Bentham’s Critique of Natural Rights

Jeremy Bentham (1748–1832), the founder of modern utilitarianism, was one of the harshest critics of the Enlightenment language of “natural rights.” While Locke, Rousseau, and Paine had popularized the idea that human beings are born with inalienable rights by nature, Bentham rejected this as metaphysical fantasy.
In his Anarchical Fallacies (1796), a response to the French Revolution’s Declaration of the Rights of Man and Citizen, Bentham dismissed the notion of imprescriptible, pre-political rights as “nonsense upon stilts.” His reasoning rested on three main arguments:

1. Rights are legal, not natural.
   • For Bentham, rights could only exist when codified and enforced by law. To say someone “has” a right outside of any legal framework was, in his view, meaningless.
   • In his words, “Right, the substantive right, is the child of law; from real laws come real rights; but from imaginary laws… come imaginary rights.”
   • Thus, declarations of natural rights were dangerous fictions, promising protections that had no concrete authority behind them.
2. Natural rights invite anarchy.
   • Bentham feared that appealing to “higher” natural rights above positive law would justify rebellion against any government whenever citizens felt their supposed rights were violated.
   • He argued this would destabilize society, since “rights of man” were so vaguely defined that they could be invoked to rationalize endless conflict.
   • For him, rights-talk without legal grounding was not liberating but potentially revolutionary and destructive.
3. Utilitarianism as the true foundation.
   • Instead of abstract natural rights, Bentham proposed that laws and rights should be judged by their contribution to the greatest happiness of the greatest number.
   • Rights are valid insofar as they serve human welfare, not because they exist “naturally.”
   • For example, the right to free expression is valuable because it maximizes overall happiness (by promoting knowledge, preventing tyranny, etc.), not because humans are metaphysically endowed with it at birth.

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The “Nonsense Upon Stilts” Passage

Bentham’s most famous phrase occurs in his critique of the French Declaration. He wrote:

“Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense,—nonsense upon stilts.”

The imagery is deliberate: “stilts” suggests an inflated, exaggerated claim—lofty-sounding, but precarious and absurd. For Bentham, the French revolutionaries had built their political program on dangerous abstractions that threatened to topple law and order.

Legacy of Bentham’s Critique

• Influence on Legal Positivism: Bentham’s insistence that rights only exist when created by law laid the groundwork for modern legal positivism, later developed by John Austin and others.
• Contrast with Liberal Natural Rights Tradition: Whereas Locke and Paine thought rights pre-exist government and limit its authority, Bentham believed rights are entirely creatures of government, justified by their social utility.
• Continuing Debate: Bentham’s critique sparked a lasting divide:
  • Natural rights theorists argue rights are inherent in human dignity or reason.
  • Legal positivists/utilitarians argue rights are constructed, pragmatic tools for maximizing welfare.
    Even today, debates about human rights reflect this tension: Are rights discovered (as moral truths) or invented (as legal instruments for human good)?

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Bentham vs. Burke

Here’s a structured comparison of Jeremy Bentham’s utilitarian critique of natural rights with Edmund Burke’s conservative critique. Both men rejected the abstract “rights of man” rhetoric of the late 18th century, but they did so from very different intellectual positions.

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Bentham: Rights as “Nonsense Upon Stilts”

• Philosophical Basis: Utilitarianism and legal positivism.
• Core Argument: Rights only exist when created and enforced by law. “Natural rights” independent of legislation are fictions.
• Concerns:
  • Natural rights talk encourages instability and rebellion.
  • It undermines the authority of actual, working laws.
• Goal: Replace appeals to “higher rights” with a pragmatic framework where laws are judged by their utility—their ability to maximize the greatest happiness of the greatest number.
• Style of Critique: Rationalist and dismissive—he mocks “natural and imprescriptible rights” as “rhetorical nonsense—nonsense upon stilts.”
  In short, Bentham feared that natural rights were dangerous illusions, distracting from the real business of crafting laws that work for society.

