The Relation of Rights to the Real:
Frederic R. Kellogg
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). These may be seen under pragmatism A as implicating alternative theories of "what there is" or "what law is". Conflicting theories of law have the effect that Quine (albeit in another context from law) describes as referring to distinctive sets of existents (1980, 8-9), in some cases even to their own "hierarchies of being." These are proposed for "what [we are to believe] there is"; thereupon they affect both analysis and conduct. Thus, as Quine says, "the sort of ontology we adopt may be consequential" (15). (3)
Put differently, the various alternative theoretical positions from specific to general are driven, consciously or not, by conceptual assumptions that are ontological, and in this sense there are alternative ontologies, plural. Now then, pragmatism A is an overall view, an ontological perspective so is it an ontology, singular? No; it does not seek to adjudicate among the alternative ontologies, in search of the essence. Rather, it is concerned with the "interests and purposes" that may be implicated in theoretical debate, and in promoting the best approach to reconciling the interests and carrying out the purposes. Enough of pragmatism A for now; on to the example.
If I believe the essence of a legal "right" is in the nature of a claim, and my friend Gibson thinks that it consists in interests, our difference of opinion could lead to at least two distinct inquiries. We could take the matter up as one having a better answer on the basis of all the evidence currently available and already in existence, or as having an answer better for the sum of its consequences now and in the future. Following the first path I might, for example, argue that the claim theory better explains how rights are discussed, analyzed, and applied: there is a fact of the matter. The second would abandon this approach in favor of immediate and future concerns, as if humans have a choice as to which model, claim or interest, would be superior in use; Gibson might argue that his interest theory is better on purely practical grounds.
Although it is unlikely that these two modes of argument would not in practice be mixed, (4) there are two roughly distinguishable images of rights implicit in them: mine is a relatively fixed image, Gibson's is a plastic one. But my notion of fixity may derive from various sources, and hence vary in degree. It may range from my sense of the stability of current usage and belief, to a view of political or even biological necessity. If the former, it could be somewhat flexible, and might leave more room for Gibson's arguments. Meanwhile, Gibson's image might vary depending on his own sense of plasticity, which could be limited to the effects of legal legislation (such as whether rights can be adjusted by law to operate more like interests than claims), or be so extensive that (for Gibson) the general concept of 'rights' is itself optional, and can be moulded at will or dispensed with altogether.
The matter I try to raise here concerns two things: not just the degree to which alternative "ontologies" of law and rights are implicit within theoretical debate, but also the question whether conceptualization itself may exercise some control over the nature of law and rights that theoretical debate itself seeks to understand. Do such theories imply what Quine calls an "ontological commitment" (1980, 8), in the sense that they commit the theorist to one or more of multiple possible "existences" of law and rights with distinct and consequential differences? If so, then were one theory eventually to prevail, gaining overwhelming consensus such that scholars, lawyers, judges, and legislators and eventually perhaps even the general public thereupon think and act on its assumptions, are law and rights thereby "discovered" or "transformed"?
Before addressing these general concerns, it might be helpful to clarify them somewhat further. It was proposed that Gibson's plastic image might be directed at the general as well as the specific nature of rights. His plasticity might range from one confined to the limited effects on rights of legislation; but Gibson might consider constitution-drafting: how much can the general nature of rights be affected by that? From there he might leap to nonlegal but nonetheless precedent-setting epochal pronouncements like the Declaration of Independence: what aspects of rights might these control? And from here it seems plausible for Gibson to consider major works of analysis, like the writings of John Locke, Jeremy Bentham, and John Austin: how might these interact with the subsequent work of judges, lawyers, scholars, and public discussion, to make changes and even basic changes in the nature of the general concept of rights?
Gibson might do well to refer to the opening remarks of H.L.A. Hart's essay "Bentham on Legal Rights," in which Hart notes that Bentham saw himself as "fixing" the meaning of the term "right," in the sense of "giving" rather than "teaching" it (1982, 164). But Bentham nevertheless took some traits as fixed, as Hart has duly noted. Some of these Benthamic traits are more basic than others, in the sense I want to suggest.
