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 resolve 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 external coercion, and so enter into a condition in which what is to be recognized as belonging to it is determined by law . . . .
The philosophical writings of Immanuel Kant continue to exert a powerful influence in legal philosophy. In theoretical discussions of criminal law," the law of property," tort law," contract law," and many other areas," Kant's works are widely regarded as an important source of nonutilitarian ideas about distributive, corrective, and retributive justice.
* Professor of Law and Philosophy, Jurisprudence and Social Policy Program, Boalt Hall School of Law, University of California at Berkeley. B.A. (Hons.) 1974, LL.B. (Hons.) 1978, University of Otago, New Zealand; M.A. 1980, D.Phil. 1986, University of Oxford. This Article is dedicated to the memory of the Reverend Harry Thornton; it has been more than twenty years since he urged me to make a study of Kant's jurisprudence. I am grateful to my students joao Rosasz and Edmee Thyl for many conversations about the issues raised here. Earlier versions of this Article were presented at workshops at McGill Law School, Harvard University's Government Department, Columbia Law School, and the University of Cambridge. I would like to thank all the participants for their comments. Finally, I am especially grateful to Thomas Pogge for several searching discussions on these themes. 1 IMMANUEL KANT, Metaphysical First Principles of the Doctrine of Right, in THE META· PHYSICS OF MORALS 33, § 44, at 124 [Ak. 312] (Mary Gregor trans., Cambridge Univ. Press 1991) (1797)· 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. & jURiISPRUDENCE 319 passim (1993). 4 See, e.g., Ernest j. Weinrib, Understanding Tort Law, 23 VAL. U. L. REv. 485, 525-26 (1989); Ernest j. Weinrib, The Case for a Duty to Rescue, 90 YALE L.j. 247, 266-67 (1980). 5 See, e.g., CHARLES FRIED, CONTRACT AS PROMISE 7-17 (1981). 6 See, e.g., DAVID A.J. RiCHARDS, SEX, DRUGS, DEATH AND THE LAW: AN ESSAY ON HUl'r1ANRiGHTS AND OVERCRIMINALIZATION 9 (1982); Robert F. Housman, A Kantian Approach to Trade and the Environment, 49 WASH. & LEE L. REV. 1373 passim (1992).
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Kant's views are controversial, of course. On the one hand, the issues between utilitarians and nonutilitarians remain open, despite the success of John Rawls' revival of 'Kantian' theory;' on the other hand, communitarians appear to regard Kant as responsible for many of the most serious defects in modern liberal thought." Moreover, despite the appeal of abstract slogans about treating people as ends not means, Kant's views on concrete issues are often extreme and disconcerting: he believes that the state has a moral duty, not just a right, to execute murderers." he maintains that husbands have a right to force their wives to return if they leave the matrimonial home.'? and he insists, notoriously, that the truth must be told,"! promises kept, and property returned to its rightful owner no matter what the consequences. Less well known are Kant's views on the philosophical significance of the sort of controversies about justice and rights in which he participated. 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 disagreement among people of good will) constitutes a problem - a problem 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 Metaphysical First Principles of the Doctrine of Right cited at the very beginning of this Article and focusing steadily on what Kant regarded as his work in legal and political philosophy (which is not just the application of his moral philosophy to issues of public concern), I attempt to interpret and, in places, to reconstruct his understanding of disagreement and his argument for the paradoxical claim that each person doing 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 (1995); R.M. HARE, MORAL THINKING: ITs LEVELS, METHOD AND POINT passim (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.,
KANT'S LEGAL POSITIVISM
plausibility of the position before embarking on the more tedious business of presenting it as an interpretation of Kant. Then, in Parts ill 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? Answering these questions will give us a sense of Kant's distinctive conception 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 society; 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 substantive 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 constitutional reform directly without cover of philosophical authority.'> I hope, however, that an exposition of Kant's views on the relationship 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 jurisprudence 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 elaboration 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 (1991). Similarly, Richard Posner argues: 3 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. RiCHARDA. POSNER,OVERCOMING LAW403-04 (1995).
on which no political decision is necessary. for it invites us to compromise our heartfelt advocacy and to share our carefully constructed intellectual world with views about justice that we regard . how we think about law. And we need a practice of recording. celebrating testamentary freedom.because law is the offspring of politics . Because we disagree about which position should stand and be enforced in the name of the community.for instance. 109:1535
the circumstance of controversy over the substantive values that it embodies. that we arrive at some position on the issue to be upheld and enforced as the community's position on the testamentary powers of property owners. then the resilience of the practice to which I have just referred is what we mean by the rule of law. in some measure.a practice that is resilient in the face of disagreement with the community position on the part of those entrusted with its implementation. the importance of respecting his arbitrary freedom diminishes in comparison to the importance of securing the welfare of his dependents. but it is necessary.it is. however.HARVARD LAW REVIEW
[Vol. all the same. for we disagree about all sorts of things . Imagine that some citizens. we need a process . the virtues of the modern novel.
II.as wrongheaded or iniquitous. the members of a community may be divided on the question whether a testator should have the power to exclude a surviving child from the enjoyment of his estate.how we think about disagreement will determine.perhaps for good reason . say that he should . Understood in this way. It may help in allaying these apprehensions. the rule of law is not simply the principle that officials should apply the law even when it disserves their own
.once he is dead. That proposition can seem scary. on the contrary. we can agree to differ in our opinions. Or. 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. The issue is a political one not simply because the citizens disagree. in taking this step. and . H we call the position that is identified as the community's position the law of that community. the causes of the Punic Wars .
LAW AND DISAGREEMENT
How we think about disagreement on matters of public concern will determine how we think about politics. his property that is passing by his will. Others say that he should not . after all.to determine what that position should be. respecting.a political process . they are proceeding quite deliberately in the company of Immanuel Kant. for theorists of justice to realize that. Testamentary freedom is not something on which we can agree to differ. rather. For example. and implementing positions of this sort by individuals and agencies acting in the name of the community . they are not betraying their Kantianism.
ill-thought-through. in the name of justice. Hart. 1984). If the community has neglected to take a position on testamentary freedom (or if most citizens ignore w~atever position the community has taken when that position confli¢ts with their own moral view). REv.
. there will still be problems to the extent that different persons arrive (however scrupulously) at different conclusions. they seek to gain possession of the house. or desirability.namely. his daughter is in possession of his house. in the name of justice and property rights. 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.A. 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. the law's existence. The enactment of the law in question is evidence of the existence of a view different from his own concerning the law's justice.P 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. Moreover.
ld. The representative of a local organization for the relief of stray dogs arrives armed with a piece of paper. But even assuming that each person does his best to ascertain what is really right or really just. In other words. or his decision to do something other than what the law requires because he believes that action would be more just. The official's failure to implement the law because he believes that it is unjust.KANT'S LEGAL POSITIVISM
interests. if people's moral judgments are irrational. as far as each party is concerned. 79-80 (Jer~my Waldron ed. and thus. the very idea of the community taking a position on an issue on which its members disagree. reprinted in THEORIES OF RIGHTS 77. then force is likely to be used on both sides. purporting to will the property to the organization. Would this result be such a calamity? It may be. Are There Any Natural Rights?. signed by the decedent (whose signature is reliably verified). or biased. The daughter and the daughter's friends are equally convinced that her eviction and consequent homelessness would be unjust. and at his death. Hart writes: The most important common characteristic of this group of moral concepts is that there is no incongruity. 64 PHIL. See H. The dogs' home representative and his supporters are convinced that this issue is properly a matter of testamentary discretion. Recall our initial example. is tantamount to abandoning the very idea of law . morality. It is the principle that an official should enforce the law even when it is in his confident opinion unjust. and so. 175. A man dies.. morally wrong.L. 178 (1955). that force is being used righteously. together with the official's own opinion. It is certainly not inappropriate to use force to achieve justice. or misguided as a matter of policy. indicates moral disagreement in the community. for it is in just these circumstances that coercion of another human being is legitimate. uninformed. they resist any attempt to effect it.
What I expect to be controversial is the claim that this view represents the mature philosophy of law of Immanuel Kant.
III. But given the inevitable disagreement on that issue and given the symmetry. and Austin. in justice's name. each side believes that the other is objectively mistaken . there is the need for a single. testamentary freedom) is morally wrong.
