"Anarchical Fallacies": Bentham's Attack on Human Rights

I

For those interested in human rights, the year 1998 deserves to be remembered for at least two convergent reasons. Two hundred and fifty years ago, in 1748, Jeremy Bentham was born in London, and in 1948 the Universal Declaration of Human Rights ¹ (hereinafter United Nations "Declaration") was adopted by the General Assembly of the United Nations in New York. Thus in 1998 we celebrated two major anniversaries, the birth of an important and influential English thinker--a philosopher, lawyer, reformer, and public policy analyst; and the anniversary of the formulation of the most influential manifesto of international human rights.

The conjunction of these two events provides an occasion for reflection on some of Bentham's philosophical arguments regarding what in his day were called "natural rights" and what are now called "human rights." ² This opportunity arises because Bentham wrote an essay titled "Anarchical Fallacies," ³ in which he attacked the most popular manifesto of such rights in his day, the "Declaration of the Rights of Man and Citizen" ⁴ (hereinafter French "Declaration"). This "Declaration" was adopted by the French National Assembly in August 1789, a mere six weeks after the storming of the Bastille, the opening salvo of what was to become the French Revolution.

Bentham's essay has a curious history. Apparently written sometime in 1796, it remained unpublished until 1816, when it appeared in print--not in London, but in Geneva, Switzerland, and not in English but in French. It became available in English only in 1834, two years after Bentham's death, when his collected works were published in London. ⁵

In light of Bentham's scathing criticisms of the French "Declaration," one naturally wonders what he would have had to say today were he in a position to evaluate the United Nations "Declaration." Query whether he would describe it in the same terms he used to discuss its French predecessor: that it consists of "execrable trash," that its purpose is "resistance to all laws" and "insurrection," that its advocates "sow the seeds of anarchy broad-cast," and, most memorably, that any doctrine of natural rights is "simple nonsense: natural and imprescriptible rights, rhetorical nonsense,--nonsense upon stilts." ⁶

II

Let us begin at the beginning. ⁷ Even before the storming of the Bastille in July 1789, the National Assembly had begun debate over the text of a political manifesto that would articulate in a page or two the rights of all persons--or at least of all French men and women. Several different lists of rights were formulated and then bruited about in the National Assembly. These versions were collected and assigned to a committee for review and preparation of a final draft for adoption, which was done late in August of that year. The product of those deliberations has been known ever since as the "Declaration of the Rights of Man and Citizen." ⁸

Bentham's argument in "Anarchical Fallacies" can be divided into two parts of very unequal importance and length. By far the greater part of his attention--all but a few scattered sentences, in fact--is devoted to destructive criticism of the French "Declaration," and by implication to a criticism of almost any possible doctrine of human rights. It is this critical portion of his essay that presumably prompted adoption of "Anarchical Fallacies" as the title for the whole. He gives much less space, however, to the philosophically more interesting and important task of offering the reader a constructive alternative theory of rights, built as one would expect upon his fundamental normative principle of utility. Since I want to concentrate on evaluating this positive contribution, I shall consider his negative criticisms only in a fragmentary manner so that we can put them behind us and turn our attention to his important alternative theory. This theory is of no small philosophical interest, because it is one of the earliest, indeed, perhaps the...