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   KANT'S LEGAL POSITIVISM(1)
KANT'S LEGAL POSITIVISM(1)

Jeremy Waldron [FNa1]

Harvard Law Review May 1996

Copyright © 1996 Harvard Law Review Association; Jeremy Waldron

[H]owever well disposed and law-abiding men might be, . . . individual men, peoples, and states can never be secure against violence from one another, since each has its own right to do what seems right and good to it and not to be dependent upon another's opinion about this. So, unless it wants to renounce any concepts of Right, the first thing it has to resolve upon is the principle that it must leave the state of nature, in which each follows its own judgment, unite itself with all others (with which it cannot avoid interacting), subject itself to a public lawful external coercion, and so enter into a condition in which what is to be recognized as belonging to it is determined by law . . . .

Immanuel Kant [FN1]



I. INTRODUCTION
The philosophical writings of Immanuel Kant continue to exert a powerful influence in legal philosophy. In theoretical discussions of criminal law, [FN2] the law of property, [FN3] tort law, [FN4] contract law, [FN5] and many other areas, [FN6] Kant's works are widely regarded as an important source of nonutilitarian ideas about distributive, corrective, and retributive justice.
*1536 Kant's views are controversial, of course. On the one hand, the issues between utilitarians and nonutilitarians remain open, despite the success of John Rawls' revival of 'Kantian' theory; [FN7] on the other hand, communitarians appear to regard Kant as responsible for many of the most serious defects in modern liberal thought. [FN8] Moreover, despite the appeal of abstract slogans about treating people as ends not means, Kant's views on concrete issues are often extreme and disconcerting: he believes that the state has a moral duty, not just a right, to execute murderers; [FN9] he maintains that husbands have a right to force their wives to return if they leave the matrimonial home; [FN10] and he insists, notoriously, that the truth must be told, [FN11] promises kept, and property returned to its rightful owner no matter what the consequences.
Less well known are Kant's views on the philosophical significance of the sort of controversies about justice and rights in which he participated. We are so accustomed to citing him as either an ally or a resource in the presentation of our own theories (or as a beating stick in our critiques of 'Kantianism') that we have neglected his discussion of the extent to which disagreement about justice (even honest disagreement among people of good will) constitutes a problem -- a problem to which positive law (that is, law accepted as authoritative without regard to the justice of its content) is the solution.
This Article attempts to remedy that neglect. Taking as my text the striking passage from Kant's discussion of public law in Metaphysical First Principles of the Doctrine of Right cited at the very beginning of this Article and focusing steadily on what Kant regarded as his work in legal and political philosophy (which is not just the application of his moral philosophy to issues of public concern), I attempt to interpret and, in places, to reconstruct his understanding of disagreement and his argument for the paradoxical claim that each person doing what seems right to him is tantamount to that person's renouncing the concept of right altogether.
My strategy is complicated. I begin, in Part II, by setting out the problem that I want to discuss -- that is, the problem of disagreement about justice and right -- and what I take to be Kant's solution to it -- the authority of positive law -- in terms that make no reference to Kant's writings. My aim is to give readers an initial 'feel' for the *1537 plausibility of the position before embarking on the more tedious business of presenting it as an interpretation of Kant. Then, in Parts III and IV, I consider various reasons why legal scholars who think of themselves as Kantians may have difficulty accepting this position as Kant's view.
After these preliminaries, I proceed to the direct consideration of Kant's arguments. Parts V and VI are the core of the Article. They attempt to answer three questions: why, on Kant's account, should people be expected to disagree about justice; why should disagreement among reasonable people about rights and justice be expected to lead to violent conflict in the absence of positive law; and what exactly is so bad about this sort of conflict from a Kantian point of view? Answering these questions will give us a sense of Kant's distinctive conception of the state of nature -- the situation in which each person does what seems right and good to him -- and of the advantages that accrue when we move from this situation to a civil society governed by positive law. The nature of that move is discussed in Part VII. There I consider Kant's curious combination of social contract theory with the view that we are required to force one another into civil society; I also consider whether, in Kant's view, positive law is subject to any natural-law constraints.
The overall aim of the Article is not to denigrate or undermine the practice of enlisting Kant as an ally in the presentation of our substantive ideas about law and justice. If that practice ever withers away it will be because of the critiques of jurists like Bruce Ackerman and Richard Posner, pleading for us to address issues of legal and constitutional reform directly without cover of philosophical authority. [FN12]
I hope, however, that an exposition of Kant's views on the relationship between positive law and disagreement will make us a little more humble when we present our own substantive proposals. Often the spirit of our normative arguments about justice and rights is 'Here is what I would do, if I ran the country.' But any discussion in jurisprudence and political philosophy must first acknowledge the fact that there are many of us and that we disagree on these matters. It is important, therefore, for theorists to pause occasionally in the elaboration and defense of their own proposals to reflect on the significance of this plurality and to grasp the point that law claims our allegiance in *1538 the circumstance of controversy over the substantive values that it embodies. That proposition can seem scary, for it invites us to compromise our heartfelt advocacy and to share our carefully constructed intellectual world with views about justice that we regard -- perhaps for good reason -- as wrongheaded or iniquitous. It may help in allaying these apprehensions, however, for theorists of justice to realize that, in taking this step, they are not betraying their Kantianism; on the contrary, they are proceeding quite deliberately in the company of Immanuel Kant.


