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Jeremy Bentham's ‘Nonsense upon Stilts’

  • Philip Schofield (a1)
Abstract

Jeremy Bentham's ‘Nonsense upon Stilts’, hitherto known as ‘Anarchical Fallacies’, has recently appeared in definitive form in The Collected Works of Jeremy Bentham. The essay contains what is arguably the most influential critique of natural rights, and by extension human rights, ever written. Bentham's fundamental argument was that natural rights lacked any ontological basis, except to the extent that they reflected the personal desires of those propagating them. Moreover, by purporting to have a basis in nature, the language of natural rights gave a veneer of respectability to what, in the case of the French Revolutionaries at least, were at bottom violent and selfish passions. Yet that having been said, Bentham had no objection to the notion of a right which expressed a moral claim founded on the principle of utility. However, the phrase ‘securities against misrule’ better captured what was at stake, and avoided all the ambiguities otherwise associated with the word ‘right’.

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References
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1 For recent commentaries see Twining, W., ‘The Contemporary Significance of Bentham's Anarchical Fallacies’, Archiv für Rechts- und Sozialphilosophie, lxi (1975); Waldron, J., ed., Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man, London, 1987; Lacey, N., ‘Bentham as Proto-Feminist? or An Ahistorical Essay on “Anarchical Fallacies”’, in Current Legal Problems, 1998, vol. 51, Legal Theory at the End of the Millennium, ed. Freeman, M. D. A., Oxford, 1998; and Bedau, H. A.,‘”Anarchical Fallacies”: Bentham's Attack on Human Rights’, Human Rights Quarterly, xxii (2000).

2 Bentham, Jeremy, Rights, Representation, and Reform: Nonsense upon Stilts and Other Writings on the French Revolution, ed. Schofield, P., Pease-Watkin, C., and Blamires, C., Oxford, 2002 (The Collected Works of Jeremy Bentham), pp. 317401. The work was first published in French translation as ‘Sophismes anarchiques. Examen critique de diverses Déclarations des Droits de l'Homme et du Citoyen’, in Tactique des assembliées législatives, suivi d'un traité des sophismes politiques, ed. Dumont, Étienne, 2 vols., Geneva and Paris, 1816, ii. 269392, and then in English as ‘Anarchical Fallacies; being an examination of the Declarations of Rights issued during the French Revolution’, in The Works of Jeremy Bentham ed. Bowring, John, 11 vols., Edinburgh, 18381843, ii. 489534. For more details see Bentham, , Rights, Representation, and Reform (CW), Editorial Introduction, pp. xlv–liii.

3 Bentham, Jeremy, A Comment on the Commentaries and A Fragment on Government ed. Bums, J. H. and Hart, H. L. A., London, 1977 (The Collected Works of Jeremy Bentham), pp. 397 f.

4 Blackstone, William, Commentaries on the Laws of England 4 vols., Oxford, 17651769.

5 Bentham, , Fragment on Government (CW), pp. 398 f.

6 Blackstone, , Commentaries on the Laws of England iv. 49.

7 Bentham, , Fragment on Government (CW), pp. 400, 407 and n.

8 Ibid., pp. 415–18.

9 Blackstone, , Commentaries on the Laws of England, i. 40–3.

10 Austin, J., The province of jurisprudence determined (first published in 1832), ed. Rumble, W. E., Cambridge, 1995, p. 157.

11 Blackstone, , Commentaries on the Laws of England i. 43.

12 Bentham, , Fragment on Government (CW), pp. 482 f.

13 Archives parlementaires de 1787 à 1860, première série (1787 à 1799), Paris, 18791913, viii. 216 (9 July 1789).

14 Bentham to Jacques Pierre Brissot de Warville, mid-August 1789, The Correspondence of Jeremy Bentham vol. iv, ed. Milne, A. T., London, 1981 (The Collected Works of Jeremy Bentham), pp. 84 f.

15 ‘Préliminaire de laConstitution. Reconnoissance et exposition raisonnée Des Droits de l'Homme et du Citoyen. Lu les 20 et 21 Juillet 1789, au Comité de Constitution. Par M. l'Abbé Sieyes.’ Emmanuel Joseph Sieyé (1748–1836), priest, elected by the Third Estate of Paris to the Estates-General, was author of the famous Qu'est-ce que le Tiers État?, published in Paris in early 1789.

16 University College London Library, Bentham Papers, Box cxlvi, fo. 223 (15 November 1795).

17 In the version of ‘Anarchical Fallacies’ which appears in the Bowring edition of Bentham's Works, this material is mistakenly placed at the beginning of the work as a commentary on the Preamble to the Declaration of Rights (see Bowring, , Works, ii. 491). It is in fact a commentary on a totally different document, namely Rapport fait par M. L'Archevêque de Bordeaux, Au nom du Comité choisi par 1'Assemblée Nationale pour rédiger un Projet de Constitution, dans le Séance du Lundi 27 Juillet 1789’, Proès-verbal de l'Assemblée Nationale, vol. ii, no. 33 (27 07 1789).

18 For further comments of Bentham on ‘the fallacy of irrevocable laws’ and the related ‘the wisdom of our ancestors fallacy’; see ‘The Book of Fallacies’, Bowring, , Works ii. 398408.

