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

The Relation of Rights to the RealThis paper approaches Benthams ontology of in force(p)s from a viewpoint influenced by American philosophic pragmatism. I examine how rights are conceived and discussed in relation to the existent. Jeremy Bentham maintained that all rights are fictitious entities. But, in privileging political over moral and natural rights, Bentham implies that legal rights project 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. Benthams ontology dictates a distinct legal and political system. Practically, it leaves the real existence of righ ts entirely in the hands of government officials, and the only choice of humans kindle in securing rights lies in their enactment and enforcement in and through a legal regime. In this paper I will approach Benthams 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 and sound to say that there are only two that are relevent here I will call them A and B. Pragmatism A come ups 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 practically 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 restart 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).