KANT'S LEGAL POSITIVISM（2）
KANT'S LEGAL POSITIVISM（2）
*1550 Notice that these difficulties of application are not matters on which reason offers no guidance or matters to be settled by arbitrary stipulation, like the rule about which side of the road to drive on. [FN61] Surely, of two people wrestling for control of a piece of land, one or the other was in fact the first occupant; surely, there is a right answer to the question of whether someone, in violation of the Lockean proviso, has taken more than his share. Moreover, the fact that people think there is a right answer will likely inspire each party to struggle vehemently for his view of the matter; in contrast, nobody fights very hard over questions like which side of the road to drive on. The trouble with the application of acquisition principles is not that, in theory, no right answers exist, but that there is no basis common to the parties for determining which answers are right.
Kant does not explicitly embrace this account of the sources of indeterminacy, nor does he explicitly link this analysis of property and first occupancy to his notion that people are at odds with one another because each person goes around doing what seems right and good to him. But it is a plausible interpretation. [FN62] It is well known in the tradition of thought about property that the principle of first occupancy runs into just these difficulties, and that there is no clearly discernible method of preventing such disputes from giving rise to disagreements about who has the right to what, at least in a state of nature.
We, of course, might also want to mention other sources of disagreement that go to the substantive principles of justice or right, not *1551 merely their empirical application. Kant disagrees with Locke's 'labor theory' of acquisition, and both of them disagree with Rousseau on the initial desirability of appropriation. [FN63] Similarly, in our day, every political philosopher has his own theory of justice, and we revel in the fact that no two theories are the same. Yet, I have found it very difficult to persuade colleagues to reproduce or even to recognize, within their philosophical theories of politics, the existence and significance of the controversies that engage them as political philosophers. [FN64] People write about rights, for example, and the appropriate constitutional structure for their implementation as if there were only one theory of rights to accommodate within that structure (their own) and as if their own disagreements with their colleagues down the hall did not indicate that a constitution would have to house (that is, provide a framework for disagreement among) several conceptions of rights. [FN65] Even John Rawls, whose latest work in political philosophy develops and incorporates a powerful account of the sources of reasonable, or good faith, disagreement, [FN66] orients his analysis mainly toward philosophical disagreement about the good. He shows little interest in considering its application to disagreements about the right and about justice, even though it is arguable that disagreements about these two matters have the same or similar sources as disagreement about the good.
*1552 Perhaps we fear that dwelling too much on the significance of moral disagreement is tantamount to admitting that there are no right answers in the realm of justice and rights. In recent metaethics, the existence of diversity of opinion has sometimes been adduced as a ground for subjectivism. [FN67] The inference is fallacious, however. A diversity of opinion in astronomy does not undermine the proposition that there are objective right answers to various questions about dark matter and other topics; likewise, a diversity of opinion about justice should not undermine our view that there are right answers in that realm as well. [FN68] What moral disagreement might undermine, however, is our confidence that the right answer can be discerned (from among all the views that are put forward) in any way that is politically dispositive. [FN69]
One further point about disagreement warrants discussion. In her Lectures on Kant's Political Philosophy, Hannah Arendt laid great stress on Kant's claim that thinking is something that we must do together and is not something that individuals can do well alone. [FN70] To the proposition that freedom of thought might survive the suppression of freedom of speech, Kant responds: 'But how much and how accurately would we think if we did not think, so to speak, in community with others to whom we communicate our thoughts and who communicate their thoughts to us!' [FN71] Although enlightenment for Kant means thinking for oneself, [FN72] one is only thinking for oneself when one exposes one's views to 'the test of free and open examination.' [FN73] From this perspective, it is quite likely that individuals, in the state of nature trying to figure out principles of right and justice, will come up with partial or one-sided, and thus, antagonistic, views. These views *1553 would benefit from the ' public use of man's reason' that is available only in civil society. [FN74]
Kant's answer, then, to our first question -- what explains the existence of moral disagreement? -- appeals in the first instance to the practical difficulties that stand in the way of any uncontroversial application of principles of justice governing the initial acquisition of property. But once we see this potential for disagreement at the level of application, I believe that we must also face the prospect of more general theoretical disagreement about the contents of the principles themselves. As I have emphasized, it is certainly our experience that widespread observance of scrupulous standards for philosophical thinking is no barrier at all to the emergence of a diversity of conflicting theories and principles. And there is, I believe, no reason to think that things were any different among moral and political philosophers in Kant's day.
B. Why Would Disagreement over Principle or Application Lead to Violence in the
State of Nature?
At some points, Kant explains the likelihood of fighting in the state of nature without necessarily assuming that each of the fighters believes he has right on his side:
No one is bound to refrain from encroaching on what another possesses if the other gives him no equal assurance that he will observe the same restraint toward him. No one, therefore, need wait until he has learned by bitter experience of the other's contrary disposition; for what should bind him to wait till he has suffered a loss before he becomes prudent, when he can quite well perceive within himself the inclination of men generally . . . (not to respect the superiority of the rights of others when they feel superior to them in strength or cunning)? [FN75]
Kant's position here is not much different from that of Hobbes, who conditioned any sort of modest or reasonable behavior by individuals in the state of nature on some assurance of security from others. [FN76] For both philosophers, apart from such assurances, we may do whatever we think necessary to promote our personal interests: 'men do one another no wrong at all when they feud among themselves.' [FN77]
The more interesting answer to our question, however, assumes that the parties are acting on principle, that is, that they each believe that justice is on their side. Why, on this assumption, would they fight? A number of different answers can be given.
