Philosophy and Legal Enthusiast
Natural Rights? You must be kidding
Bentham did not even accept the term, ‘natural rights’, describing it as ‘ambiguous’ and ‘sentimental’: he allowed that these ideas may serve as moral guidelines, but should never be the basis of legislature, especially since the social acceptance of ‘natural rights’ would diminish the authority of law – if there are rights which exist regardless of the law, they cannot be contained by the law, thus making perpetrators unanswerable to justice, leading eventually to anarchy (natural rights are subjective to some degree, and risk potentially undermining governmental legislation).
Exercising such a universal, natural “right” would destroy the right altogether, as no legal system could function with such a broad conception of rights. Thus, there cannot be any general rights in the sense suggested by the French declarations. In one word, the view that there could be rights not based on sovereign command and which pre-exist the establishment of government is rejected. 5 Natural rights are subjective and their interpretation depends on the nature of the prevailing societal consciousness, for example, the right to “property” has been modified under the influence of socialist thought, and may differ within a capitalist, democratic society.
5 Academic paper: Jeremy Bentham’s ‘Nonsense upon stilts’ – Philip Schofield (University College London)
Instead, Bentham argued that all rights must be specifically defined by the law in order to have any actual meaning; if one’s certain right is inalienable, it must be illegitimate for another individual to tamper with or infringe upon it – this means that there must be a law to protect that right. Accordingly, laws should not be made with ‘natural rights’ in consideration, but rather on the pure basis of utility; otherwise, they would venture into the realm of authoritarianism.
Criticisms of the perspective
Two main criticisms have been made in objection to this perspective. The first being an argument that utility does not account for a person’s individual rights (the ‘natural law’ argument).
The Main Criticism
The following are from the 1st and 3rd articles of the United Nations Universal Declaration of Human rights. “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood,” and “Everyone has the right to life, liberty and the security of person.” Proponents of this view contend that humans possess natural rights independent and anterior to the establishment of government. For example, in the past, black people and women had to campaign for ‘universal’ suffrage (natural right to “liberty” had been violated).
No such laws emanated from the government: there were some rights the law initially did not recognise, but later promoted and maintained. It is often argued every Human being has a natural right to, per se, breathe fresh air, to know his or her medical diagnosis, to drink water, to have access to education, to be paid agreed wages, et cetera.6
Even in the absence of governmental law, all these natural rights are evident; regardless of whether they have legal backing, they remain rights (natural rights, hence, are sensible, despite sometimes not being recognised as within the law). Therefore, one can conclude that it is possible for rights to be natural, not legal, and vice versa. A scenario can be modelled in which there is a totalitarian regime: picture something from a dystopian fiction novel: 1984, Fahrenheit 451, and so forth. There exists a regime which violates basic rights, murdering its citizens without due process. The only resolution to the situation is by means of revolt; revolution. Of course, no such resolution can be legalised, as it is inherently an anti-government action. Would citizens living under a totalitarian dictatorship be justified in revolting against their oppressive regime, even without the legal right to do so? Arguably, yes. 7
Bentham believed there is no such thing as a universal right, as he argued that the possible application of a rule in all scenarios essentially nullifies it: ‘what is every man’s right is no man’s right.’ This contradicts Immanuel Kant’s ideas of a categorical imperative; that an action is justifiable only by considering its universalisation – according to Alessandro P. d’Entreves, “Kant was indeed the most forceful exponent of natural law theory in modern days”. Being the exact opposite of Bentham’s argument, it has already been established that natural law promotes the idea that ethical principles are universally and objectively valid, rather than subject to the opinion of a government.
6 Academic paper: Natural rights as ‘Nonsense upon stilts’: Assessing Bentham – Dennis Ejikeme Igwe (university of Uyo, Nigeria)
7 Academic paper: Natural rights as ‘Nonsense upon stilts’: Assessing Bentham – Dennis Ejikeme Igwe (university of Uyo, Nigeria)
Under this philosophy, somebody who violates another’s ‘natural right’ is doing something fully condemnable even if it is not protected by law. Kant also argued that, by definition, doing something morally good must be freely chosen by the actor, and not impelled by legislation. He highlighted that the nature of governments is inherently coercive to some degree, so they should not be the arbiters of moral good for the people.
This quote by John Locke summarises his train of thought: “it is one thing to persuade, another to command; one thing to press with arguments, another with penalties.” The words ‘command’ and ‘penalties’ echoing a disdain for governmental enforcement of natural rights using fear of legal consequences.8
The Second Criticism
The second critical objection to Utilitarianism is the absurd simplicity of using a single scale to measure, aggregate and calculate net happiness. Preferences are weighed without judgement, and everyone’s preferences are counted equally, with no regard for morality. How can it be possible to translate moral considerations into a single currency without losing something in translation? A ‘cost benefit analysis,’ a mechanism used by corporations and governments to bring rationality and rigour to complex social decisions via a utilitarian logic, illustrates this line of reasoning.
