Smith discusses some libertarian aspects of Kant’s theory of individual rights.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

As I discussed in my last essay, Immanuel Kant distinguished justice from other moral principles by noting that the rules of justice pertain exclusively to external actions and do not depend on virtuous motives for their fulfillment. It is primarily for this reason that only the rules of justice can properly be the subject of human (or “positive”) legislation. We cannot compel others to be virtuous, since virtue presupposes a free act of the will; but we can rightfully compel others to observe the rules of justice and punish those who violate rights.

This essay will explore some other features of Kant’s theory of justice and individual rights. Let’s begin with a highly interesting, if densely written, passage about coercion and freedom.

Any opposition that counteracts the hindrance of an effect promotes that effect and is consistent with it. Now, everything that is unjust is a hindrance to freedom according to universal laws. Coercion, however, is a hindrance or opposition to freedom. Consequently, if a certain use of freedom is itself a hindrance to freedom according to universal laws (that is, is unjust), then the use of coercion to counteract it, inasmuch as it is the preservation of a hindrance to freedom, is consistent with freedom according to universal laws; in other words, this use of coercion is just. It follows by the law of contradiction that justice [a right] is united with the authorization to use coercion against anyone who violates justice [or a right]. (The Metaphysical Elements of Justice: Part I of the Metaphysics of Morals, trans. John Ladd, Bobbs‐​Merrill, 1965. pp, 35–6. Brackets are in the translation by John Ladd. All quotations from Kant are from this book, abbreviated MEJ.)

This passage may be difficult to follow, so let’s spend a little time unpacking what Kant was getting at here. His basic point is that it is an error to conceive of a juridical right (a right of justice) as consisting of two separate elements: first, the obligation of others to respect my rights and, second, my right to use defensive force against those who initiate coercion against me in an effort to violate my rights. These are the same thing viewed from different perspectives. Rights are enforceable moral claims against others, so in stating that others have an obligation to respect my rights we are simultaneously affirming my right to use force to protect my rights. A right pertains solely to external actions, not to the inner motives of acting agents. “For anyone can still be free, even though I am quite indifferent to his freedom or even though I might in my heart wish to infringe on his freedom” (MEJ, p. 35). And since the Categorical Imperative mandates that natural rights must be universally and equally applicable to every human being, since I may not claim a natural right for myself that I deny to others or posit exceptions when I regard those exceptions as expedient, a universal principle (or “law”) of justice means (at least in part) that every person is morally authorized to use force to protect his or her rights. “All justice and every right…are united with the authorization to use coercion” against violators (MEJ, 39).

Kant divided rights into two basic types: innate and acquired. An innate right is a natural right that we are born with in virtue of our rational and volitional nature, or what Kant sometimes called our “humanity.” There is only one basic innate right: the right to freedom. “Freedom (independence from the constraint of another’s will), insofar as it is compatible with the freedom of everyone else in accordance with a universal law, is the one sole and original right that belongs to every human being by virtue of his humanity” (MEJ, PP. 43–4). By “innate” Kant did not mean that the right to freedom is an attribute that we are born with, like fingers, toes, and other physical characteristics that can be observed by the senses. Rather, we know we have rights through the exercise of “pure reason” (or “pure practical reason,” when reason is applied to the realm of human action). When we understand that humans are morally autonomous agents who must choose to be guided by rational moral principles rather than being determined by our desires, we will also understand that freedom is essential to our exercise of moral autonomy, and that to be forced by others to make the choices they think we should make is a fundamental violation of our moral autonomy.

Kant was making another significant point in the passage quoted above. He was attempting to show why the right to freedom does not include the “freedom” to violate the rights of other people. Indeed, to claim any such right is a contradiction in terms. Why? Because the right to freedom is a universal principle that applies to every rational agent, and to defend a supposed “right” to violate rights would undercut this universal principle at its very foundation and ultimately reduce it to absurdity. For Kant (as I explained previously), to claim that I have a right is simultaneously to claim that I have a right to use force in defense of my freedom; in using force in this defensive manner I am attempting to remove “a hindrance or opposition” to my rightful freedom. But to claim a “right” by others to violate my right would be to claim that I have a duty not to enforce my right, and any such claim would destroy what is meant by “a right” in the first place.

