Jeremy Bentham on rights as a creation of the state alone (1831)

Jeremy Bentham

The English utilitarian political philosopher and lawyer Jeremy Bentham (1748-1832) dismissed the notion of “natural” rights as nonsense and argued the all rights were the creation of the state:

Rights are, then, 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. Before the existence of laws there may be reasons for wishing that there were laws—and doubtless such reasons cannot be wanting, and those of the strongest kind;—but a reason for wishing that we possessed a right, does not constitute a right. To confound the existence of a reason for wishing that we possessed a right, with the existence of the right itself, is to confound the existence of a want with the means of relieving it. It is the same as if one should say, everybody is subject to hunger, therefore everybody has something to eat.

Jeremy Bentham famously regarded natural rights as “simple nonsense” and imprescriptible natural rights as “nonsense on stilts” (see his attack on the French Declaration of the Rights of Man and the Citizen in Anarchical Fallacies (1796)). Thirty five years later he was still railing against the idea. In an unpublished work on Pannomial Fragments (c. 1831) he gave the clearest statement of his position: that rights were nothing but the creation of “the functionaries of government in the supreme grade” who granted them to citizens and which rights were guaranteed by “the functionaries of judicature” and enforced by “the functionaries belonging to the army”. Bentham thought that the idea of “natural rights” was a “fiction” which had been invented by revolutionaries in order to show “the nullity of real laws” which were “the fruits of the law, and of the law alone”. If the believers in natural rights had their way, he argued, it would lead to “anarchy.”