Of the present publication, the particular object is the preserving the country from being saddled by institutions, which under the profession, sincere or insincere, of contributing to the formation of an appropriate code of procedure, will have the effect rather of retarding, or even preventing it, and, at the same time, adding to expense, by which no fruit in the shape of benefit will be produced. A Procedure Code, fit to be invested with the form of law, could not be prepared otherwise than by and with reference to the codes of law, penal and non-penal, to which it has for its object and purpose the giving execution and effect. The present production, instead of following, precedes both these codes. If applicable in other respects, it will not be found on that account inapplicable to its intended purpose. With regard to prospect of success, the sense of the public mind may as well be taken by this uncompleted and provisional publication, as by a completed work. The characteristic features, and fundamental principles—all will be seen brought to view: only in respect of matters of detail, will there be anything to add, to defalcate, or to substitute.
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Human Rights Quarterly Thus in 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. This "Declaration" was adopted by the French National Assembly in August , a mere six weeks after the storming of the Bastille, the opening salvo of what was to become the French Revolution. Apparently written sometime in , it remained unpublished until , when it appeared in print--not in London, but in Geneva, Switzerland, and not in English but in French.
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. 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 [End Page ] only in a fragmentary manner so that we can put them behind us and turn our attention to his important alternative theory. III Let us turn first to the idea that the French "Declaration" is riddled with what Bentham calls "anarchical fallacies. In , two decades after Bentham had written the essay under discussion, he arranged to have published in London and in English a volume titled The Book of Fallacies.
One would naturally expect, therefore, this book to elucidate the "anarchical fallacies" he had already discussed many years earlier in his unpublished essay by that name. There are at least three problems, however. According to Bentham, fallacies are defined as the property of a certain class of arguments, namely, the invalid ones. But the French "Declaration" is not an "argument"; it is a manifesto of aspirations, full of imperatives and exhortations addressed to the people of France.
Thus, it is not as such an argument, except in the most extended sense of that term, in which any propositions asserted on any subject constitute an "argument. But if this is the implicit argument Bentham wishes to attack, it is odd that he does not say so and that he does not attempt to formulate this implicit argument anywhere in his critique.
Therefore, I think we may conclude that if the French "Declaration" is spoiled by "fallacy" it is not because its reasoning is suspect, for a manifesto such as this does not consist of a chain of reasons.
The loose sense of the term--defined by Bentham as a "topic suggested for. That is to say, a reasoner can commit a fallacy by means of an invalid argument without the intention to deceive anyone. If, as Bentham insists, the French "Declaration" suffers from fallacies, we should expect its authors and audience alike to be equally surprised to learn this.
Suggesting otherwise impugns the sincerity of the authors of the French "Declaration," and neither Bentham nor history gives us reason to do that. It will not go unnoticed that Bentham also characterizes as a fallacy any reasoning that has a "probability" of deception, or that "causes" anyone to believe "some erroneous opinion. To determine that the French "Declaration" contains fallacies in this sense of the term one must show two things: first, that readers of the French "Declaration" have or will come to [End Page ] adopt certain erroneous opinions, and second, that the cause or "probably" the cause of their adoption is the unhealthy influence of the ideas enshrined in the French "Declaration.
Whether he actually succeeds in doing so is another matter; if I am right, as I shall try to show, his effort was less than a success. This appears to be a major oversight and a bewildering omission on his part. Having diagnosed the supposed fallacies in the French "Declaration" years before he wrote his Book of Fallacies, why should he fail to mention them in his later and longer work?
This, he says, was especially true of those who oppose any political reforms: their tactic is to condemn as anarchic all new legislation, reforms, and ventures. IV Against that background, let us turn directly to why Bentham thinks the French "Declaration," as he says, "sow[s] the seeds of anarchy broad-cast," 15 and why he thinks it is a doctrine of "the rights of anarchy--the order of chaos.
If a single article of them be violated, insurrection is not your right only, but the most sacred of your duties. The appropriate measures of resistance taken by individual citizens or by a group of citizens to secure rights disrespected by their government is a question of judgment in the circumstances, not a matter for large-scale constitutional pronouncements.
Thus, the silence of the French "Declaration" on this point about legitimate tactics of resistance is neither evasive nor disingenuous; rather, it is evidence of sound political caution. Bentham, putting the worst face on the document, gratuitously assumes that insurrection is the implied and only weapon available to persons who judge themselves to be deprived of their natural rights.
