1.2 Three Supreme Principles

According to the Metaphysics of Morals, Morals, Right, and Ethics each has its own supreme principle. In what follows, we will approach the question of how Right relates to Morals and Ethics by looking at the relation between their supreme principles.

In the Introduction to the Metaphysics of Morals, Kant writes: ‘The supreme principle of the doctrine of morals (Sittenlehre) thus is: act on a maxim that at the same time can hold as universal law’ (MS 6:226) – a principle that, one page prior, he calls the ‘categorical imperative, which as such only affirms what obligation is’ (MS 6:225). While a maxim is a principle followed by an individual agent (for some purpose, and given the right circumstances), a universal law consists in everyone’s acting on a particular maxim (see e.g. GMS 4:400n; GMS 4:420n; KpV 5:19). Thus, a maxim can hold as universal law if it is possible (in some suitable sense of ‘possibility’) for everyone to act on it. Let us call maxims that can hold as universal laws ‘universalizable’. Thus, the SPM requires us to act on universalizable maxims.

In the Introduction to the Doctrine of Virtue, which presents his account of Ethics, Kant claims that the ‘supreme principle of the Doctrine of Virtue is: act on a maxim of ends the having of which can be a universal law for everyone’ (TL 6:395). Kant does not explain what he means by a ‘maxim of ends’, but the ends in question are presumably the two ‘ends that at the same time are duties’, namely one’s own moral perfection and the happiness of others (TL 6:385; cf. TL 6:391–94). So the supreme principle of Ethics (SPE) can be understood as requiring us to act on universalizable maxims that are suitably related to these two ends (e.g. to act on a maxim of beneficence to promote the happiness of others).

While Kant does not explicitly state a ‘supreme principle of the Doctrine of Right’, it seems that the ‘universal principle of Right’ (UPR) has exactly that function. It reads: ‘Any action is rightful that is such that, or in accordance with its maxim, the freedom of choice of each can coexist with everyone’s freedom in accordance with a universal law’ (RL 6:230).Footnote ¹⁰ One page later, Kant formulates a ‘universal law of Right’ (ULR), which I take to be substantially the same principle as UPR but that brings out the parallel with the other two ‘supreme principles’ even more clearly: ‘act externally such that the free use of your choice can coexist with everyone’s freedom in accordance with a universal law’ (RL 6:231). Since UPR (in the German original) is not grammatically well formedFootnote ¹¹ and is thus more difficult to interpret, while ULR is formulated in a way that is parallel to SPM and SPE, I will concentrate mainly on ULR. ULR requires us to act ‘externally’ (that is, irrespective of one’s motivation) in such a way that one’s own free acts (‘free use of your choice’) ‘can coexist’ with those of others ‘in accordance with a universal law’. If we read ‘coexist’ as ‘being jointly realized’ and ‘in accordance with a universal law’ as ‘affecting everyone in the same way’, we can paraphrase ULR as follows: restrict your exercise of free agency in such a way that your acts do not prevent others from exercising their free agency in the same way.

In sum, Kant formulates three ‘supreme principles’, one for Morals (SPM), one for Ethics (SPE), and one for Right (UPR/ULR). Each of these three principles invokes the idea of universal law: in fact, this idea seems to be the only element common to all three principles. (SPM, SPE, and ULR are also all formulated as imperatives, while UPR is not.) Only SPM and SPE require that one’s maxim be able to be (or to hold as) a universal law; by contrast, ULR does not even mention one’s maxim and only requires that one’s freedom be able to coexist with the freedom of others in accordance with a universal law. (UPR does mention a maxim but does not require that it be able to hold as a universal law.) Before we look at the difference between SPM and ULR more closely, let us first turn to the relation between SPM and a fourth principle, namely the Categorical Imperative we know from the Groundwork.Footnote ¹²

1.3 Is SPM Identical with the Categorical Imperative Introduced in the Groundwork?

In the Groundwork, Kant offers (at least) four different formulations of the Categorical Imperative (cf. GMS 4:436), all of which are meant to be expressions of the same ‘supreme principle of morality’ (GMS 4:440; cf. GMS 4:392). The most general and fundamental of these formulations, and the one closest in wording to SPM, is FUL. It reads:

For a maxim to become a universal law, I take it, is for it to hold as a universal law on which everyone acts. To will through one’s maxim that one’s maxim become a universal law is to want the conjunction of two things, namely that one acts on that maxim and that everyone else does the same. FUL thus prescribes a two-step procedure: (i) imagine that everyone acts on one’s maxim and (ii) ask whether one can rationally want both that one acts on that maxim oneself and that everyone else acts on that maxim. If the result of step (i) is that this is logically impossible, or if the result of step (ii) is that you cannot rationally want this (GMS 4:424), then the action is prohibited, and otherwise it is permitted.

Now compare FUL with SPM, which says: ‘act on a maxim that at the same time can hold as universal law’ (MS 6:226). SPM and FUL are similar in various respects; most importantly, both require us to act on universalizable maxims. But there is at least one important difference: while FUL requires that one be able to ‘will’ that one’s maxim become a universal law, SPM only requires that the maxim be able to ‘hold’ as a universal law. Apparently, the second step required by FUL has fallen away in SPM. In order to determine what is required by SPM, all one needs to do is ask whether it is possible for everyone to act on one’s maxim.

What is the significance of this difference? In the Groundwork, Kant identifies the duties that emerge from the first step of FUL (based on a ‘contradiction in conception’) with narrow or strict duties and those that emerge from the second step (based on a ‘contradiction in willing’) with wide or meritorious duties (GMS 4:424). Does this mean that SPM is only a principle of narrow and not of wide duties? This is unlikely, since SPM is supposed to be the fundamental principle of the Metaphysics of Morals, which includes both narrow duties (which Kant now tends to identify with juridical duties) and wide duties (which are ethical duties).Footnote ¹³

Could it be that the difference between FUL and SPM does not have any significance at all because Kant is simply expressing the same thing in the different formulations? This also seems unlikely. First, the idea of ‘willing one’s maxim (at the same time) to be a universal law’ is so prominent in the Groundwork that it can hardly be a coincidence that Kant deleted it from the formulation of the SPM.Footnote ¹⁴ Second, in the Metaphysics of Morals, the idea that the Categorical Imperative provides a test procedure for determining our duties recedes into the background and is replaced by a catalogue of juridical rights and ethical virtues.Footnote ¹⁵ It seems plausible that this change (whether substantial or merely expository) is reflected in the formulation of SPM.

In any case, we cannot straightforwardly identify SPM with FUL. Whatever the reason for Kant’s dropping of the reference to ‘willing through one’s maxim’, the two principles differ in subtle ways that presumably reflect the different roles they play in the Groundwork and in the Metaphysics of Morals.Footnote ¹⁶ And this means that we cannot simply identify the principle that covers both Right and Ethics as parts of Kant’s conception of Morals with the fundamental principle of Kantian Morality as defined in the Groundwork.

I think that the difference between SPM and FUL goes even further than indicated thus far, however. As the architecture of the Metaphysics of Morals demands, SPM is supposed to hold for both Right and Ethics. But how can that be? As we saw, ULR in effect requires us not to act in ways that prevent others from doing what they have a right to do, where our rights and theirs are allocated ‘in accordance with universal law’, that is, in the same way for all. But on Kant’s own account, not infringing on other people’s rights is something one can do while acting on a maxim that is not universalizable. For instance, Kant claims that lying as such (unless under oath, in a contract, etc.) does not infringe on other people’s juridical rights, since it is up to them to believe us or not (RL 6:238). But clearly, the maxim of lying whenever it is convenient is not universalizable, according to Kant (GMS 4:403). Similarly, Kantian Right permits us not to cultivate our talents and abilities, while Kantian Ethics requires this (TL 6:392; cf. GMS 4:422–23). The list of acts and maxims that are juridically permitted according to ULR but not universalizable could easily be extended.Footnote ¹⁷ So the problem is this: if SPM requires us to act on universalizable maxims but the supreme principle of Right, ULR, does not require this, how can SPM also hold for Right ? or conversely, how can ULR fall under SPM as a special case?

We will return to this question soon. For now I want to suggest that we can see how SPM can cover both Right and Ethics if it is understood, despite its imperatival form, as giving expression to (nothing more than) the following twofold claim: (i) there are moral rights and obligations (ii) that are the same for all rational beings. While the imperatival form of SPM can be taken to give indirect expression to (i), the idea of moral universality (ii) is contained in the expression ‘universal law’. As Kant himself points out, SPM ‘only affirms what obligation is’ (MS 6:225). SPM requires us to act on maxims that can be universal laws. But if a maxim can be a universal law, then it is a universal law in the sense that everyone is at least permitted to act on it. Conversely, if my maxim cannot be a universal law, then everyone else is prohibited from acting on it too. Thus, according to SPM, acting on some maxim is morally permitted (prohibited) for one person if and only if it is morally permitted (prohibited) for everyone else. This means that SPM in effect ‘affirms what obligation is’ on a formal level by saying that rights and obligations, whether juridical or ethical, must be the same for all. It thus gives expression to the idea of moral universality.

Only if read in this minimal way can SPM serve as the supreme principle of both Ethics and Right. Put differently, what is common to Right and Ethics is not the command to act only on universalizable maxims (because that command, according to Kant, does not hold for Right), but rather the idea that there are moral rights and duties and that they take the form of ‘universal law’, which means that what is permitted (prohibited) for one must be permitted (prohibited) for all. Note that implicit in SPM and the idea of moral universality is the idea of moral autonomy. If moral rights and obligations must be the same for all rational beings, this is because they are based only on what all rational beings as such share, namely the capacity of (pure practical) reason. But this means that we can understand these rights and obligations not as external requirements but as an expression of our own will insofar as it is rational.

There are two things I would like to take away from our discussion of the relation between SPM and FUL. First, SPM and FUL are distinct principles in that only FUL, but not SPM, requires us to act only on maxims we can will to be universal laws. Thus, the supreme principle of the Metaphysics of Morals is not identical with (the basic formulation of) the supreme principle of morality Kant introduces in the Groundwork. Second, despite its imperatival form, SPM should be read as claiming that there are moral rights and obligations that, because they are based on pure practical reason, are the same for all rational beings. Only if read in this minimal way can SPM serve as the fundamental principle of both Right and Ethics.

1.4 Why ULR Cannot Be Derived from the Categorical Imperative Alone

According to a widespread reading of the Introduction to the Doctrine of Right, ULR can be derived from FUL (or at least falls under FUL as a special case). On this reading, the three features of Right that Kant mentions in RL §B (externality, efficaciousness, and formality) and that take him to his definition of Right and to UPL/ULR (RL 6:230–31) restrict FUL to the ‘formal’ compatibility of ‘external’ actions insofar as they can affect others. Since ULR requires me to restrict my sphere of external agency to the conditions under which it is formally compatible with the same sphere’s being granted to everyone else (‘in accordance with a universal law’), ULR may thus seem to be a restricted version of FUL.

