"Anarchical Fallacies": Bentham's Attack on Human Rights Author(s): Hugo Adam Bedau Reviewed work(s): Source: Human Rights

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HUMAN RIGHTS QUARTERLY

"Anarchical Fallacies": Bentham's Attackon HumanRights

Hugo Adam Bedau*

I
For those interested in human rights, the year 1998 deserves to be rememberedfor at least two convergent reasons. Two hundredand fifty years ago, in 1748, JeremyBenthamwas born in London,and in 1948 the United Nations"DecUniversalDeclarationof HumanRights'(hereinafter was laration") adopted by the GeneralAssemblyof the United Nations in the Thusin 1998 we celebratedtwo majoranniversaries, birthof New York. an importantand influentialEnglishthinker-a philosopher,lawyer, reof of and public policy analyst;and the anniversary the formulation former, the most influentialmanifestoof international human rights. The conjunctionof these two events providesan occasion for reflection what in his day on some of Bentham's philosophicalargumentsregarding This were called "natural and what are now called "humanrights."2 rights"
He at Emeritus TuftsUniversity. Professor Philosophy of *HugoAdamBedauis AustinFletcher received his Ph.D. in Philosophyfrom Harvardin 1961 and is the author, editor, or contributor many books, includingTheDeath Penaltyin America(1964, 1982, & 1997) of and MakingMortalChoices(1997). 250 Earlier versionsof this paperwere presented during1998 at the Bentham Conference, of the the University Texas;the ISSA of of the Conference, University Amsterdam; University for AmericanUniversity; the University London.I am grateful comments and of Reykjavik, and criticismsfromthese audiences, and especially to ConstancePutnamfor her editorial for counsel.Thispaperis also scheduledto appearin a Festschrift FelixOppenheim,is to be publishedby MacmillanPressin 1999. 1. UniversalDeclaration HumanRights,adopted 10 Dec. 1948, G.A. Res. 217A (111), of in U.N. GAOR,3d Sess.(Resolutions, 1), at 71, U.N. Doc. A/810 (1948), reprinted 43 pt. 2.
L. AM.J. INT'L 127 (Supp. 1949).

In the ensuingdiscussion,I make no distinctionbetweenthe concepts of natural rights and humanrights.Fora discussionof the differences,see JAMESNICKEL,MAKING SENSEOF

Press 22 HumanRightsQuarterly (2000) 261-279 @ 2000 by The JohnsHopkinsUniversity

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opportunityarises because Bentham wrote an essay titled "Anarchical in Fallacies,"3 which he attackedthe most popularmanifestoof such rights in his day, the "Declaration the Rightsof Man and Citizen"4 of (hereinafter French "Declaration"). This "Declaration" was adopted by the French NationalAssemblyin August 1789, a mere six weeks afterthe stormingof the Bastille, the opening salvo of what was to become the French Revolution. Bentham's writtensometime in essay has a curious history. Apparently it remainedunpublisheduntil 1816, when it appearedin print-not 1796, in London,but in Geneva, Switzerland, and not in English in French.It but became availablein English death, only in 1834, two yearsafterBentham's when his collected workswere publishedin London.5 In light of Bentham's scathing criticismsof the French"Declaration," one naturally wonders what he would have had to say today were he in a position to evaluate the United Nations "Declaration." Query whether he would describe it in the same terms he used to discuss its French

3.

HUMAN RIGHTS:PHILOSOPHICAL REFLECTIONS THE UNIVERSAL ON OF DECLARATION HUMAN RIGHTS6-12 (1987). 2 JEREMY of of BENTHAM,AnarchicalFallacies;Being An Examination the Declarations
BENTHAM

OF RightsIssuedDuringthe FrenchRevolution JeremyBentham,in THE WORKS JEREMY By

489 (John Bowring ed., 1843) [hereinafterAnarchical Fallacies]. I am grateful to Philip Schofield of the Bentham Project for informing me that Bentham did not choose the phrase "Anarchical Fallacies" as the title for this work; "Anarchical Fallacies" was the choice of his translator and editor, itienne Dumont, who first published the work as Sophismes anarchiques. (I am grateful to Catherine Pease-Watkin for this reference.) See 2 JEREMY DES SUIVIE 271 DES TACTIQUE ASSEMBLEES BENTHAM, POLITIQUES LEGISLATIVES, D UN TRAITE SOPHISMES (1816). Bowring merely translated that title for his English version. For Bowring's remarks on this treatise, see John Bowring, Memoirs ofJeremy Bentham Including Autobiographical Conversations and Correspondence, in 10 THE WORKS JEREMY BENTHAM1, 497-98 OF ET IDEDA AL., A BIBLIOGRAPHICAL OFTHE CATALOGUE (John Bowring ed., 1843). See also SADAO WORKS OF JEREMY BENTHAM title 24, 146-47 (1989). Bentham's preferred was "Nonsense

Upon Stilts."In this light, some of the criticismsin the text below are best construed underthe title aimed at Dumont(for inventingthis title) and Bowringapparently (for and it did However,Bentham occasionallyuse preserving popularizing in translation). the phrase"anarchical fallacies" referto a species of politicalfallacybut withoutany to reference to the French "Declaration." See J.H. Burns, Bentham and the French

4.

5.

HIST.Soc'Y 95, 111 n.2 (5th ser. 1966). In his correspondence ROYAL Revolution, 16 TRANS. with Dumont concerning the translation and publication of this treatise, he referredto it as his "commentary on the Declaration of Rights."Letter(1345) from Jeremy Bentham to Etienne Dumont (28 or 29 June 1798), in 6 JEREMY THE OFJEREMY BENTHAM, CORRESPONDENCE BENTHAM 49 (J.R. Dinwiddy ed., 1984) [hereinafter 6 CORRESPONDENCE]. For the full text of the 1793 Declaration of the Rights of Man and Citizen, see Sherman OF HUMAN Kent, The Declaration of the Rights of Man and Citizen, in GREAT EXPRESSIONS RIGHTS 262-65 (R.M. Maclver ed., 1969) (1950). See Anarchical Fallacies, supra note 3, at 490. For Bentham's recollected date of composition of this work, see Letter(1636) from Jeremy Bentham to William Cobbett (30 June 1801), in 6 CORRESPONDENCE, supra note 3, at 408, 409. A truly scholarly text of this essay, based on the surviving manuscripts in the archives of University College London, is now being prepared at UCL's Bentham Project.

