This is something of a development from my first response where I asked was it right to impose western cultural values upon non-western cultures. The idea that I was driving at and may expand upon more in my concluding post is that principles such as freedom of speech are fine, but we also have a right to be offended.
This post is going to take a more radical direction though and ask the question why must we assume the existence of natural rights?

Having re-read the opening post in this string I noticed that apart from once the notion of rights wasn’t really explicitly stated. Rather the concept was inferred with ideas such as freedom of speech, freedom of religious belief and so on. In principle I would agree with these notions but I am concerned (in the philosophical sense) that these principles are based upon unnacceptable assumptions. Namely the assumption that we have inalienable, or universal, or natural rights. The philosopher G.E.Moore described this assumption as a naturalistic fallacy, the error of trying to derive an ‘ought’ statement from an ‘is’ statement where there is no ‘ought’ premise.

A few philosophers have touched upon this problem with regards to natural rights, but perhaps none so vociferously as the Utilitarian thinker Jeremy Bentham.

Bentham wrote on the matter in his ‘Critique of the doctrine of Inalienable, Natural rights.’ http://www.ditext.com/bentham/bentham.html

This was written as a response to the written constitutions that followed the French and American Revolutions which used such phrases as “We hold these truths to be self-evident” and “The end in view of every political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.”

Now for some criticism! At the basic level we can criticise the notion of rights as being individualistic and thereby inadequate to the cause of society as all basic rights are really competative. The right to freedom of speech can stand opposed to the right not to be slandered against, or lied about. The right to life is in contrast with the right to die (argued for by the pro-euthanasia lobby). We also struggle with ‘right conflicts’ when for example someone is murdered, thus having their right to life contravened by the murderer, what ‘rights’ status does the murderer enjoy? Where capital punishment is applicable the argument is that the murderer has forfeited their right to life, upon whose authority and judgement is this decision reached? We have a right to liberty, yet we also have a right to justice, how can we reconcile the two when we imprison criminals? With regards the U.S. Constitution and its basis in the Declaration of Rights how can we reconcile death by electric shock, gassing, hanging etc, or imprisonment, or Guantanamo Bay with the right not to suffer from cruel or unusual punishments?

All of these which point towards the inconsistency of inalienable and natural rights, are summed up by Bentham in his following critique. If you have a right not to be oppressed, then you have a right to resist oppression, if you have a right to resist oppression then you have a right to resist all law, authority, administration and percieved unpleasantness. If such rights exists then “Submit not to any decree or other act of power, of the justice of which you are not yourself perfectly convinced.” A fine notion one might think, were he not being sarcastic. For he concludes if you are a criminal, or a sociopath brought before the courts for a criminal act, then “If a judge sentences you to be imprisoned or put to death, have a dagger ready, and take a stroke first at the judge.”

The point Bentham is making is, if we assume natural and inalienable rights, from where do these rights originate and from where do they gain such authority?

The declaration of rights found in the U.S. Declaration of Independence ascribes the root of these rights to the ‘Creator’ who endowed them upon humanity. Yet the use of the word Creator is problematic, as it infers theological principles. The truth is there are no theological principles that endow humans with natural or inalienable rights. Nor do religions subscribe to such notions. Christianity for example, echoed by Kant, is concerned more with Duties and Responsibilities than with Rights. “Do Unto Others That Which You Would Have Done Unto Yourself” (ed. My emphasis). So we cannot really ascribe natural rights to a divine source. We have also seen the opposition to a derivation of rights from Natural law in the Naturalistic Fallacy, deriving an ‘ought’ from an ‘is.

So whats the answer to the question, where do natural rights come from and what gives them their authority? Jonathon Wallace points out that the phrase “We hold these truths to be self-evident” is simply a “more elegant version of ‘Because we said so.‘” Jean-Jacques Rousseau also believed that a concept of ‘rights’ had no relevence to a theory or practise of ‘constitutionalism’ and that ‘natural rights’ had no relevence to the proposition of a constitution, legal code and set of ‘rights.’ He proposed instead that society existed because of a ‘social contract’ where rights and responsibilities are derived from a consentual contract between government and people.

This last view is much the same as that held by Bentham, he felt that where ‘rights’ existed they were essentially human made and their authority and relevance came from humans themselves and human governance. Therefore they were neither inalienable nor natural and more importantly they were impermanent, which for a Utilitarian such as he was, was crucial. A right existed as a social phenomena, that served its purpose only so far as it was advantageous to society. Where it was advantageous it becomes enshrined in law, but the moment it ceases to be advantageous it should be abolished. The notion of ‘rights’ he believed served society, not the other way around. Any concept of natural rights he felt, as well as being a naturalistic fallacy was also vague and undistinguishable. And a ‘right’ as he termed it (a socially advantageous legal principle) was devalued the instant it became entangled with other so-called ‘rights’.

So where do we stand today? I think we find ourselves caught in the same fog of indeterminacy that Bentham so thoroughly objected to. On the one hand we commonly agree to a right to life, which better stated is the right not to be unnaturally killed by another. This is upheld by the law in Murder, Manslaughter and various other degrees of unlawful killing statutes. Such statutes, and one could say such a right, exists because it is socially advantageous not to have people randomly or maliciously killing their fellow citizens. But in cases such as abortion, euthanasia, capital punishment, self-defence, certain societies do not maintain the right to life as being socially advantageous, particularly where it conflicts or competes with alternative ‘rights’. The womans ‘right to choose’, the ‘right to death’, the ‘right to protect society/justice’, the ‘right to wage war’. So while we agree that we have the right not to be killed ourselves we tend to prevaricate and become indeterminate when applying those rights elsewhere. The fog of indeterminacy further shows itself when we hold such lofty and general principles that we call ‘natural rights’ and yet resort to laws and legal codes and courts of law to rule upon them and make arbitrary decisions.

The question I ask then is can we assume natural rights? Or are rights, just like social and political values specific to each society? In which case, with regards the argument in defence of offence, once again is it not wrong to impose our concept of natural rights upon others?

Bentham described ‘natural rights’ as “terrorist language“, “More confusion – more nonsense – and the nonsense, as usual, dangerous nonsense.”

In answer to my own question then, I fully support Jeremy Bentham when he declares that notions of ‘natural rights’ are “simple nonsense: natural and imprescriptable rights, rhetorical nonsense, – nonsense upon stilts!”

I commend this argument to the house.