KANT’S LEGAL POSITIVISM Jeremy Waldron [However well disposed and law-abiding men might be, . . . individual men, peoples, and states can never be secure against violence from one another, since each has its own right to do what seems right and good to it and not to be dependent upon another’s opinion about this. So, unless it wants to renounce any concepts of Right, the first thing it has to re- solve upon is the principle that it must leave the state of nature, in which each follows its own judgment, unite itself with all others (with which it cannot avoid interacting), subject itself to a public lawful exter- nal coercion, and so enter into a condition in which what is to be recog- nized as belonging to it is determined by law . . . . IMMANUEL Kant? I. InrRopucTION The philosophical writings of Immanuel Kant continue to exert a powerful influence in legal philosophy. In theoretical discussions of criminal law,? the law of property,? tort law,* contract law, and many other areas,° Kant’s works are widely regarded as an important source of nonutilitarian ideas about distributive, corrective, and retributive justice. * Professor of Law and Philosophy, Jurisprudence and Social Policy Program, Boalt Hall ‘School of Law, University of California at Berkeley. B.A. (Hons.) 1974, LL.B. (Hons) 1978, Uni- versity of Otago, New Zealand; M.A. 1980, D.Phil. 1986, University of Oxford. This Article is dedicated to the memory of the Reverend Harry Thornton; it has been more than twenty years since he urged me to make a study of Kant’s jurisprudence. I am grateful to my students Joao Rosasz and Edmee Tuyl for many conversations about the issues raised here. Earlier versions of this Article were presented at workshops at McGill Law School, Harvard University's Govern- ment Department, Columbia Law School, and the University of Cambridge. I would like to thank all the participants for their comments. Finally, I am especially grateful to Thomas Pogge for several searching discussions on these themes. 1 ImmaNueL KANT, Metaphysical First Principles of the Doctrine of Right, in THE META. PHYSICS OF MORALS 33, § 44, at 124 (Ak. 312] (Mary Gregor trans., Cambridge Univ. Press 1991) (1792. ? See, e.g. Jeffrie G. Murphy, Does Kant Have a Theory of Punishment?, 87 CoLuM. L. REY. 509 passim (1987). 3 See, eg., Stephen R, Munzer, Kant and Property Rights in Body Parts, 6 CANADIAN J.L. & JURISPRUDENCE 319 passim (1993). * See, eg., Ernest J. Weinrib, Understanding Tort Law, 23 VAL. U. L. REV. 485, 525-26 (1989); Ernest J, Weinrib, The Case for a Duty to Rescue, 90 YaLe LJ. 247, 266-67 (1980). 5 See, e.g., CHARLES Friep, CONTRACT AS PROMISE 7-17 (1981). © See, eg, Davib AJ. RICHARDS, Sex, DRUGS, DEATH AND THE LAW: AN ESSAY ON HumAN RIGHTS AND OVERCRIMINALIZATION 9 (1982); Robert F. Housman, A Kantian Approach to Trade and the Environment, 49 Wasi. & Lee L. REV. 1373 passim (1992) 15351536 HARVARD LAW REVIEW [Vol. 109:1535 Kant’s views are controversial, of course. On the one hand, the issues between utilitarians and nonutilitarians remain open, despite the success of John Rawls’ revival of ‘Kantian’ theory;’ on the other hand, communitarians appear to regard Kant as responsible for many of the most serious defects in modern liberal thought.* Moreover, de- spite the appeal of abstract slogans about treating people as ends not means, Kant’s views on concrete issues are often extreme and discon- certing: he believes that the state has a moral duty, not just a right, to execute murderers;? he maintains that husbands have a right to force their wives to return if they leave the matrimonial home;! and he insists, notoriously, that the truth must be told,!? promises kept, and property returned to its rightful owner no matter what the consequences. Less well known are Kant’s views on the philosophical significance of the sort of controversies about justice and rights in which he partic- ipated. We are so accustomed to citing him as either an ally or a resource in the presentation of our own theories (or as a beating stick in our critiques of “Kantianism”) that we have neglected his discussion of the extent to which disagreement about justice (even honest disa- greement among people of good will) constitutes a problem — a prob- Jem to which positive law (that is, law accepted as authoritative without regard to the justice of its content) is the solution. This Article attempts to remedy that neglect. Taking as my text the striking passage from Kant’s discussion of public law in Metaphys- ical First Principles of the Doctrine of Right cited at the very begin- ning of this Article and focusing steadily on what Kant regarded as his work in legal and political philosophy (which is not just the applica- tion of his moral philosophy to issues of public concern), I attempt to interpret and, in places, to reconstruct his understanding of disagree- ment and his argument for the paradoxical claim that each person do- ing what seems right to him is tantamount to that person’s renouncing the concept of right altogether. My strategy is complicated. I begin, in Part II, by setting out the problem that I want to discuss — that is, the problem of disagreement about justice and right — and what I take to be Kant’s solution to it — the authority of positive law — in terms that make no reference to Kant’s writings. My aim is to give readers an initial ‘feel’ for the 7 See JOHN Rawus, A THEORY OF JusTICe 251-57 (1971). For vigorous restatements of utilitarian theory since 1971, see Roper E. GooDIN, UTILITARIANISM AS A PUBLIC PHILOSOPHY passim (1995); RM. Hare, MORAL THINKING: Its Levets, METHOD AND POINT passim (1981), 8 See, e.g, MICHAEL J. SANDEL, LIBERALISM AND THE LiMtTs OF JusTICE 1 (1982) 9 See KANT, supra note 2, § 49, at 143 [Ak. 334) 10 See id. § 25, at 97 [Ak. 278] 11 See IMMANUEL KANT, On a Supposed Right to Lie from Altruistic Motives, reprinted in CriTiQue OF PRACTICAL REASON AND OTHER WRITINGS IN MORAL PHILOSOPHY 346, 347-48 (Lewis W. Beck ed. & trans., 1949)1996] KANT'S LEGAL POSITIVISM 1537 plausibility of the position before embarking on the more tedious busi- ness of presenting it as an interpretation of Kant. Then, in Parts DI and IV, I consider various reasons why legal scholars who think of themselves as Kantians may have difficulty accepting this position as Kant’s view. ‘After these preliminaries, I proceed to the direct consideration of Kant’s arguments. Parts V and VI are the core of the Article. They attempt to answer three questions: why, on Kant’s account, should people be expected to disagree about justice; why should disagreement among reasonable people about rights and justice be expected to lead to violent conflict in the absence of positive law; and what exactly is so bad about this sort of conflict from a Kantian point of view? An- swering these questions will give us a sense of Kant’s distinctive con- ception of the state of nature — the situation in which each person does what seems right and good to him — and of the advantages that accrue when we move from this situation to a civil society governed by positive law. The nature of that move is discussed in Part VIL. There I consider Kant’s curious combination of social contract theory with the view that we are required to force one another into civil soci- ety; I also consider whether, in Kant’s view, positive law is subject to any natural-law constraints. The overall aim of the Article is not to denigrate or undermine the practice of enlisting Kant as an ally in the presentation of our substan- tive ideas about law and justice. If that practice ever withers away it will be because of the critiques of jurists like Bruce Ackerman and Richard Posner, pleading for us to address issues of legal and constitu- tional reform directly without cover of philosophical authority..? T hope, however, that an exposition of Kant’s views on the rela- tionship between positive law and disagreement will make us a little more humble when we present our own substantive proposals. Often the spirit of our normative arguments about justice and rights is “Here is what I would do, if I ran the country.” But any discussion in juris- prudence and political philosophy must first acknowledge the fact that there are many of us and that we disagree on these matters. It is important, therefore, for theorists to pause occasionally in the elabora- tion and defense of their own proposals to reflect on the significance of this plurality and to grasp the point that law claims our allegiance in 12 According to Bruce Ackerman, “(to discover the Constitution, we must approach it without the assistance of guides imported from another time and place. Neither Aristotle nor Cicero, Montesquieu nor Locke, Harrington nor Hume, Kant nor Weber will provide the key.” I BRUCE ACKERMAN, We THE PEOPLE: FOUNDATIONS 3 (1991). Similarly, Richard Posner argues: We ask not whether the economic approach to law is adequately grounded in the ethics of Kant or Rawls or Bentham or Mill or Hayek or Nozick — and not whether any of those ethics is adequately grounded — but whether it is the best approach for the contemporary ‘American legal system to follow, given what we know about markets, ... about American legislatures, about American judges, and about the values of the American people. RICHARD A. POSNER, OVERCOMING LAW 403-04 (1995)1538 HARVARD LAW REVIEW [Vol. r09:1535 the circumstance of controversy over the substantive values that it em- bodies. That proposition can seem scary, for it invites us to compro- mise our heartfelt advocacy and to share our carefully constructed intellectual world with views about justice that we regard — perhaps for good reason — as wrongheaded or iniquitous. It may help in al- laying these apprehensions, however, for theorists of justice to realize that, in taking this step, they are not betraying their Kantianism; on the contrary, they are proceeding quite deliberately in the company of Immanuel Kant. IL Law ANnp DISAGREEMENT How we think about disagreement on matters of public concern will determine how we think about politics, and — because law is the offspring of politics — how we think about disagreement will deter- mine, in some measure, how we think about law. For example, the members of a community may be divided on the question whether a testator should have the power to exclude a sur- viving child from the enjoyment of his estate. Imagine that some citi- zens, celebrating testamentary freedom, say that he should — it is, after all, his property that is passing by his will. Others say that he should not — once he is dead, the importance of respecting his arbi- trary freedom diminishes in comparison to the importance of securing the welfare of his dependents. The issue is a political one not simply because the citizens disagree, for we disagree about all sorts of things — for instance, the virtues of the modern novel, the causes of the Punic Wars — on which no political decision is necessary. The issue of testamentary power is a political one because those who disagree on the merits nevertheless agree that the community needs to reach some determinate resolution. Testamentary freedom is not something on which we can agree to differ. Or, rather, we can agree to differ in our opinions, but it is necessary, all the same, that we arrive at some posi- tion on the issue to be upheld and enforced as the community’s posi- tion on the testamentary powers of property owners. Because we disagree about which position should stand and be en- forced in the name of the community, we need a process — a political process — to determine what that position should be. And we need a practice of recording, respecting, and implementing positions of this sort by individuals and agencies acting in the name of the community — a practice that is resilient in the face of disagreement with the com- munity position on the part of those entrusted with its implementation. If we call the position that is identified as the community’s position the Jaw of that community, then the resilience of the practice to which T have just referred is what we mean by the rule of law. Understood in this way, the rule of law is not simply the principle that officials should apply the law even when it disserves their own1996] KANT’ LEGAL POSITIVISM 1539 interests. It is the principle that an official should enforce the law even when it is in his confident opinion unjust, morally wrong, or mis- guided as a matter of policy. The enactment