Juridical Law as a Categorical Imperative (original) (raw)
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Right's Complex Relation to Ethics in Kant
Kant-Studien, 2016
The recent literature on the relation in Kant between duties of right and duties of virtue is dominated by a debate on whether duties of right can be derived from duties of virtue. According to one important argument, there is a tension or even a paradox in Kant between various claims concerning juridical norms, a paradox which can best be solved by assuming an “Independentist” position, that is, the view that the Universal Principle of Right is independent from the Categorical Imperative and, hence, that duties of right are normatively independent from duties of virtue. My claim in this paper is that the paradox which supports the independentist reading affects Kant’s claims only when the focus is on the subjective validity of duties. Once the focus is changed to objectivity validity, with which Kant is actually concerned, the paradox is dissolved and the Universal Principle of Right can appear as normatively dependent on the Categorical Imperative. In other words, in this paper, I argue that the scope of the paradox of juridical norms is confined to a specific focus and independentism (the view that duties of right are independent from duties of virtue) is confined in a similar way. Hence, the complexity of Kant’s account makes it possible for him to accommodate both independentist and dependentist views of the relation between right and virtue.
Juridical Law as Moral Laws.pdf
According to The Metaphysics of Morals, the doctrine of morality is divided into two parts: the doctrine of right, and the doctrine of virtue. The ambition embodied in this architectonic promises to bring the phenomena of justice under Kant's powerful morality of reason and freedom, while nonetheless acknowledging the relational, public, and enforceable character that sets it apart from other departments of morality. However, it is not easy to see how Kant can provide all that he promises. I focus in this paper on one part of his picture that commentators have argued is especially problematic: his claim that juridically given laws are moral laws that issue in categorical imperatives. This has seemed to be in tension with his claim that juridical lawgiving is distinguished from ethical lawgiving in that it does not require action from the incentive of duty, as do categorical imperatives. Typically commentators respond to this problem by argues that juridical laws are categorical imperatives only in virtue of being supported by ethical grounds. I argue that this solution faces insuperable textual and philosophical difficulties. I argue instead that we should view Kant as holding that there are two ways to respond to a juridical law, one rationally defective and the other rationally proper. What is distinctive about juridical laws is only that the rationally defective response is sufficient to meet the obligations these laws lay on us. Acknowledging this point allows us to see how juridically given laws can be genuine categorical imperatives of reason.
On the External and Normative Character of Juridical Obligations: Why Kant Can Have Both
In this paper, I try to show that Kant can maintain a concept of juridical obligations that satisfies the two main and seemingly paradoxical features of his concept of Right, i. e., that it is moral and that it is external. I present two sets of reasons as to why it is appropriate to expect that Kant has a coherent conception of juridical obligations as external and moral at the same time. The first one has to do with the well-known fact that in Kant’s mature philosophy, “moral”, “morals”, and, I shall propose, “categorical imperative” do not immediately nor necessarily refer to internal, ethical obligations. The second one relates to the thesis I advance here: That reciprocity, as entailed in the definition of “innate equality”, is the source of juridical normativity and a solid answer to the question ‘What makes Kantian Right moral?’
Kant and the In(ter)dependence of Right and Virtue
Ethic@. An International Journal for Moral Philosophy, 2017
This paper aims to clarify how Kant understood the relation between the two spheres of morals (Right and virtue). Did he, as O'Neill claims, acknowledge the need for civic virtue as necessary for maintaining a liberal state? Or did he take the opposite view (shared by many contemporary liberals) that citizens' virtuous dispositions are irrelevant and that all that matters is the justice of institutions? Though The Metaphysics of Morals gives the impression that Kant shared the latter position, I will argue that, in fact, Kant held a position somewhere between the Rousseauian view (which O'Neill believes Kant endorsed) that the essential difficulty of politics concerns the cultivation of civic duty in citizens, and contemporary liberals' exclusive focus on the justice of institutions, by arguing that it is the laws themselves that foster respect for the laws. In short, Kant views virtue as the felicitous by-product of legality.
