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GEORGIA LAW REVIEW - StephanKinsella.com

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<strong>GEORGIA</strong> <strong>LAW</strong> <strong>REVIEW</strong><br />

PERSPECTIVES ON RIGHTS<br />

WHAT IS A RIGHT?<br />

Antony Flew *<br />

Perhaps it is not exactly a matter of "a decent respect to the<br />

opinions of mankind." Nevertheless, just as it would be unculti-<br />

vated and indecorous for a symposium on crime and punishment to<br />

make no mention of the eponymous masterpiece of Fedor Dostoev-<br />

ski, so we here are bound to begin by taking not of those most<br />

famous words of Jeremy Bentham. He, as we all remember, dis-<br />

missed our present subject with truly Johnsonian finality. It is no<br />

more than one of the Anarchical Fallacies. Right is the child of law;<br />

from real laws <strong>com</strong>e real rights, but from imaginary law, from "laws<br />

of nature," <strong>com</strong>e imaginary rights. "Natural rights is simple non-<br />

sense: natural and imprescriptible rights, rhetorical nonsense, -<br />

nonsense upon stilts."'<br />

We here have all undertaken to investigate precisely and, indeed,<br />

only what Bentham rejected. Our concern, or our direct concern, is<br />

not with those rights which are in fact realized or recognized, en-<br />

dorsed or created, by various systems of positive law. It is with<br />

rights inasmuch as and insofar as these either do serve or could serve<br />

as a basis for criticizing types or tokens of individual conduct, and<br />

general principles or particular prescriptions of positive law. Such<br />

criticism must result in <strong>com</strong>mending whatever respects, and con-<br />

demning whatever violates, any (moral as opposed to legal) rights<br />

which - the Great Jeremy notwithstanding - there are.<br />

1. The Objectivity of Rights: That last two-word phrase is, unequi-<br />

- - - - - --<br />

* Professor of Philosophy, University of Reading, England. M.A., Oxford University;<br />

D.Litt., Keele University.<br />

' 2 J. BENTHAM, THE WORKS OF JEREMY BENTHAM 501 (J. Bowring ed. 1843).

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