Archiv für Rechts- und Sozialphilosophie 102, 2016/2, 202–221

Marcelo Campos Galuppo

How Law Replaced Morals

A Kantian Contribution

Abstract: Although most scholars try to conceive Immanuel Kant’s Theory of Law and his
Moral Theory as belonging to a System, there is a difficulty that challenges most of the inter-
preters: If there is a moral content that informs how positive Law should be enacted, and hence
if Morals could evaluate Law, why does Kant say that civil disobedience and resistance to Law
cannot rationally be allowed? This apparent incongruence acquires another significance when
one considers the functional and structural differences that Kant establishes between Law and
Morals. If we take them seriously into account, we will realize that Kant operates a radical sep-
aration between Morals and Law, which can no longer derive its content from Morals, but in-
stead looks for an increasingly more political foundation in Modernity.
Keywords: Civil Disobedience, Law and Morals, Rule of Law, Immanuel Kant, Legal Positivism

Introduction

One of the most relevant problems of Philosophy of Law is the problem of the rela-
tionship between the content of positive legal norms and the content of moral norms,
and therefore the fundamental role that Morals should or can assume facing Law.
Many conceptions of this relationship can be represented as follows:1

Fig. 1: Connection Thesis Fig. 2: Separation thesis Fig. 3: Weak connection thesis

For those who agree with the connection thesis, and hence who claim a material con-
ception of Law, positive Law’s contents should always match to the content of moral
norms (Ethical Minimum Theory).
For those who agree with the separation thesis, and hence claim a formal con-
cept of Law, the content of legal norms do not necessarily match the content of moral
norms and thus “any kind of content might be Law”.2 This is the fundamental concep-
tion of Legal Positivism.

1 Stephan Kirste, Einführung in di Rechtsphilosophie, 2010, 100.

2 Hans Kelsen, Pure Theory of Law, 1967, 198
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How Law Replaced Morals 203

For those who agree with the weak connection thesis, there is a part of the legal
positive rules, especially the rules of conduct, that necessarily have a moral content,
but there are some norms beyond them that only have a procedural authorizing con-
tent, and these norms are seemingly destituted of any other moral content.
For many scholars, Kantian theories on the relationship between Law and Morals
can be expressed graphically by figure 1 or, at worst, by figure 3, but never through
the figure 2, since to obey the Law would apparently be a moral duty. I believe, nev-
ertheless, that there are good reasons to Kantian interpreters to claim that the best
way to represent the relationship between Law and Morals is expressed in figure 2, if
we can correct it slightly, since the categorical imperative in Law has an independent
genesis apart from Morality. Consequently, those who disobey a legal standard cannot
be judged morally, but can only be tried by Law, and civil disobedience is not a moral
procedure to evaluate legal rule, but a political mechanism in order to change the po-
litical conditions of an actual society.
To demonstrate this, let us first see why the Kantian refusal of civil disobedience
has shocked his interpreters so much. I will attempt to show that there is no incon-
sistency between Kant’s thought in general and the prohibition of civil disobedience
in his thought. For this, we must previously understand the new problems created by
Modernity, particularly in the development of Liberalism, and how the XVI Century
Reformation has tried to understand the new social conditions that Modernity devel-
ops. We will see that, consistently with Liberalism, Kant established a functional dif-
ference and a structural difference between Morals and Law. If so, Law is supposed to
lose its ties to Morals in order to establish new links with another sphere of reasoning
and legitimacy, Politics, which directly affected the migration that Kantian authors as
Rawls needed to perform in their theories, replacing Politics for Morals in the foun-
dational ground of Law.

I – Civil Disobedience in Kant’s Writings

In On the Common saying: That May Be True in Theory, but it does not apply in practice,
written in 1794, Kant makes the following statement about civil disobedience:
If a people, under some existing legislation, were asked to make a judgment which in all prob-
ability would prejudice its happiness, what should it do? Should the people not oppose the
measure? The only possible answer is that they can do nothing but obey. For we are not con-
cerned here with any happiness which the subject might expect to derive from the institutions
or administration of the commonwealth, but primarily with the rights which would thereby be
secured for everyone.3

3 Immanuel Kant, “On the Common Saying: This May be True in Theory, but it does not Apply in Practice”,
In: Immanuel Kant, Political Writings, 1990, 80. In German: “Wenn also ein Volk unter einer gewissen itzt
wirklichen Gesetzgebung seine Glückseligkeit einzubüßen mit größer Wahrscheinlichkeit urteilen sollte:
was ist für dasselbe zu tun? Soll es für dasselbe nichts zu tun, als zu gehorchen. Denn die Rede ist hier
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To the disappointment of most of his interpreters, three years later, when the first part
of Metaphysics of Morals was published, Kant continued to deny the possibility of a
right to civil disobedience:4
There can therefore be no legitimate resistance of the people against the legislative chief of the
state; for juridical status, legitimacy, is possible only through subjection to the general legis-
lative Will of the people. Accordingly, there is no right of sedition (seditio), much less a right
to revolution (rebellion), and least of all a right to lay hands on or take the life of the chief of
state when he is an individual person on the excuse that he has misused his authority (tyrannis,
monarchomachismus sub specie tyrannicidii).5

Kant’s position is strange to many of the contemporary interpreters. German profes-

sor Otfried Höffe, for example, says:
The Kantian idea of a natural Law (Law of reason) previous to positive Law imparts a revo-
lutionary potential that may not coincide with the absolute refusal of the right of revolution.
It is true that the idea of a right of resistance and revolution guaranteed by the constitution is
contradictory in itself. But according to the normative-critical Kantian principle of civil state,
such a right is itself superfluous, because the political situation that calls for resistance in case of
violation of the inalienable rights of man is deeply illegitimate, as it represents a blatant damage
to a priori determinations to the right of reason.6

And Brazilian professor Joaquim Carlos Salgado asserts:

