METAPHYSICAL FOUNDATIONS OF THE THEORY OF RIGHT
What is Right?
This question may be said to be about as embarrassing to the jurist as the well-known question, "What is truth?" is to the logician. It is all the more so, if, on reflection, he strives to avoid tautology in his reply and recognise the fact that a reference to what holds true merely of the laws of some one country at a particular time is not a solution of the general problem thus proposed. It is quite easy to state what may be right in particular cases (quid sit juris), as being what the laws of a certain place and of a certain time say or may have said; but it is much more difficult to determine whether what they have enacted is right in itself, and to lay down a universal criterion by which right and wrong in general, and what is just and unjust, may be recognised. All this may remain entirely hidden even from the practical jurist until he abandon his empirical principles for a time and search in the pure reason for the sources of such judgements, in order to lay a real foundation for actual positive legislation. In this search, his empirical laws may, indeed, furnish him with excellent guidance; but a merely empirical system that is void of rational principles is, like the wooden head in the fable of Phaedrus, fine enough in appearance, but unfortunately it wants brain.1. The conception of right -- as referring to a corresponding obligation which is the moral aspect of it -- in the first place, has regard only to the external and practical relation of one person to another, in so far as they can have influence upon each other, immediately or mediately, by their actions as facts.
2. In the second place, the conception of right does not indicate the relation of the action of an individual to the wish or the mere desire of another, as in acts of benevolence or of unkindness, but only the relation of his free action to the freedom of action of the other.
3. And, in the third place, in this reciprocal relation of voluntary actions, the conception of right does not take into consideration the matter of the matter of the act of will in so far as the end which any one may have in view in willing it is concerned. In other words, it is not asked in a question of right whether any one on buying goods for his own business realizes a profit by the transaction or not; but only the form of the transaction is taken into account, in considering the relation of the mutual acts of will. Acts of will or voluntary choice are thus regarded only in so far as they are free, and as to whether the action of one can harmonize with the freedom of another, according to a universal law.
Right, therefore, comprehends the whole of the conditions under which the voluntary actions of any one person can be harmonized in reality with the voluntary actions of every other person, according to a universal law of freedom.
Universal Principle of Right
"Every action is right which in itself, or in the maxim on which it proceeds, is such that it can coexist along with the freedom of the will of each and all in action, according to a universal law."If, then, my action or my condition generally can coexist with the freedom of every other, according to a universal law, any one does me a wrong who hinders me in the performance of this action, or in the maintenance of this condition. For such a hindrance or obstruction cannot coexist with freedom according to universal laws.
It follows also that it cannot be demanded as a matter of right, that this universal principle of all maxims shall itself be adopted as my maxim, that is, that I shall make it the maxim of my actions. For any one may be free, although his freedom is entirely indifferent to me, or even if I wished in my heart to infringe it, so long as I do not actually violate that freedom by my external action. Ethics, however, as distinguished from jurisprudence, imposes upon me the obligation to make the fulfillment of right a maxim of my conduct.
The universal law of right may then be expressed thus: "Act externally in such a manner that the free exercise of thy will may be able to coexist with the freedom of all others, according to a universal law." This is undoubtedly a law which imposes obligation upon me; but it does not at all imply and still less command that I ought, merely on account of this obligation, to limit my freedom to these very conditions. Reason in this connection says only that it is restricted thus far by its idea, and may be likewise thus limited in fact by others; and it lays this down as a postulate which is not capable of further proof. As the object in view is not to teach virtue, but to explain what right is, thus far the law of right, as thus laid down, may not and should not be represented as a motive-principle of action.
Right is Conjoined With the Title or Authority to Compel
The resistance which is opposed to any hindrance of an effect is in reality a furtherance of this effect and is in accordance with its accomplishment. Now, everything that is wrong is a hindrance of freedom, according to universal laws; and compulsion or constraint of any kind is a hindrance or resistance made to freedom. Consequently, if a certain exercise of freedom is itself a hindrance of the freedom that is according to universal laws, it is wrong; and the compulsion of constraint which is opposed to it is right, as being a hindering of a hindrance of freedom, and as being in accord with the freedom which exists in accordance with universal laws. Hence, according to the logical principle of contradiction, all right is accompanied with an implied title or warrant to bring compulsion to bear on any one who may violate it in fact.
Strict Right May Be Also Represented as the Possibility
of a Universal Reciprocal Compulsion in Harmony with
the Freedom of All According to Universal Laws
This proposition means the right is not to be regarded as composed of two different elements -- obligation according to a law, and a title on the part of one who has bound another by his own free choice to compel him to perform. But it imports that the conception of right may be viewed as consisting immediately in the possibility of a universal reciprocal compulsion, in harmony with the freedom of all. As right in general has for its object only what is external in actions, strict right, as that with which nothing ethical is intermingled, requires no other motives of action than those that are merely external; for it is then pure right and is unmixed with any prescriptions of virtue. A strict right, then, in the exact sense of the term, is that which alone can be called wholly external. Now such right is founded, no doubt, upon the consciousness of the obligation of every individual according to the law; but if it is to be pure as such, it neither may nor should refer to this consciousness as a motive by which to determine the free act of the will. For this purpose, however, it founds upon the principle of the possibility of an external compulsion, such as may coexist with the freedom of every one according to universal laws. Accordingly, then, where it is said that a creditor has a right to demand from a debtor the payment of his debt, this does not mean merely that he can bring him to feel in his mind that reason obliges him to do this; but it means that he can apply an external compulsion to force any such one so to pay, and that this compulsion is quite consistent with the freedom of all, including the parties in question, according to a universal law. Right and the title to compel, thus indicate the same thing.
There is Only One Innate Right: The Birthright of Freedom
Freedom is independence of the compulsory will of another; and in so far as it can coexist with the freedom of all according to a universal law, it is the one sole original, inborn right belonging to every man in virtue of his humanity. There is, indeed, an innate equality belonging to every man which consists in his right to be independent of being bound by others to anything more than that to which he may also reciprocally bind them. It is, consequently, the inborn quality of every man in virtue of which he ought to be his own master by right (sui juris). There is, also, the natural quality of justness attributable to a man as naturally of unimpeachable right (justi), because be has done no wrong to any one prior to his own juridical actions. And, further, there is also the innate right of common action on the part of every man, so that he may do towards others what does not infringe their rights or take away anything that is theirs unless they are willing to appropriate it; such merely to communicate thought, to narrate anything, or to promise something whether truly and honestly, or untruly and dishonestly (veriloquim aut falsiloquim), for it rests entirely upon these others whether they will believe or trust in it or not. But all these rights or titles are already included in the principle of innate freedom, and are not really distinguished from it, even as dividing members under a higher species of right.
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