Philo of Law

GBPress- Gregorian Biblical Press
Kant's philosophy of law

Author(s): Francis O'Farrell
Source: Gregorianum, Vol. 59, No. 2 (1978), pp. 233-289
Published by: GBPress- Gregorian Biblical Press
Stable URL: https://www.jstor.org/stable/23575905
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Kant's philosophy of law
Subversive movements are not a distinguishing mark of

the present centuiy, though their frequency, variety and in
many cases ruthlessness may be. In the problem of facing
and combating them one notices both among politicians and
in the public at large a growing preoccupation, sometimes even
scrupulosity in preserving untarnished the ideal of what is
called the Rechtsstaat, i.e. the state whose laws are but the
realization of what is just. No doubt the traumatic experience
of some regimes of the not too distant past has left one pain
fully conscious that might is not right nor is what can be
enforced as law merely for that reason to be considered right
and just. In this consciousness the unthematized awareness
of the function of the philosophy of law in founding and
animating legislation is at work. For the « Philosophy of law
is the questioning search for the sources and criteria of what
is just »
Given that philosophy from Plato onwards has dealt with
law and its problems, it is not surprising that Kant too should
deal with it. But what is surprising is the place it occupies
in his system and the form it takes in transcendental philos
ophy. Surprising too is the relative neglect, compared with
the attention given to his Criticai works, with which his phil
osophy of law has met. This relative neglect is ali the more
surprising because it was by reason of the problems raised
and treated by him in his philosophy of law that Kant carne
to reconsider, modify and complete his system of practical
philosophy and his doctrine of ethics.
Understanding Kant's philosophy of law involves a whole
series of delicate problems and questions. How, one can ask,
is it possible, given the limitations imposed by the Critique of
1 Wolfgang Fikentscher, Methoden des Rechts in vergleichender Dar

stellung, Tiibingen, 1977, Bd. IV, p. 664.
234 FRANCIS O'FARRELL, S. I.
Pure Reason for Kant to have a philosophy of law? And in

what sense can it be philosophy? In what way can law be
a concepì of pure reason and its determinations derived from
reason? Does Kant's philosophy of law succeed in founding
the notions presupposed by jurisprudence? Is the grounding
it gives that proper to transcendental philosophy and what
change does this imply in the concept of philosophy of law?
What relationship does it establish between the just and posi
tive law? Moreover, if law or the just has traditionally been
determined philosophically in function of the common good2,
why does it not seem to be so in Kant's philosophy of law?
Since freedom and freedom understood as autonomy has been
brought by Kant into the position it holds today at the centre
of philosophy, it was inevitable that freedom should be fun
damental in his philosophy of law, yet how and in what sense
can it be so, if law or the just is defined as the enforceable?
Or again, why is it exclusively in his Metaphysics of Morals
that he deals with the philosophy of law? How must the
philosophy of law be conceived to constitute an integrai part
of a metaphysics of morals? What concept of ethics does
such a notion of law require as its counterpart? And how
can the just be a duty without being an ethical obligation?
Further, why does the concept of law as understood by Kant
require the state and how does an actual state fulfil this
requirement? And what then is the notion and function of
the state which corresponds to Kant's philosophy of law?
It is by treating such questions as these that one can bring
to light the scope and purpose of Kant's philosophy of law
and appreciate and judge what he intended it to be.
1) Nature of Kant's philosophy of law

Kant's philosophy of law will obviously be philosophy in
the criticai meaning he has given to philosophy and within
the field of possible philosophical knowledge opened up and
delimited by his Critique of Pure Reason. What then does
Kant understand by philosophy and within what limits can
we have philosophy? He defines philosophy as rational know
2 e.g. Arist., Eth. Nic. E, 1, 1129 b 17; S. Thom. I II 90 a 1-4; Suarez,

De Leg. lib. 1. cap. VII, η. 1.
kant's philosophy of law 235
ledge (Vernunftserkenntnis) from concepts3. The only other

rational knowledge we have is mathematics. But rational know
ledge in mathematics proceeds not from the concepts but only
by means of the construction of concepts, i.e. only by repre
senting them in an apriori intuition4. For example, it is not
from the concepì itself of circle but solely from the construc
tion of circle in the intuition of imaginative space as the law
of the movement of a point always at the same distance from
another point, that its determinations and relationships are
found and proved. Whereas philosophy deduces its truths from
its concepts themselves and not merely from their construction.
Since then reason is both theoretical and practical, rational
knowledge from concepts or philosophy is of two kinds the
one theoretical or knowledge from concepts of that which is,
and the other practical or knowledge from concepts of that
which should be. The Critique of Pure Reason has limited
our rational knowledge of that which is to that which can be
given to us in sense intuition. For it is only what can be
given to us that can constitute an object of knowing and not
merely an object of thought, and we cannot be given an object
otherwise than by sense intuition. The complex of what can
be given in sense intuition or the totality of sense objects is
for Kant nature materially taken5. Theoretical philosophy for
Kant is therefore the philosophy of nature. That which should
be, on the other hand, is that which comes about by the exer
cise of freedom or that which constitutes the object of freedom.
Hence practical philosophy for Kant is concerned solely with
freedom and its laws. Since the objective reality of freedom
is made known (not theoretically but only practically, that is,
only in relation to action) solely by the moral law, practical
philosophy has as its object morals. For a philosophy of law
therefore to be possible for Kant it has to be contained in
a philosophy of morals. Hence the philosophy of law is con
cerned with a certain kind of « what should be » and thus con
stitutes a part of his philosophy of morals.
3 Kritik der Urteilskraft, Erste Einleitung, opening sentence; Meta

physik der Sitten, Tugendlehre, Ed. A published 1797 (quoted MdS Tug.)
A III.
4 Metaphysische Anfangsgriinde der Naturwissenschaft, Ed. A pub
lished 1786 (quoted MAN) A VII.
5 MAN, A 3; Kritik der Urteilskraft, Β XI, XII, A XI, XII.
Kant calls the philosophy of morals metaphysics

and gives to his philosophy of law as its first secti
« Metaphysical first principles of the theory of law (Metaphy
sische Anfangsgriinde der Rechtslehre) », but refuses it the
name of metaphysics of law6. Yet he names his philosophy
of nature « Metaphysical first principle of the science of na
ture » and at the same time calls it « Metaphysics of nature »7.
What does he mean by metaphysics and why does he allow
the title to the philosophy of nature and not to that of law
and what then is the limitation of the philosophy of law im
plied in it being entitled « Metaphysical first principles »?
By metaphysics Kant means pure rational knowledge from
mere concepts8. Pure rational knowledge is apriori knowing
of reason (reason as including understanding, i.e. the higher
faculty of knowing as opposed to the sensibility), unmixed
with any empirical principle, or ali that reason apriori and
without any empirical help can attain from the concept of its
object. Thus the totality of the apriori predicates that can
be got from the concept of nature constitutes a metaphysics
of nature. It forms the complex of the apriori laws of nature.
This metaphysics of nature comprises one part which is a gen
eral metaphysics of nature dealing with the object of nature
in general and hence it includes no empirical concept and so
is the transcendental part of the metaphysics of nature9. This
section of the philosophy of nature contains nothing else than
the system of ali synthetic principles of pure understanding,
which system Kant critically explains and justifies in the Cri
tique of Pure Reason10. For they are the laws constituting
any object of experience whatsoever object of experience.
It is the other part of the metaphysics of nature which
interests us for comparison with his philosophy of law. It is
the particular metaphysics of nature which has as its object
corporal or external nature, the object of the external senses.
Since to know something apriori is to know it from its mere
possibility, but the existence of a corporeal thing as a moving
body in space cannot be known from its mere concept there
6 Metaphysik der Sitten, Rechtslehre (quoted MdS Rechi) AB III, IV.

t MAN, A VII.
8 MAN, A VII.
9 MAN, A Vili; Kritik der Urteilskraft, Β XXIX, A XXVII.
le Kritik der reinen Vernunft, Β 197 sq., A 158 sq.
KANT'S PHILOSOPHY OF LAW 237
fore it has to be given in the intuition of the senses or has

to be known empirically. Hence the particular metaphysics
of nature puts as its basis the empirical concept of a moving
body in space, but, without any further empirical help, from
this concept taken in relation to the apriori intuition of space,
the metaphysics of nature finds the complex of predicates
which reason can know of it. The finding of these apriori
predicates consists in determining the concept according to
the general laws of thinking11, but through the intermediacy
of mathematics. For the metaphysics of nature is knowing
of reason which determines according to the general laws of
thinking the concept of a moving body in space but in so far
as this concept is given in the apriori intuition of the senses.
But the concept given in the apriori intuition of the senses
is the concept as constructed. And rational knowledge by
construction of concepts is mathematica!. Hence the meta
physics of particular nature is possible only by means of
mathematics n.
This rational knowledge of corporeal nature constitutes a
metaphysics because it forms a system. System as opposed
to an aggregation is a totality of knowing organized according
to apriori principles 13, or the unity of the multiplicity of know
ing under an idea which is the rational concept of the form
of a totality organizing apriori both the compass of the mul
tiplicity and the position of each part in mutuai relationship 14.
Although the rational knowledge of corporeal nature is a sys
tematic totality of rational knowing and hence complete in
itself and hence a metaphysics, nevertheless the science of
nature is not completed by the metaphysics of nature but
comprises too the complex of empirical laws which are the
fruit of scientific investigation. These empirical laws presup
pose the metaphysics of nature. Hence in relation to the whole
science of nature, the metaphysics of nature, though a com
plete system in itself, constitutes but the fundamental part
and so can be rightly called metaphysical first principles of
the science of nature.
" MAN, A XIV, XV.

12 MAN, A IX.
« MAN, A IV.
M Kritik der reinen Vernunft, Β 860, A 833. Cf. Heidegger, Schellings
Abhandlung iiber das Wesert der menschlichen Freiheit (1809), Tiibingen,
1971, p. 40-51.
It is in respect of the idea of system that the philosophy

of law, unlike the philosophy of nature, fails to justify the
title of metaphysics of law. For to form a system of knowing
in the Kantian sense, the distinction of the whole of the know
ing into its component parts or into its divisions must be
complete and entire and so arise from the apriori principles
of the whole15. But ali the divisions in relation to the concept
of law cannot be determined apriori. For the concept of law,
of that which is just and right though in itself a concept of
pure practical reason, is nevertheless a concept applied to
diiferent cases of the just and right that occur in experience16.
To be complete therefore or to form a system the divisions
of the philosophy of law based on this concept will have to
take account of the multiplicity of these different cases. But
these cases, being an empirical multiplicity, do not allow a
complete division. For completeness of division denotes ne
cessity, namely that no further element of division can be
found, and the empirical can provide no necessity.
Even though the philosophy of law does not constitute a
full system, nevertheless both in distinguishing those parts of
it that are determined apriori and hence are metaphysical and
in treating as examples the diiferent cases of experience, the
completeness of system, an indispensable requisite of reason
will remain as an ideal in approaching which the philosophy
of law tends and strives, a kind of focus imaginarius, to use
Kant's own expression17. In this tendency towards the un
achievable system, the apriori predicates of the concept of
law, which the philosophy of law develops and justifies are
the foundations laid for the application of the concept of law
to different cases. Taken together they form a part of the
theory of law which can rightly be called the metaphysical
first principles of the theory of law.
From these considerations then we have seen that philos
ophy for Kant consists in rational knowing derived from con
cepts and we have such rational knowing both of that which
is and of that which should be. Our rational knowing of
that which is forms the philosophy of nature, of that which
15 Kritik der Urteilskraft, Erste Einleitung, XII: Einteilung der Kri

tik der Urteilskraft.
16 MdS Recht AB III.
17 Kritik der reinen Vernunft, Β 672, A 644.
should be the philosophy of morals or of objects of freedom.