But this picture cannot be correct. First, note that Kant himself never explicitly claims that ULR, UPR, or his conception of Right can be derived from FUL (or from any other version of the Categorical Imperative or from Kantian Morality more generally). He only says that Right is one of two branches of Morals, under which it falls or can be subsumed. Second, FUL commands us to act only on maxims we can will as universal laws. But as we have just seen, ULR in no way requires us to act on maxims that qualify as universal laws. All it says is that our actions (UPR: and their maxims) should be compatible (in a specific respect) with everyone else’s actions in accordance with a universal law. Thus, the appeal to universal law serves to qualify the way in which one’s actions and maxims are to be made compatible with everyone else’s, not to characterize the quality of one’s maxim. But if FUL requires us to act on universalizable maxims while ULR does not, ULR cannot be a special case of FUL (in the sense in which, say, ‘Do not lie under oath’ is a special case of ‘Do not lie’). And if it is not a special case of FUL, then it cannot be derived merely by restricting FUL to a specific set of actions or conditions.

Against this, one might respond that for ULR to be a restricted case of FUL it is not necessary for all acts permitted by ULR to be permitted by FUL. Since ULR only concerns external acts, irrespective of whether their motive is duty, lying, for instance, might well be permitted by ULR and prohibited by FUL, even if ULR is derived from FUL by restriction to external acts. Lying as such, except under oath, etc., is simply not an action type that falls under ULR.Footnote ¹⁸

While this is correct as far as it goes, it does not show how ULR can be derived as a special case of FUL. The problem is not simply that there are acts that are permitted by ULR but prohibited by SPM. Rather, the reason why something is permitted or prohibited according to ULR differs from the reason it is permitted or prohibited according to FUL. In the case of FUL, an act is permitted because its maxim is universalizable. In the case of ULR, an act is permitted not because its maxim is universalizable (since there are permissible acts whose maxim is not) but because it can coexist with everyone’s external freedom in accordance with universal laws. If ULR were just a special, restricted case of FUL, one would expect the reason why something is permitted (or prohibited) to be the same for both principles (or at least that the reason in the more general case forms part of the reason in the more specific case). But that is not so. Rather, FUL and ULR impose substantially different normative requirements on us (act on universalizable maxims; respect the equal freedom of others). Given the substantial differences between FUL and ULR, it seems unlikely that there is any other way to derive ULR directly from FUL or any other version of the Categorical Imperative.

Against this conclusion, Paul Guyer has proposed not one but three ways in which ULR (or rather UPR, which is the principle on which Guyer focuses) can be derived from the Categorical Imperative without additional normative input.Footnote ¹⁹ First, according to Guyer, the most fundamental value that grounds Kant’s ethics is the value of freedom, and its most fundamental principle is thus to act in such a way that the ‘greatest use of freedom is possible’.Footnote ²⁰ UPR is then supposed to follow ‘from application of the idea of the “greatest use of freedom” to the interpersonal case’.Footnote ²¹ Second, Guyer asks whether the ‘maxim of arrogating as much freedom for themselves as they like regardless of the effect on the freedom of others’ is universalizable (according to him, it is not).Footnote ²² Third, UPR ‘can also be derived from the Formula of Humanity’ (FH), which on Guyer’s reading requires that I ‘exercise my own capacity to set ends only in ways consistent with the capacity of all others to set ends’, from which it presumably follows that ‘the formula of humanity tells me always to exercise my freedom of choice only in ways that leave others equal freedom of choice – precisely what is required by the Universal Principle of Right’.Footnote ²³

I think that the first derivation fails because it does not distinguish between two notions of external freedom at issue in Kant’s conception of Right: one’s ‘pre-juridical’ freedom of choice and one’s juridical freedom (the latter being both limited and protected by universal laws of Right).Footnote ²⁴ Clearly, it cannot be a fundamental moral principle to secure the ‘greatest use of freedom’ if by that we mean the unrestricted use of one’s freedom of choice, since this would include unrightful and immoral uses of freedom. But if the principle is restricted to juridical freedom, it just becomes a version of UPR: secure the greatest possible freedom for yourself that is compatible with the same freedom for everyone else. UPR would then be derived not from FUL but from a principle that is just another version of UPR and that, therefore, cannot be the supreme principle of both Right and Ethics. Perhaps there is some third notion of external freedom (let us call it moral freedom) that is fitting for a moral (not specifically juridical) principle of greatest freedom – perhaps ‘freedom as constrained by FUL’. But if so, Guyer does not provide it here.Footnote ²⁵

The second derivation rests on the claim that the maxim of arrogating more freedom for oneself than one grants to others is not universalizable. Bringing this idea even closer to a possible derivation of ULR or UPR, we can ask whether the maxim of not (always) acting in accordance with ULR (that is, not always ‘act[ing] externally such that the free use of your choice can coexist with everyone’s freedom in accordance with a universal law’) passes the FUL test. Obviously, it is logically possible for this maxim to be a universal law, since such a situation is just what Kant, with the tradition, calls ‘the state of nature’ (natürlicher Zustand, RL 6:306). Now according to FUL, we must next ask whether one can rationally will such a situation, and Kant is ultimately committed to the claim that one cannot (cf. RL 6:307).

But note that his argument for this claim is that only in a civil state (bürgerlicher Zustand, a state in which Right is realized) can people’s juridical rights be secured and conflicts about such rights resolved in a non-arbitrary way (namely in court) (RL 6:306). Thus, Kant’s argument against the state of nature already presupposes what he calls ‘private Right’ (with its presumptive subjective rights, e.g. to freedom of speech and to property) and thus presupposes UPR. Moreover, Kant claims that in the state of nature ‘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’. He concludes:

Thus, Kant himself argues that, at least from the perspective of the individual agent, willing to live in the state of nature is rationally possible (‘as if by mutual consent’) as long as we ignore each other’s juridical rights. It is only once we take into account the additional requirement to leave the state of nature, which already presupposes private Right and ULR, that this maxim can no longer be willed as universal law. But this means that the maxim in question (of not always acting in accordance with ULR) fails to be universalizable only if we already presuppose that there are juridical rights according to ULR, which is just what was meant to be derived.

Finally, we can see that something is amiss with Guyer’s third derivation from the fact that its conclusion (‘to exercise my freedom of choice only in ways that leave others equal freedom of choice’) contains an idea not contained in FH as interpreted by Guyer (‘exercise my own capacity to set ends only in ways consistent with the capacity of all others to set ends’), namely that of ‘equal freedom’. FH requires me always to treat others in ways to which they can rationally consent. But in not respecting their juridical rights (not granting them equal freedom), I do not necessarily violate this requirement. The reason, again, is that in the state of nature, as long as others do not grant equal freedom to me, I am not morally required to grant equal freedom to them. Thus, it is not the case that in the state of nature, where there is no ‘equal freedom’ because, ‘as if by mutual consent’, the strongest prevails, I automatically violate FH (treat others as mere means), since our relation may still be entirely reciprocal and consensual.

I conclude that Guyer’s three proposed derivations of UPR/ULR from FUL and FH are unsuccessful. Ultimately, I think that no such derivation is possible because Kantian Right is not a state in which everyone voluntarily acts in accordance with ULR (that is, respects equal spheres of freedom for all), but rather a state in which everyone is guaranteed to act that way, willingly or unwillingly, where this guarantee involves the use of coercion where necessary. As I have argued elsewhere, this ‘authorization to use coercion’, which according to Kant is analytically linked to the concept of Right (RL 6:231), cannot be justified merely by appeal to FUL, FH, or SPM.Footnote ²⁶ Let me close this section by briefly commenting on Guyer’s discussion of one of my arguments for this claim.Footnote ²⁷

The argument in question is that if FUL were to include the authority to use coercion in the juridical case, it would also include that authority for some ethical cases, which would clearly be inappropriate. Guyer thinks that ‘this is the most promising’ of the arguments I offer and rightly points out that the ‘difficult cases’ for someone who wants to resist this argument ‘will be perfect duties to others, such as simply keeping promises, that do not seem to be desirable candidates for coercive enforcement’.Footnote ²⁸ Guyer’s main line of response is that failure to keep non-contractual promises is ‘not really a hindrance to freedom’ and that therefore the keeping of such promises cannot be coercively enforced. So the idea is that while we are morally obligated to keep our non-juridical promises, this obligation cannot be coercively enforced because breaking such a promise does not hinder the promisee’s freedom. Guyer admits that this ‘may seem implausible’, but he then argues that ‘rational agents do not place too much weight on promises that do not take the form of legally enforceable contracts’.Footnote ²⁹ Therefore, according to Guyer, their freedom is not hindered by someone’s breaking such a promise. But that still seems implausible. We often rely on promises that are not legally enforceable, such as a friend’s promise to stand by my side even in difficult times or a wedding vow of mutual faithfulness. In many ways, non-juridical promises can be more important to us than legally binding contracts, and important parts of our lives depend on them. Moreover, breaking a non-juridical promise can very well limit our freedom in that it can hinder us from doing something we could, and would, otherwise have done. Thus, we still lack a principled way to distinguish between duties that are coercively enforceable and those that are not without already presupposing a Kantian conception of Right (with its analytic link to coercion).Footnote ³⁰

In sum, there is reason to doubt that ULR can be derived from FUL alone (or from any other version of the Categorical Imperative) without introducing additional normative resources, and recent attempts to provide such a derivation remain unconvincing.

1.5 How ULR Can Be Derived from SPM (in Conjunction with the Idea of Subjective Rights)

In this section, I will argue that ULR (and thus Kant’s conception of Right) can be understood as combining SPM with the claim that there are coercible juridical rights. If there are such rights, then, according to Kant, it follows analytically that they must form a system, which Kant calls Right. (Note that the following ‘derivation’ of ULR does not in itself constitute a justification of juridical coercion but presupposes that there are coercible juridical rights. I will return to the question of how to justify coercion at the end of this chapter.)

Let us start from the claim that juridical rights must form a system. This follows from a principle I have elsewhere called the Impossibility of Conflicting Juridical Rights (ICJR).Footnote ³¹ It says that if you have the right to do F, then no one else can have a right to do something that makes it impossible for you to do F:

Thus, ICJR implies that all juridical rights must be compossible, that is, that it must be possible for all juridical rights to be jointly exercised. In recent legal and political theory, this claim has been the subject of much debate.Footnote ³² Nevertheless, I take ICJR to be a conceptual truth about juridical rights in Kant’s sense. To be sure, there can be ‘rights’ in a wider sense that do conflict – such as my ‘right’ to privacy and your ‘right’ to security. But these are not all-things-considered juridical rights in the Kantian sense, which are coercively enforceable, but rather pro tanto rights (or perhaps, in analogy with Kant’s resolution of conflicting duties, grounds of rights; cf. MS 6:224). Only when it has been determined (typically by a court of law) whether in a particular case your ‘right’ to security or my ‘right’ to privacy prevails do we have a juridical right in Kant’s sense that can be coercively enforced (e.g. my right to keep my email messages private or your right to have them searched). Even though Kant does not explicitly articulate ICJR, he is clearly committed to it by the way he argues for the analytic link between right and coercion (RL 6:231).Footnote ³³

Now, ICJR implies that different people’s spheres of legally protected freedom (subjective juridical rights) must be limited in a way that avoids the possibility of conflicting rights. If A has an unrestricted right freely to speak her mind and B has an unrestricted right not to be spoken ill of in public, these rights can conflict if A thinks ill of B and makes use of her right to say so publicly. Thus, because of ICJR, either A’s or B’s right must be limited in order to form a system of compossible rights. In principle, this can be done in many possible ways, for example by giving all rights to one person and none to all others, or many rights to women and few to men. Any distribution of juridical rights that avoids conflicts between rights would satisfy ICJR. But clearly, unequal distributions of rights violate the idea of moral universality expressed in SPM, which requires that juridical rights (spheres of legal freedom) must be the same for all.