*1554 First, and most obviously, the issues likely to be in dispute -- the extent of property rights -- are issues that matter to people. The material necessities of life are moderately scarce. [FN78] Even if our opinions about right and wrong in the state of nature are not merely the reflex of our survivalist impulses (as Hobbes thought [FN79]), still the opinions are shaped by the conditions of our survival. One who believes that he is entitled to use a certain resource holds not just an academic view in moral philosophy, but also a moral view about the basis on which his life is sustained.
Another way of putting this thought is that we cannot afford to postpone the appropriation and use of material, external resources until consensus is reached on matters of justice. Kant has his own version of John Locke's dictum that '[i]f such a consent as that was necessary, Man had starved, notwithstanding the Plenty God had given him.' [FN80] Useful things, Kant postulates, must be able to be used; [FN81] people must be able to make at least provisional acquisitions of external resources even if there is no state to ratify their actions. [FN82] But given that people are likely to disagree about the principles governing acquisition and are certain to disagree about their application, we may expect that, in many cases, more than one person will claim the same thing. The material urgency that necessitates provisional acquisition in the first place is likely to preclude any gentle, bilateral withdrawal or moderation of the competing claims.
Secondly, the claims of justice that accompany conflicting acquisitions are not just urgent in a material sense; they are likely to be vehement in their moral tone as well. Kant sees this vehemence -- the tendency to insist on the righteousness of one's own way of viewing right and wrong -- as a general characteristic of man's 'unsocial sociability.' [FN83] Even the mere existence of another person, trying to figure things out morally, is a standing affront to a given individual, because as Kant puts it, the latter person 'encounters in himself the unsocial characteristic of wanting to direct everything in accordance with his own ideas.' [FN84]
A third point addresses directly the role of force in all of this. We are not talking about people fighting or killing one another over whether to apply the categorical imperative. The issues of right and *1555 justice deal morally with matters that already concern the extent to which one person's external actions affect the external freedom of others. The very subject on which these individuals are tussling is the interplay of forces -- crudely stated, who should give way when bodies collide. To hold a view about justice or right, according to Kant, is to identify those situations in which one may physically counter another's act of force. Physical coercion is justified as a 'negation of the negation' whenever it is used against an action that wrongfully hinders or interferes with someone else's external freedom. [FN85] As Kant sees it, if people disagree about which actions wrongfully hinder freedom and which ones do not, then they disagree about the occasions on which force may be used.
All three of these points elaborate, in different ways, Kant's assumption that the problems in the state of nature apply only to people who 'cannot avoid living side by side with all others.' [FN86] For Kant, proximity to others is, in Rawls' language, one of 'the circumstances of justice.' [FN87] If humans were widely dispersed across the face of the earth and rarely encountered one another, then there would be no need for a civil system of right or law because no one's external actions would impinge anyone else's freedom and no one would compete for the use of external resources. [FN88]
This view gives Kant an interesting basis for thinking about the individuation and territorialization of states. Assume that the population of the earth is not uniformly dense but instead is distributed in clusters (for example, in fertile environments). In all likelihood, we will have our most frequent or densest patterns of interaction and therefore greatest chance of quarrels with those who are physically closest to us; such quarrels will center particularly on the resources that led a bunch of us to cluster in a given, propitious environment in the first place. We may have occasional dealings with people from other places, but those of us who are clustered together here will recognize that we have to solve our problems with regard to these resources and thereby come to terms with those who are near us, whatever other accommodations we may make with those who are *1556 distant from us. The requirement that we reach agreement with those who are clustered in our particular territory forms the basis for a local, territorialized legal system. [FN89]
What I have just outlined may seem at odds with how Kant treats 'cosmopolitan Right' -- the theory that we share the earth with all others and are, in some sense, in natural community with them. [FN90] Kant's position, however, is best understood to indicate the provisional and essentially inter partes character of the laws that rule the members of a particular cluster. [FN91] His cosmopolitan internationalism derives from a sense that we are gradually coming closer and closer to all others on earth; [FN92] however, because we are already side-by-side with some others, the establishment of particular legal systems in particular places has particular urgency.
VI. CONFLICT AS MORAL CALAMITY
From a Kantian point of view, it is not enough to say that a state of nature in which each person acted on (and fought for) his own judgment of justice would be violent and thus unpleasant. For just as Kant does not want to rest the likelihood of violence on any contingent premise about human motivation, [FN93] so too he does not want to base his judgment of the unacceptability of such violence on any assumption about what we would or would not enjoy. What, then, can we say goes wrong -- from a Kantian perspective -- when people act forcefully but unilaterally on their own, different conceptions of what justice and right require? The answer to this question will lay the foundation for Kant's case in favor of positive law. [FN94]
*1557 We can glean a number of arguments from the Metaphysical First Principles of the Doctrine of Right. Admittedly, some of them are no more than intimations on Kant's part, so what follows will be a development and reconstruction as well as an interpretation of Kant's theory.
