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Jeremy Bentham on rights as a creation of the state alone (1831)

The English utilitarian political philosopher and lawyer Jeremy Bentham (1748-1832) dismissed the notion of “natural” rights as nonsense and argued the all rights were the creation of the state:

Rights are, then, the fruits of the law, and of the law alone. There are no rights without law—no rights contrary to the law—no rights anterior to the law. Before the existence of laws there may be reasons for wishing that there were laws—and doubtless such reasons cannot be wanting, and those of the strongest kind;—but a reason for wishing that we possessed a right, does not constitute a right. To confound the existence of a reason for wishing that we possessed a right, with the existence of the right itself, is to confound the existence of a want with the means of relieving it. It is the same as if one should say, everybody is subject to hunger, therefore everybody has something to eat.

Of private rights these five sorts have been distinguished:—1. Rights as to person; 2. Rights as to property; 3. Rights as to power; 4. Rights as to reputation; 5. Rights as to condition in life.

All these rights have for their efficient cause certain services, which by a general and standing disposition on the part of the functionaries of government in the supreme grade are understood to have been rendered to every man, and which, in consequence, on each particular occasion the functionaries of judicature, and upon occasion the functionaries belonging to the army, hold themselves in readiness to render to him. These services consist in the giving execution and effect to all such ordinances of the government as have been made in favour and for the benefit of every individual situated in the individual situation in which in all respects he is situated

In virtue and by means of that same standing and all-comprehensive service, the supreme rulers have given the name of wrong, and the name, quality, and consequence of an offence, to every act by which any such right is understood to have been broken, infringed, violated, invaded. In giving it the name of an offence, they have made provision of pain under the name of punishment, together with other means of repression, for the purpose of preventing the doing of it, or lessening as far as may be the number of instances in which it shall be done.

Rights are, then, the fruits of the law, and of the law alone. There are no rights without law—no rights contrary to the law—no rights anterior to the law. Before the existence of laws there may be reasons for wishing that there were laws—and doubtless such reasons cannot be wanting, and those of the strongest kind;—but a reason for wishing that we possessed a right, does not constitute a right. To confound the existence of a reason for wishing that we possessed a right, with the existence of the right itself, is to confound the existence of a want with the means of relieving it. It is the same as if one should say, everybody is subject to hunger, therefore everybody has something to eat.

There are no other than legal rights;—no natural rights—no rights of man, anterior or superior to those created by the laws. The assertion of such rights, absurd in logic, is pernicious in morals. A right without a law is an effect without a cause. We may feign a law, in order to speak of this fiction—in order to feign a right as having been created; but fiction is not truth.

We may feign laws of nature—rights of nature, in order to show the nullity of real laws, as contrary to these imaginary rights; and it is with this view that recourse is had to this fiction:—but the effect of these nullities can only be null.

About this Quotation:

Jeremy Bentham famously regarded natural rights as “simple nonsense” and imprescriptible natural rights as “nonsense on stilts” (see his attack on the French Declaration of the Rights of Man and the Citizen in Anarchical Fallacies (1796)). Thirty five years later he was still railing against the idea. In an unpublished work on Pannomial Fragments (c. 1831) he gave the clearest statement of his position: that rights were nothing but the creation of “the functionaries of government in the supreme grade” who granted them to citizens and which rights were guaranteed by “the functionaries of judicature” and enforced by “the functionaries belonging to the army”. Bentham thought that the idea of “natural rights” was a “fiction” which had been invented by revolutionaries in order to show “the nullity of real laws” which were “the fruits of the law, and of the law alone”. If the believers in natural rights had their way, he argued, it would lead to “anarchy.”

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