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Burke: Rights as Historical Inheritance

• Philosophical Basis: Conservatism, tradition, and historical continuity.
• Core Argument: Rights are not abstract or universal principles but are inherited from history and custom.
• Concerns:
  • Abstract rights like “liberty” and “equality” ignore the complexities of tradition and social order.
  • Radical claims of universal rights can lead to chaos, violence, and tyranny, as he believed happened in revolutionary France.
• Famous Line: In Reflections on the Revolution in France (1790), Burke wrote:

  “The idea of a people constituted as one great nation, governed by one great council, is a mere metaphysical abstraction.”

• Alternative View: True rights are “entailed inheritance.” For example, the English people’s rights were secured through institutions like the Magna Carta, Parliament, and the common law. These are real, tested, and stable—unlike abstract declarations drafted on paper.
• Style of Critique: Historical and rhetorical—he appeals to tradition, prudence, and the lessons of experience.
  For Burke, natural rights talk was not “nonsense” in the sense of logical incoherence, as Bentham said, but dangerously naïve abstractions that failed to respect the organic development of society.

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Key Contrast

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Conclusion

Although Bentham and Burke both rejected the natural rights philosophy of Locke, Rousseau, and Paine, their critiques diverge fundamentally:

• Bentham was a rationalist reformer, aiming to strip away metaphysical language and replace it with legal and utilitarian clarity.
• Burke was a traditionalist skeptic, aiming to preserve the accumulated wisdom of institutions against revolutionary abstraction.
  Together, they illustrate how Enlightenment “rights talk” faced opposition not only from monarchs and the church but also from philosophers who believed rights must be grounded differently—either in law and utility (Bentham) or in history and tradition (Burke).

Locke vs. Bentham vs. Burke on Rights

John Locke: Rights as Natural and Inherent

• Philosophical Basis: Natural law and social contract theory.
• Core Claim: Humans are born with natural rights to life, liberty, and property.
• Foundation:
  • Rights are grounded in human nature and reason.
  • They exist prior to governments; governments are legitimate only if they protect them.
• Political Implication: If rulers violate natural rights, people may resist or overthrow them.
• Legacy: Inspired liberal revolutions (American & French) and provided the language of “unalienable rights.”
  Locke’s rights are pre-political, universal, and inherent—they limit what governments can do.

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Jeremy Bentham: Rights as Legal Fictions

• Philosophical Basis: Utilitarianism and legal positivism.
• Core Claim: Rights do not exist outside of legal systems; “natural rights” are “nonsense upon stilts.”
• Foundation:
  • Rights are created by law, not discovered in nature.
  • Real rights = legal rights; imaginary rights = natural rights.
• Critique: Natural rights rhetoric destabilizes order and invites revolution.
• Alternative: Rights should be constructed to maximize the greatest happiness of the greatest number.
  Bentham’s rights are man-made, pragmatic, and contingent—justified only if they serve social utility.

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Edmund Burke: Rights as Historical Inheritance

• Philosophical Basis: Conservatism, tradition, and organic society.
• Core Claim: Rights are not abstract universals, but inherited from history and custom.
• Foundation:
  • Real rights are secured by institutions, traditions, and continuity.
  • Example: English rights through the Magna Carta, Parliament, and common law.
• Critique: Abstract rights (like those in France) ignore complexity, destroy institutions, and lead to tyranny.
• Alternative: Rights as “entailed inheritance”—gradually evolved liberties passed down through generations.
  Burke’s rights are historical, contextual, and institutional—not metaphysical absolutes.

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Comparative Table

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Conclusion

• Locke anchored rights in universal human nature: a moral limit on state power.
• Bentham stripped rights of metaphysical status: a legal tool judged by utility.
• Burke treated rights as a cultural inheritance, not abstract principles.
  Together, they represent the three great currents of modern political philosophy:
• Liberalism (Locke)
• Utilitarianism (Bentham)
• Conservatism (Burke)
  Each offers a different way of answering the question: Where do rights come from, and why should we respect them?

