and Marx on Human Rights Master in Theory and Practice of Human Rights University of Oslo DrClaudio Corradetti 7 October 2014 JBentham Anarchical Fallacies ID: 208862
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Slide1
Bentham and Marx on Human Rights
Master in
Theory
and
Practice
of
Human Rights,
University
of
Oslo –
Dr.Claudio
Corradetti
7 October 2014Slide2
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
lawSlide3
«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!!Slide4
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
!Slide5
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
»!Slide6
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
happinessSlide7
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.13Slide8
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)Slide9
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.38Slide10
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
…»Slide11
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
»Slide12
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. Slide13
Major Problem4)
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
»Slide14
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
!Slide15
The Declaration is
ambiguous
in
the
use
of
«CAN»
As
signifying
: «
what
is
established
»
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
!Slide16
«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.Slide17
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
»!Slide18
Two examples
:
Criticism
of
the
R
ight 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
!
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)Slide19
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
.Slide20
MARX’S «On the
Jewish
Question
» 1844 Deutsche-
französische
JahrbücherSlide21
Questions: what sort
of
emancipation
do
German
Jews
seek
? (
civil
and
political
)
B.Bauer
says
:
J
ews
cannot
ask
egoistically
for
their
own
emancipation
they
have
rather
to
contribute
to
the
general
German
emancipatory
process
and for
the
emancipation
of
the
mankindSlide22
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
questionSlide23
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
»Slide24
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
!Slide25
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
!Slide26
…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)Slide27
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
interestsSlide28
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
Slide29
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)Slide30
Equality and Security for Marx make the
egoistic
picture
even
worst
since
:
E
quality
:
protects
anti-
social
freedom
to
each
Security:
guarantees
and
reinforces
these
rights
as «
the
assurance
of
egoism
»Slide31
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
…»Slide32
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
atomismSlide33
Towards a more subtle
interpretation
of
Marx….(
Waldron
, 1987)Slide34
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
. Slide35
Marx: religion and private property
are
both
alienated
forms
of
life
BUT
t
heir
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
» Slide36
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!Slide37
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»Slide38
TAKK!!