Nonsense Upon Stilts
Portrait of Jeremy Bentham by Henry William Pickersgill (1829)
‘Right is the child of law,’ said the utilitarian philosopher Jeremy Bentham. ‘From real laws come real rights; but from imaginary laws, from laws of nature, fancied and invented by poets, rhetoricians, and dealers in moral and intellectual poisons, come imaginary rights, a bastard brood of monsters.’ [1]
Bentham denied the existence of pre-legal rights. He declared that the notion of ‘natural rights’ – so fundamental to the emergence of liberal constitutions – was ‘nonsense upon stilts.’ He scoffed at John Locke’s suggestion that man (excuse the sexist synecdoche) is born free. ‘All men born free? Absurd and miserable nonsense!’ [2]
Indeed, rights do not exist in nature. They aren’t plucked from a serene celestial order. They either come from manmade law or else they are merely contrived, as Bentham would say, by poets and rhetoricians.
Bentham’s rhetoric against rights is (dare I say) rightly famous, its lucid phrases shining in the canon of positivism. Nevertheless, during the long and tumultuous birth of liberal democracies – from England’s 1688 Bill of Rights to the American Revolution – sceptical complaints were hardly registered. Instead, America’s Founding Fathers gushed about man’s inalienable rights endowed from birth by the Creator. The links between these rights and divinity were seldom very subtle: the source and normative guarantee of all rights was God and his divine law, even if that God was vague and deistic.
Rights, and their divine provenance, were fundamental to the foundation of Australia. When the colony of New South Wales was established, the first thing Governor Arthur Philp did on 13 February 1788 was to swear on the Bible in the presence of a Judge Advocate and say: ‘I…do declare that there is not any Transubstantiation in the Sacrament of the Lord’s Supper or in the Elements of Bread and Wine at or after the consecration thereof by any Person whatsoever.’ [3] This arcane theological nicety was considered, presumably, as important to announce as any political creed. New South Wales was to be Protestant – and it was from the gentle Protestantism of merry England that the people of Australia were to claim their rights and privileges.
The British civilisation that the colonists transplanted into the alien soil of Australia was a mixture of Protestantism, Enlightenment secularism, and stoic common sense. [4] These forces would together (though not without struggle) make possible a secularised state, with a culture wary of tyranny and conscious of rights. [5] Though founded as Protestant, religion withdrew to the background, not interfering, but providing the transcendent justification for liberalism. [6]
The force of the great appeal to rights was too powerful. For example, in 1851, the governor of Victoria Charles Joseph La Trobe declared that no one could dig for gold without a license. The diggers on the goldfields became incensed, and accused La Trobe of turning into a ‘Victorian Czar.’ A correspondent present at one meeting of angry diggers at Buninyong was struck by what he called ‘an outburst of light, reason, and right against the infliction of an effete objectionable royal claim’ [7]. The diggers saw themselves as heirs to the best traditions of natural rights, declaring them inalienable possessions before which legislators had to bow. [8]
Nonetheless, we ought to return to the dilemma so tartly expressed by Bentham. Although we love and need rights, they are, metaphysically speaking, nonsense upon stilts. As we saw, Locke’s liberal theory of rights depended on divine guarantee. Even if God cannot be disproven, he no longer functions as a source of social legitimacy in this secular age. The legal philosopher Jeremy Waldron writes that once we dispense with God, we are left with ‘naked, shivering wretches’ in a theological vacuum, with no basis for asserting inalienable rights. [9] After God’s demise, Waldron names three surrogates upon which intellectuals sought to ground rights: Nature, Reason, and Consensus. [10] Of course it is up to each of us to decide if these grounds are philosophically appetising, but they are certainly not immune to scepticism.
It is a strange situation for a culture, and indeed a legal system, to be in. Perhaps rights are nonsense, but they are strewn through statutes and common law. Because they are safely predicated on positive law, maybe it seems as if the wobbly seventeenth-century stilts of immutable morality can be thrown away. For Bentham, rights were a strictly legal concept, signifying nothing more than the sum of duties and entitlements assigned by a complex legal system. [11] But it should be recalled that Bentham, having rid law of mystifying ideas such as natural rights, embraced a somewhat cold utilitarianism which would strike most of us as unacceptably indifferent to individual liberty. [12] Arguably, the old idea of natural rights still exerts a gentle tug that Bentham would deplore, but which even lawyers may submit to.
[1] Jeremy Waldron, Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man (Methuen, 1987) 53. (‘Waldron’)
[2] Ibid 10.
[3] Manning Clark, Manning Clark’s History of Australia / abridged by Michael Cathcart (Melbourne University Press, 1997) 9. (‘Clark’).
[4] Ibid 10-12.
[5] Needs reference See ibid.
[6] Needs reference Augusto Zimmermann, “Constituting a ‘Christian Commonwealth’: Christian Foundation’s of Australia’s Constitutionalism” (2014) The Western Australian Jurist 123, 125-132
[7] Needs reference
[8] Clark (n 3) 284.
[9] Waldron (n 1) 13-14.
[10] Needs reference. Ibid 14.
[11] John Deigh, ‘Rights and the Authority of Law (reviewing Essays on Bentham: Studies in Jurisprudence and Political Theory by H. L. A. Hart)’ (1984) 51(2) University of Chicago Law Review 668, 682.
[12] Ibid 676-677.