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KANT'S LEGAL POSITIVISM
Jeremy Waldron
[H]owever 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. INTRODUCTION
The philosophical writings of Immanuel Kant continue to exert a

powerful influence in legal philosophy. In theoretical discussions of
criminal law,2 the law of property, 3 tort law,4 contract law s and many
other areas, 6 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. (Ions.) 1974, LL.B. (Hons.) 1978, Uni-
versity of Otago, New Zealand; M.A. ig8o, 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 iggI)
('797).
2 See, e.g., Jeffrie G. Murphy, Does Kant Have a Theory of Punishment?, 87 COLUM. L. REV.
509 passim (1987).
3 See, e.g., Stephen R. Munzer, Kant and Property Rights in Body Parts, 6 CANADIAN J.L. &
JURISPRUDENCE 319 passim (1993).
4 See, e.g., Ernest J. Weinrib, Understanding Tort Law, 23 VAL. U. L. REV. 485, 525-26
(ig8g); Ernest J. Weinrib, The Case for a Duty to Rescue, go YALE LJ. 247, 266-67 (ig8o).
S See, e.g., CHARLES FRIED, CONTRACT AS PROMISE 7-17 (298i).
6 See, e.g., DAVID A.J. 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 WASH. & LEE L. REV. 1373 passim (1992).
1535
1536 HARVARD LAW REVIEW [Vol. 1093535
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;7 on the other
hand, communitarians appear to regard Kant as responsible for many
of the most serious defects in modern liberal thought.8 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; 9 he maintains that husbands have a right to force
their wives to return if they leave the matrimonial home; 0 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-
lem 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 RAWLS, A THEORY OF JUSTICE 251-57 (1971). For vigorous restatements of
utilitarian theory since 1971, see ROBERT E. GOODIN, UTILITARIANISM AS A PUBLIC PHILOSOPHY
passim (I995); R.M. HARE, MORAL THINKING: ITS LEVELS, METHOD AND POINT pa.ssim (1981).
8 See, e.g., MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE I (1982).
9 See KANT, supra note I, § 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 I
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 VII.
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-
12
tional reform directly without cover of philosophical authority.
I 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, "[t]o 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 (199i). 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. 109:1535
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.
HI. LAW AND 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 law of that community, then the resilience of the practice to which
I 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
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 initial 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-
fficts 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.
3
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 H.L.A. Hart, Are There Any
Natural Rights?, 64 PHIL. REv. 175, 178 (x955), reprinted in THEORIES OF RIGHTS 77, 79- 8o
(Jeremy 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.
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.
I. 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,"1 4 one would certainly be expected to believe also that the con-
14 KANT, supra note I, § 49(E)(I), at 141 [Ak. 3 3 2J.

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.' 5 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
16
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 OF KANT
Still, the association of Kant and legal positivism is disconcerting.

Kant's philosophy is associated with several positions in modern legal
IS See Jules L. Coleman, Negative and Positive Positivism, ii J. LEGAL STUD. 139, 147
(1982). Coleman states:
Legal positivism makes a conceptual or 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).
Id.
16 Cf Joseph Raz, The Problem About the Nature of Law, 21 U.W. 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 TRADrION 328-36 (x986).
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 17 (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."' 8 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.1 9 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 20 - 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
2
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.
17 Symposium on Kantian Legal Theory, 87 COLUM. L. REV. 4r9 (1987).

