Front Page Titles (by Subject) APPENDIX A.: The Kantian Idea of Rights - The Principles of Ethics, vol. 2
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APPENDIX A.: The Kantian Idea of Rights - Herbert Spencer, The Principles of Ethics, vol. 2 
The Principles of Ethics, introduction by Tibor R. Machan (Indianapolis: LibertyClassics, 1978). Vol. 2.
Part of: The Principles of Ethics, 2 vols.
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The Kantian Idea of Rights
Among the tracks of thought pursued by multitudinous minds in the course of ages, nearly all must have been entered upon if not explored. Hence the probability is greatly against the assumption of entire novelty in any doctrine. The remark is suggested by an instance of such an assumption erroneously made.
The fundamental principle enunciated in the chapter entitled “The Formula of Justice,” is one which I set forth in Social Statics: The Conditions Essential to Human Happiness Specified and the First of Them Developed, originally published at the close of 1850. I then supposed that I was the first to recognize the law of equal freedom as being that in which justice, as variously exemplified in the concrete, is summed up in the abstract. I was wrong, however. In the second of two articles entitled “Mr. Herbert Spencer's Theory of Society,” published by Mr. F. W. Maitland (now Downing Professor of Law at Cambridge) in Mind, vol. viii. (1883), pp. 508—9, it was pointed out that Kant had already enunciated, in other words, a similar doctrine. Not being able to read the German quotations given by Mr. Maitland, I was unable to test his statement. When, however, I again took up the subject, and reached the chapter on “The Formula of Justice,” it became needful to ascertain definitely what were Kant's views. I found them in a recent translation (1887) by Mr. W. Hastie, entitled The Philosophy of Law, An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right. In this, at p. 45, occurs the sentence: “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.” And then there follows this section:
Universal Principle of Right
Every action isrightwhich 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, anyone 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 l shall make it themaximof my actions. For anyone 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 bymy external action. Ethics, however, as distinguished from Jurisprudence, imposes upon me the obligation to make the fulfillment of Right amaximof 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 Iought, merely on account of This obligation, to limit my freedom to these very conditions. Reason in this connection says only that itisrestricted 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 rightis, thus far the Law of Right, as thus laid down, may not and should not be represented as a motive-principle of action.
These passages make it clear that Kant had arrived at a conclusion which, if not the same as my own, is closely allied to it. It is, however, worth remarking that Kant's conception, similar though it is in nature, differs both in its origin and in its form.
As shown on a preceding page, his conclusion is reached by a “search in the pure reason for the sources of such judgments”–forms a part of the “metaphysic of morals”; whereas, as shown on pp. 67—68 of the original edition of Social Statics, the law of equal freedom, there shadowed forth and subsequently stated, is regarded as expressing the primary condition which must be fulfilled before the greatest happiness can be achieved by similar beings living in proximity. Kant enunciates an a priori requirement, contemplated as irrespective of beneficial ends; whereas I have enunciated this a priori requirement as one which, under the circumstances necessitated by the social state, must be conformed to for achievement of beneficial ends.
The noteworthy distinction between the forms in which the conception is presented is this. Though (on p. 56) Kant, by saying that “there is only one innate right, the birthright of freedom,” clearly recognizes the positive element in the conception of justice; yet, in the passages quoted above, the right of the individual to freedom is represented as emerging by implication from the wrongfulness of acts which aggress upon this freedom. The negative element, or obligation to respect limits, is the dominant idea; whereas in my own case the positive element–the right to freedom of action–is represented as primary; while the negative element, resulting from the limitations imposed by the presence of others, is represented as secondary. This distinction may not be without its significance; for the putting of obligation in the foreground seems natural to a social state in which political restraints are strong, while the putting of claims in the foreground seems natural to a social state in which there is a greater assertion of individuality.