The Paideia Archive: Twentieth World Congress of Philosophy

Volume 33, 1998

Philosophy of Law

Frederic R. Kellogg
Pages 38-45

The Relation of Rights to the Real
A Reconsideration of Bentham’s Ontology

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 officials, and the only choice of humans interested in securing rights lies in their enactment and enforcement in and through a legal regime.