Philosophy of law then for Kant must be a part of the phil
osophy of morals and so must deal with a certain kind of
what should be, which should be is the object of law. The
philosophy of morals as such and the philosophy of nature
constitute a metaphysics. Because a metaphysics is a system
atic totality of apriori knowing derived from a concept em
pirically given. But the philosophy of law is not a meta
physics because its apriori divisions and concepts do not form
a complete system. For they do not constitute the totality
of the divisions of the concept of law, which admits of others
in its application to particular given cases. Nevertheless the
rational principles that reason establishes apriori from the
concept of law without constituting a system do constitute
the apriori foundation for the science of jurisprudence and
as such they form the metaphysical first principles of law
and the theme of Kant's philosophy of law.
Kant's philosophy of law has the title of metaphysical first
principles of law, because it is in function of our pure practical
reason that it is elaborated. And this indicates a very chal
lenging and important characteristic which he would claim
for it — its unicity. Kant has established the principle which
was to be so effectively applied in Hegel's History of Philos
ophy 18, that since philosophy is knowledge of reason or rational
knowledge from concepts and there is one only human reason,
there can be objectively only one philosophy19. On the basis
of this principle, so difficult to dispute, there can be no other
philosophy of law than that of which Kant was the first to
provide the clear principles. Since there cannot be two true
and complete philosophies about the same object — for reason
is one — Kant would claim that there can be no other true
philosophy of law derived from the concept of law on which
his is founded. To reject his philosophy of law then either
one must abandon his basic concept of law as false or partial,
or one must accuse him of falsely or incompletely concluding
from it. What then is this basic concept of law on which his
whole philosophy of law depends and from which it is derived?
18 cf. Hegel, Vorlesungen iiber die Geschichte der Philosophie, I, Suhr

kamp, Bd. 18, 1971, p. 36.
« MdS Rechi AB VI.
2) Kant's basic concepì of « law »
By the basic concepì of law is meant the notion of law

in the sense in which it is the object of jurisprudence, i.e.
that which can be prescribed by laws, which underlies or
justifies legai prescriptions or that which renders laws pos
sible. What then is law20 in the sense of that which is the
object enabling laws to be laws or that which is objectively
legislative, i.e. capable of being prescribed by law. It is that
which is of itself just or lawful. That which is of itself just,
the just as such permits everyone to have his own, to have
his due, to exercise his right. The notion of the just as such
by entitling the one to something, objectively obliges ali others
as regards the same thing.
In determining the right of the one and in objectively
obliging ali others, in respect of what exactly does the just
oblige them? Only in respect of what comes under their
external behaviour. I can be inwardly very reluctant to per
form what the right of the other demands. But if I do per
forai it I am not being unjust however unwillingly I do it
and whatever my wishes in the matter might be and however
much I dislike the person himself to whom it refers. Nor is
the just concerned with the intentions of those it obliges.
Whatever my intention in doing it may be, I am not unjust
provided I do do that to which it obliges me. The immoral aim
like that of using money to get drunk on, which a shopkeeper
might intend does not make his selling unjust. For I am obliged
to the action and behaviour itself that is just, not to any aim
I may propose to myself in doing it.
The just therefore is not interested in what passes in a
man's heart or mind, but it concerns actions of man's free
will only in so far as they are external, i.e. only in so far as
they affect others. As regards these external actions of man's
free will the just is the objective entitling of the one and the
objective obliging of the other. And hence it brings together
the free will of the one with the free will of the other accord
20 German like the Romance languages distinguishes « law » in the

sense of the object of jurisprudence (Recht, diritto, droit, derecho, direito)
from « law » in the sense of general rule of necessity (Gesetz, legge, loi,
ley, lei). The two are, as is clear, intimately connected, since law as
Recht is necessarily in relation to law as Gesetz, and law as Gesetz is
properly so only in so far as it realizes law as Recht.
ing to the norm of an objective rule of necessity. For the

conjunction of their free wills in their actions as regards one
another is according to « what should be » to which the one
is obliged. And what should be expresses an objective and
unconditional rule of necessity or a law of freedom. Hence
Kant can define the just as « the complex of the conditions
under which the free willing of the one can be combined with
the free willing of the other according to a universal law of
freedom »21.
This formai definition of the just therefore provides the
very simple but very effective principle governing just actions.
It says that every action or rule of action is just if it be such that
as regards it the freedom of the one can be consistent with
the freedom of every one else according to a universal law.
Were some one to impede an action or state of mine which
is consistent with the freedom of every one else he would be
un just to me, or he would violate my right.
When one says that this principle is the norm of just
actions and hence that to be just one must act according to
it, it does not mean that one has to make this principle one's
motive, out of which one does it, or that one has to do it
because it is just22. For I can be quite indifferent or even
inwardly hostile to the liberty of another, but provided what
I do externally or in relation to him is compatible with his
freedom, I do him no injustice and my action is just and I
have acted according to the principle governing just actions.
When some one hinders an action or condition of mine
consistent with the freedom of everyone else according to a
universal law he violates my right. My right is what obliges
others in their actions in my regard. The just means on the
one hand right and on the other obligation. The concepì of
the just therefore (of « law » as the object of jurisprudence)
determines man's rights and corresponding (just) duties both
as private person (Privatrecht) and as moral person (e.g. Staats
recht etc.). The only right a man has innately (i.e. without the
mediacy of some legai act) is according to Kant his freedom,
i.e. his independence from compulsion by others, in so far as
21 AidS Recht A 33, Β 33. Cf. Lisser, Der Begriff des Rechts bei Kant,
Kantstudien, 1922 Erganzungshefte 58; Simone Goyasd-Fabre, Kant et le
problème du droit (Bibl. d'hist. de la phil.) Paris, 1975.
22 MdS Recht, A 34, Β 34.
it is consistent with the freedom of ali others according to a

universal law23. In this innate righi to his freedom is included
what we commonly mean by human rights. Ali other rights
a man has are acquired rights. They are therefore rights to
something external. Something external to which I have a
right is mine. The just is the permitting every man to have
his own. The concept of « law » or the just as regards man
as private person must determine apriori what it means that
something is one's own and it must also show how something
can become one's own and what its apriori conditions are.
But before reflecting on this apriori determination of the con
cept of « law », there are other elements of the concept that
require further clarification. And first of ali how is the ele
ment of freedom it contains to be understood?
3) Freedom in the concept of « law »
That freedom is the principle constituent of Kant's con

cept of « law » is clear from the foregoing, since « law » or the
just is defined by this consistency with the freedom of ali,
yet how this freedom is to be interpreted creates serious dif
ficulties.
Freedom for Kant is an idea of pure praetical reason. For

it denotes the capacity to self-determination in doing and pro
ducing independently of the senses. The praetical reality of
this freedom is made known by the « fact » of pure praetical
reason which is the moral law24. This « fact » itself is inse
parably bound up with and indeed identical with the freedom
of the will (Freiheit des Willens)25. If then the freedom of the
will is inseparable from the moral law or its freedom is free
dom by its relation to the moral law how can there stili be
freedom not defined by the moral law but by the law govern
ing the concept of what is just? Again if the freedom con
tained in the concept of what is just be defined not by rela
tion to the moral law but by relation to another, a law not
identical with freedom and hence external to it, how can the
definition be apriori and of pure reason, since an external law
can only be positive and hence aposteriori?
23 MdS Rechi AB 45.
24 Kritik der praktischen Vernunft, A 5, A 72.
25 ibid. A 72. Cf. MdS Rechi AB 7.
There are as well the following difficulties: the freedom

of the will which the moral law makes known is for Kant
autonomy: it has no law but that which it gives itself: the
determination of its freedom. But if the freedom constitutive
of what is just is defined by relation to external or positive
law, does that not render freedom heteronomous? Besides,
Kant says explicitly26, that heteronomy could ground no obliga
tion whatsoever. And yet what is just imposes an obligation
on ali men to observe the rights of others. Further, how can
the freedom which characterizes what is just be called by
Kant external27 and stili be a concepì of pure practical reason?
Is not the external the spatial and hence the sensible? Finally,
Kant describes what is strictly just and the striet right as that
which has nothing ethical mixed with it28. Would not there
fore a free action that was strictly just or a free action as just
be ethically indifferent, an exercise of freedom that was neither
morally good nor morally bad, the possibility of which indif
ference Kant would seem to exclude29?
How then does Kant conceive the freedom which charac
terizes the concepì of what is just so as to answer these
problems? Man's freedom is made known and defined accord
ing to Kant in its practical reality by the moral law. For
man's freedom considered as it is in itself or noumenally is
his capacity to determine himself aceording to the moral law,
which is the law he gives himself, or the law of his autonomy
and hence the law of freedom. Taken noumenally or as it is
in itself, in relation to itself, his freedom is a supra-temporal
unity, which he determines therefore as a totality. He deter
mines it either to the moral law or against the moral law.
Man's freedom as self-determined in its noumenal totality is
man's moral mentality (Gesinnung). As regards the exercise
of his freedom which is his moral mentality, man cannot be
morally indifferent, neither morally good nor morally bad.
What is just is not defined by freedom in the sense of moral
mentality.
But man's freedom can be taken, not only noumenally,
Μ Kritik der praktischen Vernunft, A 58.

η MdS Tug. A 48.
28 MdS Recht AB 36.
2® Die Religion innerhalb der Grenzen der blossen Vernunft (ed. Β
1794, ed. A 1793), Β 13-14, A 11-12.
as an exercise which is a supra-temporal unity

be taken phenomenally. His freedom not only
mentality, but it also denotes his capacity to act
and space and in relation to what is in time and space, to
act in or in relation to the phenomenal order. His freedom
taken phenomenally means the exercise of free actions spread
out in time (the sum total of which can never be adequate
to the supra-temporal unity of the exercise which is moral
mentality). And it is in relation to such actions, to such
exercises of his freedom, that the just action and the ethical
or virtuous action are determined and distinguished.
Man's freedom noumenally taken or phenomenally taken
is one and the same free will but in different capacities or
under different aspects. Kant normally expresses these two
aspects of man's free will by different words. The first aspect,
free will noumenally taken he calls « Wille », or the objective
free will or the pure practical reason the faculty of objective
determination or of law. It is the will taken merely as the
capacity of the objective determination of practical reason,
the determination it should give itself. The second aspect or
capacity of free will he calls « Willkiir ». It is the subjective
free will, the faculty of subjective determination, i.e. of the
maxims or general rules of acting actually applied in action.
Hence « Willkiir » is the free will in relation to the actions
and maxims of its choice31. These actions of its choice are
in or concerned with time and space. And it is in function
of « Willkiir », of free will as the choosing of free actions in
time and space that Kant defines the concept of « law » or
of what is just. « The just is the complex of the conditions
under which the free will (Willkiir) of the one can be combined
with the free will (Willkiir) of the other according to a universal
law of freedom (Freiheit)32.
Man's freedom therefore as it is contained in the defini
tion of the just will be free will as it determines itself in
respect of an action in time and space. But if what is just
is an action and general way of acting (maxim) in time and
30 MdS Recht AB 5; Grundlegung zur Met. der Sitten, BA 36; MdS

Rechi AB 28.
31 Cf. « Von dem Willen gehen die Gesetze aus; von der Willkiir die
Maximen », MdS Recht AB 26. Cf. ibid. AB 18, 19.
32 MdS Recht A 33, Β 33.
space to which man is obliged, it will not differ merely as

denoting obligation from the ethical and will come under
the categorical imperative as such. By reason of which
imperative the just is a way of acting in time and space which
should be, a determination of man's free will to which it should
determine itself.
The categorical imperative as such does not determine
an object of willing. It merely says in general what obligation
is33. Thus it only gives the form of free will, the form of the
moral law. It denotes the general condition of very rule of
free action. It says: « Act according to a maxim that can at
the same time be a universal law »M. For every obligation
the general rule of one's action must be such that it can be
a universal law, i.e. binding ali men. Every way of acting
that fulfils this condition conforms to the moral law. The
general principle for an action to be just fulfils this condition
of agreement with the form of the moral law. For it says
that an action is just if it is such that the freedom of the one
be consistent with the freedom of the others according to a
universal law. And this principle governing an action as just
expresses nothing else than the mere agreement of an action
in respect of others' freedom with the form of the moral law,
which is the mere agreement of man's freedom with itself
in an action in relation to the free actions of others35. This
agreement of his action with the form of the moral law is the
restricting the exercise of his freedom in respect of others
according to a universal law36. For it permits him according
to the norm of the general law to exercise his freedom as it
affects others in such a way only as not to violate their
freedom.
Man's freedom can affect others only by its exercise in
time and space, only by its external actions. His freedom
merely as it affects others prescinds from what passes in his
own heart and is concerned alone with the external act itself,
which he elicits, not with the intention nor motive with which
it is elicited. This obliged freedom, this conformity to the
Μ MdS Recht AB 25.

3» Grundlegung zur Met. der Sitten, BA 52; Kritik der praktischen Ver
nunft, A 54.
35 MdS Tug. A 4.
3« MdS Tug. A III.
moral law merely as regards the external action itself is what

Kant means by a duty of external freedom37. It is clear there
fore that it is one and the same freedom as that proved and
manifested by the moral law but taken in respect merely of
external actions and not of internai motives. Hence the just
is defined in function of external freedom.
As external freedom the universal law governing its use
in actions that are just is also an external law. An external
law is a law for which an external law-giver is possible38.
But if the just as such is defined by its relation to external
law how is its definition apriori and consistent with the au
tonomy of freedom? The actual existence of an external law
giver and hence an actual positive law is of course an em
pirical fact and hence aposteriori. However it is not in rela
tion to any actual positive law that the just is defined, but
by relation to the idea itself of external law governing the
interrelationship of men's freedom. And this idea of external
law is a necessary idea of pure reason, whose objective possi
bility and hence objective reality is implied by the notion
itself of what is just. Further pure practical reason itself
requires man to enter a condition where positive law reigns
in order that the just prevail and be defended in men's
relationships.
Nor is positive law in relation to whose possibility the
just is defined simply heteronomous. For the legislating power
which frames positive law can be no other than the unified
will of the people, of the citizens39. Hence the citizen as
citizen has the inalienable right (and therefore from his prac
tical reason) to obey no other law than that to which he has
given his assent (Beistimmung)And in this sense he him
self gives to his own will the positive law or it is an exercise
of autonomy, of self-binding. Thus Kant can asserì that the
37 MdS Tug. A 48.