No insuperable theoretical difficulty occurs to justify the (French) Revolution in the Kantian
system, since Kant recognizes its ethical purpose, as it aimed to attain freedom, supreme crite-
rion and basis of the legal and political order. If in one hand freedom, as the ‘most sacred right’,
demands the existence of a legal state for its conservation and development, even justifying
the war, on the other hand, pietistic faith and the ‘proximity of the Prussian palace’ are not
negligible elements for understanding the Kantian opinion on the revolution as a way of moral
progress.7

nicht von Glückseligkeit, die aus einer Stiftung oder Verwaltung des gemeinen Wesens für den Untertan
zu erwarten steht; sondern allererst bloß vom Rechte, das dadurch einem jeden gesichert werden soll”
(Immanuel Kant, “Über den Gemeinspruch: das mag in der Theorie richtig sein, taugt aber nicht für die
praxis”, In: Immanuel Kant, Schriften zur Anthropologie, Geschichtsphilosophie, Politik und Pädagogik 1 ,
1977, 251 (ÜG, A, 251).
4 Civil disobedience, here, is being taken as genus, which involves the species of resistance and revolution.
5 Immanuel Kant, Metaphysical Elements of Justice, 1999, 125. In German: “Wider das gesetzgebende Ober-
haupt des Staats gibt es also keinen rechtmäßig Widerstand des Volks; denn nur durch Unterwerfung
unter seinen allgemeinen-gesetzgebenden Willen ist ein rechtilicher Zustand möglich; also, kein Recht
des Aufstandes (seditio), noch weniger des Aufruhrs (rebellio), am allerwenigsten gegen ihn, als einzelne
Person (Monarch), unter dem Vorwande des Mißbrauchs seiner Gewalt (tyrannis), Vergreifung an seiner
Person, ja an seinem Leben (monarchomachismus sub specie tyrannicidii)”. (Immanuel Kant, “Die Meta-
physik der Sitten”, In: Immanuel Kant Die Metaphysik der Sitten, 1977, 176.
6 Otfried Hoffe, Introduction a la philosophie pratique de Kant: La morale, le droit e la religion, 1993, 228
7 Joaquim Carlos Salgado, A ideia de justica em Kant: seu fundamento na liberdade e na igualdade, 1995, 305
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How Law Replaced Morals 205

The theses of these authors is seductive: trying to save the system of Kantian philos-
ophy,8 they think that Kant could have been in favor of civil disobedience, and yet
remain consistent with the assumptions of his Critical Philosophy. However, in order
to do justice to the Kantian point of view, we need to reexamine his original contract
argument to verify whether the prohibition on civil disobedience really contradicts
his theoretical framework.
Kant argues that freedom (understood primarily as non-submission of one man to
another, i. e., as practical freedom) is not possible at all in the state of nature. Always
being threatened by the power of others, the natural liberties are weak and contingent.
Therefore, if everyone want to preserve their own freedom, the first principle that
arises in the state of nature is:
One must quit the state of nature, in which everyone follows his own judgment, and must unite
with everyone else (with whom he comes in contact and whom he cannot avoid), subjecting
himself to a public Lawful external coercion.9

Through the original contract, a person’s will identifies itself with the general will ex-
pressed by the sovereign to whom everyone have ascribed such power in order to
ensure everyone’s liberty. The political goal of preventing one’s will of being submitted
by another person’s will could run the risk of ruining itself if the others, claiming they
do not agree with the general will, remain with the right to secede from the civil state
and to return to the state of nature upon disagreement. In addition, not submitting
oneself to the Law that emerges from the original contract could imply to return to the
State of Nature. There cannot be, therefore, an alleged right to resist or to rebel against
the Law of the State.
I believe that Höffe’s and Salgado’s interpretation, as many others, derives on one
hand from a post-Hegelian tendency to think of State as a dialectical overcoming of
Subjective Morals, but also, on the other hand, from the fact that these authors neglect
the Kantian claim that to submit to another one to whom one did not set out to sub-
ject himself or herself implies a larger resignation of freedom than to submit himself
or herself to one who, having authority over someone by his or her own free will,
abuses that authority. Therefore, if we break off with the State of Nature, we would
run the risk of illegitimately submitting ourselves to others by the mere exercise of
their power.
But there is a point that Höffe and Salgado seem to forget: in On the Common
Saying, Kant does not speak about an act of the sovereign that violates a natural Law

8 This endeavor is most likely doomed to failure, and, in my view, we should be happy if we can find a unit
only within the three critiques. It is not the purpose of this article to study the Kantian intention to con-
stitute a system, although it is one of its leading guidelines.
9 Immanuel Kant, Metaphysical Elements of Justice, 1999, 116. In German: “Man müsse aus dem Naturzustan-
de, in welchem jeder seinem eigenen Kopfe folgt, herausgehen und sich mit allem anderen (mit denen in
Wechselwirkung zu geraten er nicht vermeiden kann) dahin vereignen, sich einem öffentlich gesetzlichen
äußeren Zwange zu unterwerfen” (Immanuel Kant, “Die Metaphysik der Sitten”, In: Immanuel Kant Die
Metaphysik der Sitten, 1977, 163 (MS, A 163).
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or justice, but about an act of the sovereign that puts in risk the search by someone of
his or her own bliss (Glückseligkeit).10 Kant opposes the Law created by the sovereign
not to what may be unfair, but rather to the desire of each person about what makes
him or her happy and that could more easily be unfair.
It is not therefore by pusillanimity that Kant denies the right to civil disobedience.
Rather, he does so since he realizes a change in both function and structure of Law
in Modernity. Before we verify this change in the Metaphysics of Morals, we will try to
understand what led him to the necessity of performing such a turn.

II – Modernity and the New Kind of Moral Subject

There are many ways to approach the rupture with ancient-medieval thought that is
in the beginning of Modernity. Hannah Arendt, for instance, refers to a process of
successive overthrows operated by the Great Navigations, the Reformation and the
Scientific Revolution11 that progressively led to the constitution of the individual sub-
ject as the foundation and axis of modern life.
Take as an example the transformations in the Western mind operated by the Prot-
estant Reformation. Among the various theological theses of Luther that he used to
ground his Reformation, two have particular relevance to our study: the principle of the
universal priesthood of all believers and the principle of free examination of the Scriptures.
The universal priesthood of all believers abolished the ecclesiastical hierarchy, in-
sofar as it claimed an absolute equality in accessing God between every believer and
his or her pastor. Against the ruling doctrine of the Roman Catholic Church, to which
this contact occurs only through the mediation of a priest, Luther affirmed: “Priests,
bishops or popes, are neither different from other Christians nor superior to them, ex-
cept that they are charged with the administration of the Word of God and the sacra-
ments, which is their work and office”.12 Unlike Roman Catholicism, to which ordina-