But if ICJR is combined with SPM, what results is the idea of Kantian Right and ULR. While ICJR implies that spheres of freedom must be limited (or ‘united’) so as not to conflict, SPM means that this limitation must be the same for all (‘in accordance with universal law’). Taken together, they require us to limit people’s spheres of freedom in a way that grants everyone a sphere of juridically protected freedom that is compatible with granting the same sphere of freedom to everyone else. Thus, given the idea of moral universality, if there are any juridical rights at all, they must conform to ULR. Assuming that there can be no justification of Kantian Right (with its emphasis on ‘universal law’) that does not appeal to the idea of moral universality, this means that SPM is necessary, and in conjunction with ICJR also sufficient, for justifying ULR.Footnote ³⁴

I hope that the reading developed here can capture what I take to be the correct insight in interpretations of Kantian Right that aim to derive ULR or UPR from FUL or SPM, namely that Kantian Right is one instantiation of a more general idea that is also instantiated, although in a different way, in Ethics. What is common to Right and Ethics is the assumption that there are moral rights and obligations which, because they arise from rational principles, are the same for all rational beings, a universality which is expressed in SPM (as well as in ULR and SPE) by appeal to ‘universal law’. Where the reading proposed here differs from those other readings, however, is in its denial that either FUL or SPM alone is sufficient to justify Kantian Right. On the reading suggested here, what is needed in addition to SPM (i.e. in addition to the idea of moral universality) in order to justify Kantian Right is the assumption that there are coercively enforceable rights. While Right applies the idea of moral universality to subjective juridical rights (requiring that the coexistence of individuals’ rights results in equal rights for everyone), Ethics applies it to people’s maxims and ends (requiring us to act only on universalizable maxims).

1.6 The Resulting Picture

In this chapter, I have tried to elucidate the relation between Kantian Morals, Right, and Ethics by discussing the relation between their ‘supreme principles’ (and the Categorical Imperative from the Groundwork). The basic principle of Kantian Morals is SPM, which Kant formulates as the imperative to act on maxims that can hold as universal laws. As I have argued, however, SPM is best understood as an expression of the claim that there are moral rights and obligations which, because they arise from pure practical reason, are the same for all rational beings.

This general claim has two basic applications: Right and Ethics. In Right, the idea of moral universality is applied to juridical rights. Since the juridical rights of different people cannot conflict, they must be (coercively) ‘united’ in a system of rights. SPM requires that these rights be distributed equally, ‘in accordance with a universal law’. In this sense, Right is a special case of Morals, and its supreme principle (UPR/ULR) is a special case of SPM. But this does not mean that ULR can be derived from SPM alone. What can be derived from SPM in conjunction with the idea of juridical rights is the conditional claim that if there are juridical (coercible) rights, they must take the form of a system of equal rights for all. In order to derive UPR/ULR itself, the existence of juridical rights must already be presupposed. But note that this does not mean that juridical rights are normatively prior to, or more basic in the order of justification than, UPR/ULR. It only means that we can understand UPR/ULR as a combination of central elements of Kantian Morality (rights and obligations based on pure practical reason, moral universality) and the idea of enforceable rights (which necessarily form a system). When it comes to justifying UPR/ULR or to explaining its normative validity, there is nothing more basic on which UPR/ULR could be grounded, because the fundamental juridical rights that are normatively valid for us, according to Kant, are those that hold equally for all rational beings, that is, those defined by UPR/ULR.

In Ethics, the idea of moral universality is applied to the two ends reason prescribes to each of us: moral self-perfection and the happiness of others. As Kant maintains, these ends must be pursued only in ways that respect the equal moral standing of all, which means that they must be pursued in maxims that can hold as universal laws (SPE). Even though this has not been the topic of this chapter, there is little reason to assume that SPE, so understood, can be derived from SPM alone. For instance, that the happiness of others is ethically important is something that does not follow from the idea of moral universality (SPM). Rather, the two ethical ends must be presupposed, and combined with the idea of moral universality, in order to arrive at SPE. Again, this does not mean that self-perfection and the happiness of others are normatively more fundamental than SPE, but only that SPE can be understood as a combination of these two ends with other elements of Kantian Morality. When it comes to justifying SPE, there is nothing more basic to which one could appeal and that would explain the validity of SPE without already presupposing SPE in one way or another.

Thus, Kant’s conception of Morals is united by the ideas (i) of rights and obligations based on reason and (ii) of ‘universal law’ or moral universality. It is these ideas that are shared by both Right and Ethics. As I have argued, however, this does not mean that the supreme principles of Right and Ethics can be derived from something more fundamental (such as SPM or FUL). On the reading defended here, Right and Ethics are both equally fundamental and underivable expressions of Kantian Morals, with its idea of moral universality.

Now it may seem that, unlike Ethics, Right stands in need of further rational justification because it involves the authorization to use coercion. Since coercion consists in making people do something they would not have done freely (cf. RL 6:231; TL 6:379), we need to explain what gives us the right to coerce someone and thus to restrict their freedom. But note that if Right cannot be derived from anything more fundamental, this does not mean that it cannot be rationally justified from within the perspective of Right. The inherent rationality of Right (including the authorization to use coercion) is evident in the fact that someone who violates other people’s rights cannot reasonably complain if she is coerced into respecting those rights (as long as the coercive measures are proportionate, of course).Footnote ³⁵ In particular, she cannot rationally insist on her right to do as she pleases, or her right not to be coerced, since juridical rights, as we have seen, necessarily form a system in the sense that one person’s right is mutually dependent on any other person’s right. (This is implied by ICJR.) It is therefore rationally impossible to insist on one’s own rights without granting equal rights to everyone else. (This is implied by ICJR in conjunction with SPM.) Thus, while it may be rationally possible to reject the whole idea of Kantian Right, it is impossible to rationally object to the fact that other people protect their own rights and the rights of others coercively, since doing so would amount to insisting on one’s own right not to be coerced, which in turn implies granting equal rights to all others. This, it seems to me, is entirely sufficient as a normative justification of Kantian Right.

2.1 Obligation in Classical Theories of Natural Law

In the Natural Law tradition since Francisco Suarez and Hugo Grotius there is a broad consensus that all kinds of obligation derive in the final instance from a single source: from the divine will, from the reason-guided voluntas Dei: ‘Thy WILL be done in earth, as it is in heaven’. Accordingly, all obligations arising from human legislation must also be traceable to this single source: Fundamental natural law is ultimately divine law. Gottfried Achenwall, the author of the textbook Kant used for his lectures on Natural Law, can hardly be surpassed in clarity on this point:

Of course different legal scholars in that period attributed the law-giving authority of God to different qualities in God, whether it is that he does not allow contradiction because of his omnipotence (as in Hobbes – in reference specifically to legislation for the Commonwealth Ecclasiasticall), or that no reasonable doubt about his prescriptions is possible because of his omniscience and omnibenevolence (as in Leibniz), or that this authority simply derives from his privilege as creator of the world (as in Locke and Achenwall) – or (as for instance in Pufendorf) from some combination of these elements. But these are differences that have a common ground.

The unity of all kinds of obligation cannot arise from contingent properties of (human) nature or community, but requires a peculiar source. This is also indisputable for Immanuel Kant:

2.2 The Concept of Law

The Law (Jus), the natural law sensu stricto or simpliciter (see Achenwall, Prolegomena § 99), is essentially distinguished within general morality (i.e. natural law in the broader sense, late dictum/latius dicta) by the fact that it refers solely to those actions that (1) can be perceived through the external sense (‘sensu externo aliorum percipi possunt’), that is, also by other people and (2) on the other hand, constitute an injury to other people (a ‘violatio alteri homini’; see Achenwall §1 and § 112). Kant, of course, is familiar with the relevant discussion since Hugo Grotius’ time from Gottlieb Hufeland’s Versuch über den Grundsatz des Naturrechts of 1785 (which he reviewed immediately after its publication, see Rez Hufeland 8:127 ff.): only ‘external’ actions of this kind are both (1) capable of external (i.e. human) legislation (because only they are epistemically as well as practically accessible to other human beings) and (2) also in special need of it (because only they also affect other human beings). And these two aspects are also directly connected, as we already find in Grotius, who refers to the Christian tradition here. Briefly:

And within the framework of this tradition, the law of justice or of right, to emphasize this once again, is in the final instance also divine law.

2.3 Obligation in Kant

At the latest since his Grundlegung zur Metaphysik der Sitten of 1785, any kind of obligation for Kant is quite explicitly no longer dependent on the voluntas Dei endowed with punitive authority.Footnote ⁴ Any obligation is ultimately based solely on the pure legislative will (‘reiner Wille’, GMS 4:390) of the free being itself: Morality and autonomy are inseparable.

The formula for all varieties of obligation is thus the Categorical Imperative – or the one and only moral law, which in Kant has systematically taken the place of the one divine law:

There are no obligations, no duties without the moral law (period!). Since Kant also explicitly understands law or right as a relationship of persons (RL 6:230), and since personality for him is the ‘freedom of a rational being under moral laws’ (RL 6:223), the highest principle in respect of legal obligation must for him in the final instance be derived from the Categorical Imperative as the origin of any obligation, of all duties: alterum non datur;Footnote ⁸ and this is precisely what Kant succeeds in doing quite directly, as will be shown below.

2.4 The Principle of Right and the Principle of Morality

This derivation draws the formula of the General Law of Right directly from the formula of the Categorical Imperative, the supreme ‘principle of morality’. Here are the two formulas:

The derivation in question is of almost stenographic brevity and presumably therefore increasingly difficult to understand with greater distance from the natural law tradition. This has led to various elaborate strategies of reconstruction, up to the assumption that legal obligation is for Kant – contrary to the natural law tradition as well as contrary to Kant’s own explicit statements – not a special case of obligation (i.e. moral necessitation) through the Categorical Imperative at all, but a sui generis complex of ‘obligations’. The Doctrine of Right would thus – even against Kant’s architectural decision to include it in that very book – not be part of a Metaphysics of Morals at all,Footnote ¹¹ which nevertheless explicitly presupposes the doctrine of freedom from the Critique of Practical Reason:

The so-called independence thesis, which breaks up the systematic unity of the Doctrines of Right and of Virtue, must then consequently give its own answer to the question of what the binding nature of juridical laws, the obligation, is supposed to be based on (if not on the moral law), since no explicit answer to that question can be found in Kant’s texts. An additional hurdle here is that for Kant, obligation, as shown, is already a moral concept by definition, and this also refers, as we saw, directly to the theory of autonomy from the Groundwork and the second Critique.

If one starts with the above-mentioned, traditional definition of Jus (Recht) as a concept of external legislation (RL 6:229f.) and then adds the familiarFootnote ¹³ insight that there are actions or ways of acting that ‘cannot possibly be done with good intentions’ (fornication, adultery, drunkenness, blasphemy, and theft are the traditional standard examples), then one immediately will arrive at Kant’s formula in § C:

The part of the quotation after the dash (and starting with an ‘or’) might be irritating especially for readers who are too familiar with Kant’s moral philosophy as it is presented in the Groundwork and the Second Critique. There seems to be a problem in joining the concept of a maxim from his earlier writings to the formula in § C. In these earlier writings, there are no maxims of actions at all, but only maxims of the agents, these maxims being the subjective principles of their actions. And the moral worth of these actions depends on these subjective principles being in conformity with the Categorical Imperative.