.a view that anyone may readily identify as that of the community. particularly positivist jurisprudence. determinate community position on the matter . confrontationally and contradictorily. force is being used simply to represent the vehemence with which competing opinions about justice are held. justice is affronted in another way if the position identified and enforced as that of the community (on. Versions of it have been part of Western jurisprudence. Hence.I540
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[Vol.one whose enforcement is consistent with the integrity and univocality of justice. then its connection with assurance is ruptured. whatever his substantive opinions on the matter. Hume. Certainly. believing as Kant did that "if justice goes. for the sake of the integrity of justice is ensure that force is used to uphold one view and one view only . for all practical purposes. of the rival positions on the matter .
The view that I have outlined is complicated. The point of using force in the name of justice is to assure people of that to which they are entitled. 332]. each side thinks that its view captures what is really just. But if force is being used to further contradictory ends. since Hobbes.
§ 49(E)(I). at 141 [Ak.there is no political way in which the prospect of this substantive affront can be precluded. The integrity of justice. of Hobbes.each side is sincere. In such a situation. say. and perhaps the moral skepticism. and this use of force may well be worse than force not being put to the service of justice at all. Bentham. That this is Kant's view will surprise those who associate legal positivism with the materialism. there is no longer any value in men's living on the earth. but I do not expect it to be especially controversial. The principle of putting personal moral judgments to one side and submitting instead to the arbitrary contingencies of the powers that be and the laws that happen to exist is usually advocated on the ground that peace and security matter more to each individual than his own convictions about what is really right or really just. In contrast. 109:1535
opposing sides. politically."!" one would certainly be expected to believe also that the con14 KANT. All we can do. then. supra note
I. 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.
Negative and Positive Positivism. the value judgments that might be required in a nonpositivist jurisprudence to identify some proposition as a valid legal norm. Hume. Kant's philosophy is associated with several positions in modern legal
IS See Jules L. Coleman states: Legal positivism makes a conceptual or analytic claim about law.that is. and Bentham . 21 V.. 16 Cf Joseph Raz.
THE USES OF
Still. or the way the law ought to be. The Problem About the Nature of Law. BENTHAM AND THE COMMON LAW TRADITION 328-36 (1986). it is to infuse morality. laws that people could identify as such whatever their particular moral views. At least three of the theorists just mentioned Hobbes. But it does not follow that one can defend the doctrine of the nature of law itself without using evaluative . [d. a position that eschews all moral judgment. to hold otherwise is to build into the conceptual account of law a particular normative theory of law. REV. 147 (1982).W. For a more detailed discussion on this point. 203. Instead. on what evaluative grounds . however. not as they ideally ought to be. the value judgments that support the positivist position that evaluations of the former type should not be necessary.KANT'S
scientious pursuit of justice matters more than the conflicts and inconveniences that might flow from each individual doing what seems right or just to him. POSTEMA. Ironically. see GERALD J. into the concept of law (or the account of the way law is). Bentham. the association of Kant and legal positivism is disconcerting.1s We need to distinguish. and that claim should not be confused with programmatic or normative interests certain positivists.
. and second. ONTARIO L.w To present Kant as a legal positivist is thus not to neglect Kant the moralizer or Kant the theorist of value and right. LEGAL STUD. stability.. Coleman. 2I7~18 (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. or predictability if the legality of putative rules of law could be determined by individual citizens without those citizens having to make value judgments of the first type concerning the content of the putative norms. "Normative positivism"? The term sounds like an oxymoron. especially Bentham. II J. Hobbes. might have had. and Hume all offered evaluative arguments of the second type: they argued that it was better for reasons of peace. 139.adopt a positivist conception of law that is inextricably entangled with the normative part of their political philosophy. This contrast. it is a matter of showing why . between: first. IV."}. Surely the claimed virtue of positivist jurisprudence is that it avoids evaluation and describes legal systems as they are.Kant defended the idea of positive laws .that is. however. arguments. between legal positivism and Kantian moralism may be misleading if it is based on an assumption that legal positivism is always an amoral position.
reprinted in KANT: POLITICAL WRITINGS 61. John Rawls. Rawls no longer characterizes his theory of justice in this way.
17 Symposium on Kantian Legal Theory. nonutilitarian values. 87 COLUM. formally and structurally. POLITICAL LIBERALISM 99-107 (1993) [hereinafter RAWLS. contract. So far. 21 Fletcher. supra note 7. "he offers us more than does Rawls in his challenge to conventional views about the basic institutions of the law.1542
theory. REv. 1991). See JOHN RAWLS. 79 (Hans Reiss ed. to ground legal principles in sound. ad ed. We might do better. Kant's theory. normative theory. there is no trace of Kant's view as expressed in the quotation that begins this Article). and Rawls himself for a long time regarded his theory as Kantian. by the way. REv. in form or in substance . 19 See RAWLS. & H. . The sense that Kant's philosophy is at odds with legal positivism comes from two other sources. In his preface to a Columbia Law Review symposium on Kantian Legal Theory'? (a symposium in which. Fletcher and many of his cosymposiasts believe that. both in spirit and content. PHIL. Nisbet trans.itself directly Kantian in its provenance= . Why Kant. which is inappropriate as a basis for public justification in a society characterized by a plurality of such comprehensive views. at 17-22. in Rawls's terms. and criminal law.provides a valuable way of evaluating differences in people's conceptions of the general good. 87 COLUM. is a "comprehensive" moral and philosophical view. has had a tremendous influence on mainstream. On the Common Saying: 'This May Be True in Theory. For Rawls' description of the "original position.. and the contractarian device of "the original position" . in which. 77 J. for example. But It Does Not Apply in Practice'.
. . POLITICAL LIBERALISM]. Fletcher."21 Each of these views implies that Kant's contribution to legal philosophy is primarily a contribution . that is.to the "normative" enterprise of discussing what the law ought to be." see RAWLS. In fact. 20 See IMMANUEL KANT."ls The work of John Rawls. SIS. at viii. cited above in note 7. SIS (1980).either in general or in detail. the law ought to be such that a person can ascertain what the law is without having to engage in moral reasoning).B. that conception of Kant is perfectly compatible with a positivist jurisprudence (just as Bentham's utilitarian reformism is compatible with his view that. 251-57 ("The theory that results is highly Kantian in nature. 18 George P. L. Kantian Constructivism in Moral Theory. in making a detailed.t? The systematic character of Rawls' approach gave scholars confidence that normative theory (as opposed to a series of normative pronouncements) is possible. 419 (1987). L. for various reasons. to look directly at Kant's views on property. family relations. normative argument about law."). at 429. supra note 18. none of which amount to the positivist thesis that I would like to explore. George Fletcher associates Kantianism with the recent effort by "a large group of scholars in American and Canadian law schools . 421. we might do better to look at Kant without a Rawlsian filter. 428 (1987).
IMMANUEL KANT.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 occur to a contingent set of constitution Framers in Philadelphia in 1787. that they're the Right rights. citizens are entitled to form and to act upon the judgment that they have certain fundamental rights.. WOLFF.provided. Ronald Dworkin takes the position a step further and offers foundationalist reasoning to citizens as well as to judges. at 12.KANT'S LEGAL POSITIVISM
In modern discussions of law and the U." 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. TAKINGS RIGHTS SERIOUSLY 211.
22 I ACKERMAN. e.. the form of his position is widely regarded as an extreme version of Kantianism . . it is their anxiety over the arbitrary definition of rights that induces thoughtful foundationalists to recur to great philosophers like Kant and Locke . at 198-99. Thus.g. 26 See. If modern jurists view Kant as either a normative law reformer or a champion of rights-as-trumps. to identify someone as a Kantian is to say that he thinks there are ways of figuring out what is really just and what rights we really have . violations [ of rights] occur. the foundationalist demands judicial intervention despite the breach of democratic principle. in a society like ours. even when the highest competent court has rejected such rights. 24 See id.. shouldn't they take advantage of the most profound reflections on the subject available in the Western tradition?22
Whereas Ackerman has the foundationalists offering Kantian reasoning as the prototype for judicial reasoning. .
[Ak. And there's the rub. Ellington trans. Indeed.>' Still. 1981) (1785). Dworkin argues that.S.25 Wolff took the concept of autonomy presented in Kant's moral philosophy= and presented it as a matter of duty: "Every man who possesses both free will and reason
supra note 12. of course. a thinker who insists instead on the integrity of individual moral judgment over the arbitrary contingencies of positive law. GROUNDING FOR THE METAPHYSICS OF MORALS 440) (James W.what is right and just is determined in the first instance by moral reasoning. Constitution. If judges are to avoid arbitrariness in defining fundamental rights. 25 See ROBERT P.. Bruce Ackerman describes a group of his colleagues whom he refers to as "rights foundationalists":
When . Rights trump democracy . such moral reasoning "trumps" the contingent decisions of courts as well as majoritarian legislatures. Hackett Publishing Co. 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. and in the final analysis. 214-16 (1977). See RONALD DWORKIN. .
