The Relation of Rights to the Real :: Ontology Bentham Papers

The Relation of Rights to the Real This paper approaches Bentham's ontology of rights from a viewpoint influenced by American philosophical pragmatism. I examine how rights are conceived and discussed in relation to the real. Jeremy Bentham maintained that all rights are "fictitious entities." But, in privileging "political" over moral and natural rights, Bentham implies that legal rights stand in a privileged position over natural rights with regard to the relation of mind to the actual. By reason of its enforceability through sanctions, a legal right for Bentham has a privileged connection to the real. I argue that nonlegal rights can be conceived as bearing a roughly parallel relation to the real in guiding human conduct by suasion rather than sanctions. Their relationship to "something real and observable" is their relation to voluntary conduct through belief. Bentham's ontology dictates a distinct legal and political system. Practically, it leaves the real existence of rights entirely in the hands of government o fficials, and the only choice of humans interested in securing rights lies in their enactment and enforcement in and through a legal regime. In this paper I will approach Bentham's ontology of rights from a viewpoint influenced by American philosophical pragmatism. In order to do so, some introductory remarks are necessary. There is more than one version of "American pragmatism," but I think it safe to say that there are only two that are relevent here; I will call them A and B. Pragmatism A finds its main sources in Peirce, James, Dewey, and Holmes, and tends toward what might roughly be identified as ontological realism. (1) Pragmatism B draws from a somewhat different reading of Dewey and Holmes, not so much from Peirce and James, and has been profoundly influenced by Wittgenstein and the so-called linguistic turn in philosophy; its principal exponent has been Richard Rorty. It tends toward both "antirealism" and, some might say, a contemporary nominalism. For those interested I will provide explanatory references (2) and proceed to pragmatism A, which is the preferred version for me and the approach I find so helpful. Why? Because I find the literature of law and rights filled with distinct and often conflicting ontological assumptions. In a moment I will give an example. But to summarize the paper, we must start with the fact that there are conflicting theories of law and its leading categories, from the most general (e.g. rights) to the more specific (like contract).