18 George P. Fletcher, Why Kant, 87 COLUS. L. REv. 421, 428 (1987).
19 See RAWLS, supra note 7, at Viii, 251-57 ("The theory that results is highly Kantian in
nature."); John Rawls, Kantian Constructivism in Moral Theory, 77 J. PHIL. 515, 515 (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 JOHN
RAwLs, PoLITIcAL LIBERALISM 99-107 (1993) [hereinafter RAws, PoLITIcAL LIBERAItSM].
20 See I MANUEL KANT, On the Common Saying: 'This May Be True in Theory, But It Does
Not Apply in Practice',reprinted in KANT: POLITICAL WRITINGS 6x, 79 (Hans Reiss ed. & H.B.
Nisbet trans., 2d ed. 2991). For Rawls' description of the "original position," see RAWLS, cited
above in note 7, at 17-22.
21 Fletcher, supra note 18, at 429.
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 22 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. 23 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.2 4 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.25 Wolff took the concept of
autonomy presented in Kant's moral philosophy26 and presented it as
a matter of duty: "Every man who possesses both free will and reason
22 1 ACKERMAN, supra note 12, at 12.

23 See RONALD DWORKIN, TAKINGS RIGHTS SERIOUSLY 211, 214-16 (1977).
24 See id. at 198-99.
25 See ROBERT P. WOLFF, IN DEFENSE OF ANARCHISM 12-19 (1970).
26 See, e.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 Vol. 109"3535
has an obligation to take responsibility for his actions .... ,"27 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." 28 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."29 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,
30
anarchists.
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. 3 ' Kant maintained that defiance of the
legislature "is the greatest and most punishable crime in a common-
wealth, for it destroys its very foundations." 32 Citizens should com-
plain about injustice by writing letters and pamphlets - "freedom of
27 WOLFF, supra note 25, at 13. Some of Kant's own language would seem to support this
view: "[Tihat 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-I8].
30 See WOLFF, supra note 25, at I8. Wolff writes:
Insofar as a man fulfills 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 laws. In that sense, it
would seem that anarchism is the only political doctrine consistent with the virtue of
autonomy.
Id.
31 For a discussion of Kant's authoritarianism, see JEFFRIE G. MURPHY, KANT: THE PHILOS-
OPHY OF RIGHT 113-40 (1970).
32 KANT, supra note 20, reprinted in KANT: POLITICAL WRITINGS, supra note 20, at 81.
the pen" must not be denied 33 - 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. 34 This is hardly the language of one who believes that
"philosophical anarchism [is] the only reasonable political belief for an
enlightened man"'35 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 179os. 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
36
faculties, which finally led into senile imbecility, is a matter of fact."
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. 37 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
33 Id., reprintedin KANT: POLITICAL WRITINGS, supra note 20, at 85 (emphasis omitted); see
also IMMANUEL KANT,An Answer to the Question: 'What is Enlightenment?', reprinted in KANT:
POLITICAL WRITINGS, supra note 20, at 54, 55-56 (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.
3S WOLFF, supra note 25, at ig.
36 HANNAH ARENDT, LEcTURES ON KANT'S POLITICAL PHILOSOPHY 9 (Ronald Beiner ed.,
1982).
37 See THOMAS HOBBES, LEVIATHAN 86-go, 117-21 (Richard Tuck ed., Cambridge Univ.
Press 199 i ) (165i).
1546 HARVARD LAW REVIEW [VoL 109:1535
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 ....3s
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
39
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"40 - as a condition of violence.
Kant's state of nature is not necessarily asocial, however. Like
Locke, 4 1 Kant believes that there can be "conjugal, paternal, domestic
societies" in the state of nature, 42 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
43
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"
44
and to do so in the name of justice.
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:
[The 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.
THoMAs HOBBES, DE CIVE 46 (Howard Warrender ed., Oxford Univ. Press 1983) (642).
40 KANT,supra note i, § 44, at 123 [Ak. 312].
41 See JOHN LOCKE, Two TREATISES OF GOVERNMENT bk. II, § 77, at 319 (Peter Laslett ed.,
student ed., Cambridge Univ. Press 1988) (3d ed. 1698) ("Thefirst 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 KANT, supra note 1, § 41, at 221 [Ak. 3o6].
43 Id. § 42, at 12 [Ak. 307].
44 Id. § 44, at 123-24 [Ak. 312].
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 good45
to it and not to be dependent upon an-
other's opinion about this.
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. 4 6 (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-
47
ferent, distinctively Kantian answers to the questions raised earlier:
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 ....
[The 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 promote48
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-
4S Id.
46 Kant is at one with David Hume here. See HOWARD WILLIAMS, KANT'S POLITICAL PHI-
LOSOPHY 167-69 (x983). 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
.... " DAVID HUJME, A TREATISE OF HUmiAN NATURE 492 (L.A. Selby-Bigge ed., Oxford Univ.
Press 2d ed. 1978) (1739).
47 See supra p. 2546.
1548 HARVARD LAW REVIEW [Vol. 1o093535
minate set of rights. 49 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.5 0 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 2 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.-5 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
5 4
the Metaphysical First Principles of the Doctrine of Right. ) I 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 concept/conception distinction, see RAWLS, cited above in
note 7, at 5, and DWORKIN, cited above in note 23, at 134-36.
50 See KANT, supra note 26, at 27-28 [Ak. 418-i9].
S1 Id. at 27 [Ak. 418].
52 KANT, supra note 20, reprinted in KANT: POLITICAL WRITINGS, supra note 2o, at 74.
53 Kant, like Hobbes, regarded property as the thread to tug in order to unravel the mysteries
of political philosophy. See HOBBES, supra note 39, at 27 ("M-y first enquiry was to be, from
whence it proceeded, that any man should call any thing rather his Owne, th[a]n anothermans.').
54 See KANT, supra note i, §§ 1-17, at 68-9o [Ak. 245-70].
lines or anything like it, people's rightful holdings would have to be