. IN DEFENSE OF ANARCHISM 12-19 (1970).
but he makes it his own by determining for himself whether it is good advice. he would not support Wolff's politics either. 147 28 WOLFF. 30 See WOLFF. he wrote. see JEFFRIEG. Compare. "32 Citizens should complain about injustice by writing letters and pamphlets . he is never subject to the will of another: "For the autonomous man. at 24-27 [Ak. 29 [d. at 13. at 15." Kant maintained that defiance of the legislature "is the greatest and most punishable crime in a commonwealth. he will deny that he has a duty to obey the laws of the state simply because they are the laws. for it destroys its very foundations.in the writings that I discuss that the biggest problem in the state of nature is people trying to figure out rights and justice for themselves . supra note 25.
anarchists. principle of autonomy is the sole principle of morals can quite well be shown by mere analysis of the concepts of morality.s?
Those brought up to accept this as Kant's position will. one's primary duty is to leave the state of nature as soon as possible and embrace what appear to be the decidedly heteronomous obligations of civil law. that Wolff's inference from Kantian autonomy to anarchy stumbles on the stubborn fact of Kant's own authoritarianism in politics. .
[d. MURPHY. means figuring out for oneself what one ought to do. In that sense. supra note 25. reprinted in KANT:POLITICAL WRITINGS. supra note 25. at 81.1544
has an obligation to take responsibility for his actions . I fear. at 13. and in that sense." KANT. See KANT. at 45 [Ak. supra note 20. for thereby the principle of morals is found to be necessarily a categorical imperative. as a command. the following view: "Since Kant did not say that we have a duty to be autonomous. "29 Because submission to legal authority involves doing certain things just because the legislature tells you.KANT:THE PHILOSOPHYOF RIGHT II3-40 (1970). at 18. Of course.and that. . 413-18J. 32 KANT.that is. The responsible person "may listen to the advice of others. in a word. it seems to follow that the burden of Kantian autonomy is that we are required. on principle. in fact. That is to say.supra note 26. supra note 26. of course."27 Taking responsibility. Some of Kant's own language would seem to support this view: "[Tjhat the . It is well known. KANT'S POLITICAL PHILOSOPHY (1983). however. the will dictating to the inclinations. which commands nothing more nor less than this very autonomy. Wolff writes: Insofar as a man fulfills his obligation to make himself the author of his decisions. there is no such thing. to reject legal authority to become. people exercising the virtue of autonomy in Wolff's sense . the result of one's own moral deliberations will present itself in the Kantian scheme of things as an "imperative" ."freedom of
27 WOLFF." PATRICKRILEY.in other words. "28 He never does what another tells him because he has been told to do it.
.supra note 20. he will resist the state's claim to have authority over him. it would seem that anarchism is the only political doctrine consistent with the virtue of autonomy. 440]. strictly speaking.
31 For a discussion of Kant's authoritarianism. be quite surprised to find him saying .
. and the consequent war of all against all can only cease when people submit tQ a unitary sovereign. Kant concluded. supra note 20. We could perhaps dismiss this authoritarianism as an artifact of Kant's waning intellectual powers in the 1790S.
37 See THOMAS Press 1991) (165I). as Hannah Arendt puts it. at 54. Vile and Inconsiderable.
POLITICAL WRITINGS. is "absolute . "the decrease of his mental faculties.until we are sure that there is nothing to be made of it. II7-21
(Ronald Beiner ed. which finally led into senile imbecility.
20."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 secondguess the legislature or the courts and follow their own consciences on matters of right and justice. see An Answer to the Question: 'What is Enlightenment?'. Kant's position is reminiscent of that of Thomas Hobbes: individuals fight in the state of nature.
(Richard Tuck ed. we must expect that individuals will disagree about right and justice and that this disagreement will lead to violent conflict. to take that tack . and Aversion. All of the essays that constitute Kant's political philosophy date from his declining years. LEVIATHAN 86-<)0. And of his Contempt. that is it.
36 HANNAH ARENDT. nothing to be said for it. at 85 (emphasis omitted). is a matter of fact.
The premise of Kant's account is that. Cambridge Univ.
. Evill. which he for his part calleth Good: And the object of his Hate."36 It would be wrong.KANT'S LEGAL POSITIVISM
the pen" must not be denied-" . The moral requirement of obedience to actually existing law. KANT: POLITICAL WRITINGS.
supra note 20. 55-56 (asserting the individual's right to criticize
KANT: POLITICAL WRITINGS." The propensity of individuals to make judgments of value does not mitigate Hobbesian conflict. during which. On the contrary. 34 See KANT. 1982). For
Id.. reprinted in
IMMANUEL KANT. reprinted in 35 WOLFF. LECTURES ON KANT'S POLITICAL PHILOSOPHY 9 HOBBES.. however. value judgments are directly implicated in the struggle for survival:
[W]hatsoever is the object of any mans Appetite or Desire.but they must completely dissociate their complaints from any thought of disobedience. V.
PUblic institutions). at 19. Stated in this way. supra note 25. in the absence of legal authority.
81.to dismiss the authoritarianism as a senile aberration that is unconnected to the glories of the Critical Philosophy . The task of the legislator is to put an end to this conflict by replacing individual judgments with the authoritative determinations of positive law. nothing in the arguments with which Kant defended it that might be of value to us in our own jurisprudence. reprinted in KANT: supra note 20.
supra note I. 38
This means that people's private judgments on matters of right and justice are likely to be both contrary to one another and taken seriously enough to be fought over. 307]. Press 1988) (3d ed. Press 1983) (1642). It is therefore not some fact that makes coercion through public law necessary. § 44. that many men at the same time have an Appetite to the same thing. and Contemptible. Instead. 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. just like Hobbes. See id..
Elsewhere. thinks of the state of nature . On the contrary. and the circumstances of human life are such as to provoke anxiety and competition. Oxford Univ. Indeed. according to Kant. paternal. are ever used with relation to the person that useth them: There being nothing simply and absolutely so.HARVARD LAW REVIEW
[Vol. the state of nature." which. Like Locke. ariseth hence. and who is strongest must be decided by the Sword.the situation "before external legislation endowed with power appears=? .. nor yet divide it.. § 44. that between Master and Servant came to be added .DE CIVE 46 (Howard Warrender ed. at 70-71. Evill.
. Kant is only interested in those places in the state of nature where numbers of men live unavoidably "side by side" with each other. which gave beginning to that between Parents and Children. 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 legislation endowed with power appears. 306]. "). supra note I. as we shall see. are not driven by material interest or the exigencies of survival in Kant's world. at 123 [Ak. means that social units of this type do not rely on coercive." This explanation will not do for Kant. domestic societies" in the state of nature. Indeed. r09:r535
these words of Good. to which. external law for their existence. however. to be taken from the nature of the objects themselves . right and justice. b student ed.Two TREATISES OF GOVERNMENTk.. 43 [d. is a situation in which people have a "tendency to attack one another" and to do so in the name of justice+' Unlike Hobbes.t! Kant believes that there can be "conjugal. in time. THOMASHOBBES. Kant's state of nature is not necessarily asocial. at 121 [Ak. 44 [d. which yet very often they can neither enjoy in common.. at 121 [Ak. 312]. § 41. 40 KANT.
at 39. 41 See JOHN LOCKE.. § 77. II. if we interpret the state-ofnature idea hypothetically. nor any common Rule of Good and Evill. Cambridge Univ.. Yet Kant. whence it followes that the strongest must have it..as a condition of violence.. at 123-24 [Ak. Kant does not attribute this antagonism to the contingencies of men's appetites and anxieties. Hobbes states: [T]he most frequent reason why men desire to hurt each other. 87-88. 42 KANT.v But though it may be sociable. however
38 [d. 3I2J. Moral judgments of good and evil. § 42. at 319 (Peter Laslett ed. 1698) ("The first Society was between Man and Wife.
So . 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. and confronts the human will separately and in actual opposition to other motives. individual men. and given disagreement. ." what explains moral disagreement. . peoples. at 70.
. it still lies a priori in the rational Idea of such a condition . Press ad eel.. distinctively Kantian answers to the questions raised earlier.) Even if men are angels. supra note 20.. supra note 20. if it is presented to the exclusive judgement of even the most ordinary human reason. and states can never be secure against violence from one another. they are opinionated angels.KANT'S LEGAL POSITIVISM
well disposed and law-abiding men might be.the still. combined with. why should people be expected to fight for their respective opinions?
