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A Critical Appraisal of Jeremy Bentham’s Rejection of Natural Rights and the Moral Necessity of Human Rights  

Jeremy Bentham’s argument against natural rights, which he famously described as “nonsense upon stilts,” is perhaps the most powerful and lasting political philosophy argument. Bentham, in his Anarchical Fallacies, argued that there could be no rights absent the law supplied by the state and claimed that references to “natural” rights-those held to be pre-political or self-evident-are not only illogical but politically dangerous (Bentham, 1843). Bentham’s position is in line with his utilitarian view of ethics, but on the contrary as a number of critics have pointed out, both philosophically and morally reprehensible. This essay is a critical analysis of Bentham’s dismissal of natural rights from a philosophical and moral perspective and comparing the position of Bentham with that of other philosophers.  

Bentham’s case rested on the assumption that rights are legal constructs rather than natural entitlements. Bentham categorically rejected the belief in “natural” rights ante governments or legislations. According to Bentham, rights are established by law, and that only real legislations can give rise to actual rights, whereas so-called legislations of nature produce only notional rights, which he equated with monstrous fictions (Bentham, 1843). He believed that the invocation of rights in documents like the 1789 French Declaration of the Rights of Man and of the Citizen was not only incorrect but also damaging, because such pronouncements assumed the presence of rights that no state had explicitly recognized and reaffirmed through valid legal power. Bentham contended that such pronouncements could incite insurrection and undermine social and legal stability. 

Bentham’s argument was grounded upon his utilitarianism. In his view, the sole criterion for validity of any political or legal institution, such as rights, is on the ground of consequences that is, does it lead to the greatest happiness of the greatest number. Bentham argued that to claim that a person has a right to perform an action is simply to claim that the law should allow it, and that it is dictated by what the law does allow rather than something else (Bentham, 1843). Hence, Bentham argued that appeals to natural rights bypass the only sure method of determining justice, that is, a calculation of utility. 

Bentham also opposed natural rights on epistemological premises. Natural rights, for him, were unobservable and immeasurable, and he dismissed them as metaphysical illusions. He argued in scornful words that natural rights are mere nonsense, and talk of natural and imprescriptible rights is rhetorical nonsense-nonsense upon stilts, as he called it (Bentham, 1843). By regarding them as empty rhetorical phrases, Bentham withdrew philosophical legitimacy to any talk of rights that did not found their basis in codified law. 

Bentham’s denial of natural rights is questionable on several counts. Firstly, it undermines the moral foundation on which legal codes may be faulted for injustice. In equating all rights as things of law, Bentham’s schema offers no solid ground upon which to criticize unjust or tyrannical legal codes. His reasoning runs that if a state refuses to grant recognition to the existence of a right, the right does not exist, in reality. This would mean, for instance, that Black South Africans under apartheid or Jews in Nazi Germany did not enjoy “real” rights unless the state chose to grant them such, a view which is morally untenable. Tesón (1985) contended that legal positivism cannot account for the wrongness of institutionalized injustice if rights are conceived as nothing more than state-conferred entitlements. Tesón maintained that concepts like human dignity, equality, and justice have requirements that transcend any given system of law. 

Secondly, Bentham’s utilitarian approach fails to safeguard the rights of minorities. If moral judgments are made solely on the basis of overall happiness, then the suffering of a minority could be justified by the majority’s pleasure. Bentham did acknowledge this problem by saying that the phrase “the interest of the community” is so indeterminate that its meaning is generally lost (Bentham, 1843). On a calculating utilitarian basis, these things such as slavery, torture, or censorship might be licensed if they produce an overall gain in happiness. But natural rights are moral boundaries that should never be crossed regardless of the outcome. 

Third, the dismissal of natural rights by Bentham as “nonsense” is a consequence of a reductionist understanding of reality. Empiricism led him to forget the normative function of rights. The fact that natural rights cannot be seen does not mean that they lack significance. Invisible abstract concepts such as justice, liberty, and equality cannot be seen either, yet they remain essential to political and moral argument. Griffin (2008) has argued that to deny the legitimacy of human rights on the grounds that they are not physical objects is to confuse the nature of existence with moral value. Political and ethical reasons rely on such abstractions for their evaluation and critique of the institutions within which we live. 

