Bentham - PowerPoint Presentation

Slide1

Bentham and Marx on Human Rights

Master in

Theory

and

Practice

of

Human Rights,

University

of

Oslo –

Dr.Claudio

CorradettiSlide2

J.Bentham «A Fragment on Government» 1776

Target of the criticisms

W.Blackstone’s

Commentaries

on

the

Laws

of

England

-

he

did

not justify

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 they 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

REMEMBER ?!

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

J.Bentham, Anarchical Fallacies (1796)

J.Bentham’s «Nonsense

upon Stilts

» hitherto known as «Anarchical fallacies» 1796

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…all 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

:

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

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 proof, a cover for introducing,…

the very proposition which is admitted to stand in need of proof

»Slide12

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 Problem

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 the 4 points

The Declaration makes propositions of fact which are obviously false! For 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 or after a government has been created!Slide15

The Declaration is ambiguous

As

signifying

: «

what

is

established

»

As

signifying

«

what

ought

to be

established

»

This is because natural rights 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!Slide19

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)Slide20

Bentham was not against declarations as such but considered a different function they serve: as advice to the legislator and not as law!

He wrote himself a constitutional charter for 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

.Slide21

MARX’S «On the

Jewish

Question

» 1844 Deutsche-

französische

JahrbücherSlide22

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 to the emancipation of the mankindSlide23

Marx: the Jewish question in Germany 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

questionSlide24

Therefore: «what is the relationship of complete political emancipation to religion?»

...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

»Slide25

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

!Slide26

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

!Slide27

…yet the problem is that the liberal/bourgeois society 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)Slide28

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

interestsSlide29

First level interpretation of Marx’s criticism of human rights

(«vulgar interpretation» as for Waldron, 1987, p.127):

The

egoistic

bourgeois

Doctrines

of

rights

present

preoccupation

for

the

bourgeois

capitalist

as

if

they

were

universal

interests

Slide30

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)Slide31

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

»Slide32

In a paradoxical way also the freedom of conscience 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

…»Slide33

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

atomismSlide34

Towards a more

subtle

interpretation

of

Marx….(

Waldron

, 1987)Slide35

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

. Slide36

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

» Slide37

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!Slide38

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»Slide39

TAKK!!