But for Kant the individual subjective maxim or the intention of the agent cannot be recognized by other persons (and at least in some cases not even by the agent himself: GMS 4:407) and is thus, e suppositione, inaccessible to any external legislation (see § B, RL 6:230) – and thus this maxim cannot be the one that is meant here in § C. Why then does Kant add the phrase with the ‘maxim of the action’ and why does he add it with help of an ‘or’? The answer is straightforward: because Kant has to make sense of the expression that an action ‘can coexist with everyone’s freedom in accordance with a universal law’ in the framework of his own theory of action. How can an action be in conformity or in conflict with any law, if not by a maxim?

If an agent acts willingly at all (and does not merely behave unconsciously like a brute or even a plant), he acts according to some maxim (propositio maxima), that is, ‘according to the idea of laws, i.e. according to principles’ (GMS 4:412). And these principles are either compatible with the Categorical Imperative or they are not: Even the criminal is supposed to act on a maxim (RL 6:320n.) when he commits a crime. In short: Where there is no (subjective) principle, there is no (voluntary) action at all:

Only where there is a maxim, can there be a conflict with a rule or with a law. In the absence of any plausible alternative, the phrase ‘maxim of an action’ in fact has to be (and naturally can be) read as meaning that an action is right precisely if at least one (subjective) maxim can be conceived for this action that would be compatible with the Categorical Imperative (traditionally speaking: ‘for which there is some good intention’).

It is important to note that the externality of right (as defined in § A and then spelled out in § B) is the guiding idea here to transform (or to mitigate) Kant’s general moral commandment (his ‘Sittengesetz’) into his (mere) legal commandment (his ‘Rechtsgesetz’). In this step, Kant follows his point of reference Achenwall (see Section 2.2) seamlessly and without any attempt to distinguish his position from that of Achenwall. The maxim (or intention) according to which the agent actually acts cannot be judged in Jus, namely externally, ‘sensu externo aliorum’, e suppositione – and this is even mirrored in Kant’s definition:

And hence we read in a preliminary note to the Metaphysics of Morals:

1. 1. Doctrine of law. The concept of duties that take place independently of all incentives for their observation.

2. 2. The Doctrine of virtue is the epitome of duties that make themselves the incentive of movement.Footnote ¹⁷

Kant had already emphasized in the Groundwork (GMS 4:397) that in the case of the prudent merchant, for example, his clients cannot know what his maxim or his motive is, that is, whether he is acting only out of self-interest, merely ‘pflichtgemäß’, or whether he is acting out of duty (and whether his subjective maxim therefore has ‘moral content’, i.e. ‘value’). But – and this is the underlying thought, at least implicitly, and not only for Kant – if and only if no morally compatible maxim, that is, no maxim compatible with duty, can be conceived for an action in the given context, is it then definitely certain – even for an external legislation – that the agent is not acting according to such a maxim: simply because there is none. And if there is in fact no possible maxim at all compatible with the Categorical Imperative, the action itself (more precisely: the type of action as such) is therefore necessarily ‘pflichtwidrig’, morally forbidden: there is a duty to refrain.

On the other hand, if, for example, for any alleged act of ‘fornication or theft’, even one single subjective maxim could actually be conceived that is in accordance with the Categorical Imperative (i.e. if, traditionally speaking, ‘fornication or theft’ were also possible ‘with good intention’), then it would not be possible for any (external) human legislation to conceive of that particular act of fornication or theft itself as forbidden. For in order to recognize the unlawfulness of one’s action, one would have to know, besides the external action (or behaviour), that the particular subjective maxim of the person acting is not the one compatible with the Categorical Imperative. For this, however, one would need a ‘Herzenskündiger’ [‘heart’s discerner’] who ‘see[s] through the innermost part of everyone’s mind’ (KU 6:22 ff.) and in the given case actually recognizes the particular underlying subjective maxim of the agent and not only its ‘appearance’ in actions (ibid. 72; or RGV 6:99). Only then could we apply to it the standard of virtue (moralitas) over and above the standard of legal obligations (legalitas). Such an examination, at least according to the canonical view, only happens through God and, moreover, not ‘in time’:

Thus, by definition, law is only concerned with permitted (or prohibited) actions (legalitas), types of action for which a ‘pflichtgemäße’ maxim is possible (or not):

The value of a particular action – more precisely: the ‘moral content’ of the respective subjective maxim (GMS 4:398) of the agent – is the sole concern of ethics, because the subjective maxim of the agent, if there is any, is only accessible to the agent himself:

As far as I know, Kant never speaks of external actions that are in accordance with duty and that would themselves be possible exclusively from duty. And one should not even expect this, since in fact there is no ‘right’/‘just’ (external) action that one could not do for the ‘wrong’/‘evil’ reasons (while there are no ‘morally good’ pro tanto reasons for ‘unjust’ actions). In a given context, for every external action whose maxim has moral content one can easily imagine maxims that in fact do not have any such content. Think, for instance, of the prudent merchant with the subjective maxim, contrary to duty, of keeping contracts (if and) only if it benefits him. As long as he assumes that no breach of contract goes unpunished in the state, he will keep his contracts no less than the most virtuous merchant who always keeps them ‘from duty’. The ‘sensus externus aliorum’ will not be able to make out any relevant difference between the particular acts of the two – and will accordingly have to treat them the same in Ius. Kant expresses this with all the clarity one could expect:

And it is precisely for this reason that Kant can claim in the Friedensschrift (ZeF 8:366) that a republican state would also be possible for (‘für’, not ‘by’) a ‘people of devils’ (if they only had sense, reason, and demanded their preservation). Clever sanctioning institutions could turn even such Kantian ‘devils’ (like the strictly rational and selfish merchant just mentioned) into law-abiding ‘good citizens’ without having first transformed them into morally ‘good people’ – and, one can add: even without having to presuppose in them any ‘consciousness of obligation for the law’, namely pure practical reason, at all. This is what Kant pointedly wrote in 1795 for those German princes who wanted to justify their unwillingness to reform by saying that republicanism was suitable only for a nation of gods or angels (as Rousseau implicitly admitted).

Even more fundamentally (as we learn from the last quote), the positive value of an individual action (that it really ‘happened solely out of duty’), namely the moral content of its subjective maxim, not only remains hidden from legal-political authorities and fellow citizens, but, as Kant emphasizes here again, in the end it is not even reliably revealed to the agent himself (see RGV 6:20, TL 6:393, 441, 447). Therefore, a fortiori, all attempts to access the subjective maxims of the agent in the assessment of legalitas are at best a stopgap:

2.5 Persons and Things

But why then do we still need the status of a person, namely an awareness of the binding nature of moral laws in the Doctrine of Right, at all? The answer is evident if we take a broader point of view and recognize that the Doctrine of Right not only deals with the right to coerce but at the same time with limits of legitimate coercion vis-à-vis persons, vis-à-vis beings who can have duties and thus rights in the first place (see RL 6:239 note). § E of the Doctrine of Right leaves no question open here:

It is of course beyond question for Kant’s contemporaries and needs no further emphasis that one is allowed to treat any being (rational or not) at will as long as it does not have the status of a person, in Kant’s terms, as long as it lacks any awareness of obligation by the Categorical Imperative. In the Kantian sense these beings are mere things (‘Sachen’, RL 6:223) without duties and thus without rights. To treat such a ‘thing’ nonetheless like a person is not unjust at all.Footnote ²⁶ Hence the legal status of ‘personhood’ is mainly the privilege of being ‘right-bearers’. And often we can grant such a privilege even to beings who do not deserve it (or at least: to those of whom we do not knowFootnote ²⁷ whether they deserve it or not). This might be imprudent in a given case (to open the tiger’s cage), but it is no injustice to these beings. In sum, no rational being can complain if it is coerced by others to act according to the Kantian imperative of right:

This means: act in such a way that your subjective maxim could be one that would pass the test of the Categorical Imperative, even if the action in fact proceeds from fear of punishment (or even ‘from Avarice, or Lust, or Anger, or imprudent Pity, or Ambition, which are usually the Sources of the greatest Injuries’, see the quote from Grotius above). Persons as autonomous beings have no right to act against the Principle of Right in particular and thus have no moral reason to complain if they are coerced suitably – and non-persons have no rights at all and therefore no ‘moral’ reason to grumble if they are coerced.Footnote ²⁹

2.6 Right and Morals

If we reconstructFootnote ³⁰ Kant’s path from his ‘Principle of Morality’ to the ‘General Principle of Right’ in RL §§ A–E as proposed above it is short and completely transparent in substance – at least if we read it against the background of both the natural law tradition and Kant’s own doctrine of obligation. However, it is not necessarily easy for us later readers to follow. When we turn to the Doctrine of Right, after all, we usually have fewer preconceptions based on the teachings of the natural law tradition than on Kant’s writings in moral philosophy (such as the Groundwork and the Second Critique) with their dominant interest in the value of the actions and maxims. It can therefore easily appear to us as a shortcoming of Kant’s presentation that he (as it were entirely without preparation) speaks of an ‘action’ and ‘its maxim’, that is, of a ‘maxim of action’ sensu stricto (and not – as in the aforementioned writings – in the sense of a particular ‘maxim of the agent’ as an expression of his ‘Gesinnung’).

But then we overlook that two things seem to be self-evident for Kant – and should also be so for his readers: (1) Every action sensu stricto is performed under some maxim, for only in this way is it an expression of a will (or choice) which, as liberum arbitrium, determines itself not only according to stimuli (as the arbitrium brutum) but always also according to principles (A 802; GMS 4:412.26f.), be these conformable to morality or not. And (2): in Jus, the actual maxim of the agent (his or her subjective principle of action) must, by default, remain unknown and thus cannot play any role at all (thus it must not). Hence, the only thing that matters for the doctrine of right is (3) that an external behaviour in question (a) can be conceived as an action according to some maxim at all (and not merely as unreflective, as it were ‘brute’, behaviour). And if so, that this maxim can then also be thought of (b) as one which and under which the action ‘can coexist with everyone’s freedom according to a general law’. Then and only then is the external behaviour to be regarded as an external action (per ‘a’) and as morally permitted (per ‘b’), that is, as e definitione right. Thus others have a duty to refrain. All other behaviour may – this now almost goes without saying – be prevented by others with coercion anyway. They have no duty to refrain, since a person’s freedom is always already ‘restricted in the idea of it [sc. to lawful action]’ (§ C, RL 6:231). The obstruction of an obstacle to freedom, whatever else it may be, is at least not a restriction of freedom (§ D, RL 6:231) – and thus, for its part, cannot constitute a moral and thus, a fortiori, legal breach of duty:

By bringing into play his new concept of (moral) obligation, which he had precisely spelled out since the 1770s in terms of the Categorical Imperative – that is, by speaking not of the appropriate intention (intentio recta, animus bonus, etc.) of the agents but, more precisely, of their maxims and thus also about the possible maxims for the respective actions – Kant sharpens the distinction between Jus naturae and Theologia moralis already pointed out by Pufendorf in the Introduction of his De officio hominis et civis (1673).