19 Bentham, , Rights, Representation, and Reform (CW), pp. 181–6.

20 Ibid., pp. 186 f.

21 Ibid., pp. 188 f.

22 Ibid., p. 358.

23 UC cxlvi. 182 (1795).

24 It is also worth noting that a declaration of human rights, unambiguously asserted as moral claims, would be formally compatible with Bentham's position: see further Twining, W., ‘The Contemporary Significance of Bentham's Anarchical Fallacies’; Hart, H. L. A., ed., Essays on Bentham: Studies in Jurisprudence and Political Theory Oxford, 1982, pp. 79104; and Waldron, , Nonsense upon Stilts pp. 151209.

25 Bentham, , Rights, Representation, and Reform (CW), pp. 319 f.

26 Ibid., p. 320.

27 Ibid., p. 321.

28 Ibid., pp. 321 f.

29 Ibid., p. 322.

30 Ibid., pp. 322 f.

31 Ibid., p. 346.

32 Ibid., pp. 325 f.

33 UC cxlvi. 233 (1789).

34 Bentham, , Rights, Representation, and Reform (CW), pp. 364–6.

35 See Paine, Thomas, Rights of Man: being an answer to Mr. Burke's attack on the French Revolution London, 1791, p. 54: ‘I readily perceive the reason why Mr. Burke declined going into the comparison between the English and French constitutions, because he could not but perceive, when he sat down to talk, that no such thing as a constitution existed on his side [of] the question’ Paine's allusion was to Burke's, Reflections on the Revolution in France, first published on 1 11 1790: see The Writings and Speeches of Edmund Burke vol. 8, The French Revolution 1790–1794, ed. Mitchell, L. G., Oxford, 1989, pp. 53293.

36 Bentham, , Rights, Representation, and Reform (CW), pp. 372–4.

37 Ibid., pp. 326–8. Elsewhere Bentham referred to ‘the ambiguous and envenomed can’: see ibid., p. 337.

38 Ibid., pp. 328–31.

39 Ibid., p. 330.

40 See, for instance, Bentham, , Of Laws in General, ed. Hart, H. L. A., London, 1970 (The Collected Works of Jeremy Bentham), pp. 119 f, 253 f.

41 Bentham, , Rights, Representation, and Reform (CW), p. 334.

42 Ibid., pp. 338–40.

43 Ibid., pp. 334 f. Bentham attributed the doctrine that ‘Nature has given to each man a right to every thing’ to ‘some of the interpreters of the pretended law of nature’ (see ibid., p. 332). The view was famously expressed by Thomas Hobbes in Leviathan, pt. 1, ch. 14, [64], but similar views were formulated by Hugo Grotius, Benedict de Spinoza, and Samuel Pufendorf.

44 Bentham, , Rights, Representation, and Reform (CW), pp. 335 f.

45 Ibid., pp. 336 f.

46 Ibid., pp. 337 f.

47 Ibid., p. 341.

48 Ibid., pp. 349–51. Bentham identified the same dilemma in Article 11: see ibid., pp. 361 f.

49 Ibid., pp. 398–400.

50 UC cviii. 108 (1795).

51 The first‘French disease’ was, of course, syphilis.

52 Bentham, , Rights, Representation, and Reform (CW), p. 400.

53 See ibid., pp. 193–203.

54 UC clxx. 48 (1789).

55 Bentham, , Rights, Representation, and Reform (CW), pp. 351 f.

56 Bentham, , Securities against Misrule and other Constitutional Writings for Tripoli and Greece ed. Schofield, P., Oxford, 1990 (The Collected Works of Jeremy Bentham), pp. 74–8.

57 Ibid., pp. 76 f.n.

58 Ibid., pp. 23 f.n.

59 Ibid., p. 24n.

60 Bentham, , Rights, Representation, and Reform (CW), p. 324.

61 See Twining, , ‘Contemporary Significance of Bentham's Anarchical Fallacies’, 329: ‘if the validity of a law is judged by conformity to some purported statement of Natural Law or Natural Rights, then the distinction between law as it is and law as it ought to be is rejected. When this happens the door is opened to two lines of fallacious argument, one justifying anarchy, the other extreme conservatism. For the anarchist argues: “This is bad, therefore it is not a (valid) law, therefore I have no duty to obey it”. The reactionary argues: “This is a (valid) law, therefore it is good, therefore it is immune from criticism”.’

62 The principle of sympathy and antipathy was a subjective standard, opposed to the principle of utility which was based on the existence of certain matters of fact, namely feelings of pain and pleasure experienced by sentient beings: see Bentham, , An Introduction to the Principles of Morals and Legislation, ed. Burns, J. H. and Hart, H. L. A., London, 1970 (The Collected Works of Jeremy Bentham), pp. 1733.

63 UC lxix. 102 (c. 1776).

64 UC lxix. 6–7 (c. 1776).

65 UC lix. 84–5 (19 May 1805).

66 UC lxix. 106 (c. 1776).

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Utilitas
  • ISSN: 0953-8208
  • EISSN: 1741-6183
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