of the law in question is evidence of the existence of a view different from his own concerning the law’s justice, morality, or desirability. In other words, the law’s existence, together with the official’s own opinion, indicates moral dis- agreement in the community. The official’s failure to implement the law because he believes that it is unjust, or his decision to do some- thing other than what the law requires because he believes that action would be more just, is tantamount to abandoning the very idea of law — namely, the very idea of the community taking a position on an issue on which its members disagree. It is a reversion to the situation in which each person acts on his own judgment and does whatever seems right or just to him. Would this result be such a calamity? It may be, if people’s moral judgments are irrational, ill-thought-through, uninformed, or biased. But even assuming that each person does his best to ascertain what is really right or really just, there will still be problems to the extent that different persons arrive (however scrupulously) at different conclusions. Recall our i example. A man dies, and at his death, his daughter is in possession of his house. The representative of a local organization for the relief of stray dogs arrives armed with a piece of paper, signed by the decedent (whose signature is reliably verified), purporting to will the property to the organization. The dogs’ home representative and his supporters are convinced that this issue is prop- erly a matter of testamentary discretion, and so, in the name of justice and property rights, they seek to gain possession of the house. The daughter and the daughter’s friends are equally convinced that her eviction and consequent homelessness would be unjust, and thus, they resist any attempt to effect it. If the community has neglected to take a position on testamentary freedom (or if most citizens ignore whatever position the community has taken when that position con- flicts with their own moral view), then force is likely to be used on both sides. Moreover, as far as each party is concerned, that force is being used righteously, in the name of justice. It is certainly not inappropriate to use force to achieve justice.’ But there is an affront to the idea of justice when force is used by 13 One of the ways in which we delineate the domain of rights and justice from the rest of morality is that rights and justice may properly be enforced. See HLA. Hart, Ave There Any Natural Rights?, 64 Pum. Rev. 175, 178 (1955), reprinted in Tueories oF RIGHTS 77, 79-80 (eremy Waldron ed., 1984). Hart writes: ‘The most important common characteristic of this group of moral concepts is that there is no incongruity, but a special congruity in the use of force or the threat of force to secure that what is just or fair or someone’s right to have done shall in fact be done; for it is in just these circumstances that coercion of another human being is legitimate. a.1540 HARVARD LAW REVIEW (Vol. ro9:1535 opposing sides, confrontationally and contradictorily, in justice’s name. The point of using force in the name of justice is to assure people of that to which they are entitled. But if force is being used to further contradictory ends, then its connection with assurance is ruptured. In such a situation, force is being used simply to represent the vehemence with which competing opinions about justice are held, and this use of force may well be worse than force not being put to the service of justice at all. Hence, there is the need for a single, determinate community posi- tion on the matter — one whose enforcement is consistent with the integrity and univocality of justice. Certainly, justice is affronted in another way if the position identified and enforced as that of the com- munity (on, say, testamentary freedom) is morally wrong. But given the inevitable disagreement on that issue and given the symmetry, for all practical purposes, of the rival positions on the matter — each side is sincere, each side thinks that its view captures what is really just, each side believes that the other is objectively mistaken — there is no political way in which the prospect of this substantive affront can be precluded. All we can do, politically, for the sake of the integrity of justice is ensure that force is used to uphold one view and one view only — a view that anyone may readily identify as that of the commu- nity, whatever his substantive opinions on the matter. The integrity of justice, then, evokes the concept of positive law and the philosophical doctrine of legal positivism: law must be such that its content and validity can be determined without reproducing the disagreements about rights and justice that it is law’s function to supersede. If. NORMATIVE PosITIVIsM ‘The view that I have outlined is complicated, but I do not expect it to be especially controversial. Versions of it have been part of Western jurisprudence, particularly positivist jurisprudence, since Hobbes. What I expect to be controversial is the claim that this view represents the mature philosophy of law of Immanuel Kant. That this is Kant’s view will surprise those who associate legal positivism with the materialism, and perhaps the moral skepticism, of Hobbes, Hume, Bentham, and Austin. The principle of putting per- sonal moral judgments to one side and submitting instead to the arbi- trary contingencies of the powers that be and the laws that happen to exist is usually advocated on the ground that peace and security mat- ter more to each individual than his own convictions about what is really right or really just. In contrast, believing as Kant did that “if justice goes, there is no longer any value in men’s living on the earth,""* one would certainly be expected to believe also that the con- 14 Kann, supra note 1, § 49(EXD, at 14x (AK. 33211996] KANT’S LEGAL POSITIVISM 1541 scientious pursuit of justice matters more than the conflicts and incon- veniences that might flow from each individual doing what seems right or just to him. This contrast, however, between legal positivism and Kantian mor- alism may be misleading if it is based on an assumption that legal positivism is always an amoral position, a position that eschews all moral judgment. At least three of the theorists just mentioned — Hobbes, Hume, and Bentham — adopt a positivist conception of law that is inextricably entangled with the normative part of their political philosophy. “Normative positivism”? The term sounds like an oxymoron. Surely the claimed virtue of positivist jurisprudence is that it avoids evaluation and describes legal systems as they are, not as they ideally ought to be.'* We need to distinguish, however, between: first, the value judgments that might be required in a nonpositivist jurispru- dence to identify some proposition as a valid legal norm; and second, the value judgments that support the positivist position that evalua- tions of the former type should not be necessary. Hobbes, Bentham, and Hume all offered evaluative arguments of the second type: they argued that it was better for reasons of peace, stability, or predictabil- ity if the legality of putative rules of law could be determined by indi- vidual citizens without those citizens having to make value judgments of the first type concerning the content of the putative norms.'* To present Kant as a legal positivist is thus not to neglect Kant the moralizer or Kant the theorist of value and right. Instead, it is a mat- ter of showing why — that is, on what evaluative grounds — Kant defended the idea of positive laws — that is, laws that people could identify as such whatever their particular moral views. IV. THE Uses or Kant Still, the association of Kant and legal positivism is disconcerting. Kant’s philosophy is associated with several positions in modern legal 18 See Jules L. Coleman, Negative and Positive Positivism, 11 J. LEGAL StuD. 139, 147 (1982). Coleman states: Legal positivism makes a conceptual ot analytic claim about law, and that claim should not be confused with programmatic or normative interests certain positivists, especially Bentham, might have had. Ironically, to hold otherwise is to build into the conceptual account of law a particular normative theory of law; it is to infuse morality, or the way the law ought to be, into the concept of law (or the account of the way law is) Ha. 16 Cf. Joseph Raz, The Problem About the Nature of Law, 21 UW. Ontario L. REV. 203, 217-18 (1983) (The [positivist] doctrine of the nature of law yields a test for identifying law the use of which requires no resort to moral or any other evaluative argument. But it does not follow that one can defend the doctrine of the nature of law itself without using evaluative... argu: ments.”). For a more detailed discussion on this point, see GeRALD J. PostemA, BENTHAM AND ‘THE ComMON LAW TRADITION 328-36 (1986).1542 HARVARD LAW REVIEW [Vol. 109:1535 theory, none of which amount to the positivist thesis that I would like to explore. In his preface to a Columbia Law Review symposium on Kantian Legal Theory!’ (a symposium in which, by the way, there is no trace of Kant’s view as expressed in the quotation that begins this Article), George Fletcher associates Kantianism with the recent effort by “a large group of scholars in American and Canadian law schools . . . to ground legal principles in sound, nonutilitarian values.”* The work of John Rawls, for example, has had a tremendous influence on main- stream, normative theory, and Rawls himself for a long time regarded his theory as Kantian, both in spirit and content.!° The systematic character of Rawls’ approach gave scholars confidence that normative theory (as opposed to a series of normative pronouncements) is possi- ble, and the contractarian device of “the original position” — itself di- rectly Kantian in its provenance?? — provides a valuable way of evaluating differences in people’s conceptions of the general good. In fact, Fletcher and many of his cosymposiasts believe that, in making a detailed, normative argument about law, we might do better to look at Kant without a Rawlsian filter. We might do better, that is, to look directly at Kant’s views on property, contract, family relations, and criminal law, in which, for various reasons, “he offers us more than does Rawls in his challenge to conventional views about the basic institutions of the law.” Each of these views implies that Kant’s contribution to legal phi- losophy is primarily a contribution — either in general or in detail, in form or in substance — to the “normative” enterprise of discussing what the law ought to be. So far, that conception of Kant is perfectly compatible with a positivist jurisprudence (just as Bentham’s utilitar- ian reformism is compatible with his view that, formally and structur- ally, the law ought to be such that a person can ascertain what the law is without having to engage in moral reasoning). The sense that Kant’s philosophy is at odds with legal positivism comes from two other sources. 1 Symposium on Kantian Legal Theory, 87 Couum. L. REV. 419 (1987). 18 George P. Fletcher, Why Kant, 87 CoLuM. L. REV. 421, 428 (1987). 19 See RAWLS, supra note 7, at vii, 251-37 (“The theory that results is highly Kantian in nature.”); John Rawls, Kantian Constructivism in Moral Theory, 77 J. Putt. $15, $15 (1980) Rawls no longer characterizes his theory of justice in this way; Kant’s theory, in Rawls's terms, is a “comprehensive” moral and philosophical view, which is inappropriate as a basis for public justification in a society characterized by a plurality of such comprehensive views. See JouN RAWLS, POLITICAL LIBERALISM 99-107 (1993) [hereinafter RAWLS, POLITICAL LIBERALISM]. 