46 Kant is at one with David Hume here. and they hold (or there is a strong probability that they hold) conflicting views about justice for which they are prepared to fight. or influenced by happiness . that before a public lawful condition is established. A TREATISE OF HUMAN NATURE 492 (L. enters not in the least into that other question concerning the origin of society .. For Kant.
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 .P
One possible way to reconcile the clarity of duty with the likely existence of moral disagreement is to stress that. KANT'S POLITICAL PHILOSOPHY 167-69 (1983). Selby-Bigge ed. 48 KANT. . 47 See supra p. [Tjhe concept of duty.. Oxford Univ.w (H Kant did not adopt this strategy..45
I am not saying that Kant adopts a Rousseauian view of the nobility of natural man in this passage.A. concerning the wickedness or goodness of human nature. clearer and more natural and easily comprehensible to everyone than any motive derived from. .lacking a Hobbesian explanation . Hume writes: "The question . 1546. 1978) (1739). 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. Kant is talking about the concept of duty as opposed to the detailed conception of duty that is needed to generate a deter45
Id.. small voice that cuts through the tangled calculus of self-interest:
The concept of duty in its complete purity is incomparably simpler. reprinted in KANT: POLITICAL WRITINGS. in passages like the one just quoted. See HOWARD WILLIAMS. incisive and likely to promote success than all incentives borrowed from the latter selfish principle. . is far more powerful.we have to look for different. 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. " DAVID HUME.
. that the concepts he develops are likely to involve considerable difficulty and controversy in their applications. th[a)n another mans . "unfortunately. at 27 ("[MlY first enquiry was to be. regarded property as the thread to tug in order to unravel the mysteries of political philosophy. and DWORKIN. from whence it proceeded. at 74. In the Grounding for the Metaphysics of Morals.the possession and use of external material resources. In a state of nature. supra note 20.s? If right and justice were similarly contestable."51 Secondly. at 27-28 [Ak. at 68-90 [Ak. the concept of property. nevertheless. at 5. at 134-36. 53 Kant.54) I will not bore the reader with the details. then they would seem to be similarly inadequate as a basis for public morality. not because the concept of happiness is unclear. supra note 1. Kant makes pretty clear. 54 See KANT. (He expounds them in the first seventeen paragraphs of the Metaphysical First Principles of the Doctrine of Right. although the exposition is terribly convoluted. see RAWLS. but precisely because no one can agree in detail about what constitutes happiness. 1°9:1535
minate set of rights. though. 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 welfare of others. and the allied concepts of empirical and intelligible possession.after all. So there is a question about why. We cannot afford to have disagreement about right and justice . at 27 [Ak. cited above in note 7. the indeterminacy of happiness is not just interpersonal. First.")." We can therefore afford (and should expect) to have disagreement about happiness. 52 KANT."? By itself. the concept/conception distinction does not solve our problem. 418]. §§ 1-17. are the things about which we must agree if individuals are to pursue their own conceptions of happiness. to have property along Lockean
49 For a greater explication of the concept/conception distinction. it is enough to say that. the concept of happiness is such an indeterminate one that even though everyone wishes to attain happiness. Kant does not indicate that he thinks the complexities of these concepts are the source of the disagreements we are trying to explain. cited above in note 23. supra note 39. however. reprinted in KANT: POLITICAL WRITINGS. that any man should call any thing rather his Owne.HARVARD
[Vol. Kant rejects the notion of happiness as a basis for morality. 50 See KANT. on Kant's account we do? The main subject matter of justice and right in Kant's political philosophy is property . 245-70). 418-19]. Kant says. Justice and right. that is the general tenor of the argument under consideration. 51 [d. the situation with happiness is a bit more complicated than this description suggests." For Kant. like Hobbes. See HOBBES. yet he can never say definitely and consistently what it is that he really wishes and WillS. are amenable to philosophical exposition. supra note 20. Actually. supra note 26. for each may seek his happiness in whatever way he sees fit" provided that it is compatible with the similar right of others.
in the case of land. in THE METAPHYSICS F MORALS. 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. § I. disputes will also arise about who is (or who was) the first occupant of a piece of land. 364-651 (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. Note that the differences between S Kant and Locke on mode of acquisition do not affect the logic of the Lockean proviso. if one appropriates a piece of land and then wanders off. TATE."). 57 See id. at 87 [Ak. given Kant's account of appropriation. but whether it was absolutely impossible to learn of his existence as its possessor"). § 15.suj»'a note 41. Kant also condemns the expropriation of native peoples in Africa and America. 265-66]. upra O s note I. it applies to any theory of unilateral acquisition. cultivation . 353J. 268]. at 159 [Ak. 266] ("The indeterminacy. To appropriate X is not only to take X under one's physical control. See id. § 62. 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 possession of it. But it may be unclear how many others there are. § 6. at 81 [Ak. but to do so in a way such that one's right in X will be violated if. subsequently. however. at 169-71 [Ak.supra note I. see also IMMANUEL KANT. which Kant interprets to mean "taking control. at 84 [Ak. at bk. of the external object that can be acquired makes this problem (of the sole."}. at 86 [Ak. That prospect is more or less unavoidable.s'')
SS See id. S6 [d. 263] (emphasis omitted).59 In the state of nature. see ROBERT NOZICK. 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. at 68 [Ak. II. § 15. for land. 58 The potential uncertainty derives from the "Lockean proviso." But occupancy. § 17. 60 See id.ANDUTOPIA 174-82 (I974). at 163. § 10. 259]. at 288. or in weaker versions. at 89 [Ak. only if others' situations are not worsened thereby. LOCKE.P Inevitably. such as labor. § 14. 59 See KANT. people's rightful holdings would have to be based on a principle such as first occupancy. original external acquisition) the hardest of all to solve. another person uses or encroaches upon X even while the initial appropriator is not actually in physical control of X.and he rejects the corresponding plantation ideology that cultivators are entitled to dispossess hunters or nomads. what is needed is a particular mode of occupancy . and as good" is left for others. Explanatory Remarks on The Metaphysical First Principles of the Doctrine of Right." which states that an acquisition is justified only if "enough. Kant rejects the Lockean view that.ANARCHY. with respect to quantity as well as quality.
.labor. See JEREMYWALDRON. and more specifically. or it may be a matter of dispute how many of all the others there are (everywhere) one is supposed to take into account. HE RIGHT TO PRIVATEPRoPT ERTY 280-83 (1988). § 27. "56 is quite indeterminate: how do we correlate one's acts of control with an exact extent of land controlledj=? Besides.KANT'S LEGAL POSITIVISM
lines or anything like it. See id.
Politics. 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). not
My view is thus different from that of Thomas Pogge. on empirical grounds (such as convenience) and to some extent arbitrarily. surely. But it is a plausible interpretation.It is well known in the tradition of thought about property that the principle of first occupancy runs into just these difficulties. This last indeterminacy.. 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. The result is a war for the monopoly of interpretation over equally justified but incompatible opinions about property . you might embrace a scheme under which people drive on the left-hand side of the road. nobody fights very hard over questions like which side of the road to drive on. For example. and Order: Kant's Political Philosophy. Moreover. . has taken more than his share. Kant . TO
. We. of two people wrestling for control of a piece of land. in theory. Kant does not explicitly embrace this account of the sources of indeterminacy. .1550
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[Vol. must argue for a concretization 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 . requires a central legislative process to complement the constraints of natural law by those of positive law. in contrast.s.61 Surely. no right answers exist. in THE CAMBRIDGECOMPANION KANT 342.. 62 I 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 philosophy singing "e~eumdum-e-statu-naturali" lies in the indeterminacy of the rational principles of right for the appropriation and use of things. 414 (1988). of course. 352 (Paul Guyer ed. while I favor the equally acceptable scheme of driving on the right. Pogge. and that there is no clearly discernible method of preventing such disputes from giving rise to disagreements about who has the right to what.each person attempts with equal right to fill the emptiness of the natural laws of property with his own interpretation. But I also think that Kant means to stress the irresolvability of disagreement about issues on which there is. Pogge is surely right that there will be some cases of residual indeterminacy.. . The trouble with the application of acquisition principles is not that. a right answer. Positive law irons out this incompleteness by selecting. there is a right answer to the question of whether someone. irresolvable a priori.. Freedom. Kant's Theory of Justice. . . 79 KANT-STUDIEN 407. 1°9:1535
Notice that these difficulties of application are not matters on which reason offers no guidance or matters to be settled by arbitrary stipulation. Thomas W. might also want to mention other sources of disagreement that go to the substantive principles of justice or right. at least in a state of nature. in principle. the fact that people think there is a right answer will likely inspire each party to struggle vehemently for his view of the matter. like the rule about which side of the road to drive on. but that there is no basis common to the parties for determining which answers are right. 1992) (footnote omitted). one or the other was in fact the first occupant.. Wolfgang Kersting.. in violation of the Lockean proviso.. one system of constraints from among those that satisfy pure practical reason.
