Article by H.L.A. Hart
Just over 200 years ago when Britain's American colonies finally broke away and declared their independence, two major political philosophies confronted each other across the Atlantic. The American Declaration of Independence of 1776 invoked, in some famous brief sentences, the doctrine that all men are created equal and possessed of the natural unalienable rights of man: rights to life, liberty and the pursuit of happiness, and that it was to secure these rights that governments, deriving their just powers from the consent of the governed, were instituted among men. But only three months before the Declaration of Independence was signed, Jeremy Bentham had announced to the world in his first book A Fragment on Government his famous formulation of the principles of Utilitarianism, according to which both government and the limits of government were to be justified by appeal to very different principles: not by reference to the rights of individuals and certainly not by reference to an allegedly natural species of right, but by reference to "the greatest happiness of the greatest number." Later in the same year Bentham inserted into an Answer to the Declaration, published by a close friend and collaborator, a brief critical attack on the whole conception of natural and unalienable rights. In this work the doc trine of Natural Rights is rudely dismissed, partly as self-contradictory nonsense and partly as an intelligible but dangerous doctrine quite incompatible, if taken seriously, with the exercise of any powers of government whatsoever: as Bentham in this Answer to the Declaration asked "If the right of pursuit of happiness is a right unalienable, why are thieves restrained from pursuing it by theft, murderers by murder, and rebels by rebellion . . .?" These charges Bentham later repeated in a much expanded form in his essay on Anarchical Fallacies which he wrote in response to the French Declaration of the Rights of Man of 1791. Though in this later attack the criticism is much more detailed and sophisticated, the main charges are the same: the doctrine of Natural Rights is in part nonsense and in part dangerously anarchical, undermining good and bad government alike: it was, said Bentham, so much "bawling upon paper," not only "nonsense" but "nonsense upon stilts." Government among men exists not because men have rights prior to Government which Government is to preserve, but because without Government and law men have no rights and can have none. The test of good government is not Natural Right, but the general happiness of the governed.
The crucial difference between these two doctrines thus opposed in 1776 is that Utilitarianism is a maximising and collective principle requiring governments to maximise the total net sum or balance of the happiness of all its subjects, whereas Natural Right is a distributive and individualising principle according priority to specific basic interests of each individual subject.
Bentham knew that he had special talents for setting ideas to work in changing the world as well as understanding it. So he dedicated his energies throughout his long life to the detailed elaboration and application of the "greatest happiness" principle (as he preferred to call the principle of Utilitarianism) secure in the conviction that he was endowed with a unique capacity for this task and able to perform it more powerfully, more fully, more clearly and with more patience and convincing detail than any previous thinker who had based criticism of government and society on Utilitarian principles.
It was, I think, in part due to Bentham's extraordinary powers of exposition and his passion for working out in many detailed schemes of reform the practical consequences of Utilitarianism that, although his doctrines were at first ignored and later much criticised, eventually they came to dominate English social thought for a long time. For much of the nineteenth century 'Utilitarianism' became in England almost synonymous with progressive political and social thought. As Elie Halevy said, it seemed as if all reformers during the nineteenth century were forced to speak the language of Utilitarianism. By contrast the doctrine of Natural Rights (which had at the time of the American Revolution many English supporters) seemed to disappear from practical policies and controversy, as if vanquished by Bentham's onslaughts. Few advocates of constitutional or legal reforms in nineteenth-century England or even America invoked this conception. Of course Utilitarianism—or as it was often called Benthamism—had many critics in nineteenth-century England, and during Bentham's lifetime much of his work, famous abroad, was ignored at home. But the critics' own positive political or social philosophies, so far as they had any, were not framed in terms of the doctrine of the Rights of Man. Even in America, when after Independence the thirteen revolting colonies began to fashion constitutions first for themselves and then for the Union finally formed in 1789, their efforts were inspired by principles which fell far short of those announced in the Declaration of Independence of 1776. Slavery was accepted both by the constitutions of most individual states and of the Union, without any serious attempt to show how this could be reconciled with a theory that all men were created equal and equally endowed with a natural unalienable right to liberty. Even among the free, white, male population in America the advance after Independence to a full democratic franchise was very slow.
Read in the light of these facts the famous opening words of the American Constitution of 1789, which state that it is "to establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty," seem to express a theory that the main aim of government was not the maintenance of universal individual rights, but the maximisation of general welfare and the interests of the new nation as a whole, even if that involved, as it did in the case of slaves, the sacrifice for some of individual liberty and happiness.
So Bentham's successive attacks on the doctrine of Natural Rights had a long enduring success throughout the nineteenth century. I shall consider here a little more closely the detail of that attack as it appears in the essay on Anarchical Fallacies which is the most elaborate expression of his view. This work, written in 1795 but not published till after Bentham's death, is a curious work. It is prolix and pedantic but also written with great vehemence and passion. Bentham condemned "the rights of anarchy" (as he called Natural Rights) as compatible only with "the order of chaos"; their advocates were, he said, "subverters of government" and "assassins of security" who discussed serious political issues in a foolish terminology out of which Bentham said "may start a thousand daggers." Indeed he thought the doctrine so apt to inflame unthinking passions that its repression by the criminal law might be justified.
