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The Idea of Private Law$

Ernest J Weinrib

Print publication date: 2012

Print ISBN-13: 9780199665815

Published to Oxford Scholarship Online: January 2013

DOI: 10.1093/acprof:oso/9780199665815.001.0001

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Kantian Right

Kantian Right

Chapter:
(p.84) 4 Kantian Right
Source:
The Idea of Private Law
Author(s):

Ernest J. Weinrib

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199665815.003.0004

Abstract and Keywords

This chapter situates corrective justice within Kant's philosophy of right. It traces the normative presuppositions of corrective justice to Kant's conception of the will, that is, of the freedom and purposiveness of self-determining activity. It also connects corrective justice to the institutions of a functioning legal order. Kant presents legality as an idea of reason, an articulated unity applicable to the external relationships of free beings. Legality thus conceived makes the right prior to the good within the conceptual sequencing of the operations of practical reason. Accordingly, the juridical relationship of one party to another in private law can be understood independently of the ethical duties incumbent upon them.

Keywords:   kant, philosophy of right, the will, idea of reason, priority of the right, law and ethics

4.1. Introduction

In this chapter I situate corrective justice within Kant's philosophy of right. For Kant as for Aristotle, corrective justice is the justificatory structure that pertains to the immediate interaction of doer and sufferer. Kant, however, differs from Aristotle in presenting corrective justice not as an isolated category but as part of a ramified legal philosophy. His treatment therefore enables us to see the place of corrective justice within its family of associated concepts.

These concepts extend both backward to corrective justice's normative presuppositions and forward to its legal consequences. On the one hand, Kant locates the conceptual roots of corrective justice in the free purposiveness of self-determining activity. He thereby connects corrective justice to his obscure but powerful analysis of the process of willing. The equality of corrective justice turns out, as I have noted, to be the equality of free wills in their impingements on one another. In the Kantian view, such equality is normative because it reflects the normativeness intrinsic to all self-determining activity.

On the other hand, Kant connects corrective justice to the institutions of a functioning legal order. Aristotle himself had noted that disputants in corrective justice have recourse to the judge, “justice ensouled.” The involvement of the judge means that corrective justice, although it deals with the interaction of two parties, involves an impartial and disinterested third party in assessing and enforcing the legal consequences of that interaction. In Kantian legal theory, the presence of the judge is not merely a phenomenologically observed element of private law but is conceptually necessitated by the mutual externality of the interacting agents. Corrective justice is thus part of a (p.85) complex of ideas that includes the publicness of legal ordering. Kant terms the institutional operation of corrective justice “public law,” referring thereby not to an instrumentalist amelioration of the collective good but to the legally authoritative framework for the norms arising as a matter of right.

Kant's legal philosophy traces the conceptual development of law from its origins in free purposive activity to its maturation in a system of public law. Corrective justice is literally central to this development, because it bridges the transition from will to institutions. When considered together with its associated components, corrective justice forms a totality that governs the external relationships of self-determining agents. That totality is the subject of this chapter.

Crucial to Kant's account of law is the role of coherence. Like Aristotle, Kant understands the transactional relationship as a normative unit. This relationship, however, is only one locus for the coherence of private law. Coherence also characterizes the entire complex of notions within which the transactional relationship is situated. Law, from its origin in the will to its manifestation in public institutions, is a unity that integrates its various parts into a whole.

“Idea of reason” is the phrase with which Kant refers to this integration. Consider, for example, his account of the transition from the provisional enjoyment of rights in a state of nature to the juridical condition of civil society. Kant ascribes this transition to an original contract in which people give up their inborn external freedom in order immediately to receive it back secure and undiminished as members of a lawful commonwealth.1 Because this original contract is not a fact of history, the bindingness of law does not depend on the historical evidence for the existence of such a contract or on the process by which people have succeeded to these contractual rights and obligations.2 Nor is it a response to the fact that a regime of lawful coercion is needed to repress the violence to which people are prone in its absence.3 Rather, the original contract “is in fact merely an idea of reason, which nonetheless has undoubted practical reality; for it can oblige every legislator to frame his laws in such a way that they could (p.86) have been produced by the united will of the whole nation, and to regard each subject, in so far as he can claim citizenship, as if he had consented within the general Will.”4

The characterization of the contract as “an idea of reason” is thematic. Within the Kantian system generally, the phrase signifies an integrated totality of parts. Kant applies it, or variants of it, to a number of different elements in his legal philosophy: to the original contract, to property, to the sovereign, to relations between states, to the general will.5 All these instances, if they are truly ideas of reason in pari materia, partake of a conceptual unity that integrates them into one comprehensive idea of reason. Before specifying the interrelationships among various aspects of this broader unity, I shall use the term “legality” to designate the whole ensemble of components constituting this inclusive idea of reason.

Legality, when conceived in Kantian terms as an idea of reason, is the articulated unity applicable to the external relationships of freely willing beings. This unity connects the various doctrines and institutions of law to a conception of volition. Kant sees law not as a harmony of interests, but as a distinctive community of concepts within whose regulative structure every free will can pursue whatever interests it has.

In this chapter I am concerned with three aspects of this notion of legality. First, I explore the significance of regarding legality as “an idea of reason which nonetheless has undoubted practical reality.” This phrase refers to the presuppositions about agency and normativeness that underlie the equality of corrective justice. Like the corrective justice that derives from it, Kant's conception of the will is notoriously formal, inasmuch as Kant construes freedom through a process of abstraction from particular ends. In this chapter I show the connection between this notion of willing and the concept of right that figures in private law.

Second, I trace how a coherent and functioning system of private law emerges from the exiguous structure of the Kantian will. My discussion at this point focuses on Kant's reinterpretation of the Roman jurist Ulpian's three precepts of right: to live honorably, to injure no one, and to give each person his due. Kant treats these precepts as representing different aspects in the conceptualization of legality. (p.87) Between them they embrace the possibility of coherent juridical relationships, the actuality of the transactions of corrective justice, and the normative necessity of legal institutions.

Third, I discuss the distinctive nature of legality as a normative enterprise. Kant elucidates what we now term the priority of the right over the good;6 he divides morality into law and ethics, with law being the conceptually anterior field. In Kant's view the relationships of private law are morally intelligible independently of ethical considerations. Kant therefore would repudiate the accounts of private law that adduce justifications that he would regard as ethical only.7 Accordingly, in the final section of this chapter I deal with the basis in Kant's thought for his exclusion of the ethical from the legal.

4.2. Legality as an Idea of Reason

Let me return to Kant's mention of  “an idea of reason, which nonetheless has undoubted practical reality; for it can oblige every legislator…” This sentence gives rise to four questions. First, what is an idea of reason? Second, what is the meaning of the assertion that the reality of this idea is practical? Third, why does this idea have a reality that obliges lawmakers? Fourth, how can legality be such an idea?

4.2.1. An Idea of Reason

According to Kant, the function of reason is to order concepts so as to give them the greatest possible unity combined with the widest possible application.8 In the absence of reason, concepts would occupy discrete territories, “isolated from one another, separated, as it were, by an empty intervening space,”9 and their totality would be merely the aggregate that they all happen to form in combination. The systematizing function of reason enables them to be construed as parts of a whole in which each part conditions, and is simultaneously conditioned by, the other parts. Since this whole can be articulated into (p.88) its parts, it is not a single and indivisible unit. Conversely, being reciprocally connected in terms of the unity in which they all partake, the parts are themselves not individually self-sufficient. The business of reason is thus to systematize concepts as parts of such an articulated unity.10

An idea of reason is an ordering principle by which reason unifies a group of diverse concepts.11 The systematic unity that reason introduces presupposes something through which various concepts are related, the focus, as it were, upon which all the conceptual lines converge. This point of intersection represents the wholeness of the parts taken together, and it determines for every part its position and relation to the other parts. Such a unifying idea is necessary for the concepts to be related to one another and not merely juxtaposed and contingently aggregated under a single rubric.

