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The ink was hardly dry on the Declaration of Independence before British intellectuals began disputing its claims. That’s not surprising, considering that the decade before independence witnessed an extraordinary outpouring of pamphlets and newspaper articles debating every conceivable detail of the dispute between Parliament and the colonies. But one of these efforts stands out today because its author went on to become a philosopher of unusual influence, particularly in the realm of law.
Jeremy Bentham was 28 when he helped an obscure Tory lawyer named John Lind compose a 130-page pamphlet entitled “An Answer to the Declaration of the American Congress.” Where Lind focused his attention on refuting the specific grievances in the Declaration—Parliament’s taxing power, the legitimacy of the Intolerable Acts and so forth—Bentham leveled his attacks against the Declaration’s self-evident truths.
It’s well known that Bentham scoffed at the idea of individual rights, which he called “rhetorical nonsense—nonsense upon stilts.” In his response to the Declaration, he offered two reasons for taking this position. First, “nothing which can be called government ever was, or ever could be ... exercised but at the expense of one or other of those rights.” Second, if these rights were truly inalienable, how was it that Americans were at that very moment confiscating the estates of Loyalists and even making war—which, after all, deprives people of their lives? These things, he claimed, proved that the idea that people have inalienable rights is a “fallacy.”
Bentham later wrote a similar attack on French Revolutionary declarations, which is where his “nonsense upon stilts” line comes from. Rights, he insisted, are not natural, but artificial. They are “the fruits of the law, and of the law alone. There are no rights without law—​no rights contrary to the law—​no rights anterior to the law.” As we would say today, rights are “social constructs.” And, with admirable frankness, he admitted that this meant “there is no right which, when the abolition of it is advantageous to society, should not be abolished.”
These arguments have proven influential in the modern age; indeed, it’s likely that most American lawyers today share Bentham’s view that the idea of natural rights is, as Bentham put it, only “a cloud of words.” What he likely did not know was that Thomas Jefferson already had an answer to the argument that rights cannot be real because they can be violated. “The tendency of all human governments,” Jefferson wrote, is that
a departure from principle in one instance becomes a precedent for a second, that second for a third, and so on, till the bulk of the society is reduced to be mere automatons of misery. ... Then begins indeed the bellum omnium in omnia, which some philosophers observing to be so general in this world, have mistaken ... for the natural, instead of the abusive, state of man.
Jefferson wrote those words with Thomas Hobbes in mind, but the same observation applies to Bentham: He mistook the abusive for the natural state of man. More precisely, he deprived himself of any capacity to recognize the difference.
Jumping From ‘Is’ to ‘Ought’
Bentham prided himself on his iconoclastic skepticism. He was a hard-nosed realist, brushing away the accumulated superstitions of the past. But what counted as the “reality” he was seeking? As an empiricist, Bentham held that a phenomenon must be empirically verifiable or measurable to count as real. Individual rights cannot be measured, of course, and therefore cannot be “real.”
What’s more, the practice of induction—that is, deriving general principles from observed real-life instances—had come under fire from Bentham’s predecessor David Hume, who was at least understood by many to have shown that induction can never give certain knowledge, because it’s never possible to predict (for example) that the sun will rise tomorrow just because it has risen every morning in the past. The element of uncertainty in any inductive conclusion makes those conclusions unreliable, uncertain and probably not even real knowledge.
Hume had also introduced the idea that deriving moral conclusions from statements about the nature of the physical world represents a kind of fallacy—the so-called naturalistic fallacy. Hume’s argument has been construed as meaning that the realms of “is” and of “ought” are rigidly separated; one cannot legitimately step from one realm into the other, or say that because the natural world is in such-and-such a way, therefore there ought to be some action or state of affairs.
In the hands of so-called realists like Bentham and his 20th-century admirers, Hume’s purported boundary between “is” and “ought,” along with his rejection of induction and the empiricist rejection of unmeasurable entities as being “real,” formed a potent acid to eat away at the Declaration’s self-evident truths.
But the fact is that Bentham’s argument against natural rights is so flimsy as to be almost childish. In fact, he and his allies were the ones committing a fallacy. That fallacy was to overlook the fundamental distinction between living and nonliving beings. The Declaration of Independence respects that distinction, and for that reason, its method and conclusions are fundamentally sound. Benthamite empiricism ignores it, and thus blinds itself to many real-world phenomena.