With a fine attention to the ambiguities involved, Hart delineates the three kinds of legal right that Bentham distinguished using the organizing idea of legally respected benefit, and suggests advantages of seeing them as forms of legally respected choice (188-90). But he notes that the two theories, benefit and choice, are better suited as accounts of "the rights of citizen against citizen; that is of rights under the 'ordinary' law." They "are not sufficient to provide an analysis of ... constitutionally guaranteed individual rights," which "require for their analysis the notion of an immunity" (190).
Hart's comment raises the distinction between "ordinary" and "fundamental" rights as they relate to proposed conceptual schemes like those of Bentham and Hohfeld. He notes that "Bentham, unlike Hohfeld, did not isolate this [immunity] notion in distinguishing different kinds of meanings of legal right . . . because . . . he viewed with extreme suspicion any legal arrangements which would prevent the legislature enacting whatever measures appeared from time to time to be required by the dictates of general utility" (190). The suggestion here, of a relationship between the scope of legislative authority and the putative general nature of rights, might be taken as a symptom of the effect I wish to explore: how different consequences may attach and bend to the weight of alternative ontologies.
Granted, the attributes mentioned in the foregoing paragraph benefit, choice, immunity, and the distinction between ordinary and fundamental legal rights are "basic" in any lexicon; but I would like to pass them momentarily to address what might be an even more basic conceptual issue. At the root of other aspects of Bentham's theory is his characterization of all rights as fictions, a notion that is intimately connected with the comprehensive ontology elucidated by Ogden in his edited selection of Bentham's writings, Bentham's Theory of Fictions (1959). Can we apply the Gibsonian view to this aspect, the issue of whether they are real or not, and in what regard? (5)
Another way of addressing this is to note that any inquiry into the ontology of law should be aware that ontological conversation, in the period since the pre-Socratics, has usually been engaged in somewhat more than the three-word "What there is": the issue has relentlessly turned into the four-word "What there really is." I will calumnize this as ontological discrimination, and, getting back now to pragmatism A, make the claim that that perspective is, at least in my application of it, putatively nondiscriminatory. That is, I will need to revise slightly my earlier description of pragmatism A as tending toward ontological realism, (6) and say that it is, or should be, capable of leaving open the issue of what is more real, since an extreme Gibsonian might say that this too is still up for grabs and maybe so also our use of the label "real" itself, or what we mean by it.
I am now ready to address Bentham's ontology of rights. In his theory of fictions (7) Bentham discusses ontology in general, and treats rights as a special case of ontological fiction. He defines an "entity" as "a denomination in the import of which every subject matter of discourse, for the designation of which the grammatical part of speech called a noun-substantive is employed may be comprised. Entities may be distinguished into perceptible and inferential. An entity, whether perceptible or inferential, is either real or fictitious." (Ogden, ed., 1959:7) Rights fall, along with many other entities referred to as "noun-substantives," as fictions. (118) A fictitious entity is "an entity to which, though by the grammatical form of the discourse employed in speaking of it, existence be ascribed, yet in truth and reality existence is not meant to be ascribed." (12) Bentham gives a determining role to linguistic intention. His position leads him to the conclusion that "The word right is the name of a fictitious entity; one of those objects the existence of which is feigned for the purpose of human discourse by a fiction so necessary that without it human discourse could not be carried on." (118) A right is fictitious for Bentham primarily by reason of the fact that usage in language is not intended to make it real. (8) The principal evidence of the fictive quality of rights lies in the inappropriate use of physical expressions and analogies in speaking of them; this would apply equally to political and nonpolitical rights. (9) But Bentham's argument takes a further turn which, despite its considerable influence on subsequent political and legal theory, seems inconsistent with the primacy he gives to discursive intention:
The only one of the three cases in which the word right has any determinate and intelligible meaning is that in which it has the adjunct political attached to it: in this case, when a man is said to have a right (mentioning it), the existence of a certain matter of fact is asserted; namely, of a disposition, on the part of those by whom the powers of government are exercised, to cause him to possess, and so far as depends upon them to have the faculty of enjoying, the benefit to which he has a right. (119)