4.2.2. A Practical Idea of Reason

Reason can operate upon different types of concepts. Some of these concepts relate to what is given to us in the empirical world, while others relate to what we bring into being through an operation of will. In the present context, only the second type of concept—in the realm of what Kant calls practical reason—is relevant.12

For Kant, the term “practical” has a special significance:

By “the practical,” I mean everything that is possible through freedom.… A will is purely animal (arbitrium brutum), which cannot be determined save through sensuous impulses, that is, pathologically. A will which can be determined independently of sensuous impulses, and therefore through motives which are represented (p.89) only by reason, is entitled freewill (arbitrium liberum), and everything which is bound up with this will, whether as ground or as consequence, is entitled practical.13

Thus the practical reality of the idea of reason refers to Kant's conception of the will as free.

Freedom of the will is for Kant what most sharply distinguishes purposive activity from the passivity of a sequence of efficient causes. Purposiveness involves a relationship of a peculiar sort between the purposive being and the object toward which this being acts. Crucial to the understanding of this relationship is the role of mental representations. A being is purposive insofar as it translates a representation of the object of its desire into reality.14 As a process of actualizing a representation, purposive activity differs from the efficient causation of nature. In efficient causation the effect always follows the cause, but in purposive activity the effect, because it is antecedently represented in the mind of the purposive being who strives to give it life, is also the cause of its own coming into being.15 Purposiveness can therefore be termed a causality of concepts.16

Purposive activity is always the effort to achieve the determinate end, which is the content of the mental representation. Whether purposive activity is or is not free depends on the way in which this end can be related to the capacity for purposiveness. Purposive action is not free when the mental representation of a particular end cannot be compared with (and revised in favor of) a different mental representation (p.90) . Such action—which Kant terms animal will—is determined by sensuous inclination.17

For purposive action to be free, it must have the capacity to abstract from the immediacy of inclination, to reflect upon the content of the mental representation, and spontaneously to substitute one representation for another. Here purposiveness as a causality of concepts spontaneously and freely initiates a series of effects: the purposive being—although affected by inclination, which can suggest a content for action—is not determined by inclination and is therefore not in the coercive grip of any particular representation or object of desire. Since this mode of purposiveness is initially conceived through its contrast with sensuous determination rather than through any positive feature of its own, Kant characterizes it as freedom in its negative aspect. The term he attaches to this aspect of freedom is freie Willkür (free choice), and he associates it with human—as contrasted with animal—willing.18

Now if inclination does not determine free activity, then what does determine it? Kant's answer is that such activity can be self-determining. This means that the determining ground of free activity is not the content of any particular purpose—this would be the pathological determination of sensuous impulse—but the very form of purposiveness as a causality of concepts.19 Purposiveness is most truly itself when its nature as a causality of concepts determines the particular concept to be actualized. Then the principle on which the purposive being chooses to act is one which is capable of functioning as a principle (p.91) valid for all purposive beings whatever their particular inclinations. Such a principle would determine choice by virtue of the ability to universalize and not by virtue of the particular content of the choice. The most general expression of this formalism is the categorical imperative: “Act upon a maxim that can also hold as a universal law,”20 which entails at a minimum that one's reason for acting be capable of being conceived in universal terms without contradiction. Accordingly, purposive activity has a rational dimension; freedom consists in the capacity of purposive activity to be determined by its own rational nature.21 This mode of determination is what Kant calls practical reason, or Wille, which is the positive aspect of freedom.22

Kant's conception of freedom of the will is thus comprised of two aspects: free choice (freie Willkür) as independence from determination by sensuous impulse, and practical reason (Wille) as the determining ground of purposive activity.23 These two aspects of freedom are conceptually related as the negative and positive counterparts of each other. Once free choice is seen as independence from the arbitrariness of determination by the will's content, practical reason as the form of purposive activity must be presupposed as the will's determining ground. Practical reason is the fullest expression of the rationality inherent in purposiveness as a causality of concepts. Free choice and practical reason can both be defined in terms of each other: free choice is the capacity for determination by practical reason rather than by inclination, and practical reason is free choice determining itself as a causality of concepts. Neither free choice nor practical reason is intelligible independently of the other, and their integrated operation marks out the range of the “practical” as Kant uses the term.

Practical reason accordingly assesses particular acts from the abstract and formal standpoint of the causality of concepts through which free choice is determinable. This formality reflects the notion that purposiveness is presupposed in all particular purposive acts. Determination by causality of concepts does not mean that action is (p.92) without content or that purposive activity is transformed into contemplation. All purposive activity is the effort to bring something into actuality, but this content is only the raw material, and not the determining ground, of free choice.24 When purposive activity is free, the purposive being is linked to its particular purpose by a rational operation and not by the imposition of sensuous impulse. Action thus regarded stands in unqualified contrast to the passivity of things caught in a chain of efficient causes.

The free will can now be identified as the point on which everything practical (in Kant's sense), including law, converges. If one starts with the notion of legality, which I have defined as the whole ensemble of legal components constituting an inclusive idea of reason, and works backward to the precondition of such a notion, and further backward to the precondition of that precondition, and so on, one should ultimately arrive at the free will with its negative aspect of freedom from determination by sensuous impulse and its positive aspect of practical reason.

4.2.3. The Normative Force of a Practical Idea of Reason

Why is this practical idea of reason a reality that can oblige every legislator?25 For Kant, legality as an idea of reason provides the archetype for bringing the juridical organization of humanity ever nearer to its greatest possible perfection,26 and he thereby claims for it a normative significance. What justifies this claim?

That legality is an idea of reason means that Kant does not have much latitude in answering this question. An idea of reason is the articulated unity of parts in a conceptual whole. If legality originally lacks normative significance, so that such significance must subsequently be imported from outside, the unity of the idea of reason would be imperiled. Legality and normativeness would share in the same discourse, but without being interconnected as parts of an integrated conceptual system. Accordingly, the normative aspect of (p.93) legality cannot be thought of as something initially independent that is grafted onto law. The unity of the idea of reason requires that normativeness be inherent in the idea of legality. This, indeed, is Kant's solution.

Ascribing to legality an inherently normative nature arises from Kant's account of free choice. Legality as an idea of reason is “practical” in Kant's sense of being grounded in the notion of purposive activity. As the determining ground of free choice, practical reason provides norms. However, practical reason does not impose any demands on free choice from without; it merely makes explicit the normativeness implicit in purposiveness as a spontaneous causality of concepts. The meaning of normativeness is precisely the determination of free choice in accordance with its own nature. Therefore one cannot intelligibly ask what additional consideration gives the demands of practical reason a normative significance: they are normative inasmuch as they are the requirements of practical reason.

Kant expresses this conclusion in the language of necessity. To think of something as the cause of something else is to postulate a necessary connection between the two. In efficient causation, for instance, the effect necessarily follows its cause. Although the causality of concepts is a mode of causation different from efficient causation, it nonetheless has its corresponding notion of necessity: it is a conceptual necessity that free purposiveness conform to its own nature as a causality of concepts. Since practical reason is the necessity appropriate to freedom, Kant defines obligation as “the necessity of a free action under a categorical imperative of reason.”27 What practical reason requires is intrinsically obligatory.28

Kant's notion of normativeness is extraordinarily elegant. Obligation refers to what must be done (or not done), raising the philosophical problem of how the elements of necessity and action are combined (p.94) . If they were separate, how could action be subject to obligation except by an impermissible inference of what ought to be done from what is done?29 Kant realized that no norm external to purposive activity could be relevant to it. His achievement was to elucidate purposive activity as a causality of concepts and therefore as implicitly rational, so that we are spared the Sisyphean task of separately locating the normative bearing of the practical idea of reason. Normativeness consists in the governance of purposive activity according to a standard arising from the nature of such activity. The integration of free choice and practical reason contains all the normativeness there is.