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predecessor: that it consists of "execrable trash," that its purpose is to that "resistance all laws"and "insurrection," its advocates"sowthe seeds of anarchybroad-cast," that any doctrineof natural most memorably, and, is "simple nonsense: naturaland imprescriptible rights rights, rhetorical nonsense,-nonsense upon stilts."6

Let us begin at the beginning.7Evenbefore the stormingof the Bastillein July 1789, the National Assembly had begun debate over the text of a political manifestothat would articulatein a page or two the rightsof all persons-or at least of all Frenchmen and women. Severaldifferentlistsof rightswere formulatedand then bruitedabout in the NationalAssembly. These versionswere collected and assignedto a committeefor review and of preparation a final draftfor adoption,which was done late in Augustof that year.The productof those deliberationshas been knownever since as the "Declaration the Rightsof Man and Citizen."8 of can Bentham's Fallacies" be divided into two argumentin "Anarchical of very unequal importanceand length. By far the greaterpartof his parts attention-all but a few scatteredsentences, in fact-is devoted to destructive criticismof the French"Declaration," by implicationto a criticism and of almostany possible doctrineof humanrights.It is this criticalportionof as Fallacies" his essay that presumablypromptedadoptionof "Anarchical the title for the whole. He gives much less space, however, to the task and philosophicallymore interesting important of offeringthe readera constructivealternative of rights,builtas one would expect upon his theory fundamentalnormativeprincipleof utility.Since I want to concentrateon I evaluatingthis positivecontribution, shall consider his negativecriticisms
6. Anarchical thoughtof the Fallacies,supranote 3, at 501. We do know what Bentham In of naturalrightsmentionedin the American"Declaration Independence." a letterto of John Lindin September1776, he denounces it for the "extravagance" its "tenets," to Bentham John Letter (179a)fromJeremy notablyits relianceupon"inalienable" rights. this Fuller drawing letter for L.S. ed., (Timothy Sprigge 1968). I am indebtedto Catherine to my attention. of For recent discussionsof the origin and circumstances the draftingof the French (LynnHunted., 1996); Kent,supranote 4, at 145-81. Benthamsays he takes for his text "the paper published. . . by the FrenchNational
Declaration, see
HISTORY THE FRENCHREVOLUTION AND HUMAN RIGHTS:A BRIEFDOCUMENTARY OF JEREMY THECORRESPONDENCE BENTHAM 341, 343 Lind (2(?) Sept. 1776), in 1 JEREMY BENTHAM,

7. 8.

Assembly of 1791 [." Anarchical Fallacies, supra note 3, at 496. This "paper"of 1791 is identical with the "Declaration" of 1789; where the 1789 text stood as a complete document in its own right, the 1791 version is simply the 1789 text placed as a preamble to the French Constitution of 1791. The English translation of the "Declaration" Bentham quotes appears to be his own.

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mannerso that we can put them behind us and turn only in a fragmentary our attentionto his important alternative theory.This theory is of no small interest,because it is one of the earliest,indeed, perhapsthe philosophical earliest, attempt to offer a philosophical analysis (in today's jargon, a of deconstruction) what a naturalrightis (or would be, if there were any naturalrights),9 somethingfor which one will look in vain in the writingsof Bentham's greatBritish predecessorsin politicalphilosophy,notablyBacon, and Hume. Hobbes, Locke,

III

Letus turnfirstto the idea thatthe French"Declaration" riddledwith what is Bentham calls "anarchicalfallacies." What are "anarchicalfallacies"about them? specifically,what is fallaciousand what is anarchistic In 1824, two decades after Bentham had written the essay under discussion, he arrangedto have published (in Londonand in English)a volume titled The Book of Fallacies.10 this treatise,the first substantial In contribution the subject since Aristotle,Benthamset out an account of to what he regardedas the rhetoricaland logical errorsto which political discoursewas especiallyvulnerable.One would naturally expect, therefore, this book to elucidate the "anarchical fallacies"he had alreadydiscussed many years earlierin his unpublishedessay by that name. Thereare at leastthreeproblems,however.Thefirstproblemariseswith Bentham's definitionof a fallacy."Bythe name of fallacy,"he writes, "it is common to designate any argumentemployed or topic suggested for the of purpose,or with the probability producingthe effect of deception, or of some erroneousopinion to be entertainedby any personto whose causing If mind such an argumentmay have been presented."" fallacies so defined are supposed to lurkin the French"Declaration," problem immediately a

9.

Anarchical of Fallacies,61 WilliamTwining,TheContemporary Significance Bentham's CRITICAL FOR in UND 325-55 BENTHAM: ARKIV RECHTS SOCIALPHILOSOPHIE, (1975), reprinted 3 JEREMY Bentham ASSESSMENTS at 700-26 (Bhikhu Parekh ed., 1993); H.L.A.Hart,NaturalRights:
AND IN and John StuartMill, reprinted in H.L.A. HART, ON STUDIES JURISPRUDENCE ESSAYS BENTHAM: THEORY SOCIAL 79-104 (1982).

UPONSTILTS": For discussion of Bentham's BENTHAM, WALDRON, "NONSENSE essay, see JEREMY 77-105 (1983); AND BENTHAM ON RIGHTS MAN OF 29-45 (1987); Ross HARRISON, BURKE, MARX THE

10.

THE BOOK FALLACIES: BENTHAM OF FROM UNFINISHED PAPERS JEREMY OF (Peregrine Bingham

ed.,

1824), reprinted in 2 BENTHAM,supra note 3, at 375. This work was later revised and HANDBOOK POLITICAL FALLACIES OF (Harold A. Larrabee ed., 1952) reprinted as BENTHAM'S [hereinafter BENTHAM'S HANDBOOK]. Quotations in the text are from this version. The version of this passage in the 1824 text is somewhat different from the version appearing in Larabee's edition.

11.

Id. at 3.