at 55-56. on any plausible account.. he says that. factors like these make disagreement in good faith not only possible but predictable.s" orients his analysis mainly toward philosophical disagreement about the good. Cress trans. 372 passim (1995).. Rawls uses the phrase "the burdens of judgement. the problem of constitutional des~gn is not well posed . LEGALSTUD. Hackett Publishing Co. and both of them disagree with Rousseau on the initial desirability of appropriation. and we revel in the fact that no two theories are the same. See Jeremy Waldron. I have discussed this point in somewhat greater detail elsewhere. and experiences in life will give them different vantages from which to make these delicate judgments. 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. will all arrive at the same conclusion.s" People write about rights.s" Similarly. Disagreements About Justice." RAWLS. I have found it very difficult to persuade colleagues to reproduce or even to recognize. the existence and significance of the controversies that engage them as political philosophers.
. 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. Also. and the appropriate constitutional structure for their implementation as if there were only one theory of tights to accommodate within that structure (their own) and as if their own disagreements with their colleagues down the hall did not indicate that a constitution would have to house (that is. POLITICAL LIBERALISM. every political philosopher has his own theory of justice. or good faith.. perspectives. and it is natural that people will disagree about how to balance or prioritize them. Together. at 198. on any plausible account. If there is no such standard. and therefore reasonable persons may disagree not only about what the world is like. for example. Yet. human life engages multiple values. For example. Kant disagrees with Locke's "labor theory" of acquisition. R DISCOURSE THE ORIGINOF INEQUALITY ON 44-71 (Donald A. at 55-58. at 58. to articulate his answer to this question. PHIL. at 55. See id. in our day. within their philosophical theories of politics. He shows little interest in considering its application to disagreements about the right and about justice. provide a framework for disagreement among) several conceptions of rights. at least in the long run. 1992) (1755). disagreement.
63 See JEAN-JACQUES OUSSEAU.KANT'S
merely their empirical application." [d.." Id. people's respective positions." id. " RAWLS. 75 PAC.supra note 7. even after free discussion. Q. 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. even though it is arguable that disagreements about these two matters have the same or similar sources as disagreement about the good. supra note 19. These differences of experience and position combine with the evident complexity of the issues being addressed. 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. A Right-Based Critique of Constitutional Rights. 28-36 (1993).. 64 See Jeremy Waldron. 13 OXFORD J. Thus. whose latest work in political philosophy develops and incorporates a powerful account of the sources of reasonable. 18.65 Even John Rawls. but also about the relevance and weight to accord the various facts and insights that they have at their disposal.
supra note 36. at 10. 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.68 What moral disagreement might undermine. for Kant.. 72 See id. is our confidence that the right answer can be discerned (from among all the views that are put forward) in any way that is politically dispositive. 1992)... at 32 (quoting IMMANUEL KANT. A diversity of opinion in astronomy does not undermine the proposition that there are objective right answers to various questions about dark matter and other topics. CRITIQUE OF PURE REASON 9 n. so to speak. Axi] (Norman K. 247.s? One further point about disagreement warrants discussion. supra note 36. the existence of diversity of opinion has sometimes been adduced as a ground for subjectivism.a [Ak. 68 See Michael Moore. 69 See Jeremy Waldron. 171-84 (Robert P." The inference is fallacious. REv. thinking for oneself requires "applying critical standards to one's own thought" and that this "application one cannot learn without . in NATURAL LAW THEORY: CONTEMPORARY ESSAYS 158..
. 70 See ARENDT. a diversity of opinion about justice should not undermine our view that there are right answers in that realm as well. 109:1535
Perhaps we fear that dwelling too much on the significance of moral disagreement is tantamount to admitting that there are no right answers in the realm of justice and rights.. Kant responds: "But how much and how accurately would we think if we did not think.*. because Kant is an objectivist about justice."? To the proposition that freedom of thought might survive the suppression of freedom of speech. But if the inference from diversity to subjectivism is fallacious. L. supra note 20. These views
67 See JOHN L. then so too would be any converse inference that. in the state of nature trying to figure out principles of right and justice."?" From this perspective. views. supra note 20. ETHICS: INVENTING RIGHT AND WRONG 36 (1977) ("[R]adical differences between first order moral judgements make it difficult to treat those judgements as apprehensions of objective truths. antagonistic. 71 IMMANUEL KANT. 1982 WIS. the testing that arises from contact with other people's thinking"). and thus. Smith trans." one is only thinking for oneself when one exposes one's views to "the test of free and open examination. in community with others to whom we communicate our thoughts and who communicate their thoughts to US!"71 Although enlightenment for Kant means thinking for oneself. see also id. 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. MACKIE. 1089--<)0 (maintaining that the crudest argument from diversity to subjectivism confuses objectivity with intersubjective agreement). St. at 42 (noting that. at 249 n. The Irrelevance of Moral Objectivity. Martin's Press 1965) (1781» (internal quotation marks omitted). however. reprinted in KANT: POLITICAL WRITINGS. 40-42. In recent metaethics."). 73 ARENDT. will come up with partial or one-sided. it is quite likely that individuals. likewise.1552
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[Vol. What is Orientation in Thinking?. 1061. however. reprinted in KANT: POLITICAL WRITINGS. Moral Reality. In her Lectures on Kant's Political Philosophy. George ed. at 237.
and tractable. and performe all he promises. I believe that we must also face the prospect of more general theoretical disagreement about the contents of the principles themselves.?+ Kant's answer. when he can quite well perceive within himself the inclination of men generally .
74 KANT. at S5. (not to respect the superiority of the rights of others when they feel superior to them in strength or cunningjr"
Kant's position here is not much different from that of Hobbes. at 122 [Ak. that is.. 307]. As I have emphasized. Why. however. in such time.what explains the existence of moral disagreement? .appeals in the first instance to the . to our first question . note I.?? For both philosophers. reprinted in KANT: POLITICAL WRITINGS. And there is. supra note 20. But once we see this potential for disagreement at the level of application. where no man els should do so.
Why Would Disagreement over Principle or Application Lead to Violence in the State of Nature?
At some points. No one. which tend to Natures preservation. would they fight? A number of different answers can be given. no reason to think that things were any different among moral and political philosophers in Kant's day. and place. at 122 [Ak. need wait until he has learned by bitter experience of the other's contrary disposition.. supra
. 76 See HOBBES. 307]. we may do whatever we think necessary to promote our personal interests: "men do one another no wrong at all when they feud among themselves. supra note 37. assumes that the parties are acting on principle. I believe. supra 75 KANT. that they each believe that justice is on their side.KANT'S
would benefit from the "public use of man's reason" that is available only in civil society. apart from such assurances. § 42. B. 77 KANT. for what should bind him to wait till he has suffered a loss before he becomes prudent. § 42. supra note I. then. at lIO ("For he that should be modest. Kant explains the likelihood of fighting in the state of nature without necessarily assuming that each of the fighters believes 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. 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 conflicting theories and principles. contrary to the ground of all Lawes of Nature. practical difficulties that stand in the way of any uncontroversial application of principles of justice governing the initial acquisition of property. on this assumption. should but make himselfe a prey to others."). and procure his own certain ruine. therefore.
note 33.I"? The more interesting answer to our question. who conditioned any sort of modest or reasonable behavior by individuals in the state of nature on some assurance of security from others.
The material urgency that necessitates provisional acquisition in the first place is likely to preclude any gentle.
44. supra note I.are issues that matter to people. Man had starved.1554
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First. reprinted in KANT: POLITICAL phasis omitted)."84 A third point addresses directly the role of force in all of this. but also a moral view about the basis on which his life is sustained. see
20. in many cases. is a standing affront to a given individual. note 41. supra 80 LOCKE.
WRITINGS. at 288. 81 See KANT.
