Jeremy Bentham's Anarchical Fallacies

Jeremy Bentham wrote an essay titled “Anarchical Fallacies” , where he attacked the much ragingly popular notion of human rights in the French Declaration of the Rights of Man and Citizen, 1789. The two schools that come into play in his writing are the Positivist School and Natural Law School of law. These two schools have been at odds with one another since time immemorial and in the current paper, the researcher aims to delve into the debate persisting between the two schools.
Bentham, a true positivist, shuns natural rights as mere fiction, an anarchical fallacy, nothing but bawling on paper, mere nonsense on stilts. He refers to the Natural Rights as Anarchical Fallacies mainly because firstly, there cannot exist rights anterior to law

A key component of Nozick’s notion of the state of nature is the existence or reality of certain natural rights. It must be stressed that Nozick doesn’t try to validate natural rights’ existence through proof. He simply contends that they take up an important role within a fundamental explanation of the political area. . Though, in the opening section of his book, he agrees that he ‘doesn’t present a precise theory of moral basis of individual rights’ but he still suggests various factors that such a theory might be inclusive of. Anarchy, state and Utopia starts with: “Individuals have rights, and there exist things that no person or group may do to them (without violating their rights)” These rights, to him, are natural because of who we are not because they were given to us by someone else but just mentioning that we have rights isn’t the same as saying why we have them. For this, he draws on Immanuel Kant’s famous formulation: “Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only” . Humans are beings possessed with the virtue of rationality and hold dignity which keeps one from being used by another, and hence we have rights against such use. The idea that forms the core of his argument is the conception of a human’s capacity to lead a life they want. According to him, rights have a direct connection with a

Furthermore, he appears to rest his argument on expediency rather than impossibility. Bentham did not explore the subject of judicial control of legislative power in detail or in depth and he failed to anticipate its development. Thus his treatment of the subject is generally inadequate by modern Standards. Adopting utility as the foundation for fundamental rights is insufficient and improper because if it were to be true, minority rights wouldn’t find a place amidst Part III of our constitution. Between Natural rights and legal rights, fundamental rights form their own separate category. It derives its legitimacy through the act of legislation but the emergence of concomitant rights out of them goes to show the wider ambit of these rights eg, right to sleep as a fundamental right for both adults as well as new born babies. Such rights though not mentioned explicitly in the constitution, do find their way into our lives for a simple reason that it is something we inherently have since