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arises. Accordingto Bentham,fallacies are defined as the propertyof a certain class of arguments,namely, the invalid ones. But the French full is "Declaration" not an "argument"; is a manifestoof aspirations, of it and exhortations addressedto the people of France.Thus, it is imperatives not as such an argument, except in the mostextendedsense of thatterm,in which any propositions assertedon any subject constitutean "argument." To be sure, one might say that the "Declaration" the productof an is because it restsupon severaltacit principlesand beliefs implicitargument fromwhich its manifestcontent-those imperatives exhortations-can and be derived.But if this is the implicitargumentBenthamwishes to attack,it this is odd that he does not say so and that he does not attemptto formulate in his critique. Therefore,I think we may implicit argumentanywhere conclude that if the French"Declaration" spoiled by "fallacy"it is not is because its reasoningis suspect,for a manifestosuch as this does not consist of a chain of reasons. However,even if we charitably agree that there is a loose and familiar sense of the term "fallacy"that is roughly synonymouswith "erroneous belief"or "mistaken claim"or "objectionableprinciple,"very little reflection is requiredto conclude that under Bentham'sofficial definition of the is "fallacy" French"Declaration" surelynot riddledwith fallaciesof any kind. The loose sense of the term-defined by Bentham as a "topic suggestedfor . .. deception"'12--does not apply,for it is neitherreasonable nor supportedby any evidence Benthamcites to believe that the French of authorsof the "Declaration" wrote with the "purpose" deceiving their intendedaudience. Bentham's official definitionof "fallacy" simply has to into a complex intenbe judged incorrectbecause it transforms "fallacy" tional concept, although in ordinaryusage "fallacy"is not an intentional concept at all. Thatis to say, a reasonercan commit a fallacy by means of an invalidargument to withoutthe intention deceive anyone. If,as Bentham the French"Declaration" suffersfromfallacies,we should expect its insists, authorsand audience alike to be equally surprised learnthis. Suggesting to otherwiseimpugnsthe sincerityof the authorsof the French"Declaration," and neitherBenthamnor historygives us reasonto do that. as Itwill not go unnoticedthat Bentham also characterizes a fallacyany of reasoningthat has a "probability" deception, or that "causes"anyone to of believe "someerroneousopinion."Thischaracterization a fallacyhas the merit of not turningit into an intentionalconcept; but this hardly helps Bentham'scase in the present instance. To determine that the French "Declaration" containsfallaciesin this sense of the termone mustshow two have (orwill) come to things:first,that readersof the French"Declaration"
12. Id.

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adoptcertainerroneousopinions,and second, thatthe cause (or"probably" the cause)of theiradoptionis the unhealthyinfluenceof the ideasenshrined in the French"Declaration." may grantthat Bentham We sincerelybelieves these two propositions,and that he thinks he has establishedthem in this essay. Whetherhe actuallysucceeds in doing so is anothermatter;if I am right,as I shall try to show, his effortwas less than a success. As a thirdand final preliminary point in this context, we should note that a readerof Bentham's Book of Fallacieswill not find any account there of the so-called "anarchicalfallacies" in the essay by that name. This appearsto be a majoroversightand a bewilderingomission on his part. Havingdiagnosedthe supposedfallacies in the French"Declaration" years before he wrote his Book of Fallacies,why should he fail to mentionthem in his later and longer work?13 be sure, one can find referencein that To book to "anarchy"; Bentham is pointsout thatthe term"anarchy" characteristicallyused as an abusiveepithet in politicaldiscourse.This, he says, was theirtactic is to especially true of those who oppose any political reforms: condemn as anarchicall new legislation,reforms, ventures.14Ironically, and Bentham himself is vulnerable to the charge that his denunciation of "anarchical fallacies"in the French"Declaration" too comes rather close for comfortto being just anotherexample of preciselythe rhetorical abuse that he latercriticized.
IV

Againstthat background,let us turn directly to why Benthamthinks the French"Declaration," he says, "sow[s]the seeds of anarchybroad-cast,"'5 as and why he thinks it is a doctrine of "the rightsof anarchy-the order of chaos."'6 According to Bentham, the French "Declaration"does this because of its tacit message:"People,behold your rights!If a single article of them be violated, insurrection not your rightonly, but the most sacred is of your duties."'7

13. J.H.Burns speculatesthatthe omissionis owing to Bentham's changeof mind(orheart?) in his later years, causing a desire to avoid provokinghis Frenchadmirersof the era. of post-Revolutionary See J.H.Burns,Bentham's Critique PoliticalFallacies,in JEREMY BENTHAM: TEN CRITICAL worthnotingthat 154 (Bhikhu Parekh 1974). Itis perhaps ESSAYS ed., of the only fallacy Benthammentionsas such in "Anarchical Fallacies" the "fallacy" is AnarchicalFallacies,supranote 3, at 496. Thereis of course, "beggingthe question." anarchicaboutthis fallacy. nothingparticularly 14. See BENTHAM'S HANDBOOK,supra note 10, 93. 15. Anarchical Fallacies,supranote 3, at 496. 16. Id. at 522. 17. Id. at 496.

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This is a startling no remark; such radicallyanarchiclanguageactually appears in the preambleor in any of the seventeen articlesof the French "Declaration." The most similar language to this is found in the second and imprescriptible article, where all persons are told they have "natural ... [includingthe rightof] resistanceto oppression[]" resistancea (la rights not found either in the American"Billof Rights" I'oppression),18 something to This of 1791 or in the 1948 UnitedNations"Declaration." leads Bentham that no scorn on the very idea of an "imprescriptible" right-a right heap politicalor legal authoritymay or can suspend, modify,or nullify-but for on presentpurposeswe need not follow Benthamfurther the point.19 is we need to notice thatthe French"Declaration" completely Instead, in theirjudgment,any of silenton what recoursethe Frenchcitizens have if, their "naturaland imprescriptible rights"are violated. The appropriate measures of resistance taken by individual citizens (or by a group of citizens)to secure rightsdisrespectedby their governmentis a question of judgmentin the circumstances,not a matterfor large-scaleconstitutional on pronouncements.Thus, the silence of the French "Declaration" this point about legitimatetacticsof resistanceis neitherevasive nor disingenuous; rather,it is evidence of sound political caution. Bentham,puttingthe is worst face on the document, gratuitously assumes that insurrection the implied(andonly)weapon availableto personswho judgethemselvesto be deprivedof their naturalrights. in to Benthamcould, of course, point in particular the Terror, generalto of of the instability Frenchsociety in the aftermath 1789, and overallto the evident inability of the French revolutionariesof that day to govern He effectively.20 could make an argumentin defense of his interpretation does not expressly the following lines. First, French"Declaration" the along violent insurrection the appropriate as responseto a government prohibit that violates its citizens' rights.Second, few if any of the rightsproclaimed in the French"Declaration" were operativeunderlaw in Frenchsociety at the time it was promulgated. Therefore,he might conclude, the adoption

18.