2 See InMaNuEL. KANT, On the Common Saying: This May Be True in Theory, But It Does Not Apply in Practice’, reprinted in KANT: PoLITicat. WriTINGS 61, 79 (Hans Reiss ed. & H.B. ‘Nisbet trans., ad ed. 1991). For Rawls’ description of the “original position,” see Rawts, cited above in note 7, at 17-22 21 Fletcher, supra note 18, at 429.19961 KANT’S LEGAL POSITIVISM 1543 In modern discussions of law and the U.S. Constitution, to identify someone as a Kantian is to say that he thinks there are ways of figur- ing out what is really just and what rights we really have — ways that are modes of moral reasoning and that do not leave us at either the mercy of what a legislature has decided or what happened to oc- cur to a contingent set of constitution Framers in Philadelphia in 1787. Thus, Bruce Ackerman describes a group of his colleagues whom he refers to as “rights foundationalists”: When . . . violations { of rights] occur, the foundationalist demands judi- cial intervention despite the breach of democratic principle. Rights trump democracy — provided, of course, that they’re the Right rights. And there’s the rub. Indeed, it is their anxiety over the arbitrary definition of rights that induces thoughtful foundationalists to recur to great philosophers like Kant and Locke... . If judges are to avoid arbitrariness in defining fundamental rights, shouldn’t they take advan- tage of the most profound reflections on the subject available in the ‘Western tradition??? Whereas Ackerman has the foundationalists offering Kantian rea- soning as the prototype for judicial reasoning, Ronald Dworkin takes the position a step further and offers foundationalist reasoning to citi- zens as well as to judges. Dworkin argues that, in a society like ours, citizens are entitled to form and to act upon the judgment that they have certain fundamental rights, even when the highest competent court has rejected such rights.*? Dworkin bases his own substantive account of the rights that we have more on values of equality than on Kantian notions of dignity and autonomy,’* Still, the form of his posi- tion is widely regarded as an extreme version of Kantianism — what is right and just is determined in the first instance by moral reasoning, and in the final analysis, such moral reasoning “trumps” the contingent decisions of courts as well as majoritarian legislatures. If modern jurists view Kant as either a normative law reformer or a champion of rights-as-trumps, a generation of students in political theory have come to see him through the eyes of Robert Paul Wolff as a thinker skeptical of all claims to legal authority, a thinker who in- sists instead on the integrity of individual moral judgment over the arbitrary contingencies of positive law.?> Wolff took the concept of autonomy presented in Kant’s moral philosophy?° and presented it as a matter of duty: “Every man who possesses both free will and reason 22 ACKERMAN, supra note 12, at 12. 23 See RonauD DwORKIN, TAKINGS RIGHTS SERIOUSLY 211, 214-16 (1977). 24 See id. at 198-99. 2S See Rowert P. Wotrr, IN DEFENSE OF ANARCHISM 12-19 (1970). 26 See, ¢.g., IMMANUEL KANT, GROUNDING FOR THE METAPHYSICS OF MORALS 44-45 {Ak. 440] James W. Ellington trans., Hackett Publishing Co. 1981) (1785).1544 HARVARD LAW REVIEW IVol. r09:1535 has an obligation to take responsibility for his actions... .”"” Taking responsibility, he wrote, means figuring out for oneself what one ought to do. The responsible person “may listen to the advice of others, but he makes it his own by determining for himself whether it is good advice.”** He never does what another tells him because he has been told to do it, and in that sense, he is never subject to the will of an- other: “For the autonomous man, there is no such thing, strictly speak- ing, as a command.”9 Because submission to legal authority involves doing certain things just because the legislature tells you, it seems to follow that the burden of Kantian autonomy is that we are required, on principle, to reject legal authority — to become, in a word, anarchists.3° ‘Those brought up to accept this as Kant’s position will, I fear, be quite surprised to find him saying — in the writings that I discuss — that the biggest problem in the state of nature is people trying to fig- ure out rights and justice for themselves — in other words, people exercising the virtue of autonomy in Wolff’s sense — and that, in fact, one’s primary duty is to leave the state of nature as soon as possible and embrace what appear to be the decidedly heteronomous obliga- tions of civil law. It is well known, of course, that Wolff’s inference from Kantian autonomy to anarchy stumbles on the stubborn fact of Kant’s own authoritarianism in politics.** Kant maintained that defiance of the legislature “is the greatest and most punishable crime in a common- wealth, for it destroys its very foundations.”5? Citizens should com- plain about injustice by writing letters and pamphlets — “freedom of 2 WoLFF, supra note 25, at 13, Some of Kant’s own language would seem to support this view: “{TJhat the . . . principle of autonomy is the sole principle of morals can quite well be shown by mere analysis of the concepts of morality; for thereby the principle of morals is found to be necessarily a categorical imperative, which commands nothing more nor less than this very autonomy.” KANT, supra note 26, at 45 [Ak. 440]. Compare, however, the following view: “Since Kant did not say that we have a duty to be autonomous, he would not support Wolff's politics either.” PaTRick RILEY, KaNT’s POLITICAL PHILOSOPHY 147 (1983). 28 WoLFF, supra note 25, at 13. 29 Id, at 15. Of course, the result of one’s own moral deliberations will present itself in the Kantian scheme of things as an “imperative” — that is, the will dictating to the inclinations. See KANT, supra note 26, at 24-27 (AK. 413-18) 30 ‘See WOLFE, supra note 25, at 18. Wolff writes: Insofar as a man fulfils his obligation to make himself the author of his decisions, he will resist the state's claim to have authority over him. That is to say, he will deny that he has a duty to obey the laws of the state simply because they are the lows. In that sense, it ‘would seem that anarchism is the only political doctrine consistent with the virtue of autonomy. I. 31 For a discussion of Kant’s authoritarianism, see Jnrraie G. Murpiy, KANT: THE PHILOS. opHy oF RIGHT 113-40 (1970) 82 KANT, supra note 20, reprinted in KaNT: POLITICAL. WRITINGS, supra note 20, at 811996] KANT LEGAL POSITIVISM 1545 the pen” must not be denied** — but they must completely dissociate their complaints from any thought of disobedience. The moral re- quirement of obedience to actually existing law, Kant concluded, is “absolute.”** This is hardly the language of one who believes that “philosophical anarchism [is] the only reasonable political belief for an enlightened man”°s nor of one who believes that citizens may second- guess the legislature or the courts and follow their own consciences on matters of right and justice. We could perhaps dismiss this authoritarianism as an artifact of Kant’s waning intellectual powers in the 1790s. All of the essays that constitute Kant’s political philosophy date from his declining years, during which, as Hannah Arendt puts it, “the decrease of his mental faculties, which finally led into senile imbecility, is a matter of fact.”3¢ It would be wrong, however, to take that tack — to dismiss the au- thoritarianism as a senile aberration that is unconnected to the glories of the Critical Philosophy — until we are sure that there is nothing to be made of it, nothing to be said for it, nothing in the arguments with which Kant defended it that might be of value to us in our own jurisprudence. V. KANTIAN ConFLIcT The premise of Kant’s account is that, in the absence of legal au- thority, we must expect that individuals will disagree about right and justice and that this disagreement will lead to violent conflict. The task of the legislator is to put an end to this conflict by replacing indi- vidual judgments with the authoritative determinations of positive law. Stated in this way, Kant’s position is reminiscent of that of Thomas Hobbes: individuals fight in the state of nature, and the con- sequent war of all against all can only cease when people submit to a unitary sovereign.’ The propensity of individuals to make judgments of value does not mitigate Hobbesian conflict. On the contrary, value judgments are directly implicated in the struggle for survival: [W]hatsoever is the object of any mans Appetite or Desire; that is it, which he for his part calleth Good: And the object of his Hate, and Aversion, Evill; And of his Contempt, Vile and Inconsiderable. For 38 Id,, reprinted in Kant: PoLITical. WRITINGS, supra note 20, at 85 (emphasis omitted); see algo IMMANUEL KANT, An Answer to the Question: What is Enlightenment?’, reprinted in KANT: PouiticaL WRITINGS, supra note 20, at $4, 5$-56 (asserting the individual’s right to criticize public institutions). 34 See Kant, supra note 20, reprinted in KANT: POLITICAL WRITINGS, supra note 20, at 81 25 Wore, supra note 25, at 19. 38 HANNAH ARENDT, LECTURES oN KANT’s POLITICAL PatLosoPHy 9 (Ronald Beiner ed., 1082) 37 See Tuomas Hosnes, LeviaTHAN 86-90, 117-21 (Richard Tuck ed., Cambridge Univ. Press 1991) (1651),1546 HARVARD LAW REVIEW (Vol. ro9:1535 these words of Good, Evill, and Contemptible, are ever used with rela- tion to the person that useth them: There being nothing simply and abso- lutely so; nor any common Rule of Good and Evill, to be taken from the nature of the objects themselves ... 38 This means that people’s private judgments on matters of right and justice are likely to be both contrary to one another and taken seri- ously enough to be fought over. Indeed, for Hobbes there is a single explanation for both these observations: private judgments on matters of right and justice arise out of the exigencies of individual survival, and the circumstances of human life are such as to provoke anxiety and competition.» This explanation will not do for Kant. Moral judgments of good and evil, right and justice, are not driven by material interest or the exigencies of survival in Kant’s world. Yet Kant, just like Hobbes, thinks of the state of nature — the situation “before external legisla- tion endowed with power appears™° — as a condition of violence. Kant’s state of nature is not necessarily asocial, however. Like Locke,*! Kant believes that there can be “conjugal, paternal, domestic societies” in the state of nature,** which, if we interpret the state-of- nature idea hypothetically, means that social units of this type do not rely on coercive, external law for their existence. Indeed, as we shall see, Kant is only interested in those places in the state of nature where numbers of men live unavoidably “side by side” with each other.*? But though it may be sociable, the state of nature, according to Kant, is a situation in which people have a “tendency to attack one another” and to do so in the name of justice.*4 Unlike Hobbes, Kant does not attribute this antagonism to the con- tingencies of men’s appetites and anxieties. Instead, Kant explains this conflict without resorting to the quality of our motivations: It is not experience from which we learn of men’s maxim of violence and of their malevolent tendency to attack one another before external legis- lation endowed with power appears. It is therefore not some fact that makes coercion through public law necessary. On the contrary, however 38 Id. at 39. 39 See id. at 70-71, 87-88. Elsewhere, Hobbes states: {[Thhe most frequent reason why men desire to hurt each other, ariseth hence, that many men at the same time have an Appetite to the same thing; which yet very often they can neither enjoy in common, nor yet divide it; whence it followes that the strongest must have it, and who is strongest must be decided by the Sword, ‘Tnomas Hoppes, De Cive 46 (Howard Warrender ed., Oxford Univ. Press 1983) (1642) 4© Kant, supra note 1, § 44, at 123 [Ak. 312] 41 See JouN Locke, Two TREATISES OF GOVERNMENT bk. II, § 77, at 319 (Peter Laslett ed., student ed., Cambridge Univ. Press 1988) (3d ed. 1698) (“The first Society was between Man and Wife; which gave beginning to that between Parents and Children; to which, in time, that be- tween Master and Servant came to be added . . ..”, 42 Kanr, supra note 1, § 41, at 121 (Ak, 306} 43 Id. § 42, at sax [AK. 307) 44 Id. § 44, at 123-24 (AK. 312)1996] KANT’S LEGAL POSITIVISM 1547 well disposed and law-abiding men might be, it still lies a priori in the rational Idea of such a condition . . . that before a public lawful condi- tion is established, individual men, peoples, and states can never be se- cure against violence from one another, since each has its own right to do what seems right and good to it and not to be dependent upon an- other’s opinion about this.45 I am not saying that Kant adopts a Rousseauian view of the nobil- ity of natural man in this passage. For Kant, the potential for violent conflict and thus the case for positive law is supposed to survive any realistic assumption that we might make about human nature.