Nature of rights

The state of nature is no licence: it is governed by a law of nature that reason discovers. Since all men are the workmanship of one Maker, sent into the world by his order and about his business, none has the right to destroy another or to put him under his absolute power. From this original equality Locke derives, not a mere duty not to harm, but correlative subjective rights, to life, liberty and estate, that each bears prior to any government. Power is therefore legitimate only to secure them; to violate them makes it tyrannical. These "unalienable rights" would pass almost word for word into the American Declaration of Independence.

Second Treatise of Government, II-V

Right is derived a priori from reason, not from utility nor from positive law alone: every human being possesses, by virtue of their humanity, an innate right to freedom, grounded in the dignity of the person as an end in itself. A rational version of natural rights.

The Metaphysics of Morals, Doctrine of Right

Prior to all society and all positive law, man possesses as his own, by the mere fact of his rational nature, rights that no power has conferred and that none may legitimately abolish: to life, to liberty, to the property of his own person. Locke makes them the measure of every government, instituted only to secure them. These rights are universal because they flow from a common humanity, not from the privileges of an order or a birth: this is the weapon against absolutism and the society of estates, which the Declaration of 1789 will inscribe into law, « men are born and remain free and equal in rights ». Bentham, from within the century, will nonetheless object that a right without positive law is mere « nonsense upon stilts ».

Locke, Two Treatises of Government, II · Declaration of the Rights of Man and of the Citizen (1789)

A right, for Bentham, is nothing but the benefit of an obligation that the law lays on others and backs by a sanction: no positive law, no obligation, hence no right. Natural rights prior to any law are therefore a contradiction in terms, a wish dressed up as a legal fact, and even a danger, since to invoke an imprescriptible right against the law opens the door to anarchy. The rejection is not nihilist but utilitarian: there are indeed rights, but it is utility, not nature, that should guide the legislator in creating them.

Anarchical Fallacies; Introduction to the Principles of Morals and Legislation

Mill rejects natural rights prior to any society and grounds rights in utility: to have a right is to have something society ought to secure for us because doing so serves the general well-being, utility in the largest sense, grounded in the permanent interests of humanity.

Utilitarianism, ch. V; On Liberty

If the sole criterion of the right is utility, no right can precede the law or limit it in the name of nature: to speak of rights prior to any institution is, for Bentham, nonsense, and of imprescriptible rights nonsense upon stilts. The movement does not abolish rights, it re-founds them: they are protections society secures precisely because their stable observance maximizes the general well-being. This derivation from consequences sets it squarely against theories of natural right and against deontology, which hold certain rights to be primary constraints, independent of any reckoning of outcomes.

Bentham, Anarchical Fallacies; Mill, Utilitarianism, V