I can now sum up the significance of the practical reality of an idea of reason. A practical reality is grounded in the self-determining freedom of human action. An idea of reason is intelligible as an articulated unity of its parts. Freedom of the will, the integration of free choice and practical reason, is the principle that unites the various aspects of the practical idea of reason into a network of conceptual interdependencies. Practical reason is the determining ground that can conform free choice to its own nature as a spontaneous causality of concepts. This meshing of freedom and necessity imparts normative force—and thus practical reality30—to the entire idea of reason.

4.2.4. Legality as a Practical Idea

Given the significance of an idea of reason that has practical reality, how can legality be such an idea? In view of his definition of the practical as everything tied up with the free will, Kant evidently posits a connection between his conception of legality and his conception of purposive activity. Here I focus on the nature of this connection.

Kant equates the sphere of legality with a person's external relationships, thus distinguishing it from ethics, which he considers action from a standpoint internal to the actor. The focus of his legal philosophy is not on an action's goodness but on its consistency with the freedom of all persons. His exposition of the concept of right contains (p.95) the most general formulation of this consistency. Right (das Recht) is “the sum of conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom.”31 Right thus combines the notions of external relationship and free will in the most abstract way. Accordingly, the union of externality and freedom in the concept of right permits law to be understood as an idea of reason with practical reality. I must therefore turn to Kant's elucidation of the concept of right.

Kant outlines the conditions within which the concept of right applies as follows:

The concept of Right… has to do first, only with the external and indeed the practical relation of one person to another, insofar as their actions, as facts, can have (direct or indirect) influence on each other. But, second, it does not signify the relation of one's choice to the mere wish (hence also to the mere need) of the other, as in actions of beneficence or callousness, but only a relation to the other's choice. Third, in this reciprocal relation of choice no account at all is taken of the matter of choice, that is, of the end that each has in mind with the object he wants; it is not asked, for example, whether someone who buys goods from me for his own commercial use will gain by the transaction or not. All that is in question is the form of the relationship of choice on the part of both, insofar as choice is regarded merely as free, and whether the action of one of the two parties can be united with the freedom of the other in accordance with a universal law.32

As always in Kant, the three conditions mentioned in this passage are not a seriatim list of separate factors. Rather, the passage makes salient the role of free will through a three-stage movement toward an unadulterated notion of external action: by gradually removing whatever has no place in this context, it brings the concept of right into high relief.

The first condition asserts the application of the concept of right to external and practical relations. Since the practical is that which is related to the free will as ground or consequence, the field of applicability of the concept of right is located at the juncture of the volition and its external effects. This sentence, although introductory, never (p.96) theless has important implications. For one thing, the concept of right, because it applies to the external, does not imply the possibility of virtuous self-perfection. For another, because the concept of right is restricted to the practical, it excludes activity that is determinable only by sensuous impulse. Although animal will creates effects in the external world, it is not practical.

The second condition in the passage eliminates wishing, and with it need, as a relevant consideration under the concept of right. Wishing is purposive activity, in that a person doing so seeks to actualize the object of a mental representation. Since the representation does not directly determine the person's action but can be replaced or discarded, wishing, unlike animal will, is an aspect of the free will. The peculiarity of wishing is that it is not accompanied by the consciousness of a capacity actually to produce the object of the mental representation. The representation thus remains merely internal to the wishing person and does not assume an externalized shape in relation to anyone else. Wishing is therefore practical but has no external effect.33

In eliminating wishing, Kant affirms that the duties arising under the concept of right cannot be justified solely by the purported obligor's need, which, as something internal to the needy person, has no standing in the world of external relationships. Of course in satisfying someone else's need, I am acting externally to myself and in relation to someone else, and Kant holds that I am under an ethical duty to do so.34 But since another's need, as such, does not have an external existence, it cannot create in me any legal obligation with respect to it. Therefore the practical relationship to which the concept of right refers cannot be between one person's choice and another person's wish, but must be between choice and choice.

This brings me to the third condition for the application of the concept of right. The relationship here between free wills does not deal with the specific purpose that either actor has in mind, because this purpose is only internally significant. Therefore, as Kant notes with an example drawn from commercial dealings, the failure of the act to achieve what motivated it is not relevant to the act's juridical quality. Inasmuch as it affects another, the act itself has an external status that is indifferent to the purpose that called it into being.

What matters for the concept of right is not the specific object that (p.97) free choice is attempting to achieve, but only that it is a free choice that attempts to achieve it. Only the form of the choice as free, not its content, comes into consideration. The concept of right, therefore, does not require any particular affirmative actions. It postulates an area of permissibility where the actor can strive to accomplish any purpose whatever, provided that the act is consistent with the form of the relationship between the wills insofar as they are free.

The second and third conditions for the applicability of the concept of right are the converse sides of the same notion. In the language of the common law, the concept of right deals with misfeasance and not nonfeasance. Under the second condition, one person's need does not serve as the basis for obligating another to satisfy that need; accordingly, there is no liability for nonfeasance, that is, for not providing another with a needed benefit. The third condition restricts the law's interventions to misfeasances, since it treats only acts as violations of right. The two conditions state not two independent principles, but the reciprocal entailment of no positive duties to help another and only negative duties to avoid acting inconsistently with the form of freedom between wills.

At the heart of the concept of right, then, is the form of the relationship between wills that are free. This relationship is the locus of the practical in its external orientation; the third condition for the concept of right simply articulates more precisely the first condition's joining of the external and the practical. This precision consists in leading us back to the form of free choice that is the foundational presupposition of self-determining action. The abstraction from the content of the will, which Kant notes as intrinsic to the concept of right, is also the defining characteristic of the negative aspect of freedom: free choice is the possibility of substituting one object of desire for another, so that whatever content the will has for the moment does not necessarily determine what a person does. The concept of right refers to the relationship between two beings whose activity is subject to this possibility.

By emphasizing the form of free choice, Kant makes the concept of right congruent with Aristotle's description of corrective justice. What Aristotle formulates as an abstraction from considerations of virtue (“whether a person has deprived an unworthy person or vice versa makes no difference”) Kant formulates as an abstraction from the content of choice. One's worthiness reflects one's tendency to act for morally desirable ends. Corrective justice abstracts from considerations of virtue because it abstracts from all particular ends. Moreover, (p.98) Aristotle's continuation, that “the law looks to the difference in harm alone,” points to a sheer relationship of act and effect that can be assessed from the standpoint of justice; that is, it points to the union of the external and the practical in Kantian right. And what Aristotle characterizes as the law's equal treatment of the doer and sufferer of harm surfaces in Kantian right as the moral compossibility of one person's action with another's freedom.

At the end of the quoted passage, the concept of right leads to what Kant terms the universal principle of right. Under the concept of right, “all that is in question is… whether the action of one of the two parties can be united with the freedom of the other in accordance with a universal law.” In thus governing bilateral relationships, the concept of right comprehends the sequence from one person's performance of an action to another's suffering of its effects. Because the parties to this relationship are free wills, the action must be consistent with the freedom of the potential sufferer. Accordingly, the concept of right constrains free and purposive action in the name of freedom itself. And because such freedom is an expression of the parties’ capacity for self-determining agency, it falls under a universal law applicable to both parties as free, purposive beings. This universal law of freedom refers to what practical reason requires.