“ (If Kant did not adopt this strategy, he would have said nothing to show someone convinced of his own rectitude that it is nevertheless wrong to assert his individual judgment of right against the positive law of the community.) Even if men are angels, they are opinionated angels, and they hold (or there is a strong probability that they hold) conflict- ing views about justice for which they are prepared to fight. So — lacking a Hobbesian explanation — we have to look for dif- ferent, distinctively Kantian answers to the questions raised earlier:*7 what explains moral disagreement, and given disagreement, why should people be expected to fight for their respective opinions? A, What Explains Moral Disagreement? Insistence on diversity of opinion concerning matters of right is not a position commonly associated with Kant’s moral philosophy. Kant is the theorist of the categorical simplicity of duty — the still, small voice that cuts through the tangled calculus of self-interest: The concept of duty in its complete purity is incomparably simpler, clearer and more natural and easily comprehensible to everyone than any motive derived from, combined with, or influenced by happiness . . . . [Thhe concept of duty, if it is presented to the exclusive judgement of even the most ordinary human reason, and confronts the human will sep- arately and in actual opposition to other motives, is far more powerful, incisive and likely to promote success than all incentives borrowed from the latter selfish principle.*® One possible way to reconcile the clarity of duty with the likely existence of moral disagreement is to stress that, in passages like the one just quoted, Kant is talking about the concept of duty as opposed to the detailed conception of duty that is needed to generate a deter- Sd. 46 Kant is at one with David Hume here. See HOWARD WiLLIAMs, KaNT's PoLiTicaL, Pit- LOSOPHY 167-69 (1983). Hume writes: “The question . . . concerning the wickedness or goodness of human nature, enters not in the least into that other question concerning the origin of society * Davip Hume, A TREATISE OF HuMAN NATURE 492 (L.A. Selby-Bigge ed., Oxford Uni Press ad ed. 1978) (1739). 47 See supra p. 1546. 48 KANT, supra note 20, reprinted in Kant: POLITICAL WRITINGS, supra note 20, at 70.1548 HARVARD LAW REVIEW [Vol. 109:1535 minate set of rights“? By itself, though, the concept/conception dis- tinction does not solve our problem. In the Grounding for the Metaphysics of Morals, Kant rejects the notion of happiness as a basis for morality, not because the concept of happiness is unclear, but pre- cisely because no one can agree in detail about what constitutes happi- ness.° If right and justice were similarly contestable, then they would seem to be similarly inadequate as a basis for public morality. Actually, the situation with happiness is a bit more complicated than this description suggests. First, the indeterminacy of happiness is not just interpersonal. Kant says, “unfortunately, the concept of hap- piness is such an indeterminate one that even though everyone wishes to attain happiness, yet he can never say definitely and consistently what it is that he really wishes and wills.”5! Secondly, Kant accepts ab initio that happiness is essentially a private matter: “No-one can compel me to be happy in accordance with his conception of the wel- fare of others, for each may seek his happiness in whatever way he sees fit” provided that it is compatible with the similar right of others.5? We can therefore afford (and should expect) to have disagree- ment about happiness. Justice and right, however, are the things about which we must agree if individuals are to pursue their own con- ceptions of happiness. We cannot afford to have disagreement about right and justice — after all, that is the general tenor of the argument under consideration. So there is a question about why, nevertheless, on Kant’s account we do? The main subject matter of justice and right in Kant’s political philosophy is property — the possession and use of external material resources.53 For Kant, the concept of property, and the allied concepts of empirical and intelligible possession, are amenable to philosophical exposition. (He expounds them in the first seventeen paragraphs of the Metaphysical First Principles of the Doctrine of Right.) 1 will not bore the reader with the details; it is enough to say that, although the exposition is terribly convoluted, Kant does not indicate that he thinks the complexities of these concepts are the source of the dis- agreements we are trying to explain. Kant makes pretty clear, however, that the concepts he develops are likely to involve considerable difficulty and controversy in their applications. In a state of nature, to have property along Lockean 49 For a greater explication of the concepticonception distinction, see RAWLS, cited above in note 7, at , and DWORKIN, cited above in note 23, at 134-36. 50 ‘See KANT, supra note 26, at 27-28 (AK. 418-19] St Id, at 27 (AK. 418] 52 Kant, supra note 20, reprinted in KANT: PoLiTicat, WRITINGS, supra note 20, at 74 $3 Kant, like Hobbes, regarded property as the thread to tug in order to unravel the mysteries of political philosophy. See Hones, supra note 39, at 27 [MI first enquiry was to be, from whence it proceeded, that any man should call any thing rather his Owne, th{aln another mans.” 54 See KANT, supra note 1, §§ 1-17, at 68-90 (Ak. 245-70)1996] KANT'’S LEGAL POSITIVISM 1549 lines or anything like it, people’s rightful holdings would have to be based on a principle such as first occupancy.5> But occupancy, which Kant interprets to mean “taking control," is quite indeterminate: how do we correlate one’s acts of control with an exact extent of land con- trolled?” Besides, the question of how much exactly one comes to own when one takes control of a piece of land will be bound up in part with one’s sense of the effect of one’s action on others’ situations. But it may be unclear how many others there are, or it may be a matter of dispute how many of all the others there are (everywhere) ‘one is supposed to take into account.* Inevitably, disputes will also arise about who is (or who was) the first occupant of a piece of land. That prospect is more or less una- voidable, given Kant’s account of appropriation. To appropriate X is not only to take X under one’s physical control, but to do so in a way such that one’s right in X will be violated if, subsequently, another person uses or encroaches upon X even while the initial appropriator is not actually in physical control of X.5° In the state of nature, how- ever, if one appropriates a piece of land and then wanders off, how is another to know whether the land has already been appropriated or is still available for first occupancy? (This problem is particularly acute in a theory like Kant’s that does not insist on any mark of occupancy, such as labor.*°) SS See id. § 10, at 8r TAK. 259}. Kant rejects the Lockean view that, in the case of land, what is needed is a particular mode of occupancy — labor, and more specifically, for land, cultivation — and he rejects the corresponding plantation ideology that cultivators are entitled to dispossess hunters or nomads. See id. § 15, at 86 [Ak. 265-66]. Kant also condemns the expropriation of native peoples in Africa and America. See id, § 62, at 159 [AK. 353) $6 Id. § 14, at 84 Ak. 263) (emphasis omitted), ST See id. § 1$, at 87 [Ak. 266] (The indeterminacy, with respect to quantity as well as qual- ity, of the external object that can be acquired makes this problem (of the sole, original external acquisition) the hardest of all to solve.”) 58 The potential uncertainty derives from the “Lockean proviso,” which states that an acquist- tion is justified only if “enough, and as good” is left for others, Locke, supra note 4r, at bk. I, $27, at 288, or in weaker versions, only if others’ situations are not worsened thereby, see Ros ert Nozick, ANARCHY, STATE, AND UTOPIA 174-82 (1974). Note that the differences between Kant and Locke on mode of acquisition do not affect the logic of the Lockean proviso; it applies to any theory of unilateral acquisition. See Jeremy WALDRON, THE RIGHT TO PRIVATE PROP ERTY 280-83 (1988) 59 See KANr, supra note 1, § 1, at 68 (Ak. 245] ‘[Slomething external would be mine only if I may assume that I could be wronged by another's use of a thing even though I am not in posses- sion of it, © See id. $17, at 89 [Ak. 268] see also IMMANUEL KANT, Explanatory Remarks on The Metaphysical First Principles of the Doctrine of Right, in THE METAPHYSICS OF MORALS, supra note 1, at 163, § 6, at 169-71 [Ak. 364-65] (describing the tension between the principle of first occupancy and the principle of adverse possession and stating that “the question is whether I can also assert that I am the owner even if someone should come forward claiming to be the earlier true owner of the thing, but whether it was absolutely impossible to learn of his existence as its possessor”)1550 HARVARD LAW REVIEW (ol. r09:1535 Notice that these difficulties of application are not matters on which reason offers no guidance or matters to be settled by arbitrary stipulation, like the rule about which side of the road to drive on.*! Surely, of two people wrestling for control of a piece of land, one or the other was in fact the first occupant; surely, there is a right answer to the question of whether someone, in violation of the Lockean pro- viso, has taken more than his share. Moreover, the fact that people think there is a right answer will likely inspire each party to struggle vehemently for his view of the matter; in contrast, nobody fights very hard over questions like which side of the road to drive on. The trouble with the application of acquisition principles is not that, in theory, no right answers exist, but that there is no basis common to the parties for determining which answers are right. Kant does not explicitly embrace this account of the sources of in- determinacy, nor does he explicitly link this analysis of property and first occupancy to his notion that people are at odds with one another because each person goes around doing what seems right and good to him. But it is a plausible interpretation.°? It is well known in the tradition of thought about property that the principle of first occu- pancy runs into just these difficulties, and that there is no clearly dis- cernible method of preventing such disputes from giving rise to disagreements about who has the right to what, at least in a state of nature, We, of course, might also want to mention other sources of disa- greement that go to the substantive principles of justice or right, not 61 My view is thus different from that of Thomas Pogge, who writes: ‘There is still some residual indeterminacy regarding cases of potential conflict with respect to which even the material principle is indifferent (the problem of coordination). For ex- ample, you might embrace a scheme under which people drive on the left-hand side of the road, while I favor the equally acceptable scheme of driving on the right. This last inde- terminacy, irresolvable @ priori, requires a central legislative process to complement the constraints of natural law by those of positive law... . Positive law irons out this incom- pleteness by selecting, on empirical grounds (such as convenience) and to some extent arbi- trarily, one system of constraints from among those that satisfy pure practical reason. ‘Thomas W. Pogge, Kant’s Theory of Justice, 79 KANT-STUDIEN 407, 414 (1988). Pogge is surely right that there will be some cases of residual indeterminacy. But J also think that Kant means to stress the irresolvability of disagreement about issues on which there is, in principle, a right answer. © 1 am encouraged to find that Wolfgang Kersting sketches out a similar line of argument when he says: ‘The reason why Kant’s philosophy also joins in the chorus of modern political philoso- phy singing “ezeumdum-e-statu-naturali” lies in the indeterminacy of the rational principles of right for the appropriation and use of things... Kant... must argue for a concretiza- tion and differentiation of the implications of rational right through positive right because in the natural condition chaos rules with respect to the concept of right — each person attempts with equal right to fill the emptiness of the natural laws of property with his own interpretation. The result is a war for the monopoly of interpretation over equally justified but incompatible opinions about property . . Wolfgang Kersting, Politics, Freedom, and Order: Kant’s Political Philosophy, in THE CAM. BRIDGE COMPANION TO KANT 342, 352 (Paul Guyer ed., 1992) (footnote omitted)1996] KANT'S LEGAL POSITIVISM 1551 merely their empirical application. Kant disagrees with Locke’s “labor theory” of acquisition, and both of them disagree with Rousseau on the initial desirability of appropriation. Similarly, in our day, every political philosopher has his own theory of justice, and we revel in the fact that no two theories are the same. Yet, I have found it very diffi- cult to persuade colleagues to reproduce or even to recognize, within their philosophical theories of politics, the existence and significance of the controversies that engage them as political philosophers.