79 See HOBBES.the tendency to insist on the righteousness of one's own way of viewing right and wrong .the extent of property rights . the claims of justice that accompany conflicting acquisitions are not just urgent in a material sense.. We are not talking about people fighting or killing one another over whether to apply the categorical imperative. at bk. at 39. supra note 78. The issues of right and
For Kant's conception of scarcity. § 28. supra
20. still the opinions are shaped by the conditions of our survival."83 Even the mere existence of another person. cited above in note 20. Idea for a Universal History with in KANT: POLITICAL WRITINGS. notwithstanding the Plenty God had given him. Kant sees this vehemence .
. because as Kant puts it. 264-65]. 83 KANT. "80 Useful things. at 41. 246].as a general characteristic of man's "unsocial sociability. and most obviously. supra 84 Id. bilateral withdrawal or moderation of the competing claims. 82 See id. Another way of putting this thought is that we cannot afford to postpone the appropriation and use of material. reprinted
IMMANUEL KANT. the latter person "encounters in himself the unsocial characteristic of wanting to direct everything in accordance with his own ideas. Kant has his own version of John Locke's dictum that "[ilf such a consent as that was necessary. external resources until consensus is reached on matters of justice. we may expect that. § 2. they are likely to be vehement in their moral tone as well. § IS.
POLITICAL WRITINGS. One who believes that he is entitled to use a certain resource holds not just an academic view in moral philosophy. at 68 [Ak." 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?"). II. at 85-86 [Ak. trying to figure things out morally.v But given that people are likely to disagree about the principles governing acquisition and are certain to disagree about their application. the issues likely to be in dispute . Kant postulates. more than one person will claim the same thing. The material necessities of life are moderately scarce. Secondly. must be able to be usedr" people must be able to make at least provisional acquisitions of external resources even if there is no state to ratify their actions.
" As Kant sees it. then they disagree about the occasions on which force may be used. in fertile environments).'). coercion that is opposed to this (as a hindering of a hindrance to freedom) is consistent with freedom in accordance with universal laws. To hold a view about justice or right. at 83-84 [Ak. at 57 [Ak. KANT. whatever other accommodations we may make with those who are
Kant explains: [I]f a certain use of freedom is itself a hindrance to freedom in accordance with universal laws (i. at 126-30.crudely stated. 231]. upra note 7."86 For Kant. is to identify those situations in which one may physically counter another's act of force.t" This view gives Kant an interesting basis for thinking about the individuation and territorialization of states. supra note I. it is right. All three of these points elaborate.. if people disagree about which actions wrongfully hinder freedom and which ones do not. that is. § 13. "87 H humans were widely dispersed across the face of the earth and rarely encountered one another. We may have occasional dealings with people from other places. propitious environment in the first place. in Rawls' language. Assume that the population of the earth is not uniformly dense but instead is distributed in clusters (for example. 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. who should give way when bodies collide. at III [Ak. Hence there is connected with Right by the principle of contradiction an authorization to coerce someone who infringes upon it. such quarrels will center particularly on the resources that led a bunch of us to cluster in a given. and community would not then be a necessary result of their existence on the earth. wrong). Kant's assumption that the problems in the state of nature apply only to people who "cannot avoid living side by side with all others. § 12. s 88 See KANT.e. § D. The very subject on which these individuals are tussling is the interplay of forces . 307]. Physical coercion is justified as a "negation of the negation" whenever it is used against an action that wrongfully hinders or interferes with someone else's external freedom.KANT'S
justice deal morally with matters that already concern the extent to which one person's external actions affect the external freedom of others. in different ways.
. according to Kant. 86 [d. In all likelihood. then there would be no need for a civil system of right or law because no one's external actions would impinge anyone else's freedom and no one would compete for the use of external resources. but those of us who are clustered together here will recognize that we have to solve our problems with regard to these resources and thereby come to terms with those who are near us. 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. proximity to others is. 87 RAWLS. one of "the circumstances of justice. supra note I.
VI. Special Ties and Natural Duties. mayor may not be what justice requires.
. [d. .. 352] (emphasis omitted). at 85-87 [Ak. 91 See id." however. is best understood to indicate the provisional and essentially inter partes character of the laws that rule the members of a particular cluster.. ought to share these resources with people living elsewhere.?! His cosmopolitan internationalism derives from a sense that we are gradually coming closer and closer to all others on earth. The requirement that we reach agreement with those who are clustered in our particular territory forms the basis for a local. of course.. 352] (speaking of "a community of possible physical interaction (commercium). at 158 [Ak.
CONFLICT AS MORAL CALAMITY
From a Kantian point of view. 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 . in its substance. those of us in the United States have had to define our rights against one another vis-a-vis the local resources. Kant elaborates: All men are originally (i. that is. § 62.?"
89 See Jeremy Waldron. § 13. This kind of possession .from a Kantian perspective . in natural community with them. 22 PHIL. § 15.e. 3.HARVARD LAW REVIEW
[Vol... 90 KANT.when people act forcefully but unilaterally on their own. is possession in common because the spherical surface of the earth unites all places on its surface .. This leaves open the question whether we. at 158 [Ak.the theory that we share the earth with all others and are. 264~6]. they have a right to be wherever nature or chance (apart from their will) has placed them. & PUB. 92 See id. that is.w Kant's position. can we say goes wrong ." so too he does not want to base his judgment of the unacceptability of such violence on any assumption about what we would or would not enjoy. What. supra note I.a scheme that. prior to any act of choice that establishes a right) in a possession of land that is in conformity with right. AFF. 262]. For just as Kant does not want to rest the likelihood of violence on any contingent premise about human motivation. then. at 83 [Ak. in some sense. § 62. individually or collectively.s? What I have just outlined may seem at odds with how Kant treats "cosmopolitan Right" . We address this latter phase of the argument in Part VII below. a thoroughgoing relation of each to all the others of offering to engage in commerce with any other"). however. 94 That is provided. 93 See supra Part V. territorialized legal system. the establishment of particular legal systems in particular places has particular urgency. because we are already side-by-side with some others. For example. 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. . 109:1535
distant from us. . II-IS (1993) (discussing the limited range of justice principles that any country's legal institutions administer). 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.
including people he has never met and people who have never even heard of him. suddenly find themselves laboring under obligations that they did not have before. at 56-57
§ 8. 23°-31]. the duties that they acquire in this way are potentially onerous ones. for example). 9S
We are familiar with people creating obligations for themselves through unilateral actions (by promising. 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. By his own actions.98 and it is not clear how a unilaterally imposed obligation fits into that picture. Thousands of other people. But acquisition involves one person's creating obligations for others.KANT'S LEGAL POSITIVISM
We can glean a number of arguments from the Metaphysical First Principles of the Doctrine of Right. 98 See id. With universality
95 KANT. I will that something external is to be mine. at 266-71 (discussing contingent rights and the moral effect § IS. 97 KANT.
[Ak. supra note I. the material resources that they may use to sustain their lives. Moreover. exactly? Kant's reasons have to do with the general systematicity of right. an obligation no one would have were it not for this act of mine to establish aright. at 77 [Ak. The line of argument most prominent in Kant's text springs from the mismatch between the unilateral character of a property appropriation in the state of nature and the universal character of the obligations that such an appropriation purports to generate:
When I declare (by word or deed). 264l. Admittedly. a person faced with an obligation correlative to someone else's acquired property right is entitled to ask what a universalized system of such rights would look like. under conditions of scarcity. so what follows will be a development and reconstruction as well as an interpretation of Kant's theory. some of them are no more than intimations on Kant's part. § C. I thereby declare that everyone else is under obligation to refrain from using that object of my choice."?" Why not. at 85 [Ak. not merely as an artifact of one person's demands. note 58. obligations that are wholly for the benefit of the appropriator. 256]. See WALDRON. supra note I. affecting.?" 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. supra of appropriation). At the very least. Any obligation that a person bears must be presented as part of a system of mutual respect among all persons. the appropriator purports to acquire not duties but rights against all the world.
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.. 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 . hence only a collective general (common) and powerful will. whereas original acquisition can proceed only from a unilateral will. I only ask myself whether I can also will that my maxim should become a universal law. 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. § 14. that can provide everyone this assurance.
§ 8. 255-56J. impose duties on others. Is it not possible for the will of a Kantian individual to be "omnilateral" if the idea of universalizability disciplines that person's willing?102 (Isn't that. an individual acting on his own moral judgments in the state of nature already invokes universalization and thus transcends his unilateral viewpoint. [A] unilateral will cannot serve as a coercive law for everyone .. 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.
ld. if an acquisition is first it is not therefore original. To the extent that I understand this text (which is not very much). Inexperienced in the course of the world and incapable of being prepared for all its contingencies.HARVARD
[Vol. at IS [Ak.
