Critically discuss the idea that the possession of natural rights (moral

rights) by individuals is nonsense upon stilts with particular reference to

what John Locke (1632-1704), Jeremy Bentham (1748 - 1832) and Karl
Marx (1818-1883) had to say about rights

The aim of this essay is to critically discuss what was meant by the term
nonsense upon stilts used by Jeremy Bentham (1748-1832) in relation
to the debate that one should have possession of natural rights. The essay
will begin by defining the main key terms of Rights, Natural Laws and
Natural Rights. It will then move onto briefly discussing the history of the
modern day concept of human rights, whilst critically evaluating human
rights and its origin with reference to the idea of inherent (natural)
entitlement. The main body of the essay will comprise of a setting out of
the natural rights idea with particular regard to Locke: and the challenges
leveled against the concept of inherent entitlement driven by Bentham
and Marx. Once again Bentham a belief in natural rights was- simply
nonsense, a view that Marx would also share. To conclude, all points will
be drawn together to bring this essay to a close.
Human rights are a political claim that outlines what an individual is
entitled to (Goodhart, 2009) due to the fact they are simply human
(Heywood, 1994). Human rights can be also known as fundamental rights
(Jones, 1994), which suggest that they are inalienable. The concept of
rights can be seen linked to the idea of life, liberty and property (Freeden,
1991). Regardless of a persons nationality or citizenship, human rights
belong to everyone to help uphold a civilised society (Ministry of Justice,
2006). Lawyers, historians and philosophers all have interests in human
rights (Freeden, 1991).
Natural law has seen to be associated with Christianity and the church;
this therefore proposes that individuals have the duty to God and one
another. The term natural is used to clarify that the law is not man made
(Jones, 1994). Thus rights were derived from duties we owed to one
another and God (Goodhart, 2009: 12).
A contemporary concept of human rights claims that there is a long
history of evidence of the idea of human rights, which emerged from
natural law. Freeman (2011) explains how in some religions and
philosophies there are concepts linked to the idea of rights. History
provides examples of the rise in natural rights and the concept of rights,

which can be seen with regards to Code of Hammurabi (c.1792-50 BC)

which is said to be the oldest text of the rule of law, Cyrus the Great (529
BC) who abolished slavery and Buddhist King Ashoka (c. 264-38 BC)
who provided health, education and gave duties to selected officials with
the aim of preventing wrongful punishments. This therefore shows how
in many different cultures, the concept of principals related to Human
Rights can be seen.
From natural law came natural rights. These rights are not enforced by
the legal system, which therefore implies that they are a type of moral
right. Moral rights suggest what people should have from a moral or
religious viewpoint (Heywood, 1994). These rights belong to all
individuals regardless of what country or community they may come
from (Hart, 1967). By the 20th century natural rights became less popular
due to the decline of religion and was therefore reinvented into human
rights.
The idea of natural rights has importance politically. This can be seen
within the American Declaration of Independence (1776) and the
Declaration of Rights of Man and the Citizen (1789). Thomas Jefferson
states within the American Declaration of Independence that, all men
should be created equal with certain rights such as Life, Liberty and the
pursuit of happiness, which are protected by the government. However, in
the case of the government becoming tyrannical, the people have the right
to overthrow them. This idea is clearly grounded in a Lockean conception
of Natural rights, which will be discussed further on.
Thirteen years after the American Declaration of Independence (1776),
The Declaration of Rights of Man and the Citizen (1789) was established.
This declaration highlighted that having the least amount of government
control within rights creates less evil (Freeman, 2011).
The concept of human rights law as stated previously, can be found
within the seventeenth and eighteenth centuries. The Second World War
enforced the protection and promotion of human rights through the means
of the international law, known as the Universal Declaration Of Human
Right (1945). This was due to the horrifying acts of the Holocaust, where
the Nazis murdered millions of innocent civilians. Crimes against
humanity were implemented by the Nuremberg War Crimes Trials (19451946), this is where officials could be held responsible for the crimes
against an individual (Donnelly, 2007). This allowed revival of natural

rights and the emphasis/recognition of the importance of it as well as

bringing attention to the severity of having international protection over
them (Barry, 1995). Even though all individuals have universal rights, it
is the duty of the state to implement and protect these rights (Donnelly,
2007).
Historically and politically the idea of natural rights is evident. However,
a look through the history of these ideas shows the ups and downs of the
revival of the idea of natural rights. When Bentham states natural rights
are nonsense upon stilts, he is regarding this due to the fact that the
Lockean theorys starting point was grounded in the idea of inherent
rights. According to Bentham the idea of inherent rights was nothing but
an idea based on supposition. For Bentham this was no solid basis.
Thomas Hobbes (17th century) believed that the main goal for human
behaviour is to achieve the maximum satisfaction and reduce harm.
Hobbes argues that individuals create a social contract due to the desire to
have material goods. At its core social contract is natural law. Hobbes
explains that natural law consists of fundamental right to life. These
rights are the liberty each man hath, to use his own power, as he will
himself, for the preservation of his own nature (Hayden, 2001: 57). For
this to be achieved all individuals must hand over their absolute liberty to
the sovereign or as Hobbes named the Leviathan. The duty of the
government is to apply punishment to individuals who infringe the laws
of the society. John Lockes theory slightly differs to Hobbes in the sense
that the power remains with the individuals rather than giving their
absolute liberty to the sovereign.
John Locke (17th century) was the first modern natural rights thinker, who
had a strictly individualistic view on rights and can be seen as a
traditional theorist linked to modern liberalism (Campbell, 1996). Locke
argued for the right to life, liberty and property, which are referenced to
natural rights (Jones, 1994). Lockes theory explains how the sovereign
was not the creator of these natural rights but rather they implement
already existing rights, which are both inherent and inalienable (Barry,
1995). Due to the voluntary transferal to the sovereign, allows supremacy
of the people over the sovereign. In the case of the sovereign infringing
their duties, the people have the power to overthrow them (Hayden,
2001). Status-based justification is firmly rooted in the concept of
individual dignity and how it can be achieved (Wenar, 2011).