38 Those whose binding power without an external legislation can be
apriori perceived by reason are external naturai laws. Those on the
other hand which do not bind without an actual external legislation are
positive laws, MdS Recht AB 24.
39 MdS Recht A 165, Β 195.
40 MdS Recht A 166, Β 196. « For in what concerne my freedom »
says Kant « even in respect of divine laws knowable by mere reason, I
can have no other obligation as only in so far as I can give my consent
to it » (Zum ewigen Frieden, BA 22).
human « person can be subjected to no other laws that those

which he whether alone or at least together with others gives
himself »41. The laws which he alone gives himself are the
ethical laws, those which he together with others gives him
self are the positive laws. Only laws which he gives himself
can be laws of freedom.
Further, if the law whose possibility governs the exercise
of men's freedom in so far as their exercise affects one another
in the concepì of what is just is positive law, the external
nature of the resulting obligation becomes evident. For a posi
tive law requires an external legislator to enact it. And the
heart of man does not fall under an external law-giver. No
external law-giver can oblige me to have such or such a motive
but only to do such or such an action. The external action
only not its motive falls under positive law. A court of law
does not judge whether a man had this or that motive or
intention in his actions but only whether he, in the state of
free consciousness, did this or that external action. For it is
only the external action that is the matter of its judgment
and hence that comes under the law. What is merely just
then is the external action that is consistent with the freedom
of ali others aceording to possible positive law. Such an action
however cannot be consistent with the freedom of ali others
if it contradicts the form of the moral law, which form there
fore a positive law must respect to be truly law. My action
is just when it does what such a positive law prescribes what
ever my motive may be. The justness of my action is merely
its conformity to the law (Gesetz-massigkeit). The ethical char
acter of my action is its conformity to an ethical motive so
that the moral law be its motive42.
To résumé then these considerations: man's freedom in
function of which the concept of what is just is defined is
indeed man's moral freedom made known by the moral law,
by the categorical imperative of « you should » (you can, for
you should), in which imperative ali one's duties and rights
are founded43. For man is morally obliged to do what is just.
It is not in the fact of being obliged that the just and the
« MdS Rechi AB 22.
42 MdS Rechi 15; Cf. Georg Anderson, Kants Metaphysik der Sitten,
Kantstudien, 1923, p. 52-53.
« MdS Rechi AB 48.
ethical differ, bui it is as regards what one is obliged to and

whence the obligation arises. In the obligation to the just
the moral law enters only as the form of one's maxims not
as the content nor motive of obligation, the content of the
obligation is purely external: it is that which is commanded
by external law whether naturai or positive. For positive law
calls into play the form of the moral law. For every positive
law must conform to the form of the moral law to be legiti
mately or really law or to have binding force u. This inclusion
of the form of the moral law in what positive law prescribes
is contained in the defìnition of the just since it is the con
sistency of one's freedom with that of ali others in what the
positive law commands and this consistency is nothing else
than the abstract self-identity of man's freedom or is the form
of the moral law. The content of the obligation to what is
just is what positive law orders, i.e. the external exercise of
man's freedom only or the external action exclusive of inner
motive. Since positive law obliges man's freedom, it is clear
that for Kant human civil law is binding in conscience, which
Suarez gives as the common opinion among Catholics45. A mere
ly poenal law would be quite alien to Kant's way of thinking,
because it would not involve man's moral freedom.
Finally in defìning the just in function of man's freedom

in its consistency with that of others according to a universal
law, one is determining the right of the one and the obligation
of ali others. What is the right of one man's freedom the
same is the obligation in ali others. This obligation in ali
others in the human community which the just as just re
quires is therefore the recognition of each man's freedom.
It is this recognition that what is just enshrines. The recogni
tion of the freedom of each man by ali others, by the whole
human community (according to universal law) is as it were
objectivizing or doubling man's freedom: giving it an external
existence: it is its life in others which it requires to be fully
itself. As long as it is unrecognized his external moral freedom
is not effective. It is this recognition of man's external free
dom required by the defìnition of the just, which the United
44 Cf. Suarez, De Leg. lib. 1. cap. IV, n. 6: « Est autem de ratione

legis, ut sit justa ». ibid. cap. XIX, n. 11 : « Lex injusta non est lex ».
« De Leg. lib. 3, cap. XXI η. 5.
Nations' Declaration of Human Rights (1948) and the current

campaigns for human rights have as their inspiration and aim.
What is just is however not only the exercise of man's
moral freedom in its external use in relation of consistency
with that of others as prescribed by external law, it is also
the enforceable. It is this element of the rational concept
of what is just and its reconciliation with freedom which
we have now to consider.
4) The just as the enforceable
The notion itself of what is obligatory, of what should be,

implies necessitating the free will of man through the law.
By the law of man's autonomy, by the moral law which he
give himself, he under one aspect necessitates himself under
another aspect of himself. Man, in so far as he is pure prac
tical reason, forces or constrains himself under the aspect of
his being also practical reason in the world of space and time;
thus man in so far as he is pure practical reason forces him
self, in so far as he is subject to sensible inclinations, to resist
their attraction and submit himself to the law. This self
constraint is thus nothing else than respect for and obedienc
to the categorical imperative. It defines this imperative as
imperative for the free will.
But the enforcement which defines what is just is not this
self-enforcement proper to the ethical order, this inner self
constraint characteristic of a will that can have motives other
than the moral law. The enforcement, which what is just
denotes, is external. What does external enforcement mean,
and how can it be shown to be essential to the notion itself
of what is just and what means does the just dispose of to
achieve enforcement?
As opposed to self-enforcement of the moral law, external
enforcement is obviously enforcement exercised by another.
It means forcing another to a certain exercise of his free will
however much such an exercise be against what he wants
to do. Self-enforcement is expressedly the middle voice, ex
ternal enforcement is the passive voice. Yet does it not seem
strange even contradictory that the notion of the just defined
in function of the exercise of freedom should include in its
definition the enforcement of freedom? But such an enforce

ment is not the exclusion but only the limitation of the exer
cise of freedom, a limitation required by the justness of the
exercise. Besides it is an external enforcement, the contrain
ing by another, and hence it can force only what is external
in the exercise of freedom. What is external in the exercise
of freedom is, as we saw, the action itself in time and space
exclusive therefore of what passes in a man's heart, exclusive
of his motives and purposes. One cannot be forced to have
an end or intention: only the man himself can propose it to
himself44. One can be forced only to do or to desisi from
doing the external action itself which and in so far as it affects
others. And one can be forced to do it or to desisi because
what is external in so far as it is external is subject to the
action of others. It is therefore in respect of the same exer
cise of freedom which defines the just and in respect of it
alone that external enforcement is possible. Hence the free
will in itself can not be forced by another, but only in so far
as it has externalized itself in something external and refuses
to withdraw itself from it.
But why is such an enforcement not only de facto pos
sible but required by and an apriori condition of the notion
itself of what is just? Why does the right to what is just
mean the right to its enforcement as regards others? Kant's
argument is clear and concise47. What is just is an exercise
of freedom consistent with the freedom of ali others according
to a universal law. Hence whatever hinders such an exercise
is unjust. And whatever hinders such a hindering is in agree
ment with and furthers the exercise of freedom consistent
with the freedom of ali others according to a universal law
and so is just. But to hinder such a hindering is what is
meant by external enforcement. Hence external enforcement
is just and follows analytically from the concept of what is
just. The concept of what is just would be contradictory if
it did not give one the right to force others to observe it.
Every external right therefore is enforceable.
But one can go further and show that the just and the
« MdS Tug. A 6.
47 MdS Rechi A 35, Β 35. Cf. however Gunter Ellscheid, Das Problem
von Sein und. Sollen in der Philosophie Immanuel Kants, Koln, 1968,
p. 33.
externally enforceable are convertible w

and the same. For if the one can enforce the free action of
the other according to a universal law, according to the same
universal law the second is equally entitled to force the free
action of the first. So that the consistency of the free will
of the one with the free will of the other according to a uni
versal law of freedom, which is the definition of what is just,
is the consistency of enforcement of the free will of the one
with the enforcement of the free will of the other according
to a universal law, which is the definition of the enforceable.
Hence the just as such is the enforceable as such.
The strictly just then can be defined as the mutually en
forceable according to a universal law. It is as the law of
this mutuai enforcement that it enables one to represent
mathematically the concepì of the just, i.e. it is as it were
the law of construction of the concepì in the inner intuition
of space48. For as mutually enforceable by law one represents
the strictly just giving each ohe his own as the perpendicular
straight line opposed both to the crooked and to the slanting.
For the strictly just enforceable between two contending parties
is like the straight line between two given points which can
be one only and like the perpendicular drawn at the point
where two lines meet which can be but one inclining neither
to the one nor to the other.
It is evident that if what is just means that which between
men's freedom according to a universal law is mutually en
forceable, its actual enforcement is not a power belonging either
to the one or to the other, but is the right of the public
authority alone which enacts the universal law determining
what is just. Thus the enforcement of the just is the ex
clusive prerogative of the external law-giver. But the just
defined apriori as the enforceable implies apriori the necessity
of such a power to judge what to enforce and to see to its
enforcement.
This power to enforce the observance of what is just as
it is expressed in a universal law requires to be effectively
enforcement the power in the law-giver of punishing violations
of such a law. Thus this penai power of the external law-giver
is a necessary component of enforcement and is implied apriori
« MdS Recht AB 38.
by the concepì of what is just since without it the possibility

of compulsion which the concepì implies would be unenforce
able or would be reduced to an impossibility. Since the con
cepì itself of what is just necessarily requires this penai power
it justifies it and proves it an inalienable right of the external
law-giver to vindicate the law of the just and thus to restrict
punitively the freedom of the citizens. And at the same time
the concept of what is just renders such legai punishment just
(i.e. in itself not an evil but a just action), and obliges the
violator to undergo it. For to the right of the law-giver enacting
penai laws according to the concept of what is just corresponds
the obligation of the other to obey such laws.
Penai laws are therefore according to Kant categorica!
imperatives — they express what should be — imposed on
the violator not for any humanitarian aim like bettering him
or re-educating him for his place in society, but solely because
he has violated the law49, thus putting himself in debt to it.
For it is exclusively to the violation of the law as unjust and
not to its ethical and psychological implications but to the
un-just deed that the penai law must reply. And the only
measure of punishment or penalty which the concept of the
just requires the external law-giver to determine and impose
is that of equality for the violation: the lex talionis50. It is
indeed right and implied by the concept of the just that the
principle of penai laws does mean the need of the violated
law of the just restoring its integrity by « even-handed jus
tice »51, exacting a retribution commensurate with the violation,
which requital can be symbolically represented by the lex ta
lionis. But any effort to take it literally must result, as Hegel
justly notes52 in insuperable difficulties and lead to such ab
surdities as to what to do where the criminal is already
one-eyed or toothless.
Applying this principle of equality of punishment literally
and with surprising rigour Kant holds that the only punish
ment justice permits for murder is death and that the mur
« MdS Rechi A 196, Β 226; Β 170, 171.

50 Lev 24,19-20: « Sicut fecit, sic fiet ei: fracturam prò fractura, ocu
lum prò oculo, dentem prò dente restituet: qualem inflixerit maculam,
talem sustinere cogetur ».
si Shakespeare, Macbeth, act 1, se. 7, 1. 10.
52 Hegel, Grundlinien der Philosophie des Rechts, § 101.
derer must be put to death. Even if a state, for example

an island people, decided unanimously to dissolve itself and
disperse through the world, yet before scattering, the last
murderer in their prisons must be executed, otherwise the
people would make themselves participants in his violation
of justice53.
This severity of Kant as regards penai laws appears even
more harshly in his thought concerning the head of state's
prerogative of mercy. To leave unpunished or to mitigate the
legai punishment for a crime of citizens committed against
one another would be the greatest injustice to the latter54.
And therefore the only case in which it is not unjust for the
head of state to remit in part or entirely the legai punishment
for a violation of the law, the only case in which he is justified
in using his prerogative of mercy is where the crime has been
committed against his own person, the crime of lese-majesty.
And even in this case he is not justified in using it, if its use
would create a danger for the people's security. To this im
placable attitude of Kant's in applying penai laws it would
seem an unpardonable perversion to put mercy before justice
even in the title of its administration as in Italy: « Il Ministero
di Grazia e Giustizia ». The divine superiority that lies in the
might of mercy as mitigating the punitive power of the law
and as maturing its application, expressed so wonderfully by
Shakespeare's Portia in the Venetian court of law would be
quite foreign to his way of thinking55.
53 MdS Rechi A 199, Β 229.
« MdS Rechi A 206, Β 236.
55 « Portia: Then must the Jew be merciful.
Shylock: Ori what compulsion must I? teli me that.
Portia: The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives, and him that takes;
'Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice ».
The Merchant of Venice, Act IV, se. I. 1. 183.
Cf. also: Jm 2,13: Superexaltat autem misericordia judicium.
The external enforcement implying this power of penai

laws which characterizes the concept of what is just is one
of the marks distinguishing the merely just from the ethical.
But it is not the only one. It is useful, after the analysis
of Kant's concept of the just and before passing to consider
the problems of its determination, to turn our attention to
this difference. For it was in fixing the distinction of the just
from the ethical that Kant elaborated the concept of the just
and so it is in relation to this distinction that its elements
appear in their true light. Besides, it was in having to distin
guish between the just and the ethical that Kant developed
a new element in his ethical theory over and above what it
had previously contained: that of apriori ends and by its
means his ethics has become a system of apriori ends.
5) The difference between just and ethical duties
For Kant duty is the action to which one is obliged56.

Since it is something one is bound to do, duty denotes neces
sitating objectively a free action, which objective necessity is
a law of freedom. No matter whence the law is imposed, in
so far as it binds man's will it imposes a duty and obliges
him to do it. The action is therefore a Should-be-done and
so denotes a categorical or unconditional imperative. Hence
it must come under the form of the categorical imperative,
because a categorical imperative to be such must verify this
form. The form of the categorical imperative is that of the
moral law: « Act according to a maxim that can be at the
same time a universal law » 51. Ali duties therefore as well
just as ethical fall under the form of the moral law, or the
maxim or subjective general rule by which one acts for every
action to which one is obliged must be such that it fulfils
the condition of possibility of being at the same time a uni
versal law, i.e. an objective universal necessity of action. For
by fulfilling this condition it is a duty.
The difference therefore between just and ethical duties
does not lie in the fact of falling under the form of the moral
law since this is common to both. Further, when I perform
56 MdS Rechi AB 21.

