Jeremy Bentham · Philosophy
Bentham’s ferocious rejection of ‘natural’ and ‘imprescriptible’ rights as a fiction, and his demand that law be judged not by its pedigree or its reverence for tradition but strictly by its effects on human happiness.
When the French Revolution proclaimed the Declaration of the Rights of Man, announcing a set of natural, inalienable, and sacred rights belonging to every human being by nature, Bentham responded with one of the most withering critiques in the history of political thought. He did not deny that people should have legal protections; he denied that there was any such thing as a right existing before and independent of law. To assert natural rights, he argued, is to make a claim with no possible foundation in fact - a right is a creature of law, and where there is no law there is no right. The soaring language of ‘natural and imprescriptible rights’ was, for Bentham, not sober argument but rhetoric mistaken for reason: literally nonsensical, and, once you pile the adjective ‘imprescriptible’ on top, nonsense raised absurdly high off the ground.
Bentham drew a sharp line between two things that natural-rights talk fatally confuses: what the law is and what the law ought to be. A right, properly speaking, belongs to the first: it is the child of law, brought into being by an actual legal system that creates and enforces it. To speak of a right that no law has established is to describe a want, a need, or a reason for wanting a law - not a right that already exists. When reformers of his day proclaimed that people have natural rights to this or that, Bentham heard them committing a confusion: mistaking a reason why the law ought to grant a protection for proof that the protection somehow already exists in the fabric of the universe. Good reasons for wanting a legal right are precious, he agreed. But they are arguments about what ought to be, to be settled by utility, not magic entitlements floating free of any lawgiver.
Tearing down natural rights cleared the ground for Bentham’s constructive demand: that law be judged solely by its consequences for human happiness. A law is not good because it is ancient, or because it descends from the common law, or because it accords with some supposed law of nature; it is good if, and only if, it tends to increase the sum of well-being of those it governs. This turned Bentham into a relentless critic of the existing legal order. Where the reigning legal culture, personified by Blackstone, taught reverence for the wisdom embedded in inherited law, Bentham taught suspicion: every statute, every precedent, every institution must justify itself at the bar of utility or be swept away. He distinguished expository jurisprudence, which merely describes the law as it is, from censorial jurisprudence, which evaluates the law as it ought to be - and he made himself the great censor, measuring English law against the greatest-happiness standard and finding it, again and again, indefensible.
This is the opening of the lesson. The rest — the dialogue, the primary source, and the recall — is in the app.
You learned that Bentham denied there are any rights prior to law: rights are ‘the child of law,’ created by the sovereign and justified by utility, and appeals to natural or imprescriptible rights are, in his phrase, ‘nonsense upon stilts.’ Explain his positivist view of rights, his quarrel with Blackstone, and his d…
Leads to William Blackstone.
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