The line of argument most prominent in Kant's text springs from the mismatch between the unilateral character of a property appropriation in the state of nature and the universal character of the obligations that such an appropriation purports to generate:
When I declare (by word or deed), I will that something external is to be mine, I thereby declare that everyone else is under obligation to refrain from using that object of my choice, an obligation no one would have were it not for this act of mine to establish a right. [FN95]
We are familiar with people creating obligations for themselves through unilateral actions (by promising, for example). But acquisition involves one person's creating obligations for others, obligations that are wholly for the benefit of the appropriator. By his own actions, the appropriator purports to acquire not duties but rights against all the world. Thousands of other people, including people he has never met and people who have never even heard of him, suddenly find themselves laboring under obligations that they did not have before. Moreover, the duties that they acquire in this way are potentially onerous ones, affecting, under conditions of scarcity, the material resources that they may use to sustain their lives. [FN96]
Kant maintains that this momentous imposition of duties on others cannot possibly have any validity if the imposition is the product of a merely unilateral will -- 'a unilateral will cannot put others under an obligation they would not otherwise have.' [FN97] Why not, exactly? Kant's reasons have to do with the general systematicity of right. Any obligation that a person bears must be presented as part of a system of mutual respect among all persons, not merely as an artifact of one person's demands. People are entitled to assume in the state of nature that their external freedom will be limited only to the extent necessary to harmonize their freedom with that of everyone else in accordance with a universal law; [FN98] and it is not clear how a unilaterally imposed obligation fits into that picture.
At the very least, a person faced with an obligation correlative to someone else's acquired property right is entitled to ask what a universalized system of such rights would look like. With universality *1558 goes reciprocity, [FN99] and to protect his own interest, the person encumbered by the obligation will ask how he might make a similar acquisition, impose duties on others, and expect those duties to be upheld. Kant writes:
I am . . . not under obligation to leave external objects belonging to others untouched unless everyone else provides me assurance that he will behave in accordance with the same principle with regard to what is mine. . . . [A] unilateral will cannot serve as a coercive law for everyone . . . since that would infringe upon freedom in accordance with universal laws. So it is only a will putting everyone under obligation, hence only a collective general (common) and powerful will, that can provide everyone this assurance. [FN100]
What is needed, in other words, is 'a will that is omnilateral' [FN101] rather than unilateral, and such a collective will, Kant seems to imply, only resides in the legislative will of the state.
Not so fast, you might object. Is it not possible for the will of a Kantian individual to be 'omnilateral' if the idea of universalizability disciplines that person's willing? [FN102] (Isn't that, after all, exactly what judging things from the moral point of view is, according to Kant?) On this objection, it would be wrong to assert that an individual's acting on his own judgments in the state of nature amounts to a unilateral will governing matters that the common will ought to control. Instead, an individual acting on his own moral judgments in the state of nature already invokes universalization and thus transcends his unilateral viewpoint.
The objection evokes an image of individual thinking derived from Kant's moral philosophy:
I need no far-reaching acuteness to discern what I have to do in order that my will may be morally good. Inexperienced in the course of the world and incapable of being prepared for all its contingencies, I only ask myself whether I can also will that my maxim should become a universal law. [FN103]
*1559 The would-be appropriator tests the principle of his acquisition by asking whether it would be possible for everyone to proceed on such a principle. If the answer is 'Yes,' then he is morally entitled to proceed -- according to this objection -- with or without the actual ratification of a full-fledged legislature.
A related model of individual thinking is found in the Critique of Judgment, [FN104] which Hannah Arendt contends is the real locus of Kant's political philosophy. [FN105] There, Kant talks about a way of judging
that . . . takes account (a priori), in our thought, of everyone else's way of presenting [something], in order as it were to compare our own judgment with human reason in general and thus escape the illusion that arises from the ease of mistaking subjective and private conditions for objective ones, an illusion that would have a prejudicial influence on the judgment. [FN106]
In this model, a person disposed to regard himself as entitled to a given resource through appropriation nevertheless pauses and first asks, 'How are other people likely to view this 'acquisition' given their different interests and situations?' He tries to form a fair judgment that could be maintained from anyone's point of view, not just from the point of view of his own interests and opportunities. Kant describes the person who makes judgments of this kind as
a man with a broadened way of thinking if he overrides the private subjective conditions of his judgment, into which so many others are locked, as it were, and reflects on his own judgment from a universal standpoint (which he can determine only by transferring himself to the standpoint of others). [FN107]
Why then, for Kant, are neither of these modes of individual judgment -- the moral invocation of universalizability or the adoption of the perspective of others -- sufficient to overcome the problem of the unilateral character of individual acquisition in the state of nature? There is no doubt that Kant thinks something like this individual, moral thinking is required when particular persons make particular acquisitions in the state of nature. Even one's provisional acquisitions must be undertaken 'in conformity with the Idea of a civil condition' [FN108] -- that is, they must be guided by the idea of a system of property rights that can function consistently as a body of civil law. But this ideation, though necessary, is not sufficient for Kant. Why not?
*1560 Kant's answer cannot be that there is a difference between the individual thought-experiment of putting oneself in others' shoes and the political discipline of really listening and responding to what others actually have to say -- although, of course, there is. [FN109] Kant does not have a robust, participatory image of politics; the supersession of individual judgments of right by the centralized deliverances of a civil legislator, in his scheme of things, might involve a decline in genuine 'omnilateralism.' He does not claim for positive law that it actually takes account of everyone's circumstances or everyone's point of view. The virtue of positive law resides in its univocality, its power, its being put forward in the name of the whole community, not in its reflecting necessarily, in its content, the interests and concerns of all those who are individually subject to it.