“ People write about rights, for example, and the appropriate constitutional structure for their implementation as if there were only one theory of rights to accommodate within that structure (their own) and as if their own disagreements with their colleagues down the hall did not indi- cate that a constitution would have to house (that is, provide a frame- work for disagreement among) several conceptions of rights.6> Even John Rawls, whose latest work in political philosophy develops and incorporates a powerful account of the sources of reasonable, or good faith, disagreement, orients his analysis mainly toward philosophical disagreement about the good. He shows little interest in considering its application to disagreements about the right and about justice, even though it is arguable that disagreements about these two matters have the same or similar sources as disagreement about the good. 63 See JEAN-JACQUES ROUSSEAU, DISCOURSE ON THE ORIGIN OF INEQUALITY 44-71 (Donald A. Cress trans, Hackett Publishing Co. 1992) (1758). © See Jeremy Waldron, A Right-Based Critique of Constitutional Rights, 13 OXFORD J. Lycat Stup. 18, 28-36 (1993). 6S Rawls’ discussion of constitutional arrangements is a notable example: “In framing just constitution I assume that the two principles of justice already chosen define an independent standard of the desired outcome. If there is no such standard, the problem of constitutional de- sign is not well posed ....” RAWLS, supra note 7, at 198. I have discussed this point in some- what greater detail elsewhere. See Jeremy Waldron, Disagreements About Justice, 75 PAC. PHIL. Q. 372 passim (1995). © Rawls asks: “Why does not our conscientious attempt to reason with one another lead to reasonable agreement? It seems to do so in natural science, at least in the long run.” Rawzs, POLITICAL LIBERALISM, supra note 19, at 55. Rawls uses the phrase “the burdens of judgement,” id., to articulate his answer to this ques- tion. ‘The burdens of judgment ‘are the many hazards involved in the correct (and conscientious) exercise of our powers of reason and judgment in the ordinary course of political life.” Id. at 53-56. For example, he says that, on any plausible account, human life engages multiple values, and it is natural that people will disagree about how to balance or prioritize them. Also, on any plausible account, people's respective positions, perspectives, and experiences in life will give them different vantages from which to make these delicate judgments. These differences of expe- rience and position combine with the evident complexity of the issues being addressed, and there- fore reasonable persons may disagree not only about what the world is like, but also about the relevance and weight to accord the various facts and insights that they have at their disposal Together, factors like these make disagreement in good faith not only possible but predictable See id. at 55-58. Thus, Rawls concludes that ‘many of our most important judgments are made under conditions where it is not to be expected that conscientious persons with full powers of ‘reason, even after free discussion, will all arrive at the same conclusion.” Id. at 58.1552 HARVARD LAW REVIEW [Vol. r09:1535 Perhaps we fear that dwelling too much on the significance of moral disagreement is tantamount to admitting that there are no right answers in the realm of justice and rights. In recent metaethics, the existence of diversity of opinion has sometimes been adduced as a ground for subjectivism.*’ The inference is fallacious, however. A di- versity of opinion in astronomy does not undermine the proposition that there are objective right answers to various questions about dark matter and other topics; likewise, a diversity of opinion about justice should not undermine our view that there are right answers in that realm as well. What moral disagreement might undermine, however, is our confidence that the right answer can be discerned (from among all the views that are put forward) in any way that is politically dispositive. One further point about disagreement warrants discussion. In her Lectures on Kant’s Political Philosophy, Hannah Arendt laid great stress on Kant’s claim that thinking is something that we must do together and is not something that individuals can do well alone.”° To the proposition that freedom of thought might survive the suppression of freedom of speech, Kant responds: “But how much and how accu- rately would we think if we did not think, so to speak, in community with others to whom we communicate our thoughts and who commu- nicate their thoughts to us!”! Although enlightenment for Kant means thinking for oneself,’? one is only thinking for oneself when one ex- poses one’s views to “the test of free and open examination.”’? From this perspective, it is quite likely that individuals, in the state of na- ture trying to figure out principles of right and justice, will come up with partial or one-sided, and thus, antagonistic, views. These views © See JOHN L. Mackie, EHics: INveNTING RiGit AND WRONG 36 (1977) (“TRladical differ- ‘ences between first order moral judgements make it difficult to treat those judgements as appre- hensions of objective truths.” 68 See Michael Moore, Moral Reality, 1982 Wis. L. REV. 1061, 1089-90 (maintaining that the crudest argument from diversity to subjectivism confuses objectivity with intersubjective agreement). But if the inference from diversity to subjectivism is fallacious, then so too would be any converse inference that, because Kant is an objectivist about justice, he cannot therefore believe in the existence of diversity of opinion or make anything significant of it in the fields of political and legal philosophy. © See Jeremy Waldron, The Irelevance of Moral Objectivity, in NATURAL Law THEORY: ConTemPorARY ESSAYS 158, 171-84 (Robert P. George ed., 1992). 10 See ARENDT, supra note 36, at 10, 40-42 74 TnmanueL KANT, What is Orientation in Thinking?, reprinted in KANT: Pourticat. WRiT- INGS, supra note 20, at 237, 247 7 See id, reprinted in Kant: POLITICAL WRITINGS, supra note 20, at 249 n.* 13 ARENDT, supra note 36, at 32 (quoting IMMANUEL KANT, CRITIQUE OF PuRE REASON 9 na (Ak. Axi] (Norman K. Smith trans., St. Martin’s Press 1965) (1782)) (internal quotation marks omitted); see also id, at 42 (noting that, for Kant, thinking for oneself requires “applying critical standards to one's own thought” and that this “application one cannot learn without . . . the testing that arises from contact with other people's thinking”)1996) KANT LEGAL POSITIVISM 1553 would benefit from the “public use of man’s reason” that is available only in civil society.” Kant’s answer, then, to our first question — what explains the existence of moral disagreement? — appeals in the first instance to the practical difficulties that stand in the way of any uncontroversial ap- plication of principles of justice governing the initial acquisition of property. But once we see this potential for disagreement at the level of application, I believe that we must also face the prospect of more general theoretical disagreement about the contents of the principles themselves. As I have emphasized, it is certainly our experience that widespread observance of scrupulous standards for philosophical thinking is no barrier at all to the emergence of a diversity of conflict- ing theories and principles. And there is, I believe, no reason to think that things were any different among moral and political philosophers in Kant’s day. B. Why Would Disagreement over Principle or Application Lead to Violence in the State of Nature? At some points, Kant explains the likelihood of fighting in the state of nature without necessarily assuming that each of the fighters be- lieves he has right on his side: No one is bound to refrain from encroaching on what another possesses if the other gives him no equal assurance that he will observe the same restraint toward him. No one, therefore, need wait until he has learned by bitter experience of the other’s contrary disposition; for what should bind him to wait till he has suffered a loss before he becomes prudent, when he can quite well perceive within himself the inclination of men generally . . . (not to respect the superiority of the rights of others when they feel superior to them in strength or cunning)?” Kant’s position here is not much different from that of Hobbes, who conditioned any sort of modest or reasonable behavior by individuals in the state of nature on some assurance of security from others.”¢ For both philosophers, apart from such assurances, we may do whatever we think necessary to promote our personal interests: “men do one an- other no wrong at all when they feud among themselves.””” The more interesting answer to our question, however, assumes that the parties are acting on principle, that is, that they each believe that justice is on their side. Why, on this assumption, would they fight? A number of different answers can be given. 74 KANT, supra note 33, reprinted in KANT: POLITICAL WRITINGS, supra note 20, at $5. 1S KANT, supra note 1, §42, at 122 [Ak. 307] %6 See Howses, supra note 37, at 110 (“For he that should be modest, and tractable, and performe all he promises, in such time, and place, where no man els should do so, should but make himselfe a prey to others, and procure his own certain ruine, contrary to the ground of all Lawes of Nature, which tend to Natures preservation.”) 77 Kant, supra note 1, § 42, at 122 [Ak, 307}1554 HARVARD LAW REVIEW [Vol. 109:1535 First, and most obviously, the issues likely to be in dispute — the extent of property rights — are issues that matter to people. The ma- terial necessities of life are moderately scarce.’® Even if our opinions about right and wrong in the state of nature are not merely the reflex of our survivalist impulses (as Hobbes thought”), still the opinions are shaped by the conditions of our survival. One who believes that he is entitled to use a certain resource holds not just an academic view in moral philosophy, but also a moral view about the basis on which his life is sustained. Another way of putting this thought is that we cannot afford to postpone the appropriation and use of material, external resources un- til consensus is reached on matters of justice. Kant has his own ver- sion of John Locke’s dictum that “[i]f such a consent as that was necessary, Man had starved, notwithstanding the Plenty God had given him.”®° Useful things, Kant postulates, must be able to be used;* people must be able to make at least provisional acquisitions of external resources even if there is no state to ratify their actions.*? But given that people are likely to disagree about the principles governing acquisition and are certain to disagree about their application, we may expect that, in many cases, more than one person will claim the same thing. The material urgency that necessitates provisional acquisition in the first place is likely to preclude any gentle, bilateral withdrawal or moderation of the competing claims Secondly, the claims of justice that accompany conflicting acquisi- tions are not just urgent in a material sense; they are likely to be vehe- ment in their moral tone as well. Kant sees this vehemence — the tendency to insist on the righteousness of one’s own way of viewing right and wrong — as a general characteristic of man’s “unsocial so- ciability."*° Even the mere existence of another person, trying to fig- ure things out morally, is a standing affront to a given individual, because as Kant puts it, the latter person “encounters in himself the unsocial characteristic of wanting to direct everything in accordance with his own ideas.”