Burke's and Bentham's Critiques of 'Rights of Man'

INTRODUCTION

Jeremy Bentham is one of the leading theorists of Anglo-Saxon legal philosophy and developed the principle of utility in the field of law and politics in the hope that it would respond to the reform needs of the period. He argues that not only individuals but also the state should act in accordance with the principle of benefit. Edmund Burke is a traditional conservative. He does not believe in the perfection of the human mind and argues that the existing order is always better than the new and untested order. These two philosophers and revolutionaries also have similar and different points of view about Rights of Men. In this article, I will include both of their views and examine the validity of any of their opinions in modern legal practice.

FRENCH REVOLUTION VIEW

Burke's prominent thoughts and criticisms of the Rights of Man are collected in Reflections on the Revolution in France and ‘ Burke’s comtemporaries on the left were generally enraged by the Reflections on the Revolution France. Their reactions capture what would be the dominant response from liberals and radicals to this day’[1]. In this book he criticizes the devastating consequences of the French revolution. It can be seen as anti-revolutionary because he criticized the French revolution quite brutally and saw it as a betrayal of all humanity. As he tried to make his social analysis through revolutions. He considered the revolutionary spirit that influenced the whole of Europe as the work of an arrogant authority. Burke, confused by the revolution, cannot understand the pursuit of abstract ideas by the French people's revolutionaries and regards this as brutality and terrorism. He thinks that with the revolution, the French made the biggest mistake of their lives. He also says that the revolutions aim to change the course of history and destroy all experience. He thinks that this way, social, traditional and cultural heritage will also disappear. According to him, the ideas of freedom, equality and justice promised by the French revolution will never come true because the content of the ideas is empty and abstract.

Bentham thinks completely different from Burke on this matter. Although, like Burke, he believes in American colonialism, he also believes in the concept of reform. As Burns claimed ‘Even in the 1790’s he never abondened the pursuit of reform, of legal administrative, fiscal and social improvement; but he believed that no useful reforming purpose would be served by major political changes’ [2] This belief also was expressed as the ‘champion of reform’ in the book 'An introduction to rights' by Edmundson. He talks about an evolution of the French declaration. It can be said that the document that set Bentham in motion on certain issues was the French statement. Although he defends the revolution, he also criticizes the French declaration because he thinks it has not fully resolved the issue, even though it is an important step on human rights. It focuses on the change of rights between 1791 and 1795 and compares them. He criticizes that the inalienable rights in the declaration are unstable and he calls this condition as ‘anarchial tendency’. He observes that while in 1791 there were 2 inalienable rights, freedom and equality, three more were added later and property, security, resistence to opression. He says that these rights gradually increased from four to five.

NATURAL RIGHTS VIEW:

Bentham and Burke both oppose natural rights. Bentham rejects natural law theory and tries to replace nature with humans. According to him, the source and measure of rights are human beings and for him knowledge can only be possible through people's experiences. He argues that rights exist only by limiting freedom by the law that created them. Rights existed before state establishment and opposes the claim that they cannot be abolished by the state. ‘When the Declaration states that all men are born free, Bentham responds with amused contempt for this ‘absurd and miserable nonsense’ [3]

Burke also thinks similarly to Bentham and argues that abstract discussions without paying attention to time and the special circumstances created by humans will have no positive results. It is insufficient to talk about an abstract law without considering the experiences, past traditions and special conditions. He defines these as 'basis' and 'orientation rights'. [4] Constitutions cannot be created out of nothing in an abstract way, on the contrary, they must be the production of a continuous, slow and natural development. For him, what is natural does not apply to all humans. It occurs as a result of a long historical development that is natural. So nature is history or historical experience.

OPINIONS ABOUT STATE:

Burke is a traditional conservative. Conservatism can be defined as a political thought that longs for the past, seeks the truth in the past and tries to protect the current situation. He defends the British understanding of freedom, that is, the concrete understanding of freedom, which is a product of the utilitarian philosophy. As David Armitage claimed ‘Burke’s relationship to conceptions of reason of state provides a more precise example of the confusion with such taxanomies’ [5] He criticizes the declaration of human and citizen rights for being meaningless by opposing the abstract understanding of freedom, which is universal and applies to everyone everywhere. He argues that the principles in the declaration are of no value as they address an abstract person. British rights are what mattered to him. The purpose of the British is not to participate in government, but simply to seek good and enforceable laws, an efficient and honest government, and a property right in which the king protects his troops and navy.

Bentham is statist unlike Burke. According to him, the view that rights exist before the state establishment and cannot be abolished by the state is wrong. He says that rights cannot be mentioned where there is no government. As an example, he shows many brutal societies. Looking at many brutal societies, he states that where there is no state, there is no obedience, law and rights, freedom, property and security.

SOCIAL CONTRACT VIEW:

Both oppose the social contract because they find it abstract. Bentham argues that the state is a society that does not naturally develop, and says the origin of the state is not social contract. According to him, there is no evidence that any state was established by contract. He says that the only thing that should come to mind when it comes to social contract is that such a thing never happened. He says there is no record of where the contract was created. In addition, he finds it impossible for people to come out of their natural state to form such a contract because it is not known in the language in which it was written. Since the foundation of the state is only utility, the government is also for the benefit of the people and security and property cannot exist without the state.