To understand Bentham's extravagances it must be remembered that this work was written when the Jacobin Terror was at its height and this had turned Bentham, as many others, from an initial support of the French revolution into scared opposition. Indeed in Bentham's case it had done something more important. Bentham in 1776 was no democrat and for at least ten years afterwards he held that there was no need for reform in constitutional England where vast numbers had no vote. In 1790 however he sketched out a Utilitarian case for democracy and full manhood suffrage. But fear of anarchy and horror of the excesses of the Terror caused Bentham to put aside consideration of democratic reforms and to devote his time to writing strongly conservative pamphlets, arguing that in England there was no need for constitutional reform or any move towards democracy. It was not till 1809 that Bentham recovered his nerve from the shock of the Terror. Then convinced that there was a case for democracy based not on the illusory Rights of Man but on the sure foundation of Utilitarianism, he became a fervent advocate of radical democratic reforms of the British Constitution.
Bentham was converted to democracy because he had learnt to take a deeply pessimistic view of all governments, the "ruling few" as he called them. He viewed governments as gangs of potential criminals, tempted like robbers to pursue their own interests at the expense of those over whom they had power, "the subject many." But democracy, by placing the power of appointment and dismissal of Governments in the hands of the majority was, he thought, the best device for securing that governments worked for the general interest by making it their interests to do so, just as the threat of punishment for ordinary crime effected an artificial harmony of interests of the individual and society by securing that potential criminals conformed, however reluctantly, to the requirements of the general welfare. These plain, indeed blunt, considerations were what Bentham offered as a sane and sober man's guide to democracy, instead of the half intelligible and wild assertions of Natural Right.
Bentham attacked the notion of Natural Rights in two main ways. First he claimed that the idea of a right not created by positive law was a contradiction in terms like "cold heat" or "resplendent darkness": rights, he claimed, are all fruits of positive law and the assertions that there were rights antecedent to and independent of human law was only saved from immediate exposure as manifest absurdity because men had been misled into talking of a natural law as a source of a natural right. But both these were nonentities, as is shown by the fact that if there is a dispute as to whether a man has some legal right and what its scope is, this is an issue about an objective ascertainable fact which can be rationally resolved by reference to the terms of the relevant positive law, or failing that, by reference to a court of law. No such rational resolution or objective decision-making procedure is available to settle the question whether a man has a natural nonlegal right, say to freedom of speech or assembly. There is no similar agreed test to establish the existence or nonexistence of a natural right, no settled law by which it can be known. So Bentham said, "Lay out of the question the idea of law and all that you get by the use of the word right, is a sound to dispute about." There are no rights anterior to law and no rights contrary to law, so though it may express a speaker's feelings, wishes or prejudices, the doctrine of Natural Rights cannot serve as Utilitarianism can, as an objective limit rationally discernible and discussable on what laws may properly do or require. Men speak of their natural rights, said Bentham, when they wish to get their way without having to argue for it.
Bentham's second criticism is that the use of the notion of natural nonlegal rights in political controversy and in criticism of established laws and social institutions must either be impossible to reconcile with the exercise of any powers of government, and so dangerously anarchical, or it will be totally empty or nugatory. It will be the former if the natural rights which men claim are absolute in form allowing no exceptions or compromise with other values. Men who have strong feelings against some established law will, by using the objective sounding language of unalienable rights, be able to present such feelings as something more: as claims of something superior to established law, rendering established law "void" and setting limits to what laws can do or require. Alternatively, if natural rights are not represented as absolute in form but allow for general exceptions (as the French Declaration did)—if, for example, the alleged natural right of freedom is put forward as something never to be abridged except when the law allows this—they are "nugatory," empty guides both to legislators and their subjects. It had been thus nugatory in some of the new American states where express declarations of a natural right to liberty in their constitution were held not to affect the slave owner's rights to property in his slaves. So concludes Bentham, natural rights are either impossible to reconcile with ordered government, since the exercise of governmental powers always involves some limitation of freedom or property, or they are nugatory, empty and useless.
Bentham's lengthy critique of natural rights scattered over his various works is comprised of many other objections besides the two I have mentioned, but these two took a firm root in English political theory. In particular the thesis that there are only legal rights, that the idea of rights anterior to or contrary to law is absurd, became for a time part of conventional wisdom and was accepted almost as a truism by many English social thinkers. So much so that even the poet and critic Matthew Arnold, who was only marginally concerned with political philosophy or constitutional theory and was certainly in general unsympathetic to Utilitarianism, when arguing in 1878 that many unsatisfactory features in the social life of mid-Victorian England were due to its great economic and social inequality, felt it incumbent upon him to disclaim any belief in any moral or nonlegal right to equality or to anything else. Using language exactly conforming to Bentham's ideas he said, "So far as I can sound human consciousness, I cannot, as I have often said, perceive that man is really conscious of any abstract natural rights at all. . . . It cannot be too often repeated: peasants and workmen have no natural rights, not one. Only we ought instantly to add, that kings and nobles have none either. If it is [a] sound English doctrine that all rights are created by law . . . certainly that orthodox doctrine is mine."
About the Author
H.L.A. Hart. Former Principal, Brasenose College, Oxford University. M.A., (Oxon.) F.B.A.
Citation
53 Tul. L. Rev. 663 (1979)