Identification versus anonymity in e-government BENTHAM ON HUMAN RIGHTS AND LIBERTY

Bentham on human rights and liberty

Jeremy Bentham (1748-1832) is well-known for his refutation of the idea of human rights, such as those used in the French Declaration of rights. Natural rights, he writes, are ‘simple nonsense’ and ‘natural and imprescriptible rights’ were ‘nonsense upon stilts’. This will be recalled in Theory of Legislation, a work that is central in this chapter.

In this book, Bentham holds that natural laws are the product of the imagination of those that invoke them and anyone may lay down what he pleases (Principles of Legislation, Ch. XIII). Liberty can be secured only where ‘real’ rights are established through a legal system. To work out such a system, Bentham proposes to use the utility principle rather than ‘natural rights’ to resolve conflicts.

‘The utility or interest of an individual’ are the basic ingredients of Bentham’s societal calculus. ‘The science of legislation consists in determining what makes for the good of the particular community whose interests are stake, while its art consists in contriving some means of realization’ (Principles of Legislation, Ch. I).

According to Bentham, the ‘common interest’ to be furthered by his schemes for reform ‘corresponds to the immediately subordinate right and proper ends of government’. These ends or objects which the legislator should seek to attain are security, subsistence, abundance and equality, the first being the most important (Principles of the Civil Code, Part I, Ch. 2). Other ‘objects’, such as equality, justice, and liberty, command respect and ought to enter into the views of the legislator, but they must be subordinate to the happiness and security of the community (Principles of Legislation, Ch. IV).

‘Some persons’, Bentham says, ‘may be surprised to find that ‘Liberty’ is not ranked among the principal objects of the law’, but ‘we must regard it as a branch of “Security” to avoid confusion’. ‘Personal liberty is security against a certain class of wrongs which affects the person; while what is called political liberty is also a branch of security -security against injustice at the hands of the persons entrusted with government’ (Principles of the Civil Code, Part I, Ch. 2). Liberty or individual liberty are not part of Bentham’s priorities.  Liberty is a ‘chimera’ in the world of politics, a passion building up to fanaticism, that blinds men at a point where they do not trouble ‘whether a state is well administered, whether its laws afford protection to persons and property, whether, in a word, its people are happy’ (Principles of Legislation, Ch. IV).

In these paragraphs, Bentham comes very close to Hobbes who considered liberty to halt once the social contract was signed. Both discuss civil society wherein the idea of liberty is absent or entirely subjected to the general interest or happiness. Where there is law, there is no freedom, Bentham assumes, and where there is freedom, there can always come law, since freedom is one of the goals that can be subjected to the happiness and security of the community. More so than Burke, merely opposed to ‘abstract freedom’, Bentham is the first post revolutionary thinker to make liberty completely disappear from the legal domain. What remains of it should be legally considered as a branch of ‘Security’ to avoid confusion.

The sum total of the Benthamite liberty is very different from the idea of complex freedom. In his conception of liberty there is only the question of liberty understood as a privacy right, viz. as a shield against intrusion and interference by other people or by holders of authority. Liberty understood as the ideal of the free or autonomous person, giving full weight to the individual’s willingness and tendency for self-development, is left out of Bentham’s legal picture. This approach to liberty necessitates two or three remarks. 

Firstly, it is important to recognize the influence of Montesquieu’s and Beccaria’s work, with which Bentham was familiar. Bentham’s use of their narrow liberty concept can help to explain the poor treatment of liberty in most western nineteenth century constitutions. Affirming liberty was not felt to be a necessity anymore. The fathers of the Belgian 1831 Constitution considered the legal job concerning liberty done, by drafting an article protecting the citizen against unlawful arrest.

Secondly, Bentham’s ‘proper ends of government’ do not correspond wholly with the ‘ends’ of the social contract enumerated in the French and American basic constitutional documents. The expressions subsistence and abundance are absent and security, Bentham’s primary end, is equally lacking. To ‘effect’ ‘safety of the people’ is clearly one of the tasks of government in the American Declaration, but this has to be done while ‘securing the said unalienable rights’. The French Déclaration is even less ambiguous. There is no other ‘end’ of government than this of preserving the said natural and inalienable rights. ‘Security’ is clearly not on the list and it cannot be equated with the notion of sûreté used in article 2 of the French Déclaration. If the said article includes ‘sûreté’ in the list of natural rights, the term was not to be given the actual meaning of the term ‘security’. Rather, the National Assembly meant by it a guarantee against arbitrary state interventions in the life of the citizen. The intention was Beccarian, viz. to provide for protection against the so-called lettres de cachet, not to target delinquency (Bonnemaison, 1987). Hence, Article 2 is essentially saying no more than that the citizen should be protected against actions of the government. Even when interpreted very broadly, the said Article can under no circumstances be read as stating that security is a primary goal of government, implying far going subjection of all individual rights and implying the cooperation of the citizen to fulfil this task. Bentham, on the contrary, seems to assume that without government there will be no security and hence no individual rights.

Thirdly, and more technically, one should understand Bentham’s approach to liberty by taking into account his narrow theory of rights. We already discussed his famous attack upon natural and inprescriptible rights (supra). Correlative to this is his adherence to what is later termed ‘the benefit theory of rights’ (Freeden, 1987). A right is the legal expectation of the discharge of a legal duty, intended to benefit the right-bearer. A legislator can only distribute rights or obligations, Bentham holds, and there cannot be question of a right, without there being question of a duty imposed on somebody else. The second part of the proposition can be questioned. In our opinion, nothing stands in the way of the recognition of legal goods that do not impose duties on particular persons.