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For a man of the Enlightenment, a fiction is a dangerous thing, like old wives’ tales, they produce a distorted, unreal vision, a deformation that usually covers up some spurious interest. In this position, reasons do not deal with rights prior and superior to positive law, to law empirically provable, but what has traditionally come to be called, with notable tautology, “subjective rights”, and that the Anglo-Saxon doctrine, with greater clarity, above all in the light of the matter that concerns us, “legal rights”, or, better still, what we could call, with lexical but not semantic, redundancy, “juridical rights”.It is the mission of the philosopher, even more of the social scientist, to reveal fictions, to tear away the veil of mystery that shrouds reality so that this appears just as it is. From this point of view, we can consider law as the set of rights that the individuals of a country have (greater terminological precision is not necessary at the moment), or we can incline towards the other logical possibility and assert that law is, in reality, a set of duties.
The story I want to tell is that of the attempt made by Bentham to eliminate what today we call human rights from political-legal argumentation, an attempt that responded to weighty reasons, and of John Stuart Mill’s revival of this concept, a revival made with commitment and intellectual daring.
The story is transcendent because it shows us the dangers that legal positivism detected in iusnaturalism, lest these dangers reappear; and, on the other hand, because the theoretical status that Mill gave to human rights still prevails, broadly speaking, in our days, a status that puts them as one the fundaments of the political and social order of the free world.
Thirdly, there are reasons that result from the analytical method chosen by Bentham.
An expression of the most genuine Enlightenment attitude, the analytical method demands that any reality is broken down into its simplest units, into its elements, and it cannot be divided further.
The metaphysical either does not exist, or we cannot perceive it, which comes to the same thing.
Natural rights are “nonsense upon stilts”, as Bentham would call them, or, as the phrase has been translated into Spanish, in a version more in accord with our political-religious liturgy, “nonsense under the pallium”, absurdities that have been put into an eminent position for the people to admire, and to be amazed by them, without being able to distinguish their quality, real or phantasmagorical.
Cette approche historique est d’autant plus pertinente qu’elle montre de façon concentrée les étapes importantes de l’évolution de la pensée juridique à propos de cette question, et du concept même de droit dans la Modernité.
Le point de départ se situe dans la critique des droits naturels qu’effectuent Jeremy Bentham et James Mill.
In 1816, immediately after Waterloo and at the beginning of the Bourbon restoration in France, Jeremy Bentham signed the death warrant of human rights.
In fact, on that date the originator of legal positivism (and its most coherent and enthusiastic exponent) published for the first time, in French and in an edition due to Étienne Dumont of Geneva, his condemnation of the declaration of rights of the French Revolution.