10 “Glückseligkeit” can be translated as “happiness”, but probably it could be better translated as “bliss”.
11 “Three great events stand at the threshold of the modern age and determine its character: the discovery
of America and the ensuing exploration of the whole World; the Reformation, which by expropriating
ecclesiastical and monastic possessions started the twofold process of individual expropriation and the
accumulation of social health; the invention of the telescope and the development of a new science that
considers the nature of the earth from the viewpoint of the universe. These cannot be called modern
events as we know them since the French Revolution, and although they cannot be explained by any
chain of causality, because no event can, they are still happening in an unbroken continuity, in which
precedents exists and predecessors can be named. None of them exhibits the peculiar character of an
explosion of undercurrents which, having gathered their force in the dark, suddenly erupt. The names we
connect with them, Galileo Galilei and Martin Luther and the great seafarers, explorers, and adventurers
in the age of discovery, still belong to the pre-modern world. Moreover, the strange pathos of novelty, the
almost violent insistence of nearly all the great authors, scientists, and philosophers since the seventeenth
century that they saw things never seen before, thought thoughts never thought before, can be found in
none of them, not even in Galileo. These precursors are not revolutionist, and their motives and inten-
tions are still securely rooted in tradition” Hannah Arendt, The Human Condition, 1998.
12 Martin Luther, “To the Christian Nobility of the German Nation”, In: Martin Luther, Three Treatises, 1970, 15.
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How Law Replaced Morals 207

tion implies the changing in the nature of someone (a priest for a layman), protestant
pastors are, as a rule, appointed by election, since there is no substantial difference
between pastors and all other believers. Thus, the choice of pastors lies not anymore
in qualitative criteria, but only on quantitative criteria (the vote).
The second thesis that has an especial meaning for us is the free examination of the
scriptures, which far exceeds the simple claim to universal access and reading of the Bi-
ble, since it includes a specific hermeneutic principle, formulated by Luther for the first
time in the Diet of Worms. Summoned to recant his writings, Luther refused to do so if
he “was not convinced by the testimony of the Scriptures or by clear rational arguments”,
since it would be “neither safe nor healthy to do anything against conscience”.13 With this
thesis, Luther practically raised conscience and reason at the same level as Scripture,
radically changing the system of rational legitimation, which hitherto prevailed in The-
ology, based on the Church’s tradition and the personal authority of the Pope.
The consequence of these two theses was the elimination of any human authority
founded on tradition for the interpretation of the Scriptures and its replacement by
individual conscience in this task.
This would run a new problem, which worsened as the Protestant Reformation
was spreading in the seventeenth century across the world. No longer existing a cen-
tral authority ascribed to interpret the meaning of the religious norms (or the moral
norms), moral and religious values started to be relative. Progressively, morality and
religion began to lose the ability to achieve social integration, since the subjects there-
after, connected to different, split religious groups, no longer share a unified interpre-
tation of the Scriptures and do not attach a similar meaning to their action. Morals,
from then on typically individual, which are no longer shared by everyone, lost the
ability to regulate the reciprocal expectations of behavior. Therefore, it became nec-
essary that morality and religion were replaced by a new normative order (apparently
neutral facing to religions that competed with each other for regulating the spiritual
dimension of the social actors): the Nation State and its Positive Law.
One of the consequences of that was the radical separation (effective only in the
XX century, but started with the Reformation) between the spiritual realm and the
civil sphere, giving rise to the Secular State. This is clearly stated in Luther’s doctrine
of the Two Realms, as presented in the Augusburg Confession and in The Apology of
the Augsburg Confession, which draw a sharp separation line between what belongs to
Religion and to the Church (the Salvation) and what belongs to the State (the human
actions concerning other persons).14

13 “Wenn ich nicht durch Zeugnisse der Schrift und klare Vernunftgründe überzeugt werde (…) weil wider
das Gewissen etwas zu tun weder sicher noch heilsam ist”. Luther auf dem Reichstag zu Worms (1521), (Feb.
05, 2015), avaiable at http://www.luther.de/leben/worms.html.
14 Mark Ellingsen, The Two Kingdoms in America, Dialog: A Journal of Theology, 4 (45) (Winter 2006), 367.
These ideas have a direct impact on Law and Legal Philosophy. Thomasius, for example, denied that Civil
Power could punish anyone based on heresy, and even that it could forbid the teaching of false theologi-
cal doctrines. Christian Thomasius, “Is Heresy a Punishable Crime?” In: Christian Thomasius, Essays on
Church, State and Politics, 2007, 178.
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I do not mean that the Protestant Reformation was solely responsible for the emer-
gence of Modernity. The Scientific Revolution, for example, also shook the solid Ar-
istotelian building on which the medieval world stood. Another event that radically
changes the way the mind is constituted since then was the emergence of capitalism,
which required that all subjects were conceived as free, equal and independent individ-
uals, who no longer were characterized by belonging to split social strata, but by the
ownership of a specific property: the capital, which begins to perform a “Solvent action
(…) diluting ties and feudal barriers and making increasingly that free and possessive
individuals participate in the growing market as owners, at least of their own bodies”.15
Nevertheless, the Protestant Reformation, due to its direct consequences for be-
havior and the constitution of the moral standards of individuals, plays an especial
role in this change of mentality and, specially, in the need for Positive Law to become
the single behavioral pattern shared by everybody thereafter. Where Morals could no
longer produce social integration, the Law replaced it.
Contrary to Morals and Religion, culturally rooted and therefore perceived as nor-
mative since ever, Positive Law, and especially Statutory Law needed to succeed the
task of grounding this normative substitution that was being operated.
To understand this new foundation, we must first investigate an important con-
sequence of the first great philosophical system based on this social subject, the in-
dividual: the philosophy of Rene Descartes. One of the central aims of Descartes’s
Meditations was to find a foundation for knowledge in which there was no uncertainty.
The Aristotelian philosophy, which had grounded the science hitherto, assumed
that every demonstration would be based on premises. As a demonstration of the first
premises would require a return to infinity, Aristotle admits that the first premises,
not being demonstrable, are just assumed to be true when they have enough evidence.
This is the method of the Topics and of Aristotelian thinking as a rule.
But, if there was a mistake in the initial premises, the whole construct would be
compromised. Descartes wanted to avoid exactly this uncertainty about the starting
points. Thus, he assumes a methodological principle driving his thought under the
suspension of judgment, which he expressed as follows:
Since the reason already convinces me that I should abstain from the belief in things which are
not entirely certain and indubitable no less carefully than from the belief in those which appear
to me to be manifestly false, it will be enough to make me reject them all if I can find in each
some ground for doubt.16

If it is not possible to decide absolutely whether something is true or false, although

there is a greater likelihood of being true than false, it is better that I simply suspend

15 Menelick de Carvalho Netto, Da responsabilidade da administracao pela situacao falimentar de empresa

privada economicamente viavel por inadimplencia ou retardo indevido da satisfacao de valores contra-
tados como contraprestacao por obras realizadas, Revista da Ordem dos Advogados do Brasil, 63 (XXVI)
(jul./dec. 1996), 128.
16 Rene Descartes, Meditations, 1954, 15
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How Law Replaced Morals 209

judgment on that (so that I do not deceive myself) and instead devoted myself to in-
vestigate something else until I can decide with absolute certainty about the truth or
falsity of that about which I have suspended my judgment.
Armed with this principle, and after analyzing the mental faculties, specially the
senses, the imagination and the understanding, and having had the judgment about
them suspended, since even in the understanding we can find, with the argument of
mauvais génie, a possibility of mistake,17 Descartes discovers a first certainty, unwaver-
ing and unmovable: he exists, since he doubts:
There can be no slightest doubt that I exist, since he (the evil genius) deceives me; let him
deceive me as much as he will, he can never make me be nothing as long as I think that I am
something. Thus, after having thought well on this matter, and after examining all things with
care, I must finally conclude and maintain that this proposition: I am, I exist, is necessarily true
every time I pronounce it or conceive it in my mind.18