John Locke placed a strong challenge on the views of Bentham. Locke employed his Second Treatise of Government in arguing that human beings have inherent rights as human beings, and that these rights are in place in the state of nature before any existing government. Locke did think that the natural state is under natural law, and that can be discovered through reason by everyone, and it will instruct all people that because everyone is equally and independently endowed, no one can harm anyone else in life, health, liberty, or property. Locke did think that natural rights of life, liberty, and property are based upon natural law that can be found with the use of reason.  

Locke also believed that governments are not the creators of rights; rather, individuals form governments to further secure their already inherent rights. When a government fails to protect these rights, it ceases to be legitimate. Locke explained that when lawmakers attempt to take away or annihilate the property of the people, they put themselves into a state of war with the people, who are then let off from further obedience (Locke, 1980). This view grounds rights in moral principles rather than in law and defends resisting tyranny. Locke’s ideas inspired subsequent democratic revolutions. The American Declaration of Independence, for instance, states that human beings are endowed with certain unalienable rights by their Creator and that governments get their just powers from the consent of the governed. Locke’s legacy is the understanding that there are certain rights above the power of the state and that they can provide a moral ground for challenging laws. 

Modern philosopher James Griffin built upon the Lockean tradition by basing rights on the idea of human dignity and agency. In On Human Rights, Griffin (2008) contended that human rights emerge from our ability to be autonomous agents-the capacity for choice-making and the shaping of our own lives. Griffin contended that human rights are justifications of our normative agency, the dignity of being self-determining agents, and that this dignity is the essence of our dignity. Rights therefore are not metaphysical or arbitrary but grounded on the very nature of humanity. Griffin’s position mediates between legal pragmatism and moral realism. He agreed that rights must be institutionalized to be effective but insisted that they have a moral foundation independent of law. Griffin directed himself expressly to Bentham’s skepticism by asserting that what renders a human life valuable is not the same as its usefulness. To Griffin, the worth of a human person cannot be included in a utilitarian computation; rights are required to express and safeguard the natural dignity of human agents (Griffin, 2008).  

This focus on dignity was in accordance with the post-World War II human rights movement. The Universal Declaration of Human Rights (1948) averred that all human beings were born free and equal in dignity and rights, positively rebuffing any idea that rights depend upon national legal systems. Tesón (1985) wrote that universality among human rights is necessary in order to criticize states committing human rights abuses in violation of human dignity, regardless of cultural or legal context. History shows that when legal systems turn into instruments of oppression, one must appeal to a higher power, and natural rights give human beings that power. 

Bentham’s contention that natural rights are “nonsense upon stilts” illustrates his utilitarianism and legal positivism. While his criticism of legal certainty and social order makes sense, his rejection of natural rights is philosophically and ethically unconvincing. Rejecting inherent rights, Bentham’s theory is inadequate to respond to the moral critique of authoritarian rule or protect individual dignity. Conversely, the Lockean school of thought and that of modern thinkers like James Griffin offer a more appealing account of rights as moral claims rooted in human nature and dignity. Such rights are not legally created but should guide and constrain it. They enable us to pass judgment when legal systems fail and give us the ability to stand against injustice. Griffin stressed that rights are needed since they safeguard the crucial conditions for living valuable human lives (Griffin, 2008). Natural rights are not nonsensical but a moral imperative in any fair society. Natural rights are thus philosophically sound and morally required particularly when legal systems collapse or become oppressive tools.ReferencesBentham, J. (1843). Anarchical fallacies: Being an examination of the Declaration of Rights issued during the French Revolution. In J. Bowring (Ed.), The works of Jeremy Bentham (Vol. 2, pp. 489–534). William Tait. (Original work published 1796). https://oll.libertyfund.org/title/bowring-the-works-of-jeremy-bentham-vol-2Griffin, J. (2008). On human rights. Oxford University Press. https://doi.org/10.1093/acprof:oso/9780199238781.001.0001Locke, J. (1980). Second treatise of government (C. B. Macpherson, Ed.). Hackett Publishing. (Original work published 1689).Tesón, F. R. (1985). International human rights and cultural relativism. Virginia Journal of International Law, 25(4), 869–898. https://www.heinonline.org/HOL/P?h=hein.journals/vajint25&i=885