We can now appreciate the sense in which the conformity of juridical relations to the principle of right is an actualization of practical reason. Reason is practical when it is “applied to the capacity for choice irrespective of its objects.”35 Just as practical reason, or Wille, is the determination of free choice by its form and not its content, so the principle of right, that one person's action must be capable of coexisting with another's freedom, is the form of free choice determining the interaction of one free will with another. Practical reason is the determination of purposive activity by the causality of concepts; similarly, the principle of right is the determination by the concept of right of the relationships governed by that concept. Both practical reason and the principle of right abstract the form of free choice from whatever content it happens to have, and make this form determine the operation of the free will. The principle of right is therefore the external aspect of practical reason, or practical reason as it pertains to interaction among free wills. Under its external aspect, practical reason (Wille) becomes the general or universal will (der allgemeine Wille).

(p.99) Thus the quoted passage starts with the observation that the concept of right applies only to the external and practical relationship of one person to another, and then explains how both aspects of the combination of the external and the practical are satisfied. The wishes of the parties and the particular ends that are the content of their volitions are irrelevant to externality. What remains is the form in the relationship between formally free wills. The external and the practical have been reduced to their single abstract point. This contentless abstraction of the externally practical determines the relationships that fall under the concept of right. Just as practical reason holds free choice to the requirements of the rational nature of free choice, so the general will, as it functions in accordance with the principle of right, holds the external and practical relationship among those with free choice to the conceptual requirements of that relationship.

The connection between practical reason and free choice is conceptual and not physical. The distinction is crucial to the difference between Kantian legality and Kantian ethics. The spontaneity of free choice would be illusory unless it could be determined by the causality of concepts, which is the essence of this spontaneity. The determination is ethical when the freely choosing being adopts practical reason as the principle of an action. Here both practical reason and free choice are internal to a single actor.

However, since practical reason is conceptually and not physically connected to free choice, the locus of one can be different from the locus of the other, so that practical reason can be brought to bear on free choice from outside the being with free choice. This occurs in the realm of right.36 Because acting out of virtue is irrelevant to the externality of the relationships governed by law, an external authority must be present to enforce upon the actor the external requirements of practical reason. The necessity of such an authority is a conceptual one, flowing from the nature of the conjunction of the practical and the external.37 Thus the externality of right does not reflect merely the relationship between the parties to a legal transaction. In right, externality (p.100) is a characteristic of volition itself, in that the conceptually connected aspects of free choice and practical reason are each located in mutually external entities. A rightful law is the voice of practical reason addressing from without a being with free choice.

4.3. From Free Will to the Publicness of Law

4.3.1. Ulpian's Precepts

Now it is clear how the coherence of law as a Kantian idea of reason is grounded in the will's integration of free choice and practical reason. Subjection to law can thus be the public confirmation, rather than the denial, of one's status as a free being. The concept of right is the most abstract binding of the practical and external; it is the prism that diffuses the requirements of practical reason into the external relationships of law. Here I focus on this process of diffusion by exhibiting the intricate conceptual progression through which law arises inexorably from the structure of willing. The parts of this process form the articulated unity that characterizes legality as a practical idea of reason.

Kant outlines the movement from free will to public law when he sets out a threefold division of the duties of right.38 This division takes the form of a commentary on Ulpian's famous three precepts of right: honeste vive (live honorably), neminem laede (injure no one), suum cuique tribue (give each his due).39 Kant playfully proposes to ascribe to them a sense that Ulpian himself  “may not have thought distinctly in them, but which can be explicated from them or put into them.”40 That a serious purpose lurks here is evident from Kant's reference to this threefold division at other strategic junctures in his exposition.41 The three precepts, in Kant's interpretation, are stages in the maturation of public law from its beginnings in the will.

What gives opportunity and point to Kant's use of the three precepts of Ulpian is that they feature a steady increase in the number of persons involved. The first precept, which Kant ambiguously translates (p.101) as Sei ein rechtlicher Mensch 42—“Be an honorable man” (but also, as we shall see, “Be, that is, assert yourself as, a juridical person”)—does not explicitly require the existence of anyone but the addressee. The second precept, translated by Kant as “Do not wrong anyone,”43 envisages a more populous world in which a second person exists who might be the victim of the injustice from which the addressee is enjoined. The final precept, “Give to each what is his,”44 is, Kant notes, an absurdity on its face, because one cannot be given what one already has; Kant accordingly interprets it as mandating a regime of public law in which what each person owns is secured against everyone else.45 This precept thus envisages not merely the two immediate parties to an interaction, as does the second, but also a publicly authoritative figure who confirms them in what they have and thus gives each his or her due. The successive precepts correspond to three stages that, through their increasingly dense population of the public world, represent the externality of right with progressively greater explicitness.

This emerging explicitness can be summarized as follows. In the first stage, the focus is on the lone actor, with the public aspect of action still only implicit. At the second stage, a second actor appears, so that the externally oriented action of the first stage has become an interaction, which can be ordered by the principle of right. But even this stage does not make the external aspect of free willing completely explicit because adhering to the principle of right and applying it in specific situations depend entirely upon (and are thus internal to) the subjective inclination of the interacting parties. The third stage adds a third party, the judge who impartially interprets the interaction and sets in motion the coercive apparatus of enforcement. Since the externality of the parties is regulated by the external authority of public law, the external relationship of all to all, ordered according to the principle of right, is now fully explicit.

In the same three phases practical reason also becomes more explicit. Indeed, Kant produces the precepts of Ulpian as relevant to a general classification of the duties of right; and because duties apply only to free acts, this classification charts a progression in the external recognition of the freedom of the will. The first stage, so Kant tells us, marks a possibility that becomes actual at the second stage and necessary (p.102) in the final stage.46 When this trichotomy is applied to the volition, the actor is initially conceived as an entity for whom determination by practical reason is only possible. In the second stage, the external operation of practical reason can be actual; there can be a second free will on whom the first can impinge. These two interacting persons are bound by the principle of right to a harmony of the action of one with the free will of the other. The first stage's capacity for action in accordance with practical reason is now, at the second stage, put to the test of actual interaction. Although the second stage advances beyond the bare implicitness of practical reason to the existence of correlative rights and duties, this existence is itself not yet explicit until the third stage, when public law announces and enforces such rights and duties.

This progression from free will to public law can be further broken down. The cursory articulation that follows is partly a summary of what Kant says, partly a skeletal commentary, partly illustration, and partly a supplementary fleshing out of Kant's suggestive outline. The purpose of briefly exhibiting the components of this progression is to indicate the scope of legality as an idea of reason.

4.3.2. The First Stage

The possibility of a public world. Among the related set of possibilities in the first stage is the possibility of a truly public world. The actor, although alone at this point, is nonetheless a free will and so can abstract from the content that inclination proposes for action. Inclination as such is intrinsically private. Practical reason, in contrast, operates “through concepts which alone can be universally communicated, and not by mere sensation which is limited to the individual subjects and their susceptibility.”47 Any freely willing being can, by virtue of its independence from determination by sensuous impulse, participate in a shared world of reason. Without this possibility, the resultant polity would be nothing but a congeries of private interests randomly affecting one another in response to the impetus of inclination, rather than a civil association that can institutionalize through its public system of law the external aspect of practical reason.

