Kant and Law

B.Sharon Byrd

• Publisher: Routledge
• Year: 2017
• eBook ISBN: 9781351561396
• Topic: Storia
• Subtopic: Storia mondiale

Immanuel Kant's legal philosophy and theory have played an enormous role in the development of law since the eighteenth century. Although this influence can be seen primarily in German law and in the law of nations which have traditionally been oriented toward German legal development, today Kant's philosophy has experienced a Renaissance in the Anglo-American legal world. This anthology collects what the editors believe to be the very best of articles on Kant's legal theory, with an emphasis on his Metaphysics of Morals of 1797. In particular the articles relate to: 1) the nature of law and justice, 2) private law, 3) public law, 4) criminal law, 5) international law, and 6) cosmopolitan law.

Part I The Nature of Law and Justice

[1]
LAW AS A KANTIAN IDEA OF REASON

Ernest J. Weinrib^*

INTRODUCTION

Our legal discourse is the discourse of rights, and Kant is the first—perhaps the greatest—modern expositor of the concept of right. In this sense, we are all Kant’s children. Yet Kant’s notion of right figures but rarely in current discussion. In order to understand what we have lost by this neglect we need to contrast the dilemmas of contemporary scholarship with Kant’s ambition and achievement. This contrast is the theme of the present Article.

To Kant the concept of right systematically pervaded the legal system, giving it its normative character and making it the occasion for genuine philosophic insight. Right was comprehensive, unifying, and systematic. Law could not be understood without it, since right encompassed 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.¹

Although we are willing to invoke rights and to subject them to formal Hohfeldian analysis, we shy away from Kant’s notion of a single concept of right that is presupposed in law and articulated through law. At most, contemporary legal scholarship postulates—but does not elucidate the foundations of—the generic power of a right to trump utilitarian considerations. Specific reference is made to Kant only in connection with his most striking or memorable or provocative dicta. He is to us like a doddering parent who has become an embarrassment: we recall snatches of his wisdom and poke fun at his most outrageous opinions, but we no longer have sympathy with what gave his legal thought its distinctive vitality.

To a certain extent this attitude is understandable. Kant’s vision of right is austere, forbidding, even impenetrable. A reader who turns to the Rechtslehre² from current legal philosophy enters a foreign and exotic land. Although the main signposts—contract, property, punishment, and so on—seem to be familiar, the landscape in which they are situated is a dense thicket of conceptualisms, a swirling mass of terminological obscurities that map out a section of something called the metaphysics of morals. Occasionally the reader’s attention is arrested by a chilling scene: the last murderer being led out to execution before civil society dissolves, the shipwrecked sailor pushing his fellow off the floating plank, the mother murdering her illegitimate child with impunity, or the Jacobite rebel preferring the honor of the gallows to the clemency of penal servitude.³ Can all this have anything to say to us two centuries later?

Such Kantianism as exists in contemporary legal thought takes its bearings from Kant’s ethical rather than from his legal philosophy. Kant’s ethical writings, which enjoin us against treating rational nature as a means only and postulate our membership in a kingdom of ends,⁴ are a widely read and deeply affecting account of the wellsprings of moral life. For the legal analyst, they are a repository of ideas for developing an alternative to the utilitarianism implicit in the invocation of “policy.”⁵ The unspoken assumption of such analysis is that in distinguishing between law and ethics Kant misunderstood the significance of his own ideas and that this misunderstanding can be remedied by inserting ethical considerations where he deliberately excluded them.

One reason for dissatisfaction with Kant is the abstractness of his approach to what are palpably concrete problems. Kant seems to believe that formal considerations, applied with a scrupulous attention to avoiding contradictions, can generate substantive conclusions. So detached a view of moral or legal reflection has little appeal to lawyers nourished on Holmes’ dictum that the life of the law is not logic but experience.⁶ Our present concern with the particular characteristics of gender or race or disability and with historical legacies of injustice or neglect seems at odds with a conceptualism that stands somehow apart from the flux of time and circumstance and from the apparently social roots of human being and knowing.