To answer the question, we have go back to the stubborn point that whatever rosy things we want to say about either of these modes of individual 'omnilateralist' thought, we cannot say that either of them will lead different individuals to converge on the same conclusion. The irremovable fact about individual moral reasoning is this: my universalizations are likely to differ from yours; my attempt to take everyone's point of view is likely to lead to a different conclusion from your attempt to take everyone's point of view; and the deliverances of my reasoning guided by the idea of a civil condition will not be the same as the deliverances of your reasoning guided by that idea. As long as individuals come up with different judgments, we remain in a situation in which force will be used unilaterally -- in fact, if not in spirit -- by different factions to support their different views about what justice really requires.
We return, then, to the argument that I sketched out at the very beginning of this Article. [FN110] It is not inappropriate for force to be used to secure justice and right. But the point of using force must be to assure people of that to which they have, as a matter of justice, a right. If people use force to secure ends that are contradictory, then they rupture the connection linking force and assurance. In this scenario, each person uses force, at best, simply to vindicate the vehemence with which each holds his own opinion about justice; force contributes nothing to the security of conditions of right.
When Kant raises the concern about unilateralism, it is based not only on the requirement for a universalized perspective, but also on the need for a systematic basis of mutual assurance. Let me quote *1561 again the crucial passage from section eight of the Metaphysical First Principles of the Doctrine of Right:
I am . . . not under obligation to leave external objects belonging to others untouched unless everyone else provides me assurance that he will behave in accordance with the same principle with regard to what is mine. . . . [I]t is only a will putting everyone under obligation, hence only a collective general (common) and powerful will, that can provide everyone this assurance. [FN111]
The association that matters here is the association of force with univocality. Under a condition of mutual assurance, a person can be sure that his voluntary restraint (in regard to property) will be matched by the reciprocal restraint -- if need be, the secured reciprocal restraint -- of others. But if there are several conceptions of justice and rights loose in the community, each supported by its own self-righteous militia, any sense of universalizability, reciprocity, or respect for others will remain merely academic. Because of cross-cutting patterns of coercion and enforcement, no single sense of right will prevail. At best, the individual will be in the sort of Hobbesian position of maintaining his own sense of justice ' in foro interno.' [FN112] In the Kantian scheme of things, this outcome would be a travesty, for as we have already noted, the whole point of justice and right is to regulate the external characteristics of conduct, not to regulate attitudes. [FN113]
The basic tenor of Kant's argument is summed up in the proclamation ' There is to be no war' -- which Kant calls the 'irresistible veto' of 'morally practical reason' -- 'for war is not the way in which everyone should seek his rights.' [FN114] Again, this proposition is not supposed to mean that force is inappropriate when upholding rights; we have seen that Kant denies this suggestion, [FN115] and that modern political philosophy follows him in that belief. [FN116] What is precluded, Kant insists, is a war or conflict of forces deployed in the name of right. For when force presents itself in that mode, it presents itself purely in the character of vehemence trying to prevail by its powerfulness alone (notwithstanding the moral banners raised on each side), rather than as something self-canceling -- the negation of the negation, 'a hindering *1562 of a hindrance to freedom' [FN117] -- which is how Kant wants to understand the contribution that coercion can make to justice.
VII. FROM STATE OF NATURE TO CIVIL SOCIETY
When you cannot avoid living side-by-side with others, Kant says, 'you ought to leave the state of nature and proceed with them into a rightful condition, that is, a condition of distributive justice.' [FN118] The move to civil society is mandatory because people desire to make acquisitions of resources, and absent civil society, this desire brings them into conflict. [FN119] Finding themselves faced with such conflicts, Kantians in a state of nature may, of course, use force to vindicate their respective positions, but only in the context of a determination to move the dispute out of the situation in which it is decided purely by the trial of strength and into a situation in which it is subjected to a determinative law. Indeed, Kant presents the obligation to move out of the state of nature as something that either party to a dispute may enforce. One must 'be permitted to constrain everyone else with whom he comes into conflict about whether an external object is his or another's to enter along with him into a civil constitution. ' [FN120] Kant is well aware that the compulsory character of the move into civil society distinguishes his version of contractarianism from that of others (such as Locke [FN121]). Qua contract, he says, the contract establishing civil society 'is of an exceptional nature':
In all social contracts, we find a union of many individuals for some common end which they all share. But a union as an end in itself which they all ought to share and which is thus an absolute and primary duty in all external relationships whatsoever among human beings (who cannot avoid mutually influencing one another), is only found in a society in so far as it constitutes a civil state, i.e. a commonwealth. [FN122]
It might be thought that the issue of whether the move from the state of nature to a civil society is voluntary or mandatory is entirely moot, because Kant maintains anyway that the ideas behind the state of nature and the social contract are entirely fictitious. [FN123] Certainly, from Kant's point of view, the transition's only political relevance is what it tells a person about his moral situation vis-a-vis the civil society *1563 in which he happens to find himself. It tells him that he is to think about his present allegiance not in light of a voluntary commitment, but in light of the reasons that make that commitment necessary. [FN124] Here, Kant's position is structurally similar to that of Thomas Hobbes, who insists throughout the Leviathan that the extent and the character of one's political obligation is determined not so much by the explicit terms of the social contract as by the reasons for entering into the contract in the first place. [FN125]
But the similarity is only structural. For Hobbes, the reasons for entering into the social contract are always, in the end, individualized reasons of survival; [FN126] thus, my reasons are not your reasons (as my survival is not necessarily the same as your survival), and my allegiance may justly end long before anyone else's runs out. For Kant, in contrast, the hypothesis that one person may force another to enter along with him into civil society indicates that the basis of political obligation is not individualized in this Hobbesian way. So a person is not to regard his allegiance to the state as a voluntary commitment intelligible purely in terms of benefit to his own interests alone. If the subject wants to think about the advantages of membership in civil society, then he must think relationally about what that membership secures, so far as the reciprocity and mutual assurance between his rights and others' rights are concerned. In other words, he is to be aware that his presence in the civil society is as necessary for the interest and advantage of others -- others who would be entitled to compel him to enter if he did not want to enter -- as for his own interest and advantage.