(p.103) The possibility of interaction. The possibility of practical reason also implies the possibility of interaction. The actor, qua free will and even without encountering any other actor, has the capacity to reflect upon the particular purpose he or she wants to accomplish. The actor can recognize that the possibility of choosing a purpose other than the one actually chosen means that action is not defined by any particular purpose. One is free to determine any purpose for oneself, that is, one is self-determining. In recognizing oneself as self-determining, one can recognize oneself both as the object of one's attention and as the subject that provides that attention. Implicated in this recognition is the possibility that other selves might exist who can be the object of recognition and can also recognize the actor as the object of attention. Since the participants in this possible series of reciprocal recognitions are themselves freely willing actors, the possibility of recognition is immediately conjoined to the possibility of interaction. Although actual interaction begins when at least two actors come within the range of each other's effects, its seeds are already present in the actor's essential self-consciousness.48

The duty of rightful honor. These possibilities can be summed up in terms of the first precept of Ulpian, honeste vive, that one should assert oneself as a juridical person.49 Because the outward projection of one's action is an assertion of the actor's worth in relation to others, Kant termed the duty corresponding to this imperative “rightful honor.”50 He derived its obligatory nature from the necessity of an active being to avoid passivity, and thus reduction to a means, in the face of the external world. The duty of rightful honor is incumbent on the free will as a law of its own being, and it is expressed in the imperative “Do not make yourself a mere means for others but be at the same time an end for them.”51 Kant conceived of rightful honor as a kind of defensive imperialism,52 whereby the actor, to realize his or her nature as a bundle of self-determining energy, presses out into the world and thus resists the pressures that other actors exert. The resulting network of reciprocal pressures actualizes the possibilities inherent in the first stage, thereby bringing us to the second stage.

(p.104) 4.3.3. The Second Stage

Corrective justice.53 Here the actors encounter each other as the embodiments, in their persons and in their possessions, of free will. Their interaction as practical beings brings them under the principle of right: the free choice of the one must be capable of coexisting with the freedom of the other in accordance with a universal law. This principle abstracts from the internal factors of motivation and need, so that the formality of the relationship of will to will now becomes a framework of correlative and externally compossible rights and duties that constitute the juridical categories of property, contract, and domestic status. Interaction between free wills engages the external aspect of practical reason, which requires that each actor treat the other's personal and proprietary embodiments in a manner that does not violate their formal equality as free wills.

Externally recognizable acts. On stepping into a world of interaction, the freely willing actor establishes a presence there through acts that have an externally recognizable nature. Purely mental imaginings and reservations, however real they are to the actor or however serious the consequences to which they might in due course lead, have no status in this world of interaction. Thus criminal wrongdoing requires an actus reus; contract cannot be held hostage to the vagaries of a private intention; and the claim to property must involve some act in the world of appearances, such as livery of seizin or a solemn declaration “ex iure Quiritium.” 54

Social meanings. The external nature of action implies a world of shared social meanings. Only within such a world can juridical acts by each of the parties be interpreted from a perspective common to both and thus have significance as external acts. Juridically meaningful acts are, therefore, historically variable and relative to societal contexts and understandings. For example, in order to appropriate, a person will perform the act that signifies appropriation in that person's society: in one society the act may be the shoe's stepping,55 in another the hand's seizure or the laying on of a spear.56

(p.105) 4.3.4. The Third Stage

Public law. So long as it encompasses only the interactors, the interaction depends on characteristics internal to the parties: their ability to discern the significance of right and their willingness to conform to right's requirements. To make their relationship fully and explicitly external, a third person is needed who can recognize and bring home to the parties their rights and duties. The function of law as public is to supply this external standpoint. With this we enter the third and final stage of the conceptual evolution from the capacity for purposiveness to the explicitness of juridical relations—the stage that Kant called public law.57

The court. The first function of public law is to provide an authoritative external interpretation of the relationship between the two parties. Recourse is therefore had to a third person, the judge, who is external to them both and who can impartially and disinterestedly interpret their dealings. Impartial and disinterested adjudication between the parties means that the judge does not supervene upon the interaction with distinct interests of the collectivity or of other nonparticipants in the interaction. Hence, the judge cannot use the opportunity presented by the lawsuit to maximize the community's wealth or promote the greatest good for the greatest number. As the external actualization of the practical reason implicit in the interaction of self-determining agents, the court has only one role: to give public expression to the meaning of right in a particular interaction.58

The structure of legal reasoning. In elucidating the significance of the interaction, the judge must treat the parties as the free wills that his role presupposes them to be. Because the parties are affected but not determined by inclination, their needs or wants do not determine (p.106) the juridical meaning of the transaction between them. The free will acts under the causality of concepts, and so the intelligibility of the relationship of one free will to another requires an abstraction from the private motivations and the particular interests of the parties to a coherent conceptual structure that can express the juridical nature of their relationship and can be the framework for the public justification of the judge's decision. From this standpoint too, elaborate calculations of collective advantage are excluded, because they are beyond the limits of judicial competence. The activity of the judge consists in making explicit the categories of property, contract, and wrong that are implied by the concept of right, in articulating the subcategories that constitute these more inclusive categories, and in exercising a judgment that relates the particular situation at hand to the general concepts that render it intelligible as an interaction of free wills.

Public justification. In functioning as the institutionalized embodiment of practical reason, the court makes explicit in its judgment the rationality that is implicit in the interaction. However, though the parties need only avoid violating right, the court must make and be seen to make its judgments on the basis of the demands of right. These judgments fully externalize practical reason only when the principles that animate them are openly declared and publicly acknowledged.59 Adjudication involves not the achievement of a collective goal through subterfuge or manipulation, but a declaration of principles and standards that could be accepted by all as expressing their nature as free wills. The externality of right entails the public announcement of its articulations and applications.

The public aspect of adjudication. The court not only interprets the relationship between the litigants, but also makes explicit the public standpoint of such interpretation. Thus although the court has no particular collective interest that it adds to the interaction of the parties, its necessary presence as the external interpreter of the relationship's juridical quality carries with it the demand that the judgment correspond to what is publicly manifest and ascertainable rather than to the inner logic of the dispute.60 For example, according to the inner logic of the law of sales, one cannot sell what one does not own.61 If, however, the transaction conforms to a publicly recognized mode of acquisition, a good-faith purchaser acquires property in the thing and (p.107) not merely a personal cause of action against the vendor.62 Similarly, the inner logic of gratuitous bailment suggests that the bailor gave the bailee only the use of property and did not thereby intend to assume the risk of its destruction. What is publicly ascertainable, however, is that the gratuitous bailor, who could without prejudice have expressly allocated the risk to the bailee, omitted to do so. From the standpoint of public judgment, therefore, the bailor must bear the cost of damage to the bailed object.63

Publicly authorized coercion. The authority of public law is coercive as well as interpretive. Since the vindication of right includes the prevention or reversal of violations of right, the freedom of all is immediately joined with a reciprocal universal coercion.64 But the task of coercion, like that of interpretation, cannot be placed in the hands of the interacting parties themselves. Although the parties may spontaneously observe the requirements of right either by forbearing from wrong or, once a wrong has occurred, by making or extracting proper amends, these possibilities have no juridical standing since they presuppose in the parties an internal virtue foreign to the externality of legal relations. Therefore, the public significance of wrong can be signaled only by the availability of a coercion that represents the external operation upon the parties of the concept of right.65

The prospectivity of law. The public functions of interpretation and coercion operate not only retrospectively to correct past wrongs, but also prospectively in anticipation of wrongful behavior. Since right does nothing more than hold a given act to the external aspect of practical reason, the specification of wrongfulness does not depend on the wrong's already having occurred. Thus although Kant's conception of law, unlike that of utilitarianism, cannot ignore or discount completed wrongs for the sake of future collective benefits, its gaze is (p.108) not exclusively fixed on the past. Indeed, the necessity for public law itself testifies to the law's prospectivity. Public law is born in the apprehension of injury: since it is inconsistent with the equality of free wills that one should refrain from wronging someone who might not exercise an equal restraint, everyone is to be coerced into a public regime of law as a way of guaranteeing in advance the equal security of everyone's freedom.66