When Kant affirmed freedom as the fundamental right of rational agents, we must always keep in mind that he meant a “freedom” that is consistent with his Categorical Imperative, i.e., a right to freedom that can be attributed equally to every individual, a freedom that can be exercised by every person simultaneously without generating conflict. This is why force used to protect our right to freedom is morally justifiable, whereas force used to violate our right to freedom amounts to nothing more than mere “violence.” Any alleged “right” to restrict the legitimate freedom of others would inject an ineradicable conflict into rights theory and is ruled out of court for that reason alone. To forbid, by legal means, the “freedom” to violate rights is therefore “consistent with freedom according to universal laws [of justice].”

Kant identified three corollaries of his theory of justice that deserve brief mention.

First, justice is concerned only with external actions by which one person can influence other people, whether directly or indirectly. Second, justice is not concerned with the desires, wishes, or needs of other people. These matters pertain to the voluntary virtues of benevolence and charity, whereas justice is concerned with whether or not we respect the equal freedom of others to live their lives as they see fit. Third, justice is concerned solely with the form of interpersonal relationships, not with their content. Thus if I purchase a commodity from a shopkeeper, justice is satisfied if the form of that relationship is voluntary. Whether the shopkeeper hopes to profit from the transaction, or how much he actually gains—these and similar issues pertain to the content of the transaction and do not fall within the purview of justice.

Kant, as we have seen, attempted to ground justice (as expressed in terms of individual rights) in the moral autonomy of rational agents. This approach distinguished Kant from the many classical liberals who attempted to justify the rules of justice by appealing to their social utility. According to David Hume and similar thinkers, the rules of justice are justified because they are essential to maintaining social order and prosperity—a lesson that we learn from experience. Kant, in stark contrast, appealed neither to social utility nor to experience in his justification of rights and justice. Instead, our basic right to freedom can be justified by pure practical reason without recourse to empirical observations about the social utility of this right. The right to freedom flows logically from our nature as rational, morally autonomous agents. The social benefits that accrue from respecting rights are a consequence, not a primary justification, of our right to freedom of action.

In this respect Kant’s justification of rights was quite similar to that defended by Ayn Rand. Another similarity may be found in Rand’s statement: “Any alleged ‘right’ of one man, which necessitates the violation of the rights of another, is not and cannot be a right,” (“Man’s Rights,” in The Virtue of Selfishness, p. 96). In addition, Rand and Kant agreed that physical force and fraud are the two basic methods by which rights can be violated, and that only retaliatory force (force used in defense of rights) is justified. Kant would have agreed wholeheartedly with this characterization of rights by Rand:

Thus, for every individual, a right is the moral sanction of a positive—of his freedom to act on his own judgment, for his own goals, by his own voluntary, uncoerced choice. As to his neighbors, his rights impose no obligations on them except of a negative kind: to abstain from violating his rights. (The Virtue of Selfishness, p. 94.)

Of course, these and other similarities between Kant and Rand should not be pushed too far; there are significant differences as well. But one other similarity is worth mentioning, namely, the stress that both philosophers placed on private property rights in external goods. According to Rand, “Without property rights, no other rights are possible.” Kant discussed property rights in more detail than Rand did, and at times his defense may seem convoluted to the modern reader. But the following summary by Howard Williams (Kant’s Political Philosophy, St. Martin’s Press, 1983, p. 79) accurately indicates the importance that Kant attributed to property rights.

Kant comes to identify the institution of property with freedom because he sees it in a fundamental sense as an extension of the self. An object which is, he argues, my property belongs solely and exclusively to myself, and it is my right to consume or use it in whatever way I please. Indeed, so strongly does the individual feel about his ownership, Kant thinks, that if somebody takes it without his consent they harm the individual just as much as though they had injured his body. From this point of view, the individual has every justification in feeling as upset about the theft of a favourite book as he has about a bruised knee. To threaten the individual’s property, in the sense of its being an extension of the self, prejudices not only his feeling of well‐​being but also his very existence.

In my last essay I predicted that I would discuss some of the anti‐​libertarian features of Kant’s political philosophy in this essay. But I have obviously failed to do this, choosing instead to focus on Kant’s very libertarian theory of justice and rights. I have written 206 essays over a period approaching five years, so readers might think that I would have learned my lesson by now and understood that I typically don’t know what an essay will contain until I actually write it. But I am a slow learner in this regard, so I will probably make more inaccurate predictions about other forthcoming essays. For the present, however, I will reaffirm my intention to discuss some important respects in which Kant veered from libertarian principles—as illustrated in his theory of the social contract and his rejection of the right of resistance even against tyrannical governments. I will also state my intention, which may or may not come to pass, to discuss these important matters in my next essay.