** A third point addresses directly the role of force in all of this. We are not talking about people fighting or killing one another over whether to apply the categorical imperative. The issues of right and 18 For Kant’s conception of scarcity, see IMMANUEL KANT, Idea for a Universal History with 4 Cosmopolitan Purpose, reprinted in KANT: POLITICAL WRITINGS, cited above in note 20, at 41, 43. 19 See Hopnes, supra note 37, at 39 % Locke, supra note 41, at Dk. IT, $28, at 288, 81 See KANT, supra note 1, $2, at 68 [Ak. 246] 82 See id. § 15, at 85-86 [AK. 264-65]. 33 KANT, supra note 78, reprinted in KANT: POLITICAL WRITINGS, supra note 20, at 44 (em- phasis omitted) 8 1d., reprinted in KANT: POLITICAL WRITINGS, supra note 20, at 44.19961 KANT’S LEGAL POSITIVISM 1555 justice deal morally with matters that already concern the extent to which one person’s external actions affect the external freedom of others. The very subject on which these individuals are tussling is the interplay of forces — crudely stated, who should give way when bod- ies collide. To hold a view about justice or right, according to Kant, is to identify those situations in which one may physically counter an- other’s act of force. Physical coercion is justified as a “negation of the negation” whenever it is used against an action that wrongfully hin- ders or interferes with someone else’s external freedom.’ As Kant sees it, if people disagree about which actions wrongfully hinder free- dom and which ones do not, then they disagree about the occasions on which force may be used. All three of these points elaborate, in different ways, Kant’s as- sumption that the problems in the state of nature apply only to people who “cannot avoid living side by side with all others.” For Kant, proximity to others is, in Rawls’ language, one of “the circumstances of justice.”*” If humans were widely dispersed across the face of the earth and rarely encountered one another, then there would be no need for a civil system of right or law because no one’s external ac- tions would impinge anyone else’s freedom and no one would compete for the use of external resources.* This view gives Kant an interesting basis for thinking about the individuation and territorialization of states. Assume that the popula- tion of the earth is not uniformly dense but instead is distributed in clusters (for example, in fertile environments). In all likelihood, we will have our most frequent or densest patterns of interaction and therefore greatest chance of quarrels with those who are physically closest to us; such quarrels will center particularly on the resources that led a bunch of us to cluster in a given, propitious environment in the first place. We may have occasional dealings with people from other places, but those of us who are clustered together here will rec- ognize that we have to solve our problems with regard to these re- sources and thereby come to terms with those who are near us, whatever other accommodations we may make with those who are 85 Kant explains: [If @ certain use of freedom is itself a hindrance to freedom in accordance with universal laws (Le., wrong), coercion that is opposed to this (as a hindering of a hindrance to free- dom) is consistent with freedom in accordance with universal laws, that is, it is fight. Hence there is connected with Right by the principle of contradiction an authorization to coerce someone who infringes upon it. Kant, supra note 1, §D, at $7 [AK. 231] 86 Id. § 12, at var (Ak. 307] 87 Rawts, supra note 7, at 126-30. 88 See KANT, supra note 1, § 13, at 83-84 [AK. 262] ({IIf {the] surface (of the earth] were an unbounded plane, men could be so dispersed on it that they would not come into any community with one another, and community would not then be a necessary result of their existence on the earth.”1556 HARVARD LAW REVIEW (Vol. 109:1535 distant from us, The requirement that we reach agreement with those who are clustered in our particular territory forms the basis for a lo- cal, territorialized legal system.*° What I have just outlined may seem at odds with how Kant treats “cosmopolitan Right” — the theory that we share the earth with all others and are, in some sense, in natural community with them. Kant’s position, however, is best understood to indicate the provisional and essentially inter partes character of the laws that rule the mem- bers of a particular cluster.°! His cosmopolitan internationalism de- rives from a sense that we are gradually coming closer and closer to all others on earth;?? however, because we are already side-by-side with some others, the establishment of particular legal systems in par- ticular places has particular urgency. VI. CoNFLIcT AS Moral CALAMITY From a Kantian point of view, it is not enough to say that a state of nature in which each person acted on (and fought for) his own judgment of justice would be violent and thus unpleasant. For just as Kant does not want to rest the likelihood of violence on any contin- gent premise about human motivation,®? so too he does not want to base his judgment of the unacceptability of such violence on any as- sumption about what we would or would not enjoy. What, then, can we say goes wrong — from a Kantian perspective — when people act forcefully but unilaterally on their own, different conceptions of what justice and right require? The answer to this question will lay the foundation for Kant’s case in favor of positive law.** 8 See Jeremy Waldron, Special Ties and Natural Duties, 22 Pui. & Pus. AFF. 3, 11-15 (1993) (discussing the limited range of justice principles that any country’s legal institutions administer). 50 Kant, supra note 1, § 62, at 138 (Ak. 352] (emphasis omitted). Kant elaborates: All men are originally (1e., prior to any act of choice that establishes a right) in a possession of land that is in conformity with right, that is, they have a right to be wher- ‘ever nature or chance (apart from their will) has placed them. This kind of possession is possession in common because the spherical surface of the earth unites all places on its surface . Id. § 13, at 83 (Ak. 262}, 51 See id. § 15, at 85-87 [Ak. 265-66}. For example, those of us in the United States have had to define our rights against one another vis-a-vis the local resources. ‘This leaves open the ques- tion whether we, individually or collectively, ought to share these resources with people living elsewhere % See id. $62, at 158 (Ak. 352] (Speaking of “a community of possible physical interaction (commerciuom), that is, .. . a thoroughgoing relation of each to all the others of offering to engage in commerce with any other” % See supra Part V. 9 ‘That is provided, of course, that Kant can show that the problems he outlines are problems that are cured by the establishment and implementation of a scheme of right standing in the name of the whole community — a scheme that, in its substance, may or may not be what justice requires. We address this latter phase of the argument in Part VII below.1996] KANT'S LEGAL POSITIVISM 1557 We can glean a number of arguments from the Metaphysical First Principles of the Doctrine of Right. Admittedly, some of them are no more than intimations on Kant’s part, so what follows will be a devel- opment and reconstruction as well as an interpretation of Kant’s theory. ‘The line of argument most prominent in Kant’s text springs from the mismatch between the unilateral character of a property appropri- ation in the state of nature and the universal character of the obliga- tions that such an appropriation purports to generate: When I declare (by word or deed), I will that something external is to be mine, I thereby declare that everyone else is under obligation to refrain from using that object of my choice, an obligation no one would have were it not for this act of mine to establish a right.°5 We are familiar with people creating obligations for themselves through unilateral actions (by promising, for example). But acquisition involves one person’s creating obligations for others, obligations that are wholly for the benefit of the appropriator. By his own actions, the appropriator purports to acquire not duties but rights against all the world. Thousands of other people, including people he has never met and people who have never even heard of him, suddenly find them- selves laboring under obligations that they did not have before. More- over, the duties that they acquire in this way are potentially onerous ones, affecting, under conditions of scarcity, the material resources that they may use to sustain their lives.°> Kant maintains that this momentous imposition of duties on others cannot possibly have any validity if the imposition is the product of a merely unilateral will — “a unilateral will cannot put others under an obligation they would not otherwise have.”°? Why not, exactly? Kant’s reasons have to do with the general systematicity of right. Any obligation that a person bears must be presented as part of a system of mutual respect among all persons, not merely as an artifact of one person’s demands. People are entitled to assume in the state of nature that their external freedom will be limited only to the extent necessary to harmonize their freedom with that of everyone else in accordance with a universal law;% and it is not clear how a unilaterally imposed obligation fits into that picture. At the very least, a person faced with an obligation correlative to someone else’s acquired property right is entitled to ask what a uni- versalized system of such rights would look like. With universality 9S Kant, supra note 1, $8, at 7 [Ak. 256] ‘96 See WALDRON, supra note 58, at 266-71 (discussing contingent rights and the moral effect of appropriation) 9? KANT, supra note 1, § 15, at 85 [Ak. 264]. 98 See id. §C, at 56-57 (Ak. 230-31]1558 HARVARD LAW REVIEW [Vol. 109:1535 goes reciprocity,” and to protect his own interest, the person encum- bered by the obligation will ask how he might make a similar acquisi- tion, impose duties on others, and expect those duties to be upheld. Kant writes: I am . . . not under obligation to leave external objects belonging to others untouched unless everyone else provides me assurance that he will behave in accordance with the same principle with regard to what is mine. . . . [A] unilateral will cannot serve as a coercive law for everyone . . since that would infringe upon freedom in accordance with universal laws. So it is only a will putting everyone under obligation, hence only a collective general (common) and powerful will, that can provide everyone this assurance. What is needed, in other words, is “a will that is omnilateral”™ rather than unilateral, and such a collective will, Kant seems to imply, only resides in the legislative will of the state. Not so fast, you might object. Is it not possible for the will of a Kantian individual to be “omnilateral” if the idea of universalizability disciplines that person’s willing??? (Isn’t that, after all, exactly what judging things from the moral point of view is, according to Kant?) On this objection, it would be wrong to assert that an individual’s acting on his own judgments in the state of nature amounts to a uni- lateral will governing matters that the common will ought to control. Instead, an individual acting on his own moral judgments in the state of nature already invokes universalization and thus transcends his uni- lateral viewpoint. The objection evokes an image of individual thinking derived from Kant’s moral philosophy: I need no far-reaching acuteness to discern what I have to do in order that my will may be morally good. Inexperienced in the course of the world and incapable of being prepared for all its contingencies, I only ask myself whether I can also will that my maxim should become a uni- versal law.!0% 89 See id. $8, at 77 [Ak. 255-56) 100 rd. 401 Fd. § 14, at 84 (AK. 263]. 102 Kant toys with this possibility at one stage in his discussion of frst occupancy when he first identifies original acquisition with unilateral acquisition and then continues: However, if an acquisition is first it is not therefore original. For the acquisition of a public rightful condition by the union of the will of all for giving universal law would be fan acquisition such that none could precede it, yet it would be derived from the particular wills of each and would be omsnilateral, whereas original acquisition can proceed only from a unilateral will Id. § 10, at 81 (AK. 259]. To the extent that I understand this text (which is not very much), I think Kant may be suggesting that a will that knows itself to be really the first appropriator (with respect to a given resource) is intervening qua the public will rather than the will of a particular person. 