We can also recognize that Kant already had precisely this separation of Jus and Ethica in mind for a long time, even if he first specified it definitively in his Introduction to the Doctrine of Right in 1797 with his new concept of ‘legislation’ (‘Gesetzgebung’, RL 6:218). He was able to be so brief in demarcating Ius from Ethica at that time because he could assume that everything that might be unfamiliar to his contemporary readers, namely his decisive philosophical innovations, had already been sufficiently dealt with in the Second Critique and in the Introduction to the Metaphysics of Morals, which explicitly (RL 6:222) precedes both parts, the Doctrine of Right and the Doctrine of Virtue. This was his new theory of the entia moralia, namely of personhood as autonomy, and thus of all laws of morality as categorical imperatives for maxims (RL 6:213f., 221ff.). And what was then still missing he summarized in the final definition of strict law (§ E), which I have already quoted (see Section 2.5).

2.7 Coercion in Natural Law

This also brought to an end the debate about the appropriate definition of Ius, which was widely documented in Hufeland’s book from 1785. For Kant the power of coercion is indeed analytically contained in the concept of Ius (thus RL 6:231 TL 6:396), but coercion need not therefore be a component of the definition of the concept of Ius/Right. The legal possibility of coercion is rather an immediate consequence of the externality of Ius – if we add the important insight that every external legislation for rational beings with sensibility requires some motive force in addition to the binding law in order to be able actually to determine actions (RL 6:222). Only in this way does a law become a component of a legislation (‘Gesetzgebung’). In the (merely external) Ius, only the threat of coercion in conformity with the law can serve as a motive force, since respect (‘Achtung’) for the law, which can fulfil this task in the (internal) Ethics, is reserved for the latter alone – and tertium non datur.

It was precisely the obvious requirement of a motive for bringing about humans’ compliance with the laws in Jus and Ethics that had led Wolff and the Wolffians to the wilfully exaggerated doctrine that obligation itself consisted essentially in a nexus of action and motivation, actio and motivum.Footnote ³² This doctrine was still followed by the young Gottfried Achenwall when, freshly appointed from Marburg to Göttingen, he published his first textbook on Natural Law in 1750 together with J. S. Pütter.Footnote ³³ In Göttingen, Achenwall was the successor of Samuel Treuer, who had already led a sharp polemic against Wolff’s doctrine of obligation in the 1730s and defended Pufendorf’s classical theistic doctrine against Wolff’s (and Leibniz’s) objections. In the year of Wolff’s death, Achenwall published a rehabilitation of Pufendorf’s theory of obligation fuelled by the writings of his predecessor.Footnote ³⁴ When he wrote the third edition of his textbook (and the Prolegomena) one year later he was no longer the Wolffian in the theory of obligation he had started out as in Halle and Marburg, but had turned into a Pufendorfian (see his Prolegomena § 50, quoted in Section 2.1) – and this is exactly how Kant then came to know him as the author of his textbook. Here legal obligation does not coincide with the effectiveness of the motive (provided, for example, by the threat of punishment), but stems from the authority of the will that links such a motive to the action. This is either the will of God as lawgiver, or of a human lawgiver authorized by divine natural law. Obligation is thus essentially a relationship of will and does not depend on the motive alone as in Wolff and in the early Achenwall but mainly on the authority of the law itself.

But even the later Achenwall still took for granted, that obligation presupposes that God’s lawgiving will makes the rules of reason obligatory by adding a motive (e.g. like the threat of punishment) to it:

In his lecture on natural law from 1784 Kant rebutted sharply even this ‘Achenwallian blend’ of Wolffianism and Pufendorfianism for the first time:

2.8 Kant’s New Concept of ‘Lawgiving’ (Gesetzgebung)

It took more than ten years until Kant could wrap this fundamental insight from 1784 into his new definition of a ‘Gesetzgebung’ (lawgiving), which puts together the ‘Gesetz’ (i.e. the source of obligation on one side) and the ‘Triebfeder’ (i.e. the source of motives on the other) into one new concept:

We know that we are obliged from the moral law alone whose binding force is a fact of reason (and the only ‘ratio cognoscendi’ of our freedom and personality, KpV 5:4, RL 6:239). And our motives to act in accordance with that moral law are twofold: the very idea of being obliged by one’s own reason itself (in ethical lawgiving by respect for the law) or something different (in juridical lawgiving by ‘praemia et poenas’). In the case of external actions, the latter may be even the threat of legal punishment by other human beings.

The unity of Jus and Ethica is guaranteed by the unity of the source of obligation alone: the one and only moral law. Their (only) difference lies in the source of motives for our acting in accordance with that law. These motives are thus not the grounds (or sources) of our obligation (pace Wolff) nor even necessary parts of it (pace Achenwall, Baumgarten – and the Canon of Kant’s First Critique). Since his Groundwork (1785) Kant thinks the other way round: motives are only morally possible, as long as they are in conformity with our duties from the moral law.

Therefore Kant’s terms ‘juridical duty’ and ‘ethical duty’ both refer to moral duties.Footnote ³⁸ The former refers to those kinds of moral duties that can be part of juridical lawgiving (see § A), the latter to those that cannot (RL 6:219). And since we can fulfil any duty from duty alone (since we are autonomous), all juridical duties are indirect-ethical duties when considered as part of ethical lawgiving (RL 6:221). ‘Pacta sunt servanda!’ is a juridical duty, but it does not cease to oblige us if the threat of enforcement or punishment is actually missing (RL 6:219).

Indeed, we find the core of the classical natural law doctrine in Kant’s Introduction to the Metaphysics of Morals – but, of course, without the heteronomistic reference to the Will of God, and without any reference to motives:

Accordingly, a central task of the main text of the Doctrine of Right will be to demonstrate our obligation (as persons) to submit to an external legislation that represents the idea of a general legislative will of the people (Rousseau’s volonté générale): Thus we will impose new juridical duties on ourselves as persons. The first step of that demonstration essentially takes place in §§ 1–9 of Private Right, where Kant shows that any juridical reference of persons to external objects (‘Äußeres Mein und Dein’), in particular to the finite land supply of the earth, the ‘globus terraquaeus’ (RL 6:352), can only coexist with the freedom (see § C, RL 6:230) of those persons through an omnilateral contract, namely through establishing a common will of all those concerned as an artificialFootnote ⁴⁰ source of their obligations (§§ 8f., RL 6:255ff.). Hence the moral imperative to establish public right, according to Kant its categorical imperative, is: exeundum est e statu naturali (RL 6:307). And since this (moral) duty ‘allows for an incentive other than the idea of duty’ it is a juridical duty – and thus, of course, an indirect-ethical duty too (RL 6:219).

2.9 Epilogue

Returning to the core idea of our reconstruction of the argument in §§ A–E of the Doctrine of Right, I would like to point out that (to paraphrase a formulation of the Groundwork, GMS 4:454) ‘the practical use of common legal reasoning confirms the correctness of Kant’s deduction of the general principle of Right’. Those who convince the court, for example, that their conduct can be interpreted as an expression of acting according to a permissible maxim are usually acquitted – albeit often grudgingly: think, for example, of major economic offences, when it is said, mutatis mutandis, ‘An intention to defraud could not be proved’.

Some external conduct, on the other hand, can only be declared an attributable act by assuming such an ‘intention to defraud’ – and as such would then definitely be unjust. Of course, it is always a question of the extent to which the external conduct (including the previous history and the expected course of action) can and must be taken into account in this consideration. But let us take as an example someone who in a department store carefully stows a tiny umbrella in his bag and immediately rushes out into the sun-drenched pedestrian zone without paying and disappears into the crowd. He will not be able to explain convincingly to the store detective who has rushed over (and later to a judge) that he only wanted to try out the umbrella once in order to bring about the decision to buy it.Footnote ⁴¹ But if he somehow managed to explain his behaviour convincingly as being compatible with another ‘legal’ maxim formerly undisclosed, for the court his behaviour would count only as the misleading expression of an essentially lawful action, according to whose maxim his freedom may well coexist with that of others (perhaps a ‘mere fault’, not a serious crime; RL 6:224). And because not only the judge, but also any possible lawyer, is not a ‘heart’s discerner’ and therefore can at best assume the maxim, it is in principle morally possible for the lawyer to plead before the judge for the acceptance of that possible maxim, according to which the conduct of his client does deserve the least drastic punishment or no punishment at all: In dubio pro reo.

According to Kant, it is possible to differentiate between legitimate and illegitimate laws by means of a certain formal procedure. His criterion for the legitimacy of a draft law is whether or not it corresponds to the ‘General Will’ of a people. The test question Kant has in mind is this: could a people give its consent to a proposed particular law? Let us call this the ‘General Will Test’ (GWT). The GWT is presented by Kant on several occasions in slightly different formulations (e.g. in RGV 6:98; RL 6:263, 6:314 and TP 8:304). It is sometimes even described as a formal procedure which can be used like a thought-experiment which should be enacted by the legislator who is, for Kant, in principle the people itself, but in fact it is the monarch.Footnote ¹ Maybe the most prominent passage appears in his treatise What Is Enlightenment? (8:39; trans. H. B. Nisbet):

As the word ‘touchstone’ (Prüfstein) begins to bring into view he is thinking of a formal procedure. In this chapter, I want to explore the question of whether and, if so, to what extent, this test outlined by Kant resembles the universalization procedure of the Categorical Imperative, the CI procedure (henceforth CIP), understood according to the ‘Formula of Universal Law’ and the ‘Formula of a Law of Nature’. I will arrive at the conclusion that the two test processes, the GWT and the CIP, are indeed somewhat similar. They actually have certain properties in common. And these commonalities amount to more than a mere ‘family resemblance’ in the Wittgensteinian sense. It will turn out that the GWT and the CIT are interrelated in a quite characteristic manner, namely according to a relation of ideal and non-ideal normativity. The GWT is a specifically attenuated form of the CIP.

By highlighting this, I hope to strengthen my interpretation, developed in my book on Kant’s non-ideal normativity.Footnote ² My fundamental idea in this book was, and still is, that the type of normativity presented by Kant in the Doctrine of Right and elsewhere in his political and legal writings can be satisfactorily characterized neither by following (what I call) a ‘derivation reading’, which attributes to Kant the claim that legitimate juridical and political rules must be immediately derived from the moral law, nor by what could be referred to as a ‘separation reading’, which argues that legitimate political and legal rules are, on Kant’s view, sui generis, that is, they form an independent kind of normativity. Instead, I claim that normatively valid laws are justified, in Kant’s view, by the fact that their content is established in a significantly non-ideal way, by a quasi-CI, namely the GWT. Thus, I maintain an intermediary position between the two well-known camps of the derivation reading and the separation reading.

There has been a large debate among scholars on the question of if and in what sense the CI is present in Kant’s description of legitimate juridico-political normativity. The elementary but, as I believe, forceful point I wish to make in this article rests upon the observation of a deep ambiguity: on the one hand, Kant says that, ideally, legitimate right (Recht) should be based upon a formal test procedure, while, on the other hand, his concrete procedure – namely the GWT – is considerably weaker than the universalization test of the Categorical Imperative, the CIP, as we know it both from the Groundwork and from the second Critique.

In what follows, I will first outline some of the main characteristics of Kant’s notion of a General Will and then turn to the profound differences that exist between the GWT and the CIP. Starting from § 46 of the Doctrine of Right, my main point of reference will be the Universal Principle of Right in § C (Section 3.1). My reading finds confirmation through a close examination of key passages from Religion within the Boundaries of Mere Reason and Conflict of the Faculties (Section 3.2). Following this, I will develop my interpretation with reference to selections from the second appendix of Towards Perpetual Peace in which Kant characterizes his GWT more precisely than anywhere else (Section 3.3). In a final remark, I will add some considerations on a problematic consequence to Kant’s idea of right: namely the fact that GWT only ensures that the external liberties of citizens must be ordered by some rules does not guarantee specific contents as, for example, human rights do (Section 3.4).