Id. at 500. Bentham would have had a stronger case for his objections had he cited the 1793 version of the "Declaration"; its Article 11 declares that the citizen oppressed by and tyrannical" government has the "rightto repel it by force." Article 35, with "arbitrary which the "Declaration" closes, repeats the point, declaring that when government "violates the rights of the people, insurrection is . . . the most sacred of rights and the

19.
20.

of most indispensable duties."KENT, supranote 4, at 265. as natural idea of "imprescriptible" We mightusefullythinkof Bentham's rights an early On law versionof what today in international would be called "nonderogable rights."
RIGHTS THEINTERNATIONALOF HUMAN the latter idea, see PAUL ?11 (1983). LAW SIEGHART, FRENCH OF THE For an account of the Terror in late 1793, see R. R. PALMER, WORLD THE 726-92 OF REVOLUTION (1971); SIMON SCHAMA, CITIZENS:A CHRONICLE THE FRENCHREVOLUTION (1989).

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and publicationof the French"Declaration" a tacit invitation insurrecto is if tion, violence, and anarchy.Itwould hardlybe surprising believersin the "naturaland imprescriptable" rightsof man and citizen used direct and violent measures in an effortto secure those rights,and were willing to overthrowany governmentthat fails to accord such rightsto its citizens. Benthammight have reasoned in such a manner.Such an argument, however,cannot be sustainedwithoutevidence to back it up, and Bentham fails to produceany such evidence in the entiretyof his critique.He never and arguesthat reformers criticsof the currentregime in France,drunkon the intoxicatingliquorof "natural are rights," bound to lose all judgment and-casting prudence aside-will strike at every form of governing authorityin theirfoolish zeal to obtaintheir rights.He never explainswhy insistenceon "natural as rights," they are affirmedin the French"Declaration," is the sole or the dominantcause of political unrestin France. the to Furthermore, professedrightin the "Declaration" resistoppression need not be taken (as Benthamno doubt took it to be) as a rightof violentindividual collective resistance government and to officials.We can, afterall, thinkof collective nonviolentprotest,of the sort made famous in the United Statesduringthe Civil Rightsmovementof the 1960s. If that is how citizens intendto act in exercisingtheiralleged "natural to right" resist oppression, it is not obvious why they should be told they have no such overlookedthe possibility organizednonviolentresistance of right.Bentham to governmentoppression.It probablynever occurredto him to ponder,as many thoughtfulphilosophershave argued in this century,whether mass nonviolent civil disobedience is a legitimateform of protest in (or in the effortto obtain) a moderatelyjust, liberalconstitutionalrepublic.21To be sure, Benthamwas not an advocate, here or elsewhere, of civil disobedience. He lived in a day in which fear of "the mob" was a constant preoccupationof the English upper class, a worry made all the more troubling by the excesses of the French Revolution. Nevertheless, is it to merelysentimentaland anachronistic suggestthat the worst that can be said of the French"Declaration" the pointunderdiscussionis that its use on of the term "resistance" subjectto several interpretations? is A relatedbut even stronger views emergeshere. objectionto Bentham's Let us put the French"Declaration" aside for the moment and thinkof its Americanand United Nationscounterparts. challenge anyone to point to I any anarchic consequences in the political behavior directly caused by widespread belief among Americanstwo centuries ago in their "Bill of or Rights," among any personswho believe in the humanrightscited in the

21.

AND See JOHN RAWLS,A THEORY JUSTICE OF M. (1972); ELIOT ZASHIN, CIVILDISOBEDIENCE DEMOCRACY CIVILITY AND DISOBEDIENCE (1972); BURTONZWEIBACH, (1975).

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United Nations "Declaration" duringthe half centurysince its promulgation. Whateverpolitical actions have been engendered by belief in these rights,there is littleor no evidence thattheirchief effect has been to nourish seeds of insurrection anarchywhere priorto such declarationsno such and inclinationsexisted. On the contrary, violence associatedwith belief in the human rights almost invariablycomes from the police and government officials who use their power to crush those who nonviolently protest violationsof their humanrights.22 of Perhapsthe aftermath the stormingof the Bastillein the streetsof Paris in the summerof 1789 was different;perhaps shrieksand cries of "naturaland imprescriptible rights"did play a prominentcausal role in ending Bourbonruleand pavingthe way forthe abusesthatfirstculminated in the Terror then later in Napoleon's reign. If, however,that is what and Bentham believed and what prompted him to denounce the French "Declaration" within a few yearsof its promulgation, is most unfortunate it that he so conspicuously failed to say so.23 I can only conclude that Bentham has not made out his case for the claim that the French "Declaration"-orany of the other largelyaspirational thatwere manifestos later draftedalong the same lines-is invalid because of its "anarchical fallacies."
V

Let us now turn to the positive side of Bentham'sessay, his alternative This involves several independenttheses, three of conception of rights.24 which this article discusses. I take them up not in the order in which Bentham stated them but in the order of their increasing interest and importance. The firstof these three theses is presentedin the following passage:"In
22. of officialsusingtheirpowerto crushnonviolentprotestsinclude Examples government the Britishin Amritsar the 1920s, local police across the United Statesduringthe in anti-unionriotsof the 1930s, and the Chinesegovernment Tiananmen in Squarein the 1980s. fromthe very of Despitethe emphasisSimonSchamaplaceson the centrality "violence" inceptionof the Revolution,he nowheretries to explain this violence as an effect of See devout belief in the naturalrightsalleged and advertisedin the 1789 Declaration. is SCHAMA,supranote 20. The same silence (neglect?) found in the worksof otherrecent
writers. See, e.g., EMMETKENNEDY,A CULTURALHISTORYOF THE FRENCHREVOLUTION (1989); REVOLUTION OF WILLIAMDOYLE, THE OXFORD HISTORY THEFRENCH (1989). See also Burns,supra

23.

note 3, at 95.