based on a principle such as first occupancy.55 But occupancy, which
Kant interprets to mean "taking control,"5 6 is quite indeterminate: how
do we correlate one's acts of control with an exact extent of land con-
trolled?5 7 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. s S
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 9 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. 60 )
55 See id. § io,at 8i [Ak. 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. § I5,at 86 [Ak. 265-66]. Kant also condemns the expropriation of
native peoples in Africa and America. See id. § 62, at 159 [Ak. 353].
56 Id. § 14, at 84 [Ak. 263] (emphasis omitted).
S7 See id. § iS, 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.").
S8 The potential uncertainty derives from the "Lockean proviso," which states that an acquisi-
tion is justified only if "enough, and as good" is left for others, LOCKE, supra note 41, at bk. II,
§ 27, at 288, or in weaker versions, only if others' situations are not worsened thereby, see ROB-
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 KANT,supra note i, § I, at 68 [Ak. 245] ("[S]omething 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.").
60 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 I, 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 Vol. 109:3535
Notice that these difficulties of application are not matters on

which reason offers no guidance or matters to be settled by arbitrary 61
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. 62 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 a 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 I also think that Kant means to
stress the irresolvability of disagreement about issues on which there is, in principle, a right
answer.
52 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 "exeumdum-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 CAMI-
BRIDGE COMPANION TO KANT 342, 352 (Paul Guyer ed., 1992) (footnote omitted).
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. 63 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. 64 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. 65 Even
John Rawls, whose latest work in political philosophy develops and
incorporates a powerful account of the sources of reasonable, or good
faith, disagreement, 66 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) (1755).
64 See Jeremy Waldron, A Right-Based Critique of Constitutional Rights, 13 OXFORD J.
LEGAL STUD. 18, 28-36 (1993).
65 Rawls' discussion of constitutional arrangements is a notable example: "In framing a 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 i98. I have discussed this point in some-
what greater detail elsewhere. See Jeremy Waldron, DisagreementsAbout Justice, 75 PAC. PHIL.
Q. 372 passim (1995).
66 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." RAWLS,
POLITICAL LIBERALISM, supra note I9, 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
55-56. 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. 109:3535
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. 6 7 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. 68 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
69
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. 0 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!" 71 Although enlightenment for Kant means
thinking for oneself,72 one is only thinking for oneself when one ex-
poses one's views to "the test of free and open examination." 73 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
67 See JOHN L. MACKIE, ETHICS: INVENTING RIGHT AND WRONG 36 (1977) ("[R]adical 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. xo6x, xo89--o (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.
69 See Jeremy Waldron, The Irrelevance of Moral Objectivity, in NATURAL LAW THEORY:
CONTEMPORARY ESSAYS 158, 171-84 (Robert P. George ed., 1992).
70 See ARENDT, supra note 36, at 10, 40-42.
71 IMMANUEL KANT, What is Orientationin Thinking?, reprintedin KANT: POLITICAL WRIT-
INGS, supra note 20, at 237, 247.
72 See id., reprinted in KANT: POLITICAL WRITINGS, supra note 20, at 249 n.*.
73 ARENDT, supra note 36, at 32 (quoting IMMANUEL KANT, CRITIQUE OF PURE REASON 9
n.a [Ak. Axi] (Norman K. Smith trans., St. Martin's Press x965) (1781)) (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").
19961 KANT'S LEGAL POSITIVISM 1553
would benefit from the

