Bentham and
Marx on Human
Rights
Master in Theory and Practice of Human Rights,
University of Oslo – Dr.Claudio Corradetti
7 October 2014
• J.Bentham, Anarchical Fallacies (written in
1796 published in 1816)
J.Bentham «A Fragment on Government» 1776
Target of the criticisms
W.Blackstone’s Commentaries on the Laws of England
-he did not justified law in accordance to the principle of utility (max of
total happiness)
- he confused the role of the «censor» with that of the «expositor»
when he claimed that «every thing is as it should be» with reference
to english law
• «To the province of the Expositor it belongs to explain to
us what, as he supposes, the Law is: to that of the Censor,
to observe to us what he thinks it ought to be. The former,
therefore, is principally occupied in stating, or in
enquiring after facts: the latter, in discussing reasons»
This is again Hume’s «is-ought» problem!!
Bentham’s solution:
the task of the expositor is to show what judges and
legislators have done
The task of the censor, instead, is to show what the ought
to do in the future
Blackstone has confounded the two functions!
Bentham’s idea of legal improvement
«…a system that is never to be censured, will never be
improved…»
Thus NOT by resorting to external morality BUT through
censor’s legal improvements with «securities against
misrule»!
Only practical securities grant the maximization of total
happiness as according to the principle of utility
Negative form: no law ought to be made which would
diminish general happiness
Utilitarianism: Principle of (Total or Average) Happiness as
Principle of Law (and Justice):
Total Happiness/Utility: maximization of the total utility by
adding individual utilities
Case 1
x2, y6,z4 = tot. 12 preferable to x4, y, 4, z3 = tot.11
Average Happiness/Utility: maximization of average utility
x4,y4,z4 = tot. 12 preferable to x10,y2, z1= tot.13
This is the same criticism of the «anarchist» natural law
defender as criticised in:
J.Bentham’s «Nonsense upon Stilts» hitherto known as
«Anarchical fallacies» 1795
Main target: criticism of «natural law theory» through the
criticism of particularly the French Declaration of 1789 (as
also replicated in 1791)
Bentham’s preliminary charge to natural law based
declarations:
any natural law based declaration shows «the old appetite of
ruling posterity»
(J.Bentham, Rights, Representation, and Reform pp. 181)
«What I mean to attack is…alla ante-legal and anti-legal
rights of man…not the execution of such design..but the
design itself…the French had not failed in the execution of
their design…but rather the design could not be
executed…» Ibid.38
In ‘Anarchical fallacies’ Bentham sees 4 problems in the
French Declaration:
1)Tendency to produce anarchy: revolutionary insurrection
had to be justified but this encourage future insurrection
«they saw the seeds of anarchy broadcast: in justifying the
demolition of existing authorities, they undermine all future
ones …»
2) Incorporation of fallacious arguments: the abstractness of
language and substance of natural law rights produce a
fallacious result «the abuse of making the abstract
proposition resorted to for proff, a cover for
introducing,…the very proposition which is admitted to
stand in need of proof»
3) Encouragement to violent feelings: rather than
restraining «the selfish and the hostile passions», the
Declaration added «as much force as possible to these
passions» etc.
Major Problem
4)Ontological problem: inappropriate use of language. The
language of the Declaration whould have suited «an oriental
tale…but not a body of laws, especially of laws given as
constitutional and fundamental ones»
Analysis of 4:
The Declaration makes propositions of fact which are
obviously false! Says Bentham: Art.1 states «in respect of
their rights men are born and remain free and equal»
YET ALL MEN «were born in subjection»! It is irrelevant
if this were valid before the institutionalization of a
government after that a government has been created!
The Declaration is ambiguous in the use of «CAN»
1) As signifying: «what is established»
2) As signifying «what ought to be established»
This is because natural right pretend to exist independently
of a government and prior to this!
To say that natural rights cannot be abrogated is
nonsensical!
• «Natural rights is simple nonsense: natural and
imprescriptible rights, rethorical nonsense, nonsense upon
stilts» Bentham, Anarchical Fallacies THE WORKS OF
JEREMY BENTHAM 489 (John Bowring ed., 1843),
p.501.
• Why then if it is nonsense, Bentham believes he should
spend time on his criticisms?
Because it is «nonsense with great pretensions, with the
pretensions of governing the world»!
Two examples:
1) Criticism of the Right to Liberty as imprescriptible
right, but says Bentham «all rights are made at the
expence of liberty», liberty is in his view «absence of
constraint» but still a duty!! Not to talk about «positive
duties» connected to this!