List of Natural Rights Theories

1. Theological Foundations (Classical Natural Law)

• Thinkers: Thomas Aquinas, medieval scholastics.
• Core Idea: Rights are grounded in God’s eternal law, discernible through reason.
• How it Works: Humans, as rational creatures, participate in God’s natural law, which gives them inherent rights (e.g., to life and self-preservation).
• Critique: This foundation ties rights to religious doctrine, making universality difficult in pluralistic contexts.

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2. Natural Law Without Theism (Stoics & Rationalists)

• Thinkers: Stoics, Cicero, Hugo Grotius.
• Core Idea: Rights flow from the rational order of the universe or from human rationality itself, not necessarily from God.
• How it Works: Grotius famously said natural law would still hold “even if we should concede… that God does not exist.” This made natural rights intelligible on rational grounds alone.

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3. Social Contract Foundations

• Thinkers: Hobbes, Locke, Rousseau, later Rawls.
• Core Idea: Rights are what rational individuals would agree upon in a hypothetical pre-political “state of nature” or social contract.
• How it Works:
  • For Hobbes, the basic natural right is self-preservation, limited by contract.
  • For Locke, natural rights exist before the contract and constrain government.
  • For Rousseau, the contract creates civic equality and collective sovereignty.
  • For Rawls, rights are those principles rational agents would agree to behind a “veil of ignorance.”

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4. Utilitarian Foundations

• Thinkers: Bentham, J.S. Mill.
• Core Idea: Rights are not inherent, but legal constructs justified by their utility (promoting happiness, preventing harm).
• How it Works: Rights are instruments that protect social welfare (e.g., free speech promotes truth and progress).
• Critique: If rights are contingent on utility, they can be overridden when utility dictates—weakening their inviolability.

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5. Kantian / Deontological Foundations

• Thinker: Immanuel Kant.
• Core Idea: Rights are grounded in human dignity and autonomy.
• How it Works: Because humans are rational beings, each must be treated as an “end in themselves.” Rights follow from respecting rational agency (e.g., not enslaving, coercing, or degrading others).

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6. Marxist / Critical Foundations

• Thinker: Karl Marx.
• Core Idea: Natural rights are not universal truths but ideological tools reflecting bourgeois interests.
• How it Works: Marx criticized “rights of man” as atomistic, protecting private property and individualism at the expense of real human emancipation.
• Alternative: True freedom comes from abolishing exploitative structures, not merely declaring abstract rights.

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7. Capabilities / Human Flourishing Foundations

• Thinkers: Aristotle (precursor), modern: Amartya Sen, Martha Nussbaum.
• Core Idea: Rights are grounded in the basic capabilities required for humans to live a flourishing life.
• How it Works: A right is valid if it secures the material and social conditions necessary for humans to function as humans (health, education, expression, political participation).

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8. Constructivist / Legal Positivist Foundations

• Thinkers: Bentham (early), H.L.A. Hart.
• Core Idea: Rights are legal conventions—created by human societies, not “natural.”
• How it Works: They gain force through laws, institutions, and shared agreement, not through metaphysics.

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9. Human Dignity / Post-WWII Universalist Foundations

• Documents: Universal Declaration of Human Rights (1948).
• Core Idea: Rights derive from the “inherent dignity” of every human being.
• How it Works: This foundation avoids metaphysics—no reference to God or natural law—but appeals to a shared recognition of dignity, reason, and conscience as the common ground for universal rights.

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Summary of Theories

• Religious / Theological: Rights given by God (Aquinas).
• Rationalist Natural Law: Rights discovered through reason, even without God (Grotius, Stoics).
• Social Contract: Rights emerge from agreements of rational agents (Hobbes, Locke, Rousseau, Rawls).
• Utilitarian: Rights as tools to maximize welfare (Bentham, Mill).
• Kantian: Rights from dignity and autonomy (Kant).
• Capabilities: Rights as guarantees of human flourishing (Sen, Nussbaum).
• Positivist: Rights as legal constructs only (Hart).
• Critical: Rights as ideological (Marx).
• Human Dignity (Postwar): Rights as universal recognition of equal worth (UDHR).

