Bentham and Marx on Human RightsMaster 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!!