Above all, Kant's account of the mandatory character of our subjection to civil society is essential in justifying what we referred to earlier as his authoritarianism. [FN127] The person who calls into question the moral basis of a ruler's legitimacy acts as though what matters is *1564 that the creation of a civil society happened fastidiously in one way rather than another. But Kant's argument is that what matters is that there be a civil society and that we be subject to it as soon as people start entering into conflicts about the practical application of principles of justice and right. Similarly, the person who proposes to resist or to disobey a rule of property or justice set up by the civil legislature threatens the very idea of right, according to Kant. For even assuming that the objector's dissent is conscientious and is based on the most impeccable argumentation, it is still tantamount to turning his back on the idea of our sharing a view about right or justice and implementing it in the name of the community. The one who proposes to resist or to disobey announces, in effect, that it is better to revert to a situation in which each person acts on his own particular judgment about justice. Ultimately, it is in answer to this person that Kant has developed his moral defense of the idea of positive law.
What, then, are we to say about the quality of the positive law that is to be enforced, upheld, and submitted to in civil society? Kant's position surely cannot be that all positive laws are substantively right on the merits. At best, the legislator is just another human being trying to figure things out, and his reasoning is no doubt subject to all the vicissitudes that afflict any individual's thinking about who ought to own what. [FN128] He makes his determinations in the name of the community as a whole, but important as that banner is, it is not a prophylactic against error. Kant concedes this in the following wry acknowledgement:
[W]hile man may try as he will, it is hard to see how he can obtain for public justice a supreme authority which would itself be just, whether he seeks this authority in a single person or in a group of many persons selected for this purpose. For each one of them will always misuse his freedom if he does not have anyone above him to apply force to him as the laws should require it. Yet the highest authority has to be just in itself and yet also a man. This is therefore the most difficult of all tasks, and a perfect solution is impossible. Nothing straight can be constructed from such warped wood as that which man is made of. [FN129]
This statement, by the way, is sufficient to dispose of any argument on Kant's behalf that whatever the legislative process enacts is just and right by virtue of the process and as a matter of definition. Kant surely thinks that we ought to submit to the results of the legislative process, but not as a matter of pure procedural justice. The passage just quoted makes it quite clear that, even in the case of the most *1565 conscientious legislator, we are, at best, dealing with imperfect procedural justice. [FN130]
If procedure does not guarantee quality, might quality be assured through substantive constraints? In a recent discussion of Kant's theory of property, Alan Ryan points out that Kant is ambivalent about the idea of positive law simply prevailing, without considering natural law:
Thus we find Kant both asserting as vigorously as any legal positivist that men only have property in external things when a legal order gives them that property and provides remedies for its loss, and asserting that we have to assume a 'natural right' to appropriate unowned things and make them our property in a state of nature. . . . We have to hang the moral acceptability of the positive law of any actual system on the principles which would be the only natural principles of right to govern men in the absence of a formerly constituted legal and judicial system. [FN131]
The conjecture that natural property rights might operate as constraints on positive law is reflected in Kant's view that provisional acquisitions of external resources may be made in the state of nature, which it will subsequently be the function of civil society to ratify and to make conclusive. [FN132] But one cannot -- in keeping with the logic of the argument -- treat provisional acquisitions in any sort of Lockean way. First, and most obviously, there is no state of nature; as Ryan reminds us, it 'is for juridical purposes a logical fiction.' [FN133] Secondly, it matters enormously that even the logical idea of acquisition in the state of nature is an idea of provisional acquisition, and the term 'provisional' has a lot of bite. These acquisitions are conceived of as being provisional not only because they have yet to receive society's full imprimatur, but also because they are the result of conflicting and contradictory individual determinations of justice. The idea of such acquisitions is therefore incapable of playing the sort of role in our current political thinking that Robert Nozick, for example, wanted the principle of justice-in-acquisition to play. [FN134] The idea that acquisition in the state of nature is provisional walks onto the stage of Kantian theory hand-in-hand with the idea that a system of positive law is going to have to modify most acquisitions, privilege others, and abrogate some of them altogether in the name of a single, unified approach to justice. At its most generous, the phrase 'provisional acquisition' connotes only the idea of some individual's best effort to figure out -- *1566 unilaterally -- what he is entitled to. But what people need is a system of property rights that reflects a single community determination of what each is entitled to. Ryan is right to suggest that the concept of individual property rights is a constraining one -- that is, the legislator must think in terms of individual property. Just because he sets up law in the name of the community does not mean that those laws have to be communalistic in their content. But the legislator is not constrained in the assignment and distribution of individual property rights by what individuals have done in the state of nature by using their own moral resources. If he were so constrained, then his laws would reproduce the conflict and uncertainty of a regime of private judgment rather than supersede that regime.
