword and Dietmar Mieth, eds., Cambridge Handbook of Human Dignity (Cambridge: Cambridge University Press, 2014).

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