‘The benefits of lung cancer in the Czech Republic’ is one such example: Out of concern for general public health and the subsequent rise in financial stress on healthcare, the Czech government considered raising taxes on cigarettes, the aim being to deter consumption. Philip Morris, a tobacco company, naturally opposed to this motion, commissioned a cost benefit analysis of the effects on smoking to the Czech national budget.
The study concluded that smoking, in monetary terms, was actually beneficial for the government: although smokers amass large medical expenses on the budget whilst alive, their premature deaths due to lung cancer and other smoking affiliated diseases save the government considerable sums in pensions and housing for the elderly – the death of Czech citizens was financially feasible (with a net government saving of £1,227 per death), hence, they publicised this stance in efforts to garner support for their cause.
A subsequent PR disaster ensued due to this moral discrepancy. Some Benthamites argue that the study does not embarrass utilitarian thought, but rather misapplies it: the reason this analysis displays a callous disregard for human life is not due to a failure on the behalf of utilitarianism, rather a failure to include every factor in the moral calculus, including the cost, both in financial and emotional terms, thrust upon the grieving families of those involved. Nonetheless, a utilitarianism rationale mandates the assignation of a value to human life (a monetary value in the smoking example): the case generated moral outrage, not because Philip Morris didn’t calculate the value of human life, but because they did. 9
Thus far, two objections to Bentham’s utilitarianism have been considered – it overlooks “natural rights,” and, by doing so, wrongly reduces anything of moral importance to an overly simplistic scale of pleasure and pain. Another philosopher, John Stuart Mill, whose father was Bentham’s personal acquaintance, aimed to redeem utilitarianism by recasting it as a more humane doctrine; but to what extent was this a success?
John Stuart Mill, A Comparison in Ideas
Most people commonly associate Mill with his ideas of “higher and lower pleasures,” however, this passage will focus exclusively on the case made by his book “On liberty” (p. 1859), founded upon the notion of a classic defence of individual freedom. In principle, he argues that human being should be free to do whatever they please, provided they do not inflict harm upon others, and that a government may not interfere with individual liberty on this condition.
9 Pages 41 – 43 of “Justice: what’s the right thing to do” – Michael J. Sandel
The only actions for which a person may be accountable are those that affect other people – given this condition is met, “independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.” Even though this idea seems sympathetic to natural law, he insists it relies on utilitarian considerations.
He believed utility ought to be maximised in the long run rather than on a case by case basis. If the natural right to liberty is respected, it will yield the highest happiness. Suppose, in a hypothetical society, there was a large majority, who passionately wanted to ban a significantly smaller religious minority. Surely, if numbers were significant enough, banning the minority religion would make perfect sense on utilitarian grounds: the greatest happiness for the greatest number.
Mill disagrees with this version of utilitarianism. In the short run, eradicating the religious group would procure the most happiness, however, quoting Michael J. Sandel’s interpretation of Mill’s views in his book ‘Justice,’ “a society that forces its members to embrace custom and convention is likely to fall into stultifying conformity, depriving itself of the energy and vitality to prompt social improvement.” Forcing a person to adhere to the conventions of prevailing popular opinion is wrong: Conformity, in his opinion, was opposite to the way mankind ought to lead their lives. 10
Considering the evidence, my personal take on Bentham’s argument is that he is completely and utterly wrong. Even though his Utilitarian philosophy makes perfect, rational sense in the case of the Mignonette, applying it so society would have wider ramifications – for instance, the example used about eradicating a minority religion. The cabin boy was only one individual, however, Bentham’s theory, given adequate numbers of people exist who derive pleasure from his scale of net pleasure and net suffering, could justify heinous acts: child molestation, rape, murder, cannibalism11 – in the most extreme cases, genocide.
My stance is similar to that of Mill – his theory negotiates a compromise between the two opposing ideologies – by incorporating morality from natural rights, intrinsic to every human being, into the logical calculus posed by utilitarianism, society, in the long run, can achieve the greatest net happiness. Natural rights, therefore, are much more than just “nonsense upon stilts,” but an essential basis upon which a society can function.
10 Page 48 – 51 of “Justice: what’s the right thing to do” – Michael J. Sandel
Book: Justice: What’s the right thing to do? – Michael J. Sandel
Academic paper: Natural rights as ‘Nonsense upon stilts’: Assessing Bentham – Dennis Ejikeme Igwe (university of Uyo, Nigeria)
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Academic paper: Jeremy Bentham’s ‘Nonsense upon stilts’ – Philip Schofield (University College London)
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