II. LAW AND DISAGREEMENT
How we think about disagreement on matters of public concern will determine how we think about politics, and -- because law is the offspring of politics -- how we think about disagreement will determine, in some measure, how we think about law.
For example, the members of a community may be divided on the question whether a testator should have the power to exclude a surviving child from the enjoyment of his estate. Imagine that some citizens, celebrating testamentary freedom, say that he should -- it is, after all, his property that is passing by his will. Others say that he should not -- once he is dead, the importance of respecting his arbitrary freedom diminishes in comparison to the importance of securing the welfare of his dependents. The issue is a political one not simply because the citizens disagree, for we disagree about all sorts of things -- for instance, the virtues of the modern novel, the causes of the Punic Wars -- on which no political decision is necessary. The issue of testamentary power is a political one because those who disagree on the merits nevertheless agree that the community needs to reach some determinate resolution. Testamentary freedom is not something on which we can agree to differ. Or, rather, we can agree to differ in our opinion s, but it is necessary, all the same, that we arrive at some position on the issue to be upheld and enforced as the community's position on the testamentary powers of property owners.
Because we disagree about which position should stand and be enforced in the name of the community, we need a process -- a political process -- to determine what that position should be. And we need a practice of recording, respecting, and implementing positions of this sort by individuals and agencies acting in the name of the community -- a practice that is resilient in the face of disagreement with the community position on the part of those entrusted with its implementation. If we call the position that is identified as the community's position the law of that community, then the resilience of the practice to which I have just referred is what we mean by the rule of law.
Understood in this way, the rule of law is not simply the principle that officials should apply the law even when it disserves their own<*1539 stretch>interests. It is the principle that an official should enforce the law even when it is in his confident opinion unjust, morally wrong, or misguided as a matter of policy. The enactment of the law in question is evidence of the existence of a view different from his own concerning the law's justice, morality, or desirability. In other words, the law's existence, together with the official's own opinion, indicates moral disagreement in the community. The official's failure to implement the law because he believes that it is unjust, or his decision to do something other than what the law requires because he believes that action would be more just, is tantamount to abandoning the very idea of law -- namely, the very idea of the community taking a position on an issue on which its members disagree. It is a reversion to the situation in which each person acts on his own judgment and does whatever seems right or just to him.
Would this result be such a calamity? It may be, if people's moral judgments are irrational, ill-thought-through, uninformed, or biased. But even assuming that each person does his best to ascertain what is really right or really just, there will still be problems to the extent that different persons arrive (however scrupulously) at different conclusions.
Recall our initial example. A man dies, and at his death, his daughter is in possession of his house. The representative of a local organization for the relief of stray dogs arrives armed with a piece of paper, signed by the decedent (whose signature is reliably verified), purporting to will the property to the organization. The dogs' home representative and his supporters are convinced that this issue is properly a matter of testamentary discretion, and so, in the name of justice and property rights, they seek to gain possession of the house. The daughter and the daughter's friends are equally convinced that her eviction and consequent homelessness would be unjust, and thus, they resist any attempt to effect it. If the community has neglected to take a position on testamentary freedom (or if most citizens ignore whatever position the community has taken when that position conflicts with their own moral view), then force is likely to be used on both sides. Moreover, as far as each party is concerned, that force is being used righteously, in the name of justice.
It is certainly not inappropriate to use force to achieve justice. [FN13] But there is an affront to the idea of justice when force is used by *1540 opposing sides, confrontationally and contradictorily, in justice's name. The point of using force in the name of justice is to assure people of that to which they are entitled. But if force is being used to further contradictory ends, then its connection with assurance is ruptured. In such a situation, force is being used simply to represent the vehemence with which competing opinions about justice are held, and this use of force may well be worse than force not being put to the service of justice at all.
Hence, there is the need for a single, determinate community position on the matter -- one whose enforcement is consistent with the integrity and univocality of justice. Certainly, justice is affronted in another way if the position identified and enforced as that of the community (on, say, testamentary freedom) is morally wrong. But given the inevitable disagreement on that issue and given the symmetry, for all practical purposes, of the rival positions on the matter -- each side is sincere, each side thinks that its view captures what is really just, each side believes that the other is objectively mistaken -- there is no political way in which the prospect of this substantive affront can be precluded. All we can do, politically, for the sake of the integrity of justice is ensure that force is used to uphold one view and one view only -- a view that anyone may readily identify as that of the community, whatever his substantive opinions on the matter. The integrity of justice, then, evokes the concept of positive law and the philosophical doctrine of legal positivism: law must be such that its content and validity can be determined without reproducing the disagreements about rights and justice that it is law's function to supersede.


