Not long ago, at a social media site I frequent, I was discussing (OK, pontificating on) the nature of “natural rights” and pondering whether, if all one has available is some sort of consequentialism, it’s possible to fend off things like involuntary organ donation or murders on trolley tracks. An interested participant contributed this comment:
It's interesting that you had a difficult time with the idea of mandatory organ donation. I thought about it very little but the answer seemed quickly obvious. If you will indulge me: Natural rights exist or they don't. If natural rights of the individual don't exist then no one is wrong if he violates the claimed rights of another….The problem is: If natural rights of the individual don't exist then neither do natural rights of the society. Society doesn't have the right to take my kidneys. It only has the power.
I will not give my loyalty to a party that sees me only as a resource from which to harvest my labor and my parts. I will immolate myself before I surrender my organs.
Now, I agree with a couple of assertions there. I think it’s true that either natural rights exist or they don’t; also that if individuals don’t have natural rights then societies don’t either. I also admire the defiant, lionhearted attitude found here, as well as the ease and certainty with which this discussant believes he can untie philosophical knots that have stymied brilliant knottologists for centuries. But there are also a few things in that comment that seem wrong to me. For example, it doesn’t seem to me to follow from the assumption that there are no natural rights, that no one is in the wrong if she violates something that is claimed to be a natural right of somebody else. And for related reasons, I also don’t find it obvious that if there are no natural rights, societies no one can object if a society runs off with one or more of my kidneys when I’m not looking.
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Is my position internally coherent? Well, it’s intriguing that two first rate political theorists who had wildly contrasting views regarding the existence of natural rights, Thomas Paine and Jeremy Bentham, had numerous nearly identical views, not only about the importance of democracy, but about why and how various government structures are likely to produce a happy citizenry. In addition, looking their work indicates that while Paine (a staunch natural rights defender), might agree with my FB interlocutor that without an assumption of natural rights it might be difficult in certain circumstances to demonstrate the evil of a country making off with a citizen’s kidneys, it is easy to see how both Paine and Bentham (an acerbic natural rights disparager) might agree that kidney theft, even by one’s own country, is simply not OK.
This being a very interesting subject, I thought I would consider the convergent/diverrgent views of these two thoughtful observers of the French and American Revolutions. I will also shove a few relevant quotes from the blokes into an endnote area.
Let me begin by listing some of the many points of agreement between the two firebrands.
Unicamerality
Both advocated for a single legislative body. For Paine this was in the context of the Pennsylvania Constitution, which actually prescribed one of the very few unicameral legislatures ever seen in the U.S. for about a decade. Both philosophers believed that a unicameral system would be more democratic and less prone to corruption and aristocratic influences. In Bentham’s "Plan of Parliamentary Reform," he criticized the complexity and inefficiency of bicameral systems, advocating for a simpler and more direct form of representation.
Recall of Officials
Both supported mechanisms for holding public officials accountable, including the recall of officials.
Disdain for Monarchs
Both were staunch critics of monarchy and hereditary power generally, believing that such ideas were outdated and unjust and made for governments that perpetuate inequality and oppression.
Inappropriateness of Binding Future Generations
Both complained bitterly about the idea that some constitution-writing generation has the right to bind future generations with its laws. Each believed that each generation should be able to decide what it wants–including what laws it wants, for itself. Society’s needs and knowledge evolve, and both men believed that laws should be able to as well. In his “Plan of Parliamentary Reform,” Bentham wrote that “The Constitution…shall never impede the amendment of its own errors.” And Paine wrote in “Rights of Man” that “Every age and generation must be as free to act for itself in all cases as the ages and generations which preceded it.”
French Revolution
Both (in the case of Bentham, eventually) came to support the cause of the French Revolution. For Paine, it was a fight against tyranny and a movement towards establishing a government based on natural rights and democratic principles. Bentham, who was extremely partial to the writing of detailed and explicit legal codes, saw it as creating a wonderful opportunity to implement rational and utilitarian principles in governance.
Constitution Writing and Democracy
Paine supported the idea of written constitutions as a means to safeguard natural rights and ensure a just government. He believed constitutions should reflect the will of the people and be subject to amendment as society evolves, advocating for the sovereignty of the people and the importance of representation. Bentham believed that democratic systems, where officials are elected by the people, ensure greater accountability. Elected representatives are more likely to act in the interests of their constituents to secure re-election. He argued in his "Plan of Parliamentary Reform," Bentham that representatives in a democracy would be more attuned to the needs and desires of the majority, as their political survival depends on popular support.