Since a condition for me to doubt or to think in something is that I exist, then the first
unshakeable certainty is that I exist. With this, the doubt becomes the methodological
axis around which revolves the modern science,19 and individual conscience becomes
the foundation from which it would be possible to ground the world itself.
But once that “knowledge of the various properties of my soul (…) is obtained,
as much as that (knowledge) of my (own) existence by an immediate reflection of
consciousness on itself ”,20 we can legitimately ask to what extent is it certain that
other human beings are nothing more than automatons. Once the certainty of my
existence as a spiritual being, as a mind, derives from myself, but since the access
to another human being, and especially to their mind, goes through the externality
of my senses, that cannot distinguish with absolute certainty between a being with
a soul and a mere automaton, programmed to act like if it had a mind, I can always
believe, since I know that I surely possess a mind, that I have a different and superior
dignity in relation to other humans, which become mere instruments for the purposes
I propose, in particular in order to carry out what affords me happiness. Selfishness,
then, is not a pathology, but the very physiology of modern consciousness.21 The con-
sequence is that liberty, henceforth, will be identified with free will – the power to

17 The argument of mauvais génie (id., 19) can be understood as: what, if my understanding was created in
such a flawed manner that fails even to realize its imperfection?
18 Id., 21
19 “Modern philosophy began with Descartes’s de omnibus dubitandum est, with doubt, but with doubt not
as an inherent control of the human mind to guard against deceptions of thought and illusions of sense,
not as skepticism against the Morals and prejudices of men and times, not even as a critical method in sci-
entific inquiry and philosophic speculation. Cartesian doubt is much more far-reaching in scope and too
fundamental in intent to be determined by such concrete contents. In modern philosophy and thought,
doubt occupies much the same central position as that occupied for all the centuries before by the Greek
thaumazein, the wonder at everything that is as it is. Descartes was the first to conceptualize this modern
doubting, which after him became the self-evident, inaudible motor which has moved all thought, the
invisible axis around which all thinking has been centered”. Arendt, supra, 273.
20 Martial Gueroult, Descartes selon L’Ordre des Raison: I – L’ame et Dieu, 1999, 64
21 C. B. Macpherson, The Political Theory of Possessiv Individualism: Hobbes to Locke, 2011.
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choose the means to carry out the purposes I proposed – and, ultimately, liberty will
have its headquarters in free will rather than in the community, as the Greek concept
of eleutheria, as proposed by Aristotle, implies.
However, this selfishness can be a problem concerning the pursuit of happiness, al-
ready observed by Hobbes in his Leviathan. On the chapter called On the Natural Con-
dition of Mankind, as concerning their Felicity, and Misery (Chapter XIII), Hobbes says
that the absolute equality of men in the state of nature causes them to fear each other,
and this fear prevents industry, science, commerce and the development of arts, and
that without this kind of prosperity men cannot be happy at all (i. e., cannot accom-
plish the purposes that each of them proposes to himself or herself). Consequently,
the first Law of Nature, as shown in the following chapter of Leviathan, is: pax est
querenda – one should look for peace.22 It is when men realize that their happiness de-
pend on the coordination of plans of action of selfish and antagonistic individuals that
they decide to perform a contract to create a power capable of coordinating them. The
social contract is, therefore, a result of selfishness and individual pursuit of happiness.
About it, Kant noted that the civil state created from the original contract is based on:
man’s freedom as a human being, as a principle for the constitution of a commonwealth, (which)
can be expressed in the following formula: No-one can compel me to be happy in accordance
with his conception of the welfare of others, for each may seek his happiness in whatever way
he sees fit, so long as he does not infringe upon the freedom of others to pursue a similar end
which can be reconciled with the freedom of everyone else within a workable general Law – i. e.
he must accord to others the same right as he enjoys himself.23

It is to make possible the pursuit of happiness, which is, according to Kant, one of the
purposes of human existence,24 that we join together in a society that compels every-
body to respect my freedom, provided that I respect everyone else freedom as well.
Thus we can finally understand the radical modernity of the Declaration of Independ-
ence of the United States of America, which states that “all men are created equal, that
they are endowed by their Creator with certain unalienable Rights, that among these
are Life, Liberty and the pursuit of Happiness”.25

22 Thomas Hobbes. Leviathan, 1968, 190

23 Immanuel Kant, “On the Common Saying: This May be True in Theory, but it does not Apply in Prac-
tice”, In: Immanuel Kant, Political Writings, 1990, 74. In German: “Die Freiheit als Mensch, deren Prinzip
für die Konstitution eines gemeinen Wesens ich in der Formel ausdrücke: Niemand kann mich zwingen,
auf eine Art (wie er sich das Wohlsein anderer Menschen denkt) glücklich zu sein, sondern ein jeder
darf seine Glückseligkeit auf dem Wege suchen, welcher ihm selbst gut dünkt, wenn er nur der Freiheit
anderer, einem ähnlichen Zwecke nachzustreben allgemeinen Gesetzte zusammen bestehen kann (d.i.
diesem Rechte des andern) nicht Abbruch tut” (Immanuel Kant, “Über den Gemeinspruch: das mag in
der Theorie richtig sein, taugt aber nicht für die praxis”, In: Immanuel Kant, Schriften zur Anthropologie,
Geschiechts-philosophoie, Politik und Pädagogik 1, 1977, 235 (ÜG, A 235).
24 H. J. Paton, The categorical imperative: A study in Kant’s Moral Philosophy, 1948, 85
25 My emphasis
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How Law Replaced Morals 211

III – F
 unctional Distinction Between the Categorial Imperative in Morals and
in Law

Contractualism develops itself in most authors as Liberalism, which can be defined as

a tradition of political thought that, especially in its classic version of the XVII, XVIII
and XIX centuries,26 has three characteristics:27
I – the idea that every man is free in the sense of not being subjected to interference
and physical constraint from others;
II – the idea that we can consensually self-limit our own freedom, voluntarily insti-
tuting a government of the people by a contract;
III – the idea that a government thus created is limited by the terms set forth in this
contract and by the policies that flow from it, i. e., the idea that the government
is limited by Law.