A living creature faces a fundamental alternative that inanimate matter does not. It can be created or destroyed. If you cut a rock in half, you have not destroyed the rock—in fact, you’ve made two rocks. But if you cut Socrates in half, you have not simply divided tissue and bone into two separate piles—you’ve caused something that once existed to literally cease to exist forever. All the king’s horses and all the king’s men cannot reanimate him.
What’s more, living things are capable of self-generated actions that sustain their existence. They can eat, exercise, take medicine, read online journals and so forth. While not every factor that goes into their survival is within their control, they are unique in being able to act to preserve and even improve their survival—something that, again, inanimate matter cannot do. Put another way, living beings are capable of flourishing, or, in the synonymous phrase from the Declaration, pursuing happiness. That is what makes it meaningful to speak of things being “good for” or “bad for” living creatures. Nothing is “good for” or “bad for” a rock.
That, in turn, means statements about living creatures can be evaluative and prescriptive rather than merely descriptive. We can place a living creature on a scale in terms of its continued survival and success—we call this “health”—and we can therefore use terms such as “ought” to describe its progress toward continued survival and flourishing.
A gardener, walking into a garden and seeing that the plants are dry, with cracking leaves and drooping stems and no fruit, can conclude that there’s something wrong with the garden, that adding water to it will maximize the plants’ survival and flourishing—and therefore that he ought to water the plants. There’s simply nothing fallacious about this progression from “is” to “ought.” We take these steps every day.
Yet the Benthamite empiricist is incapable of taking them. After all, to conclude that plants need water to grow would be an induction and therefore forbidden. The health of plants cannot be quantified and therefore cannot be a real thing. And the idea that a plant ought to be green and strong and produce fruit or flowers would be an illicit jump from “is” to “ought.” The Benthamite empiricist is incapable of distinguishing between the natural and the abusive state of a garden—let alone of man.
Just as plants need water and sunshine, humans need liberty to flourish—the freedom to discharge their responsibilities to themselves and others in accordance with their own judgment. Because they must take steps to survive and thrive, it follows that their doing so is good—that they have a moral claim to not be interfered with in their pursuits of flourishing.
Bentham and his followers, however, blinded themselves to these phenomena, resulting in the curious spectacle of allegedly hard-nosed realists who cannot make even the most rudimentary judgments about a proper political constitution.
Do Rights Come From the State?
In fact, the Benthamite critique of the Declaration itself rests on a number of fallacies. Consider his claim that rights cannot be inalienable because American patriots were then depriving Loyalists of their property. This is a straw man; natural rights theory never claimed that rights cannot be violated—only that they cannot be violated justly; that one cannot commit a rights violation without thereby inflicting an injustice. Bentham was also committing the fallacy of the “stolen concept” by condemning the patriots for violating the very rights whose existence he was in the process of denying.
Bentham’s version of rights was even more fallacious. If “good” and “bad” aren’t real features of the world, what can these words refer to? The “realistic” answer was that they represent only a social consensus—a fundamentally arbitrary cultural belief, similar to a fashion trend or a slang term. Thus “rights” can only be permissions given to the populace by the government.
But where does society get its notions of good or bad to begin with? Just as the state cannot give the people wealth that it has not already taken from them through taxation, so it cannot create legitimate moral claims ex nihilo. To suggest it can establish normative claims by mere ipse dixit really is magical thinking. So, too, the state cannot imbue rights—which purport to be binding in conscience, rather than being mere commands—with obligatory weight, without drawing that gravity from some more fundamental aspect of human nature.
Take, for example, a woman’s right not to be raped. The Lockean theory underlying the Declaration would explain this by pointing to the inherent equality and autonomy of human beings, but Bentham rejects those premises. By his lights, this right can only represent an agreement among the people in society to forbid such an act. Where does this agreement get its legitimacy—its binding quality as a right? Bentham cannot answer that, say, a woman who is raped suffers thereby, because that would be crossing the alleged “is”/“ought” gap. Instead, it must be as arbitrary as a fad, or, as Bentham’s admirer Justice Oliver Wendell Holmes put it, as capricious as a preference for one beer instead of another.
Once again, Bentham’s predecessors had anticipated this argument. “If this be a just view of things,” wrote James Wilson, a signer of the Declaration, in rebutting a similar argument, then people are “not only made for, but made by the government ... . [They are] nothing but what society frames.” They have no moral standings except as figments of society.
The problem is even worse with respect to political rights. It’s the distinctive quality of rights that they are “trump cards” which take moral precedence over a social consensus. Rights account for the legitimacy of one person resisting the majority. To characterize them as mere social constructs, therefore, is not to explain rights, but to fundamentally redefine the term, no different in principle from explaining how automobiles work by saying they’re actually horses.