101 ld. supra note 26. since that would infringe upon freedom in accordance with universal laws. Kant seems to imply.v? and to protect his own interest. only resides in the legislative will of the state. at 84 [Ak. Kant writes:
I am . yet it would be derived from the particular wills of each and would be omnilateral. ld. 263]. the person encumbered by the obligation will ask how he might make a similar acquisition. 403]. 103
99 See id. in other words.. you might object.P?
What is needed.
. 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 unilateral will governing matters that the common will ought to control. at 77 [Ak. exactly what judging things from the moral point of view is. and such a collective will. 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. after all.. and expect those duties to be upheld. § 10. Instead. So it is only a will putting everyone under obligation.. 109:1535
goes reciprocity.. 259]. at 81 [Ak. Not so fast. 103 KANT. is "a will that is omnilateral"101 rather than unilateral.
In this model. CRITIQUE OF JUDGMENT
(Werner S. Kant describes the person who makes judgments of this kind as
a man with a broadened way of thinking if he overrides the private subjective conditions of his judgment.l04 which Hannah Arendt contends is the real locus of Kant's political philosophy. lOS See ARENDT.
. they must be guided by the idea of a system of property rights that can function consistently as a body of civil law.with or without the actual ratification of a full-fledged legislature.. a person disposed to regard himself as entitled to a
given resource through appropriation nevertheless pauses and first asks. H the answer is "Yes.19961
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. 106 KANT. Kant talks about a way of judging
that . § 40. 2641 (emphasis added). Why not?
104 IMMANUEL KANT." then he is morally entitled to proceed . at 161 [Ak. in our thought. and reflects on his own judgment from a universal standpoint (which he can determine only by transferring himself to the standpoint of others). A related model of individual thinking is found in the Critique of Judgment. at 10-16.according to this objection . 295]. ios There. are neither of these modes of individual judgment . Pluhar trans. for Kant. "How are other people likely to view this 'acquisition' given their different interests and situations?" He tries to form a fair judgment that could be maintained from anyone's point of view. Even one's provisional acquisitions must be undertaken "in conformity with the Idea of a civil conditi(>n"108.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. § 15. 1987) (I 790).. 108 KANT. takes account (a priori). 2931 (alteration in original). of everyone else's way of presenting [something]. moral thinking is required when particular persons make particular acquisitions in the state of nature. into which so many others are locked. § 40. But this ideation. at 160 [Ak. 107
Why then. supra note 104. not just from the point of view of his own interests and opportunities. though necessary. as it were. in order as it were to compare our own judgment with human reason in general and thus escape the illusion that arises from the ease of mistaking subjective and private conditions for objective ones.. 107 [d.the moral invocation of universalizability or the adoption of the perspective of others . supra note I. at 8S [Ak. supra note 36.that is. an illusion that would have a prejudicial influence on the judgment. Hackett Publishing
Co. is not sufficient for Kant.
its being put forward in the name of the whole community. Let me quote
109 There is a difference.109 Kant does not have a robust. it is based not only on the requirement for a universalized perspective. we cannot say that either of them will lead different individuals to converge on the same conclusion.by different factions to support their different views about what justice really requires. See JOHN S. of course.. in its content. not in its reflecting necessarily. But the point of using force must be to assure people of that to which they have. but also on the need for a systematic basis of mutual assurance. its power. in his scheme of things. we remain in a situation in which force will be used unilaterally . Liberal Arts Press. and the deliverances 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. The irremovable fact about individual moral reasoning is this: my universalizations are likely to differ from yours. 1956) (1859) (noting the difference between hearing others' objections presented by the person who is about to go on and rebut them and hearing others' objections "from persons who actually believe them. 1°9:1535
Kant's answer cannot be that there is a difference between the individual thought-experiment of putting oneself in others' shoes and the political discipline of really listening and responding to what others actually have to say . participatory image of politics. if not in spirit . To answer the question. the interests and concerns of all those who are individually subject to it. In this scenario. might involve a decline in genuine "omnilateralism. The virtue of positive law resides in its univocality. at best. Inc. We return. the supersession of individual judgments of right by the centralized deliverances of a civil legislator. as a matter of justice. to the argument that I sketched out at the very beginning of this Article. ON LIBERTY 45 (Currin V.although. When Kant raises the concern about unilateralism. then they rupture the connection linking force and assurance.1560
HARVARD LAW REVIEW
[Vol. Shields ed. 110 See supra note 13 and accompanying text. As long as individuals come up with different judgments. simply to vindicate the vehemence with which each holds his own opinion about justice. of course.t-v It is not inappropriate for force to be used to secure justice and right. 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. each person uses force. If people use force to secure ends that are contradictory. force contributes nothing to the security of conditions of right. there is. 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. then.
. who defend them in earnest and do their very utmost for them")." He does not claim for positive law that it actually takes account of everyone's circumstances or everyone's point of view. MILL.in fact. a right.
114 [d. 255-56]..KANT'S LEGAL POSITIVISM
Principles of the Doctrine of Right:
again the crucial passage from section eight of the Metaphysical First
I am . hence only a collective general (common) and powerful will. supra note I.U!
The association that matters here is the association of force with univocality. supra note I. even though I am quite indifferent to his freedom or would like in my heart to infringe upon it. 116 See supra note 13. that is. the whole point of justice and right is to regulate the external characteristics of conduct. "112 In the Kantian scheme of things."). 1539. 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 .of others."). not to regulate attitudes. at 77 [Ak. supra note I. . or respect for others will remain merely academic. the individual will be in the sort of Hobbesian position of rnaintaining his own sense of justice "in foro interno. Under a condition of mutual assurance. 115 See supra p. 354]. supra note 37. reciprocity. Because of cross-cutting patterns of coercion and enforcement. not alwayes.. at 56-57 [Ak. is a war or conflict of forces deployed in the name of right. . 112 HOBBES. a person can be sure that his voluntary restraint (in regard to property) will be matched by the reciprocal restraint .the negation of the negation. 230-31] ("[A]nyone can be free as long as I do not impair his freedom by my external action. we have seen that Kant denies this suggestion. any sense of universalizability. this outcome would be a travesty. this proposition is not supposed to mean that force is inappropriate when upholding rights. § 8. that is to say.
they bind to a desire they should take place: but in foro extemo.. Kant insists. rather than as something self-canceling . at 57 [Ak. 113 See KANT. 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. Indeed. at IIO ("The Lawes of Nature oblige in foro interno. At best. For when force presents itself in that mode. "a hinder111 KANT. each supported by its own selfrighteous militia. for as we have already noted. to the putting them in act.t+' The basic tenor of Kant's argument is summed up in the proclamation "There is to be no war" . at 160 [Ak.116 What is precluded. the secured reciprocal restraint . § D. "114 Again." KANT. § C.if need be. it presents itself purely in the character of vehemence trying to prevail by its poweifulness alone (notwithstanding the moral banners raised on each side)."for war is not the way in which everyone should seek his rights.
. no single sense of right will prevail. 231].which Kant calls the "irresistible veto" of "morally practical reason" . that can provide everyone this assurance. t is only a will putting everyone under obligation. But if there are several conceptions of justice and rights loose in the community.v" and that modern political philosophy follows him in that belief.
reprinted in KANT: POLITICAL WRITINGS. § 42. § D. supra note 20. at 121-22 [Ak.l-"
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. and absent civil society. 122 KANT.t"!" The move to civil society is mandatory because people desire to make acquisitions of resources. 307). use force to vindicate their respective positions. a commonwealth." LOCKE. 312-13) ("So if external objects were not even provisionally mine or yours in the state of nature. § 44. 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 cannot avoid mutually influencing one another). at 73. i.
FROM STATE OF NATURE TO CIVIL SOCIETY
When you cannot avoid living side-by-side with others. § 8.. at 331.HARVARD LAW REVIEW
[Vol. of course. 121 For Locke. II. a condition of distributive justice. there would also be no duties of Right with regard to them and therefore no command to leave the state of nature. 256]. at 77 [Ak. the contract establishing civil society "is of an exceptional nature":
In all social contracts. Kant says. at 123-24 [Ak. is only found in a society in so far as it constitutes a civil state. Indeed.
