Updated: Sep 18
To handle this subject properly, more space would be wanted than I have at command. But I will make some remarks shortly and in outline.
A great to-do has been made about the ambiguity of the word "right"; as I think, needlessly. Right is the rule, and what is conformable to the rule, whether that rule be physical or mental; e. g., a right line, a "right English bulldog" (Swift), a right conclusion, a right action.
Right is, generally, the expression of the universal. It is the emphasis of the universal side in the relation of particular and universal. It implies particulars, and therefore possibility of discrepancy between them and the universal. Hence right means law; which law may be carried out or merely stated. "Is it right to do this?" means "is the universal realized in this?" "Have I a right?" means "am I in this the expression of law?"
In the moral sphere, with which alone we are concerned, right means always the relation of the universal to the particular will. The emphasis is on the universal. Possibility of discrepancy with a conscious subject makes law here command.
Command is the simple proposal of an action (or abstinence) to me by another will, as the content of that will. Or, from the side of the commander, it is the willing by me of some state of another will, such willing being presented by me as a fact to that will. Threat is not of the essence of command; command need not imply the holding forth or the anticipation of consequences.
To have rights is not merely to be the object with respect to which commands (positive or prohibitory) are addressed to others. If that were so, inanimate matter would have rights; e. g., the very dirt in the road would "have a right" to be taken up or let lie and this is barbarous. To have rights is to be (or to be presumed to be) capable of realizing the universal command consciously as such. This answers the question. Has a beast rights? He is the object of duties, not the subject of rights. Right is the universal in its relation to a will capable of recognizing it as such, whether it remain mere command or is also carried out in act.
Wherever in the moral world you have law you have also right and rights. These may be real or ideal. The first are the will of the state or society, the second the will of the ideal-social or nonsocial ideal.
It is in order to secure the existence of right in the acts of particular wills that compulsion is used. But compulsion is not necessary to the general and abstract definition of right, and it cannot be immediately deduced from it.
What is duty? It is simply the other side of right. It is the same relation, viewed from the other pole or moment. It is the relation of the particular to the universal, with the emphasis on the particular. It is my will in its affirmative relation to the objective will. Right is the universal, existing for thought alone or also carried out. Duty is my will, either merely thought of as realizing this universal, or actually also doing so. "This is my duty" means "in this I identify, or am thought of as identifying, myself with right."
Duty, like right, implies possible discordance of particular and universal. Like right, too, it implies more than this. It implies the consciousness (or presumed capacity for consciousness) of the relation of my will to the universal as the right. Hence a beast has no duties in the proper sense. If he has, then he has also rights.
Right is the universal will implying particular will. It is the objective side implying a subjective side, i.e., duty. Duty is the particular will implying a universal will. It is the subjective side implying an objective side, i. e., right. But the two sides are inseparable. No right without duty; no duty without right and rights. (To this we shall return.)
Right and duty are sides of a single whole. This whole is the good. Rights and duties imply the identity, and nonidentity, of the particular and universal wills. Right may remain a mere command, duty a mere "ought to be," the non-agreement of the particular and universal. They are both abstractions. They are both, if fixed and isolated one from the other, self-contradictions. Each by itself is a mere "is to be," each a willed idea, which, so long as apart from the other, remains a mere, i. e., a not-willed, idea. Each is a single side of one and the same relation, fixed apart from the other side. In the good the sides come together, and in the whole first cease to be abstractions and gain real existence. The right is carried out in duty. The duty realizes itself in the right.
But in the good rights and duties as such disappear. There is no more mere right or mere duty, no more particular and universal as such, no external relation of the two. They are now sides and elements in one whole; and, if they appear, it is only as, within the movement and life of the whole, here one element and there another has its relative emphasis. But outside the whole their reality fades into "mere idea," into legend and fable.
Rights and duties do not exist outside the moral world; and that world does not exist where there is not a sphere of inner morality, however immediate, the consciousness, however vague, of the relation of the private will to the universal, whether that universal be presented as outer (in the shape of tribal custom or of some individual) or again as inner. Where there is no morality there is no right; where there is no right there are no rights. Just so, where there are no rights there is no right, and where no right there is no morality. Inner morality without an objective right and wrong is a self-delusion. Right and rights outside morality are a mere fiction.
It is here that every partial theory of morals and politics is wrecked and seen to be worthless. False theories of right either (1) fail to get to any objective universal except by some fond invention (of contract), which, besides being an invention, presupposes what it is to create. (A contract outside the sphere of right and morality is nonsense.) Or (2) they take an objective universal (as positive law, will of the monarch, or what seems most convenient to the majority) ; and here they fail because their right is mere force, and is not moral, not right at all; and hence they cannot show that I am in the right to obey it, or in the wrong to disobey it, but merely that, if I do not obey it, it may (or may not) be inconvenient for me. So again, in morals they either (1) posit a universal, such as the will of the Deity or of other or else (2) there is nothing anywhere objective and universal at all; and here I affirm nothing but myself. In either case there is no duty and no morality.
