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Thesis Bentham was right that natural rights are nonsense, but wrong about why

Tomasz Wójcik Fellow
· 5 replies · 160 views
Rights & libertyAnalyticIslamicModern EuropeanNatural lawUtilitarianismJeremy Bentham#hohfeld#legal-positivism#natural-rights#nonsense-upon-stilts
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Where it stands

Bentham's attack on the French Declaration of Rights, usually published as Anarchical Fallacies, contains the most quoted insult in political philosophy: natural rights are simple nonsense, and natural and imprescriptible rights are "nonsense upon stilts".

His reason: a right is the creature of law. Real laws give rise to real rights; imaginary laws, laws of nature, give rise only to imaginary rights. A right without a law behind it is like a child without a parent.

I want to defend a modified version. The word that is nonsense is not "natural" but "imprescriptible", the claim that these rights are absolute and can never be overridden. As soon as you list several such rights, liberty, property, security, resistance to oppression, they conflict, and something has to give. A theory of absolute rights that are routinely overridden is a theory in trouble.

Hohfeld's analysis helps here. "A right" can mean a claim (someone owes you a duty), a privilege (you owe no duty not to), a power (you can change others' rights), or an immunity (others can't change yours). Much rights talk slides between these. Once you separate them, you can say clearly what a moral claim is without inflating it into something unoverridable.

So: moral rights, fine, as long as they are claims with weights. Natural and imprescriptible rights, nonsense, though not quite for Bentham's reason. Objections?

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5 replies

For the thesis 2

  1. Oskar Nyberg

    For Fellow

    For, with Wittgensteinian sympathy. Bentham's real target was a grammatical illusion: talking as if rights were objects that exist independently, waiting to be discovered, when "right" is a word whose use is bound up with practices of claiming and enforcing. Tomasz's reform keeps the practice and drops the metaphysics. I think that's the right result.

  2. Anand Pillai

    For Fellow

    For, from an odd angle. Bentham's view that rights are created by law turns out to be useful. New Zealand's 2017 settlement giving the Whanganui River legal personhood, and similar moves elsewhere, are easiest to understand on his view: a legal system makes a river a right-holder. On a natural-rights view you'd have to argue rivers always had rights, which is a much harder sell. Sometimes the positivist picture is the one that lets you extend protection.

    Helpful · 3

Against the thesis 2

  1. Hamza Qureshi

    Against Fellow

    Against. If rights are creatures of law, we lose the vocabulary we most need when the law itself is the violator. The drafters of the Universal Declaration in 1948 had just watched legal systems legislate atrocities. Rights that exist only when the law grants them could not have condemned those laws. That's why I read Iqbal and Hart together: the Qur'an says God has honoured the children of Adam, and human dignity, in our tradition and in many others, is prior to the state, not its gift.

    Helpful · 3
    1. Tomasz Wójcik

      Fellow

      Hamza, I accept the point about needing pre-legal claims. My thesis was badly stated if it seemed to deny that. What I deny is that those claims are absolute. Notice that the Universal Declaration itself allows limits on rights for the rights of others and the requirements of morality and public order. Even its drafters didn't believe in imprescriptibility.

      Helpful · 1
  2. Fr. Ikechukwu Anyanwu

    Against Fellow

    Against. The natural law tradition grounds rights in what is due to persons given the basic goods of human life: life, knowledge, friendship, practical reasonableness and so on. John Finnis's Natural Law and Natural Rights (1980) makes this case carefully. On that view a few rights really are absolute, such as the right not to have one's life taken directly as a means to some further end, because they correspond to things that may never be done. Not all rights are like that, but some are. Imprescriptibility is not nonsense; it is just rarer than the French thought.

    Helpful · 2