. ''). 120 [d. at 57 [Ak. supra note 41. the voluntary decision by any number of individuals to enter civil society "injures not the Freedom of the rest. Kant presents the obligation to move out of the state of nature as something that either party to a dispute may enforce. "you ought to leave the state of nature and proceed with them into a rightful condition.t'? Finding themselves faced with such conflicts. 118 Id. from Kant's point of view. § 95. Qua contract. at bk.
which is how Kant wants to unthat coercion can make to justice. 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. 123 See id. supra note 20.P:' Certainly. Kantians in a state of nature may. supra note I. 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. 231). he says. reprinted in KANT: POLITICAL WRITINGS.e. the transition's only political relevance is what it tells a person about his moral situation vis-a-vis the civil soci117 KANT. 109=1535
ing of a hindrance to freedom"?'? derstand the contribution VII. they are left as they were in the Liberty of the State of Nature. that is. because Kant maintains anyway that the ideas behind the state of nature and the social contract are entirely fictitious. we find a union of many individuals for some common end which they all share.t'P? Kant is well aware that the compulsory character of the move into civil society distinguishes his version of contractarianism from that of others (such as Locke 12 I). 119 See id. supra note 20. this desire brings them into conflict. at 79.
Kant's account of the mandatory character of our subjection to civil society is essential in justifying what we referred to earlier as his authoritarianism. which is to be understood by the End thereof.P" The person who calls into question the moral basis of a ruler's legitimacy acts as though what matters is
124 One commentator argues that the Kantian approach to political obligation cannot dispense with a consent requirement: "Though [people in the state of nature) ought to commit themselves [to accept the authority of a just institution).1996]
KANT'S LEGAL POSITIVISM
ety in which he happens to find himself. then he must think relationally about what that membership secures.supra note 37." Mark C. Id. frustrates the End for which the Soveraignty was ordained. but on the Intention. It tells him that he is to think about his present allegiance not in light of a voluntary commitment. AFF. 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. For Kant. then there is no Liberty to refuse: otherwise there is. 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. so far as the reciprocity and mutual assurance between his rights and others' rights are concerned. When therefore our refusall to obey. but rather what our current obligations to it are. 1~5 See HOBBES. Acceptance of Authority and the Duty to Comply with Just Institutions: A Comment on Waldron. Murphy. at 151.as for his own interest and advantage. in the end. 1544-45. or dishonourable Office. upon the Command of the Soveraign to execute any dangerous. Kant's position is structurally similar to that of Thomas Hobbes. & PUB. but in light of the reasons that make that commitment necessary. he is to be aware that his presence in the civil society is as necessary for the interest and advantage of others . they are under no moral requirement to comply with the tnstitution's dictates until they have committed themselves. 126 See id. Above all. in contrast. Hobbes states: [Tjhe Obligation a man may sometimes have. the reasons for entering into the social contract are always. who insists throughout the Leviathan that the extent and the character of one's political obligation is determined not so much by the explicit terms of the social contract as by the reasons for entering into the contract in the first place.
. and my allegiance may justly end long before anyone else's runs out. For Hobbes. 271. 127 See supra pp.125 But the similarity is only structural. individualized reasons of survivak-= thus. In other words. If the subject wants to think about the advantages of membership in civil society. dependeth not on the Words of our Submission. 23 PHIL.others who would be entitled to compel him to enter if he did not want to enter . 276 (1994). 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. at II 7.124 Here. my reasons are not your reasons (as my survival is not necessarily the same as your survival).
and submitted to in civil society? Kant's position surely cannot be that all positive laws are substantively right on the merits. 1548-49 (discussing the vicissitudes surrounding first occupancy).
. it is not a prophylactic against error. 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. Similarly. and his reasoning is no doubt subject to all the vicissitudes that afflict any individual's thinking about who ought to own what. cf Henry Hardy. the legislator is just another human being trying to figure things out. and a perfect solution is impossible. it is hard to see how he can obtain for public justice a supreme authority which would itself be just. Preface to ISAIAH BERLIN. are we to say about the quality of the positive law that is to be enforced.HARVARD LAW REVIEW
that the creation of a civil society happened fastidiously in one way rather than another. KANT. reprinted in KANT: POLITICAL WRITINGS.P" He makes his determinations in the name of the community as a whole. Ultimately. by the way. even in the case of the most
See supra pp. supra note 20. Kant surely thinks that we ought to submit to the results of the legislative process. at 46. THE CROOKED TIMBER OF HUMANITY: CHAPTERS IN THE HISTORY OF IDEAS at xi (Henry Hardy ed. upheld. What. 1990) (explaining that the book's title is taken from Berlin's "preferred rendering of his favorite quotation[ 1 from Kant"). 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. For even assuming that the objector's dissent is conscientious and is based on the most impeccable argumentation. but not as a matter of pure procedural justice. according to Kant. then. The passage just quoted makes it quite clear that.. At best.129
This statement. This is therefore the most difficult of all tasks. supra note 78. whether he seeks this authority in a single person or in a group of many persons selected for this purpose. it is in answer to this person that Kant has developed his moral defense of the idea of positive law. 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. Yet the highest authority has to be just in itself and yet also a man. but important as that banner is. that it is better to revert to a situation in which each person acts on his own particular judgment about justice. 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. in effect. 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. Nothing straight can be constructed from such warped wood as that which man is made Of. Kant concedes this in the following wry acknowledgement:
[W]hile man may try as he will. The one who proposes to resist or to disobey announces.
§ IS.treat provisional acquisitions in any sort of Lockean way. wanted the principle of justice-in-acquisition to play. and most obviously. These acquisitions are conceived of as being provisional not only because they have yet to receive society's full imprimatur. 132 See KANT." see above in note 7. might quality be assured through substantive constraints? In a recent discussion of Kant's theory of property. 131 ALAN RYAN. in which the will of all is united for lawmaking. as Ryan reminds us.KANT'S
conscientious legislator. The idea of such acquisitions is therefore incapable of playing the sort of role in our current political thinking that Robert Nozick. at 80. privilege others.P? If procedure does not guarantee quality. We have to hang the moral acceptability of the positive law of any actual system on the principles which would be the only natural principles of right to govern men in the absence of a formerly constituted legal and judicial systern. dealing with imperfect procedural justice. .P!
The conjecture that natural property rights might operate as constraints on positive law is reflected in Kant's view that provisional acquisitions of external resources may be made in the state of nature. at ISO-53.P" 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. .P" But one cannot . and abrogate some of them altogether in the name of a single. At its most generous.in keeping with the logic of the argument . First. for example. the phrase "provisional acquisition" connotes only the idea of some individual's best effort to figure out between "pure procedural justice" and "imperfect procedural justice. but also because they are the result of conflicting and contradictory individual determinations of justice. 134 See NOZICK. cited 130 For the contrast
. and the term "provisional" has a lot of bite. "133 Secondly. 264] (explaining that provisional acquisition can only occur prior to the civil condition. there is no state of nature. it "is for juridical purposes a logical fiction. PROPERTY AND POLITICAL THEORY 79-80 (1984). at 85-86. supra note I.
RAWLS. which it will subsequently be the function of civil society to ratify and to make conclusive. at 85 [Ak. Alan Ryan points out that Kant is ambivalent about the idea of positive law simply prevailing. we are. supra note 58. it matters enormously that even the logical idea of acquisition in the state of nature is an idea of provisional acquisition. 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. at best. whereas conelusioe acquisition takes place only in civil society). supra note 131. . unified approach to justice. 133 RYAN. and asserting that we have to assume a 'natural right' to appropriate unowned things and make them our property in a state of nature.
there are reasons for thinking that society needs just one view on some particular matter to which all its members are to defer. nevertheless. Kant insists that we must now appreciate that there are others in the world besides ourselves. predicament of the true legal positivist. That is the positivist position. Ryan is right to suggest that the concept of individual property rights is a constraining one .each of two opponents may believe that he is right. 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. He does not deny that its contents may be judged wanting from the transcendent point of view of justice and right.in the way we have traced .that is. He recognizes (indeed he helps to shape our conception of) the modes of thought that one deploys when one makes moral criticisms of existing law. and Kant's contribution is to have linked that position conclusively . and that we are to see the others not just as objects of moral concern or respect.
We must therefore leave Kant in the classic. He has set out the advantages of positive law and given an indication of what we stand to lose if we abandon it. The irony of law and politics is that this symmetry of selfrighteousness is not matched by any convergence on substance . but also as agents of moral thought that is coordinate and competitive with our own.to the idea of a set of property rights. but honest.
. then his laws would reproduce the conflict and uncertainty of a regime of private judgment rather than supersede that regime.1566
unilaterally . If. 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. But what people need is a system of property rights that reflects a single community determination of what each is entitled to. If he were so constrained. secured and assured as a system. When one thinks about justice.what he is entitled to. VIll. 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 legislator 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 in the transition from moral philosophy to political philosophy.
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