2) Criticims of the Right to Property «if every man had a
right to everything…would be tantamount to destroying
all property»! (Bentham, Rights etc.p.334)
Bentham was not against declarations as such but the
functions they serve: as advice to the legislator and not as
law!
He wrote himself a constitutional charter fo the Pasha of
Tripoli in 1822:
In the first address- the Pasha has to claim a vision for the
Prophet Mohammed
In the second address – the Pasha was to acknowledge the
greatest happiness of the greatest number.
MARX’S «On the Jewish Question»
1844 Deutsche-französische
Jahrbücher
Questions: what sort of emancipation do German Jews
seek? (civil and political)
B.Bauer says: Jews cannot ask egoistically for their own
emancipation they have rather to contribute to the general
German emancipatory process and for the emancipation of
the mankind
Marx: the Jewish question in Germany (where there is no
state) is rather a theological one.
Jews are in opposition to the state which recognizes only
Christianity as its foundation
In France, is a constitutional question for the
incompleteness of political emancipation of the Jews
Only in America is a really secular question
Therefore: «what is the relationship of complete political
emancipation to religion?»
Since even in America the perfection of the state does not
impede the existence of religion…
Thus, political emancipation cannot be reduced to
theological emancipation and this latter is not the most
advanced form for human emancipation but only:
«…the final form of human emancipation inside the present
world order»
Reply of Marx to B.Bauer
«So we do not say to the Jews, as Bauer does: you cannot
be emancipated politically without emancipating yourselves
radically from Judaism. Rather we say to them: because you
can be politically emancipated without completely and
consistently abandoning Judaism, this means that political
emancipation itself is not human emancipation»
For Marx, then, human emancipation requires a new
conception of state and society!
An emancipated state does not imply emancipated citizens!
«The limitations of political emancipation are immediately
evident in the fact that a state can liberate itself from a
limitation without man himself being truly free of it and the
state can be a free state without man himself being a free
man»
….Then the question becomes that of secular and thus of
human emancipation!
…yet the problem is that the liberal/bourgeois society it
pretends to nullify differences through rights (rights of man)
as in the Civil Society…
…but then they are even more heavily reintroduced at the
social/political level: rights of citizens (census)
Marx’s reference is to Hegel’s notion of civil society in the
Philosophy of Right (1820)
What is it?
-emergent pro-capitalist society
-domain of «negation» in the relations among people
-loss of the «ethical unity» of the family
-advancement of personal interests
First level interpretation of Marx’s criticism of human rights
(«vulgar interpretatio» as for Waldron, 1987, p.127):
The egoistic bourgeois
Doctrines of rights present preoccupation for the bourgeois
capitalist as if they were universal interests
This is particularly evident with the right to private
property:
«the right of man to property is the right to enjoy his
possessions and dispose of the same arbitrarily without
regard for other men, independent of society, the right of
selfishness» (Marx Jewish Question, in Waldron ed., p.146)
Equality and Security for Marx make the egoistic picture
even worst since:
1) Equality: protects anti-social freedom to each
2) Security: guarantees and reinforces these rights as «the
assurance of egoism»
In a paradoxical way also the freedom of coscience or
religious freedom favors egoism and privacy of the
bourgeois:
«It (religious freedom) has become the expression of the
separation of man from his common essence, from himself
and from other men, as it was originally. It is still only the
abstract recognition of a particular perversion, private
whim, and arbitrariness…»
Marx does not want to defend the idea of a civic religion
but he wants to show how religion conceived in the
bourgeois way produced a privatized conscience.
This is also the criticism to «capitalist society» as an
illusion of self-sufficient atomism
Towards a more subtle interpretation of Marx….(Waldron,
1987)
Marx’s serious evaluation of The French Declaration of the
Rights of the Man and the Citizens 1789/91
separation between the two spheres of rights:
Man’s rights: rights of the egoistic man
Citizens’s rights : can be enjoyed only in community. Those
are the rights favoring for Marx human emancipation
towards the creation of a community.
Marx: religion and private property are both alienated forms
of life BUT
their removal from the public/political sphere with human
rights does not diminish but enhance alienation in the
private sphere!
Example of the USA’s separation between church and state
but «the overwhelming majority of people is still religious»
Political emancipation, for Marx, requires more!
It requires involvement of that community in the democratic
organization and production of economic life
Recall the notion of positive liberty as in I.Berlin’s essay!
Marx’s Criticism becomes a criticism to capitalist/atomized
and egoistic material life!
In the bourgeois view of the state the political community is
seen as protecting life, liberty and property so that
«the political community is degraded by the political
emancipators to a mere means for the preservation of these
so-called rights of man»
TAKK!!