The idea of natural rights was not without critiques thus, the doctrine of natural right came under political as well as philosophical attack. With his Anarchical Fallacies a work developed by Jeremy Bentham (1748-1832), he undertakes a criticism of natural rights; this work was an outright attack on the declaration of rights issued as part of the French revolution. “Nonsense upon Stilts, his response to the 1789 French Declaration of the Rights of Man and the Citizen, is a devastating philosophical and political critique of the concept of natural rights. Indeed, Bentham’s destruction of the natural foundations of rights was so thorough that no one has managed to restore them” Alexander (2003:1). Jeremy Bentham could well be described as one of the major critic of rights. His work was written between 1791 and 1795 but not published until 1816. Bentham's criticism of natural rights proceeds from his understanding of the nature of law.
He defends his critique of rights with the assertion that Rights are created by the law, and law is simply a command of the sovereign. This translates and implies that where the sovereign does not command rights then rights are therefore non-existent. Hence, there is no such thing as natural rights. For law and rights to exist then, there has to be government without which they are non-existent. Rights are also correlative with duties which are determined by the law. The view that there could be rights not based on or which does not rely on sovereign command and which pre-exist the establishment of government is rejected by Bentham.
Accordingly, Bentham states that the term natural right is a perversion of language. It is ambiguous, sentimental and figurative and it has anarchical consequences. The best such a right can do is to tell us what we ought to do; it cannot serve as a legal restriction on what we can or cannot do. This means that even if there is a natural right it has no legal ground and is thus not binding on us. Bentham describes the term natural right as ambiguous because according to him, it suggests that there are general rights (that is, rights without claim over a specific object) making it possible for anyone to lay claim on whatever one chooses. The effect of this claim on such a universal, natural right would be to extinguish the right altogether, since what is every man’s right is no man’s right.
This broad or universal conception of rights also negatively affects the functioning of the legal system. No legal system could function with such a broad conception of rights. Thus, rights or more specifically general rights as enunciated in the French declarations on the rights of man is not a reality and cannot be. Moreover, the notion of natural rights is figurative and properly speaking, there are no rights prior to government. Bentham attributes the assumption of the existence of such rights as natural rights to the social contract theory (which he believes is flawed), in which individuals form a society by contract choosing a government through the alienation of certain of their rights. Such a doctrine according to Bentham is unhistorical and it does not even serve as a useful fiction, to explain the origin of political authority. He disputes this theory by saying that, governments arises by habit or by force and for contracts (and, specifically, some original contract) to bind there must already be a government in place to enforce them. This means contracts do not exist prior to governments and therefore needs the authentication of the government before it can be effective.
Finally, the idea of a natural right is anarchical. Such a right, Bentham claims, entails a freedom from the control and checks of excesses by law. Since a natural right would be prior to law, it could not be limited by law, and human beings been motivated by self-interest when placed in such a scenario where they all have freedom, the result would be pure anarchy. To have a right in any meaningful sense implies that another person cannot legitimately interfere with one’s rights. Bentham concludes, therefore, that the term natural rights are simple ‘nonsense upon stilts.’
Rights, conceived by Bentham which he ascribes as real rights are fundamentally legal rights. All rights must be legal and specific (that is, having both a specific object and subject). They ought to be made to serve the interest of all and correlatively, when abolishingrights would be to the advantage of society they should be abolished. In essence, Bentham’s view of rights suggests that it can be discarded at any time. So far as rights exist in law they are protected, outside of law, they are at best reasons for wishing there were such things as rights.
Contemporary Human Rights
With the various philosophical and political assaults and attacks against natural rights theory, the heyday of natural right proved short but the idea of rights nonetheless endured and the expression human rights which is relatively new came into our everyday parlance. After the Second World War, the founding of the United Nations in 1945, the human rights agenda finally plummeted with the 1948 Universal Declaration of Human Rights. Human rights therefore replaced the phrase natural right which fell into disfavor in the 19th century, partly because the concept of natural law which was closely intertwined with it was no longer accepted, due to the rise of legal positivism which rejected the theory long held that law must be moral to be law. Human rights also replaced the phrase the rights of man which was not generally understood as including the rights of women.
But the idea of human rights came into full prominence after the fall of Nazi Germany. Therefore the idea of natural rights precedes the contemporary notion of human rights. In the Universal Declaration of Human Rights, representatives from many cultures and countries endorsed the rights as a common standard of achievement for all peoples and all nations. And in 1976 the International Covenant on Economic, Social and Cultural Rights (ICESCR) also known as the second generation rights and the International Covenant on Civil and Political Rights (ICCPR) also known as first generation rights, each approved by the UN General Assembly in 1966, entered into force and effect. Together with the Universal Declaration and their additional protocols, these documents came ultimately to be known as core elements of the International Bill of Human Rights.
Today, human rights discourse has taken various dimensions; this is in order to achieve the fundamental goal of attaining the better life for all human beings. The evolving idea of human rights has resulted in new theoretical frameworks like the proposition that poverty is a violation of human rights. Although the paradigm has shifted from natural rights to human rights, it is noteworthy that the principles and philosophies enunciated in the ideas and theories of natural rights constitute the fundamental ideas of the contemporary human rights discourse. Amartya Sen’s work on freedom, rights and capabilities contributes to the development of a framework in which the proposition that extreme poverty is a violation of basic human rights can be analysed
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