5? KpV A 54; Grundlegung zur Met. der Sitten BA 52.
a just duty because it is a duty, making the doing of what

is just my motive of action, which the law of what is just
does not demand of me, my motive is ethical but my action
is just58. The ethical motive as the self-sufficient motive of
acting, the doing one's duty purely because it is one's duty
is required to make one's free willing and action ethical but
it does not itself render a duty an ethical duty. It is a neces
sary condition of ethical duties to be ethical, but since it can
extend also to just duties it is not proper to ethical duties.
The ethical motive: duty for duty's sake: is moral men
tality and is one and indivisible, the same therefore for ali
ethical duties and for everything that is ethical. Duty for
duty's sake renders the form itself of the categorical imperative
the sole motive of action. The form of the moral law as self
sufficient motive of acting is therefore the principle of ethics.
And it is solely with this first principle of ethics and its
criticai justification that Kant's Groundwork for the Meta
physics of Morals (Grundlegung zur Metaphysik der Sitten)
and his Critique of Practical Reason are occupied. Hence
Kant's ethical works prior to the Metaphysics of Morals do
not touch the problem of ethical duties. The insights involved
in elaborating their concept and distinguishing it from that
of just duties is the enrichment of his ethical theory proper
to the Metaphysics of Morals.
The radicai difference — from which ali the other dif
ferences spring — between just and ethical duties lies in
that for just duties an external legislation is possible, wherea
for ethical duties this is not possible59. A duty for which an
external legislation is possible is that which can be imposed
by the law of an external law-giver, the law of another than
the person obliged, or by a positive law. A positive law can
impose only the external action in time and space not a motive
nor an aim of acting. It can impose or bind only the external
exercise as such of freedom.
A duty, a Should-be-done for which an external legislation
is not possible is a Should-be which no other — not even
God60 — can impose on me, which only I myself can impose
58 MdS Recht A 34, Β 34; MdS Tug. A 55; Cf. A. Kaufmann, Recht und
Sittlichkeit, Tiibingen, 1964.
5» MdS Recht AB 47.
«ο MdS Recht AB 16.
on myself. Hence it is a duty solely of autonomy. Since

autonomy defines the pure practical reason itself, such a duty
will be apriori and the organic plurality of such duties will
constitute an apriori system of ethics, or the metaphysics of
ethics. A duty solely of autonomy binds the will purely by
the moral law. But it cannot be merely the form of the moral
law which so binds it. For such a binding is common to ali
obligations and does not distinguish the binding proper to
ethical duties. Hence it is by its autonomous content for the
will that the moral law binds to ethical duties. But an au
tonomous content which the moral law prescribes for the free
will is an obligatory object of free action. An object of fre
action is an end. An ethical duty therefore is an obligatory
end for free action. And a metaphysics of ethics is the system
of such obligatory ends, the system of the ends of pure prac
tical reason61.
To compose a rational system of ethics Kant had to find
an apriori principle of ethical differentiation into the elements
of the system and hence an apriori diversification of the moral
law itself and this can be nothing else than the apriori matter
or content or object of the same moral form of the free will.
Once Kant had conceived the moral law as the law of the
free will's autonomy it was inevitable that his reflection and
thought in respect of a system of ethics and of ethical duties
be led to the notion of apriori ends. For as regards a free
action to be willed the only thing proper to it which cannot
be imposed by another but which is autonomous is its end.
As Kant expresses it: « Another can force me to do what is
not my end (but only a means to the end of another) but he
cannot force me to make it my end, and nevertheless I can
not have an end without making it mine » a. To have an end
without having made it my end would be therefore a contra
diction of freedom.
Yet it is disconcerting that this concept of obligatory ends
should be entirely absent from Kant's Groundwork for the
Metaphysics of Morals and from his Critique of Practical Rea
son and appear first as the « Completely new and surprising
« MdS Tug. A 5.
« MdS Tug. A 6.
basic concepì in his Metaphysics of Morals »63. Trae, in his

Critique of Practical Reason there is the idea of the « highest
good » prescribed by pure practical reason as the unattainable
ideal towards the realization of which in the world ali its free
actions are to tend. The « highest good » is therefore the
entire object (der ganze Gegenstand) of pure practical reason M.
The effecting the « highest good » in the world, happiness
proportioned to virtue, is the necessary object of a will deter
mined by the moral law65. As he expresses himself elsewhere,
it is the categorical imperative according « to the matter of
practical reason which says to man ' I will that your actions
be in accord with the last end (Endzweck) of ali things ' »66.
It is therefore the « highest good » which is free will's object
or matter prescribed by the moral law and hence its apriori
end. But such a concept of apriori end is but the global,
abstract and undifferentiated object of the morally determined
free will and expresses only the apriori synthesis of virtue
and happiness67. It is not the diversifying concept by which
different virtues are constituted different virtues, the concept
of apriori end as basic in the Metaphysics of Morals. Apart
from this undetermined concept of the « highest good », ali
matter of free will, ali determined ends in his earlier works
are treated as empirical68.
In his Groundwork for the Metaphysics of Morals, Kant
does treat of the end rational nature sets itself. But because
this is the unconditional end of an entirely good will, it must
abstract, he holds, from ali ends to be effected and so cannot
be itself an end to be effected but is a subsisting end (selbstan
diger Zweck) and hence it must be thought of negatively only,
as that against which one must not act. This is nothing else
than the subject of ali possible ends, the moral person, man
himself as object of morality69. This same existing end, man
as moral subject, is considered by Kant in his Critique of
® Georg Anderson, Die « Materie » in Kants Tugendlehre und der For

malismus der kritischen Ethik, Kantstudien, 1921, p. 289.
<* KpV A 196.
ω KpV A 219.
66 Von einem neuerdings erhobenen vornehmen Ton in der Philoso
phie (pub. May, 1796) A 407.
67 KpV A 203, 204.
68 Grundtegung zur Met. der Sitten, BA 90; KpV A 39, 40.
69 Grundlegung zur Met. der Sitten, BA 82.
the teleological Power of Judgment the final end (Endzweck)

of creation, i.e. that to which the whole of nature is tele
ologically subordinated70, for man as moral being, as under
moral laws, has the highest end in himself71. But Kant's
thought sways uncertainly between final end (Endzweck) in
the sense of existing end, or man under moral laws, and in
the sense of end to be effected in the world, the « highest
good », happiness proportioned to morality12.
In the concepì of obligatory end defining ethical duty as
the basic concepì of Kant's Metaphysics of Morals this am
biguity and uncertainty about rational end has disappeared.
Here the concept of obligatory end is that of a duty which
is end. And a duty which is end is an end to be realized,
an end to be effected (finis operationis) by man's free action,
i.e. an object of free will the representation of which deter
mines the free will to an action by which it is produced.
It is an objective end, i.e. the same for ali men and hence
universal and an end which they are obliged to have and
hence necessary end. It is an end which ali men should set
themselves to realize by their free actions. Because this end
to be realized by a man's free activity is a Should-be, it is
unconditional, a categorical imperative.
Kant provides the following proof for the objective reality
of such a concept of apriori determined ends, or that there
must be ends that are duties. A free action is directed to
an end as the object of its realization. Hence the actions
which practical reason prescribes are directed to ends to be
realized. If among these there are not ends which are at
the same time by their very concept duties, ali ends for prac
tical reason would be but means to other ends, which would
render a categorical imperative impossible73. The reason is,
that ends that are but means to other ends are conditioned
by or conditional on these others. If then ali ends for prac
tical reason were but means, ali ends for practical reason
would be merely conditional; but the merely conditional ex
cludes a categorical or unconditional imperative.
Apriori ends, ends that are duties are unconditional ends
70 Kritik der Vrteilskraft, Β 399, A 394.

71 ibid.
72 Kritik der Vrteilskraft, Β 424, A 419.
« MdS Tug. A 12.
and hence ends in themselves or noumenal ends, and so are

according to their very concept ends. Only such apriori ends
are objective, or are ends which every man should have. Only
such ends are taken from pure practical reason. Ali other
ends to be realized that a man can propose to himself are
subjective and phenomenal or empirical: they are taken from
the inclinations of man's sensibility and conditioned by the
same.
As regards a free action only the end one proposes to

realize by it cannot fall under external law-giving; but an end
that is objective, an end which one should have is imposed
by law. Hence an objective end can be imposed only by the
moral law, by the law of autonomy. And such is the end
which it is a duty to have. Ali ends not imposed by the
moral law, ali ends which precede the categorical imperative
are subjective and empirical.
Ethical duties, because they are such that cannot be im
posed by external law, can be imposed by the moral law only
and hence are obligatory ends of actions. Just duties because
they can be imposed by external law cannot be ends of action
but only mere actions. From this radicai difference of ethical
and just duties in respect of law-giving their other distinctive
marks follow.
Because an ethical duty is an obligatory end, the law im
posing it unconditionally does not impose the action itself
but only the maxim or subjective general principle of action.
But the just duty imposes the action not the maxim. For to
perform the action prescribed by the law any maxim will do
which is compatible with the freedom of others according to
a universal law74. This negative apriori condition does not
impose one maxim rather than another. Maxims of ethical
duties must also fulfil this negative condition, but they are
also positively determined. For the maxim of an action is a
means to the end the action intends to realize. Where there
fore the end is obligatory, the maxim becomes a necessary
means, and hence the law which prescribes the end ipso facto
imposes the maxim of the end. It is a law of the maxim not
of the action, since the maxim is a means to the end not to
74 MdS Tug. A 20.
the action. Just duties, because they cannot impose an end

cannot impose a maxim but only a specific action.
Since then the maxims are prescribed by the law for
ethical duties but not for just duties, it follows that ethical
duties are broad obligations, but just ones are narrow ones75.
For since the ethical duty prescribes only the maxim or sub
jective general rule of acting, it leaves undetermined the par
ticular specific action one is to do and the different circum
stances in which one is to do it and how much one is to do,
for example the ethical duty of developing one's capabilities
or of seeking the good of others. By leaving the particular
actions and circumstances undetermined the ethical duty widens
the field in which it is to be exercised. By reason of this broad
ness ethical duties have a permanence which just duties have
not. When I have paid my bill to the shopkeeper my just
duty is fulfilled. But nothing can fulfil and hence extinguish
the debt which the ethical duty of gratitude for goodness done
us prescribes76. Just duties are narrow, for they impose a
specific external action and nothing else: thus their obligation
is limited to this determined action.
Because the law for ethical duties imposes the maxims or
subjective general rules of action as means to realize the
obligatory ends, the first principle of ethical duties is formulated
as: « Act according to a maxim of ends that can be for every
one a universal law »77. This principle is a synthetic apriori
proposition because with the concept of acting consistently
with the freedom of every one else according to a universal
law, i.e. with the concept of the subject of the proposition it
synthesizes apriori the predicate which is not contained in
this concept of the subject, i.e. the predicate of obligatory
end. Whereas the first principle of just duties namely: the
exercise of every one's freedom should be compatible with
mutuai enforcement according to a universal law78 is an analytic
proposition. For in the concept of the subject of the proposi
tion, the concept of the exercise of each one's freedom com
patible with that of others is contained the predicate (pos
75 MdS Tug. A 20, A 54.

76 MdS Tug. A 128; Aristotle (Nic. Eth. Vili, 14, 1163 b21), asserts the
same for the debt of children to their father.
77 MdS Tug. A 30.
78 Cf. MdS Rechi AB 36.
sibility of mutuai enforcement according to universal law).

Just duties therefore do not go beyond the concept of external
freedom, but ethical duties by the idea of obligatory ends do.
A last difference between just and ethical duties, which
also springs from the radicai difference between them in respect
of external legislation, is the nature of their enforcement. Ali
legislation to which man is subjected denotes necessitaiing
and hence enforcement. For ali legislation represents what it
prescribes as objectively necessary79; and for a will for which
what is prescribed is subjectively contingent (i.e. it can go
against what is prescribed), this objective necessity means
necessitating or enforcing. Where the legislation is external
as it is for just duties, the enforcement is likewise external
or it is enforcement by another. If however the legislation
is purely autonomous or by oneself alone, as it is for ethical
duties, the enforcement cannot be other than self-enforcement.
For the law of ethical duties imposes an obligatory end. And
no one can be forced by another to have an end. It is an end
for one, because oneself has made it one's end. The self
enforcement of man means that against the seductive inclina
tions to empirical ends opposed to morality which can arise
from his sensibility by inclining him as phenomenal man to
empirical and conditioned ends, he himself as noumenal man
or as pure practical reason opposes and imposes on himself
phenomenally taken the apriori ends which are the ethical
duties m. Purely by means of the ethical duties his noumenal
self forces or compels his phenomenal self to resist the opposed
empirical ends and to submit to and follow solely what the law
of practical reason imposing such duties prescribes.
Such then is the new basic concept of the ethical, the con
cept of obligatory ends, which Kant to distinguish a just from
an ethical duty elaborates. One might wonder however how
it harmonizes with the basic ethical concept of his earlier
works, that of respect for the moral law as the sole self-suf
ficient motive of an ethical action — duty for duty's sake.
The harmonization is not difficult. For though not every
thing that can be done for duty's sake is an ethical duty (e.g.
a just duty can be done for duty's sake), no ethical duty from
79 MdS Rechi AB 14; MdS Tug. A 28.