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But, as said above, Paine was a strong advocate for natural rights, which he believed were inherent and inalienable. On his view, these rights were derived from nature and reason, and they included life, liberty, and property. In fact, in Rights of Man he argued that governments are established precisely to protect those rights and that any government that fails to do so is illegitimate. On the other hand, among the most famous remarks Bentham ever made was his calling the idea of natural rights “nonsense upon stilts.” He was confident that observance of the principle of utility is all that is needed to ensure the excellence of any government. So, while both men called for roughly the same sorts of public policies, they couldn’t have been farther apart with respect to their conception of what grounds democratic principles. Natural rights for Paine, group well-being for Bentham. Can this “identity in difference” be explained, and if not…who was right?
Straightforward Benthamic hedonism isn’t particularly popular these days, largely because piling up pleasures for a bunch of people doesn’t seem to most commentators to make up for the pain that might be involved in doing it. So, for example, most of us don’t think it’s OK to steal a bunch of organs from some poor schmuck sitting in a hospital waiting room to pick up his wife after her colonoscopy, even if those organs would be used to save five (possibly “more important” or “useful”) people’s lives.
The thing to note about our intuitions here is that they are about morality: what seems right or wrong to us. But we can talk about how governments ought to be set up, without taking the “ought” there as an ethical term. We can take all the talk of “should,” “ought,” “right,” and “good” to be about another sort of value altogether, the prudential kind. Prudential values aren’t about what is good or right or ought to be done; they are about wellbeing–what is good for some person or group. So some act might be good for me or my family and still be horribly wrong to do. Say, I need a kidney, it might be good for me for one to be illegally taken from the guy in the waiting room, but that wouldn’t make it ethically appropriate.
One of the interesting differences between moral and prudential values is that the latter do seem capable of being summed in a way that the former can’t be. If some action would increase the wellbeing of a bunch of people in a group and lower the total wellbeing in that group by a smaller amount, it seems correct to say that total prudential value has increased. At least it has increased up to that date, for it may be that future wellbeing will be decreased if actions of that type are regularly undertaken. So, while (moral) goodness doesn’t seem summable in that way, prudential values do.
My suggestion for my readers is to now take all the recommendations of Paine and Bentham and think of them as being exclusively within the province of prudential values. Do you agree with me that the differences no longer seem so profound?
On the other hand, if moral claims are intended, reconciliation seems to me much more difficult. For in the area of ethics, the two thinkers begin with very different axioms.
I hope this helps. Either way, I may pick the matter up in a future blog on moral (and other) axioms.
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A few relevant quotations
Form a constitution with such distinctions of rights, as shall expel the poor, or cause them to draw off into other states, and the rich will soon supply their places by becoming poor themselves, for where there are none to labour, and but few to consume, land and property is not riches…..Men who either do not, or by some fatality cannot penetrate deep enough into consequences, may please themselves with an idea of a distinction of rights in point of fortune, but it is the worst policy they can pursue. They will decay under it…..[T]heir assumed distinction of rights cease to exist, from the want of objects to exercise it over.
Rights are permanent things, fortune is not so; therefore the uncertainty and inequality of the latter cannot become a rule to the certainty and equality of the former.
The toleration act in England, which granted liberty of conscience to every man, in religion, was looked upon as the perfection of religious liberty. In America we consider the assumption of such power as a species of tyrannic arrogance, and do not grant liberty of conscience as a favor but confirm it as a right. And in so doing we have in point of justice exceeded every part of the known world.
There are some points so clear and definitive in themselves that they suffer by any attempt to prove them….
[These are all from Paine’s, “A Serious Address To The People Of Pennsylvania On The Present Situation Of Their Affairs”]
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The principal defect in the constitution of 1776, was that it was subject in practice to too much precipitancy, but the ground work of that constitution was good. The present constitution appears to me to be clogged with inconsistencies of a hazardous tendency, as a supposed remedy against a precipitancy that might not happen. Investing any individual, by whatever name or official title he may be called, with a negative over the formation of the laws, is copied from the English government, without ever perceiving the inconsistency and absurdity of it, when applied to the representative system, or understanding the origin of it in England.
It is from [an] assumed right, derived from conquest, and not from any constitutional right by compact, that kings of England hold a negative over the formation of the laws; and they hold this for the purpose of preventing any being enacted that might abridge, invade, or in any way affect or diminish what they claim to be their hereditary or family rights and prerogatives, derived originally from the conquest of the country. (2) This is the origin of the king of England’s negative. It is a badge of disgrace which his parliaments are obliged to wear, and to which they are abject enough to submit. But what has this case to do with a legislature chosen by freemen on their own authority, in right of themselves? Or in what manner does a person stiled governor or chief magistrate, resemble a conqueror subjugating a country, as William of Normandy subjugated England, and saying to it you shall have no laws but what I please? The negativing power in a country like America, is of that kind, that a wise man would not choose to be embarrassed with it, and a man fond of using it will be overthrown by it.
