Kant's Legal Philosophy
From IVR encyclopedie
Kant's prominence in moral philosophy often leads readers to expect his legal philosophy to apply the categorical imperative to questions about what the law should be. Kant's writings about law confound this expectation. Rather than treating law as the institutional means of realizing morality, he seems to move back and forth between an abstract "natural law" account that purports to deduce the basic requirements of private law from an a priori principle that bears no obvious relation to the categorical imperative, and a positivist identification of the content of law with the decisions of relevant legal officials. Kant’s readiness to straddle these familiar contrasts rests on a distinctive set of views about the nature of freedom and the distinctively institutional character of law. The first part of this entry will introduce Kant’s theory of freedom, and the second his account of law as the a priori precondition of the systematic realization of freedom.
I. External Freedom
Kant’s theory of ethical freedom as autonomy is familiar in contemporary philosophy. You are free insofar as you are fully self-determining, having given a law to yourself. Both ethics and legality are aspects of morality for Kant, but he draws a sharp distinction between them, and his legal philosophy starts with a related but distinct conception of freedom, which is contrastive and interpersonal: you are externally free if you, rather than any other person, determine which purposes you will pursue. This contrast reflects the fact that internal freedom governs the consistency of a person’s will with itself, while external freedom governs the consistency of the actions of a plurality of persons considered as occupying space. The actions of embodied rational beings can come into conflict even if each of them acts on the correct maxim; conversely, their actions can be consistent even if one or more of them acts on inappropriate maxims. Kant sometimes characterizes this relational nature of external freedom by analogy with the dynamics of moving bodies; other times he it in terms of each person’s right to be his or her own master (sui juris) that is, not the slave or servant of any other person. A slave is someone whose purposes are set by another; an externally free person is someone who sets his or her own purposes. The problem of legality is to reconcile each person’s entitlement to be his or her own master with every other person’s equivalent right in a system of equal freedom for all.
The key to Kant’s reconciliation is the contrast between a person's entitlement to set purposes and the possibility of achieving them. Whether interacting persons succeed in achieving their purposes depends on the particular purposes they have and whether natural and social circumstances are congenial. Kant's concern is not with the possibility of everyone achieving what they wish for, but with their entitlement to determine for themselves what their purposes will be, consistent with the entitlement of others to do the same. He adopts Aristotle's distinction between wish and choice: to make something your end is to use means that are in your control in order to achieve it. To be entitled to choose, consistent with the freedom of everyone else to do the same, then, is to be entitled to determine the ends that will be pursued through the use of the means that you are entitled to control. Separate persons can all freely set and pursue their own purposes, provided only that each gets to determine how to use his or her means. If you buy the last bottle of milk in the store, I am no longer in a position to buy it; if I want to make an arrangement with you, whether I can or not depends upon whether you agree to enter into it with me. Such examples of my failure to achieve my purposes are nonetheless exercises of freedom, rather than cases in which one person’s freedom conflicts with another. Your right to independence is a right to determine what purposes you will pursue. To pursue a purpose is not merely to wish or hope for it, but rather to take up means towards its achievement. Kant follows Aristotle in supposing that having means available to you is prior to setting ends; to pursue a purpose is to decide how the means that you have at your disposal will be used. A plurality of free persons can each set and pursue their own purposes if each can determine how to use his or her means, but neither use nor interfere with means belonging to another.
The standard categories of private law organize the means that separate persons can have. Each person has a right to his or her own body, that is, the right to be free from unauthorized use or even touching of that body, as well as the right to be free from injury, that is, the deprivation of the use of the body. The same structure generates the basic categories of “acquired rights” in private law. A property right is a right to be the one who determines how something other than your body is used. A contractual right is a right to have another person perform a particular deed; what Kant calls status right is a right to have another act for your purposes. In each of these cases, the structure of interaction is governed by each person’s entitlement to use whatever he or she already has without being subject to the choice of another. Thus the right to exclude, which is basic to property, is just the entitlement to prevent others from determining how an external object will be used. The requirement that contracts be entered into voluntarily reflects the entitlement of each person to determine who he or she will interact with. Status relations arise when one person is in control of the affairs of another; such control is only consistent with the freedom of the dependent person if the person in control of the situation act exclusively for that person’s interests, rather than for his or her own.