» MdS Tug. A 4, A 46.
its very notion can be done otherwise than for duty's sake.
For an ethical duty, an obligatory end is an unconditional end:
it must therefore be willed for itself alone (and not as a means
to something else), and hence it is itself its own motive81.
An end is one's end because one has made it one's end. An
obligatory end is an end that one should make one's end, an
end that should be willed for itself. Hence one can will it for
itself or as end only because it is one's duty to make it one's
end or one can will it only for duty's sake (concretized in a
particular duty).
Finally therefore though ali duties simply because they are
duties belong to ethics82 and come under the form of the moral
law or the categorical imperative, it does not follow that the
legislation imposing them is also ethical. For this legislation
can be legai or external as for those duties that are merely
just or it can be moral or internai as for those duties that are
ethical.
This analysis of the threefold difference between just and
moral duties — the difference by reason of the external or
internai legislation by which they are rendered duties; the
difference by reason of the thereby resulting narrowness or
width of the obligation; and the consequent difference of the
external or internai power of enforcement has not only the
advantage of bringing to light in its originality the foundation
and structure of Kant's definitive ethical theory, but in delimit
ing the characteristics of what is merely just from what is
properly ethical, it also throws into clear relief the exact limita
tions Kant fixes to external freedom as constitutive of the con
cepì of what is just. By this limitation of the freedom con
stitutive of the concept of the just it shows too why the ethical
must be excluded from Kant's philosophy of law, whereas it
occupies the dominant position in Hegel's philosophy of law;
and why the content of Kant's philosophy of law is for Hegel
but the first stage in the self-realization of the concept of law,
the stage of abstract law. The full dimension however of what
Kant means by external freedom as constitutive element of
the concept of what is just is opened up by the consideration
of how he understands the concept's apriori determination.
si Cf. Mds Rechi AB 15.

82 MdS Rechi AB 16.
6) Problems of the apriori determination of the concepì of

what is just
Kant has defined the just as the « complex of the condi

tions under which the free will of the one can be combined
with the free will of the other according to a universal law »83.
This concepì denotes as just the exercise of my freedom in so
far as it is consistent with that of ali others according to a
universal law and any hindering of this exercise of my free
dom is unjust. This exercise of my freedom and ali to which
it extends is therefore my right and it is the duty of ali others
to respect it. My freedom itself is my innate right. Ali that
to which it legitimately extends (i.e. consistently with the
freedom of others according to a universal law) is something
external which is therefore acquired as mine. It has become
my right. The concepì of what is just must show how and in
what ways and under what conditions it be apriori possible
that something be or become mine or thine, i.e. it must show
how the concept of what is just is apriori determined to the
concepì of mine and thine. For if the concept of mine and
thine were not apriori determinations of the concept of what
is just, it could never be just for something to be mine or
thine.
Yet this concept of mine and thine bristles with problems.

Since mine and thine denote a right that can be violated by
others, it relates only to something external and separable from
me. But what can be included under it or what can I make
mine and why? And how can something become mine? How
can a thing get this enduring predicate « mine »? What is
the link between the thing and me that is its belongingness
to me? How can my will be in some way in the external
thing so that another by taking or using it against my will
injures me infringing my right and violating my freedom?
In some way the thing has become an extension of me and
my freedom. When one says the thing is « mine », one qualifies
the thing by the possessive personal pronoun. « Mine » there
fore means possession of the thing. But how is this posses
sion of the thing to be understood? It cannot be the physical
having of the thing. For if some one steals what belongs to
« MdS Recht A 33, Β 33.
me, he has it physically, though it has not become his but

remains mine. Hence the bond between me and the thing
which the concept « mine » expresses is not one of physical
having, is not a physical connection. What then is it and how
can it be philosophically explained?
Determining this meaning of possessing without physically
having, which mine and thine denote, implies also showing
how one can acquire a « mine » and how something that was
another's can cease to be a « his » and become a « mine ». It
involves also explaining how I, without availing myself of the
Iaw of the jungle, can yet enforce my claim and regain what
is mine when it has been taken from me against my will.
If what is mine is taken from me against my will, an in
justice is committed against me. When I make something
mine therefore by that very fact I oblige ali others to respect
it as mine, as expressing my free will. Hence what is mine
denotes a right in me as regards it and an obligation or duty
in ali others as regards it. It is as this right and duty that
the concept of mine and thine determines apriori the concept
of what is just. But how can I impose a duty on ali others?
How can I by my will oblige the will of everyone else? It is
often overlooked that this is where the real problem for Kant
in the concept of mine and thine lies. For Kant the concept
of mine and thine, the concept of my right to a thing is not
directly a relationship of my will to a thing but directly a
relationship of my will to the will of others. For, he holds,
that were one alone on the earth — a kind of Robinson Crusoe
without Friday — « one could not properly have something
as one's own; because between him as person and ali other
external objects as things, there can be no relationship of
obligation. There is therefore properly and literally taken no
(direct) right to a thing»®*. A thing which is mine and which
I have mislaid or lost does not remain as it were obliged
to me — res clamat ad dominum — but others remain obliged
to me about it.
How is this right of mine obliging others possible? I by
my own individuai will cannot impose an obligation on others.
How then can this obligation arise? Kant's solution to this
problem is startlingly and deceptively simple. The one only
Μ MdS Rechi, AB 82.
condition of possibility of a right to

he holds, the joint ownership of the s
I am included with ali others. For wit
a joint ownership it is inconceivable how I without actually
having something can he injured by others having and using
it85. What does Kant mean by this condition of joint ownership
rendering private ownership possible? He is not referring to
some primitive historical condition of man's common owner
ship, nor to some Socialist dream, but he is referring to an
idea of pure practical reason as the objective condition of
possibility for the reality of the juridical concept of external
mine and thine M. My individuai will of itself cannot impose
an obligation on another excluding him from the use of some
thing. For my will of itself cannot be law-giving for him.
Only the general will, the unified will of ali which includes
both my will and the will of the other, the general will of ali
giving itself the law, giving the one the right and the others
the corresponding duty, can impose such an obligation and give
such a right. For it alone is law-giving for us both. But to
do so the general will must have at its disposai or have in its
power and so own that concerning which it obliges the one
and permits the other to have. Hence to be objectively pos
sible the concept of external mine and thine must be founded
in mankind's innate common ownership of the earth and its
riches and their corresponding apriori universal will allowing
the right of private ownership. This universal will therefore
is a willing or a law allowing private property, a lex permis
siva. For it imposes a negative obligation on ali others, a
forbidding their interference with my possession and hence
leaving me free to possess; it does not oblige me to possess.
But if the sole condition of the possibility of external mine
and thine be this common ownership and this corresponding
general will, how can Kant assert that the question as to how
external mine and thine be possible reduces itself to the
question as to how a synthetic juridical proposition apriori be
possible87, and that such a proposition is possible by what he
85 MdS Recht AB 81. C. August Emge, Das Eherecht Immanuel Kants,

Kantstudien, 1924, p. 267.
« MdS Rechi AB 84, 85.
«7 MdS Recht AB 63.
calls the postulate of juridical practical reason?88 To resolve

this seeming inconsistency of Kant's one must first determine
why the question of the possibility of external mine and thine
means how a synthetic juridical proposition apriori be pos
sible and secondly how this possibility is the postulate of
juridical practical reason and what this postulate means and
thirdly the relationship between this postulate of practical
reason and mankind's common ownership of earthly things.
Just as Kant reduced the problem of the Critique of Pure
Reason to that of the possibility of synthetic judgments
apriori89, and that of the Critique of Practical Reason to how
a synthetic practical proposition apriori be possible90, so too
he reduces the problem of external mine and thine to the
question as to how a synthetic juridical proposition apriori
be possible. Since a juridical proposition prescribes a duty
and a corresponding right about something external, it expres
ses a categorical imperative. But a categorical imperative is a
law of pure practical reason and hence is apriori. Every
juridical proposition is therefore apriori. A juridical proposi
tion as regards legitimate physical or empirical possession of
something is analytical. For it expresses nothing more than
is contained in the concept of my personal freedom. It merely
says that when I physically possess something, he that violates
my possession against my will (removes my wallet) infringes
my freedom — a predicate that is included in the concept of
physical possession; and hence the predicate cannot be denied
of the subject without contradiction. The truth of ali analytical
propositions is founded in the principle of contradiction91.
But the juridical concept of mine and thine signifies a pos
session that is not physical or empirical or phenomenal. For
something remains mine even if I am physically deprived of
it against my will. The concept therefore of mine and thine
denotes a possession by practical reason, a noumenal posses
sion. And the juridical proposition of practical reason asserts
this noumenal possession, this purely noumenal bond of
practical reason with the external thing as belonging neces
sarily to the concept of mine and thine. Hence the proposition
88 MdS Recht AB 67.
» KrV Β 19.
90 Grundlegung zur Mei. der Sitten, BA 95.
91 KrV Β 190, A 151.
expresses a necessary synthesis of a concept of pure practical

reason with the concept of a thing external to me, which is
an apriori synthesis. The synthetic juridical proposition apriori
is expressed as: « Every external object of free will can be
juridically mine, which belongs {and in so far as it belongs)
to me without me actually having it physically »92.
Since it is this synthetic proposition apriori which ex
presses the objective reality of the concept of mine and thine,
one cannot show how the concept of mine and thine be ob
jectively possible otherwise than by showing how this synthetic
juridical proposition be possible. Such synthetic propositions
however are possible only by this that their two elements
(i.e. their subject and predicate) « being combined with a third,
in which they are mutually to be met with, are joined among
themselves »93. What then is this third in which the necessary
synthesis of external thing and possible noumenal possession
is to be found? It is, says Kant, the juridical postulate of
practical reason94.
The juridical postulate of practical reason is, according
to Kant95, the maxim of action which holds that every external
object of my free will is an objectively possible mine or thine.
Why is this a juridical postulate of reason and what does Kant
mean by this? An external object of my free will, something
which I can choose for myself, is anything distinct from me
whose use can be in my physical power. The postulate claims
that every such object can be also in my juridical power,
i.e. that considered according to itself it can be mine — or
everything external which free will can have physically for
its use, it can also have juridically. To be able to use juridic
ally or to have in one's juridical power, is to be able to use
something in keeping with the apriori concept of what is just.
To be enabled to use something external in keeping with this
concept intends to convey that my freedom as regards this
use is consistent with the freedom of ali others according to
a universal law.
If the law of practical reason were to exclude from my
juridical power any external object whose use can be in my
μ MdS Recht AB 66, 67.
93 Grundlegung ζur Metaphysik der Sitten, BA 99.
94 MdS Recht AB 67.
95 MdS Recht AB 56-58.
physical power, practical reason's external freedom would con

tradict itself. For it would say that this should be capable
of being an object of my free will, for its use is consistent
with the freedom of ali others and at the same time it would
say that this should not be capable of being an object of my
free will, for it forbids its use. Thus the denial of the juridical
postulate of practical reason would contradict the concepì of
what is just, which is impossible.
But if this is the line of Kant's justification of the juridical
postulate why does he make it a postulate of juridical reason
and not rather a necessary characteristic of the same? For
is it not a necessary conclusion according to the principle
of contradiction and hence analytically from the concept of
what is just? No! According to the concept of what is just
or juridically as regards my external freedom, I cannot act
in respect of external objects otherwise than considering and
treating them as objectively possible mine or thine. And hence
in acting juridically, I necessarily practice the postulate. Or it
is a necessary presupposition of juridical action. But though
the concept of what is just show analytically that I cannot
act juridically without presupposing this principle of mine
and thine, the concept of what is just cannot show how it
can be so; it cannot give me theoretical insight into how I can
impose on ali others an obligation which they otherwise would
not have had excluding them from the use of what is mine
For I can have no corresponding sensible intuition in which
to represent the object of intelligible possession to myself.
Hence this principle of mine and thine is theoretically un
provable or it is a theoretical presupposition of the apriori law
(i.e. the concept of the just), of juridical action. And this is
the definition of a postulate of practical reason which Kant
gives in the Critique of Practical Reason: « Under postulate
of practical reason, I mean a theoretical, but as such unprov
able proposition, in so far as it is inseparably combined with
an apriori unconditionally valid practical law »97.
It is a juridical postulate because it is not derived from
the concept of what is just, but is presupposed as its con
dition. And because it is not derived from the concept of
96 MdS Recht AB 58.

97 KpV A 220.
what is just as a norm of practical reason and yet imposes

in respect of what is just an obligation that otherwise would
not be (i.e. in ali others in respect of mine and thine), this
apriori postulate as its principle widens the ambit of practical
reason in respect of what is just98. This apriori extension of
practical reason in respect of the concepì of what is just is
the function of the juridical postulate of practical reason.
In this juridical postulate of practical reason, this neces
sary theoretical hypothesis implied by juridical action, namely
that it is a just duty (and hence a categorical imperative) so
to act as regards others that what is external can be some
one's own even if not physically possessed and hence one's
own in the sense of noumenal possession, is contained the
necessary synthesis of external thing and noumenal possession.
But that which contains the necessary synthesis of external
thing and noumenal possession is the condition of possibility
of their apriori synthesis in the synthetic juridical proposition
apriori. And since the question as to how external mine and
thine be possible is reducible to the question: how is a syn
thetic juridical proposition apriori possible99, it follows that
for Kant external mine and thine is possible by the juridical
postulate of practical reason. How then can he hold that
external mine and thine have as their sole condition of pos
sibility the common ownership of the earth and its corre
sponding general will allowing private ownership?
The juridical postulate of practical reason excludes the
possibility of any external usable thing being incapable of
being owned or of being possessed noumenally and so it de
notes an apriori law of reason allowing its private ownership.
But such a law of reason implies the imposing of obligation
on everyone to respect this private ownership and such an
imposition is not possible without the idea of common owner
ship and it corresponding universal will. Hence the juridical
postulate of practical reason to be the possibility of mine
and thine or of noumenal possession involves necessarily the
idea of common ownership and universal will. For noumenal
possession since it abstracts from the sensible conditions of
possession of a person in relation to objects, which can have
98 MdS Recht AB 58.