Bentham’s famous line about “nonsense upon stilts” is revealing in this connection. Stilts, it should be remembered, do actually exist, and they do something meaningful: They lift people off the ground by directing the natural force against gravitation through a pole that touches the earth. In other words, they operate from the ground up. Bentham’s rights/permissions, by contrast, are pure ipse dixit. They hang from nothingness like the proverbial “skyhook.” They do not exist at all. Nor are they properly called rights; they are permissions bearing the false label “rights”—when these are two wholly different things.
In fact, Bentham’s argument that rights are “fruits of the law, and of the law alone” was effectively a petitio principii. He simply assumed the point in dispute, which is whether the law (of which rights are allegedly the fruits) is legitimate—which would be necessary for it to give people any rights binding in conscience. To the extent that he recognized any such thing as a principle of legitimacy, he simply assumed that the individual rightfully belongs to the state, unless and until the state chooses to give him some degree of freedom.
A Recipe for Totalitarianism
All this rendered Bentham incapable of making even elementary observations in political philosophy. Consider the most basic distinction in all politics—one tracing back to Aristotle—that is, the difference between a state and a gang of pirates. Both use coercion, both extract money from people, both establish rules of one kind or another. But, said Aristotle, a state does these things in the service of the public good, whereas a gang of pirates employs force arbitrarily, for self-aggrandizement or out of mere personal spite. For Bentham, this distinction is unavailable, because he denies antecedent political principles (except for “social advantage,” a term he never defines).
How, then, can a government ever be legitimate? Bentham did suggest one answer, but it was wholly inadequate. He wrote that when a gang of pirates exists for long enough and coerces enough people, “regular, long established, accustomed [use]” causes them simply to acquiesce—and there are no principles of legitimacy deeper than that. Habit and surrender on the people’s part is all. Of course, by that theory, the more oppressive a state is, the more legitimate it becomes.
At its deepest level, Bentham’s argument imagines that the political world consists exclusively of power. He defined “law” as nothing more than the command of a sovereign backed by a sanction. The Declaration’s authors, by contrast, would have said that law is not a command at all. Instead, it is a combination of power and right, which only together can form legitimate authority. That’s why some commands, such as the Stamp Act, could be rightly regarded as no law at all—whereas other things, which could not be sensibly described as “commands”—such as laws governing the formation of contracts or marriages, which don’t dictate anything and aren’t backed by any kind of punishment—do qualify as law.
The world the Declaration contemplates is one in which law derives its binding force not from any threat of compulsion, but from its rightfulness—its consistency with the underlying order generated by human nature. That is why its closing passages use the phrase “of right.” “These United Colonies,” it says, “are, and of right ought to be free and independent states,” and they are free to do “all ... acts and things which independent states may of right do”—not everything states can do, but only things they may do of right. Rightfulness both animates and limits the newly independent governments.
To Bentham, this would have made no sense. If law is simply power—nothing more than commands backed by punishment—then might literally makes right, and there can be no sense in saying that the state may only do things that it may do “of right.” Little wonder, then, that Bentham argued that all rights—presumably including everything from the right to pray, to the right to have children, to the right to breathe—can be “abolished” whenever that “is advantageous to society.”
It’s hardly original to observe that this argument is a recipe for totalitarianism. But what’s remarkable is the way that Bentham’s political vision, which so clearly retreated from the Enlightenment’s classical liberalism into an older conception of monarchical divine right and absolutism, has been treated as more “modern” or rationally advanced than that articulated in the Declaration of Independence. Beginning with John Dewey, who in 1935 toasted Bentham for showing that “natural rights and natural liberties only exist in the kingdom of mythological social zoology,” modern academics have generally regarded the Declaration’s natural law theory as outdated and quaint. “Natural law has mystical overtones that seem out of place in a modern society,” wrote one law professor in 2001.
In reality, however, Bentham’s argument was deeply reactionary—a throwback to a superstitious viewpoint whereby law is nothing more than the will of an all-powerful pharaoh. His contempt for abstract principles led him not merely into skepticism, but into a form of nihilism which he mistook for down-to-earth common sense. And that rendered the alleged “realist” blind to the most obvious facts of the political world: namely, the differences between rights and privileges, between law and mere compulsion, between order and arbitrariness, between governments and gangs of pirates and between the natural and the abusive state of man.

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