Political rights are the only ones that are "determinate and intelligible," by reason of their reference to the "existence of a certain matter of fact" the disposition of government officials to enforce them. From this it is evident that Bentham's "political" rights are those that have been actually enacted into law. Political, that is legal, rights may still be fictions, but by reason of their relation to "something real and observable", (10) Bentham maintains them to be intelligible fictions. What is this relation to the "real and observable," and how does it differ from any putative relation to reality of nonlegal rights? (11)
A further problem is encountered in Bentham's subsequent dismissal of both the intelligibility and beneficiality of natural rights:
Now, in the case of alleged natural rights, no such matter of fact has place nor any matter of fact other than what would have place supposing no such natural right to have place. In this case, no functionaries have place; or if they have, no such disposition on their part, as above, has place: for if it have, it is the case of a political right, and not of a merely natural right. A man is never the better for having such natural right; admit that he has it, his condition is not in any respect different from what it would be if he had it not. (119)
An objection to this is that nonlegal rights, whether natural or moral, might be conceived and discussed in a fashion that is both intelligible and beneficial, arguably no less so than legal rights. Efforts to make the concept of natural rights intelligible have had a strong resurgence. (12) And even for those who disagree with all arguments for natural rights, but find it appropriate to speak of rights in a more general sense (viz. "moral" rights, by which Bentham refers to all rights other than legal and natural), it might be that such discourse, should it develop only moderate intelligibility and consensus, could be equally or more beneficial than that concerning legal rights, by reason of its meliorative effect on civil society without the need of official interpretation and enforcement. Nonlegal rights might thus be conceived as bearing a roughly parallel relation to the real in guiding human conduct by suasion rather than sanctions as legal rights. Their relation to "something real and observable" would be their relation to voluntary conduct through belief. (13)
However, for their sanctioning through belief to be effective, discursive intention would have to entertain nonlegal rights as ontologically equal to political rights; there would have to be a prevalent belief that they have ontological parity with legal rights, equivalent status in relation to the real. Bentham does not grant them such status. Instead he inveighs against argument from an "imaginary" natural right. (14) In so doing Bentham implies that legal rights have a claim greater than mere intelligibility; they stand in a privileged position over natural right with regard to the relation of mind to the actual, or to (in Bentham's terminology) the "supposed matter of fact." By reason of its enforceability through sanctions, a legal right for Bentham has a privileged connection to the real. (15)
Bentham's clear implication, in the passage just cited, is that nonlegal rights have no legitimate place in human discourse. There appears no room for serious consideration of the possible real relation or appropriate role for either natural or moral rights; they share the fictive character of all rights, but have no relation to anything real, and reference to them has no effect other than to cause confusion. The only rights worth mentioning are those that correspond to "the existence of a certain matter of fact" the disposition of government officials to enforce them. All contexts, save perhaps the historical, in which the two are compared or debated Bentham would reject forever. While Bentham may have had good reasons for developing his placement of rights within the theory of fictions, (16) he has nevertheless bequeathed an ontology that dictates a distinct legal and political system. Practically, it leaves the real existence of rights entirely in the hands of government officials, and the only choice of humans interested in securing rights lies in their enactment and enforcement in and through a legal regime.
(1) See, e.g., Sleeper (1986), Boisvert (1988). It is well known that there are several versions of ontological realism; but to complicate matters it might be said that there is more than one version implicit within the writings of the various adherents to "pragmatism A". Rather than locate the precise one intended here, I will touch on the issue again on p. 6.
(2) My sources for the version of pragmatic ontology that is described as pragmatism A are (other than my own reading of the writings of Oliver Wendell Holmes, Jr., Charles S. Peirce, William James, and John Dewey) Boisvert (1988) and Sleeper (1986). The principal proponent of pragmatism B is Richard Rorty; see e.g. Rorty (1979, 1982, 1991). Further elucidation of this distinction may be found in Kellogg, "Who Owns Pragmatism" (1992).
(3) It may be objected that Quine is referring here mainly to logical, as opposed to practical, consequences, but, especially in the case of legal categories, it is the point of this paper that there is no clear line between the two.
(4) Indeed, it is my sense that these two modes of argument are usually mixed, and that one of the problems that seems to underlie much legal theory is the failure to distinguish between them.