74
"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
75
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. 76 For
both philosophers, apart from such assurances, we may do whatever
we think necessary to promote our personal interests: "men 77 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.
7S KANT, supra note i, § 42, at 122 [Ak. 307].
76 See HOBBES, supra note 37, at iio ("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 x, § 42, at 122 [Ak. 307].
1554 HARVARD LAW REVIEW [Vol. 109:I535
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. 78 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 79), 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." 0 Useful things, Kant postulates, must be able to be
used;8 1 people must be able to make at least provisional acquisitions of
8 2 But
external resources even if there is no state to ratify their actions.
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."83 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
84
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
78 For Kant's conception of scarcity, see IMMANUEL KANT, Ideafor a Universal History with
a Cosmopolitan Purpose, reprinted in KANT: POLITICAL WRITINGS, cited above in note 2o, at 42,
43.
79 See HOBBES, supra note 37, at 39.
80 LOCKE, supra note 41, at bk. II, § 28, at 288.
81 See KANT, supra note i, § 2,at 68 [Ak. 246].
82 See id. § I5,at 85-86 [Ak. 264-65).
83 KANT, supra note 78, reprinted in KANT: POLITICAL WRITINGS, supra note 20, at 44 (em-
phasis omitted).
84 Id., reprinted in KANT: POLITICAL WRITINGS, supra note 2o, at 44.
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. a 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."8 6 For Kant,
proximity to others is, in Rawls' language, one of "the circumstances
of justice."8 7 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:
[I]f a certain use of freedom is itself a hindrance to freedom in accordance with universal
laws (i.e., 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 right.
Hence there is connected with Right by the principle of contradiction an authorization to
coerce someone who infringes upon it.
KANT, supra note i, § D, at 57 [Ak. 231].
86 Id. § 12, at 121 [Ak. 3071.
87 RAWLS, supra note 7, at 126-30.
88 See KANT, supra note I, § 13, at 83-84 [Ak. 262] '[I]f [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.").
HARVARD LAW REVIEW [Vol. 10931535
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.8 9
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. 90
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. 9 1 His cosmopolitan internationalism de-
rives from a sense that we are gradually coming closer and closer to
all others on earth; 92 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, 9 3 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.9 4
89 See Jeremy Waldron, Special Ties and Natural Duties, 22 PHIL. & PUB. AFF 3, 11-I5
(1993) (discussing the limited range of justice principles that any country's legal institutions
administer).
90 KANT, supra note I, § 62, at x58 [Ak. 352] (emphasis omitted). Kant elaborates:
All men are originally (i.e., 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].
91 See id. § Is,at 85-87 [Ak. 264-66]. 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.
92 See id. § 62, at x58 [Ak. 352] (speaking of "a community of possible physical interaction
(commercium), that is ....a thoroughgoing relation of each to all the others of offering to engage
in commerce with any other").
93 See supra Part V.
94 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.
ig96] 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.9s
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
96
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."9 7 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;9 8 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 i, § 8, at 77 [Ak. 256].