103 KANT, supra note 26, at 15 (Ak. 403)19961 KANT’ LEGAL POSITIVISM 1559 The would-be appropriator tests the principle of his acquisition by asking whether it would be possible for everyone to proceed on such a principle. If the answer is “Yes,” then he is morally entitled to proceed — according to this objection — with or without the actual ratifica- tion of a full-fledged legislature. A related model of individual thinking is found in the Critique of Judgment,'°* which Hannah Arendt contends is the real locus of Kant’s political philosophy.°> There, Kant talks about a way of judging that . . . takes account (a priori), in our thought, of everyone else’s way of presenting [something], in order as it were to compare our own judg- ment with human reason in general and thus escape the illusion that arises from the ease of mistaking subjective and private conditions for objective ones, an illusion that would have a prejudicial influence on the judgment.1°6 In this model, a person disposed to regard himself as entitled to a given resource through appropriation nevertheless pauses and first asks, “How are other people likely to view this ‘acquisition’ given their different interests and situations?” He tries to form a fair judg- ment that could be maintained from anyone’s point of view, not just from the point of view of his own interests and opportunities. Kant describes the person who makes judgments of this kind as a man with a broadened way of thinking if he overrides the private sub- jective conditions of his judgment, into which so many others are locked, as it were, and reflects on his own judgment from a universal standpoint (which he can determine only by transferring himself to the standpoint of others).!07 Why then, for Kant, are neither of these modes of individual judg- ment — the moral invocation of universalizability or the adoption of the perspective of others — sufficient to overcome the problem of the unilateral character of individual acquisition in the state of nature? There is no doubt that Kant thinks something like this individual, moral thinking is required when particular persons make particular acquisitions in the state of nature. Even one’s provisional acquisitions must be undertaken “in conformity with the Idea of a civil condi- tion”! — that is, they must be guided by the idea of a system of property rights that can function consistently as a body of civil law. But this ideation, though necessary, is not sufficient for Kant. Why not? 108 Iumanvel. Kant, Crrrique oF JuocMent (Werner S. Pluhar trans, Hackett Publishing €o, 1987) (1790). 105 See ARENDT, supra note 36, at 10-16. 106 KANT, supra note 104, § 40, at 160 (Ak. 293] (alteration in original). 107 Id. § 40, at 16r [AK. 295} 108 KANT, supra note 1, § 15, at 85 (Ak. 264] (emphasis added).1560 HARVARD LAW REVIEW [Vol. 109:15 35 Kant’s answer cannot be that there is a difference between the in- dividual thought-experiment of putting oneself in others’ shoes and the political discipline of really listening and responding to what others actually have to say — although, of course, there is.1°° Kant does not have a robust, participatory image of politics; the supersession of indi- vidual judgments of right by the centralized deliverances of a civil legislator, in his scheme of things, might involve a decline in genuine “omnilateralism.” He does not claim for positive law that it actually takes account of everyone’s circumstances or everyone’s point of view. The virtue of positive law resides in its univocality, its power, its be- ing put forward in the name of the whole community, not in its re- flecting necessarily, in its content, the interests and concerns of all those who are individually subject to it. To answer the question, we have go back to the stubborn point that whatever rosy things we want to say about either of these modes of individual “omnilateralist” thought, we cannot say that either of them will lead different individuals to converge on the same conch sion. The irremovable fact about individual moral reasoning is thi my universalizations are likely to differ from yours; my attempt to take everyone’s point of view is likely to lead to a different conclusion from your attempt to take everyone’s point of view; and the deliver- ances of my reasoning guided by the idea of a civil condition will not be the same as the deliverances of your reasoning guided by that idea. As long as individuals come up with different judgments, we remain in a situation in which force will be used unilaterally — in fact, if not in spirit — by different factions to support their different views about what justice really requires. We return, then, to the argument that I sketched out at the very beginning of this Article. It is not inappropriate for force to be used to secure justice and right. But the point of using force must be to assure people of that to which they have, as a matter of justice, a right. If people use force to secure ends that are contradictory, then they rupture the connection linking force and assurance. In this sce- nario, each person uses force, at best, simply to vindicate the vehe- mence with which each holds his own opinion about justice; force contributes nothing to the security of conditions of right. When Kant raises the concern about unilateralism, it is based not only on the requirement for a universalized perspective, but also on the need for a systematic basis of mutual assurance. Let me quote 109 ‘There is a difference, of course. See JOHN S, Mitt, ON LipeRty 45 (Currin V. Shields ed., Liberal Arts Press, Inc. 1956) (1859) (noting the difference between hearing others’ objections presented by the person who is about to go on and rebut them and hearing others’ objections “from persons who actually believe them, who defend them in earnest and do theit very utmost for them”), HO See supra note 13 and accompanying text.1996] KANT’S LEGAL POSITIVISM 1561 again the crucial passage from section eight of the Metaphysical First Principles of the Doctrine of Right: Iam... not under obligation to leave external objects belonging to others untouched unless everyone else provides me assurance that he will behave in accordance with the same principle with regard to what is mine. . . . [I]t is only a will putting everyone under obligation, hence only a collective general (common) and powerful will, that can provide every- one this assurance.1!+ The association that matters here is the association of force with univocality. Under a condition of mutual assurance, a person can be sure that his voluntary restraint (in regard to property) will be matched by the reciprocal restraint — if need be, the secured recipro- cal restraint — of others, But if there are several conceptions of jus- tice and rights loose in the community, each supported by its own self- righteous militia, any sense of universalizability, reciprocity, or respect for others will remain merely academic. Because of cross-cutting pat- terns of coercion and enforcement, no single sense of right will prevail. At best, the individual will be in the sort of Hobbesian position of maintaining his own sense of justice “in foro interno.”? In the Kant- ian scheme of things, this outcome would be a travesty, for as we have already noted, the whole point of justice and right is to regulate the external characteristics of conduct, not to regulate attitudes." The basic tenor of Kant’s argument is summed up in the procla- mation “There is to be no war” — which Kant calls the “irresistible veto” of “morally practical reason” — “for war is not the way in which everyone should seek his rights.”""* Again, this proposition is not sup- posed to mean that force is inappropriate when upholding rights; we have seen that Kant denies this suggestion,"! and that modern polit- ical philosophy follows him in that belief. What is precluded, Kant insists, is a war or conflict of forces deployed in the name of right. For when force presents itself in that mode, it presents itself purely in the character of vehemence trying to prevail by its powerfulness alone (notwithstanding the moral banners raised on each side), rather than as something self-canceling — the negation of the negation, “a hinder- 11 Kawr, supra note 1, §8, at 77 (Ak. 255-56]. 12 Honwes, supra note 37, at 110 (*The Lawes of Nature oblige in foro interno; that is to say, they bind to a desire they should take place: but in foro externo; that is, to the putting them in act, not alwayes.”) 13 See KANT, supra note 1, § C, at $6-$7 [AK. 230-31] ({Alnyone can be free as long as I do not impair his freedom by my external action, even though I am quite indifferent to his freedom ‘or would like in my heart to infringe upon it” 118-4, at 160 [Ak. 354) 1S See supra p. 1539. Indeed, Kant entitles one of the early sections of the Metaphysical First Principles of the Doctrine of Right “Right Is Connected with an Authorization to Use Coercion.” Kanr, supra note 1, §D, at §7 (Ak. 231) N16 ‘See supra note 13.1562 HARVARD LAW REVIEW [Vol. 109:1535 ing of a hindrance to freedom”'!’ — which is how Kant wants to un- derstand the contribution that coercion can make to justice. VIL. From STATE oF NATURE TO CrviL SOCIETY When you cannot avoid living side-by-side with others, Kant says, “you ought to leave the state of nature and proceed with them into a rightful condition, that is, a condition of distributive justice.”""* The move to civil society is mandatory because people desire to make ac- quisitions of resources, and absent civil society, this desire brings them into conflict.19 Finding themselves faced with such conflicts, Kant- ians in a state of nature may, of course, use force to vindicate their respective positions, but only in the context of a determination to move the dispute out of the situation in which it is decided purely by the trial of strength and into a situation in which it is subjected to a determinative law. Indeed, Kant presents the obligation to move out of the state of nature as something that either party to a dispute may enforce. One must “be permitted to constrain everyone else with whom he comes into conflict about whether an external object is his or another’s to enter along with him into a civil constitution.”° Kant is well aware that the compulsory character of the move into civil so- ciety distinguishes his version of contractarianism from that of others (such as Locke!#), Qua contract, he says, the contract establishing civil society “is of an exceptional nature”: In all social contracts, we find a union of many individuals for some common end which they all share. But a union as an end in itself which they all ought to share and which is thus an absolute and primary duty in all external relationships whatsoever among human beings (who can- not avoid mutually influencing one another), is only found in a society in so far as it constitutes a civil state, ie. a commonwealth.12? It might be thought that the issue of whether the move from the state of nature to a civil society is voluntary or mandatory is entirely moot, because Kant maintains anyway that the ideas behind the state of nature and the social contract are entirely fictitious.1*> Certainly, from Kant’s point of view, the transition’s only political relevance is what it tells a person about his moral situation vis-a-vis the civil soci- 17 Kant, supra note 1, §D, at 57 (AK. 237) M8 Fd, § 42, at 121-22 (Ak, 307] 119 See id. $ 44, at 123-24 [Ak. 312-13] (‘So if external objects were not even provisionally ‘mine or yours in the state of nature, there would also be no duties of Right with regard to them and therefore no command to leave the state of nature.” 120 Jd, $8, at 77 (Ak. 2561 121 For Locke, the voluntary decision by any number of individuals to enter civil society “in- Jjures not the Freedom of the rest; they are left as they were in the Liberty of the State of Na- ture.” LOCKE, supra note 41, at bk. IL, § 95, at 331 12 Kant, supra note 20, reprinted in KANT: POLITICAL WRITINGS, supra note 20, at 73. 