|Preamble section 1:|
|Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,|
Legal positivism is a theory about the nature of law, commonly thought to be characterized by two major tenets: first, that there is no necessary connection between law and morality; and second, that legal validity is determined ultimately by reference to certain basic social facts, e.g., the command of the sovereign (John Austin) the Grundnorm (Hans Kelsen) or the rule of recognition (Hart). These different descriptions of the basic law-determining facts lead to different claims about the normative character of law, with classical positivists (e.g. John Austin) insisting that law is essentially coercive, and modern positivists (e.g. Hans Kelsen) maintaining that it is normative.
The traditional opponent of the legal positivist is the natural law theorist, who holds that no sharp distinction can be drawn between law and morality, thus challenging positivism's first tenet. The greatest opponent of natural rights was the 19th century positivist philosopher Jeremy Bentham. Bentham considered "natural rights [to be] simple nonsense" and "natural and imprescriptable rights, rhetorical nonsense, - nonsense upon stilts. The nonsense of natural rights according to Bentham had to do, not with the formation of the substantive, but with the severance of a juridical notion from the context of positive law. According to Jeremy Waldron, the triumph of Benthamite jurisprudence was the elucidation of terms like right and 'duty' in the context of positive law. As they stood, 'right' and 'duty' were fictitious terms for Bentham, whereas terms like 'law,' 'sanction' and 'sovereign' were not. The former did not stand for anything tangible, but the latter picked out identifiable, even if complex, things that we could hear, see and experience - things like commands, commanders and the deliberate infliction of pain. Bentham viewed talk of natural rights as devoid of meaning. But, if propositions about right and duty could somehow be translated into propositions about laws and sanction, they could be given a sense.
To talk of a duty, Bentham suggested, was to talk of an action required by a sovereign on pain of some sanction. Talk of rights could then be reduced to sovereigns and sanctions indirectly via that analysis of duty: to have a right is to be the beneficiary of a duty - that is for it to be the case that one benefits from another's performance of an action required of her by a sovereign on pain of a sanction. The positivist implications of his analysis were clear. If sentences containing 'duty' and 'right' depended for their sense on the sense of other sentences about sovereigns, commands and sanction, talk of natural duties and natural rights would reduce to nonsense unless one were willing to refer to the natural law commands of a divine sovereign. But Bentham noted wryly that the revolutionaries of the Enlightenment were very reluctant to make that move:
"The natural rights that we hear so much of are of all things the furthest from being divine rights. For in no mouths are they so frequent nor so much insisted upon as in the mouths of those by whom the existence of a divine law and of a divine lawgiver are equally denied."
Take away the lawgiver, and you take away the law; the right and duty are left high and dry, devoid of any sense. Right and law are correlative terms: as much so as son and father. A natural right is a son that never had a father. (Waldron, Nonsense upon Stilts, 34-6).
Peter Danchin, Columbia University