Public knowability. In its prospective functioning, public law sets a standard against which actors can measure their future conduct by making public the duties incumbent upon them. If what the actor is to do or to abstain from doing is to bear on contemplated behavior, it must be publicly knowable. Hence the need for the greatest possible certainty and predictability. However, the aspect of public knowability includes but goes beyond the requirement that law be clearly formulated. Law must reflect the coherence of an idea of reason with practical reality. Public law is, accordingly, to be knowable in the deepest sense of rendering explicit the inherent rationality of purposive activity.67

Deterrence. Just as the law's knowability has prospective significance, so does the law's coerciveness. The requirement of right that every act of wrongdoing be answered by an equal and opposite reaction has a deterrent as well as a retributive aspect. Coercion, taken on its own, is a hindrance to freedom, but its use is consistent with freedom when it is deployed to prevent a hindrance to freedom.68 Although the prospective knowability of right indicates the web of duties that should constrain the actor, the law does not presuppose in the actor a subjective recognition of duty as the incentive to act in accordance with it. Acting out of duty is an internal quality of a good will and therefore is not part of the external ordering contained in the concept of right. Since the point of right is to hold the external aspect of action to the external demands of practical reason, law must posit an external force capable of determining the actor's will, that is, capable of acting as a deterrent. The prospect of external coercion complements the prospectivity of legal duty, by giving potential violators notice of the consequences attending any violation.

(p.109) Excuse.  The apprehension of coercion is not only a conceptual ingredient of law but a marker of the limits of the law's application. A wrongful act with respect to which coercion cannot exercise its function as a possible determinant of the will lies in the realm of excuse. The excused act is, to be sure, a violation of the principle of right, as when one shipwrecked sailor pushes another off a plank.69 But since the prospect of the law's punishment cannot outweigh the evil to which the wrongdoer is currently exposed, the external operation of the law cannot function as a deterrent, and the violator of right is immune to the reach of the legal process. For the law to require that one person respect the equality of another in circumstances where the anticipation of punishment cannot deter is to require virtue; to inflict afterward a penalty that previously could not determine the will is to exact revenge for a failure of virtue. From the standpoint of right, the impugned act is a wrongful one, but it is excused because any punishment would itself be inconsistent with the concept of right.70

4.4. The Priority of the Right

In Kant's legal philosophy, the concept of right pervades the legal system, giving it its normative character and making it the occasion for philosophic insight. Right is comprehensive, unifying, and systematic, encompassing everything from the operation of the will to substantive legal doctrines and institutions. Without the concept of right, law would be a merely empirical phenomenon: like a wooden head, beautiful but brainless, it would lack inner intelligibility.71

Kant treats private law as normatively self-sufficient. Private law draws its moral character from the notion of free will that it presupposes. Out of the agent's capacity to abstract from particular ends (p.110) comes the possibility of ordering the interactions among free purposive beings without passing judgment on the virtuousness of their chosen purposes. Because of the conceptual implications of free will, the interactions of purposive beings are inevitably subject to the requirements of corrective justice. Private law becomes a normative reality when those requirements assume the form of a publicly authoritative system.

The self-sufficiency of private law denies justificatory relevance to considerations that do not express right's union of the external and the practical. Excluded, of course, are instrumentalist considerations, which, by treating individuals as means, fail to reflect their status as free purposive beings and, therefore, as bearers of rights. Also excluded, however, are ethical considerations, which depend not on the external authority of law but on the agent's internal recognition of the obligatoriness of a particular act. Understood as the manifestation of right, private law is normative without being ethical.

Both law and ethics are for Kant branches of morality, in that both require the volition to live up to the demands of practical reason. They differ in the incentive that each holds out: in law the actor responds to the prospect of external coercion, whereas in ethics the idea of duty itself motivates the action. When Kant deals systematically with both law and ethics, he treats law first,72 thus indicating that juridical relations are somehow prior to ethical duties—that is, in contemporary parlance,73 that the right is somehow prior to the good. This priority gives law its conceptually self-contained nature and invalidates the importation into legal analysis of considerations drawn from ethics.

In the Kantian understanding, the priority of the right over the good refers to a conceptual sequencing within the operations of practical reason. The right is prior to the good because practical reason must first traverse the domain of law before it can reach the domain of ethics. At the point in this conceptual sequence where practical reason formulates ethical duties, juridical ones have already taken hold. The juridical relationship of one party to another can therefore be understood independently of the ethical duties incumbent upon them.

This priority follows from Kant's distinction between law and ethics. The governance of free choice by practical reason, which is implicit in the capacity for self-determination, can become explicit in two ways. Either practical reason—the very thought of doing one's (p.111) duty—can be the incentive for the act, or some external party can enforce upon the actor external conformity to the requirements of practical reason. The internal avenue leads to Kantian ethics, the external one to Kantian legality.

What is crucial is that the external avenue is narrower than the internal one. Whereas legality “deals only with the formal condition of outer freedom… ethics goes beyond this and provides a matter (an object of free choice), an end of pure reason which it presents also as an objectively necessary end, i.e., an end which, so far as men are concerned, it is a duty to have.”74 Legality abstracts from particular ends to the form of choice, whereas ethics specifies obligatory ends. In effect, ethical actors recognize their own status as self-determining beings and make practical reason, and the duties arising out of it, decisive for their actions. By contrast, legal actors do not make practical reason the determining ground of their actions. Because practical reason acts on them from without, its jurisdiction is limited to the governance of their external relations.

The priority of law over ethics is evident from the different structures of legal and ethical norms. Whereas law permits all acts except those that are inconsistent with the freedom of others and therefore comprises prohibitions that limit an area of permissibility, ethics begins with the concept of duty and seeks out obligatory ends.75 These ends would, however, not be obligatory unless they were permissible, and they would not be permissible if they violated the juridical rights of others. Legal duties are therefore essentially negative prohibitions whose validity is presupposed in ethics’ more particular structure of positive injunctions.

The right is prior to the good because relationships of right actualize the capacity for purposiveness that underlies the specification by ethics of the obligatory objects of free choice. Whereas ethics contains ends that are duties, law is concerned with the purposive capacity alone. So long as the exercise of that capacity is consistent with the purposiveness of others, law is indifferent to particular purposes. The concept of right abstracts from the content of the free choice to its form as purposive activity. Since obligatory purposes presuppose the common purposiveness that they instantiate, the harmonization through right of this common purposiveness is conceptually prior to the insistence in ethics on any of these particular purposes.76

(p.112) The priority of the right over the good does not mean that for any ethical duty a parallel legal duty must be presupposed. In Kant's view, the distinctiveness of certain ethical duties (such as the duty of self-perfection or of beneficence) lies precisely in their lacking any juridical counterpart. The point, rather, is that although certain ethical duties can be conceived without anterior juridical ones, ethical duty as such cannot be conceived without the principle of right. In ethics, practical reason specifies the purposes incumbent on any purposive being. Such specification would be impossible unless the exercise of the purposive capacity, considered apart from any particular purpose, could be ordered into accordance with its nature as a causality of concepts. Practical reason could not become explicit in the actor's purpose unless it was already implicit in the purposive capacity.