Nevertheless, there is ample reason to take Kant’s legal philosophy seriously. However conceptual and abstract, his inquiry is always directed toward a specific and recognizable object.⁷ Just as his moral philosophy purports to expose the foundations of ordinary moral experience,⁸ so Kant’s legal philosophy deals not with a distant utopia but with the claims law implicitly makes about its own coherence, rationality, and bindingness. The abstractions that occupied Kant’s attention—property, contract, marriage, punishment—are still the organizing categories of our legal world, and his legal philosophy is a sustained and uncompromising attempt to bring to light what they imply and presuppose. Inasmuch as these categories move us to puzzlement and reflection, Kant’s treatment of them remains relevant and even exemplary. As in other areas, we can philosophize with Kant or against Kant, but not without Kant.

Although Kant deals with the same sort of juridical relationships that occupy the attention of our contemporary legal scholars, his understanding of these relationships is very different. Kant presents law as lean, minimal, and self-contained. It has a necessary and universal content that lifts it above the emptiness of positivism, and yet this content is not fissured by the internal tensions considered inescapable by today’s radical critics. Kant sees law as a coherent ordering of purely external relationships among moral persons, and he undoubtedly would agree that this ordering can be grasped without reference to any of the modes of analysis (economics, ethics, literary criticism, and so on) that dominate current legal writing. Unaccustomed as we are to Kant’s standpoint, we must squint and strain to make out what he says. But this is unavoidable if we are to shake ourselves free of our adamantine preconceptions. And Kant offers us a special challenge and reproach, for the point of his legal philosophy is not that it is one possible approach among many, but that’ it is the only way properly to understand juridical relationships. If Kant is right, the rich diversity of contemporary scholarship represents only the variegation of error.

I CONTEMPORARY PLURALISM

Kant’s account of law is to contemporary eyes distinctive not only in its details but in its notion of what it is to give an account. Indeed the substantive strangeness flows from what Kant took to be a structural quality of the process of explanation to which any account of law must remain true. Kant held that one could understand law only by grasping, as he put it, the practical reality of its being an idea of reason. We shall have to return to the significance of this phrase, but it suffices for the moment to say that he conceived of law as involving the integration of parts into a whole, so that an account of law is an exhibition of the nature of this integration.

This notion of an articulated whole is absent in contemporary legal thought, where each scholar’s vision is typically composed of incompatible elements. Long ago such an internally unresolved multiplicity might have been regarded with suspicion or discomfort. The mainstream of contemporary scholarship instead sees in it a healthy and nondogmatic moderation, in which scholarly work mirrors the tolerance and variety of a democratic political process.

This internal pluralism takes the following form. To evaluate the prescriptions that the law might make, scholars distill points of evaluation from legal materials, ethical principles, economic analysis, or the deep recesses of intuition. The result is a set of mutually independent considerations. When we refer, for instance, to the purposes of the eriminal law, the aims of tort law or the tension between process and substance, we invoke factors that have no connection to one another except through the discourse of the inquiry. Thus the relationship between the goals of deterrence and compensation in tort law is not intrinsic to them—they pull in different directions⁹—but is simply that each figures in the discussion of tort law. They are elements of a conceptual atomism, like grains of sand in the same sandpile.¹⁰

This conception of law as a plurality of single and autonomous elements is the characteristic of contemporary legal scholarship that makes Kant’s understanding of law seem so foreign. An atomistically plural conception would pose no special difficulty¹¹ if in occupying the same space the elements could coexist as mutally indifferent properties of the same object (for example, in the way that a cube of salt is white and also cubical and also salty, without any inconsistency of these properties). However, law is not something that is given to us as a physical object to be observed; it shapes our conduct according to the normative claims that it makes and, more importantly, is itself shaped by the values that invest it with normative status and legitimacy. The various elements at play in the work of a particular legal thinker¹² are not mutually indifferent aspects of a given object. Each element is inherently expansionary, since its claim is no weaker with respect to one section of the legal universe than it is to another. Since all elements have a similarly autonomous status, the result of their confluence is a scramble for empire among competing forces.