(5) This is a reference to a problem that still remains even after Ockham's resolution of the mediaeval controversy over the status of univocal universals. Bentham's "fiction" characterization would seem to come from Ockham's conclusion that, once the universal is disqualified from "reality outside the mind," the only choices are (1) fictum (fiction), Ockham's earlier theory, and (2) intellectio (mere act of the mind), his later conclusion. If rights are fictions, the question arises as to what real things such fictions relate to, and what is that relation.
(6) I am aware that this implicates an approach to the question of realism that may not be considered entirely consistent with prevalent accounts of the realism/antirealism controversy.
(7) Bentham's theory of fictions is found throughout his works; references herein are to Ogden (1959), in which the relevant writings are compiled and edited.
(8) "A man is said to have it, to hold it, to possess it, to acquire it, to lose it. It is thus spoken of as if it were a portion of matter such as a man may take into his hand, keep for a time and let it go again. According to a phrase more common in law than in ordinary language, a man is even spoken of as being invested with it. Vestment is clothing: invested with it makes it an article of clothing, and is as much as to say 'is clothed with it.'
"To the substantive word are frequently prefixed, as adjuncts and attributives, not only the word political, but the word natural and the word moral; and thus rights are distinguished into natural, moral, and political.
"From this mode of speech, much confusion of ideas has been the result."(Ogden, 1959, 118-19)
(9) See Ogden (1959), xviii-xix.
(10) Ogden (1959), xlvi.
(11) Modern commentators might reject Bentham's application of an intelligibility privilege to political rights. If all rights are fictions, what is necessarily more intelligible about treating certain of them as prospectively enforceable by sanctions? Most legal rights are not, in fact, codified as rights per se, but as specific and often conditional mandates. See Ogden (1959), xxiii-xxv, citing Bentham on the relation of legal rules to duties and rights. Constitutional and "fundamental" rights, moreover, are broad in scope and tend to be expressed in the "absolute to their logical extreme." See O.W. Holmes: "All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached." Hudson Water Co. v. McCarter, 209 U.S. 349, 355 (1908). Could not the belief proposed by Bentham, that entails that government officials may validly engage in enforcing fictive entities, lead (especially in the case of broadly stated rights) to arbitrary or capricious official conduct? While Bentham did not greatly concern himself with the potential abuses of central government and bureaucracy, this problem has become increasingly plausible with sweeping constitutional and fundamental rights establishing a controversial presence in legal regimes. See, e.g., Bickel (1962), Ely (1980).
(12) See, e.g., Finnis (1980).
(13) It should be noted that generalized belief is not the only manner in which conduct is made to conform with nonpolitical rights. Sanctioning of nonpolitical rights may range from open approval and disapproval to the use of strikes and boycotts.
(14) "This confusion [see previous citations] has for its source the heat of argument. In the case of a political right, when the existence of it is admitted on both sides, all dispute ceases. But when so it is that a man has been contending for a political right which he either never has possessed, or having in his possession, is fearful of losing, he will not quietly be beaten out of his claim; but in default of the political right, or as a support to the political right, he asserts he has a natural right. This imaginary natural right is a sort of thread he clings by: in the case in question, his having any efficient political right is a supposed matter of fact, the existence of the contrary of which is but too notorious; and being so, is but too capable of being proved. Beaten out of this ground, he says he has a natural right a right given him by that kind goddess and governess Nature, whose legitimacy who shall dispute? And if he can manage so as to get you to admit the existence of this natural right, he has, under favour of this confusion, the hope of getting you to acknowledge the existence of the correspondent political right, and your assistance in enabling him to possess it." (Ogden 1959, 121)
(15) It is arguable that the potential for confusion in this characteristic debate is greater in adopting Bentham's approach, or at least, that there is no need in principle for the confusion he ascribes. If the imaginary disputants are aware of and carefully distinguish between their reference in argument to natural versus political right, the reference to natural right need not be characterized as a "thread" compared to political right, nor the resort to natural right a cause of confusion or, more aptly, disingenuous resort to a rhetorical ruse. Indeed, thus reconceived the argument might advance by shifting to practical issues of interpretation and enforceability.
(16) See Postema (1986).
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