Rights are made, not found
Can there be rights before any law creates them? Bentham says no: a right is the child of a law, and to speak of rights prior to government is to speak of nothing.
A right, Bentham argues, is the creation of a law and can mean nothing before one exists. So the French Declaration's natural, imprescriptible rights, held to be prior to any government, are not merely mistaken but incoherent, a word on a page with nothing behind it. He wants rights, and wants them keenly, but rights made and secured by legislation, defended because they do good rather than because they are ancient or self-evident. His verdict that such talk is nonsense upon stilts is contempt for the metaphysics, not for the protections; those he would build on utility, where they can be defended and, when bad, reformed.
- legal theory
- legislation
- justice
- utilitarianism
- epistemology
- rights
Enter a dialogue
- The Declaration says all men are born free. You reply that every child is born in complete subjection to its parents. What does that do to the claim?
- Someone insists they hold rights no government could ever take away. On your account, what are they really holding when they say it?
- You would defend a right because it does good, not because it is ancient or obvious. What must a right do before it earns that defence?
- If every right is only the creation of a law, doesn't that leave a citizen defenceless the moment a government legislates their rights away?
- A house is someone's own only because a law bars others from entering. Why did you count even property as made by law, not found in nature?