These features of private right provide an austere formulation of the basic ideas of Roman law as they were developed in the Natural Law Tradition. Kant advances this traditional understanding by systematically relating these juridical ideas to a single idea of human external freedom, without any reference to goods aimed at or benefits provided by norms of non-interference. The same account of equal freedom is also an account of the legitimate occasions of coercion. The enforceable part of morality is exhausted by the protection of each person’s entitlement to external freedom consistent with the same freedom for others. Moreover, the connection between enforceability and the protection of freedom is not contingent, but necessary. Any violation of one persons’ freedom can be “hindered” because doing so simply restricts the wrongdoer’s freedom to the conditions of its own universal realization. Any other use of force – force directed, for example, add producing some desirable outcome – would be contrary to the entitlement to freedom of the person against whom it was used.
II. From Equal Freedom to Public Law
Having located the basis of private right in external freedom, Kant generalizes his approach, providing a distinctive freedom-based account of the nature of public right. Where the main tendency of the Aristotelian and Thomistic natural law tradition had been to account for the authority of public law in terms of rendering private law more determinate and coordinating provision of public goods, Kant focuses instead on the systematic preconditions of equal freedom. His account has two components to it. The first focuses on the need to “enter a rightful condition,” that is, set up legal institutions in order for the exercises of private rights to be consistent, the second on the normative standard appropriate to the assessment of legislation, according to which the law is only rightful if the citizens could have consented to it.
Kant’s argument about the need to leave the state of nature focuses on three problems, each of which is internal to concepts of private right. The first is the problem of authority, which Kant discusses through the example of initial acquisition of private property. Some writers, such as Locke, have contended that private property is both possible and binding apart from legal institutions. Against this position, Kant distinguishes between two normative issues about property. Although the way in which one person's property right restricts the conduct of others can be characterized without any explicit reference to legal institutions, the acquisition of private property cannot be rightful except under public law. By acquiring an unowned object, one person, acting unilaterally and without the consent of all others, nonetheless is able to place others under an obligation. Where before the unowned object was part of the context in which people acted, which everyone was entitled to change as they saw fit, once a person has acquired something, others are under an obligation to refrain from interfering with it, using it, or changing it. It does not follow from this that acquisition cannot be rightful, but it does follow that private acquisition is only rightful against the background of what he calls an “omnilateral will,” that is, a public law conferring upon everyone the entitlement to acquire. Thus the requirements of property cannot be met except through public legislation authorized to make laws for everyone on behalf of everyone.
Second, Kant argues that outside of a rightful condition, private rights cannot be enforced, consistent with the freedom of all, because any such enforcement is simply unilateral action, which others are entitled to resist. Thus a public legal enforcer – an executive branch – is required for people to have rights to things other than their own person.
Third, Kant argues that the demands of right cannot be applied systematically without a judiciary charged with resolving disputes. Although other writers have focussed on the tendency of limited knowledge and self-interest to generate disagreement, Kant’s argument turns on the rational nature of legal concepts. Whether you and I have a contract, or I have exercised appropriate care towards your safety is judged under an objective standard, looking not to my sincere beliefs or best efforts, but rather to what is fair or reasonable between us. Objective standards follow from the more general requirement that neither party to an interaction be entitled to set the terms of that interaction unilaterally. Yet precisely because the objective standard is not a matter of what either of us happens to think, each of us might, in good faith, have our own competing interpretations of what is reasonable, and neither the concept of reasonableness nor it combined with the facts assists us in finding a unique resolution. Instead, we need to empower someone to exercise judgment; the objectivity of the standard resides in the authority of the court.
The three arguments about the need for public law correspond to the three powers in the traditional separation of powers. The problem of unilateral action requires a legislature to make law; the problem of enforcement requires an executive branch to implement and enforce law; the problem of indeterminacy requires a court to apply law in cases of dispute.
Each of the powers is defined functionally, as in that form of institution that solves the problem. Without institutions, people cannot live together under conditions of right. They may, depending on circumstances and inclinations, live together peacefully or even happily, but they cannot live together rightfully, because the consistency of the separate exercises of their freedom depends entirely on the particular choices that each person makes. Thus any such peace is not a guarantee of equal freedom, in which each person is entitled, as a matter of right, to use what is his or hers as he or she sees fit.
