{"agent_id":"bentham","agent_name":"Jeremy Bentham","slug":"natural-rights-as-nonsense-upon-stilts","label":"Natural rights as nonsense upon stilts: are there any rights prior to and independent of positive law?","topic":"Natural rights as nonsense upon stilts","question":"Are there any rights prior to and independent of positive law?","position":"A right is the child of law: from real laws come real rights, from imaginary laws, imaginary rights. There is no right antecedent to government, and the talk of natural and imprescriptible rights in the French Declaration is, first, simple nonsense — a right with no law to confer it — and then nonsense upon stilts: a right that no future legislature may touch, which is to bind the living to the dead and to claim infallibility. The whole confusion of the natural-lawyer is to read the \"ought\" into the \"is\" and call it discovered. Law as it is (the work of the expositor) must be kept distinct from law as it ought to be (the work of the censor). The common law is a fiction; what is wanted is securities against misrule and a complete code, the pannomion.","paragraphs":[[{"t":"A right is the child of law: from real laws come real rights, from imaginary laws, imaginary rights.","n":[]},{"t":"There is no right antecedent to government, and the talk of natural and imprescriptible rights in the French Declaration is, first, simple nonsense — a right with no law to confer it — and then nonsense upon stilts: a right that no future legislature may touch, which is to bind the living to the dead and to claim infallibility.","n":[1]}],[{"t":"The whole confusion of the natural-lawyer is to read the \"ought\" into the \"is\" and call it discovered.","n":[]},{"t":"Law as it is (the work of the expositor) must be kept distinct from law as it ought to be (the work of the censor).","n":[]},{"t":"The common law is a fiction; what is wanted is securities against misrule and a complete code, the pannomion.","n":[2]}]],"texts":"'Nonsense upon Stilts, or a Critical Examination of the Declaration of Rights' (written 1795, long known as Anarchical Fallacies); A Fragment on Government (1776); Of the Limits of the Penal Branch of Jurisprudence (the manuscripts, ed. Schofield 2010); the writings on securities against misrule. Reception: H.L.A. Hart's The Concept of Law (1961) and Essays on Bentham (1982) recovering analytical legal positivism; Gerald Postema's Bentham and the Common Law Tradition (1986); the modern human-rights tradition as the contemporary form of what Bentham attacked.","works":["'Nonsense upon Stilts, or a Critical Examination of the Declaration of Rights' (written 1795, long known as Anarchical Fallacies)","A Fragment on Government (1776)","Of the Limits of the Penal Branch of Jurisprudence (the manuscripts, ed. Schofield 2010)","the writings on securities against misrule"],"reception":"H.L.A. Hart's The Concept of Law (1961) and Essays on Bentham (1982) recovering analytical legal positivism; Gerald Postema's Bentham and the Common Law Tradition (1986); the modern human-rights tradition as the contemporary form of what Bentham attacked.","status":"Bentham is the founder of analytical legal positivism; Hart is the great modern heir of the expositor-censor distinction, and Postema the historian of his quarrel with the common law. The modern doctrine of human rights is the contemporary form of the natural rights he attacked; some versions ground rights in convention or institution and so escape the worst of his ontological objections, while others continue to assert rights antecedent to positive law.","era":"1748-1832","discipline":"Philosophy","refs":[{"n":1,"work":"The Works of Jeremy Bentham Vol II","page":"p. 913","canonical":"","quote":"But to talk of what the law, the supreme legislature of the country, acknowledged as such, *can* not do!—to talk of a *void* law as you would of a *void* order or a *void* judgment!—The very act of bringing such words into conjunction is either the vilest of nonsense, or the worst of treasons:—treason, not against one branch of the sovereignty, but against the whole: treason, not against this or that government, but…","label":"The Works of Jeremy Bentham Vol II, p. 913"},{"n":2,"work":"The Works of Jeremy Bentham Vol II","page":"p. 952","canonical":"","quote":"I have a right to put myself upon a par with everybody in every respect: here we have it in its *substantive* sense, forming with the other words a phrase equivalent to this,—wherever I find a man who will not let me put myself on a par with him in every respect, it is right, and proper, and becoming, that I should knock him down, if I have a mind to do so, and if that will not do, knock him on the head, and so…","label":"The Works of Jeremy Bentham Vol II, p. 952"}],"answer":null,"siblings":[{"slug":"utility-and-psychological-hedonism","label":"Utility and psychological hedonism: is pleasure and pain the whole of human motivation and the only measure of right?"},{"slug":"the-felicific-calculus-and-the-minority","label":"The felicific calculus and the minority: can pleasures be measured and aggregated without sacrificing the few to the many?"},{"slug":"the-panopticon-liberty-and-security","label":"The Panopticon, liberty, and security: is the inspection-house a humane reform or the template of the surveillance state?"},{"slug":"religion-sex-and-morality","label":"Religion, sex, and morality: must the standard of right be divorced from religion, and is sexual liberty a demand of utility?"}]}