We must therefore leave Kant in the classic, but honest, predicament of the true legal positivist. He has set out the advantages of positive law and given an indication of what we stand to lose if we abandon it. He does not deny that its contents may be judged wanting from the transcendent point of view of justice and right. He recognizes (indeed he helps to shape our conception of) the modes of thought that one deploys when one makes moral criticisms of existing law.
But in the transition from moral philosophy to political philosophy, Kant insists that we must now appreciate that there are others in the world besides ourselves, and that we are to see the others not just as objects of moral concern or respect, but also as agents of moral thought that is coordinate and competitive with our own. When one thinks about justice, one must recognize that others are thinking about justice and that one's confidence in the objective quality of one's own conclusions is matched by others' confidence in the objective quality of theirs. The irony of law and politics is that this symmetry of self-righteousness is not matched by any convergence on substance -- each of two opponents may believe that he is right.
If, nevertheless, there are reasons for thinking that society needs just one view on some particular matter to which all its members are to defer, then there has got to be a way of identifying a community view and grounds for one's allegiance to it that are not predicated on any judgment one would have to make concerning the view's moral rectitude. That is the positivist position, and Kant's contribution is to have linked that position conclusively -- in the way we have traced -- to the idea of a set of property rights, secured and assured as a system.
[FN61]. My view is thus different from that of Thomas Pogge, who writes:
There is still some residual indeterminacy regarding cases of potential conflict with respect to which even the material principle is indifferent (the problem of coordination). For example, you might embrace a scheme under which people drive on the left-hand side of the road, while I favor the equally acceptable scheme of driving on the right. This last indeterminacy, irresolvable a priori, requires a central legislative process to complement the constraints of natural law by those of positive law.... Positive law irons out this incompleteness by selecting, on empirical grounds (such as convenience) and to some extent arbitrarily, one system of constraints from among those that satisfy pure practical reason.
Thomas W. Pogge, Kant's Theory of Justice, 79 Kant-Studien 407, 414 (1988). Pogge is surely right that there will be some cases of residual indeterminacy. But I also think that Kant means to stress the irresolvability of disagreement about issues on which there is, in principle, a right answer.
[FN62]. I am encouraged to find that Wolfgang Kersting sketches out a similar line of argument when he says:
The reason why Kant's philosophy also joins in the chorus of modern political philosophy singing ' exeumdum-e-statu-naturali' lies in the indeterminacy of the rational principles of right for the appropriation and use of things.... Kant ... must argue for a concretization and differentiation of the implications of rational right through positive right because in the natural condition chaos rules with respect to the concept of right -- each person attempts with equal right to fill the emptiness of the natural laws of property with his own interpretation. The result is a war for the monopoly of interpretation over equally justified but incompatible opinions about property ....
Wolfgang Kersting, Politics, Freedom, and Order: Kant's Political Philosophy, in The Cambridge Companion to Kant 342, 352 (Paul Guyer ed., 1992) (footnote omitted).
[FN63]. See Jean-Jacques Rousseau, Discourse on the Origin of Inequality 44- 71 (Donald A. Cress trans., Hackett Publishing Co. 1992) (1755).
[FN64]. See Jeremy Waldron, A Right-Based Critique of Constitutional Rights, 13 Oxford J. Legal Stud. 18, 28-36 (1993).
[FN65]. Rawls' discussion of constitutional arrangements is a notable example: 'In framing a just constitution I assume that the two principles of justice already chosen define an independent standard of the desired outcome. If there is no such standard, the problem of constitutional design is not well posed ....' Rawls, supra note 7, at 198. I have discussed this point in somewhat greater detail elsewhere. See Jeremy Waldron, Disagreements About Justice, 75 Pac. Phil. Q. 372 passim (1995).
[FN66]. Rawls asks: 'Why does not our conscientious attempt to reason with one another lead to reasonable agreement? It seems to do so in natural science, at least in the long run.' Rawls, Political Liberalism, supra note 19, at 55.
Rawls uses the phrase 'the burdens of judgement,' id., to articulate his answer to this question. The burdens of judgment 'are the many hazards involved in the correct (and conscientious) exercise of our powers of reason and judgment in the ordinary course of political life.' Id. at 55-56. For example, he says that, on any plausible account, human life engages multiple values, and it is natural that people will disagree about how to balance or prioritize them. Also, on any plausible account, people's respective positions, perspectives, and experiences in life will give them different vantages from which to make these delicate judgments. These differences of experience and position combine with the evident complexity of the issues being addressed, and therefore reasonable persons may disagree not only about what the world is like, but also about the relevance and weight to accord the various facts and insights that they have at their disposal. Together, factors like these make disagreement in good faith not only possible but predictable. See id. at 55-58. Thus, Rawls concludes that 'many of our most important judgments are made under conditions where it is not to be expected that conscientious persons with full powers of reason, even after free discussion, will all arrive at the same conclusion.' Id. at 58.
[FN67]. See John L. Mackie, Ethics: Inventing Right and Wrong 36 (1977) ( '[R] adical differences between first order moral judgements make it difficult to treat those judgements as apprehensions of objective truths.').
[FN68]. See Michael Moore, Moral Reality, 1982 Wis. L. Rev. 1061, 1089- 90 (maintaining that the crudest argument from diversity to subjectivism confuses objectivity with intersubjective agreement).