Timeline of Theories on Natural Rights

Antiquity (4th c. BCE – 1st c. CE)

• Stoics: Argued that natural law flows from a universal rational order (logos).
• Cicero: Rights grounded in “right reason” and applicable to all humans, across cultures.
  • Rights are universal because all humans share rational nature.
  • Foundation: Reason & universal moral law.

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Middle Ages (13th–15th c.)

• Thomas Aquinas & Scholastics:
  • Natural law as participation in God’s eternal law.
  • Rights = aligned with divine order, but also accessible by reason.
  • Foundation: Theological (God’s eternal law).

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Early Modern Era (17th c.)

• Hugo Grotius (1625):
  • Father of modern natural law.
  • Claimed natural law would hold “even if God did not exist.”
  • Foundation: Reason & sociability (proto-secular natural law).
• Thomas Hobbes (1651):
  • State of nature = right to everything for survival.
  • Social contract creates order; rights are limited for security.
  • Foundation: Self-preservation & rational agreement.
• John Locke (1689):
  • Humans have pre-political natural rights to life, liberty, property.
  • Government exists to secure these rights; people may resist tyranny.
  • Foundation: Natural law & reason.

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Enlightenment & Revolution (18th c.)

• Jean-Jacques Rousseau (1762):
  • Rights exist through collective sovereignty (“general will”).
  • Foundation: Civic equality & social contract.
• Thomas Paine (1791):
  • Natural rights belong to humans “by virtue of their existence.”
  • Foundation: Existence itself (universalist).
• Critiques:
  • Edmund Burke (1790): Rights are “entailed inheritance,” rooted in tradition.
    • Foundation: History & tradition.
  • Jeremy Bentham (1796): Natural rights = “nonsense upon stilts.”
    • Foundation: Law & utility (legal positivism).

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19th Century

• John Stuart Mill (1859):
  • Rights justified pragmatically: free speech & liberty promote truth and social progress.
  • Foundation: Utilitarian harm principle.
• Karl Marx (1843–1848):
  • Rights of man are bourgeois, protecting property and egoism.
  • Real emancipation requires abolishing capitalist structures.
  • Foundation: Critique of ideology.

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20th Century

• Immanuel Kant (legacy influence):
  • Rights grounded in dignity and autonomy of rational beings.
  • Foundation: Moral law of reason (deontological).
• Universal Declaration of Human Rights (1948):
  • Rights derive from “inherent dignity” of the human person.
  • Foundation: Human dignity, reason, conscience (secular universalism).
• H.L.A. Hart (1960s):
  • Rights as legal constructs within legal positivism.
  • Foundation: Law & institutional practice.

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Contemporary (20th–21st c.)

• Capabilities Approach (Amartya Sen, Martha Nussbaum):
  • Rights grounded in the basic capabilities needed for human flourishing (health, education, participation).
  • Foundation: Human flourishing & justice.
• Constructivist Theories (Rawls):
  • Rights = principles rational agents would agree to behind a veil of ignorance.
  • Foundation: Fairness & rational agreement.

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Visual Flow of Foundations

• Divine Source (Aquinas) →
• Reason & Nature (Stoics, Cicero, Grotius, Locke) →
• Self-Preservation / Social Contract (Hobbes, Rousseau, Rawls) →
• Tradition / Inheritance (Burke) →
• Utility & Law (Bentham, Mill, Hart) →
• Human Dignity (Kant, UDHR) →
• Flourishing & Capabilities (Sen, Nussbaum) →
• Critique of Ideology (Marx, critical theory)

Theories of Natural Rights – Historical Overview