24.

No attemptis made in the followingpages to give a full statement Bentham's of theory of rights.Fora fullertreatment, WALDRON, supranote 9; Twining,supranote 9, Hart, see supranote 9. Nor do I attemptto assess the extent to which his account of rightsin "Anarchical Fallacies" consistentwith thatfullerview. is

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proportionto the want of happiness resultingfrom the want of rights,a reasonexists for wishingthattherewere such thingsas rights."25shall call I this Bentham'seudaemonistthesis, because of the role it assigns to the of pursuit happiness.We can clarifythis thesis if we restateit in the manner Benthamelsewhere calls "paraphrasis."26 Whateveris valid in paraphrasis can be found in what analytic philosophers a generation ago called in first this "contextual definition."27 Restated thatmanner, is how Bentham's thesis would look: If personA lacks happinessbecause A lacks a right,R, to do x, then the lack of R gives A a good reasonfor wantingenactmentof a law establishingR. Notice that the term "happiness" here can refereither to individualor collective happiness.Thatis, if I sufferfroma lackof happinessarisingfrom my lack of a certain right,then accordingto this thesis that lack gives me where the personallya reasonfor wantingthe rightin question. Similarly, membersof some groupor collective sufferunhappiness fromthe lack of a certainright,that lack gives the groupor collective a reasonfor wantingthe rightin question. Bentham's second thesis is found in the passagein which he claimsthat suchthings natural as to, government-no opposed in contradistinction rights that is that to, legal: theexpression merely figurative; whenused,inthemoment to it you attempt give it a literal meaning leadsto error....28 Inthis passagewe meet Bentham legal positivist. such, he holds that As the the only rightsanyone has or could have are rightsconferredby means of positive law enacted, decreed, and enforced by some legitimategovernment. All rightsare legal rights,and-he mighthave added-the rightsthe law providestoday can be repealedtomorrow.Let us call this his legalist thesis. Reformulating in the paraphrastic it fashion he recommends,this is how his second thesis would look: PersonA has a right,R, in society S to do some act x if and only if on there is a law L in S that permitsA to do x by conferring A the to so act. right
25.
26.

there are no such things as . . . rights anteriorto the establishmentof

Anarchical Fallacies,supranote 3, at 501.

See JEREMY DE L'ONTOLOGIE 210- 15 (Jean-PierreClero AUTRES TEXTES LES SUR FICTIONS ET BENTHAM,

27. 28.

et al eds., 1997) [hereinafter L'ONTOLOGIE]. English (77-193) in this bilingual DE The text A see editionwas prepared PhilipSchofield.Formoreon paraphrasis, JEREMY BENTHAM, by ON FRAGMENT GOVERNMENT 108 n.b(5-6) (J.H.Burns& H.L.A.Harteds., 1988) (1776). BETWEEN THETwo WORLD See generallyJ.O. URMSON, PHILOSOPHICAL ITS DEVELOPMENT ANALYSIS:
WARS(1956).

Anarchical Fallacies,supranote 3, at 500.

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We should notice several different things about this thesis. First, Benthamuses the desire to legalize rightsas a stick with which to beat advocates of natural rights, because he is convinced that it would be impossiblefor any governmentto turn claims of naturalrightslike those found in the French"Declaration" actual legal rights.Thiscriticism,of into on exactly what rights are proclaimed in course, depends essentially whateverlistof naturalrightsis in question.Advocatesof the American"Bill of Rights"two centuries ago could claim without runningafoul of this criticismthat the rightsof free speech, worship, and the rest were natural rightsand oughtto be protectedby law as well, and that none of Bentham's had vigorouscriticismsof the French"Declaration" any applicationto the American counterpart.However, advocates of the list of human rights contained in the UniversalDeclarationof HumanRightshave encountered difficultiesin bringinginto law all of the rightsof that manifesto,especially all of the so-called "welfare" rights.In this regardthe French"Declaration" of of 1789 may be more like the UnitedNations"Declaration" 1948 than it is like the AmericanBill of Rights.29 Second, Bentham might seem to contradict himself when a few laterhe says that "[n]ature paragraphs gave every man a rightto everything of reminiscent Hobbes'sclaim that beforethe existence of laws,"30a remark in a state of nature each of us has an inalienable naturalright (i.e., a However, Benthamrejectsthis notion of a privilege)of self-preservation.31 on two grounds.First,he essentiallyagreeswith Hobbesthat belief in right of such a rightleads to "thewar of all againstall"-it is the very paradigm an "anarchical" This anarchyof the naturalrightof self-preservation right. inspiresBenthamto utterone of his famous epigrams:"[I]nregardto most rights,it is as true that what is every man's rightis no man's right... ."32 Second, he objects that this rightcannot be a true rightbecause it violates the fundamental principleof true rights,namely,thatfor everygenuine right there is "a correspondent Today,it is commonplacefor rights obligation."33 theorists to insist on the correlativityof rights and obligations when Benthambelieved (as did Hobbes)that discussingso-called "claimrights."34 in the rightof self-preservation a state of natureimportsno constrainton anyone'sconduct. Ifthat is so, however,it cannot be a genuine rightat all.
29. and betweenthe French"Declaration" the UnitedNations"DeclaForthe relationship ConfusedPage"to the "Decaloguefor see ration," StephenP. Marks,Fromthe "Single Six Billion Persons": The Roots of the UniversalDeclarationof HumanRightsin the
French Revolution, 20 HUM. RTS. 459 (1998). Q. Anarchical Fallacies, supra note 3, at 502. LEVIATHAN (ErnestRhys ed., 1943) (1651). 66 THOMAS HOBBES, Anarchical Fallacies, supra note 3, at 502. Id. at 503. 41-43 (1990). OF THOMSON, THEREALM RIGHTS See, e.g., JUDITHJARVIS

30. 31. 32. 33. 34.