But if the inference from diversity to subjectivism is fallacious, then so too would be any converse inference that, because Kant is an objectivist about justice, he cannot therefore believe in the existence of diversity of opinion or make anything significant of it in the fields of political and legal philosophy.
[FN69]. See Jeremy Waldron, The Irrelevance of Moral Objectivity, in Natural Law Theory: Contemporary Essays 158, 171-84 (Robert P. George ed., 1992).
[FN70]. See Arendt, supra note 36, at 10, 40-42.
[FN71]. Immanuel Kant, What is Orientation in Thinking?, reprinted in Kant: Political Writings, supra note 20, at 237, 247.
[FN72]. See id., reprinted in Kant: Political Writings, supra note 20, at 249 n.*.
[FN73]. Arendt, supra note 36, at 32 (quoting Immanuel Kant, Critique of Pure Reason 9 n.a [Ak. Axi] (Norman K. Smith trans., St. Martin's Press 1965) (1781)) (internal quotation marks omitted); see also id. at 42 (noting that, for Kant, thinking for oneself requires 'applying critical standards to one's own thought' and that this 'application one cannot learn without ... the testing that arises from contact with other people's thinking').
[FN74]. Kant, supra note 33, reprinted in Kant: Political Writings, supra note 20, at 55.
[FN75]. Kant, supra note 1, s 42, at 122 [Ak. 307].
[FN76]. See Hobbes, supra note 37, at 110 ('For he that should be modest, and tractable, and performe all he promises, in such time, and place, where no man els should do so, should but make himselfe a prey to others, and procure his own certain ruine, contrary to the ground of all Lawes of Nature, which tend to Natures preservation.').
[FN77]. Kant, supra note 1, s 42, at 122 [Ak. 307].
[FN78]. For Kant's conception of scarcity, see Immanuel Kant, Idea for a Universal History with a Cosmopolitan Purpose, reprinted in Kant: Political Writings, cited above in note 20, at 41, 43.
[FN79]. See Hobbes, supra note 37, at 39.
[FN80]. Locke, supra note 41, at bk. II, s 28, at 288.
[FN81]. See Kant, supra note 1, s 2, at 68 [Ak. 246].
[FN82]. See id. s 15, at 85-86 [Ak. 264-65].
[FN83]. Kant, supra note 78, reprinted in Kant: Political Writings, supra note 20, at 44 (emphasis omitted).
[FN84]. Id., reprinted in Kant: Political Writings, supra note 20, at 44.
[FN85]. Kant explains:
[I]f a certain use of freedom is itself a hindrance to freedom in accordance with universal laws (i.e., wrong), coercion that is opposed to this (as a hindering of a hindrance to freedom) is consistent with freedom in accordance with universal laws, that is, it is right. Hence there is connected with Right by the principle of contradiction an authorization to coerce someone who infringes upon it.
Kant, supra note 1, s D, at 57 [Ak. 231].
[FN86]. Id. s 12, at 121 [Ak. 307].
[FN87]. Rawls, supra note 7, at 126-30.
[FN88]. See Kant, supra note 1, s 13, at 83-84 [Ak. 262] ('[I]f [the] surface [of the earth] were an unbounded plane, men could be so dispersed on it that they would not come into any community with one another, and community would not then be a necessary result of their existence on the earth.').
[FN89]. See Jeremy Waldron, Special Ties and Natural Duties, 22 Phil. & Pub. Aff. 3, 11-15 (1993) (discussing the limited range of justice principles that any country's legal institutions administer).
[FN90]. Kant, supra note 1, s 62, at 158 [Ak. 352] (emphasis omitted). Kant elaborates:
All men are originally (i.e., prior to any act of choice that establishes a right) in a possession of land that is in conformity with right, that is, they have a right to be wherever nature or chance (apart from their will) has placed them. This kind of possession ... is possession in common because the spherical surface of the earth unites all places on its surface ....
Id . s 13, at 83 [Ak. 262].
[FN91]. See id . s 15, at 85-87 [Ak. 264-66]. For example, those of us in the United States have had to define our rights against one another vis-a-vis the local resources. This leaves open the question whether we, individually or collectively, ought to share these resources with people living elsewhere.
[FN92]. See id. s 62, at 158 [Ak. 352] (speaking of 'a community of possible physical interaction ( commercium), that is, ... a thoroughgoing relation of each to all the others of offering to engage in commerce with any other').
[FN93]. See supra Part V.
[FN94]. That is provided, of course, that Kant can show that the problems he outlines are problems that are cured by the establishment and implementation of a scheme of right standing in the name of the whole community -- a scheme that, in its substance, may or may not be what justice requires. We address this latter phase of the argument in Part VII below.
[FN95]. Kant, supra note 1, s 8, at 77 [Ak. 256].
[FN96]. See Waldron, supra note 58, at 266-71 (discussing contingent rights and the moral effect of appropriation).
[FN97]. Kant, supra note 1, s 15, at 85 [Ak. 264].
[FN98]. See id. s C, at 56-57 [Ak. 230-31].
[FN99]. See id. s 8, at 77 [Ak. 255-56].
[FN101]. Id. s 14, at 84 [Ak. 263].