Contemporary scholarship responds to this pluralism with a variety of strategies. Posner’s version of economic analysis upholds the possibility of systematization by positing that law is and ought to be subject to the single overarching goal of wealth maximization.¹³ The technique of maximization requires that the factors upon which it operates be capable of measurement on a single scale. It therefore decomposes its world into the smallest and most widely diffused units and translates all larger values into packages of these units. In wealth maximization these units are the monetized preferences that can be exchanged in a market. However, this process exposes wealth maximization to the dilemma that besets all systems that maximize initially independent factors.¹⁴ On the one hand, there seems to be little point in maximizing something unless it has an intrinsic value. On the other hand, if it has an intrinsic value in its premaximized state, that self-sufficient value is at odds with the imperative of maximization, which imposes a quantitative treatment on qualitatively differentiated units. Wealth maximization, for example, must, if it is to be plausible, postulate both that its monetized preferences are inherent goods (and to whom can a preference be an inherent good except to the person experiencing it?) and that the preferences retain their goodness when maximized across persons and thus when marshalled in a way that transcends the individualized experience that originally validates them. Thus, though wealth maximization presents a unified approach, it welds its material together in a way that undermines the intelligibility of that with which it begins.

Another response—the mainstream one—is simply to reconcile oneself to an unresolved pluralism and move on in the confidence that its centrifugal implications can be pragmatically managed. Indeed the diversity of normative considerations is taken to be a reflection of the world’s manifest untidiness, which renders insistence on systematization fanatical. Since the principal fear is that the decisionmaker, especially the judge, will exploit pluralism by pursuing a personal agenda and thereby cloud the legitimacy of the legal enterrise, the emphasis is on intuitive moral and political judgments operating in a psychological, interretive or historical context that confines adjudication within vague but understood boundaries. The absence of a conceptual limitation on the judge’s activity is remedied by invocation of the process of socialization,¹⁵ or by reference to the disciplining rules that constrain the judge and to the interpretive community that he must satisfy,¹⁶ or to the pattern of pre-existing judgments to which a new decision must conform.¹⁷ Thus, this approach accepts normative pluralism, but discounts its significance, arguing that a stable but reflective social practice tames the law’s instabilities.

A third response, that of the Critical Legal Studies movement,¹⁸ sees the pluralism of normative considerations as an embarrassment to the whole project of Western legalism, or at least as a challenge whose radical implications have not been squarely confronted. The presence within legal analysis of factors that can lead in opposite directions shows that law cannot achieve the certainty that would most successfully legitimate it. Contradictory impulses can be located everywhere, and they surface in law as the manifestation of profound and unresolv-able tensions in social life and in human personality. The availability of different and opposing lines of reasoning shows that no juridical sphere exists uninfected by politics, and that the search for such a sphere is a vain and deluded endeavor to camouflage the contingency of power under the false necessity of an objective legal order. This response, like the mainstream one, accepts normative pluralism, but it argues that this pluralism leads to radical conclusions.

Kant’s legal philosophy stands opposed to all these strategies and to the premise on which they are based. For Kant, law is a unity that can be articulated through its doctrines and institutions. Kant calls this unity an idea of reason, to which we now turn.

II THE PRACTICAL REALITY OF LAW AS AN IDEA OF REASON

Kant’s legal philosophy traces the conceptual development of law from its origins in practical reason to its maturity in a system of public law. A crucial juncture in this development is 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...