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At best it is what we would call a "liberty"right(as Hobbes did) or (better to still) a "privilege"-thatis, personA's privilege/right do something,x, is identicalwith the lack of any claim by othersthat A not do x.35 As for the silence of the French"Declaration" any duties reciprocalto the rights on thereinasserted,manifestosof naturalor humanrightshave typicallybeen silenton such responsibilities-witness,forexample,the Amerinotoriously is can "Billof Rights." this respectthe French"Declaration" neitherbetter In nor worse than other such manifestos. it means in this passage what Bentham Further, is difficultto understand when he contrasts "literal the of talk about naturalrightswith the meaning" "figurative" meaningof the term. Had he said here (as he does elsewhere)36 that naturalrights are "fictions,"we could more readily understandhis objection, as his belief that a vast variety of substantive legal and is philosophicaltermsdenote "fictions" one of his most famousphilosophical doctrines.Putting to one side, it is clear thatwhen Benthammakes this in the distinctionbetween the "literal" the "figurative" this context, his and of point is that we ought to strive for an understanding our talk about of in "natural rights" a mannerthatwill not "leadto mischief-the extremity of mischief,"as he thinksa literalinterpretation the doctrineof natural rights does. This brings us to Bentham'sthird and most fundamentalproposition about the natureof rights: That Whatis the language reason plainsenseuponthissamesubject? in of and and thatthisor thatright-a right thisor thateffect-shouldbe established to but be in that it maintained, thatsameproportionis wrong it should abrogated: so be to wholeadvantageous the societythatit should maintained, thereis no shouldnotbe to whenthe abolition it is advantageous society, of which, right abolished.37 In this passage we meet Bentham the utilitarian.Accordingly, I shall henceforthcall this his utilitarian thesis: Our rightsare determinedby the lawmaker'sjudgment as to whether it is more or less advantageousto society as a whole that an individual,or a class of individuals,or all persons, have a legal right to (or to do) the thing in question. Precise contextualreformulation this thesis requirescare. Considerthis formulaof tion:
... there is no right,which ought not to be maintained long as it is upon the so as to proportion it is rightor proper,i.e. advantageous the society in question,

35.

See id.

36.
37.

See DE L'ONTOLOGIE, supranote 26, at 80, 164.

Anarchical Fallacies, supra note 3, at 501.

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Persons A, B, C, . . . Z in society S have a natural right, R, to do x if and only if A, B, C, ... Z (a) lack any legal right in S to do x, (b) wish

oughtto enact a they had a legal rightto do x; (c) theirgovernment law, L, establishing R, because (d) doing so would be more
advantageous to A, B, C, ... Z than not enacting such a law.

The problemwith this four-part is formulation that if its fourconditions are satisfied-and there is no reasonto thinkthey nevercould or would be satisfied-then there are naturalrights.To put it another way, if we ask the "Underwhat conditions, if any, are there naturalrights?" answer is "Underthese four conditions."But this is unacceptable,because-as we have seen-Bentham insiststhere are no naturalrights.Thus,his answerto must the question,"Underwhat conditions,if any, are there naturalrights?" be "thereare no such conditions."Accordingly,we need to delete any this languagethat appearsto referto naturalrights; can be done only if we cease usingthe term"natural and confine ourselvesto the mentionof right" what RudolphCarnaptaughtus to that term.Thisamountsto foreswearing The call the "material in favorof what he called the "formal mode" mode."38 as follows: to do this is to reformulate utilitarian the thesis, way to When personA in society S appearsto be referring a "natural right to (or to do) something, x," what is meant is that (a) in S not everyone(andperhapsno one) has any legal rightto do x, and (b)A wishes everyone in S did have such a legal right,and (c) thereought to be a legal right,R,, in S to do x, (d) because it would be more to advantageous the membersof S if they had such a legal rightthan if they did not. On this interpretation, do not try to explain what a naturalrightis, we for our ontology includes none. Instead, we explain what people who erroneously or thinkthere are such rightsreallymean, whetherthey are say aware of it or not. Or, to put it another way, we have here the four but conditionsthat make it true-not "literally" "figuratively"-tosay that there are naturalrights. there is some tension (orworse)between partof this thesis Superficially, if taken in conjunction with Bentham'slegalist thesis. Accordingto that thesis, whateverlaws are operativein a society confer legal rightsand legal duties on the membersof that society. As a matterof fact, however, any actual law may fail the utilitarian because the law createsa rightthat is test not conducive to the net general welfare. By the utilitariancriterion, it seems such a law and the rightsderivativefrom it cannot be genuine.
38. 238-39 (1936). On the distinction THE SYNTAX LANGUAGE OF RUDOLPH CARNAP, LOGICAL 37-38 (1950). between use and mention, see W.V.O. QUINE, METHODSOFLOGIC

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We can save Benthamfrom this apparentcontradiction,in which his utilitarianism undermineshis legalism, if we avail ourselvesof the distinction he makes elsewhere between what he calls "expository" "censoand rial"jurisprudence.39 consists of reflectionsdeExpository jurisprudence consistsof reflections signedto statewhatthe law is;censorialjurisprudence to statewhat the law oughtto be.40 I suggestwe view his legalism designed as a criterion withinexpository jurisprudence, telling us what the law is. His is a criterionwithincensorialjurisprudence, utilitarianism, however, telling us what the law ought to be. Ifwe construehim in this manner,there is no contradictionwhen he allows, as he surely does throughouthis writings, thatsome laws fail the utilitarian test-provided he goes on to implythatall such laws and the rightsthey give rise to ought to be repealed in favorof laws that do satisfythe utilitarian criterion.
VI

The philosophicalquestion now before us is whetherthese three thesesthe eudaemonist,the legalist,and the utilitarian-are correct. TakeBentham's eudaemonistthesis first.At face value this thesis seems and odd, indeed arbitrary, even downrightwrong. It suggeststhat only a lack of happinessarisingfrom the lack of a certain rightgives anyone a reasonfor wantingthat right.And it suggeststhatthe only gain for someone from having a legal right is an increase in their net happiness. But why should happinesshave this preferred status?Naturalrightsthinkerssuch as Immanuel Kant, Bentham'solder contemporary,insisted that our rights express and protect our natureas free, autonomous,and dignified creatures.41Happiness such playsno rolewhateverin seekingor enjoyingany as So why should not the lack of liberty,privacy,autonomy,or dignity rights. be a sufficient reason for wanting the relevant rights?Why should a perceived lack of happinessbe the only good reason for wanting a given right? Bentham'sanswer has to be that liberty and the other values just mentionedare relevantonly to the extentthatthey are the meansto, or are hiddenconstituents someone'shappiness.Happinessalone is fundamenin, tal. As we learn elsewhere in his book, Of Ontology (writtensome years after "AnarchicalFallacies"),happiness for Bentham is the "real entity"
39.
OF TO See JEREMY BENTHAM,AN INTRODUCTION THE PRINCIPLES MORALSAND Burns & H.L.A. Hart eds., 1970) (1780).