Therefore, individual liberties and social contract theory characterize Liberalism. And
both elements are present in Kant’s theory.
Kant’s affiliation to liberalism is evident in texts such On the Common Saying…. In
this one, Kant claims that the civil state is founded on three principles:
1. Tre freedom of every member of society as a human being.
2. The equality of each with all the others as a subject
3. The independence of each member of a commonwealth as a citizen.28

Freedom, as we have seen, can be understood as the ability of each one to seek his
or her own means to achieve happiness in life. Equality is characterized by any of the
participants not being subjected to any other participant, excluding the sovereign. But
equality and freedom are not enough to explain the social contract, and Kant adds one
more element to his liberal theory: independence, made necessary due to the inherent
antagonism of the unsocial sociability, i. e. selfishness:
The means which nature employs to bring about the development of innate capacities is that
of antagonism within society, in so far as this antagonism becomes in the long run the cause
of a Law-governed social order. By antagonism, I mean in this context the unsocial sociability

26 On the other hand, Contemporary Liberalism adds to the three elements of classical liberal theory a
fourth element: the discussion about justice (understood as equality) in the criteria of allocation of
goods, especially concerning the role of the State in this distribution (Alvaro de Vita, “Liberalismo con-
temporaneo”, In: Leonardo Avritzer et al, Dimensoes politicas da justiça, 2013, 55–65.
27 Eunice Ostrensky, “Liberalismo classico”, In: Leonardo Avritzer et al., Dimensoes politicas da justica, 2013,
47–54
28 Immanuel Kant, “On the Common Saying: This May be True in Theory, but it does not Apply in Prac-
tice”, In: In Immanuel Kant, Political Writings, 1990, 74. In German: “1 – Die Freiheit jedes Gliedes der
Sozietät, als Menschen. 2 – Die Gleichheit desselben mit jedem anderen, als Untertan. 3 – Die Selbstän-
digkeit jedes Gliedes eines gemeinen Wesens, als Bürger” (Immanuel Kant, “Über den Gemeinspruch:
das mag in der Theorie richtig sein, taugt aber nicht für die Praxis”, In: Immanuel Kant, Schriften zur
Anthropologie, Geschichtsphilosophie, Politik und Pädagogik 1, 1977, 235 (ÜG, A 235).
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of men, that is, their tendency to come together in society, coupled, however, with a continual
resistance which constantly threatens to break this society up.29

The trend that every man has to pursue happiness to the detriment and even at the
expense of others clashes with the fact that each one is threatened by this same trend.
The independence of each one under the Civil State cannot be separated from the
antagonism of the personal projects about how to achieve happiness. Moreover, it is
in response to this tension that the Law arises in Kant’s thought as something radically
different from Morals.
The primary difference between these two regulatory orders is a functional differ-
ence. In the Critique of Practical Reason, Kant proved impossible to build a universal
morality based on happiness, since “where each has to put his happiness comes down
to the particular feeling of pleasure and displeasure in each one, which has to do with
his private feelings of pleasure or displeasure (…), which can and must be different
in different subjects”.30 In other words, what makes one happy depends on what gives
pleasure to him or her, and what gives pleasure to a man is different from what gives
pleasure to another man, i. e., it is empirically determined, and therefore cannot be
universalized. Therefore, it is necessary that the foundation of morality should be only
formal and rational, as Kant showed in the Groundwork of the Metaphysics of Morals,
since a material foundation would appeal to different causes in any man (and thus
couldn’t be universal). Since Kant reaches a foundation in his Morals that is only for-
mal, it is possible to determine rationally and a priori how a man should act inde-
pendently from all inclination or from any situation or empirical condition.
In the Critique of Practical Reason, Kant reminds us that the function of Morals is
not to make people happy, but, at best, worthy of happiness.31 Nevertheless, human
beings continue to feel pleasure and pain, and still have desires, continue to seek hap-
piness, yet often contrarily to what Morals requires from them. However, the
Distinction of the principle of happiness from that of morality is not, for this reason, at once an
opposition between them, and pure practical reason does not require that one should renounce

29 Immanuel Kant, “Idea for a Universal History with a Cosmopolitan Purpose”, In: Immanuel Kant. Politi-
cal Writings, 1990, 40. In German: “Das Mittel, dessen sich die Natur bedient, die Entwickelung aller ihrer
Anlagen zu Stande zu bringen, ist der Antagonism derselben in der Gesellschaft, so fern dieser doch am
Ende die Ursache einer gesetzmäßigen Ordnung derselben wird. Ich verstehe hier unter dem Antagonism
die ungesellige Geselligkeit der Menschen; d.i. den Hang derselben, in Gesellschaft zu treten, der doch
mit einem durchgängigen Widerstand, welcher diese Gesellschaft beständig zu trennen droht, verbunden
ist” (Immanuel Kant, “Idee zu einer allgemeinen Geschichte in weltbürger Absicht”, In: Immanuel Kant.
Schriften zur Anthropologie, Geschiechts-philosophie, Politik und Pädagogik 1, 1977, 392 (AG, A 392).
30 Immanuel Kant, Critique of Practical Reason, 1997, 23. In German: “Worin (…) jeder seine Glückseligkeit
zu setzen habe, kommt auf jedes sein besonderes Gefühl der Lust und Unlust an, (…) das ist verschiede-
nen Subjekten sehr verschieden sein kann und muß” (Immanuel Kant, Kritik der praktischen Vernunft.
In: Immanuel Kant. Kritik der praktischen Vernunft. Grundlegung zur Metaphysik der Sitten, 1977, 46. (KpV,
A 46)
31 Id., 108
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How Law Replaced Morals 213

claims to happiness but only that as soon as duty is in question one should take no account of
them.32

How can someone reach happiness facing unsocial sociability, facing the antagonism
against the other, who, in order to achieve his or her happiness, does not seem to care
that I could not reach mine? Clearly, if everyone were all willing to act morally, they
could know what the right thing to do is, and they would respect my freedom to pur-
sue happiness, for the simple representation of duty.
Kant, however, does know that most human beings do not seem to act so as moral-
ly as they should: Therefore, in order to protect everyone’s liberty, it is a law of nature
that we must all leave the state of nature and enter into a Civil State that guarantees,
through coercion of others, our freedom to act and especially the possession and own-
ership of our own goods, yet renouncing selfishness and avoiding to submit others to
the realization of one’s happiness. I need to restrict freedom of others so that my free-
dom could converge with the possibility that I seek my own happiness. Nevertheless,
as follows from the three characteristics that govern the civil state, others would only
accept this limitation if also my freedom were restricted in the same way.
Law is therefore just a reciprocal, universal and coercive limitation of citizens’ free-
dom under a Civil State, or, as Kant says, Law “is therefore the aggregate of those con-
ditions under which the will of one person can be conjoined with the will of another
in accordance with the universal Law of freedom”.33 Thus, (Positive) Law just shows
what one should do, regardless of any moral reason. Its function is not to say what
is right or wrong (task that still belongs to Morals), as a moralizing reading of Law
could assume, but to avoid others to illegitimately prevent one from reaching their
happiness.
Unlike the moral duty, which Kant characterizes as an end in itself, a legal duty is
only a mean to make the coexistence of antagonistic beings possible. Its function is
not purposely to evaluate human conduct, but only to set the conditions for the coex-
istence of individuals who may or may not act morally. This functional independence
of Law from Morals implies that there is certainly a moral duty to act according to the
Law, and that maybe Law could serve to the realization of Morality, but it also implies
that Morals is not essential to the functioning of the Law itself. As Kant himself ob-
serves, it cannot require someone to accept an external, Positive Law as its own moral
principle, as what someone should want to, because although it is a moral duty to fol-