96 See WALDRON, supra note 58, at 266-71 (discussing contingent rights and the moral effect
of appropriation).
97 KANT, supra note i, § 15, at 85 [Ak. 264].
98 See id. § C, at 56-57 [Ak. 230- 31].
goes reciprocity, 99 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. 100
What is needed, in other words, is "a will that is omnilateral"10 1 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? 10 2 (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-
03
versal law.'
99 See id. § 8, at 77 [Ak. 255-56].

100 Id.
101 Id. § 14, at 84 [Ak. 263].
102 Kant toys with this possibility at one stage in his discussion of first 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
an acquisition such that none could precede it, yet it would be derived from the particular
wills of each and would be omnilateral,whereas original acquisition can proceed only from
a unilateral will.
Id. § io, at 8i [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].
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,1 0 4 which Hannah Arendt contends is the real locus of
Kant's political philosophy. 0 5 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,
06
an illusion that would have a prejudicial influence on the
judgment.'
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 07
can determine only by transferring himself to the standpoint of
others).'
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"'10 - 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?
104 IMMANUEL KANT, CRITIQUE OF JUDGMENT (Werner S.Pluhar trans., Hackett Publishing
Co. 1987) (1790).
1o See ARENDT, supra note 36, at io-i6.
106 KANT,supra note 104, § 40, at i6o [Ak. 293] (alteration in original).
107 Id. § 40, at 161 [Ak. 295].
108 KANT, supra note i, § 15, at 85 [Ak. 264] (emphasis added).
i56o HARVARD LAW REVIEW [Vol. 1093535
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.109 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 conclu-
sion. The irremovable fact about individual moral reasoning is this:
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.' 10 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. MILL, ON LIBERTY 45 (Currin V. Shields ed.,
Liberal Arts Press, Inc. 1956) (x859) (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 their very utmost
for them").
110 See supra note 13 and accompanying text.
KANT'S LEGAL POSITIVISM 1561
again the crucial passage from section eight of the Metaphysical First
Principles of the Doctrine of Right:
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.... Mt is only a will putting everyone under obligation, hence only
a collective general (common) and powerful will, that can provide every-
one this assurance."'
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."122 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
13
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."" 4 Again, this proposition is not sup-
posed to mean that force is inappropriate when upholding rights; we
have seen that Kant denies this suggestion," 5 and that modern polit-
ical philosophy follows him in that belief." 6 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-
Ill KANT,supra note i, § 8, at 77 [Ak. 255-56].

112 HOBBES, supra note 37, at 1io ("The Lawes of Nature oblige inforo interno; that is to say,
they bind to a desire they should take place: but inforo externo; that is, to the putting them in
act, not alwayes.").
113 See KANT, supra note i, § C, at 56-57 [Ak. 230-31] ("[A]nyone 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.').
114 Id. at 16o [Ak. 354].
115 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."
KANT, supra note i, § D, at 57 [Ak. 231].
116 See supra note 13.
ing of a hindrance to freedom"" 7 - which is how Kant wants to un-

derstand the contribution that coercion can make to justice.
VII. FROM STATE OF NATURE TO CIVIL 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."" 8 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. 119 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. " 12o 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' 2'). 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
122
so far as it constitutes a civil state, i.e. a commonwealth.
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. 123 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-
117 KANT, supra note i, § D, at 57 (Ak. 231].