The priority of the right also does not mean that the right is better than the good. Since the concept of right is prior to the intelligibility of the good, judgments of goodness or betterness are simply not apposite to it. Because law is conceptually prior to ethics, law does not occupy the whole field of moral action: law sets only the minimal—but also the maximally enforceable—moral conditions for the interaction of purposive beings. Precisely because of the conceptual priority of law over ethics, public lawful coercion, as an aspect of the practical idea of reason, would be conceptually necessary “however well-disposed and law-abiding men might be.”77

The irrelevance of ethics to right illuminates a point made during the discussion of legal formalism in Chapter 2.78 There I contended that morality—even noninstrumental morality—sheds light on private law only to the extent that it reflects the character of private law. Moral considerations directed at only one of the parties to the private law relationship, such as Fried's conception of promises or Fletcher's of excuses, do not correspond to the bipolarity of the private law relationship. They therefore do not assist in understanding private law, despite their noninstrumental quality.

I can now relate these observations about the bipolar character of private law to the Kantian grounding of private law. My examination of the character of the private law relationship has led back through corrective justice to the Kantian analysis of practical reason, with its (p.113) distinction between right and ethics. One-sided noninstrumental considerations belong to the realm of Kantian ethics: their ultimate criterion is whether the act comes from a will that has made practical reason its determining ground. Fried's theory of contract as promise, for instance, requires a single will's choices to be consistent over time; and Fletcher's plea for excuses argues that action under exigent circumstances does not indicate the actor's lack of a good will. Not only do these justificatory considerations fail to correspond to the bipolarity of the private law relationship, but they lock into the wrong section of the Kantian moral universe.

Notes:

(1) Immanuel Kant, The Metaphysics of Morals 127 [315–316] (Mary Gregor, trans., 1991).

(2) Immanuel Kant, “On the Common Saying: ‘This May Be True in Theory, but It Does Not Apply in Practice,’ ” in Kant, Political Writings, 79 (Hans Reiss, ed., 2nd ed., 1991).

(3) See Kant, Metaphysics of Morals, 123 [312].

(4) “On the Common Saying: ‘This May Be True in Theory, but It Does Not Apply in Practice,’ ” 79.

(5) Kant, Metaphysics of Morals, 73 [251], 120 [306], 124 [312], 127 [315], 134 [323], 146 [338], 151 [344], 177 [372].

(6) John Rawls, Political Liberalism, 173 (1993).

(7) Fried's thesis of contract as promise is an example; see above, section 2.9.3.

(8) Immanuel Kant, Critique of Pure Reason, A644/B672 (Norman Kemp Smith, trans., 1929).

(9) Id. at A659/B687; Kant, Metaphysics of Morals, 45 [218] (gapless subdivision as the proof of the completeness and the continuity of a system); 102 [284] (logical division within a genuine system contrasted with empirical division that “leaves it uncertain whether there are not additional members that would be needed to fill out the entire sphere of the concept divided”).

(10) Kant notes that reason deals with the whole as an organized unity (articulatio), not as an aggregate (coacervatio). See Kant, Critique of Pure Reason, A833/B861.

(11) On ideas of reason, see Kant, Critique of Pure Reason, A311/B367–A320/B377, A643/B671–A669/B697, A834/B862–A836/B864. Kant considers ideas of reason to be principles that regulate scientific inquiry. For example, “in psychology, under the guidance of inner experience, [we] connect all the appearances, all the actions and receptivity of our mind, as if the mind were a simple substance which persists with personal identity (in this life at least) while its states, to which those of the body belong only as outer conditions, are in continual change.” Id. at A672/B700. For a brief catalogue of Kantian “ideas,” see Alfred C. Ewing, A Short Commentary on Kant's Critique of Pure Reason, 245–263 (1938).

(12) For Kant's sharp distinction between the theoretical and the practical, see Critique of Pure Reason, Bix-x; Immanuel Kant, Critique of Judgement, 3–8 [167–170] (Werner S. Pluhar, trans., 1987).

(13) Kant, Critique of Pure Reason, A800/B828–A802/B830 (footnote omitted) (emphasis in original).

(14) Kant, Metaphysics of Morals, 40 [211]; Immanuel Kant, Critique of Practical Reason, 9 [9], note 7 (Lewis White Beck, trans., 1976). In discussing purposiveness in terms of a representation or concept, Kant is not providing a physiological explanation of purposive activity, much less a criterion of whether a given act (e.g., one done under provocation or while the actor is drunk) is purposive. Rather, he is subjecting purposiveness to a conceptual analysis whose essential point is that in purposive activity, action is linked to an end through thought. The representation is of an end that the actor aims to accomplish, and Kant's parallel definition of an end is “the object of free choice, the representation of which determines it to an action (by which the object is brought about).” Kant, Metaphysics of Morals, 189 [384]; see id. at 186 [381]. The nature of the physiological mechanism of human cognition is a feature of the world given to us and therefore a matter of theoretical, not practical, reason.

(15) Kant, Critique of Judgement, 251 [372].

(16) See id. at 64–65 [220], 252 [373]; Kant, Critique of Practical Reason, 49 [48], 76 [74]. In connection with the free will, Kant terms the causality of concepts a causality of reason. See, e.g., Critique of Pure Reason, A803/B831; Critique of Practical Reason, 69 [67].

(17) Kant, Metaphysics of Morals, 42 [213]. In this and in the following paragraph of the text, I draw on Peter Benson's discussion in “External Freedom according to Kant,” 87 Columbia Law Review 559, at 570 (1987).

(18) Kant, Metaphysics of Morals, 42 [213–214]. Again, Kant's argument is not empirical. What matters is the distinction between purposive activity and free purposive activity, not the anthropological or zoological correctness of ascribing the former to animals and the latter to humans. Kant is elsewhere explicit that the categorical imperative that emerges from his analysis of the will cannot be derived from the particular constitution of human nature, that it holds for all rational beings, and that it can be a law for humans only inasmuch as they are rational. See, for example, Immanuel Kant, Foundations of the Metaphysics of Morals, 33 [415–416] (Lewis White Beck, trans., 1969). Kant also repeatedly affirms that we cannot have theoretical knowledge of our own freedom. See, e.g., Critique of Practical Reason, 4 [4]; Metaphysics of Morals, 48 [221].

(19) Kant, Critique of Practical Reason, 26 [27] (when the content of the will is taken away, all that remains to determine the will is the causality of concepts or, as Kant phrases it, the “mere form of giving universal law”); Kant, Foundations of the Metaphysics of Morals, 82 [462] (“the form, the practical law of universal validity of maxims”).

(20) Kant, Metaphysics of Morals, 51 [224]. (By “maxim” Kant means a “rule that the agent himself makes his principle on subjective grounds.” Id.)

(21) Kant, Critique of Practical Reason, 32 [82] (in passing judgment on the lawfulness of their action, men's reason “in every action holds up the maxim of the will to the pure will, i.e., to itself regarded as a priori practical”).

(22) Kant, Metaphysics of Morals, 42 [213], 52 [226].

(23) On the relationship between free choice (freie Willkür) and practical reason (Wille), see Lewis White Beck, “Kant's Two Conceptions of the Will in Their Political Context,” in Studies in the Philosophy of Kant, 215 (1965); Lewis White Beck, A Commentary on Kant's Critique of Practical Reason, 198–202 (1960).

(24) Kant, Critique of Practical Reason, 35 [34].

(25) On the argument presented here, lawmakers are obliged to make the positive law an expression of the idea of reason, and such positive law is obligatory for citizens. Kant's views on the obligation of citizens when positive law fails to express the idea of reason raise notorious problems of interpretation. For recent discussions, see Howard Williams, Kant's Political Philosophy, 198–214 (1983); Terry Hopton, “Kant's Two Theories of Law,” 3 History of Political Thought 51 (1982); Leslie Mulholland, Kant's System of Rights, 337–346 (1990).

(26) Kant, Critique of Pure Reason, A316/B373.

(27) Kant, Metaphysics of Morals, 48 [222].

