Explain as to why Jeremy Bentham dismisses the theory of natural rights as ‘nonsense upon stilts.’ (2009)
Jeremy Bentham wrote Anarchical Fallacies in the mid-1790s as a clause-by-clause attack on the French Declaration of the Rights of Man and of the Citizen (1789). Étienne Dumont first published it in French in 1816; the English text appeared in John Bowring’s edition of 1843. His verdict: Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, — nonsense upon stilts. The phrase compresses four arguments, each resting on utility.
Why “nonsense”: the four arguments
- Right is the child of law. A right exists only where law imposes a duty backed by a sanction. From real laws come real rights; an imaginary “law of nature”, lacking legislator and penalty, yields only imaginary rights, a bastard brood of monsters. A pre-political right is a contradiction in terms.
- Language and fictions. “Right” names a fictitious entity. It means something only when paraphrased into commands, duties and punishments. “Natural” adds nothing but emotional force; that is why the nonsense stands on stilts, raised by rhetoric above plain sense.
- Wishes are not rights. Ought is not is: reasons for wishing there were such things as rights, are not rights … want is not supply — hunger is not bread.
- Absurdity and anarchy. “All men are born free” is false, since every child is born into subjection. Rights called imprescriptible are, by Article 4, limited by law, so they are either absolute and incompatible with government, or legal after all. Worse, the Declaration aimed to excite and keep up a spirit of resistance to all laws — a spirit of insurrection against all governments. Writing after the Terror, he called it terrorist language.
The utilitarian alternative
Bentham was a radical reformer, not an apologist for despotism. The useful question, he held, is which rights a legislator ought to create by the greatest happiness test, not which rights nature supplies. A right earns its place when securing it by law yields more happiness than pain.
Significance and limits
- Influence. The critique founded analytical jurisprudence and legal positivism, from John Austin to H. L. A. Hart, separating law as it is from law as it ought to be. Yet Hart (“Are There Any Natural Rights?”, 1955) conceded that if there are any moral rights, there is at least one natural right: the equal right of all to be free.
- The gap it leaves. Legal rights alone offer no ground to condemn an unjust law; Nuremberg and the Universal Declaration (1948) revived natural rights as human rights for that reason.
- Indian test. In A. K. Gopalan v. State of Madras (1950) the Supreme Court read “law” in Article 21 as enacted law and refused to import natural justice: Bentham’s thesis in judicial form. Maneka Gandhi (1978) reversed course, demanding a fair and reasonable procedure, so moral standards re-entered through the Constitution itself.
- Continuing force. Jeremy Waldron‘s collection ‘Nonsense upon Stilts’ (1987) argues that Bentham’s objections, alongside those of Edmund Burke and Karl Marx, still demand an answer.
Conclusion
Bentham was right that a right without an institution is only a claim, and wrong that it is therefore nonsense. Modern human rights answer him on his own ground, building courts and treaties while refusing to let law exhaust morality.