Kant reinforced the idea of natural entitlement, that entitlement could be

claimed before any laws have passed. Kant supports Locke in the idea
that individuals should be considered equal and to be seen as an end, not
a means (Goodhart, 2009). This therefore suggests that individuals should
be treated with respect and dignity, and treated as an equal, grounded in
the notion of human dignity (Waldron, 1984).
A critique of the concept of natural rights is that it can vary between
different theorists. Hobbes explains how natural rights is selfpreservation. Locke later adds in that all individuals are born free, equal
and independent. Jefferson further expands that natural rights are life,
liberty and the pursuit of happiness. Due to the language changing and
adapting the lack of consistency allows room for confusion and
definitions unclear (Douzinas,2000).
Within the 18th century, the assault on natural rights arose, which led to
the fall of natural rights. Jeremy Bentham claims that human beings tend
to avoid pain and instead increase the maximum pleasure possible
(Hayden, 2001). The utilitarian viewpoint advocated by Jeremy Bentham
provides critiques to the Lockean theory. Utilitarianism entails the
greatest good, to the greatest number (Freeman, 2011), so therefore to
maximise utility. Whereas the Lockean theory used status-based
justification, Benthams uses instrumental justification. This approach
identifies what the desired outcome may be and works backwards from
there to calculate how to achieve that desired outcome (Wenar, 2011),
which in the case of Bentham, is the greatest happiness.
Bentham only acknowledged the existence of positive rights, so therefore
ignored moral rights (Heywood, 1994). Bentham argued that Lockes
ideas were nonsense upon stilts and states, Natural rights is simple
nonsense; natural and imprescriptible rights, rhetorical nonsense,
nonsense upon stilts (Bentham, 1987: 53). According to Bentham natural
rights were metaphysical and therefore could not be proven to exist.
Burkes, who did not ignore the concept of natural rights in the essence of
life, liberty and freedom, however supported Bentham with regards to
rights being a useless metaphysical abstraction (Freeman, 2011:32).
Burkes argued that the Right of Man was too simplistic whilst Bentham
regarded them as preposterous fraud (Tebbit, 2000: 101)
Another critique according to Heywood (1994) is that moral rights have
the risk of being ambiguous and based around only on what should be
morally desirable. This is another reason why Bentham rejected moral

rights. On the other hand, recognition should be given to moral rights due
to it being the foundation of what legal rights have developed from.
A communist thinker, Karl Marx (19th century), argues for a
conflict-free society where there is no need for rights due
to the absence of private ownership. By taking away
individuals rights and replacing them with group rights will
therefore create an equal society. Marx argued against the
Lockean theory with regards to the rights of man being
individualistic and therefore separates society and limits
their natural freedoms. Tribe (1990) supports Marx as he
suggests that through power of those in control, such as
the sovereign and the government, rights may negatively
aid in contributing to injustice and inequality. Tribe further
states that rights can be seen as simplistic and unrealistic.
Marxs believes that natural rights allows the bourgeois to
have a free hand in the capitalistic society, whilst paying
no attention towards the well-being of the rest (Goodhart,
2009). Marx argued that even though natural rights gave
the impression of being universal it seemed to benefit the
bourgeois, in the terms of property rights (Campbell,
2006). Thus allowing the remainder to be at a
disadvantage.
Benthams idea of legal rights were later criticised by
Marx, who claimed that they fail to treat the individual as
a human but rather legal entities that can be controlled by
the state. Laws are put in place to protect our human
rights known as legal positivism. However, as mentioned
previously, a main critique of Benthams idea is the risk
that rights exist only where a law is put in place to say it
does. Without this law there is no regard to human rights.
Which therefore contradicts the main purpose of the
human rights movement and the idea that laws are put in
place to protect and policy human rights. (Langlois, 2004).
Another critique of Benthams work was based on theory
of utilitarianism. Nozicks main criticism is that
utilitarianism entails of the greatest happiness for the
greatest number. This therefore creates opportunity to
sacrifice the minority for the sake of the majority

(Davidson, 1993). Furthermore this implies that the

majority is the main priority and the minority of less worth.
The concept of universalism is the idea that rights can be
applied to all types of humans, taking into consideration
cultural diversity. However, some universal rights do not
apply to everyone, which therefore creates cultural
relativism. Examples of ways human rights may not take
into account cultural relativism are through female rights.
Female genital mutilation (FGM), are customs within
certain cultures which consists of the removal of part of
the female genitalia. This practice of FGM violates a
womans sexual universal rights, however it is embedded
in a culture where they do not know any different (Terry,
2007).
On the other hand, it may be important to take into
account culture but where is the line drawn where cultural
relativism becomes more important than the protection of
the individual through universal rights. The attempt to
impose one list of abstract rights on all men would issue
the breakdown of social bonds, the eruption of chaos.
(Goodhart, 2009: 20)
Overall, evidence shows that the history of the revival of
the idea of inherent entitlement demonstrates that
Benthams call that natural rights are- nonsense upon
stilts- has not been fully taken on broad. The revival of
natural rights is reflective and can be clearly used against
Benthams critique. The political and historical proof that
natural rights paradigm established a standard of
international human rights clearly questions the value of
Benthams statement. If natural rights were simply
nonsense upon stilts then would the foundation of
international human rights too be nothing but nonsense?

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