3.1 Affinities and Differences between the GWT and the CIP

Kant repeatedly uses the test operation which I called the GWT based on his account of the Rousseauian notion of a General Will (volonté générale). Both philosophers see the General Will or popular sovereignty as the foundation of legitimate lawgiving. In contrast to Rousseau’s use of the term, however, Kant understands his notion of an allgemeiner Wille in the sense of an a priori unified multilateral will.Footnote ³ The apriority plays a crucial role in Kant’s version of contractarianism, which relies neither on a Hobbesian prudential thought-experiment nor on a Lockean historical scenario. Instead, Kant interprets the General Will as a ‘command of practical reason’. The General Will is thus designed to resolve the exeundum issue of establishing a state, that is, the problem of how there can be a legitimate transition from a first acquisition of property, in the context of private right, to a mutually accepted possession, that is, to public right.Footnote ⁴ For Kant, the General Will is what constitutes and legitimizes public right.

The following passage contains some further crucial aspects of his view (RL § 46, 6:313–14; trans. M. J. Gregor):

According to Kant, all legitimate right must proceed from the United or General Will of the people. So far, this is the Rousseauian principle of popular sovereignty. Each and every citizen must be involved in the process of lawgiving in which the same rules are established for all of them. Justified law must not do wrong to anybody; and the General Will guarantees this since it includes everyone’s confirmation. Kant further adds to this the Hobbesian principle that someone is not damaged as long as he has given his consent (volenti non fit iniuria).

Now, how close is this to the Categorical Imperative? Note that the General Will as it is described here is that of a concrete people, that is, of a spatiotemporally limited group – and not the omnitemporal united will of humanity at large. This does not contradict the fact that it is described as a priori: the General Will rests on the purely formal (i.e. a priori) idea of the united volitions of a concrete people. Furthermore, it rests upon collective voluntarism and thus points in the direction of a Hobbesian notion of authority conception of law: it takes a concrete authority to establish a law. I understand this aspect likewise in the sense of a historically situated community which chooses laws according to their concretely given situation while the same law could be rejected by another people, living under different conditions. This implies, additionally, that the GWT is a formal procedure by which one can establish highly diverging legal constitutions. Kant explicitly claims, in the Introduction to the Metaphysics of Morals (MS 6:224), that a legal order could completely consist of positive laws which go back to the arbitrary choice of the legislator. The lawgiver has an ‘authority to obligate others by mere arbitrary choice’ (Befugniß, durch seine bloße Willkür andere zu verbinden), provided that a preceding natural law authorizes him (MS 6:224, trans. M. J. Gregor):

On my reading, the natural law, which has to precede acts of external legislation in order to fully authorize a lawgiver’s arbitrary external legislation, is the innate right to freedom (RL 6:237–8). In accordance with the innate right understood as an a priori rule for appropriate lawgiving, the monarch is obliged to respect the principles of full individual freedom, equality, and self-determination (being sui juris) for all citizens.

With the idea that a certain people voluntarily imposes a law onto itself Kant a limine excludes the possibility of a self-violation. As I pointed out, he quotes the volenti formula and thereby, under the condition of the innate right, subscribes to the Hobbesian principle auctoritas, non veritas, facit legem.Footnote ⁵ This does not of course mean that he is a legal positivist. On the contrary, Kant remains strongly committed to the classical idea of natural law, which he takes in the sense of an a priori law and identifies with the innate right to freedom. Seen in this way, the procedural and formal character of the GWT, as described by Kant, does not merely result from the principle of non-contradiction applied within a generalization procedure. Rather, the idea is that each citizen must be seen, simultaneously, as the lawgiving author and the obligated subject of a piece of legislation, which might take this or that concrete form – as long as it conforms to the principles of freedom and equality.

When we look at these details, one can see how closely the GWT is connected to Kant’s ‘Universal Principle of Right’ (UPR) in B of the Doctrine of Right (RL 6:230; trans. M. J. Gregor):

In section C, the UPR is taken up as follows (RL 6:230; trans. M. J. Gregor):

As both the GWT and the UPR express, right must restrict and enable each citizen to make use of his freedom of choice according to a formal principle that unites all individual ranges of freedom. This thought closely resembles the universalization test of the CIP. Legitimate right, for Kant, has to pass an examination: namely that it must be capable of coordinating everybody’s free choice with that of everyone else, according to a general rule. Almost the same holds true for the CIP: it is a formal procedure to select those maxims as morally possible which can be adopted simultaneously by all rational agents.

There is a formulation used by Kant some lines below the UPR, where he provides an articulation of the maxim in a second-person imperative mood. He calls it the ‘Universal Law of Right’ (ULR) (RL 6:231, trans. M. J. Gregor):

This imperative formulation of the UPR, namely ULR, is clearly close to the CIP. Let us compare the UPR with the Universal Law Formula of the CIP (GMS 4:421; trans. M. J. Gregor/J. Timmermann):

The version put forward in the second Critique is as follows (KprR, 5:30; trans. M. J. Gregor):

An initial difference is immediately visible. The term ‘maxim’ (or ‘maxim of your will’) in the CIP is replaced by ‘arbitrary choice’ (Willkür) in the ULR. The notion of a maxim (and the ‘maxim of your will’) refers to the inner freedom of autonomy connected by Kant with the term Wille, whereas the concept of arbitrary choice (Willkür) is restricted to external freedom. The limitation to external freedom is explicitly discussed in the passage RL 6:231. This can be seen as the second difference: Kant explicitly tells us that the ULR does not commit the agent to an inner motivation. It is, according to Kant, completely sufficient to abide by the law in one’s external actions.Footnote ⁹

A third point is closely related to this. Kant characterizes the ULR in §C of the Doctrine of Right as:

As we learn from this quote, Kant believes that reason does not require from us that we ourselves should limit our freedom due to the normativity of right. Rather, reason presents it merely as an ‘idea’ that our freedom should be limited according to the ULR and that this limitation should be actively limited by others. We see that, in the case of legal normativity, his point of reference are the citizens of a state, not the homo noumenon within us. Hence, the third difference between the Law of Right and the Categorical Imperative is that right always has to be imposed on us by others; it is not our duty to follow the mere idea of right, but only its concrete realization in this or that legal order. Therefore, the right that is meant in the UPR and the ULR must be that of a concrete state, not an abstract right of omnitemporal and universal validity.Footnote ¹¹

And in fact, Kant claims, as we already saw, that the laws legitimately established in a state are always in force in a spatiotemporally limited form; they are the laws of a historical individual state and thus do not require full universality concerning their authors and addressees. Instead, they go back to a concrete voluntaristic will of a people (de facto normally by its legislator, i.e. the monarch) and consequently do not apply objectively and unconditionally. This is the fourth difference: the CIP verifies or falsifies certain maxims independently of time and place while the GWT leaves room for contextual circumstances. Positive laws are valid, even if they are strongly suboptimal, by the legitimate authority of the lawgiver, as Kant says, and they must be obeyed as long as they do not directly violate morality (RGV 6:99 fn.; trans. A. W. Wood/G. di Giovanni):

As Kant claims in this quote, the citizens should, on the one hand, regard even the statutory laws of a legislator as quasi-divine ones; on the other hand, they need not and even must not obey those statutory laws that are ‘directly opposed to the law of morality’. Obedience to suboptimal laws is seen here as the standard case, disobedience is described as an exception. Note that Kant even admits that the monarch does not have to improve suboptimal laws immediately as long as he accepts that their improvement must be realized in the future.Footnote ¹²

An important consequence follows from this for the translation of the UPR and the ULR. I quoted Mary J. Gregor’s translation in which the original ‘allgemein’ gets the English equivalent ‘universal’. But on my reading, this translation is mistaken; I think that Kant’s wording ‘nach einem allgemeinen Gesetz’ should be rendered as ‘according to a general law’. A universal law would be an omnitemporal one for humanity at large; this is clearly not meant here. Generalization is, for Kant, a legitimate procedure, but of reduced value compared to full universalization.Footnote ¹³ However, even if the correct translation of the UPR and the ULR is then ‘in accordance with a general law’, I still believe that it remains appropriate to speak of a Universal Principle of Right and a Universal Law of Right – since these formulations are given from a second-order perspective. The UPR and the ULR in themselves are in fact invariant and omnitemporal. We can identify here a fifth difference: whereas the CIP leads to invariant results in the sense of strict universality, the GWT only arrives at a certain generality of rules.

What does all of this mean for the comparison between the GWT and the CIP? The main parallel between the two is their character as formal procedures. We saw that legitimate right, like each appropriate maxim, must successfully pass an examination: juridical laws are correct if and only if the range of everybody’s free choice is guaranteed by them according to a general rule. Likewise, maxims are morally permissible if and only if they are universalizable as laws for any rational agent. Juridical laws must be capable of mutually coordinating the individual freedom margins of the citizens of a certain state in an equal, neutral, and unbiased way. Moral laws must enable an order of action where all rational beings can follow the same rules. At the same time, Kant’s description of how the process of establishing normatively correct legislation actually should go is far from what is specified under the CIP. Let me highlight the differences which exist between the two formal procedures in the following contrasting juxtaposition (Table 3.1):

Thus reconstructed, an important implication of Kant’s concept of law is that legal relations do not establish a true omnilateralism since this would imply that all human beings enter into a legal relationship with all others. There is only a constellation of regionally and temporally limited multilateralism.Footnote ¹⁴ Kant’s idea is that a legal order can be justified even if it is no more than a historically situated and contextualized phenomenon. In addition to this, he also recognizes the necessity of universalizing the juridical relations between all men. This is why, in Towards Perpetual Peace and elsewhere in Kant’s writings, international law remains to be established even when legal orders in individual states are already existing.

But how is it possible that Kant, the theorist of universality, objectivity, intrinsic motivation, inner coercion, and autonomy, confines the level of juridical and political normativity to a contextual, situated phenomenon? A plausible answer to this question arises from the historical dimension of his idea of non-ideal normativity. If the external conditions allow only a lesser form of realization of what might ideally be mandatory, one has to consider preliminary ways in which one can reduce the full normativity while, at the same time, preserving as much as possible of its core. This is exactly what happens in Kant’s conception of right. He is convinced that on the historical path towards a full inner moralization of humanity, external juridification is needed since, once people live under stable legal relations, they can more easily take steps towards morality. And if robust republican legal structures exist on a national level, it is to be expected that a ‘League of Nations’ (Völkerbund) will emerge, an alliance of freedom-oriented states which is seen by Kant as the basis for a moral cosmopolitanism.

This is why I think that the relationship between morality and law, represented by the contrast between the CIP and the GWT, is neither that of an equivocity of the normative concepts employed in both formulas, nor is it based on a mere ‘family resemblance’, namely, showing some overlapping affinity between otherwise deeply different usages of a term. On the contrary, the CIP and the GWT substantially refer to each other insofar as the latter preserves an important residue of the kind of normativity of the former, whereas full normativity, realized (as we will see in a moment) in an ‘ethical commonwealth’, would be characterized by the fact that it is directly based on moral law. The relation between the CIP and the GWT is that of normative ideality and normative non-ideality respectively.