Bentham could, of course, point in particular to the Terror, in general to the instability of French society in the aftermath of , and overall to the evident inability of the French revolutionaries of that day to govern effectively. Second, few if any of the rights proclaimed in the French "Declaration" were operative under law in French society at the time it was promulgated.
Therefore, he might conclude, the adoption [End Page ] and publication of the French "Declaration" is a tacit invitation to insurrection, violence, and anarchy. It would hardly be surprising if believers in the "natural and imprescriptable" rights of man and citizen used direct and violent measures in an effort to secure those rights, and were willing to overthrow any government that fails to accord such rights to its citizens.
Bentham might have reasoned in such a manner. Such an argument, however, cannot be sustained without evidence to back it up, and Bentham fails to produce any such evidence in the entirety of his critique.
He never argues that reformers and critics of the current regime in France, drunk on the intoxicating liquor of "natural rights," are bound to lose all judgment and--casting prudence aside--will strike at every form of governing authority in their foolish zeal to obtain their rights.
He never explains why insistence on "natural rights," as they are affirmed in the French "Declaration," is the sole or the dominant cause of political unrest in France. Furthermore, the professed right in the "Declaration" to resist oppression need not be taken as Bentham no doubt took it to be as a right of violent individual and collective resistance to government officials.
We can, after all, think of collective nonviolent protest, of the sort made famous in the United States during the Civil Rights movement of the s. If that is how citizens intend to act in exercising their alleged "natural right" to resist oppression, it is not obvious why they should be told they have no such right.
Bentham overlooked the possibility of organized nonviolent resistance to government oppression. It probably never occurred to him to ponder, as many thoughtful philosophers have argued in this century, whether mass nonviolent civil disobedience is a legitimate form of protest in or in the effort to obtain a moderately just, liberal constitutional republic.
He lived in a day in which fear of "the mob" was a constant preoccupation of the English upper class, a worry made all the more troubling by the excesses of the French Revolution. Nevertheless, is it merely sentimental and anachronistic to suggest that the worst that can be said of the French "Declaration" on the point under discussion is that its use of the term "resistance" is subject to several interpretations?
Let us put the French "Declaration" aside for the moment and think of its American and United Nations counterparts. I challenge anyone to point to any anarchic consequences in the political behavior directly caused by widespread belief among Americans two centuries ago in their "Bill of Rights," or among any persons who believe in the human rights cited in the [End Page ] United Nations "Declaration" during the half century since its promulgation.
Whatever political actions have been engendered by belief in these rights, there is little or no evidence that their chief effect has been to nourish seeds of insurrection and anarchy where prior to such declarations no such inclinations existed. On the contrary, the violence associated with belief in human rights almost invariably comes from the police and government officials who use their power to crush those who nonviolently protest violations of their human rights.
If, however, that is what Bentham believed and what prompted him to denounce the French "Declaration" within a few years of its promulgation, it is most unfortunate that he so conspicuously failed to say so.
I take them up not in the order in which Bentham stated them but in the order of their increasing interest and importance. The first of these three theses is presented in the following passage: "In [End Page ] proportion to the want of happiness resulting from the want of rights, a reason exists for wishing that there were such things as rights.
We can clarify this thesis if we restate it in the manner Bentham elsewhere calls "paraphrasis. Notice that the term "happiness" here can refer either to individual or collective happiness. That is, if I suffer from a lack of happiness arising from my lack of a certain right, then according to this thesis that lack gives me personally a reason for wanting the right in question.
Similarly, where the members of some group or collective suffer unhappiness from the lack of a certain right, that lack gives the group or collective a reason for wanting the right in question.
As such, he holds that the only rights anyone has or could have are rights conferred by means of positive law enacted, decreed, and enforced by some legitimate government. All rights are legal rights, and--he might have added--the rights the law provides today can be repealed tomorrow.
Let us call this his legalist thesis. Reformulating it in the paraphrastic fashion he recommends, this is how his second thesis would look: Person A has a right, R, in society S to do some act x if and only if there is a law L in S that permits A to do x by conferring on A the right to so act.
First, Bentham uses the desire to legalize rights as a stick with which to beat advocates of natural rights, because he is convinced that it would be impossible for any government to turn claims of natural rights like those found in the French "Declaration" into actual legal rights.