III. NORMATIVE POSITIVISM
The view that I have outlined is complicated, but I do not expect it to be especially controversial. Versions of it have been part of Western jurisprudence, particularly positivist jurisprudence, since Hobbes. What I expect to be controversial is the claim that this view represents the mature philosophy of law of Immanuel Kant.
That this is Kant's view will surprise those who associate legal positivism with the materialism, and perhaps the moral skepticism, of Hobbes, Hume, Bentham, and Austin. The principle of putting personal moral judgments to one side and submitting instead to the arbitrary contingencies of the powers that be and the laws that happen to exist is usually advocated on the ground that peace and security matter more to each individual than his own convictions about what is really right or really just. In contrast, believing as Kant did that 'if justice goes, there is no longer any value in men's living on the earth,' [FN14] one would certainly be expected to believe also that the conscientious *1541 pursuit of justice matters more than the conflicts and inconveniences that might flow from each individual doing what seems right or just to him.
This contrast, however, between legal positivism and Kantian moralism may be misleading if it is based on an assumption that legal positivism is always an amoral position, a position that eschews all moral judgment. At least three of the theorists just mentioned -- Hobbes, Hume, and Bentham -- adopt a positivist conception of law that is inextricably entangled with the normative part of their political philosophy.
'Normative positivism'? The term sounds like an oxymoron. Surely the claimed virtue of positivist jurisprudence is that it avoids evaluation and describes legal systems as they are, not as they ideally ought to be. [FN15] We need to distinguish, however, between: first, the value judgments that might be required in a nonpositivist jurisprudence to identify some proposition as a valid legal norm; and second, the value judgments that support the positivist position that evaluations of the former type should not be necessary. Hobbes, Bentham, and Hume all offered evaluative arguments of the second type: they argued that it was better for reasons of peace, stability, or predictability if the legality of putative rules of law could be determined by individual citizens without those citizens having to make value judgments of the first type concerning the content of the putative norms. [FN16]
To present Kant as a legal positivist is thus not to neglect Kant the moralizer or Kant the theorist of value and right. Instead, it is a matter of showing why -- that is, on what evaluative grounds -- Kant defended the idea of positive laws -- that is, laws that people could identify as such whatever their particular moral views.