99 MdS Recht AB 63.
no obligation, is nothing else than the relation of

persons binding them in respect of external freedom
can be possible only through the unifìed will in common
ownership.
And on the other hand, the idea of common ownership
and unifìed will implies that nothing external and usable is
incapable of being owned or can be unowned, and this means
that it implies the juridical postulate of practical reason. They
mutually imply one another therefore as different aspects of
the same possibility of the objective concept of mine and
thine. Under the aspect of what can be owned, its condition
is the postulate, and under the aspect of why it can be owned
its condition is the common ownership. The postulate is the
maxim of ali juridical action as regards others in respect of
external usable things; the common ownership and its will is
the condition on which one founds one's own will of ownership
in so far as one's own will is included in this unifìed general
will and consistent with its law 10°.
By means of this juridical postulate and the idea of com
mon ownership, Kant resolves the chief problem as he per
ceives it of the possibility of the concept itself of mine and
thine. For the principle problem for him, as we noted, lies
in the fact that the concept of mine and thine does not di
rectly signify a relationship to things but a relationship to
persons. Hence it is directly in relation to others that my
will and personal freedom are extended by ownership, by the
enduring predicate « mine ». But this creates a difSculty, for
Kant in keeping with the tradition of Roman law distinguishes
as regards the acquisition of a « mine » a right as regards
things (Sachenrecht) and a mine or right in respect of persons
(personliches Recht).
One's right as regards persons is the possession of the
free will of another in so far as I oblige him to a certain
action. Such a mine and thine, such a right can be acquired
only by his and my will agreeing to it or by contract101. Hence
by its very notion a right in respect of persons is between
particular persons. It obliges only the parties making the
100 MdS Rechi AB 93.

ιοί MdS Rechi AB 98.
contract. Whereas a right in respect of things obliges ali

other to recognize and observe itI02.
Though a right in respect of persons obliges only those
making the contract as regards what they have agreed, it
does not follow, as Hegel justly notes103, that breaking a con
tract is merely against the particular will of the other and
not against the notion itself of what is just and its universal
obligation.
This distinction between rights as regards things and as
regards persons is not a very happy one. For a right in
respect of persons, a right that arises from a contract is
nevertheless in respect of giving or doing something external
and hence it is a right in respect of a thing. So the distinction
between right in respect of person and in respect of thing is
reduced to a right acquired only through the mediacy of a
contract and a right not acquired through the mediacy of a
contract. Moreover according to Kant both the right in respect
of things as well as that in respect of persons have regard
to external mine and thineI04.
However besides this division of rights to external mine
and thine as regards things and rights as regards persons,
Kant has introduced into jurisprudence a third division — a
right as regards persons in the mode of things (ein auf dingliche
Art persònliches Recht). It is the right of possession of some
thing external as a thing and it use as a person105. Here one's
own, mine and thine, does not mean as property {for it is a
person) but solely as regards use. It is under this apriori
determination of the concept of right that Kant classifies and
investigates the right of marriage partners as regards one an
other and as regards their offspring and as regards their ser
vante. It is according to right in this sense that Kant deter
mines its application to marriage. Emge106 has rightly noted
that this right for Kant is not founded on contract as Hegel
holds107, but the contract is a consequence.
102 MdS Recht AB 101-102.

ι® Hegel, Grundlinien der Philosophie des Rechts, in Hegel's personal
notes to § 81, printed in Suhrkamp, Bd. 7, 1970, p. 171.
104 MdS Recht A 96, Β 97.
105 MdS Recht AB 105.
106 Das Eherecht Immanuel Kants, Kantstudien, 1924, p. 273.
io? Grundlinien der Philosophie des Rechts, § 161 Zusatz.
This new concepì of right invented by Kant has not met

with much approvai by jurists, despite the enormous diffi
culties of determining the notion of right as applied to mar
riage and parenthood. But Kant justifìes this concepì of per
sonal right in the mode of thing not from its usefulness in
application, but from the apriori completeness of the system
atic division of the synthetic rational notion of right as mine
and thine 10S, which complete division apriori a philosophy of
law must provide. For the apriori notion permits completing
the division of right into thing and person by putting them
in relation to one another of which only one, the personal
in the mode of thing is apriori possible109.
The problem for Kant of the apriori possibility of mine
and thine as well as the problem of the completeness of its
apriori division concern the question as to how something
external can be a mine or thine. But nothing external can
be originally a mine or thine. It can be so only by acquisi
tionI10. Nothing therefore external can be a mine or thine
without having become a mine or thine by acquisition. Hence
the solution of the problem for Kant of how something can
be apriori mine or thine must be completed by determining
apriori ali the ways in which something external can be ac
quired.
His problem therefore as regards acquisition is to show
how the traditional titles of mine and thine are apriori pos
sible or how they are justified as apriori determinations of
the concept of mine and thine. These traditional titles of
acquisition are either facto, i.e. by a juridical act of the will
of the one who acquires, as by occupation; or pacto, i.e. by
the will of both parties in contract; or lege, i.e. where no
juridical act is acquired but the law itself, the uni ver sai will
108 MdS Rechi Β 162.

loo C. August Emge (Das Eherecht Immanuel Kants, Kantstudien, 1924,
p. 260) rejects this argumentation of Kant's, because the fourth concept
that it permits, that of right as thing in a personal mode cannot be
logically possible but metaphysically impossible. But Kant does not say
that this concept is logically possible, but only that we can put the
two notions together and find that they cannot be realized. Emge favours
instead of this justification of Kant's for the triple division the cor
respondence of this division with the three Kantian categories of pure
understanding: that of substance, of causality, and of community (ibid.
p. 262).
no MdS Rechi AB 76.
kant's phxlosophy of law 273
determining what is just, permits the title, as for example

rights in respect of marriage and the right of offspring to
sustenance and education.
The apriori possibility of this third title is principally
Kant's justifìcation for the introduction into jurisprudence of
the kind of right which he calls personal right in the mode
of thing. For the first title, facto, the only example is that
of title by occupation. This is the one case of originai ac
quisition, i.e. where something becomes mine or thine without
being acquired from another. Acquisition by occupation pres
ents no difhculty for Kant, for though its possibility is incon
ceivable for us, it is concluded immediately from the juridical
postulate of practical reason founding itself directly on the
common ownership of the earth and the corresponding unifìed
will m.
It is only the title of acquisition by contract or from
another that presents a problem for Kantu2. By contract
I acquire the action of the other through which the thing
is to be mine (jus ad rem). The problem of how a contract
bè apriori possible is the problem of simultaneity of the two
wills of those forming the contract. For it is only through
the unifìed will of the two — the one offering and the other
accepting — that that which belongs to the first passes without
interruption (i.e. in continuity) to the second, and as unifìed
will of the two, offering and accepting, they have to signify
their wills consenting together. The contract therefore cannot
consist in the empirical or sensible demonstration of their
contracting wills whatever form it may take. For such a
manifestation being empirical has to be successive of the one
offering and the other accepting and so cannot be of their
two wills simultaneously or unifìed.
For Kant the only solution possible of this problem is the
transcendental deduction of the concepì of acquisition by con
tract. This is its apriori condition of possibility in the ju
ridical concepì of noumenal possession. For the relationship
of the two wills as juridical is purely intelligible or noumenal.
1» MdS Recht AB 85.

112 Kant's apriori division of ali contraete into one-sided (e.g. donation),
and mutuai (e.g. buying and selling), and security contracts (e.g. mortgage)
(MdS Recht AB 120) is accepted by Hegel as division founded in the nature
of contract (Grundlinien der Philosophie des Rechts, § 80).
which abstracts from the empirical conditions and its succes

sion in time of the sensible manifestation of the one offering
and of the other accepting. As purely intelligible the two
wills are not successive but simultaneous and hence they form
a one common will of consent, from which the promise and
acceptance arise 113. To be acquisition by contract this unified
simultaneous will of the two is required. For were the object
for a time without an owner, I would acquire it by occupation
and not by contract. It cannot therefore be at any moment
unowned. At a certain moment (the moment of agreement,
of the unified wills) it must belong to both1M.
A somewhat similar problem arises as regards acquisition
by inheritance. It is one of the three kinds of acquisition
from another which is not properly by contract11S, but which
is a true though ideal but not real acquisition from another;
for it is from one who has just ceased to be. The difficulty
lies in this that the transference cannot occur through the
will of the one only but only through promise and acceptance
and hence through the common will of both simultaneously.
But as long as the one lives the other cannot acquire the
right to the possession. The apriori justification of right of
inheritance is, according to Kant, that the one at the moment
of death offers and the other silently and immediately through
the offering of the other without juridical act but lege ac
cepts the right to choose either to accept or to reject the
inheritance. Hence there is continuity of possession from
the testator to the inheritor and the thing does not become
a res nullius but a res vacans, for the inheritor has acquired
the right to choose whether to make it his or not116.
»3 MdS Recht AB 99, 100.

m AidS Recht AB 102.
115 The other two are meritum immortale (acquisitimi after death of
right to one's good name, like Hamlet's « What a wounded name, things
standing thus unknown, shall live behind me ») and usucaption. Acquisi
tion by usucaption is a right gained neither by prescription, nor by length
of time in occupation; both of which are contradictory as acquisition.
For prescription would mean acquiring a right by excluding another's
juridical claim to the object to be acquired. And length of time in occupa
tion is use of the thing which presupposes and cannot give a right.
Kant's solution is that in usucaption I acquire, without juridical act or
proof, by the law itself which wills security of possession and hence
grants the title of usucaption which therefore is apriori, MdS Recht Β 174.
»6 MdS Recht AB 135, 136; Β 176, 177.
The above considerations have shown how Kant resolves

the problems the apriori determination of the concept of what
is just into the concepts of external mine and thine have for
him as well as the apriori kinds of external mine and thine
and the different titles of their acquisition. They have left
however out of account an essential element already con
sidered of the concept of what is just, which element there
fore must also be determinable to mine and thine if their
concepts are to be apriori possible. It is the question of en
forcement of mine and thine. How can I regain what is mine
unjustly taken from me? How can the mine and thine be
vindicated and upheld? It is the problem of the function of
the state as apriori required by the concept of what is just.
7) Kant's concept of law in its apriori determination to the

state
The basic concept of law of which Kant's philosophy of

law is the apriori elaboration implies juridical duties and
rights not only as regards man's naturai condition but also
in respect of his civic condition. To fulfil the elements of its
apriori notion the concept of law, the concept of what is just,
requires man to be a citizen of a state. The treatment of
the fundamental lines therefore of Kant's philosophy of law
is not completed unless one has shown how and why the
concept of what is just requires the state. It is important
for an exact appreciation of Kant's philosophy of law to see
under what precise angle his concept of what is just requires
the state and in consequence what it requires the state to be.
For Kant the idea of the state is implied not only by the
concept itself of what is just as such, but also by each one
of its elements already analysed. For the apriori concept of
what is just is the practical principle to act in such a way
in the external exercise of one's freedom as to be consistent
with the freedom of ali others according to a universal law
of freedom. But the legislation determining a universal law
of freedom in its external exercise is alone that enacted by
the authority of the state. Hence it is only within the state
that the juridical condition required by the concept of what
is just can be realized. The state therefore is an apriori neces
sity of the concept of what is just as such.
Besides, a first element of the concept of what is just is,

as we saw, the exercise of man's external freedom. But it is
only in the state, only as submitted to the external legislation
of the state that this freedom ceases to be wild, unlawful
and finds iself as rational, because juridically exercised, free
dom and external autonomy. For the law to which it submits
is that which its own will in company with ali the other citizens
gives itself117.
Further the concept of what is just showed itself to be
for Kant the concept of what is mutually enforceable. This
enforcement of what is just unlike the self-enforcement of the
ethical is enforcement by another. And the other required
by the concept for its enforcement is the public power of
the state and its administration of justice.
The apriori determination of what is just is, as we have
seen, the concept of external mine and thine. For what is
just gives every man his own. It is therefore in its deter
mination to mine and thine that the concept of what is just
must be realized. However nothing external can be mine or
thine without having become so by acquisition. But ali ac
quisition in the condition of nature, i.e. outside the civic con
dition, can be for Kant only provisional. For it is in the civic
condition, in the state alone that a title of acquisition and
hence an external mine and thine can be peremtory118. For it
is solely in the idea of the apriori unified will of ali that prac
tical reason can provide a title to acquisition.
A title of acquisition gives me the right to possess some
thing external as my own and at the same time obliges ali
others to refrain from interfering with my right. But it is
only the unified will of ali that can by its legislation impose
such an obligation on them. And the unified will of ali legis
lating is actually realized solely in the state. Hence it is only
in relation to the idea of the state and its actual realization
that one, prior to being a citizen of a state, can acquire some
thing external. Hence the acquisition remains provisionai and
becomes definitive only in the state. Nevertheless, as Kant
notes 119, this provisionai acquisition founded on the juridical
i" MdS Rechi A 169, Β 199.

il» MdS Rechi AB 86.
li' MdS Rechi AB 87.
postulate of practical reason is a true though not definitive,

acquisition. For in the condition of nature one is yet justified
in enforcing one's claim and hence one's acquired right and
of obliging others by the only means open to one, namely by
entering the civic condition.
Indeed Kant goes further. He asserts that were there no
acquisition of external mine and thine, not even provisionai,
prior to the civic condition, the civic condition would be im
possible. For according to their form the laws concerning
mine and thine in the state of nature and in the civic state
in so far as they are ta'ken according to the concepts of pure
reason are the same except that the latter give also the con
ditions of their exercise!20. Were there not this provisionai
acquisition, Kant adds, there could be no just duty, no com
mandment of the concepì of what is just for man to leave
the condition of nature and enter the state.
This last consideration reveals the angle under which Kant
sees the necessity of the state. It is in the civic condition
alone that external rights can be secure. In fact Kant is sur
prisingly insistent on this function of the state: merely to
secure what is mine and thine. From this it follows, he holds,
that mine and thine and corresponding obligations must be
possible in the naturai condition, because civic condition does
not constitute or determine what is mine and thine, it only
secures it m.
Hence though the actual existence of a state be subjectively
contingent, the state is objectively i.e. as duty, necessary122.
It is man's duty to enter the civic condition, to become a
citizen of a state, Kant holds, because it is unjust, not in
relation to this or that object but opposed to the very concept
itself of what is just, to remain in a condition where no one
can secure what is his own against the onslaught of violence123.
Hence the necessity of entering the civic condition follows
analytically from the concept itself of what is just in external
relationships in opposition to violence124. For it lies in the
rational idea itself of the condition of nature that in such a
120 MdS Recht A 164, Β 194.