This criticism, of course, depends essentially on exactly what rights are proclaimed in whatever list of natural rights is in question. However, advocates of the list of human rights contained in the Universal Declaration of Human Rights have encountered difficulties in bringing into law all of the rights of that manifesto, especially all of the so-called "welfare" rights.
First, he essentially agrees with Hobbes that belief in such a right leads to "the war of all against all"--it is the very paradigm of an "anarchical" right. If that is so, however, it cannot be a genuine right at all. Further, it is difficult to understand what Bentham means in this passage when he contrasts the "literal meaning" of talk about natural rights with the "figurative" meaning of the term.
Had he said here as he does elsewhere 36 that natural rights are "fictions," we could more readily understand his objection, as his belief that a vast variety of substantive legal and philosophical terms denote "fictions" is one of his most famous philosophical doctrines. Putting this to one side, it is clear that when Bentham makes the distinction between the "literal" and the "figurative" in this context, his point is that we ought to strive for an understanding of our talk about "natural rights" in a manner that will not "lead to mischief--the extremity of mischief," as he thinks a literal interpretation of the doctrine of natural rights does.
That in proportion as it is right or proper, i. Precise contextual reformulation of this thesis requires care.
Z a lack any legal right in S to do x, b wish they had a legal right to do x; c their government ought to enact a law, L, establishing R, because d doing so would be more advantageous to A, B, C,. Z than not enacting such a law. The problem with this four-part formulation is that if its four conditions are satisfied--and there is no reason to think they never could or would be satisfied--then there are natural rights.
To put it another way, if we ask "Under what conditions, if any, are there natural rights? Thus, his answer to the question, "Under what conditions, if any, are there natural rights?
This amounts to foreswearing what Rudolph Carnap taught us to call the "material mode" in favor of what he called the "formal mode. On this interpretation, we do not try to explain what a natural right is, for our ontology includes none. Instead, we explain what people who erroneously say or think there are such rights really mean, whether they are aware of it or not. Or, to put it another way, we have here the four conditions that make it true--not "literally" but "figuratively"--to say that there are natural rights.
According to that thesis, whatever laws are operative in a society confer legal rights and legal duties on the members of that society. As a matter of fact, however, any actual law may fail the utilitarian test because the law creates a right that is not conducive to the net general welfare.
By the utilitarian criterion, it seems such a law and the rights derivative from it cannot be genuine. His utilitarianism, however, is a criterion within censorial jurisprudence, telling us what the law ought to be.
If we construe him in this manner, there is no contradiction when he allows, as he surely does throughout his writings, that some laws fail the utilitarian test--provided he goes on to imply that all such laws and the rights they give rise to ought to be repealed in favor of laws that do satisfy the utilitarian criterion.
VI The philosophical question now before us is whether these three theses--the eudaemonist, the legalist, and the utilitarian--are correct. At face value this thesis seems odd, indeed arbitrary, and even downright wrong. It suggests that only a lack of happiness arising from the lack of a certain right gives anyone a reason for wanting that right. And it suggests that the only gain for someone from having a legal right is an increase in their net happiness.
But why should happiness have this preferred status? So why should not the lack of liberty, privacy, autonomy, or dignity be a sufficient reason for wanting the relevant rights? Why should a perceived lack of happiness be the only good reason for wanting a given right?
Happiness alone is fundamental. As we learn elsewhere in his book, Of Ontology written some years after "Anarchical Fallacies" , happiness for Bentham is the "real entity" [End Page ] without which there is no meaning in this talk about rights because they, along with many other moral notions, denote only "fictitious entities".
Legal rights, Bentham thinks, always can or ought to be traceable back to such "real entities," but so-called natural rights he thinks cannot.
He focused on monetary expansion as a means of helping to create full employment. He was also aware of the relevance of forced saving, propensity to consume , the saving-investment relationship, and other matters that form the content of modern income and employment analysis. His monetary view was close to the fundamental concepts employed in his model of utilitarian decision making. His work is considered to be an early precursor of modern welfare economics. He was concerned with maxima and minima of pleasures and pains; and they set a precedent for the future employment of the maximisation principle in the economics of the consumer, the firm and the search for an optimum in welfare economics. After he learned more about American law and realised that most of it was state-based, he promptly wrote to the governors of every single state with the same offer. Even today, they have been completely rejected by almost every common law jurisdiction, including England.
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Anarchical Fallacies (With Active Table of Contents)