IV. THE USES OF KANT
Still, the association of Kant and legal positivism is disconcerting. Kant's philosophy is associated with several positions in modern legal *1542 theory, none of which amount to the positivist thesis that I would like to explore.
In his preface to a Columbia Law Review symposium on Kantian Legal Theory [FN17] (a symposium in which, by the way, there is no trace of Kant's view as expressed in the quotation that begins this Article), George Fletcher associates Kantianism with the recent effort by 'a large group of scholars in American and Canadian law schools . . . to ground legal principles in sound, nonutilitarian values.' [FN18] The work of John Rawls, for example, has had a tremendous influence on mainstream, normative theory, and Rawls himself for a long time regarded his theory as Kantian, both in spirit and content. [FN19] The systematic character of Rawls' approach gave scholars confidence that normative theory (as opposed to a series of normative pronouncements) is possible, and the contractarian device of 'the original position' -- itself directly Kantian in its provenance [FN20] -- provides a valuable way of evaluating differences in people's conceptions of the general good.
In fact, Fletcher and many of his cosymposiasts believe that, in making a detailed, normative argument about law, we might do better to look at Kant without a Rawlsian filter. We might do better, that is, to look directly at Kant's views on property, contract, family relations, and criminal law, in which, for various reasons, 'he offers us more than does Rawls in his challenge to conventional views about the basic institutions of the law.' [FN21]
Each of these views implies that Kant's contribution to legal philosophy is primarily a contribution -- either in general or in detail, in form or in substance -- to the 'normative' enterprise of discussing what the law ought to be. So far, that conception of Kant is perfectly compatible with a positivist jurisprudence (just as Bentham's utilitarian reformism is compatible with his view that, formally and structurally, the law ought to be such that a person can ascertain what the law is without having to engage in moral reasoning). The sense that Kant's philosophy is at odds with legal positivism comes from two other sources.
*1543 In modern discussions of law and the U.S. Constitution, to identify someone as a Kantian is to say that he thinks there are ways of figuring out what is really just and what rights we really have -- ways that are modes of moral reasoning and that do not leave us at either the mercy of what a legislature has decided or what happened to occur to a contingent set of constitution Framers in Philadelphia in 1787. Thus, Bruce Ackerman describes a group of his colleagues whom he refers to as 'rights foundationalists':
When . . . violations [ of rights] occur, the foundationalist demands judicial intervention despite the breach of democratic principle. Rights trump democracy -- provided, of course, that they're the Right rights.
And there's the rub. Indeed, it is their anxiety over the arbitrary definition of rights that induces thoughtful foundationalists to recur to great philosophers like Kant and Locke . . . . If judges are to avoid arbitrariness in defining fundamental rights, shouldn't they take advantage of the most profound reflections on the subject available in the Western tradition? [FN22]
Whereas Ackerman has the foundationalists offering Kantian reasoning as the prototype for judicial reasoning, Ronald Dworkin takes the position a step further and offers foundationalist reasoning to citizens as well as to judges. Dworkin argues that, in a society like ours, citizens are entitled to form and to act upon the judgment that they have certain fundamental rights, even when the highest competent court has rejected such rights. [FN23] Dworkin bases his own substantive account of the rights that we have more on values of equality than on Kantian notions of dignity and autonomy. [FN24] Still, the form of his position is widely regarded as an extreme version of Kantianism -- what is right and just is determined in the first instance by moral reasoning, and in the final analysis, such moral reasoning 'trumps' the contingent decisions of courts as well as majoritarian legislatures.
If modern jurists view Kant as either a normative law reformer or a champion of rights-as-trumps, a generation of students in political theory have come to see him through the eyes of Robert Paul Wolff as a thinker skeptical of all claims to legal authority, a thinker who insists instead on the integrity of individual moral judgment over the arbitrary contingencies of positive law. [FN25] Wolff took the concept of autonomy presented in Kant's moral philosophy [FN26] and presented it as a matter of duty: 'Every man who possesses both free will and reason *1544 has an obligation to take responsibility for his actions . . . .' [FN27] Taking responsibility, he wrote, means figuring out for oneself what one ought to do. The responsible person 'may listen to the advice of others, but he makes it his own by determining for himself whether it is good advice.' [FN28] He never does what another tells him because he has been told to do it, and in that sense, he is never subject to the will of another: 'For the autonomous man, there is no such thing, strictly speaking, as a command.' [FN29] Because submission to legal authority involves doing certain things just because the legislature tells you, it seems to follow that the burden of Kantian autonomy is that we are required, on principle, to reject legal authority -- to become, in a word, anarchists. [FN30]
Those brought up to accept this as Kant's position will, I fear, be quite surprised to find him saying -- in the writings that I discuss -- that the biggest problem in the state of nature is people trying to figure out rights and justice for themselves -- in other words, people exercising the virtue of autonomy in Wolff's sense -- and that, in fact, one's primary duty is to leave the state of nature as soon as possible and embrace what appear to be the decidedly heteronomous obligations of civil law.
It is well known, of course, that Wolff's inference from Kantian autonomy to anarchy stumbles on the stubborn fact of Kant's own authoritarianism in politics. [FN31] Kant maintained that defiance of the legislature 'is the greatest and most punishable crime in a commonwealth, for it destroys its very foundations.' [FN32] Citizens should complain about injustice by writing letters and pamphlets -- 'freedom of *1545 the pen' must not be denied [FN33] -- but they must completely dissociate their complaints from any thought of disobedience. The moral requirement of obedience to actually existing law, Kant concluded, is ' absolute.' [FN34] This is hardly the language of one who believes that 'philosophical anarchism [is] the only reasonable political belief for an enlightened man' [FN35] nor of one who believes that citizens may second-guess the legislature or the courts and follow their own consciences on matters of right and justice.
We could perhaps dismiss this authoritarianism as an artifact of Kant's waning intellectual powers in the 1790s. All of the essays that constitute Kant's political philosophy date from his declining years, during which, as Hannah Arendt puts it, 'the decrease of his mental faculties, which finally led into senile imbecility, is a matter of fact.' [FN36] It would be wrong, however, to take that tack -- to dismiss the authoritarianism as a senile aberration that is unconnected to the glories of the Critical Philosophy -- until we are sure that there is nothing to be made of it, nothing to be said for it, nothing in the arguments with which Kant defended it that might be of value to us in our own jurisprudence.