Kant-Studien, 2016
This paper proposes a new account of the relationship between Kant's ethics and Kant's philosophy of right. I reject the claim of some philosophers that Kant's Groundwork of the Metaphysics of Morals cannot offer a foundation for Kant's philosophy of right. While I agree that the basic principles of Kant's philosophy of right cannot be deduced from Kant's ethical Categorical Imperatives, I try to show that we find in Kant's Groundwork the normative resources for grounding his philosophy of right. My thesis is that Kant's conception of a realm of ends, as he develops it in the Groundwork, provides a common normative source for Kant's ethical Categorical Imperatives, on the one hand, and the Universal Principle of Right, on the other. Agreement on common universal principles, which is crucial for Kant's notion of a realm of ends provides, I will argue, a justification of the ethical Categorical Imperatives and the Universal Principle of Right. 2
Moved by Respect: The Dependence of Right on Indirect Ethical Duties
The main contention of the present paper is that external coercion alone will not suffice to achieve compliance with the prescriptions and proscriptions of Right and that therefore Kant’s strict division between Right and virtue (or ethics) is not tenable. Whereas Right may only demand compliance of our external actions with its prescriptions, virtue places the additional demand on us to comply with said prescriptions from the motive of respect for the law. Kant further explains this distinction by means of an example: It is a duty of Right to honor one’s contracts. If one does not, one can be externally coerced to do so. Yet, fulfilling a contract is also an indirect duty of virtue, i.e. an ethical duty to, in the absence of the juridical incentive of external coercion, perform a duty of Right from the motive of respect. Right merely demands the compliance of my external actions with its laws. It may enforce this compliance by means of external coercion, but it may not force me to adopt a particular maxim for acting, as that would amount to paternalism. I will argue, however, that in practice any legal system does depend on at least a majority of its subjects acting in accordance with its laws from the motive of duty, i.e. from respect for the law. This, however, leads to the following paradox: How can Right depend on something – i.e. its subjects acting from respect for its prescriptions – that it may not demand? This paper will attempt to resolve the paradox in several steps. Firstly, Kant’s description of Right as the authorization to use coercion will be briefly expounded as well as the difference between Right and virtue. Secondly, it will be shown how Kant’s equation of Right with the authorization to coerce will eventually lead to the concept of ‘strict’ Right: a legal system that, Kant seems to claim, could organize its coercive force in such a manner that human freedom has no choice but to obey the prescriptions of Right. In practice, however, all legal systems do leave room to freely choose to obey or disobey, which implies that legal systems must depend on other incentives besides coercion if they wish to ensure compliance with its laws. Thirdly, the argument will be made that Kant’s distinction between duties of Right and duties of virtue is too rigid and that, in fact, Right depends on its subjects regularly fulfilling duties of Right from respect for the law, i.e. as indirect ethical duties. This will lead to the abovementioned paradox that Right depends on the motive of duty, which, however, it may not demand. The final section will turn to Toward Perpetual Peace. There, Kant argues that the very act of living in a good Rechtsstaat develops one’s virtue by instilling respect for the law in its subjects. Therefore, Right may not demand virtue, but it can help cultivate it, thus undoing the paradox.
Sympathy for the Devil(s)? Personality and Legal Coercion in Kant’s Doctrine of Law
The central concept in Kant’ Doctrine of Law is the concept of a person. This very concept is intimately connected with Kant’s theory of transcendental freedom and thus with his Transcendental Idealism. Hence the conceptual framework of the Doctrine of Law (including concepts like ‘imputation’, ‘obligation’, ‘duty’, ‘right’) and with it the ‘Universal principle of Right’ are inseparably connected to Kant’s critical moral philosophy and require especially the moral law as their foundation. But nevertheless this does not entail that legal coercion presupposes the personality of those who are subject to it: A Kantian state would be possible even for a people of devils.
Freedom, Right, and Coercion in Kant's Doctrine of Right
Within the premises of a Kantian understanding of law and politics, coercion should be understood neither as a ‘necessary evil’ nor as a ‘freely accepted’ condition of our entrance into the law game. Coercion is a constitutive element of Right, one which we should particularly be aware of in relation to a conception of our freedom as ‘limited in its own idea’.
Kant's Justification of the Death Penalty Reconsidered - Kantian Review - Uncorrected Proofs
Critics claim that Kant’s enthusiastic embrace of the death penalty is incompatible with, or at least not required by, the principles of his practical philosophy. I argue that Kant has a strong justification of capital punishment, although it is not one that he seems to have noticed, and it is certainly not one he defended. I begin with the argument that Kant does explicitly develop: Kant claims that punishments must match their crimes, and so murderers must die. I defend this view against critics who argue that Kant’s use of the ius talionis is inconsistent and arbitrary, and I conclude that the doctrine of the ius talionis generates a prima facie justification of the death penalty. I then turn to two objections that try to show that the ius talionis does not ultimately justify capital punishment. The first claims that execution is impermissible because it infringes on a person’s inviolable right to life; the second claims that execution is impermissible because it violates human dignity. These are serious objections insofar as they employ an alleged categorical requirement to show that Kant’s endorsement of capital punishment is incompatible with his fundamental moral commitments. But I argue that while Kant’s own discussion of the death penalty contains no answer to these objections, a successful Kantian response can be developed. Turning to Kant’s discussion of honor, I argue that motives of honor would drive a rational person to endorse her own execution, were she to commit murder. Since practical reason requires a murderer to submit to the executioner’s hand, the right to life and dignity objections fail. The dignity argument fails because honorable people always act in ways that preserve their dignity, and since an honorable person would will to be executed, execution cannot violate dignity. The right to life argument fails because safeguarding the murderer’s life purchases his life at the cost of his honor and dignity, and there is no such thing as a right to life if the enforcement of this right leads to a violation of human dignity. In this way, the Kantian argument for the legitimacy of capital punishment is vindicated.
Kantian Right and Poverty Relief
Ethic@, 2014
I have two goals in this paper. First, I want to determine whether Kant’s justification for state programs for poverty relief in The Doctrine of Right is based on 1) Kantian duties of virtue, 2) Kantian duties of right, or instead merely on 3) instrumental arguments regarding the preservation of a State as such. I claim that the last alternative is the correct one. Second, I will argue, against Kant himself, that even his merely instrumental arguments for public programs for poverty relief are ruled out by his doctrine of right. My conclusion is that, perhaps surprisingly, the only genuinely Kantian way to provide poverty relief is privately, just as Libertarians have argued.