This negativing power in the hands of an individual ought to be constitutionally abolished. It is a dangerous power. There is no prescribing rules for the use of it. It is discretionary and arbitrary; and the will and temper of the person at any time possessing it, is its only rule.
The complaint respecting the senate is the length of its duration, being four years. The sage Franklin has said, “Where annual election ends tyranny begins:” and no man was a better judge of human nature than Franklin, nor has any man in our time exceeded him in the principles of honor and honesty.
When a man ceases to be accountable to those who elected him, and with whose public affairs he is entrusted, he ceases to be their representative, and is put in a condition of being their despot. He becomes the representative of nobody but himself. “I am elected, says he, for four years; you cannot turn me out, neither am I responsible to you in the mean time. All that you have to do with me is to pay me.” — The conduct of the Pennsylvania Senate in 1800, respecting the choice of electors for the presidency of the United States, shews the impropriety and danger of such an establishment.
The senate is an imitation of what is called the house of lords in England, and which Chesterfield, who was a member of it, and therefore knew it, calls it “the hospital of incurables.” The senate in Pennsylvania is not quite an hospital of incurables, but it took almost four years to bring it to a state of convalescence.
The Pennsylvania convention of 1776 copied nothing from the English government. It formed a constitution on the basis of honesty. The defect, as I have already said of that constitution, was the precipitancy to which the legislatures might be subject in enacting laws. All the members of that legislature established by the constitution, sat in one chamber and debated in one body, and thus subjected them to precipitancy. But this precipitancy was provided against, but not effectually. The constitution ordered that the laws, before being finally enacted, should be published for public consideration. But as no given time was fixed for that consideration, nor any means for collecting its effect, nor were there then any public news papers in the state but what were printed in Philadelphia, the provision did not reach the intention of it, and thus a good and wise intention sank into mere form, which is generally the case when the means are not adequate to the end.
The constitution of ’76 was conformable to the Declaration of Independence and the declaration of rights, which the present constitution is not; for it makes artificial distinctions among men in the right of suffrage, which the principles of equity know nothing of; neither is it consistent with sound policy. We every day see the rich becoming poor and those who were poor before becoming rich. Riches, therefore, having no stability, cannot and ought not to be made a criterion of rights. Man is man in every condition of life, and the varieties of fortune and misfortune are open to all.
Had the number of representatives in the legislature, established by that constitution, been encreased, and instead of their sitting together in one chamber and debating and voting all at one time, to have divided by lot into two equal parts and sat in separate chambers, the advantage would have been, that one half by not being entangled in the first debate, nor having committed itself by voting, would be silently possessed of the arguments, for and against, of the former part and be in a calm condition to review the whole. And instead of one chamber, or one house, or by whatever name they may be called, negativing the vote of the other, which is now the case, and which admits of inconsistencies even to absurdities, to have added the votes of both chambers together, and the majority of the whole to be the final decision. There would be reason in this, but there is none in the present mode.
The fundamental principle in representative government, is, that the majority governs; and as it will be always happening that a man may be in the minority on one question, and in the majority on another, he obeys by the same principle that he rules. But when there are two houses of unequal numbers, and the smaller number negativing the greater, it is the minority that governs which is contrary to the principle
While Royalty is harmful from its very nature, hereditary Royalty is, in addition, absurd and disgusting. Just think of it! Yonder is a man who claims that he has a hereditary right to rule me! Where did he get it? From his ancestors, he says, and from mine. But how could they give him a right they did not possess? No man has power over posterity. I can no more be the slave of those who went before me than I can of those who now exist. If we
returned to life, we could not rob ourselves of the rights acquired in a second existence; still less could we rob posterity of their rights.
A hereditary crown! A throne to be handed over to a successor! Why, it is to treat our posterity as a herd of cattle who are entirely destitute of either rights or will. No more infamous and indecent illusion ever disgraced humanity than that the people is a herd which may be transmitted from one king to another.
[These are all from Paine’s “TO THE CITIZENS OF PENNSYLVANIA ON THE PROPOSAL FOR CALLING A CONVENTION–1805]
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The supreme operative body should act without division.