V. KANTIAN CONFLICT
The premise of Kant's account is that, in the absence of legal authority, we must expect that individuals will disagree about right and justice and that this disagreement will lead to violent conflict. The task of the legislator is to put an end to this conflict by replacing individual judgments with the authoritative determinations of positive law.
Stated in this way, Kant's position is reminiscent of that of Thomas Hobbes: individuals fight in the state of nature, and the consequent war of all against all can only cease when people submit to a unitary sovereign. [FN37] The propensity of individuals to make judgments of value does not mitigate Hobbesian conflict. On the contrary, value judgments are directly implicated in the struggle for survival:
[W]hatsoever is the object of any mans Appetite or Desire; that is it, which he for his part calleth Good: And the object of his Hate, and Aversion, Evill; And of his Contempt, Vile and Inconsiderable. For *1546 these words of Good, Evill, and Contemptible, are ever used with relation to the person that useth them: There being nothing simply and absolutely so; nor any common Rule of Good and Evill, to be taken from the nature of the objects themselves . . . . [FN38]
This means that people's private judgments on matters of right and justice are likely to be both contrary to one another and taken seriously enough to be fought over. Indeed, for Hobbes there is a single explanation for both these observations: private judgments on matters of right and justice arise out of the exigencies of individual survival, and the circumstances of human life are such as to provoke anxiety and competition. [FN39]
This explanation will not do for Kant. Moral judgments of good and evil, right and justice, are not driven by material interest or the exigencies of survival in Kant's world. Yet Kant, just like Hobbes, thinks of the state of nature -- the situation 'before external legislation endowed with power appears ' [FN40] -- as a condition of violence. Kant's state of nature is not necessarily asocial, however. Like Locke, [FN41] Kant believes that there can be 'conjugal, paternal, domestic societies' in the state of nature, [FN42] which, if we interpret the state-of-nature idea hypothetically, means that social units of this type do not rely on coercive, external law for their existence. Indeed, as we shall see, Kant is only interested in those places in the state of nature where numbers of men live unavoidably 'side by side' with each other. [FN43] But though it may be sociable, the state of nature, according to Kant, is a situation in which people have a 'tendency to attack one another' and to do so in the name of justice. [FN44]
Unlike Hobbes, Kant does not attribute this antagonism to the contingencies of men's appetites and anxieties. Instead, Kant explains this conflict without resorting to the quality of our motivations:
It is not experience from which we learn of men's maxim of violence and of their malevolent tendency to attack one another before external legislation endowed with power appears. It is therefore not some fact that makes coercion through public law necessary. On the contrary, however *1547 well disposed and law-abiding men might be, it still lies a priori in the rational Idea of such a condition . . . that before a public lawful condition is established, individual men, peoples, and states can never be secure against violence from one another, since each has its own right to do what seems right and good to it and not to be dependent upon another's opinion about this. [FN45]
I am not saying that Kant adopts a Rousseauian view of the nobility of natural man in this passage. For Kant, the potential for violent conflict and thus the case for positive law is supposed to survive any realistic assumption that we might make about human nature. [FN46] (If Kant did not adopt this strategy, he would have said nothing to show someone convinced of his own rectitude that it is nevertheless wrong to assert his individual judgment of right against the positive law of the community.) Even if men are angels, they are opinionated angels, and they hold (or there is a strong probability that they hold) conflicting views about justice for which they are prepared to fight.
So -- lacking a Hobbesian explanation -- we have to look for different, distinctively Kantian answers to the questions raised earlier: [FN47] what explains moral disagreement, and given disagreement, why should people be expected to fight for their respective opinions?


A. What Explains Moral Disagreement?
Insistence on diversity of opinion concerning matters of right is not a position commonly associated with Kant's moral philosophy. Kant is the theorist of the categorical simplicity of duty -- the still, small voice that cuts through the tangled calculus of self-interest:
The concept of duty in its complete purity is incomparably simpler, clearer and more natural and easily comprehensible to everyone than any motive derived from, combined with, or influenced by happiness . . . . [T]he concept of duty, if it is presented to the exclusive judgement of even the most ordinary human reason, and confronts the human will separately and in actual opposition to other motives, is far more powerful, incisive and likely to promote success than all incentives borrowed from the latter selfish principle. [FN48]
One possible way to reconcile the clarity of duty with the likely existence of moral disagreement is to stress that, in passages like the one just quoted, Kant is talking about the concept of duty as opposed to the detailed conception of duty that is needed to generate a determinate *1548 set of rights. [FN49] By itself, though, the concept/conception distinction does not solve our problem. In the Grounding for the Metaphysics of Morals, Kant rejects the notion of happiness as a basis for morality, not because the concept of happiness is unclear, but precisely because no one can agree in detail about what constitutes happiness. [FN50] If right and justice were similarly contestable, then they would seem to be similarly inadequate as a basis for public morality.
Actually, the situation with happiness is a bit more complicated than this description suggests. First, the indeterminacy of happiness is not just interpersonal. Kant says, 'unfortunately, the concept of happiness is such an indeterminate one that even though everyone wishes to attain happiness, yet he can never say definitely and consistently what it is that he really wishes and wills.' [FN51] Secondly, Kant accepts ab initio that happiness is essentially a private matter: 'No-one can compel me to be happy in accordance with his conception of the welfare of others, for each may seek his happiness in whatever way he sees fit' provided that it is compatible with the similar right of others. [FN52] We can therefore afford (and should expect) to have disagreement about happiness. Justice and right, however, are the things about which we must agree if individuals are to pursue their own conceptions of happiness. We cannot afford to have disagreement about right and justice -- after all, that is the general tenor of the argument under consideration. So there is a question about why, nevertheless, on Kant's account we do?
The main subject matter of justice and right in Kant's political philosophy is property -- the possession and use of external material resources. [FN53] For Kant, the concept of property, and the allied concepts of empirical and intelligible possession, are amenable to philosophical exposition. (He expounds them in the first seventeen paragraphs of the Metaphysical First Principles of the Doctrine of Right. [FN54]) I will not bore the reader with the details; it is enough to say that, although the exposition is terribly convoluted, Kant does not indicate that he thinks the complexities of these concepts are the source of the disagreements we are trying to explain.
Kant makes pretty clear, however, that the concepts he develops are likely to involve considerable difficulty and controversy in their applications. In a state of nature, to have property along Lockean *1549 lines or anything like it, people's rightful holdings would have to be based on a principle such as first occupancy. [FN55] But occupancy, which Kant interprets to mean 'taking control,' [FN56] is quite indeterminate: how do we correlate one's acts of control with an exact extent of land controlled? [FN57] Besides, the question of how much exactly one comes to own when one takes control of a piece of land will be bound up in part with one's sense of the effect of one's action on others' situations. But it may be unclear how many others there are, or it may be a matter of dispute how many of all the others there are (everywhere) one is supposed to take into account. [FN58]
Inevitably, disputes will also arise about who is (or who was) the first occupant of a piece of land. That prospect is more or less unavoidable, given Kant's account of appropriation. To appropriate X is not only to take X under one's physical control, but to do so in a way such that one's right in X will be violated if, subsequently, another person uses or encroaches upon X even while the initial appropriator is not actually in physical control of X. [FN59] In the state of nature, however, if one appropriates a piece of land and then wanders off, how is another to know whether the land has already been appropriated or is still available for first occupancy? (This problem is particularly acute in a theory like Kant's that does not insist on any mark of occupancy, such as labor. [FN60])