[FN102]. Kant toys with this possibility at one stage in his discussion of first occupancy when he first identifies original acquisition with unilateral acquisition and then continues:
However, if an acquisition is first it is not therefore original. For the acquisition of a public rightful condition by the union of the will of all for giving universal law would be an acquisition such that none could precede it, yet it would be derived from the particular wills of each and would be omnilateral, whereas original acquisition can proceed only from a unilateral will.
Id. s 10, at 81 [Ak. 259]. To the extent that I understand this text (which is not very much), I think Kant may be suggesting that a will that knows itself to be really the first appropriator (with respect to a given resource) is intervening qua the public will rather than the will of a particular person.
[FN103]. Kant, supra note 26, at 15 [Ak. 403].
[FN104]. Immanuel Kant, Critique of Judgment (Werner S. Pluhar trans., Hackett Publishing Co. 1987) (1790).
[FN105]. See Arendt, supra note 36, at 10-16.
[FN106]. Kant, supra note 104, s 40, at 160 [Ak. 293] (alteration in original).
[FN107]. Id. s 40, at 161 [Ak. 295].
[FN108]. Kant, supra note 1, s 15, at 85 [Ak. 264] (emphasis added).
[FN109]. There is a difference, of course. See John S. Mill, On Liberty 45 (Currin V. Shields ed., Liberal Arts Press, Inc. 1956) (1859) (noting the difference between hearing others' objections presented by the person who is about to go on and rebut them and hearing others' objections 'from persons who actually believe them, who defend them in earnest and do their very utmost for them').
[FN110]. See supra note 13 and accompanying text.
[FN111]. Kant, supra note 1, s 8, at 77 [Ak. 255-56].
[FN112]. Hobbes, supra note 37, at 110 ('The Lawes of Nature oblige in foro interno; that is to say, they bind to a desire they should take place: but in foro externo; that is, to the putting them in act, not alwayes.').
[FN113]. See Kant, supra note 1, s C, at 56-57 [Ak. 230-31] ('[A]nyone can be free as long as I do not impair his freedom by my external action, even though I am quite indifferent to his freedom or would like in my heart to infringe upon it.').
[FN114]. Id. at 160 [Ak. 354].
[FN115]. See supra p. 1539. Indeed, Kant entitles one of the early sections of the Metaphysical First Principles of the Doctrine of Right 'Right Is Connected with an Authorization to Use Coercion.' Kant, supra note 1, s D, at 57 [Ak. 231].
[FN116]. See supra note 13.
[FN117]. Kant, supra note 1, s D, at 57 [Ak. 231].
[FN118]. Id. s 42, at 121-22 [Ak. 307].
[FN119]. See id. s 44, at 123-24 [Ak. 312-13] ('So if external objects were not even provisionally mine or yours in the state of nature, there would also be no duties of Right with regard to them and therefore no command to leave the state of nature.').
[FN120]. Id. s 8, at 77 [Ak. 256].
[FN121]. For Locke, the voluntary decision by any number of individuals to enter civil society 'injures not the Freedom of the rest; they are left as they were in the Liberty of the State of Nature.' Locke, supra note 41, at bk. II, s 95, at 331.
[FN122]. Kant, supra note 20, reprinted in Kant: Political Writings, supra note 20, at 73.
[FN123]. See id., reprinted in Kant: Political Writings, supra note 20, at 79.
[FN124]. One commentator argues that the Kantian approach to political obligation cannot dispense with a consent requirement: 'Though [people in the state of nature] ought to commit themselves [to accept the authority of a just institution], they are under no moral requirement to comply with the institution's dictates until they have committed themselves.' Mark C. Murphy, Acceptance of Authority and the Duty to Comply with Just Institutions: A Comment on Waldron, 23 Phil. & Pub. Aff. 271, 276 (1994). But this distinction simply does not survive either the Kantian view that one person may force another to enter civil society when he finds himself in conflict with the other or Kant's insistence that the question is not how we entered civil society, but rather what our current obligations to it are.
[FN125]. See Hobbes, supra note 37, at 151. Hobbes states:
[T]he Obligation a man may sometimes have, upon the Command of the Soveraign to execute any dangerous, or dishonourable Office, dependeth not on the Words of our Submission; but on the Intention; which is to be understood by the End thereof. When therefore our refusall to obey, frustrates the End for which the Soveraignty was ordained; then there is no Liberty to refuse: otherwise there is.
[FN126]. See id. at 117.
[FN127]. See supra pp. 1544-45.
[FN128]. See supra pp. 1548-49 (discussing the vicissitudes surrounding first occupancy).
[FN129]. Kant, supra note 78, reprinted in Kant: Political Writings, supra note 20, at 46; cf. Henry Hardy, Preface to Isaiah Berlin, The Crooked Timber of Humanity: Chapters in the History of Ideas at xi (Henry Hardy ed., 1990) (explaining that the book's title is taken from Berlin's 'preferred rendering of his favorite quotation[ ] from Kant').
[FN130]. For the contrast between 'pure procedural justice' and 'imperfect procedural justice,' see Rawls, cited above in note 7, at 85-86.
[FN131]. Alan Ryan, Property and Political Theory 79-80 (1984).
[FN132]. See Kant, supra note 1, s 15, at 85 [Ak. 264] (explaining that provisional acquisition can only occur prior to the civil condition, in which the will of all is united for lawmaking, whereas conclusive acquisition takes place only in civil society).
[FN133]. Ryan, supra note 131, at 80.
[FN134]. See Nozick, supra note 58, at 150-53.