2. It should not act in so many as two bodies: even though
the members were located by the best compounded set of locators
-i.e. Electors,-much less in more than two.
2. Much less should it be composed of two or more independently-
operating bodies-each taking cognizance of the same
measure after the other.
3. Still less should enter into the composition of it a body of
men located by a Chief Functionary, or set of Chief Functionaries,
established for the purpose, sitting for a long term of years
or for life.
The will of the people is determined by the interest of the
people: so far as that interest is understood by them.
It not being understood, is not to be presumed: for if not by
them by whom else is it understood?
The greater the number is of its seats of authority, through
which a useful measure must pass before execution and effect can
be given to it, the greater the number of stages at which sinister
interest may apply itself to encounter and obstruct it.
[7] Q. What can have been the cause or causes why a second
chamber where the members are located on the same principle
has been added to the first.
Answers-I. The supposed probability or fear of precipitation,
and the hope of obviating it. 2. The principle of imitationauthority-
begotten prejudice.
Q. The evil of precipitation (its degree of probability taken
into account) does it seem to be of such a magnitude as to warrant
the application of such an institution in the character of a
preventive remedy.
A. Hardly. For 1. the evil of additional delay is an evil that
applies itself to every measure-2. So does the evil of complication-
in every individual case the existence of every one of
them is certain.
As to the good, the only case that affords an inlet to it, is that
in which a pernicious measure, which would have passed had
there been but one Chamber for it to pass through is prevented
from passing by being thrown out by the Second Chamber. To
be on sufficient grounds assured that in this case preponderant
good has been the result of the operation-if this instrument has
had preponderant good for its results, these two distinguishable
points must be established-viz 1. that the law or measure if
carried into effect would have been pernicious-2. that had there
been no second chamber it would not have been thrown· out in
the first. For, as to this latter point, a state of things not incapable of
being realized is that, in being assured that the measure
will not pass the second· Chamber, many of those who would
otherwise have opposed it in the First Chamber, are by one consideration
or other kept back from meddling with it.
In proportion as the result of the division or rather multiplication
of barriers that must be passed through ere a measure
reaches the end of its career, is favourable to factitious delay, factitious
delay is resorted to in preference to argument. But it is in
the nature of argument, on the supposition that the end pursued is
the universal interest and not particular interest : that the farther
from being preponderantly beneficial a measure is-the more
likely it is to be put aside by argument; the more highly beneficial,
the less likely to ~ thus put aside: whereas factitious delay contributes
according to the length of it-c:ontributes in the same
proportion in the one as in the other, to put aside the best and the
worst.
If, in consequence of precipitation, a measure the effect of
which is upon the whole preponderantly evil receives the sanction
of law, the evil is not incapable of being removed by a subsequent
law: whereas whatever is the sum of the delays produced in all
measures without distinction by the dilatory system remains for
ever uncompensated.
True it is that where by reason of precipitation, a measure
productive of a balance on the side of evil receives the sanction
of law--so long as the law remains unrepealed, the evil continues
on the increase. But, by the supposition, being, as it is, indebted
for its existence to precipitation and nothing else-being such that
had it not been for the precipitation, it would not have passed but
would have been rejected-rejected before the evil had begun to
show itself--still more surely will the system be rid of it, and now
that the correctness of the general anticipation judgment has been
demonstrated by experience.
For the formation of a well-grounded and well matured
judgment in relation to this subject, take the body of experience
already obtained in the Congress of the Anglo-American U. S.
Take any year or number of years : take an account of the whole
number of laws passed & rejected within that time, and say
1. Total number of laws introduced into the Senate from the
House of Representatives so many-
2. Whereof passed, so many
3. Rejected, so many
Then take in hand the number of those rejected & say
4. Introduced & passed in a subsequent Session, so manyOf
these, unless some special & adequate reason to the contrary,
it ought to be assumed that they have upon the whole
been & continue to be of a beneficial natures.
Of those rejected, pernicious, upon the whole, upon a present
view, if any, so many-
6. Of those rejected, pernicious, as above, but which had it
not been for the existence of the Senate, would it is now
supposed have been rejected by the Chamber of Representatives,
so many-
7. Of those rejected, deemed now upon a maturer view of the
Subject, beneficial upon the whole, so many.
Such is the plan recommended to each individual for the formation
of his own particular opinion.
Supposing the balance, in this account of aptitude, of good &
evil in all other shapes to hang exactly even, the consideration of
expense will suffice to turn it, & the scale with the Second Chamber
in it will kick the beam.
[These are all from Bentham’s ANTI-SENATICA of 1830]
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