Natural rights as nonsense upon stilts: are there any rights prior to and independent of positive law?

Jeremy Bentham, answered from the texts and cited to the page.

The position in brief

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.1

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.2345

Sources

  1. 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…
    The Works of Jeremy Bentham Vol II, p. 913
  2. 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…
    The Works of Jeremy Bentham Vol II, p. 952
  3. To know whether it would be more for the advantage of society that this or that right should be maintained or abolished, the time at which the question about maintaining or abolishing is proposed, must be given, and the circumstances under which it is proposed to maintain or abolish it; the right itself must be specifically described, not jumbled with an undistinguishable heap of others, under any such vague general…
    The Works of Jeremy Bentham Vol II, p. 915
  4. By what authority shall this original vice in the structure of language be corrected? How shall a word which has taken root in the vitals of a language be expelled? By what means shall a word in continual use be deprived of half its signification? The language of plain strong sense is difficult to learn; the language of smooth nonsense is easy and familiar.
    The Works of Jeremy Bentham Vol II, p. 953
  5. No man, be he even without education in other respects—no man but, in his leisure hours,—so he can but read— may, if so it please him, know more of law, than the most knowing among lawyers can possibly know of it at present. LETTER IV. II. Of Completeness, as applied to the Body of the Laws: —and herein of Common Law. To be known, an object must have existence.
    Legislator of the World, Writings on Codification, Law, and Education, pp. 123–124

Where the argument is made

  • '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

How the argument was received

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.