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Since John Locke spent so much time talking about the law of nature, which is based on reason, and the corrseponding natural law/rights, I thought this week we would take a look at a text that is critical of natural rights: Critique of the Doctrine of Inalienable, Natural Rights by Jeremy Bentham (from From Jeremy Bentham, Anarchical Fallacies, vol. 2 of Bowring (ed.), Works, 1843.).
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Since John Locke spent so much time talking about the law of nature, which is based on reason, and the corresponding natural law and rights, I thought this week we would take a look at a text that is critical of natural rights: Critique of the Doctrine of Inalienable, Natural Rights by Jeremy Bentham (from From Jeremy Bentham, Anarchical Fallacies, vol. 2 of Bowring (ed.), Works, 1843.).

Bentham begins by referring to the Declaration of Rights published by the French assembly in 1791 (not sure if this is the Declaration of the Rights of Man that was written in 1789). He says that the topic of that text is both "unbound" and important.

(My comments on Bentham’s text end here. That was fast! I’d like to reflect on Locke’s idea of natural law before proceeding.)

Many (some?) are willing to concede that the idea of a state of nature, whether real or hypothetical, is a logical place to begin a discussion about the origins of government or civil society. Government is created by man; therefore, it did not always exist. So discussing what life was like before man created government is logical, if not highly speculative.

Less agreement has existed over issues of consent, which Locke considered a key component of a just government. How is consent given, especially by those who were not around when the government was created?

In addition, and the focus of Bentham's efforts, questions arise over the idea of natural law and natural rights. In a state of nature, one might argue, if government does not exist then laws do not exist, including natural laws, whatever that means.
Locke contends that natural laws are real. They are based on the nature of man. In a previous post, I questioned whether any philosopher who relies on the concept of natural law can do so without depending on an appeal to God and God's will (I am sure some have. Just haven’t read about them yet).

It seems that if the expression the “nature of man” is meant to be anything more than just a passing reference to the myriad ways that man acts, then the motives and intentions of man's creator, if there is one, seem relevant.

Locke argues that man's nature is to act rational (is it?). What does he mean by rational? He says to be rational is to behave according to the laws of nature. What are the laws of nature? The laws of nature (natural laws) are guided by reason. What is reason? Who created natural laws? In a previous post I said, influenced by reading Locke, that the laws of nature are embedded in the nature of man. What did I mean by this?

I think I meant that how man acts reveal something about his nature. And if you accept the idea of a creator, you may think that man's behavior also reveals something about the being that created him. Where does Locke's knowledge of God come from? Is it more from religious teaching and texts than from how man acts?

Locke's political philosophy asserts that the government that man creates will possess certain characteristics if it is to be deemed legitimate (just and reasonable). What are these characteristics? The two biggest, I think, are the following:

Based on the consent of each member of society
Focused on protecting each member's life, liberty, and property

Why does Locke focus on these ideas?

By now, it should be clear that Locke believes that since man is rational, he would only consent to become a member of a society that he deems superior to a state of nature. By giving consent, he is agreeing to hand over his natural right to enforce the laws of nature, a right that Locke argues every man possesses. When each member of society relinquishes the right to use force, every man benefits because society becomes considerably more stable, peaceful.
What man does not hand over are his inalienable rights of life, liberty, and property. The key point here is that if this government, or any other government, tries to violate any member of society of their natural rights (life, liberty, property), then he or she can use force to resist this threat. The right to defend one's inalienable rights can never be given away. What rational man would give them away?

Inalienable rights, it seems, are the starting point for understanding natural rights. Let's look closer at the idea of inalienable rights. Why does Locke think that inalienable rights, if they exist at all, are life, liberty, and property? Couldn't others argue that they are comprised of other rights? For example, life, food, and 9 children? Or maybe the creator has picked 50 people and their offspring to inherit all of the gifts of the earth, and all other people are to work to improve the existence of God's chosen 50. Aren't these ideas just as possible, and arbitrary, as Locke's life, liberty, and property? (I have more to say on this and will try to tomorrow.)
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Bentham critiques the Declaration of Rights, given its difficult topic, the natural rights of man, for being produced by committee, a work of many hands that was subsequently sanctioned by government. Not just any government, but a government composed of many disparate parts, suggesting, I think, the impact that the composition of such a varied group will have on notions of “rights”. In addition, he appears to be saying that these facts, who wrote it and what they were writing about, will undermine the overall accuracy and truth of the document.

Further, since the “penners” of this text acquired their power through “insurrection”, they can be seen as creating ideas that justify the revolution. Ironically, though, when a group justifies revolution, they invite it, he observes. These founding fathers are like assassins seeking a title, seeking legitimacy through words. By saying to the masses, here are your rights: if government violates them, even a tiny bit, you have the right ( no, a duty!) to overthrow it, a shaky foundation for government is being laid.

Bentham thinks that the ideas contained in this text are appealing to the selfish passions of the populace. Curtailing these passions is the “great” aim of government, and here a government is arousing these destructive sentiments. Yet this text is honored? (refers to the incendiary of the Ephesian temple..look that up). What is the morality of this document?

The text is “nonsense”, he writes. It uses vague words to distort. He criticizes the document for not acknowledging its limitations, for not including the many caveats and distinctions which a text on this topic demands. “Trite” and “unmeaning” are used in this paragraph by Bentham to convey his disdain.

Quoting from the Declaration:
Article II
The end in view of every political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.
Bentham now attack the above passage, attempting to illustrate how flimsy and vague, as well as dangerous, its conceits are.
He starts by stating his premises:

1. When one speaks of natural rights, he is contrasting them with legal rights, which “owe their existence” to government. Natural rights, on the other hand, supposedly exist prior to government. Bentham does NOT think that rights can exist *before* the establishment of government. Natural rights are a fiction, a use of figurative language that as soon as you take it literal loses all substance and meaning.

