Jeremy Bentham’s Attack on Natural Rights

Natural-​rights theory was the revolutionary doctrine of the seventeenth and eighteenth centuries, being used to justify resistance to unjust laws and revolution against tyrannical governments. This was the main reason why Edmund Burke attacked natural rights-​-​or “abstract rights,” as he called them-​-​so vehemently in his famous polemic against the French Revolution, Reflections on the Revolution in France (1790). Burke later condemned the French Constitution of 1791, which exhibited a strong American influence, as a “digest of anarchy.”

Similarly, Jeremy Bentham, in his criticism of the French Declaration of Rights (1789), called natural rights “anarchical fallacies,” because (like Burke) he believed that no government can possibly meet the standards demanded by the doctrine of natural rights. Earlier, a liberal critic of the American Revolution, the English clergyman Josiah Tucker, had argued that the Lockean system of natural rights “is an universal demolisher of all governments, but not the builder of any.”

The fear that defenders of natural rights would foment a revolution in Britain, just as they had in America and France, alarmed British rulers, causing them to institute repressive measures. It is therefore hardly surprising that natural-​rights theory went underground, so to speak, during the long war with France. Even after peace returned in 1815 a cloud of suspicion hung over this way of thinking. Natural rights were commonly associated with the French Jacobins -- Robespierre and others who had instigated the Reign of Terror -- so a defender of natural rights ran the risk of being condemned as a French sympathizer, a Jacobin, or (worst of all) an anarchist.

Thus did British liberalism don a new face after 1815, as an atmosphere of peace resuscitated the movement for political and economic reforms, and as many middle-​class liberals embraced a non-​revolutionary foundation for economic and civil liberties. The premier theory in this regard, which would become known as “utilitarianism,” was developed by Jeremy Bentham and popularized by his Scottish protégé James Mill (the father of John Stuart Mill) and by many other disciples.

Bentham did not originate the utilitarian principle of “the greatest happiness for the greatest number”; we find similar expressions in a number of eighteenth-​century philosophers, such as Hutcheson, Helvetius and Beccaria. For our purpose, the most significant feature of Bentham’s utilitarianism was its unequivocal rejection of natural rights.

Natural rights, according to Bentham, are “simple nonsense: natural and imprescriptible rights, rhetorical nonsense, -- nonsense upon stilts” So-​called moral and natural rights are mischievous fictions and anarchical fallacies that encourage civil unrest, disobedience and resistance to laws, and revolution against established governments. Only political rights, those positive rights established and enforced by government, have “any determinate and intelligible meaning.” Rights are “the fruits of the law, and of the law alone. There are no rights without law-​-​no rights contrary to the law-​-​no rights anterior to the law.”

The significance of Bentham does not lie in his advocacy of social utility, or the general welfare, or the common good-​-​for this idea, by whatever name it was called, was regarded by many earlier classical liberals as the purpose of legislation, in contradistinction to its standard.

The fundamental problem was this: Given that social utility should be the purpose of legislation, how can this rather vague goal be attained? How can the legislator possibly know which measures will promote the greatest happiness for the greatest number? To this question classical liberals in the Lockean tradition had answered, in effect: By respecting the natural rights of individuals. Thus if social utility is the general goal of legislation, natural rights are the standard, or rule, which must be followed if this goal is to be achieved.

Bentham broke with this venerable tradition, in which utility and rights were seen as different aspects of the same process, by rejecting the entire scheme of natural rights and by proposing that social utility serve as both the goal and standard of political activity.

According to Bentham, the “happiness of individuals, of whom a community is composed…is the sole end which the legislator ought to have in view [and] the sole standard, in conformity to which each individual ought, as far as depends on the legislator, to be made to fashion his behavior.” Natural rights are not only a groundless fiction, one that is incompatible with an empiricist methodology, but they are a highly dangerous fiction to boot, because they have traditionally been used to undermine the authority of governments. In short, natural rights are “terrorist language.”

Thus did Bentham reject the roundabout method of natural rights, according to which the legislator should respect rights as a means to the end of social utility. Rather, the legislator should calculate social utility directly by assessing the impact of a given law on the greatest happiness for the greatest number.

As I said, this was a significant departure from earlier liberal thinking, in which natural rights and social utility were seen as complementary. Bentham severed this friendly relationship by totally rejecting natural rights. If a particular law promotes the greatest happiness for the greatest number, then it is legitimate and proper, regardless of how it might be evaluated from a natural-​rights perspective.

Bentham believed that the greatest happiness for the greatest number can be ascertained by “some calculus or process of ‘moral arithmetic’ by means of which we may arrive at uniform results.” But how? Bentham’s solution came in the form of his hedonic calculus, a discussion of which occupies a good deal of his most famous book, An Introduction to the Principles of Morals and Legislation (1789).