32 Id., 78. In German: “Aber diese Unterscheidung des Glückseligkeitsprinzips von dem der Sittlichkeit ist
daraum nicht so fort Entgegensetzung beider, und die reine praktischen Vernunft will nicht, man solle
die Ansprüche auf Glückseligkeit aufgeben, sondern nur, so bald von Pflicht die Rede ist, darauf gar nicht
Rücksicht nehmen” (Immanuel Kant, Kritik der praktischen Vernunft In: Immanuel, Kritik der prakti-
schen Vernunft. Grundlegung zur Metaphysik der Sitten, 1977, 166. (KpV, A 166)).
33 Immanuel Kant, Metaphysical Elements of Justice, 1999, 30. In German: “Das Recht ist also der Inbegriff
der Bedingungen, unter denen die Willkür des einen mit der Willkür des andern nach einen allgemeinen
Gesetze der Freiheit zusammen vereinigt werden kann” (Immanuel Kant, “Die Metaphysik der Sitten”, In:
Immanuel Kant Die Metaphysik der Sitten, 1977, 33 (MS, A 33)).
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214 marcelo campos galuppo

low the Law, it cannot be a legal duty to follow the Morals. Who can legitimately im-
pose me his or her moral conceptions? The only thing that can someone be required is
the obedience to Law, though disagreeing with it in his or her consciousness and even
against his or her own will.34 It follows that, to Kant, the Law can only be understood
as a negative regulation of action.
These functional reasons indicate that Morals should nor regulate the Law, neither
provide its content, so that, in a society with multiple projects and conceptions of what
the good life is, Morals do not become tyrannical.

IV – Structural Distinction Between the Categorial Imperative

in Morals and in Law

But, beyond the functional reasons that lead the Law to lose its bond with Morals in
Kant’s work, which point to the fact that Morals should not legitimately regulate the
Law, there are also structural reasons to indicate that even if Morals should regulate
Law, it could not do it.
Since Kant attaches the idea of universality to Morals, which can’t be reached if one
looks at the empirical content of one’s rules, Kant establishes a purely formal procedure
in order to discover the moral content of the rule for every concrete action. Kant thinks
that, since the Morals has a purely formal structure, it is possible to anyone to ground the
same moral norms. According to Kant, although the source of Morals is individual, the
rules produced by it would be universally valid,35 provided that we use a formal method
to ground them. This requirement is satisfied with the formulation of the categorical
imperative, which allows one to recognize what is their duty in every circumstance.
Paton reminds us that the moral categorical imperative can be presented in five
formulations:36
I The formula of universal law: “act only on that maxim through which you can at
the same time will that it should become a universal law”;37

34 Id. 34
35 However, this is not necessarily the case. It is possible to base antagonistic standards, both with rational
claim to universality. For example, it is possible, starting from the idea of freedom over the body, or from
the needs of the family institution, to establish different standards in order to justify (or to deny) the
submission of women to men in marriage. Anyway, if Kant’s transcendental Morals enjoys universality,
this Morals, (which we could call The Morals of a Rational Being) is not the Morals shared in all circums-
tances by all human beings.
36 H. J. Paton, supra. Kant presents only three formulations of the categorical imperative in Morals, assum-
ing that the second formula is a variation of the first formula and that the fifth formula is a variation of the
fourth formula. Paton, however, believes that there are good reasons to dismember them.
37 Immanuel Kant, Groundwork of the Metaphysic of Morals, 1964, 88. In German: “Handle nur nach derje-
nigen Maxime, durch die du zugleich wollen kannst, daß sie ein allgemeines Gesetz werde” (Immanu-
el Kant, “Grundlegung zur Metaphysik der Sitten”, In: Immanuel Kant, Kritik der praktischen Vernunft.
Grundlegung zur Metaphysik der Sitten, 1977, 52 (GMS, BA 52)).
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How Law Replaced Morals 215

II The formula of the law of nature: “Act as if the maxim of your action were to be-
come through your will a universal law of nature”;38
III The formula of the end in itself: “Act in such a way that you always treat humanity,
whether in your own person or in the person of any other never simply as a means,
but always at the same time as an end”;39
IV The formula of autonomy: Act “just so that the will can regard itself as at the same
time making universal law by means of its maxim”;40
V The formula of the kingdom of ends: (Act) “as if he were through his maxims al-
ways a law-making member in the universal kingdom of ends”.41

Take for instance the first formula of the moral categorical imperative, the formula of
universal law, in order to understand the heuristic value of the categorical imperative
in Morals. As the examples in the Groundwork of the Metaphysics of Morals show us,
the categorical imperative is a test that allows us to distinguish among the subjective
maxims of one’s will, those which are at the same time unconditional principles of
action, i. e., moral laws, valid not only to whom formulates them, but to any rational
being who are in the same circumstances of whom formulated them. Imagine, for ex-
ample, someone who is experiencing financial difficulties and wants to borrow money
and not return it.42 However, this person is still in the use of his reason, and wonder
if he or she would be allowed to do so. By submitting himself or herself to the maxim
that says, “I can borrow money, even though it may not come to return it”, he or she
realizes that this maxim cannot be universalized, since, if he or she were the lender,
he or she could not accept it. The test of the categorical imperative, then, says that its
maxim cannot be followed, since it can’t be universalized, and that it is a moral duty
not to borrow money when it is impossible to return it.
But compare the categorical imperative in Morals to the categorical imperative
in Law, which states: “Act externally in such a way that the free use of your will is