124 MdS Recht A 157, Β 156, 157.
condition no one, neither singly nor together, can b

violence against one another when each one tries to asserì
as his righi and as his own what he himself on the basis of
his own opinion independently of others thinks to be his own.
To avoid the distruction of ali concepì of right to which such
a condition inevitably tends the apriori concept itself of right
imposes on man the duty of leaving as soon as possible such
a condition and entering the condition where mine and thine
is secured for ali by the law of an external law-giver, i.e. the
duty of entering the civic condition125.
I cannot be obliged to respect what belongs to another
and refrain from violence except he too be obliged to respect
as mine what belongs to me and to refrain from violence in
my regard. This observance of each other's rights and exclu
sion of violence presupposing a mutuai and common obliga
tion, presupposes a common external will fixing the rights of
each and with power to give security, which is a function of
the state alone. In keeping too with this security, as the ju
ridical angle under which the state is considered, is the apriori
principle which directs decisione in a court of law according
to Kant: namely to determine for each one in the easiest and
surest way his rightI26.
Since the duty of entering the state arises from the neces
sity of right prevailing against violence, the laws as regards
mine and thine in the condition of nature and in the civic
condition, in so far as they are conformed purely to reason,
are the same. And there are no other duties of men among
themselves in the civic condition than in the naturai con
dition 127.
From this function of security of mine and thine (and

oneness of juridical matter) proper to the state can be seen
also the relationship for Kant between naturai and positive
law. The juridical obligations of men among themselves which
can be known apriori from reason is how Kant defines the
naturai law (Naturrecht)128. Whereas state laws are statutory
or positive laws. On the one hand for Kant positive law is
just only in so far as it is founded in naturai law. But on
125 MdS Rechi A 163, Β 193.

128 MdS Rechi A 139, 140, Β 139.
the other hand, « naturai law to be juridically valid requires

positive law. The juridical presumptions by nature inherent
in reason need the sanction of the state to be realized in civil
law and to be authentically law »m.
Since the state is required for Kant by the idea itself of
what is just and according to the different elements of its
concept, his notion of the state is that which corresponds to
these requirements. Hence he defines the state as: « The uni
fication of a multitude of men under juridical laws. In so far
as these laws are apriori necessary, i.e. arising from the con
cept itself of what is just... it is the state in its idea... as it
should be, which is the norm of its every actual realization » 13°.
This unification of a multitude of men under juridical laws, the
act by which the state is constituted, or better, as he says,
properly only the idea of the state, is called by Kant, in a
word which recalls Rousseau, the originai contract, according
to which they ali give up their external freedom to find it
again in legai dependence arising from their own legislating
willm. And this unified law-giving will of the state echoes
the volonté générale of Rousseau132.
But when Kant speaks of contract in function of the unified
common will as foundation of the state, he is not like Rousseau
referring to an historical fact and empirical condition133, any
more than by the violence endemie to the naturai condition
and to escape which man is obliged to enter the state he
means the empirical fact of Hobbes' bellum omnium in om
nes m. Kant asserts more than once and in so many words
that by the objective reality of the unified common will he
does not mean an historical empirical fact135. He specifies
this further in relation to acquisition. Acquisition can be de
finitive only in the civic condition, by means of distributive
129 Simone Goyard-Fabre, Kant et le problème du droit, (Bibl. d'hist.

de phil.), Paris, 1975, p. 129-130.
ι» MdS Recht A 164, 165, Β 194, 195.
«ι MdS Recht A 168, 169, Β 199.
132 That Kant was thinking of Rousseau in elaborating his theory of
the state is clear from his explicit reference to him : MdS A 172, 173, Β 203.
133 Ernst Cassirer, Kants Leben und Lehre, Berlin, 1918, p. 238. Georg
Gurwitsch however does not hold the general will of Rousseau to be an
empirical principle: Kant und Fichte als Rousseau-Interpreten, Kantstu
dien, 1922, p. 152.
134 MdS Recht A 162, Β 192.
135 MdS Recht AB 65; AB 78, 79; AB 91.
justice, which can proceed, he says: « only from t

and apriori unified will (a will which does not presuppose a
juridical act for its unification) »136. Or again the possibility
of definitive acquisition is by the will of him who acquires
« being contained in an apriori unified, absolute commanding
will »; the obligation to respect the acquisition of others re
quires « an apriori and consequently necessarily unified and
therefore sole legislating will »137. Or as he expresses it else
where, the will of the one who acquires « being contained in
the synthetic universal will »138; or by the legislation of the
will thought of as apriori unified139.
If then the will which is the foundation of the state is
the apriori, necessary, synthetic unified will of ali, its reality
cannot be empirical, but is the objective reality of an idea
of pure practical reason underlying an empirical realization.
In fact Kant says this explicitly. The three powers in the
state (i.e. legislative, executive, judicial) are but so many re
lationships of the unified will of the people arising apriori
from reason 14°. It is the will of « pure juridically legislating
reason (homo noumenon) » M1. And again, when he says, the
state is the unification of a multitude of men under juridical
laws, he adds « in so far as these laws are apriori necessary
it is the state in its idea i.e. as it should be according to the
principle of what is just »142.
Further, if the objective practical reality of the unified
common will which is the foundation of the state and the
source of its threefold power, is an apriori synthetic and ne
sary unification, it cannot be merely the sum of ali the indi
viduai wills, but is qualitatively more, just as the whole is
more than the sum of the parts, for the whole is their syn
thetic unity. It is in relation to this apriori synthetic unified
will that ali rights are determined and that security of rights
and obligations to observe them as well as their enforcement
is imposed. It is as being contained in this unified common

137 MdS Rechi AB 85, 86.
ito MdS Recht A 208, Β 238.
191 MdS Recht A 203, Β 232, 233. t)ber ein vermeintes Recht aus Men
schenliebe zu liigen, A 311, 312.
192 MdS Recht A 165, Β 194, 195.
will that the citizen obeys no law except that to which he

has given his consent143. And because issuing from the con
cepì of what is just, this legislative will is called by Kant
holy144. This Kantian concepì of free consent to the laws of
the state and one's consequent respect for them as holy, by
this inclusion of one's will in the unified universal law-giving
will, could well be taken as echoing the words to himself of
Socrates condemned to death refusing to flee: « because running
away would be to act against the contracts (sunthekai) and
committments (homologiai) in keeping with which you con
tracted (sunethou) to live as a free citizen (politeuesthai) »145.
Although Kant's notion of the state does put freedom in
the apriori unified will as the foundation of the state, this
concepì does not win the approvai of Hegel, who considers
that he has confused the state with what he, Hegel, calls the
civic society (biirgerliche Gesellschaft); and because, as he says,
the determination of the state is placed in the security and
protection of property and of personal freedom, the interest
of the individuai as such is the final end for which they are
united and hence it follows that it is something accidental
to be a member of the state 146. Kant however could justly
reject such a criticism, while admitting that he places the
determination of the state in security etc., and assert that it
is a necessity incumbent on each man with the necessity of
the concept itself of what is just to become a member of a
state. For according to him the naturai condition of man is
that which is alien from the rule of what is just « Zustand
der Rechtlosigkeit (status justitia vacuus) »147. Hegel of course
sees the state from a very different point of view from that
of Kant. For him the state belongs to the ethical order: it is
thè realization itself of the ethical idea: the selfJknowing and
self-willing divine reality, in which freedom comes into its
supreme right and hence it is for each one his highest duty
to be a member of the state148. Whereas for Kant the state
1« MdS Recht A 166, Β 196.

144 MdS Recht A 203, Β 232; ibid, Β 186: « The idea of the constitution
of a state in general... is holy ».
145 Plato, Crito, 52 d; Cf. A. E. Taylor, Plato, the Man and his Work,
London, 3», 1929, p. 172.
146 Hegel, Grundlinien der Philosophie des Rechts, § 258.
»7 MdS Recht A 163, Β 193.
148 Hegel, Grundlinien der Philosophie des Rechts § 257, § 258 (under
lined by Hegel).
belongs to the juridical order, the order merely of external

freedorn and is its supreme realization but it does not reach
to the interiority of the inner freedom of the ethical.
But if the state is for Kant the supreme realization of
the concepì of what is just and that on which ali realization
of the same depends, it does not obviously follow that every
state is just, or that any state at ali is purely just. For the
objective and necessary reality of the idea of the state is dif
ferent from the actual reality of the state. What the state
should be is different from what the state happens to be.
Where then does this difference lie for Kant and what is the
resulting normative function of the idea of the state? It is
the final problem which requires to be treated in Kant's phil
osophy of law.
8) Kant's concepì of law as realized in and as ideal for the state

The concepì of law, of what is just, of the exercise of
extemal freedom of the one consistently with the freedom of
ali according to a universal law, implies necessarily the idea
of the state as the source (legislative) and application (execu
tive) and enforcement (judicial) of the law governing the con
sistency of the exercise of freedom. Hence without the state
the condition of what is just cannot be, or the state is the
condition of possibility of what is just. As such it is the
objective idea of the state required by the concepì of what
is just. It is an idea therefore which has objective but prac
tical reality as implied by pure practical reason. As the ob
jectively real idea of the state, its reality is that of pure
practical reason or it is the state in its noumenal reality.
And the perfect constitution of its threefold power contained
in this objective idea is likewise noumenally real. For since
such a state and its constitution can be represented only by
practical reason, it is, as Kant asserts, the thing in itself
(Das Ding an sich selbst) M9.
But every actual state, that has been and is and will be
on earth is what can be met with in experience or is an object
of experience and hence sensible 15°, or it is the state as phe
1« MdS Recht Β 185.

ι» MdS Recht Β 185.
nomenally real. Since then the phenomenal can never be

adequate to the noumenal, the appearance of the thing can
never be the thing in itself, but they remain infinitely distant,
so no actual state can ever be adequate to the idea of the
state. Hence every actual state is always and necessarily an
inadequate realization of the idea of the state and is neces
sarily an imperfect realization of the idea.
Without the objective reality of the idea of the state no
state of experience could be a state; but without the state
of experience the idea of the state would remain actually un
realized. The idea of the state has to realize itself in expe
rience and the state of experience has to be regulated by the
idea of the state. It is this doublé necessity which constitutes
the dynamic character of Kant's idea of the state and hence
of his concepì of law — a characteristic which has been often
ovèrlooked.
Because every actual state and its actual constitution what
ever form it takes is but a phenomenal realization of the idea
of pure practical reason of the state and hence an imperfect
realization, there is always room for improvement. For it can
always be rendered better without being able to reach the
pure idea itself. Yet Kant will allow only reform; under no
pretext will he permit that this improvement of the constitu
tion take place by sedition or worse rebellion against the legis
lating head of state151. Of course Kant was writing just a
few years (1797) after the beheading of Louis XVI of France.
And he does not hide the shock he felt at the event. But it is
its being done formally as execution (Hinrichtung) which he
says makes the soul devoted to human rights shudder with
horror152. But Kant's refusai to allow rebellion against the
head of state under any pretext whatsoever has nothing to
do with the doctrine of the divine right of kings, expressed
classically by Shakespeare as:
« Not ali the water in the rough rude sea
Can wash the balm off from an anointed king;
The breath of worldly men cannot depose
The deputy elected by the Lord »153.
151 MdS Recht A 176-178, Β 206-208.