Table of contents

• Cover Page
• Half title
• Series Page
• Title Page
• Copyright
• Acknowledgments
• Series Preface
• Introduction
• PART I THE NATURE OF LAW AND JUSTICE
• 1 Ernest J. Weinrib (1987), ‘Law as a Kantian Idea of Reason’, Columbia Law Review, 87, pp. 472-508.
• 2 Thomas W. Pogge (1988), ‘Kant’s Theory of Justice’, Kant-Studien, 79, pp. 407-33.
• 3 Joachim Hruschka (2002), ‘Kant and Human Dignity’, originally published in German in Archiv für Rechts- und Sozialphilosophie, 88, pp. 463-80, here in English translation pp. 1-16.
• PART II PRIVATE LAW
• 4 Katrin Flikschuh (1999), ‘Freedom and Constraint in Kant’s “Metaphysical Elements of Justice’”, History of Political Thought, 20, pp. 250-71.
• 5 Mary Gregor (1988), ‘Kant’s Theory of Property’, Review of Metaphysics, 41, pp. 757-87.
• 6 Sharon Byrd (2002), ‘Kant’s Theory of Contract’, modified and reprinted in Mark Timmons (ed.) (2002), Kant’s Metaphysics of Morals. Interpretive Essays, Oxford/New York: Oxford University Press, pp. 111-31; originally published (1997) in The Southern Journal of Philosophy, 36, Supplement pp. 131-53.
• Part III Public Law
• 7 Jan Joerden (1995), ‘From Anarchy to Republic: Kant’s History of State Constitutions’, in Hoke Robinson (ed.), Proceedings of the Eighth International Kant Congress, Milwaukee: Marquette University Press, 1.1, pp. 139-56.
• 8 Kevin Thompson (2001), ‘Kant’s Transcendental Deduction of Political Authority’, Kant-Studien, 92, pp. 62-78.
• 9 Kenneth R. Westphal (1992), ‘Kant on the State, Law, and Obedience to Authority in the Alleged “Anti-Revolutionary” Writings’, Journal of Philosophical Research, 17, pp. 383–426.
• 10 Mark LeBar (1999), ‘Kant on Welfare’, Canadian Journal of Philosophy, 29, pp. 225^9.
• Part IV Criminal Law
• 11 B. Sharon Byrd (1989), ‘Kant’s Theory of Punishment: Deterrence in its Threat, Retribution in its Execution’, Law and Philosophy, 8, pp. 151-200.
• 12 Joachim Hruschka (1994), ‘On the History of Justification and Excuse in Cases of Necessity’, in Werner Krawietz, Neil MacCormick and Georg Henrik von Wright (eds), Prescriptive Formality and Normative Rationality in Modern Legal Systems: Festschrift fur Robert S. Summers, Berlin: Duncker and Humblot, pp. 337–49.
• 13 Thomas E. Hill, Jr (2002), ‘Wrongdoing, Desert, and Punishment’, in Human Welfare and Moral Worth: Kantian Perspectives, Oxford/New York: Oxford University Press, Chap. 10, pp. 310-39.
• Part V International Law
• 14 Giuliano Marini (1998), ‘Kant’s Idea of a World Republic’, originally inaugural lecture for the academic year 1991-1992 Pisa University; published in Italian: La concezione kantiana di una repubblica mondiale e la sua attualità, Giuliano Marini, Tre studi sul cosmopolitismo kantiano, Istituti Editoriali e Policrafici Internazionali, Pisa/Roma, pp. 25-39 (1998); German translation of the inaugural lecture: Kants Idee einer Weltrepublik, Eros and Eris, in Paul van Tongeren, Paul Savs, Chris Bremmers, Koen Boey (eds), pp. 133-46 (1992); here in English translation, pp. 1-10.
• 15 B. Sharon Byrd (1995), ‘The State as a “Moral Person’”, in Hoke Robinson (ed.), Proceedings of the Eighth International Kant Congress, Milwaukee: Marquette University Press, 1.1, pp. 171-89.
• 16 Brian Orend (1999), ‘Kant’s Just War Theory’, Journal of the History of Philosophy, 37, pp. 323-53.
• 17 Georg Cavallar and August Reinisch (1998), ‘Kant, Intervention and the “Failed State’”, Kantian Review, 2, pp. 91-106.
• Part VI Cosmopolitan Law
• 18 Sankar Muthu (2000), ‘Justice and Foreigners: Kant’s Cosmopolitan Right’, Constellations, 7, pp. 23-45.
• 19 Pauline Kleingeld (2003), ‘Kant’s Cosmopolitan Patriotism’, Kant-Studien, 94, pp. 299-316.
• Bibliography of English Secondary Literature
• Bibliography of German Secondary Literature
• Topic Index
• Name Index