[FNa1]. Professor of Law and Philosophy, Jurisprudence and Social Policy Program, Boalt Hall School of Law, University of California at Berkeley. B.A. (Hons.) 1974, LL.B. (Hons.) 1978, University of Otago, New Zealand; M.A. 1980, D.Phil. 1986, University of Oxford. This Article is dedicated to the memory of the Reverend Harry Thornton; it has been more than twenty years since he urged me to make a study of Kant's jurisprudence. I am grateful to my students Joao Rosasz and Edmee Tuyl for many conversations about the issues raised here. Earlier versions of this Article were presented at workshops at McGill Law School, Harvard University's Government Department, Columbia Law School, and the University of Cambridge. I would like to thank all the participants for their comments. Finally, I am especially grateful to Thomas Pogge for several searching discussions on these themes.

[FN1]. Immanuel Kant, Metaphysical First Principles of the Doctrine of Right, in The Metaphysics of Morals 33, s 44, at 124 [Ak. 312] (Mary Gregor trans., Cambridge Univ. Press 1991) (1797).

[FN2]. See, e.g., Jeffrie G. Murphy, Does Kant Have a Theory of Punishment?, 87 Colum. L. Rev. 509 passim (1987).

[FN3]. See, e.g., Stephen R. Munzer, Kant and Property Rights in Body Parts, 6 Canadian J.L. & Jurisprudence 319 passim (1993).

[FN4]. See, e.g., Ernest J. Weinrib, Understanding Tort Law, 23 Val. U. L. Rev. 485, 525-26 (1989); Ernest J. Weinrib, The Case for a Duty to Rescue, 90 Yale L.J. 247, 266-67 (1980).

[FN5]. See, e.g., Charles Fried, Contract as Promise 7-17 (1981).

[FN6]. See, e.g., David A.J. Richards, Sex, Drugs, Death and the Law: An Essay on Human Rights and Overcriminalization 9 (1982); Robert F. Housman, A Kantian Approach to Trade and the Environment, 49 Wash. & Lee L. Rev. 1373 passim (1992).

[FN7]. See John Rawls, A Theory of Justice 251-57 (1971). For vigorous restatements of utilitarian theory since 1971, see Robert E. Goodin, Utilitarianism as a Public Philosophy passim (1995); R.M. Hare, Moral Thinking: Its Levels, Method and Point passim (1981).

[FN8]. See, e.g., Michael J. Sandel, Liberalism and the Limits of Justice 1 (1982).

[FN9]. See Kant, supra note 1, s 49, at 143 [Ak. 334].

[FN10]. See id. s 25, at 97 [Ak. 278].

[FN11]. See Immanuel Kant, On a Supposed Right to Lie from Altruistic Motives, reprinted in Critique of Practical Reason and Other Writings in Moral Philosophy 346, 347 48 (Lewis W. Beck ed. & trans., 1949).

[FN12]. According to Bruce Ackerman, '[t]o discover the Constitution, we must approach it without the assistance of guides imported from another time and place. Neither Aristotle nor Cicero, Montesquieu nor Locke, Harrington nor Hume, Kant nor Weber will provide the key.' I Bruce Ackerman, We the People: Foundations 3 (1991). Similarly, Richard Posner argues:
We ask not whether the economic approach to law is adequately grounded in the ethics of Kant or Rawls or Bentham or Mill or Hayek or Nozick -- and not whether any of those ethics is adequately grounded -- but whether it is the best approach for the contemporary American legal system to follow, given what we know about markets, ... about American legislatures, about American judges, and about the values of the American people.
Richard A. Posner, Overcoming Law 403-04 (1995).