23 See id., reprinted in Kant: POLITICAL WRITINGS, supra note 20, at 79.1996] KANT’S LEGAL POSITIVISM 1563 ety in which he happens to find himself. It tells him that he is to think about his present allegiance not in light of a voluntary commit- ment, but in light of the reasons that make that commitment neces- sary. Here, Kant’s position is structurally similar to that of Thomas Hobbes, who insists throughout the Leviathan that the extent and the character of one’s political obligation is determined not so much by the explicit terms of the social contract as by the reasons for entering into the contract in the first place.'?5 But the similarity is only structural. For Hobbes, the reasons for entering into the social contract are always, in the end, individualized reasons of survival;!?6 thus, my reasons are not your reasons (as my survival is not necessarily the same as your survival), and my alle- giance may justly end long before anyone else’s runs out. For Kant, in contrast, the hypothesis that one person may force another to enter along with him into civil society indicates that the basis of political obligation is not individualized in this Hobbesian way. So a person is not to regard his allegiance to the state as a voluntary commitment intelligible purely in terms of benefit to his own interests alone. If the subject wants to think about the advantages of membership in civil society, then he must think relationally about what that membership secures, so far as the reciprocity and mutual assurance between his rights and others’ rights are concerned. In other words, he is to be aware that his presence in the civil society is as necessary for the in- terest and advantage of others — others who would be entitled to compel him to enter if he did not want to enter — as for his own interest and advantage. Above all, Kant’s account of the mandatory character of our sub- jection to civil society is essential in justifying what we referred to earlier as his authoritarianism.'?”? The person who calls into question the moral basis of a ruler’s legitimacy acts as though what matters is 124 One commentator argues that the Kantian approach to political obligation cannot dispense with a consent requirement: “Though [people in the state of nature) ought to commit themselves {to accept the authority of a just institution}, they are under no moral requirement to comply with the institution’s dictates until they have commitied themselves.” Mark C. Murphy, Acceptance of Authority and the Duty to Comply with Just Institutions: A Comment on Waldron, 23 PHiL. & Pus. AFF. 271, 276 (1994). But this distinction simply does not survive either the Kantian view that one person may force another to enter civil society when he finds himself in conflict with the other or Kant’s insistence that the question is not how we entered civil society, but rather what ‘our current obligations to it are. 15 See Howpes, supra note 37, at 151. Hobbes states: (The Obligation a man may sometimes have, upon the Command of the Soveraign to execute any dangerous, or dishonourable Office, dependeth not on the Words of our Sub- ‘mission; but on the Intention; witich is to be understood by the End thereof. When there- fore our refusall to obey, frustrates the End for which the Soveraignty was ordained; then there is no Liberty to refuse: otherwise there is. Ia. 126 See id. at 117 12 See supra pp. 1544-45.1564 HARVARD LAW REVIEW [Vol. ro9:1535 that the creation of a civil society happened fastidiously in one way rather than another. But Kant’s argument is that what matters is that there be a civil society and that we be subject to it as soon as people start entering into conflicts about the practical application of principles of justice and right. Similarly, the person who proposes to resist or to disobey a rule of property or justice set up by the civil legislature threatens the very idea of right, according to Kant. For even assuming that the objector’s dissent is conscientious and is based on the most impeccable argumentation, it is still tantamount to turning his back on the idea of our sharing a view about right or justice and implementing it in the name of the community. The one who proposes to resist or to disobey announces, in effect, that it is better to revert to a situation in which each person acts on his own particular judgment about justice. Ultimately, it is in answer to this person that Kant has developed his moral defense of the idea of positive law. What, then, are we to say about the quality of the positive law that is to be enforced, upheld, and submitted to in civil society? Kant’s position surely cannot be that all positive laws are substan- tively right on the merits. At best, the legislator is just another human being trying to figure things out, and his reasoning is no doubt subject to all the vicissitudes that afflict any individual’s thinking about who ought to own what.!*® He makes his determinations in the name of the community as a whole, but important as that banner is, it is not a prophylactic against error. Kant concedes this in the following wry acknowledgement: {While man may try as he will, it is hard to see how he can obtain for public justice a supreme authority which would itself be just, whether he seeks this authority in a single person or in a group of many persons selected for this purpose. For each one of them will always misuse his freedom if he does not have anyone above him to apply force to him as the laws should require it. Yet the highest authority has to be just in itself and yet also a man. This is therefore the most difficult of all tasks, and a perfect solution is impossible, Nothing straight can be constructed from such warped wood as that which man is made of.!?° This statement, by the way, is sufficient to dispose of any argument on Kant’s behalf that whatever the legislative process enacts is just and right by virtue of the process and as a matter of definition. Kant surely thinks that we ought to submit to the results of the legislative process, but not as a matter of pure procedural justice. The passage just quoted makes it quite clear that, even in the case of the most 128 See supra pp. 1548-49 (discussing the vicissitudes surrounding first occupancy) 12 Kann, supra note 78, reprinted in KANT: POLITICAL WRITINGS, supra note 20, at 46i of Henry Hardy, Preface to IsataH BERLIN, THE CROOKED TiMBER OF HUMANITY: CHAPTERS IN ‘THe History oF Ineas at xi (Henry Hardy ed., 1990) (explaining that the book’s title is taken from Berlin's “preferred rendering of his favorite quotation{ ] from Kant”)1996] KANT'S LEGAL POSITIVISM 1565 conscientious legislator, we are, at best, dealing with imperfect proce- dural justice.15° If procedure does not guarantee quality, might quality be assured through substantive constraints? In a recent discussion of Kant’s the- ory of property, Alan Ryan points out that Kant is ambivalent about the idea of positive law simply prevailing, without considering natural law: Thus we find Kant both asserting as vigorously as any legal positivist that men only have property in external things when a legal order gives them that property and provides remedies for its loss, and asserting that we have to assume a ‘natural right’ to appropriate unowned things and make them our property in a state of nature... . We have to hang the moral acceptability of the positive law of any actual system on the prin- ciples which would be the only natural principles of right to govern men in the absence of a formerly constituted legal and judicial system.'3! ‘The conjecture that natural property rights might operate as con- straints on positive law is reflected in Kant’s view that provisional acquisitions of external resources may be made in the state of nature, which it will subsequently be the function of civil society to ratify and to make conclusive.'3? But one cannot — in keeping with the logic of the argument — treat provisional acquisitions in any sort of Lockean way. First, and most obviously, there is no state of nature; as Ryan reminds us, it “is for juridical purposes a logical fiction.”!°> Secondly, it matters enormously that even the logical idea of acquisition in the state of nature is an idea of provisional acquisition, and the term “pro- visional” has a lot of bite. These acquisitions are conceived of as be- ing provisional not only because they have yet to receive society’s full imprimatur, but also because they are the result of conflicting and contradictory individual determinations of justice. The idea of such acquisitions is therefore incapable of playing the sort of role in our current political thinking that Robert Nozick, for example, wanted the principle of justice-in-acquisition to play. The idea that acquisition in the state of nature is provisional walks onto the stage of Kantian theory hand-in-hand with the idea that a system of positive law is going to have to modify most acquisitions, privilege others, and abro- gate some of them altogether in the name of a single, unified approach to justice. At its most generous, the phrase “provisional acquisition” connotes only the idea of some individual’s best effort to figure out — 130 For the contrast between “pure procedural justice” and “imperfect procedural justice,” see Rawts, cited above in note 7, at 85-86 131 ALAN RYAN, PROPERTY AND POLITICAL THEORY 79-80 (1984). 132 See Kann, supra note 1, § 15, at 85 (Ak. 264] (explaining that provisional acquisition can ‘only occur prior to the civil condition, in which the will of all is united for lawmaking, whereas conclusive acquisition takes place only in civil society) 189 RvAN, supra note 131, at 80. 138 See Nozick, supra note 58, at 150-531566 HARVARD LAW REVIEW [Vol. 109:1535 unilaterally — what he is entitled to. But what people need is a sys- tem of property rights that reflects a single community determination of what each is entitled to. Ryan is right to suggest that the concept of individual property rights is a constraining one — that is, the legis- lator must think in terms of individual property. Just because he sets up law in the name of the community does not mean that those laws have to be communalistic in their content. But the legislator is not constrained in the assignment and distribution of individual property rights by what individuals have done in the state of nature by using their own moral resources. If he were so constrained, then his laws would reproduce the conflict and uncertainty of a regime of private judgment rather than supersede that regime. VIM. ConcLustion We must therefore leave Kant in the classic, but honest, predica- ment of the true legal positivist. He has set out the advantages of Positive law and given an indication of what we stand to lose if we abandon it. He does not deny that its contents may be judged want- ing from the transcendent point of view of justice and right. He rec- ognizes (indeed he helps to shape our conception of) the modes of thought that one deploys when one makes moral criticisms of existing law. But in the transition from moral philosophy to political philosophy, Kant insists that we must now appreciate that there are others in the world besides ourselves, and that we are to see the others not just as objects of moral concern or respect, but also as agents of moral thought that is coordinate and competitive with our own. When one thinks about justice, one must recognize that others are thinking about justice and that one’s confidence in the objective quality of one’s own conclusions is matched by others’ confidence in the objective quality of theirs. The irony of law and politics is that this symmetry of self- righteousness is not matched by any convergence on substance — each of two opponents may believe that he is right. If, nevertheless, there are reasons for thinking that society needs just one view on some particular matter to which all its members are to defer, then there has got to be a way of identifying a community view and grounds for one’s allegiance to it that are not predicated on any judgment one would have to make concerning the view’s moral rectitude. That is the positivist position, and Kant’s contribution is to have linked that position conclusively — in the way we have traced — to the idea of a set of property rights, secured and assured as a system.Copyright © 1996 by The Harvard Law Review Association. Copyright of Harvard Law Review is the property of Harvard Law Review Association and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use.