RIGHT OF PROPERTY VIEW:

Bentham disagrees with the property right contained in the Declaration of Citizens Rights. For him, he says, property rights exist when the laws that create it restrict freedom, prevent other people from the freedom to trespass on someone's property. He also argues that all rights regarding property rights are powers recognized by positive law. Burke, on the other hand, finds property rights as an abstract idea, just like Bentham, but he also places great emphasis on property rights. As Francis Canavan claimed ‘In economics, Burke believed that private property is the foundation of a just social order and the spur to personal industry and national prosperity.’ [6] He sees property as the reason people relate to each other and create society. Since he argues that the state and church, which are the basic institutions of society, are legitimized by property laws, he thinks that they should comply with these principles when their structure changes. He also says that property owners are qualified to serve in leadership positions because land ownership offers reproductive advantages to the owners of the property. Most importantly, according to him, the close relationship between property and political power. It expects a solid foundation based on landed property for stability in society.

IMPACT ON CONTEMPORARY HUMAN RIGHT’S PRACTICE:

Bentham's contributions to legal reform, both theoretically and practically, and his work to improve positive law served the law of both England and other countries. It enabled Bentham to be shown as an important name in the history of law and ‘Upon this rests Bentham’s reputation as one of the great thinkers in modern philosophy.’[7] Bentham argued that legal taxes and fees should be lifted, serial trials, and the plaintiff, defendant and witness should be present in a case to defend those who cannot pay. He stated that judges should go through a good process of training, experience and practice in terms of the administration of justice. Although these proposals were not accepted in the period he presented, legal taxes were abolished, fees were reduced in parallel with his opinions, and the implementation of justice developed on a basis that the UK's judicial system is proud.

It was one of Bentham's plans to prepare a detailed schema of laws to be applied in all countries in the legal field. Practically ongoing proposal; It was the abolition of religious testimony in many states in the USA, the registration of property and the easing of the anti-usury laws that he criticized in England. In addition, there are innovations in the field of criminal law. For example, he argued that someone who had been convicted of any crime before should have the right to testify, and thus convicts right to testify was granted in England and the USA. In addition, by declaring its opposition to the death penalty, it caused a decrease in the number of crimes punished with the death penalty all over the world.

The application of universal suffrage and secret suffrage are products of Bentham's political reforms. Due to Bentham's ideas, innovations have emerged such that more people can become voters in the UK. More households, tenants, and workers had voting rights. Thus, more individuals have become on part with aristocrats. The ruling and governed inequality in the 18th century also demonstrated democratic progress in the 19th century, creating a democratic principle. Thus, Bentham's ideal of counting everyone as a person, which he put forward in the calculation of social benefit, has come closer.

Burke's, just like Bentham, has been important for the implementation of modern law. His ideas that can be seen as a synthesis of liberalism and conservatism are today spoken as socialist or communist currents. Burke, rather than other classical conservative thinkers, comes to the fore in the second half of the 20th century because liberalism plays an important role in the synthesis of conservatism. Burke is still a thinker whose importance is emphasized and his arguments are consulted rather than a historical thinker. Today, his thoughts are still read and interpreted and the importance of his thoughts is emphasized. It is the subject of many doctoral dissertations, especially in American and British universities. One reason for this interest in Burke is that his predictions about the revolution were largely realized.

CONCLUSION

Burke's and Bentham both have similar views on Men's Rights, as well as different views. But despite all these similarities and differences, it is clear that both of them have been of great importance from past to present. The names of both are still in the academic field and shedding light on the next generations. After examining both their views in depth, it is possible to get more detailed information about human rights theory.

Bibliography:

Amanda Alexander, ‘Bentham, Rights and Humanity: A Fight in Three Rounds, See Also Ibid,p.323’

David Armitage, ‘Edmund Burke and Reason of State’ (2000) Volume 61 Journal of the History of Ideas- University of Pennsylvania pg.618

Edited by Isaac Kramnick, ‘The Portable Edmund Burke’ (Penguin books 1999)

Francis Canavan, ‘The Political Economy of Edmund Burke’ (2010) Volume 7 Religion&Liberty

Frank O’ Gorman, ‘Political Thinkers’, Edmund Burke: His political philosophy (Routledge 2004)

J.H Burns, , Transactions of the Royal Historical Society (Cambridge University Press 1966)

William A.Edmundson, ‘“Mischievous Nonsense?”’, An Introduction to Rights (Second edition, Cambrdige University Press)

[1] Edited by Isaac Kramnick, ‘The Portable Edmund Burke’ (Penguin books 1999).

[2] J.H Burns, , Transactions of the Royal Historical Society (Cambridge University Press 1966).

[3] Amanda Alexander, ‘Bentham, Rights and Humanity: A Fight in Three Rounds, See Also Ibid,p.323’.

[4] William A.Edmundson, ‘“Mischievous Nonsense?”’, An Introduction to Rights (Second edition, Cambrdige University Press).

[5] David Armitage, ‘Edmund Burke and Reason of State’ (2000) Volume 61 Journal of the History of Ideas- University of Pennsylvania pg.618.

[6] Francis Canavan, ‘The Political Economy of Edmund Burke’ (2010) Volume 7 Religion&Liberty.

[7] Frank O’ Gorman, ‘Political Thinkers’, Edmund Burke: His political philosophy (Routledge 2004).