38 Immanuel Kant, Groundwork of the Metaphysic of Morals, 1964, 89. In German: “Handle so, als ob die
Maxime deiner Handlung durch deinen Willen zum allgemeinen Naturgesetze werden sollte” (Immanuel
Kant, “Grundlegung zur Metaphysik der Sitten”, Immanuel Kant, Kritik der praktischen Vernunft. Grund-
legung zur Metaphysik der Sitten, 1977, 52 (GMS, BA 52)).
39 Immanuel Kant, Groundwork of the Metaphysic of Morals, 1964, 96. In German: “Handle so, daß du die
Menschheit, sowohl in deiner Person, als in der Person eines jeden andern, jederzeit zugleich als Zweck,
niemals bloß als Mittel brauchest” (Immanuel Kant, “Grundlegung zur Metaphysik der Sitten”, Immanuel
Kant, Kritik der praktischen Vernunft. Grundlegung zur Metaphysik der Sitten, 1977, 66 (GMS, BA 66)).
40 Immanuel Kant, Groundwork of the Metaphysic of Morals, 1964, 101. In German: “(Handle so) daß der
Wille durch seine Maxime sich selbst zugleich als allgemein Gesetzgebend betrachten könne” (Immanuel
Kant, “Grundlegung zur Metaphysik der Sitten”, Immanuel Kant, Kritik der praktischen Vernunft. Grund-
legung zur Metaphysik der Sitten, 1977, 76 (GMS, BA, 76)).
41 Immanuel Kant, Groundwork of the Metaphysic of Morals, 1964, 106. In German: “(Handle so) als ob es
durch seine Maximen jederzeit ein gesetzgebendes Glied im allgemeinen Reiche der Zweck wäre” (Im-
manuel Kant, “Grundlegung zur Metaphysik der Sitten”, In: Immanuel Kant, Kritik der praktischen Ver-
nunft. Grundlegung zur Metaphysik der Sitten, 1977, 83 (GMS, BA 83)).
42 Immanuel Kant, “Grundlegung zur Metaphysik der Sitten”, In: Immanuel Kant, Kritik der praktischen Ver-
nunft. Grundlegung zur Metaphysik der Sitten, 1977, 54 (GMS, BA 54)). Also, Immanuel Kant, Groundwork
of the Metaphysic of Morals, 1964, 89.
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216 marcelo campos galuppo

compatible with the freedom of everyone according to a universal Law”.43 The first
point to note is that shortly after exposing the formula, and differently than what he
does in the Groundwork of the Metaphysics of Morals, Kant presents no example of its
application. This is not a coincidence, let alone a mere oversight of Kant. Apart from
lacking examples, there are two structural differences between the moral categorical
imperative and the Law’s categorical imperative over which we should turn our gaze.
The first notable structural difference is the presence of the word “externally”
(äußerlich) in the formulation of the categorical imperative in Law. In the case of
Morals, Kant differs motive (Bewegungsgrund) and the subjective ground of desire
(Triebfeder)44 in an action, understanding that morality requires that the subjective
principle of the desire, the Bewegungsgrund, be converted into the objective princi-
ple of the will (purely formal and rational, not empirically conditioned), i. e., in the
motive.
Morals require someone to recognize what is the right thing to do, even if it is not
what one wants to do, since their desire is connected to the ends one proposes to one-
self, especially to be happy. As “anyone may take whatever he pleases as his end”,45 or,
in other words, it is related solely to the individual46, one’s desire is not universal, and
it can’t justify Morals. Thus, it is the (rational) will, and not the individual desire, the
foundation of Morals.
However, since Law is linked to the possibility of someone to achieve happiness
as long as one is not compelled by others to do what they want, and since it has a dif-
ferent function from Morals, it cannot demand of anyone that, in the foundation of
one’s action, his or her desire be replaced by reason, and therefore it can only regulate
externally actions, as well as it can only regulate external actions.47 Law may require
someone not to kill his or her enemy, but cannot demand from him or her that he
or she do not want to kill their enemy, or that one replace that empirical desire for a

43 Immanuel Kant, Metaphysical Elements of Justice, 1999, 30. In German: “Handle äußerlich so, daß der freie
Gebrauch deiner Willkür mit der Freiheit von jedermann nach einem allgemeinen Gesetze zusammen
bestehen könne” (Immanuel Kant, “Die Metaphysik der Sitten”, In: Immanuel Kant Die Metaphysik der
Sitten, 1977, 35 (MS, A 35)).
44 Immanuel Kant, “Grundlegung zur Metaphysik der Sitten”, In: Immanuel Kant, Kritik der praktischen
Vernunft. Grundlegung zur Metaphysik der Sitten, 1977, 64 (GMS, BA 64). Also, Immanuel Kant, Ground-
work of the Metaphysic of Morals, 1964, 95. Larry Herrera explains that Triebfeder can have no satisfactory
translation into English, and prefers to use this expression instead (“subjective ground of desire”). (Larry
Herrera, Kant on Moral Tribfeder, Kant Studien, 91 (2000) 395 to 410. Access at https://www.deepdyve.
com/lp/de-gruyter/kant-on-the-moral-triebfeder-VQaO0c0Y0Q (02/10/2015)
45 Immanuel Kant, The Doctrine of Virtue: Part II of the Metaphysic of Morals, 1964, 56. In German: “Der
Zweck, den ein jeder hat, mag sein welcher er wollte”. (Immanuel Kant, “Die Metaphysik der Sitten (Tu-
gendlehre)”, In: Immanuel Kant, Die Metaphysik der Sitten, 1977, 31 (TL, A, 31)
46 Immanuel Kant, “Grundlegung zur Metaphysik der Sitten”, In: Immanuel Kant, Kritik der praktischen Ver-
nunft. Grundlegung zur Metaphysik der Sitten, 1977, 64 (GMS, BA 64). Also, Immanuel Kant, Groundwork
of the Metaphysic of Morals, 1964, 95
47 Defining what an external action is and how it differs from an internal action (as required by Morals)
can be hard. An attempt to clarify it can be found in Dietmar von der Pfordten, Kants Rechtsbegriff, 98
Kant-Studien 98 (2007) 431.
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How Law Replaced Morals 217

rational abstract desire and that one have this abstract desire as the immediate reason
for one’s action.
The second notable structural difference is that, unlike the formulae of the moral
categorical imperative, which provide both the form and, by derivation through the
test of the categorical imperative itself, the content of a moral action, Law’s categor-
ical imperative can provide the form of legal rules, but not their contents. While the
formulae of the moral categorical imperative say that the submission of the subjective
maxim to the categorical imperative produces a universal Law (daß sie ein allgemeines
Gesetz werde), the formula of the categorical imperative in Law only requires someone
to act according to an existing positive Law (nach einem allgemeinen Gesetze).
We must take seriously this Kantian distinction. He says that reason in Morals
produces a universally valid rule through the categorical imperative. However, he says
that, in the case of Law, someone’s reason must act according to an existing Law. The
expression “that the free use of your will is compatible with the freedom of everyone
according to a universal Law” requires that one know the content of that universal
Law which, according to what I propose, is not the natural or rational Law, but rather
the Positive Law. It may not be the natural Law because, subjected to not being known
by all rational beings, it would not meet the purposes of the original contract, which
requires the submission of all to such a Law. Since this positive Law is created by the
will of the sovereign to whom we ascribe such power, it can only be known empirical-
ly.48 Therefore, it is not a coincidence that Kant does not provide examples of categori-
cal imperative in Law: its content cannot be known without the Positive Law, the only
one able to determine how much we should limit our individual freedom. Imagine
how absurd it would be, for instance, attempting to derive the rate of 25% for income
tax, or 20 years imprisonment for a felony from the formula of the categorical impera-
tive in Law. One could, at best, provide a moral reason for obedience to the Law (even
if such reasoning were hardly shared by all), but it would certainly be impossible to
provide a moral foundation for the specific content of positive Law.49
It is not, therefore, due to carelessness or lack of time that Kant presents only one
formulation of the categorical imperative in Law in Metaphysics of Morals (unlike what
he did for example in the Groundwork of the Metaphysics of Morals, which has three
or, according to Paton, five formulations of the moral categorical imperative): it is
because only this presented formulation is indeed possible. It is not a parallel transpo-
sition or translation of a kind of imperative (moral) into another kind of imperative