[FN13]. One of the ways in which we delineate the domain of rights and justice from the rest of morality is that rights and justice may properly be enforced. See H.L.A. Hart, Are There Any Natural Rights?, 64 Phil. Rev. 175, 178 (1955), reprinted in Theories of Rights 77, 79-80 (Jeremy Waldron ed., 1984). Hart writes:
The most important common characteristic of this group of moral concepts is that there is no incongruity, but a special congruity in the use of force or the threat of force to secure that what is just or fair or someone's right to have done shall in fact be done; for it is in just these circumstances that coercion of another human being is legitimate.
Id.

[FN14]. Kant, supra note 1, s 49(E)(I), at 141 [Ak. 332].

[FN15]. See Jules L. Coleman, Negative and Positive Positivism, 11 J. Legal Stud. 139, 147 (1982). Coleman states:
Legal positivism makes a conceptual or analytic claim about law, and that claim should not be confused with programmatic or normative interests certain positivists, especially Bentham, might have had. Ironically, to hold otherwise is to build into the conceptual account of law a particular normative theory of law; it is to infuse morality, or the way the law ought to be, into the concept of law (or the account of the way law is).
Id.

[FN16]. Cf. Joseph Raz, The Problem About the Nature of Law, 21 U.W. Ontario L. Rev. 203, 217-18 (1983) ('The [positivist] doctrine of the nature of law yields a test for identifying law the use of which requires no resort to moral or any other evaluative argument. But it does not follow that one can defend the doctrine of the nature of law itself without using evaluative ... arguments.'). For a more detailed discussion on this point, see Gerald J. Postema, Bentham and the Common Law Tradition 328-36 (1986).

[FN17]. Symposium on Kantian Legal Theory, 87 Colum. L. Rev. 419 (1987).

[FN18]. George P. Fletcher, Why Kant, 87 Colum. L. Rev. 421, 428 (1987).

[FN19]. See Rawls, supra note 7, at viii, 251-57 ('The theory that results is highly Kantian in nature.'); John Rawls, Kantian Constructivism in Moral Theory, 77 J. Phil. 515, 515 (1980). Rawls no longer characterizes his theory of justice in this way; Kant's theory, in Rawls's terms, is a 'comprehensive' moral and philosophical view, which is inappropriate as a basis for public justification in a society characterized by a plurality of such comprehensive views. See John Rawls, Political Liberalism 99-107 (1993) [[[hereinafter Rawls, Political Liberalism].

[FN20]. See Immanuel Kant, On the Common Saying: 'This May Be True in Theory, But It Does Not Apply in Practice', reprinted in Kant: Political Writings 61, 79 (Hans Reiss ed. & H.B. Nisbet trans., 2d ed. 1991). For Rawls' description of the 'original position,' see Rawls, cited above in note 7, at 17-22.

[FN21]. Fletcher, supra note 18, at 429.

[FN22]. I Ackerman, supra note 12, at 12.

[FN23]. See Ronald Dworkin, Takings Rights Seriously 211, 214-16 (1977).

[FN24]. See id. at 198-99.

[FN25]. See Robert P. Wolff, In Defense of Anarchism 12-19 (1970).

[FN26]. See, e.g., Immanuel Kant, Grounding for the Metaphysics of Morals 44-45 [Ak. 440] (James W. Ellington trans., Hackett Publishing Co. 1981) (1785).

[FN27]. Wolff, supra note 25, at 13. Some of Kant's own language would seem to support this view: '[T]hat the ... principle of autonomy is the sole principle of morals can quite well be shown by mere analysis of the concepts of morality; for thereby the principle of morals is found to be necessarily a categorical imperative, which commands nothing more nor less than this very autonomy.' Kant, supra note 26, at 45 [Ak. 440]. Compare, however, the following view: 'Since Kant did not say that we have a duty to be autonomous, he would not support Wolff's politics either.' Patrick Riley, Kant's Political Philosophy 147 (1983).

[FN28]. Wolff, supra note 25, at 13.

[FN29]. Id. at 15. Of course, the result of one's own moral deliberations will present itself in the Kantian scheme of things as an 'imperative' -- that is, the will dictating to the inclinations. See Kant, supra note 26, at 24-27 [Ak. 413-18].

[FN30]. See Wolff, supra note 25, at 18. Wolff writes:
Insofar as a man fulfills his obligation to make himself the author of his decisions, he will resist the state's claim to have authority over him. That is to say, he will deny that he has a duty to obey the laws of the state simply because they are the laws. In that sense, it would seem that anarchism is the only political doctrine consistent with the virtue of autonomy.
Id.

[FN31]. For a discussion of Kant's authoritarianism, see Jeffrie G. Murphy, Kant: The Philosophy of Right 113-40 (1970).

[FN32]. Kant, supra note 20, reprinted in Kant: Political Writings, supra note 20, at 81.

[FN33]. Id., reprinted in Kant: Political Writings, supra note 20, at 85 (emphasis omitted); see also Immanuel Kant, An Answer to the Question: 'What is Enlightenment?', reprinted in Kant: Political Writings, supra note 20, at 54, 55-56 (asserting the individual's right to criticize public institutions).