How can the legislator calculate the greatest happiness for the greatest number, measured in terms of maximal pleasure and minimal pain? Bentham’s procedure, despite a veneer of exactitude, is incredibly vague on this point. After listing seven “circumstances” (intensity, duration, certainty, fecundity, etc.) that are relevant to this calculation, Bentham says that an “exact account” of a proposed legislative act can be arrived at by first determining for a given individual the sum of “all the values of all the pleasures on the one side, and those of all the pains on the other”; and by then taking an account “of the number of persons who interests appear to be concerned” and repeating the same calculation “with respect to each.”

Bentham repeatedly refers to the quantity and measurement of pleasures and pains, but nowhere does he address the serious problems of dealing with pleasure and pain quantitatively (as if they can be added together in a single sum); nor does he explain how it is possible to quantify and compare the subjective feelings of different individuals. (This latter problem is now called the problem of interpersonal utility comparisons.)

That Bentham sometimes had doubts about his own hedonic calculus is clear from one of his unpublished manuscripts, where he had this to say about the possibility of adding up quantities of happiness among different individuals:

Bentham concedes that his hedonic calculus, like the theory of natural rights, is based on a fiction, or unreal abstraction. But he also claims that his fiction is “successful” because it can function as a practical guide for legislators.

When Bentham applies his principle of utility to political measures, he often appeals not to his fictional hedonic calculus but to the general principle that each individual is normally the best judge of his own interests and should therefore be left free to pursue his own happiness in his own way. The legal recognition of this principle, as manifested in a respect for individual freedom, is the best way to promote the greatest happiness for the greatest number.

That each person is normally the best judge of his own interests seemed to Bentham so obvious as not to require much justification. But there was a serious danger lurking in this premise, as his natural-​rights critics were quick to point out. They agreed that a person is usually the best judge of his own interests, but they maintained that even when this is not the case, a person has a right to act according to his own judgment, so long as he respects the equal rights of others.

So the crucial point was this: Who is to decide whether a given person assesses his interests correctly or not-​-​the individual or the government? After all, Bentham conceded that people can make mistakes about what will promote their happiness, but who should determine when these mistakes are made and when they are not? Bentham’s theory suggests such decisions should ultimately be made by a legislative authority, not by individuals, for it is the job of legislators to calculate the greatest happiness for the greatest number, and they are empowered to enforce their decisions.

This was what so infuriated Bentham’s liberal critics, such as Thomas Hodgskin and Herbert Spencer, and this is the key to understanding the rift in nineteenth-​century British liberalism that was precipitated by the immense influence of Jeremy Bentham.

The utilitarians, according to their critics, had undercut the moral foundation of a free society by their rejection of natural rights. True, many utilitarians had strong pro-​freedom beliefs. Bentham, for example, was a fairly consistent advocate of free market economics, and he did not hesitate to take up unpopular causes in the area of civil liberties (as we see in his opposition to capital punishment and in his call to abolish laws against homosexuality). Given these and other liberal causes, the principle of utility could indeed function as a powerful weapon in defense of individual liberty-​-​provided, of course, that those in power agreed with Bentham’s assessments of social utility. But that was precisely the problem.

Bentham’s ideal legislator reminded his critics too much of Plato’s philosopher-​king-​-​that wise and benevolent social planner who has the best interests of his subjects at heart. Bentham prided himself on his hard-​headed political realism, but this lapse into idealism was severely ridiculed by the defenders of natural rights.

Again and again Bentham’s liberal critics, most notably Thomas Hodgskin and Herbert Spencer, attacked the utilitarians for their historical blindness and political naiveté. How often in human history, they asked, have political rulers actually governed with the best interests of their subjects at heart? Never, or almost never, they answered. And, given human nature, may we realistically expect that rulers will magically lose their self-​seeking inclinations immediately upon gaining power, forgoing their own interests for the sake of the common good? Or may we expect rulers to behave like other mortals, and continue to pursue their own interests through the coercive instrumentality of government?

Bentham was aware of this problem, and he found an answer in his theory of democracy. If the franchise were extended, if the people at large were able to elect their rulers, then there would emerge an identity of interests between the rulers and the ruled, for people would surely never vote against their own interests.

Bentham’s natural-​rights critics generally favored democratic reform, but they were not nearly so sanguine about its prospects. Democracy is desirable, but it is not a cure-​all. Like many of their American counterparts, they believed that a majority could tyrannize over a minority as surely as any tyrant. Indeed, they regarded democratic despotism as more dangerous than monarchical despotism, since a despot can be resisted more easily than a majority. Only a theory of natural rights, which defines the proper limits of government, can morally empower minorities to demand that their rights be respected, whatever the form of a government may be.

And so went the great debate between the two schools of classical liberalism: the Benthamite utilitarians versus the defenders of natural rights. This debate, one of the most fascinating in the history of political thought, sets the stage for our discussion of Thomas Hodgskin’s The Natural and Artificial Right of Property Contrasted (1832) – a devastating frontal assault on Benthamite utilitarianism.