294 LEGISLATION

(J.H.

40.
41.

See id.
See IMMANUEL THEMETAPHYSICAL FOUNDATIONS MORALS 2&3 (James W. Ellington, OF ?? KANT, trans., 3d ed. 1993) (1785).

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without which there is no meaning in this talk about rights(because they, along with many other moral notions, denote only "fictitiousentities").42 Happinessand unhappinessare real entitiesfor Benthambecause they are we Unless, accordingto Bentham, can traceour talk experienceddirectly.43 back to some "realentity"like happinessor unhappiness,we are talking vapid nonsense. Legalrights,Benthamthinks,always can (or ought to) be traceableback to such "realentities,"but so-called naturalrightshe thinks cannot. that happinesshas this paramount Why should we agreewith Bentham status,confiningsuch values as liberty,privacy,autonomy,and dignityto a role?Unless one suffersfroman excess of enthusiasm merely intermediate for sensationism reductionism, and neitherhappinessnorpleasure(northeir lack) seems the rightsort of thing to cite as the rationalefor humanrights. Letus turnnow to Bentham's legalistthesis. If it is true,then throughout historymost people have lackedthe rightsassertedin the French"Declaraof tion" of 1789 and the rightsasserted in the UN "Declaration" 1948, because few governments have ever enacted and enforced the laws necessary to turn such alleged rights into legal rights. Benthamis surely correctwhen he writes:"[Assoon as] a list of these pretendednaturalrights Of is given, [they] are so expressed as to presentto view legal rights."44 course, advocatesof naturalrightswant to see such rightsrecognizedand protectedunder positive law. However,this belief does not imply that no one has the rightsin question unless there are laws that providefor them. assuresus thatmostpeople have lackedthe legal rightto mostof the History provisionsof such manifestos. But Bentham'slegalist thesis about rights cannot be sustained by only the historical fact that clamor for rights occurs where the law fails to identifyand protectrights. (typically) and Bentham'sthesis seems highly counter-intuitive contraryto First, muchthatwe believe. Surely, does not need to invokethe law or a legal one systemto claim a rightof self-defense.Surely,it is not the law thatgives me the powerto promiseyou $1,000 for some landscapegardeningaroundmy house, therebygiving you a claim against me for that amount-provided that you accept the offerand do the work.Where is the courtor legislature created such rights?What court or legislaturecould presume to abolish them?To be sure, these examples of moral rightsindependentof any legal systemdo not include any of the rightsmentionedin the French"Declaration." But Bentham'slegalist thesis is not confined to those rights;it is a
42.

43.
44.

See DE L'ONTOLOGIE, note 26, at 80, 164. supra oftendoes-in termsof Thisclaim is perhapsmoreplausibleif formulated-as Bentham
pleasure and pain; these are often if not always genuine sensations whereas happiness rarely, if ever, is a sensation or complex of sensations. Anarchical Fallacies, supra note 3, at 501.

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thesis about rightsgenerallyand so is vulnerable counter-examples the of to sort being offered. Second, Bentham'slegalistthesis about rightsis as silly or strangeas would be a counterpart thesis about other moralconcepts. Surely,it is silly or strangeto insist that outside the law we have no duties or obligations, outside the law there is no rightor wrong, no virtueor vice, outsidethe law there is no good, better,or best in humanconduct. It is simplyfalse-and false-to thinkthatthere is any good reasonforsupposingthat extravagantly althoughwe do legitimatelyreferto moralgood and evil, moral rightand wrong, moralduty and obligation,as soon as we referto moralrights-that is, moral privileges, powers, immunities, and claims-either we talk nonsense or we are really referring our legal rightsor to what we wish to were our legal rights.There is not the slightestgood reasonfor supposing thatwhat is generallytrue about moralconcepts and principlesis suddenly false where rightsare concerned. Moral theory and discourse need, and may use, the notionof a moralright,justas muchas the law needs and may use the notion of a legal right. As a final and more constructivepoint, I think we can say (following that JamesNickel)45 thereare humanrightsnorms,and thatthereforehuman exist to the extent and in the sense that justifiedmoralitiescontain rights such norms regardlessof what legal norms a given legal system may still we Thomson)46 can say thatthere Jarvis provide.Better (followingJudith are moral rightsapartfrom the law and any legal system because we are creatures subject to the moral law and because we have inherently individual interests.The claim-rightseach of us has against others are created by these two facts about us; the law may or may not also identify and protectsuch rights.To the extent law fails to do so, or fails to protect citizens from the exercise of wrongful power over them by their own it governments, is morallydeficient.Thus,we can and do use the fact of our moral rightsto criticizea legal systemfor its failureto turnthose rightsinto legal rights. Theonly way, in the end, to attackthe claim thatthereare extra-legal or pre-legalhuman rightsis to argue 1) that there are no justifiedmoralities, 2) that if there are justifiedmoralitiesthey include no humanrightsnorms, 3) thatthere is no morallaw to which we are subject,or 4) thatwe have no inherentlyindividualinterests.Such an arrayof denials seems unlikelyto prevailexcept among radicalmoralskeptics.

45.
46.

See NICKEL,supranote 2, at 84-98.

See
THOMSON, supra

note 34, at 214-17, 222-24, 269-70, 271.