[FN34]. See Kant, supra note 20, reprinted in Kant: Political Writings, supra note 20, at 81.

[FN35]. Wolff, supra note 25, at 19.

[FN36]. Hannah Arendt, Lectures on Kant's Political Philosophy 9 (Ronald Beiner ed., 1982).

[FN37]. See Thomas Hobbes, Leviathan 86-90, 117-21 (Richard Tuck ed., Cambridge Univ. Press 1991) (1651).

[FN38]. Id. at 39.

[FN39]. See id. at 70-71, 87-88. Elsewhere, Hobbes states:
[T]he most frequent reason why men desire to hurt each other, ariseth hence, that many men at the same time have an Appetite to the same thing; which yet very often they can neither enjoy in common, nor yet divide it; whence it followes that the strongest must have it, and who is strongest must be decided by the Sword.
Thomas Hobbes, De Cive 46 (Howard Warrender ed., Oxford Univ. Press 1983) (1642).

[FN40]. Kant, supra note 1, s 44, at 123 [Ak. 312].

[FN41]. See John Locke, Two Treatises of Government bk. II, s 77, at 319 (Peter Laslett ed., student ed., Cambridge Univ. Press 1988) (3d ed. 1698) ('The first Society was between Man and Wife; which gave beginning to that between Parents and Children; to which, in time, that between Master and Servant came to be added ....').

[FN42]. Kant, supra note 1, s 41, at 121 [Ak. 306].

[FN43]. Id. s 42, at 121 [Ak. 307].

[FN44]. Id. s 44, at 123-24 [Ak. 312].

[FN45]. Id.

[FN46]. Kant is at one with David Hume here. See Howard Williams, Kant's Political Philosophy 167-69 (1983). Hume writes: 'The question ... concerning the wickedness or goodness of human nature, enters not in the least into that other question concerning the origin of society ....' David Hume, A Treatise of Human Nature 492 (L.A. Selby-Bigge ed., Oxford Univ. Press 2d ed. 1978) (1739).

[FN47]. See supra p. 1546.

[FN48]. Kant, supra note 20, reprinted in Kant: Political Writings, supra note 20, at 70.

[FN49]. For a greater explication of the concept/conception distinction, see Rawls, cited above in note 7, at 5, and Dworkin, cited above in note 23, at 134-36.

[FN50]. See Kant, supra note 26, at 27-28 [Ak. 418-19].

[FN51]. Id. at 27 [Ak. 418].

[FN52]. Kant, supra note 20, reprinted in Kant: Political Writings, supra note 20, at 74.

[FN53]. Kant, like Hobbes, regarded property as the thread to tug in order to unravel the mysteries of political philosophy. See Hobbes, supra note 39, at 27 ('[M]y first enquiry was to be, from whence it proceeded, that any man should call any thing rather his Owne, th[a]n another mans.').

[FN54]. See Kant, supra note 1, ss 1-17, at 68-90 [Ak. 245-70].

[FN55]. See id. s 10, at 81 [Ak. 259]. Kant rejects the Lockean view that, in the case of land, what is needed is a particular mode of occupancy -- labor, and more specifically, for land, cultivation -- and he rejects the corresponding plantation ideology that cultivators are entitled to dispossess hunters or nomads. See id. s 15, at 86 [Ak. 265-66]. Kant also condemns the expropriation of native peoples in Africa and America. See id. s 62, at 159 [Ak. 353].

[FN56]. Id. s 14, at 84 [Ak. 263] (emphasis omitted).

[FN57]. See id. s 15, at 87 [Ak. 266] ('The indeterminacy, with respect to quantity as well as quality, of the external object that can be acquired makes this problem (of the sole, original external acquisition) the hardest of all to solve.').

[FN58]. The potential uncertainty derives from the 'Lockean proviso,' which states that an acquisition is justified only if 'enough, and as good' is left for others, Locke, supra note 41, at bk. II, s 27, at 288, or in weaker versions, only if others' situations are not worsened thereby, see Robert Nozick, Anarchy, State, and Utopia 174-82 (1974). Note that the differences between Kant and Locke on mode of acquisition do not affect the logic of the Lockean proviso; it applies to any theory of unilateral acquisition. See Jeremy Waldron, The Right to Private Property 280-83 (1988).

[FN59]. See Kant, supra note 1, s 1, at 68 [Ak. 245] ('[S]omething external would be mine only if I may assume that I could be wronged by another's use of a thing even though I am not in possession of it.').

[FN60]. See id. s 17, at 89 [Ak. 268]; see also Immanuel Kant, Explanatory Remarks on The Metaphysical First Principles of the Doctrine of Right, in The Metaphysics of Morals, supra note 1, at 163, s 6, at 169-71 [Ak. 364-65] (describing the tension between the principle of first occupancy and the principle of adverse possession and stating that 'the question is whether I can also assert that I am the owner even if someone should come forward claiming to be the earlier true owner of the thing, but whether it was absolutely impossible to learn of his existence as its possessor').

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