The Declaration--Nonsense Upon Stilts?

The natural rights tradition of our Founding Fathers came under attack shortly after our country’s founding. In the English-speaking nations the foremost critic was Jeremy Bentham, who called natural rights “nonsense upon stilts.” Bentham founded the Utilitarian school of social thought, with its ethical criteria of maximizing aggregate happiness. Together with Pragmatism, these two consequentialist schools of ethics would dominate the next two centuries of American social thought. But Bentham has nothing to do with America’s Creation … or so I thought.

I was browsing the excellent collection of books on the American Revolution in the Jefferson Library--that’s Jefferson Township, New Jersey--when in an unusual collection of essays, I found Bentham’s critique of the Declaration of Independence, written on behalf of the British government. Long before the excesses of the French Revolution, Bentham had already engaged in a frontal assault on the very notion of natural rights. Here is what he has to say in John Lind's book, An Answer to the Declaration of the American Congress (London, 1776), p119-132:

“They are about ‘to assume,’ as they tell us, ‘among the powers of the earth, that equal and separate station to which”—they have lately discovered—'the laws of Nature, and of Nature’s God entitle them.' What difference these acute legislators suppose between the laws of Nature and of Nature’s God, is more than I can take upon me to determine, or even to guess. If to what they now demand they were entitled by any law of God, they had only to produce that law, all controversy was at an end. Instead of this, what do they produce? What they call self-evident truths. 'All men,' they tell us, 'are created equal.' This surely is a new discovery; now, for the first time, we learn, that a child, at the moment of his birth, has the same quantity of natural power as the parent, the same quantity of political power as the magistrate.

The rights of 'life, liberty, and the pursuit of happiness'—by which, if they mean any thing, they must mean the right to enjoy life, to enjoy liberty, and to pursue happiness—they 'hold to be unalienable.' This they 'hold to be among truths self-evident.' At the same time, to secure these rights, they are content that Government should be instituted. They perceive not, or will not seem to perceive, that nothing which can be called Government ever was, or ever could be, in any instance, exercised, but at the expense of one or other of those rights.—that, consequently, in as many instance as Government is ever exercised, some one or other of these rights, pretended to be unalienable, is actually alienated.”

It is interesting how he rejects Locke’s concept of owning one’s own life in favor of a different idea: successfully enjoying life—a turn that suggests the emergence of utilitarianism. One might say there are two views of equality: equality of ends vs. equality of process. As a utilitarian, Bentham would come to view the ends, in the aggregate, as the criteria of good government. If his misrepresentation of the doctrine of natural rights isn’t clear, read the following:

“… that of enjoying liberty, and pursuing happiness;--that is,--if they mean anything,--pursuing it wherever a man thinks he can see it, and by whatever means he thinks he can attain it:--That is, that all penal laws—those made by their selves among others—which affect life or liberty, are contrary to the law of God, and the unalienable rights of mankind:--That is, that thieves are not to be restrained from theft, murderers from murder, rebels from rebellion.”

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