118 Id. § 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 Id. § 8, at 77 [Ak. 256].
121 For Locke, the voluntary decision by any number of individuals to enter civil society "in-
jures 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. II, § 95, at 331.
123 See id., reprinted in KANT: POLITICAL WRITINGS, supra note 2o, at 79.
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.1 24 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
125
into the contract in the first place.
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;126 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.127 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
[toaccept the authority of a just institution], they are under no moral requirement to comply with
the institution's dictates until they have committed themselves." Mark C. Murphy, Acceptance of
Authority and the Duty to Comply with Just Institutions: A Comment on Waldron, 23 PHiL. &
PuB. AFF. 271, 276 (994). 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.
125 See HOBBES, supra note 37, at 151. Hobbes states:
[Tihe 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; which 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.
126 See id. at 117.

127 See supra pp. 1544-45.
1564 HARVARD LAW REVIEW (VOL. 109:35
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.128 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 can12be
9
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).
129 KANT, supra note 78, reprinted in KANT: POLITICAL WRITINGS, supra note 2o, at 46; ef.
Henry Hardy, Preface to ISAIAH BERLIN, THE CROOKED TIMBER OF HUMANITY: CHAPTERS IN
THE HISTORY OF IDEAS at xi (Henry Hardy ed., 199o) (explaining that the book's title is taken
from Berlin's "preferred rendering of his favorite quotation[] from Kant").
conscientious legislator, we are, at best, dealing with imperfect proce-

dural justice. 30
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 3men
1
in the absence of a formerly constituted legal and judicial system.'
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. 132 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.' 33 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. 134 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
RAwLs, cited above in note 7, at 85-86.
131 ALAN RYAN, PROPERTY AND PoLITIcAL THEORY 79-80 (1984).
132 See KANT, supra note i, § 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).
133 RYAN, supra note 131, at 8o.
134 See NoZICK, supra note 58, at 150-53.
1566 HARVARD LAW REVIEW [Vol. 1og93535
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.
VIII. CONCLUSION
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.

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[H]owever well disposed and law-abiding men might be.... individual

The philosophical writings of Immanuel Kant continue to exert a

Kant's views are controversial, of course. On the one hand, the

plausibility of the position before embarking on the more tedious busi-

the circumstance of controversy over the substantive values that it em-

HI. LAW AND DISAGREEMENT

interests. It is the principle that an official should enforce the law

opposing sides, confrontationally and contradictorily, in justice's name.

14 KANT, supra note I, § 49(E)(I), at 141 [Ak. 3 3 2J.

IV. THE USES OF KANT

Still, the association of Kant and legal positivism is disconcerting.

17 Symposium on Kantian Legal Theory, 87 COLUM. L. REV. 4r9 (1987).

In modern discussions of law and the U.S. Constitution, to identify

22 1 ACKERMAN, supra note 12, at 12.

minate set of rights. 49 By itself, though, the concept/conception dis-

lines or anything like it, people's rightful holdings would have to be

Notice that these difficulties of application are not matters on

61 My view is thus different from that of Thomas Pogge, who writes:

merely their empirical application. Kant disagrees with Locke's "labor

63 See JEAN-JACQUES ROUSSEAU, DISCOURSE ON THE ORIGIN OF INEQUALITY 44-71 (Donald

Perhaps we fear that dwelling too much on the significance of

would benefit from the

First, and most obviously, the issues likely to be in dispute - the

VI. CONFLICT AS MORAL CALAMITY

We can glean a number of arguments from the Metaphysical First

9S KANT, supra note i, § 8, at 77 [Ak. 256].

99 See id. § 8, at 77 [Ak. 255-56].

The would-be appropriator tests the principle of his acquisition by

Kant's answer cannot be that there is a difference between the in-

Ill KANT,supra note i, § 8, at 77 [Ak. 255-56].

ing of a hindrance to freedom"" 7 - which is how Kant wants to un-

VII. FROM STATE OF NATURE TO CIVIL SOCIETY

117 KANT, supra note i, § D, at 57 (Ak. 231].

ety in which he happens to find himself. It tells him that he is to

126 See id. at 117.

that the creation of a civil society happened fastidiously in one way

conscientious legislator, we are, at best, dealing with imperfect proce-

unilaterally - what he is entitled to. But what people need is a sys-

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