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of Letus turnfinallyto Bentham's utilitarian thesis, the most important the we three. First, should notice that his definitiondestroysany conception of domain or dimensionwithinthe whole of morality. rightsas a fundamental and equally explicitly Benthamexplicitly embraces the adjective "right" of course, from legal rights).It is denounces the substantive"right"47 (apart, the latter,he says, that "sets up the banner of insurrection, anarchy,and He withdrawsdenunciationof the substantive"right," lawless violence."48 as we have seen, providedwe confine our talk to legal rights.Buttrouble begins when he makes it perfectlyclear that our legal rightsought to be the Thismove repudiates statusand or determined what is "right proper." by authorityof rights by implying that rights are entirely translatableinto assertionsabout what is right. If Benthamis correct, we do not need a conception of rightsbecause everythingwe mightwant to assertusing that vocabularyis replaceablewithout loss in the vocabularyof what is rightto which in turnis replaceableby referenceto what is advantageous society. Contraryto Bentham, I think we have in our rights a relatively autonomous domain within the larger and more inclusive empire of moralityin general. Preciselywhat connection there is between any given assertionaboutour rightsand some otherassertionaboutwhat we oughtto do needs to be spelled out with care. It cannot be disposed of in the sweeping manner, abstractingfrom all detail and cases, that Bentham proposes. Many utilitariansbesides Bentham, notably John Stuart Mill49and several contemporary philosophers(includingRichardBrandtand Wayne believe thatthey can give a moralfoundationfor rights(and not Sumner),50 just for legal rights)by appeal to the principleof utility. However, other philosophers(I among them) find it difficultto believe that the rightswe have can be groundedon-much less be seen as takingtheir origin inor Thisis especiallyevidentwhere natural human utilitarian considerations. net social welfare is rightsare concerned. Evenif it is true, in general,that advanced by recognizing human rights under law, there will be other occasions when the reverseis true. Hence, ignoring,denying,or otherwise rejectinga claim of someone'shumanrightswill be defendedon the ground that net social welfare ought to prevail without exception whenever it

47.
48. 49.
50.

See Anarchical Fallacies,supranote 3, at 523.

Id. STUART ch. See JOHN MILL, UTILITARIANISM 5 (Roger Crisp ed., Oxford University Press 1998) (1861). 179-95 (1993); L. W. SUMNER,THE ANDRIGHTS B. See RICHARD BRANDT,MORALITY, UTILITARIANISM, OF MORAL FOUNDATION RIGHTS(1987).

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clashes with someone's rights.As I suggestedearlier,our naturalor human rights must be seen as moral concepts designed to advance our liberty, privacy,autonomy,and, in general,our dignity-precisely as Kantclaimed within a few years of when Benthamwrote his essay underdiscussion."'It seems to me much more plausible to try to derive these rightsfrom a recognitionof our common natureas rational,autonomous,moralagents forwhom liberty,privacy,and othergoods are paramount, thanfrom rather collective or aggregativefacts about net social welfare or the general any happiness. Note that my objection to Benthamhere is not that his theorycannot establish any absolute rights.I take it as settled that no theory of human I rightscan coherentlydefend a doctrine of absolute rights.52 believe we cannot point to a single right,such that once we have identifiedthat right then we knowwhat some agentoughtto do, as thoughthis rightcan always be counted on to dominatewhatevercountervailingmoralconsiderations mightarise in a given case. Butfromthe fact (if it is a fact)that none of our rightsare absolute, it does not follow that someone's rightcan always be overriddenby appeal to net aggregatesocial welfare. Moreover,our conception of ourselvesas bearersof moralrightsdoes not owe its originto applicationsof the principleof utility.Farfrom being the productof a calculus of pleasureand pain, as our legal rightsare on Bentham's theory,the very natureof humanrightsis to be the enemy of such calculations.Indeed,it is preciselybecause of the assaultthose calculations often requireagainst individualsthat we rely on human rightsto obviate them. As for universalpoliticalrightssuch as mostof those cited in the French "Declaration" the United Nations "Declaration," and they are designed to minorities or tyrannical However,if, as protect majorities. againstneglectful underBentham's to be createdby law only if it is to the theory,rightsought to advantageof some majority do so, then it appearsthat rightscannot play Millwas at least the anti-majoritarian functionthat is so crucial.JohnStuart more candid on the point. Near the end of the final chapterof his 1861 he that "Allpersonsare deemed to have a essay, Utilitarianism, remarked rightto equalityof treatment, except when some recognisedsocial expediency requiresthe reverse."53

51.
52.

See KANT, supranote 41.

AND 208-33 JUSTIFICATION APPLICATIONS

53.

(1982). Fora criticismof the doctrineof absolute rights,see THOMSON, supranote 34, at 82-87. MILL, supranote 49, at 106 (emphasisin original).

For an exception to this generalization, see

ESSAYS ON ALAN GEWIRTH, HUMAN RIGHTS:

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Bentham'stheory brings a healthy no-nonsense approach to discussions about human rights.He says in effect: Do not deceive yourselfabout your rights;if they are not identifiedin law and protectedby government,you mightas well conclude thatyou have no such rightsat all. Surely,whatever rightswe claim, personal or universal,we want them protected by law, because the alternativeis to have them at riskof violationwith impunity. account of what it means to have a rightand his However,Bentham's account of the origin or source of our rights is defective. Rights are moral principles or importantly(although not uniquely) anti-aggregative moral standards;they must be able (to borrow Ronald anti-majoritarian Dworkin'snow-familiarmetaphor)54 trump aggregativeaces on many to occasions. Thus, their role is to limit the reach of considerations by requiringcollectives and majoritiesto acknowledge our inherentlyindividual interests borrowagainfromJudith Thomson).Normsderivedfrom (to priorjudgmentsaboutwhat is conducive to the generalwelfare,as rightsdo on Bentham's theory,cannotthen be turnedaroundto protectconduct by a dissentingminority. Like all theorists, Bentham implies that if one does not like the and his own consequences of his critique of the French "Declaration" the positivealternative, problemdoes not lie with belief in his theory.I have tried to suggest otherwise by examiningsome salient featuresboth of his of attackon the 1789 French"Declaration the Rightsof Man and Citizen" and of his attemptat a constructivealternative-a eudaemonist, legalist, were he here utilitarian theoryof rights.I would like to thinkthat Bentham, on reflection,be inclined to agree with me that we do have today, would, intelligible conceptions of moral, human, or natural rights, and that elucidatingthose conceptions is not most effectively done by relyingon considerations. eudaemonistic,legalist,and utilitarian

54.

at See RONALD RIGHTS SERIOUSLYvii, xi, xv (1977). Introduction to TAKING DWORKIN,