48 Not by chance, and against other interpreters, Jeremy Waldron characterizes the Kantian theory of Law
as a positivist theory of Law ( Jeremy Waldron, Kant’s Legal Positivism, Harvard Law Review, 109 (1995–
1996), 1566). The main difference between his approach and mine is that I see Law in Kant as a project for
the viability of individual happiness through avoiding an external interference on my will. For this reason,
and unlike Waldron, I depart not from the Doctrine of Law, but mostly of On the Common Saying: This
May be True in Theory, but it does not Apply in Practice.
49 Note that this requires us to understand that all the Doctrine of Law, in the Metaphysics of Morals, is not
attempting to build a system of Positive Law, but to build a system of rational Law, certainly in the hope
that the sovereign, being rational, would use this system in the preparation of a Positive Law that Kant
would consider to be fair.
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(legal). The categorical imperative in Law, in my view, has an independent genesis,

apart from the morality.50
As Habermas says, the replacement of Morals by the Law in Modernity meets
three orders of problems. Apart from the problem of the inefficiency of a morality
that is not shared by all, secondly the grounding of moral norms occurs after facing
dilemmas and moral impasses. Because of this, and this is the third problem, moral
foundation is very demanding: it demands a great rational-argumentative burden to
meet the moral standard that governs a case. Law, on the contrary, in addition to be-
ing enforceable, even against individual moral standards, presents previous standards
which, although requiring great deal of communicative rationality in its legislative
creation, releases in practice the individual of grounding them in concrete situations.
That is what makes Law, unlike Morals, at the same time “a system of knowledge and
a system of action”.51

IV – Law and Politics: Back to the Problem of Civil Disobedience

The fact that the categorical imperative is unable to apprehend the content of legal
rules by the form of such imperative itself leads us to the next point in our investiga-
tion. If it is the sovereign who provides the content of the rules, then we are led back
to Politics as the foundation of Law.52
I guess this is exactly why John Rawls progressively replaces a predominantly po-
litical theory of justice, in Political Liberalism53 for a moral one, in A Theory of Justice.54
As he says in the preface to Political Liberalism
In my summary of the aims of Theory [of Justice], the social contract tradition is seen as part
of moral philosophy and no distinction is drawn between moral and political philosophy. In
Theory a moral doctrine of justice in general in scope is not distinguished from a strictly polit-
ical conception of justice. (…) In the lectures in this volume, however, these distinctions and
related ideas are fundamental.55

This does not mean that Morals have lost every link to the Law, but only that the
relationship between Law and Morals can only be conceived as mediated by Politics.
Morals are still relevant to Law just because the subjects who participate in the public
arena in a democracy may still be individually guided by moral norms. And it can be

50 It is odd, then, that there are so many authors today availing an alleged Kantian theory of human dignity
to support such a principle in Law (even Robert Nozick. Anarchy, State and Utopia, 2013. I do not remem-
ber Kant using a similar expression to this (outside the context of Morals) and with reference to the Law.
51 Jürgen Habermas, Between Facts and Norms: Contributions to the Discourse Theory of Law and Democracy,
1996, 114
52 This perspective was already strongly defended by Waldron, to whom “Law is the offspring of Politics”
(supra, 1538).
53 John Rawls, Political Liberalism, 1996
54 John Rawls, A Theory of Justice, 1999
55 John Rawls, Political Liberalism, 1996, cvii.
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How Law Replaced Morals 219

an end to these individual subjects that their moral guidelines be shared or be im-
posed on other individuals. I propose, therefore, to correct our chart on the relation-
ship between Law and Morals, to represent it as follows, installing Politics as media-
tion between Law and Morals:

Fig 4: Morals, Politics and Law.

This new chart solves some issues about the relationship between Law and Morals in
Modernity. Morals cannot directly influence the Law. Nevertheless, since individuals
can express their moral convictions in the public arena of politics, which produces
and justifies the Law, it is possible that Morals influence Politics directly and therefore
indirectly the Law.
As we saw, Kant finds no rational justification for civil disobedience. While we
treat civil disobedience as a moral issue, it puts insurmountable problems about the
fact that in front of the divergence of the contents of moral norms provided by in-
dividuals it is not possible a purely rational decision about what content better ex-
presses the universal form of a moral duty.56 However, transferred to Politics57, the
question becomes treatable through the procedure of developing and applying legal
rules. As Waldron says, “Because we disagree about which position should stand and
be enforced in the name of the community, we need a process – a political process – to
determine what that position should be”.58
This leads to the question of political (and legal) responsibility of citizens, as
Rawls has already noted:
It may be objected against this account that it does not settle the question of who is to say
when the situation is such as to justify civil disobedience. And because it does not answer this
question, it invites anarchy by encouraging every man to decide the matter for himself. Now the
reply to this is that each man must indeed settle this question for himself, although he may, of
course, decide wrongly. This is true on any theory of political duty and obligation, at least on
any theory compatible with the principles of a democratic constitution. The citizen is responsi-
ble for what he does. (…) In a democratic society each man must act as he thinks the principles
of political right require him to.59

56 See footnote 35
57 Waldron, supra, 1566
58 Waldron, supra, 1538
59 John Rawls, “The justification of Civil Disobedience” In: John Rawls, Collected Papers, 1999, 188..
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220 marcelo campos galuppo

Those who disobey a legal standard cannot be judged morally, but can be tried by
Law, since civil disobedience60 is not a moral procedure to evaluate legal rules,61 but a
political mechanism in order to change the conditions, so that each one can attain his
or her happiness. Civil disobedience is no longer a moral issue about what is right, but
a political question about the structure of society.

Acknoledgements

The author wishes to thank Professor Doctor Stephan Kirste (Universitat Salzburg)
and Professor Colin Starger (University of Baltimore) for their attentive reading of
the draft as well as for their very important remarks, which helped to clarify some
points of this paper. He also wishes to thank CNPq (Pq) and FAPEMIG (PPM) for
the scholarships he received from them.

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Prof. Marcelo Campos Galuppo

Av. Dom Jose Gaspar, 500, Predio V, Belo Horizonte – MG – Brazil – 30.535-901,
marcelogaluppo@uol.com.br

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of copyright law is illegal and may be prosecuted.
This applies in particular to copies, translations, microfilming
as well as storage and processing in electronic systems.
© Franz Steiner Verlag, Stuttgart 2016