(28) It must be emphasized that normative necessity is not one of efficient causes; if it were, free will—and with it wrongdoing—would be impossible. Of course, because purposive activity always strives to accomplish something, practical reason presupposes a world of efficient causes; see Kant, Critique of Practical Reason, 43 [42]. But it is not itself intelligible in terms of that world. From the standpoint of efficient causation, determination by practical reason is only a possibility. Accordingly, a person may be ignorant of the requirements of practical reason or may be caused by sensuous impulses to rebel against them. The capacity of practical reason to determine the will—along with the conceptual necessity that it do so—does not, therefore, abolish wrong. Rather, it shows how wrong is intelligible against the background of what freedom requires.

(29) David Hume, A Treatise of Human Nature, 475–476 (Lewis Selby-Bigge, ed., 2nd ed., 1978); Critique of Pure Reason, A319/B375.

(30) Kant, Critique of Pure Reason, A808/B836. (The moral world “is a mere idea, though at the same time a practical idea, which really can have, as it also ought to have, an influence upon the sensible world, to bring that world, so far as may be possible, into conformity with the idea. The idea of a moral world has, therefore, objective reality.”)

(31) Kant, Metaphysics of Morals, 56 [230].

(32) Id. at 56 [230]. In the last sentence I have added to Gregor's translation the phrase “of the two parties” to reflect the words von beiden in Kant's text.

(33) On wish (Wunsch), see id. at 42 [213], 163 [356]; Kant, Critique of Judgement, 16 [178].

(34) Kant, Metaphysics of Morals, 196 [393].

(35) Id. at 42 [214].

(36) Id. at 193 [389] (under right, the categorical imperative is a principle not of one's own will but of “will in general, which could also be the will of others”).

(37) As Kant writes, the principle of right “lays an obligation on me, but it does not at all expect, far less demand, that I myself should limit my freedom to those conditions just for the sake of this obligation; instead, reason says only that freedom is limited to those conditions in conformity with the idea of it, and that it may also be actively limited by others.” Kant, Metaphysics of Morals, 56 [231].

(38) Id. at 62 [236–237].

(39) Digest, 1.1.10.1 (Ulpian, Regularum 1). Kant transforms the infinitives of the Digest text into imperatives, presumably because he is proposing a general classification of the duties of justice. Duty is the content of obligation, and the imperative is the voice germane to obligation; Kant, Metaphysics of Morals, 48 [222].

(40) Id. at 62 [236].

(41) Id. at 87 [267], 120 [306].

(42) Id. at 62 [236].

(43) Id.

(44) Id. at 62 [237].

(45) See id.

(46) Id. at 120 [306]. This progression conforms to Kant's categories of modality; see Kant, Critique of Pure Reason, A80/B106.

(47) Kant, Critique of Practical Reason, at 60 [58]; Kant, Foundations of the Metaphysics of Morals, 30 [413] (subjective causes “hold only for the senses of this or that person”).

(48) Cf. Giorgio del Vecchio, Justice, 77–81 (L. Guthrie, trans., 1952) (the possibility of a relationship with another is a necessary aspect of self-consciousness).

(49) Kant, Metaphysics of Morals, 62 [236].

(50) Id. at 62 [236].

(51) Id.

(52) Id. at 120 [306] (mentioning the “protective” aspect of justice, or justitia tutatrix).

(53) Id. Following the terminology of the scholastic tradition—see, e.g., Thomas Aquinas, Summa Theologiae, II–II, Q. 57–62 (Thomas Gilby, trans., 1975)—Kant calls this “commutative justice.”

(54) See, e.g., Gaius, Institutes, 1.119 (Francis de Zulueta, trans., 1946).

(55) See, e.g., Ruth 4:7–8; see also Thomas Thompson and Dorothy Thompson, “Some Legal Problems in the Book of Ruth,” 18 Vetus Testamentum 79, 90–93 (1968) (explicating the passage).

(56) See, e.g., Gaius, Institutes, at 4.16.

(57) See Kant, Metaphysics of Morals, at 121 [306]. Kant also calls this stage “distributive justice,” taking over the Aristotelian term but not its Aristotelian significance as a structure of justice that relates persons and benefits according to a proportion.

(58) For Kant, the common interest of all is “in being in a rightful condition”; see Metaphysics of Morals, at 123 [311]; the commonwealth has no concern for what Bentham later called “the sum of the interests of the several members who compose it.” Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, chap. 1, sect. IV, at 12 (reprint 1970). Kant is concerned neither with the summing of interests, nor with Bentham's conception of the community's interest in terms of the pain and pleasure of its members, nor with the interests of members of society other than the parties. “By the well-being of the state must not be understood the welfare of its citizens and their happiness.… By the well-being of a state is understood instead, that condition in which its constitution conforms most fully to principles of Right.” Metaphysics of Morals, at 129 [318].

(59) Cf. Rawls, A Theory of Justice, 133 (publicity as a formal condition of the concept of right).

(60) Kant, Metaphysics of Morals, 113–120 [297–305].

(61) Id. at 116 [301].

(62) Id. at 116–118 [301–303].

(63) Id. at 114–116 [248–300].

(64) Id. at 57 [232].

(65) In subjecting wrongful action to an equal reaction that undoes the wrong, law's coerciveness can be sharply distinguished from revenge. Unlike the law's impartial and external reassertion of the equality of wrongdoer and victim, revenge allows victims to mingle the satisfaction of their hurt with the exaction of the penalty due and thereby presents them with the choice between subjectively determined excess and virtuous self-abnegation. Moreover, even if avengers observe the proper measure of violence, nothing about their acts bears the external markings of a vindication of right rather than the commission of a subsequent counterbalancing wrong. Revenge is therefore not adequate to the public form required by the full explicitness of action toward another. For further discussion, see Susan M. Shell, The Rights of Reason: A Study of Kant's Philosophy and Politics, 122 (1980).

(66) Kant, Metaphysics of Morals, 121 [307].

(67) This is not to say that positive law cannot legitimately operate unless it actually has been known to the person who falls under its strictures, for actual knowledge is an internal quality that is irrelevant to the right's externality. But public law must have a public presence that renders it capable of being known. Ignorance of knowable law is accordingly no defense.

(68) Kant, Metaphysics of Morals, 57 [231].

(69) Id. at 60 [235]. I am grateful to Peter Benson for his elucidation of Kant's discussion of the excuse of necessity.

(70) Kant's treatment of excuse is radically different from that proposed by George P. Fletcher, “Fairness and Utility in Tort Theory,” 85 Harvard Law Review 537 (1972), discussed above in section 2.9.4. For Fletcher, excusing conditions give rise to humanitarian considerations that apply to one of the parties, thereby splitting the relationship between the plaintiff and the defendant. For Kant, in contrast, the excuse maintains the integrity of the relationship, but places that relationship beyond the reach of the law's coercion. Whereas Fletcher's argument goes to the defendant's culpability, Kant's goes to the inherent limitations of legality. Thus while Fletcher presents excuse as an ad hoc moderation of the rigor of right, Kant derives excuse from the need to maintain the coherence of the concepts within the unifying structure of right.

(71) Kant, Metaphysics of Morals, 55 [230].

(72) In Metaphysics of Morals, the Rechtslehre (“the doctrine of right”) precedes the Tugendlehre (“the doctrine of virtue”).

(73) See Rawls, Political Liberalism, 173.

(74) Kant, Metaphysics of Morals, 186 [380].

(75) Id. at 187 [382].

(76) Zwecken überhaupt (“purposes as such” or “ends in general”) is Kant's phrase for what I here call “purposiveness.” See Metaphysics of Morals, 199 [396] (distinguishing “ends in general” from “an end”).

(77) Id. at 124 [312].

(78) See above, section 2.9.