Kant’s account of legal authority is thus organized around the thought that authority is legitimate because it is required for the exercise of freedom. Without institutions charged with making, applying, and enforcing laws, people could not exercise their freedom consistently. Officials within those institutions exercise their own judgment on behalf of the citizens considered as a collective body. What the law is depends upon what the relevant officials have decided, and the familiar positivist distinction between what the law is and what it ought to be arises as a direct implication of the need for institutions to provide the systematic preconditions of equal freedom. Institutions are essential, not because they are highly organized or administratively efficient, but rather because they incorporate a distinction between an official role and the person filling that office, which is essential to the possibility of one person acting for everyone. The importance of institutions to the existence of a rightful condition underlies Kant's notorious opposition to revolution. The revolutionary claims to act on behalf of the people, but the people are only capable of acting by acting together through public institutions. At the same time, a highly organized system of violence, such as a criminal syndicate or a state that commits genocide against a part of its population, has institutions without qualifying as a rightful condition. Instead, Kant characterizes such conditions as "barbarism," in which there is force but neither freedom nor law. All action in such a condition is unilateral, and so it does not qualify as a rightful condition at all.
The Idea of the Original Contract
Public right provides the concepts through which legal institutions can be understood to be rightful. The same set of ideas carry to a higher level of abstraction provide a way of conceiving of an ideal form of legal order, against which actual legal systems can be measured, the Idea of the Original Contract. The contract does not describe a historical event. Instead, it characterizes the ideal case under which law giving can be fully omnilateral. Any positive legislation inconsistent with it is thus defective from the standpoint of the state’s lawmaking authority. The test for any law is whether the people could have given it to themselves. The test has two dimensions: whether each citizen, considered severally could have given the law to themselves, and whether the citizens, considered as a collective law-making body could have done so. The first asks whether a law is consistent with each person's innate right (which generates rights including security of the person and the presumption of innocence) the second whether a law is consistent with every citizen being an active participant rather than passive resident of the state (which generates rights including freedom of expression and association.) The idea of omnilateral lawgiving is itself fully understandable only in its ideal case, that is, the case of a pure system of Republican government, in which the branches of government are clearly separated, and the citizens are full and active participants in the making of all laws by their representatives. Actual legal systems will inevitably fall short of the ideal, but it provides the appropriate standard through which they can be assessed.
Kant regards law as a distinctive part of morality. Legal obligations are enforceable in a way that obligations of virtue are not; legal obligations are also public. Although Kant would agree with contemporary legal positivists that explicit formulation in positive law, identifiable through their sources rather than their merits, is a precondition of the existence of a legal system, he nonetheless sees the rule of law as the solution to a distinctively moral problem of reconciling the freedom of separate persons. A rightful condition is impossible without positive law, but positive law can always be assessed in terms of the fundamental requirements of right.
Byrd B. Sharon, and Joachim Hruschka (2009) Kant's Doctrine of Right. A Commentary, Cambridge University Press
Ebbinghaus, Julius, The Law of Humanity and the Limits of State Power, The Philosophical Quarterly, Vol. 3, No. 10 (Jan., 1953), pp. 14-22
Flikschuh, Katrin, 2008 'Reason, Right and Revolution: Kant and Locke', Philosophy & Public Affairs 36
Kant, Immanuel, 1797/1996 The Metaphysics of Morals in Mary Gregor Kant: Practical Philosophy Cambridge University Press
Kant, Immanuel, 1795/1996 Towards Perpetual Peace in Mary Gregor Kant: Practical Philosophy Cambridge University Press
Ripstein, Arthur 2009 Force and Freedom: Kant's Legal and Political Philosophy Cambridge Mass.: Harvard University Press
Timmons, Mark, (2002) (ed.) Kant’s Metaphysics of Morals: Interpretative Essays. Oxford University Press, Oxford, UK
Weinrib, Ernest, 1995. The Idea of Private Law, Cambridge Mass.: Harvard University Press
Keywords: categorical imperative, freedom, legal positivism, legality, private law, public law, social contract.