152 MdS Recht A 178, Β 208.
153 Richard II, act III, se. 2, 1. 54. And again:
Neither is it for ethical reasons that Kant will not allow

rebellion, but it is purely from the concepì itself of what is
just. The concepì of what is just determines the consistency
with one another of the external exercise of men's freedom
according to a universal law and to which they have given
their consent. The law-giver is the head of state expressing
this unified consenting common will of the people. For the
state is the unifìcation through laws under the head of state.
The people are therefore obliged by the concepì of what is
just to submit to the head of state. It is against the law
itself of what is just to resist and is the distruction of the
lawful constitution itself. The only way in which it could be
lawful, i.e. not opposed to the concepì of what is just, to
rebel against the head of state no matter how unworthy or
tyrannical he be, would be where the law included the per
mission for the people to rebel. But this would be a contra
diction. It would mean the highest legislative power denying
that it was the highest legislative power154. Were the people,
adds Kant, to think they could use violence against the su
preme power or against the constitution it would mean sub
stituting violence for right155. Since it is to secure the right
of mine and thine against the inevitable violence of the con
dition of nature that Kant holds that one is obliged to enter
the state, and consequently the state is the reign of right and
law against violence, it is not surprising that he should ex
clude ali right to use violence against the power of the state.
Kant's words must have been music in the ears of the Prussian
monarch. Though his royal enthusiasm would no doubt have
been somewhat dampered by Kant's insistence that one should
seek gradually and continually to change the constitution of
« We are amazed; and thus long have we stood

To watch the fearful bending of thy knee,
Because we thought ourself thy lawful king:
And if we be, how dare thy joints forget
To pay their lawful duty to our presence?
If we be not, show us the hand of God
That hath dismiss'd us from our stewardship;
For well we know, no hand of blood and bone
Can gripe the sacred handle of our sceptre,
Unless he do profane, steal, or usurp. » ibid. Act III, se. 3,1.72.
154 MdS Rechi A 176, 177, Β 206, 207.
155 MdS Rechi Β 186.
the state in the direction of the republican type of govern

ment, as the only enduring constitution of the state156.
Could not Kant have considered the possibility of the head
of state being so opposed in his actions to what the naturai
law of the concepì of what is just demands (one thinks of
some examples from the 20th. century) that his actions them
selves would deprive him of the supreme power and it would
return to the people until they designate a successor, as in
the case of sede vacante? No! Kant could not envisage such
a case, for the will of the people is unified for him only in
the head of state and without the head of state it is ununified
and hence un-lawful (gesetzlos)157, and so can have no lawful
action against the head of state.
The fact that the actual state and its constitution and
hence its laws are always imperfect, means that its laws are
in Constant need of reform and of adaptation to the new needs
and requisites of the times. And so its law is never complete
but remains at ali times a law in becoming158.
If the constitution and the law of the state for Kant is
always such that it requires reform, is always in the condition
of becoming, there is necessarily involved an ideal towards
which it becomes, an ideal towards which it aims, a Should-be
underlying ali the realizations of its laws as their norm and
measure. And in seeking to realize this ideal and Should-be
lies the well-being of the state (salus reipublicae suprema lex
est). Its well-being is « the condition of the greatest conformity
of the constitution with the principles of the concepì of law
to strive towards which reason obliges us by a categorical
imperative »159; it is therefore a Should-be.
The perfectly juridical constitution, where the law is auto
cratic and serves the final end of ali legislation which is that
each one should have definitively his own160, and where ali
156 MdS Recht A 212, Β 242. However for Kant the republican constitu
tion is not opposed to a monarchical form of government, but means only
the separation of the executive from the legislative power, (Zum ewigen
Frieden, BA 25).
157 MdS Recht Β 187.
ι5» Arthur Kaufmann, Die ontologische Struktur des Rechtes, in Die
ontologische Begriindung des Rechts, hgs. A. Kaufmann, Bad Homburg,
1965, p. 500.
159 MdS Recht A 172, 173, Β 202, 203.
ι» MdS Recht A 212, Β 242.
the laws verify the naturai law of the concept of

is the ideal of the state and its legislation. It is th
pure reason of the state « which no adequate exam
perience underlies, but which as norm no exampl
ence must contradict » M1. Is this ideal of reason, this norm
which no actual state and its laws must contradict anything
else than what one means by Rechtsstaat?
The state as it should be, the state as it seeks to realize
in the exercise of its threefold power the pure concept of what
is just, is the condition excluding violence and letting the jus
tice of law-regulated freedom in mutuai consistency reign
among men, among its citizens. This exclusion of violence
and this institution of the dominion of justice and law is the
condition where man is rendered secure in the possession of
his own: « For the condition of peace (Friedenszustand) is sole
ly the condition, secured under laws, of mine and thine in a
multitude of men living adjacent to one another »162. Hence
Kant asserts that the universal and enduring establishment of
peace constitutes not only a part of but the entire end of the
doctrine of law within the bounds of mere reason.
The concept of what is just therefore demands that its
realization be not confìned to the boundaries of a state, but
be realized also between states. For the naturai condition
between states is that of violence, not necessarily actual war,
but the Constant danger of the same. Because the external
exercise of their freedom is not consistent with that of each
other according to an actual universal law, since there is no
external law-giver legislating for them. The naturai condition
between states or among peoples is that of law-less freedom.
States or peoples no less than individuals are obliged to
abandon this lawless condition of nature and to enter a con
dition in which the law reigns. And just as the individuai
can have no definitive but only provisionai rights as long as
he is in the condition of nature, likewise states or peoples in
relation to one another can acquire no definitive and peremp
tory but only provisionai possessions, only provisionai mine
and thine, previously to entering a universal union of states
and its corresponding condition of peace. The concept of law,
1« MdS Recht Β 187.

i« MdS Recht A 234, Β 265.
KANT S PHILOSOPHY OF LAW 287
the concept of what is just in its relat

(Vòlkerrecht) necessitates them to leave the condition of na
ture and enter a union of ali states and thus to give reality
to the idea of eternai peace.
Such a union of states, a world-state, because of its vast
ness and the difficulty of protecting each person contained
within such a vast organization, would be so unwieldly that
its governing must be impossible. And hence Kant, while as
serting that eternai peace is the final goal and end of the whole
of international law (Vòlkerrecht), admits that it is neverthe
less an unrealizable idea163. But, he adds, the politicai prin
ciple which aims at this eternai peace, namely to create such
unions among states, so as to be a continuai approach towards
it, is a duty that can indeed be fulfilled.
But if the ideal of eternai peace is not capable of being
realized or at least if one does not know whether it can be
realized or not, how can one be obliged to work for it? Does
not the categorical imperative of the obligation imply that
that to which it obliges be possible? « We are conscious that
we can, for our reason tells us that we should », says Kant164.
But when one says that eternai peace is that at which men
are obliged to aim as the final politicai good and goal, one is
dealing with the practical not with the theoretical order. And
the obligation concerns only the acting according to this idea
of eternai peace. To act according to the idea does not re
quire that one hold the idea to be in itself possible. For that
is a theoretical judgment. Hence it is possible to act accord
ing to the idea of eternai peace (and hence to approach it
continually) as a herculean task, even if one does not know
whether the idea in itself be possible or not. Practical reason
makes it a duty to act for eternai peace by proposing the ex
cluding of war as a Should-be, prescribing that war be not
the way in which each one seeks one's right165; and hence
practical reason's apriori ideal for us is to act towards realiz
ing the condition where war should be abolished and uni
versal peace hold sway, to act as if this ideal of eternai peace
be possible.
1« Mds Rechi A 227, Β 257.

'Μ KpV A 283.
165 MdS Rechi A 233, Β 264.
Kant therefore is not being utopian in this doctrine of

universal peace, nor is he suggesting that there will never
be peace until philosophers be kings, a development, which,
he says, is « not to be expected but also not to be desired.
For the possession of power corrupts inevitably the free judg
ment of reason »166. But rather he is showing the full ambit
of the obligations and determinations which spring from pure
practical reason's concept of what is just.
For as our analysis has shown, the whole of Kant's phil
osophy of law right up to the angle under which he conceives
the state is the logicai elaboration of the basic concept of law
which is its foundation. As the transcendental philosophy of
law, it depends on the value of this concept of what is just.
But what is the value of this concept of Kant's? When he
defìnes the concept of law, the concept of what is just as that
which is consistent with the freedom of ali others according
to a universal law, does he really define the just? Does he
teli us what the just is and why it is binding? It is indeed
true that the concept of law concerns only external actions
in their relation to others and that the obligation it imposes
is different from that of the ethical. But what is it in ex
ternal actions that render them just and obligatory? Our
analysis has reduced Kant's definition to the form of the
moral law which prescinds from ali content167. It is that
which according to the Critique of Practical Reason would
be ethically binding if it were the sole motive of action. But
has Kant with this form of the moral law told us what renders
a positive law just? Has he really given us the basis of the
obligation of positive law? And if he has not defined nor given
a content to the concept of what is just, can his philosophy
of law as the apriori development of this concept be valid
and self-justifying? It is the inevitable question with which
one is left.
Francis O'Farrell, S. I.
166 Zum ewigen Frieden, Β 70.

Zeko Torbov, Das Grundgesetz des Rechtes bei Kant, Fries und
Nelson, Kantstudien, Sonderheft, 1974, p. 285*.
SOMMAIRE
Dans sa préface à sa Philosophie du droit, Kant affirme qu'il

ne peut y avoir qu'une philosophie vraie sur quelque objet que ce
soit et qu'un seul vrai principe commandant l'essemble de la philo
sophie. Cette unicité en ce qui concerne la philosophie kantienne
du droit crée une sèrie de problèmes auxquels cet article cherche
à répondre: problèmes sur la possibilité elle-mème d'une philo
sophie du droit et sur sa distinction des autres parties de la philo
sophie, problèmes sur son seul point de départ, problèmes sur son
unique ligne de développement et sur son seul but ultime.
L'article examine d'abord comment la philosophie du droit
s'adapte au système de philosophie basé sur les Critiques kan
tiennes et est exigée par lui, et aussi, en conséquence, de quelle
fagon on peut voir en elle les premiers principes métaphysiques
du droit. L'article fait alors une recherche sur son concept fonda
mental de droit, en tant que concept de la raison pratique, et se
demande dans quel sens et pourquoi il peut devenir coercition.
Puisque le concept de droit non moins que le concept éthique,
impose des devoirs moraux, la distinction des devoirs prescrits
par le concept de droit et des devoirs éthiques est examinée, de
méme que le système éthique kantien qui en dérive, développé
sur la base de cette distinction.
Après avoir traité des éléments qui constituent le concept d
droit, l'article considère les problèmes qui naissent de ses déter
minations a priori et des titres de proprieté. Enfin l'article re
cherche comment et pourquoi le concept de droit exige pour sa
réalisation l'idée d'Etat; et comment cette idée a priori et par
suite le concept a priori de droit constituent le dynamisme, la
norme et l'idéal de chaque Etat conerei, de sa constitution et de
ses lois, imposant le devoir de travailler pour une paix universelle
et durable comme représentant le but ultime et la réalisation finale
du concept de droit.

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Kant's philosophy of law

Subversive movements are not a distinguishing mark of

1 Wolfgang Fikentscher, Methoden des Rechts in vergleichender Dar

Pure Reason for Kant to have a philosophy of law? And in

1) Nature of Kant's philosophy of law

2 e.g. Arist., Eth. Nic. E, 1, 1129 b 17; S. Thom. I II 90 a 1-4; Suarez,

ledge (Vernunftserkenntnis) from concepts3. The only other

3 Kritik der Urteilskraft, Erste Einleitung, opening sentence; Meta

Kant calls the philosophy of morals metaphysics

6 Metaphysik der Sitten, Rechtslehre (quoted MdS Rechi) AB III, IV.

fore it has to be given in the intuition of the senses or has

" MAN, A XIV, XV.

It is in respect of the idea of system that the philosophy

15 Kritik der Urteilskraft, Erste Einleitung, XII: Einteilung der Kri

should be the philosophy of morals or of objects of freedom.

18 cf. Hegel, Vorlesungen iiber die Geschichte der Philosophie, I, Suhr

2) Kant's basic concepì of « law »

By the basic concepì of law is meant the notion of law

20 German like the Romance languages distinguishes « law » in the

ing to the norm of an objective rule of necessity. For the

it is consistent with the freedom of ali others according to a

3) Freedom in the concept of « law »

That freedom is the principle constituent of Kant's con

Freedom for Kant is an idea of pure praetical reason. For

There are as well the following difficulties: the freedom

Μ Kritik der praktischen Vernunft, A 58.

as an exercise which is a supra-temporal unity

30 MdS Recht AB 5; Grundlegung zur Met. der Sitten, BA 36; MdS

space to which man is obliged, it will not differ merely as

Μ MdS Recht AB 25.

moral law merely as regards the external action itself is what

37 MdS Tug. A 48.

human « person can be subjected to no other laws that those

ethical differ, bui it is as regards what one is obliged to and

Finally in defìning the just in function of man's freedom

44 Cf. Suarez, De Leg. lib. 1. cap. IV, n. 6: « Est autem de ratione

Nations' Declaration of Human Rights (1948) and the current

4) The just as the enforceable

The notion itself of what is obligatory, of what should be,

definition the enforcement of freedom? But such an enforce

externally enforceable are convertible w

« MdS Recht AB 38.

by the concepì of what is just since without it the possibility

« MdS Rechi A 196, Β 226; Β 170, 171.

derer must be put to death. Even if a state, for example

The external enforcement implying this power of penai

5) The difference between just and ethical duties

For Kant duty is the action to which one is obliged56.

56 MdS Rechi AB 21.

a just duty because it is a duty, making the doing of what

on myself. Hence it is a duty solely of autonomy. Since

basic concepì in his Metaphysics of Morals »63. Trae, in his

® Georg Anderson, Die « Materie » in Kants Tugendlehre und der For

the teleological Power of Judgment the final end (Endzweck)

70 Kritik der Vrteilskraft, Β 399, A 394.

and hence ends in themselves or noumenal ends, and so are

As regards a free action only the end one proposes to

74 MdS Tug. A 20.

the action. Just duties, because they cannot impose an end

75 MdS Tug. A 20, A 54.

sibility of mutuai enforcement according to universal law).

79 MdS Rechi AB 14; MdS Tug. A 28.

si Cf. Mds Rechi AB 15.