3.2 The Ethical Commonwealth as Kant’s Ideal of a Moral Community

The topic of Kant’s legal and political philosophy is the concrete juridical order, established in a historical state, not the idea of a perfectly moral right. And this is absolutely appropriate. He would be an idealistic dreamer, a Gesinnungsethiker in the problematic sense of the word, had he taken full moral normativity, according to the left side of Table 3.1, as the basis of his view on what is required for the legal sphere. Given that Kant does not make such a commitment, as we have seen so far, there is good reason for abandoning the derivation reading, which wants to defend the thesis that, for Kant, there is a direct moral basis for legal normativity. As he writes, for example, in one of the posthumously edited notes on the constitution of a legal order (Refl 7961 19:565): ‘Whether the constitution requires unanimity. In the idea of good people, yes. But as they are, so much, that others can be forced. According to the principle exeundum e statu naturali.’Footnote ¹⁵ Kant here gestures towards the fact that grounding the normative foundation of a state in the unanimity (unanimia) shared among a morally good people would leave us with an entirely utopian outlook. In reality, one must proceed differently: bad as men are, establishing a state of order does only require that the majority force those others who are unwilling into this state, such that all will live in the future under the General Will. Following these considerations, it is clear that the idea of a General Will is not immediately a moral one, a view which is also expressed in Idea for a Universal History with Cosmopolitan Purpose as follows (8:23; trans. H. B. Nisbet): ‘He [i.e. man] thus requires a master to break his self-will and force him to obey a generally valid will (einem allgemeingültigen Willen) under which everyone can be free.’Footnote ¹⁶ According to the ‘Sixth Sentence’ of the Idea, human beings are so bad that they are in need of a master. This master has to break their individual will and force them under a General Will which then turns out to be the rule according to which the citizens can be free.

What would an authoritative will look like in the case of a genuinely moral community? We are in the fortunate situation that Kant addresses this question explicitly in the ‘Third Part’ of his Religion within the Limits of Reason Alone through differentiating between a juridical and an ethical commonwealth. Note that Kant’s ethical community consists of all men without exception; ‘the whole human race’ should belong to it (6:94). To this universality he adds the moment of intrinsic moral motivation; in the ethical community each individual is genuinely motivated by morality and not merely subject to the pressure of legal sanction. An important further point about Kant’s ethical commonwealth is that it is an idealized, but at the same time still concrete, historical community, namely the true church.Footnote ¹⁷ Kant is not thinking here of an otherworldly moral ideal community. Rather, it is introduced as a concrete precondition for preserving the morality of a community (RGV 6:98–9; trans. J. Bennett):

In this passage, Kant formulates a clear contrast between the ethical commonwealth he is concerned with and a juridical one. The former, as the notion of the ‘people of God’ indicates, lives under the rule of a common (divine) legislator. In the latter, however, the ‘mass of people’ serves as the lawgiver; such a community is oriented to the principle of the General Will, that is, to the principle that the freedom of each must be restricted in accordance with the freedom of every other. The juridical commonwealth establishes its laws by means of external coercion. But this is precisely not the case in an ethical community. Kant continues (RGV 6:98–9):

Here, Kant emphasizes the differences which exist between a juridical and a purely ethical community: whereas the former is based on the unified will of all people and expresses its laws by means of the authoritarian element of collective voluntarism, the latter is based on inner morality. Morality cannot be regulated by external laws; hence, morality is not the object of a General Will. In the first case, the community of individuals has to follow the principle of legality of actions, in the second, the distinct principle of morality. Kant explicitly claims that, in the second case, the people are not the lawgiver. As he adds, the source of moral normativity (moral normative authority) can originate neither from the people, nor from the divine will, even though God plays the role of a ‘moral ruler of the world’ (als einem moralischen Weltherrscher). What Kant means is that the normativity of an ethical commonwealth must be based on a good (moral) will, namely, that which follows the Categorical Imperative instead of that which obeys a General Will.

Shortly after this passage, Kant raises the question of whether one could combine the concept of an ethical commonwealth with that of the legality of statutory laws (RGV 6:99–100). In this case God would still be the legislator, but his laws would be taken as rules for an external order. Kant rejects this theocratic proposal, since it would amount, as he writes, to an aristocracy of priests; such a state would bring in God only externally. He then characterizes his own ethical commonwealth explicitly as ‘an institution whose laws are purely inward – a republic under laws of virtue, i.e., a people of God “zealous of good works”’ (RGV 6:100).

As Stephen Palmquist rightly points out, Kant describes the ethical commonwealth or invisible church according to the pattern of the four categories which he introduced in the first Critique: quantity, quality, relation, and modality. Palmquist gives the following convincing reconstruction:Footnote ¹⁸

As one can see from these features of the invisible church, Kant interprets it as an ideal universal and invariant community based on morality. Therefore, this passage from the Religion provides welcome support of my non-ideality interpretation. If the derivation reading were correct, we would expect that Kant might describe the normativity of a juridical commonwealth precisely in terms of the Categorical Imperative – which he apparently does not. Instead, as we can see, the community directly based on the CI would be the ethical commonwealth. Kant sees such a community as important, yet it should be restricted to the tasks of an invisible church. If it were institutionally realized as a state, it would adopt the form of a theocracy, that is, a mistaken attempt to implement a divine, morally perfect legislation under historical conditions. The legislation resulting from a General Will, by contrast, involves everyone as author and addressee of the right and is therefore the normatively appropriate way of organizing a state.

But the separation reading, on the other hand, is misguided, too, since it falsely assumes that law and morality are without connection. The link that connects the General Will and the Categorical Imperative lies in the person of the legislator. This can be concluded from those passages in which Kant deals with the GWT as a concrete test procedure to be conducted by the monarch. In the Idea for a Universal History with Cosmopolitan Purpose, he claims that ‘the supreme leader should be just for himself and yet a man’ (IaG 8:22: ‘Das höchste Oberhaupt soll aber gerecht für sich selbst und doch ein Mensch sein’). Kant requires him to possess a ‘good will’ (ibid.). As this implies, the GWT cannot appropriately be done without inner morality, but it is the monarch who transforms his inner reflections into a concrete set of laws. This again shows how the notion of a General Will encompasses the idea of a non-ideal normativity.

Likewise, in The Conflict of the Faculties Kant demands that the monarch follows the obligation to treat his people according to republican principles. In this text, he describes a state organized with regard to the idea of General Will – the citizens being at the same time obedient to the law and legislators – as the Platonic ideal of a respublica noumenon (SF 7:90–1):

As this passage confirms, the normative foundation of any appropriate constitution lies in the natural rights of man, namely, the a priori (innate) right to freedom, and its realization is done by the idea of a General Will. Then Kant continues (SF 7:91):

The monarch should not reign, we are told, as an autocrat; instead, he has the ‘provisional’ duty to rule according to a republican idea of government. This confirms that Kant should not be interpreted on the basis of a separation reading, since the procedure that is prescribed here is clearly an internal one. The concrete legislator, namely, the monarch, has to practice some sort of private thought-experiment in which he should imagine ‘how a people with mature understanding would prescribe it for itself’ (wie ein Volk mit reifer Vernunft sie sich selbst vorschreiben würde). The monarch is only bound to the correct execution of the GWT internally and morally, not externally or legally. We can thus extend our list by a point (f–f*), namely through the opposition of two types of contradiction-in-will procedure (Table 3.2).

The above-quoted passage from the Conflict of the Faculties contains important elements of a philosophy of history. The Platonic ideal of a perfect constitution, we learn, is not outside our world, for we can in fact attain it, namely, through an order based on a General Will. Before we arrive at a concrete example of such a well-organized state (a respublica phaenomenon), we have to face ‘multifarious hostilities and wars’. I take Kant here to be claiming that the GWT cannot be fully and appropriately applied under contemporary, heavily non-ideal circumstances; for the time being, history has to proceed according to the teleological scheme (as formulated in the Idea for a Universal History with Cosmopolitan Purpose (1784) and elsewhere). In the future, however, there will be a historical moment when such a constitution (a respublica phaenomenon which is the closest approximation to a respublica noumenon) can be established. This, then, will banish all war. We have the duty to enter into such a condition of government, which means that we must follow the exeundum est e statu naturali, although such an ideal constitution is still far away. In the meantime (‘provisionally’), while the monarchs are often reigning as autocrats, they should, following Kant, rather rule ‘in a republican (not a democratic) way’. They have to do this even if, as he admits, the citizens cannot be asked for their consent. Note here that the GWT should be practised by the monarchs as a mere thought-experiment, and there is no right to resistance or civil disobedience against this procedure, since nobody except the king is entitled to practise the thought-experiment or to determine its adequate execution.

The distinction between a respublica noumenon and a respublica phaenomenon in this passage sheds some light on Kant’s view of a non-ideal political normativity, which includes two different aspects. First, concerning the two formal procedures which are testing universalizability and generalizability respectively, it denotes the difference between moral and political normativity. The norms derived from the Categorical Imperative are the ideal version, while the norms taken from the General Will are the non-ideal ones. Second, regarding the implementation, Kant describes degrees of realization of political norms as mediated by a historical process: while we are living nowadays under conditions of a defective respublica phaenomenon, future generations may arrive at full version of it (which is then still not a respublica noumenon).Footnote ²⁰

3.3 The Transcendental Conception of Public Right as a Form of GWT

I now turn to a text in which Kant presents a very detailed version of the GWT. Notably the GWT is presented here not as a procedure to be done by the legislator, but instead by a general public. I mean the passage entitled ‘Of the Accordance of Politics with Morals according to the Transcendental Conception of Public Right’ from Towards Perpetual Peace (ZeF 8:381–2). Kant there explicitly speaks of a formal test criterion for public law, namely that of publicity. Let us call it the Publicity Test (PT). He introduces the PT by differentiating between a material and a formal view of public right:

Kant’s idea is that each future element of public right must have a content and a form. Now, we might expect him to say something about the formal aspect of each future element of public right in the sense of the inner coherence of a law or its outer applicability, which itself must be free from contradiction. Instead, he maintains that every claim or pretension to the legitimacy of right must be publicly declared. At first, this seems to be a rather procedural and strictly formal aspect of lawgiving. But what Kant has in mind is a procedure by which the general approbation is tested:

In this part of the passage, Kant even explicitly speaks of the PT as a ‘criterion’ and an ‘experiment of pure reason’. He claims that it is an a priori criterion: it helps to figure out whether or not ‘a pretended right can be combined with the principles of an agent’ (ob sie sich mit den Grundsätzen des Handelnden vereinigen lasse oder nicht). This implies that he is not thinking of a concrete political procedure like a public announcement; again, it sounds instead like a thought-experiment. This is confirmed by the observation that Kant characterizes the PT in the following lines as an ‘abstraction from everything empirical’ (Abstraction von allem Empirischen):

Kant speaks of a ‘Transcendental Formula of Public Right’. This makes it clear that the PT is a version of the GWT: what he means is that all human beings affected by a pretended law must be able to give their consent. The fact that he does not use the expression ‘General Will’ may have to do with the extension of the Transcendental Formula which applies both for national and for international law. We can find further evidence for the strong overlap between the PT and the GWT: the idea of a general consent is indirectly present when Kant in the next lines says that by a publicly presented illegitimate law would ‘inevitably aroused […] the resistance of all men against my purpose’ (dadurch unausbleiblich der Widerstand Aller gegen meinen Vorsatz gereizt werde):

On my reading, under the title of a Transcendental Formula of Public Right, Kant discusses the General Will. The PT is a slightly different version of the GWT.