2. He challenges the idea that these natural rights are “imprescriptible”, meaning they cannot be limited by government.

3. He also disputes the idea that governments derive their power from “formal associations”, or conventions, that involve contractual agreements. What about government that have not formed this way? Are they “illegal”, and do the authors of this text suggest they ought to be overthrown?

When there is no government there is no law. No law equals no rights, no security, no property. “Perfect liberty” is no liberty, he explains. He points to various savages that illustrate these truths (savages of New South Wales???)

Although he doesn’t use the term, this is a reference to the idea of a state of nature. He says it is to live like the beasts. “A want of happiness” results from “a want of rights”. Due to the insecurity of the state of nature, human beings wish rights into existence. Rights , then, are an idea, a construct.

And since rights are not real, they cannot be destroyed. We cannot preserve what we do not possess. This is all “nonsense upon stilts”, quoting Bentham’s famous phrase.

After a group asserts its (“pretended”) natural rights, it then proceeds to list them and treat them as legal rights, which, the group claims, cannot be violated in any way. Bentham refers to this language as “terrorist language”.

Mid-way through the text Bentham states what he thinks reason says about this subject, presenting his view of the topic. What does Bentham say?

Bentham states that a group ought to discuss whether a particular right is worth establishing and maintaining based on its advantages and disadvantages to the group. But to do this, the right must be clearly described and explained, not presented as a “jumbled” confusion. For example, arguing that people possess the rights of “property” and “liberty” is to say so much than one actually says very little.

When such general language is used nobody knows what they are talking about. Despite this lack of clarity, they proceed to demand that these (pretended) rights are imprescriptible and worth fighting for.
This lack of precision, he proclaims, is done on purpose. It is done to incite violence, to undermine the government. Perpetual revolution is unleashed by the forces articulated in this text.

These natural (imprescriptible and unrepealable) rights do not come from above. They originate in the minds of those who seek power…. (more to come)

Anyone reading this?
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Anyone reading this?

I'm reading it, but I think "the source of rights" is either obvious or overwrought. Legal rights, clearly, come from the laws, regulations, constitutions, court rulings, and so forth that establish them. Other rights, whatever you call them (moral rights, divine rights, natural rights, inalienable rights, etc.) are just made up.

That pretty well covers it.

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Bentham seems to think that the implications of the ideas contained in the Declaration of Rights will harm future governments. Future governments, rather than honestly figuring out which rights to protect and which to limit, will always be undermined by the notion that the people’s rights are being violated.

In the next section, he says that the idea that governments are created by contract is a fiction. All governments, with a few exceptions, have been created by force. But, he wonders, does how a government originates even matter? Of what significance is it? Are the people living today impacted if their government was created by force or by contract? People want to be happy. History does not change this. And governments, if they have a moral charge, exist to help people pursue happiness. (What is the best way for a government to promote happiness?)

Governments add their force to contracts. “Contracts came from government, not government from contracts.” Governments gain credibility in the eyes of people when they consistently enforce contracts.

Bentham spends the rest of this essay breaking down two more sentences contained in the Declaration.

So called natural rights, by definition, are not limited in any way. When nature is said to give all men a right to liberty or property, the effect is that no man actually has any rights. “What is every man’s right is no man’s right.”

In fact, government exists precisely because each man has absolute freedom. Placing limitations on people’s actions is what government does.

Unless one is living in a state of nature, liberty has boundaries. To, in the same breath, speak of both liberty without constraints and government is a contradiction. Since rights come from government, the rights, if they are to be meaningful, must come with limits. Laws, almost always, interfere with liberty. Those who claim otherwise have ulterior motives or do not realize the consequences of this illogical position.

What about property? Property rights place limits on liberty, and liberty is a right which is supposedly inalienable. After all, every other person loses the liberty to enter your home if your right to property is to have any meaning.

It is senseless, he argues, to say that people have a right to property without stating what property is being discussed. A right to what property? Does every man have a right to all property? In most matters of property, what is every man’s is, in fact, no man’s. So the idea that there is a natural right to property is meaningless. In fact, it might even be said to be counterproductive, undermining all notions of property.

Bentham spends a paragraph anticipating that he will be criticized for taking the language of the Declaration of Rights too literally. What should he do, he questions? Words have meaning and, as best he can tell, he is responding faithfully to the words and ideas in this text. Should he give the document a meaning it does not contain?
Let’s say that with respect to property that the writers intended to mean that all property possessed by all people when the Declaration was written ought never to be lost. Is this a more logical interpretation of their vague ideas?

What impact does this notion of property have on a government when taxes are levied? It appears that based on this interpretation no taxes can be imposed since they violate man’s right to property. Why speak about rights in such absolute terms when the most basic actions of government will, as a result, be viewed as violations of man’s rights and used as justification for disobedience of the civil authorities?
And what about man’s right to security? Are laws that expose men to danger a violation of a person’s right to security? Forced military service and even punishment of those who harm others are seemingly examples of violations of an unbound right to security.

The essay ends with a discussion of a so called right to resistance to oppression. What does this mean? Since, if this document is to be taken seriously, all actions of government are violations of man’s natural rights, the implication of this philosophy is that revolution is always justified.

In sum, I think Bentham essay powerfully critiques those who hold views that rights are absolute. While rhetorically powerful, the logic supporting such a view is fatal to government. Not just government by a tyrant, but all governments, even limited governments. Figuring out what limitations ought to be placed on government is a difficult and essential task. Supporters of natural rights that, by default, have no limits placed on them avoid this task. Or, at the very least, make all attempts to govern appear to be violations of these imaginary rights.
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