REASON AND NATURAL RIGHTS
In the seventeenth and eighteenth centuries reason was made the measure of all obligation. Seventeenth-century legal and political philosophers considered that law existed in order to produce conformity to the nature of rational creatures. In practice, however, though they had broken with authority as such, they accepted the Roman law as embodied reason and essayed very little that did not have authority behind it. In consequence the Roman maxim—not to injure another and to give to everyone his own—was taken to express the nature of rational creatures, and respect for personality and respect for acquired rights remained the two cardinal principles of justice. But these principles raised two obvious questions: (1) What is there in personality that makes aggression an injury, and (2) what is it that makes anything one’s own? The answer was sought in a theory of natural rights, or of certain qualities inherent in individual human beings and demonstrated by reason to which society, state, and law were bound to give effect. According to this theory, justice is the maximum of individual self-assertion; it is the function of the state and of the law to make it possible for the individual to act freely. Hence the sphere of law is limited to the minimum of restraint and coercion necessary to allow the maximum of self-assertion by each, limited by the like self-assertion by all. This purely individualist theory of justice culminated in the eighteenth century in the Declarations of the Rights of Man and Bills of Rights which are so characteristic of that time.〖H. C., xliii, 66, 147, 150.〗At the close of the eighteenth century the foundations of the seventeenth and eighteenth century theory were shattered by Immanuel Kant.〖H. C., xxxii, 305.〗 But he furnished a new metaphysical foundation for the conception of justice as the maximum of individual self-assertion and in consequence it survived for about a hundred years and was given complete logical development in the political, economic, and juristic writing of the nineteenth century, although the actual law began to break away from this idea in Europe by the middle of the century and was definitely breaking away in America in the last decade thereof.
In the nineteenth century, then, legal and political philosophers were agreed that the end of the legal order, the purpose of political organization and purpose of lawmaking, were to secure and maintain individual liberty. The historian found in history the unfolding of this idea in human experience. The philosophical jurist postulated free will as the fundamental principle and deduced therefrom an ideal system of principles of liberty to which law ought to conform. The utilitarian legislator took individual liberty for the one sure means of producing human happiness and so made it the goal of all lawmaking. Mill’s treatise “On Liberty”〖H. C., xxv, 195ff.〗 is the best example of a thoroughgoing exposition of this nineteenth-century idea of abstract liberty. Moreover, it is much more tempered and reasonable in its attitude toward what we now call social legislation, so far as it restrains an abstract liberty of action whereby under pressure the weak barter away their actual liberty, than most contemporary or even subsequent writing from the same standpoint.