In Defense of “French Nonsense”

Abstract

Buried beneath the intemperate rhetoric of Bentham’s attack on natural rights lies a serious challenge to the jurisprudence of rights in constitutional adjudication. The political rhetoric of rights, Bentham charged, is not the rhetoric of rational deliberation, but rather the rhetoric of mere assertion and counter-assertion. The language of rights supplies no determinate basis for deciding particular cases. However, Bentham saw clearly that indeterminacy threatens not objectivity—in the sense of a decision’s being ideally correct, or rationally preferred when seen “from nowhere”—but rather publicity. He argued that the indeterminacy of rights language weakens the rule of law, because it undermines conditions of genuine public justification. The language of rights provides no public standards for evaluating rights assertions. Bentham was correct to insist upon the importance of publicity in a democratic constitutional order. However, he mistakenly assumed that public justification is possible only if the demonstrability condition is met. In defense of constitutional rights jurisprudence, this chapter sketches an alternative conception of public justification and argues that public justification understood in this way is not threatened by indeterminacy.