For my interpretation, it is an interesting detail that Kant explicitly claims that the Formula connects morals and politics. The heading of the passage is formulated as Of the Accordance of Politics with Morals (Von der Einhelligkeit der Politik mit der Moral). Furthermore, in the last portion of the text, it is said that the Formula is valid both in the ethical and in the legal sphere.

The PT as a test criterion works in the following way: whenever a maxim, namely the pretended law, can only be successfully established if the legislator keeps it secret, it is illegitimate; whenever the lawgiver can publicly confess his intention without provoking the resistance of all men against his purpose, it is legitimate. This means that the PT, very much like the GWT, is applied to a multitude of concrete people (not to humanity at large) and is intended to ascertain either their protest or their acceptance. The wording by which the PT is formulated also suggests that it is a procedure analogous to the CIP: ‘All actions related to the right of other people, whose maxim is not compatible with publicity, are unjust.’ It excludes, like a litmus test, all unreasonable legal actions. Kant notes, however, that a people can use the test criterion only negatively – a point that is repeated in the treatise Theory and Practice (TP 8:304).Footnote ²¹

In which way should a ruler publicly announce his or her legal maxim? And how is the possible resistance of the citizens to be understood? Given the fact that Kant leaves no room for legitimate civil disobedience or political resistance, one wonders what reactions on the part of the citizens Kant might be thinking of here. He could certainly admit nothing more than a weak form of a written expression of concerns (according to the ‘freedom of the pen’ as described in TP 8:304). So the only protest against a proposed law would be on the basis of a quite narrow form of freedom of expression. Or should the legislator simply imagine that his announcement causes uncontrolled public anger? In the first case, it seems somewhat far-fetched to speak of a ‘resistance of all against my intention’; written concerns are certainly not a kind of general resistance. Moreover, Kant does not explicitly tell us whether he wants to impose on the lawgiver the obligation to announce his intentions publicly in advance, as a matter of principle, in order to then wait for the reaction of the citizens as the test procedure. The PT and GWT as outlined would only make full sense if they were established as formal, constitutionally based, and legally regulated procedures. But even then, one could not be sure; in a regime of terror, even the public announcement of unjust laws might not trigger protest, because no one would dare to object. The problem of the Transcendental Formula seems to be that it presupposes what it is supposed to achieve: a legally oriented state with a defensively acting legislator and a critical civil society.

However, it is not only the lack of clarity of the GWT procedure (as described here) that must be viewed with scepticism, but also the fact that a non-institutional and uncontrolled test procedure is unlikely to lead to normatively appropriate results.

3.4 Some Critical Remarks on Kant’s GWT

The GWT is not directly based on morality, and it is not based on prudential rationality either. We saw that, by taking the General Will as the legitimizing basis of any legal order, Kant does not simply defend the idea of an aggregation of individual self-interested wills as the fundament of a legitimate state. A legitimate state has, as its grounding principles of justification, criteria that share characteristic similarities in common with CIP. The GWT is a reduced or attenuated form of the CIP, formulated to deal with political reality.

Kant’s General Will is meant to coordinate the individual freedom ranges of agents in an objective, neutral, and unbiased way, as opposed to coordinating them with respect to each person’s interests. It starts from the idea of the innate right to freedom attributed to all citizens. But nevertheless, this does not imply that a state has a directly moral foundation. Instead, the essential characteristic of right is, according to Kant, that each individual’s leeway in exercising their arbitrary freedom must be made compatible with all other such exercises, in a formal manner as well as in a generalizable way, by means of law that is justified as legitimate. Let me close with two critical remarks on Kant’s notion of a General Will.

(1) The procedure of the GWT is vague and unclear. Most of Kant’s formulations of the GWT leave it open to which precise test he is referring. Under which conditions can a legislator assume that the hypothetical consent of a people has or has not been given, and under which not? At least four aspects seem to be clear: first, the law to be established must allow for the free arbitrary action of the individual; second, it must coordinate this use of freedom on the basis of a general rule; third, this rule must be something enforceable, that is, it must limit external actions; fourth and finally, it must have the form of a juridical law (i.e. be connected with such moments as promulgation, permanent validity, judicial enforceability, and factual enforcement). However, these four criteria are certainly too underdetermined to be normatively satisfactory. To apply them would not sufficiently limit the range of permissible rules, for rules of the type ‘Men should have substantive privileges compared to women in political, social, and economic life’ and ‘Not all citizens of a state should count as active ones, but only those who are economically independent’ do also fulfil all the requirements mentioned: they leave room for the free arbitrary action of all, they coordinate it on the basis of a general rule, they are externally enforceable, and they can be established as laws. We can see evidence of this normative underdetermination at work in Kant’s own analysis; in RL §46, for example, he does not envisage a full equality of rights for men and women – just as he does not give the full status of active citizenship to those living in economic dependence.

(2) The GWT is not based on a theory of political and legal goods. The General Will Test could be constructed in much more plausible form if Kant had integrated into it the idea of political or legal goods. For any citizen who wants to see his or her freedom of arbitrary choice protected, it is relevant that the necessary means to free actions are available. These are one’s bodily integrity, physical and mental health, sufficient material wealth, political participation, the access to information and education – among many others. These and many other goods could serve as success criteria for ensuring that the General Will is actually respected. In his purely formal procedure, Kant ignores these goods and, in fact, is even eager to do so, in order to carefully avoid the presence of any empirical and material components in his theory. But the flip side of this formalism, which ends up exposing a weak point in the Kantian theory, is that it remains unable to guarantee the kinds of concrete political and legal goods that, for example, find articulation and justification in and through human rights discourses. Nothing in Kant’s theory impedes the monarch from restricting what we see as human rights, as long as he does so in a formally correct way. Additionally, the fact that the Kantian monarch has the right to remain behind and is not forced to guarantee a complete set of freedoms accessible to everyone cannot be clearly formulated in this account either since the notion of a ‘full set of freedoms’ has strong material implications. Moreover, there are strongly diverging degrees of importance in a list of such freedoms. It makes a difference if a ruler restricts, for example, public opinion by censorship or limits shopping opportunities on Sundays. The Kantian model seems unable to account for such differences.

4.2 The Independentism-Justifying Strategy

4.3 The Argument against the Independentist Strategy

To sum up, one of the issues of the TSI is the construal of Kant’s distinction between formal and material wrongs. For instance, Kant talks about this distinction at MS 6:307–8; in the footnote to 6:307, he says: ‘This distinction between what is merely formally wrong and what is also materially wrong has many applications in the doctrine of right.’ This, however, suggests a different distinction from that offered by the TSI: Kant does not mention anything about a merely material wrong; he only talks about formal wrongs, which may or may not be at the same time material. The intention to be and remain in the state of nature may be incompatible with no particular person’s rights, but, Kant adds, in general it does ‘wrong to the highest degree by willing to be and to remain in a condition that is not rightful, that is, in which no one is assured of what is his against violence’ (MS 6:307–8).

Wrongs are, therefore, always formal; when they also go against particular individuals’ rights, they are also material; otherwise, they are merely formal. It follows that the distinction between intentional and unintentional transgressions is also misconstrued by the TSI: both these transgressions are formal wrongs and both may be merely formal or, if not merely formal, then formal and material. The case of negligence seems to be one case Kant has in mind, when he talks about the second type of transgression, the unintentional transgression he calls fault. This is unintentional, since, for instance, I do not intend to misread the map (in the case where the map is accurate and I am distracted), although I can be said to intend to be negligent or at least I can be said to accept the risk, given that I do not do anything to address this; instead, misreading the map is an unintended, although perhaps expected, result of being negligent when I try to get a treehouse built on my property.Footnote ²⁴ There are contemporary accounts of negligence along Kantian lines, which attempt to account precisely for this ‘paradox’ of imputability without intention.Footnote ²⁵

We have seen that the interpretation of the distinction between material and formal wrongs as part of the TSI seems to be confirmed by two of Kant’s claims concerning these wrongs. First, Kant says that material wrongs do ‘not always presuppose in the subject a principle of doing so [namely, committing an injustice]’ (VRML 8:429). Yet, as we have seen, this applies to cases of negligence and also cases of wrongful acts which have unexpected bad consequences. Secondly, Kant suggests that a formal wrong, which ‘escapes being punishable merely by accident can be condemned as wrong even in accordance with external laws’ (VRML 8:427). The context for this claim is Kant’s example of the murderer at the door, from ‘On a Supposed Right to Lie from Philanthropy’, in particular, the situation in which a lie told to the murderer may not be punishable, given the context (which is accidental), but, through its consequences, can become punishable, as in the case of Kant’s imagined situation, where the potential victim leaves the house without the owner’s knowledge, the owner tells a lie to the would-be murderer, and the murderer encounters the potential victim and kills her. Again, here we have a case of accidental consequences of wrongful actions, rather than a case of a merely formal wrong.

I started with a brief presentation of an approach, which can use the TSI, that is, the view that the UPR has in fact two normatively irreducible parts – one concerning formal, and the other one identifying material, wrongs. If correct, this would mean that Kant’s view could not be classed as dependentist (whether simple or complexFootnote ²⁶); on the contrary, this may even suggest that the UPR can be a ground (perhaps in a complex way) for the CI (say, P1 or P2 could ground the CI). In this section, I have, however, claimed that the two normative components identified by TSI as part of the UPR (P1 and P2) are not irreducibly distinct in their normative functions. They both formulate what it means for an action to be formally wrong with a difference of emphasis – P1, on actions, and P2, on maxims. There are no actions without maxims and no maxims without actions in Kant’s philosophy of action, and the focus on the action or its maxim places emphasis on distinct important aspects – the physical, external character of the action and its intention.Footnote ²⁷ There is, therefore, nothing surprising in the fact that Kant formulates the UPR in the way in which he does in the Metaphysik der Sitten.

4.4 Conclusion

In this chapter, I have developed, considered, and rejected a significant strategy that an independentist about the relation in Kant between ethics (in particular, the CI) and right (specifically, the UPR) can mobilize to motivate their reading. In my response, I identified some problems with this strategy and with the reading of Kant it relies on (more exactly, the TSI) and indirectly provided some further support for a complex dependentist position, which I find more convincing.

Systematically, what I find particularly significant about the complex dependentist reading is that it enables an account of political-juridical standards, which preserves a significant connection with ethical normativity, while at the same time it gives serious consideration to those aspects of political-juridical standards which distinguish them from ethical principles.

Even if we accept that the UPR represents a single standard – as I have argued in this chapter – a number of other strategies for supporting independentism can be formulated, including an argument from the innate right of humanityFootnote ²⁸ and two paradoxes – one concerning juridical imperativesFootnote ²⁹ and a second one concerning their performance’s motivation.Footnote ³⁰

I have argued elsewhere how the paradox of juridical imperatives can be answered and why the best account of the relation between the CI and the UPR is a complex dependentist one.Footnote ³¹ Although I think the other independentism-justifying strategies can be rejected, these arguments are not needed for the purpose of this chapter and they will have to be presented elsewhere; in rejecting the argument of the first strategy, this chapter has also offered indirect support for the complex dependentist position, which I view as both the most philosophically convincing and the most accurate reading of Kant.