"But rights and duties," we shall be told, "collide." They collide only as rights do with rights or duties with duties. Rights and duties of one sphere collide with those of another sphere, and again within each sphere they collide in different persons, and again in one and the same person. But that right as such can collide with duty as such is impossible. There is no right which is not a duty, no duty which is not a right. In either case right would cease to be right, and duty duty.
This will be denied. It will be said, (1) there are duties without rights; (2) rights without duties. As to the first (1) we say, if we have not a right to do anything, it is not right for us. If it is not right for us, then it is not our duty. It is quite true that moral duty may not be legal right, nor legal duty moral right, but this is not to the point.
As to the second (2), it seems harder to see that where I have no duties, I have no rights. In the spheres of the state, of society, of ideal morality, I have a right to do this and not that, that and not the other. But can it be said that all these things that I have a right to do are my duties? Is not that nonsense?
No doubt there is much truth in this. It is almost as bad to have nothing but duties as it is to have no duties at all. For free individual self-development we must have both elements. Where the universal is all there is ossification; where the particular is all there is dissolution; in neither case life.
Is it true then that there are rights where there are no duties? No. In a sense, rights are wider than duties: but what does this mean? Does it mean there are rights outside the moral sphere? Certainly not. We shall see that there is no limit to the moral sphere; and if there were a limit, then outside that rights would cease to be rights. "More rights than duties" then must be true, if at all, within the moral sphere. Does it hold there that there are more rights than duties? It is not a very hard puzzle. To make it easier let us double it, and say "there are more duties than rights." A man, for instance, has a certain indivisible sum to spend in charity. He has a duty to A, B, and C, but not a right to more than one because it is wrong if he gives more than his indivisible limited sum. Hence there are more duties than rights. All that it comes to is that, when you look on duties as possible, they are wider than what, when actually done, is right and actual duty. Just so possible rights are wider than what is actually duty and actually right.
The reason why this is noticed on the side of rights, and not on the side of duty, is very simple. We saw above that in right the emphasis is on the universal side. Now every act is a determined this or that act, and what makes it a this or that act is the particularization. What I have a right to do thus depends on what my duty is; for duty, we saw, emphasized the particular side. Now, where there are no indifferents and no choice between them, rights are never wider than duties. It is where indifferents come in that possibility is wider than actuality. And because right emphasizes the side common to all the indifferents, i.e., the undetermined side, it is therefore wider than duty, which emphasizes the particular side, and hence is narrower.
Thus, where the choice of my particular will comes in, that has rights and must be respected. But it has rights only because the sphere of its exercise, and therefore what it does therein, is duty. And it must be respected by others only so far as it thus expresses the universal will. If it has not right on its side, it has no rights whatever.
There is indeed a sphere where rights seem in collision with right. Wherever you have law you have this, since it comes from the nature of law. Thus, I am justified in returning evil for evil; I have a right to do it, even where it is not right but wrong to do it. The same thing is found in the spheres of state law, social law, and mere moral law alike. This does not show that in these cases there is no moral universal; it shows that we are keeping to nothing but the universal. We have here the distinction of justice and equity. A merely just act may (we all know) be most unjust. The universal as law must be the same for all: it cannot be specified to meet every particular case. Hence, in keeping to this unspecified universal, I have "right" on my side: but again, failing to specify it in my case, I do what is not right for me to do. I fail in duty, do not do, and am not, right.
The sphere of mere private right in the state cannot exist out of the moral whole. It is, for the sake of the development of the whole, created and kept up in the whole, but merely at the pleasure of the whole. Just so in morals there is a sphere of private liking, the sphere of indifferents, but this exists only because it ought to exist, only because duty is realized in its existence, though not by its particulars as particulars, i.e., as this one against that one. The sphere of private right has rights only so long as it is right and is duty. It exists merely on sufferance; and the moment the right of the whole demands its suppression it has no rights. Public right everywhere overrides it in practice, if not in theory. This is the justification of such things as forcible expropriation, conscription, etc. The only proper way of regarding them is to say. In developing my property, etc., as this or that man, I am doing my duty to the state, for the state lives in its individuals: and I do my duty again in another way by giving up to the use of the state my property and person, for the individual lives in the state. What other view will justify the facts of political life?
To repeat then: Right is the assertion of the universal will in relation to the particular will. Duty is the assertion of the particular will in the affirmation of the universal. Good is the identity, not the mere relation, of both. Right may be real, may actually exist; or be only ideal, merely thought of. So may duty. Rights and duties are elements in the good; they must go together. The universal cannot be affirmed except in the particular, the particular only affirms itself in the universal; but they should be suppressed in the good as anything more than elements, which reciprocally supplement each other, and should be regarded as two sides to one whole. It is not moral to stand on one's rights with the right; i.e., right should not be mere right: nor moral to make a duty of all one's duties; i.e., duty should not be mere duty.
We maintain the following theses. (1) It is false that you can have rights without duties. (2) It is false that you can have duties without rights. (3) It is false that right is merely negative. (4) It is false that duty depends on possible compulsion, and a mere mistake that command always implies a threat; and (5) It is absolutely false that rights or duties can exist outside the moral world.