Kant’s Doctrine of Right – Handout



Kant’s Doctrine of Right – Handout

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SESSION ONE - INTRODUCTION:

(A.) The place of the Metaphysics of Morals in Kant’s Corpus.

1765: Letter to Lambert, plan to write a “metaphysical first principles of natural philosophy and metaphysical first principles of practical philosophy” (10:56).

1768: Letter to Herder: the metaphysics of morals should be finished in a year.

Theoretical Philosophy

Critique of Pure Reason (1781/1787)

Metaphysical Foundations of Natural Science (1786)

[messy empirical science?]

Practical Philosophy

Groundwork of the Metaphysics of Morals (1785)

Critique of Practical Reason (1788)[1]

Metaphysics of Morals (1797)

Anthropology from a Pragmatic Point of View (1798) [Moral Anthropology]

Remarks:

(1.) Sensible vs. Intelligible: In the Critique of Pure Reason Kant argues that space and time are ‘forms of intuition’, and distinguishes between phenomenal (sensible) objects which are subject to spatio-temporal conditions and noumenal (intelligible) objects which are unknowable, but which are not spatio-temporal. The distinction between the sensible and intelligible plays an important role in the Doctrine of Right. For present purposes we can say:

Sensible = Spatio-temporal (or ‘subject to spatio-temporal conditions)

Intelligible = Non spatio-temporal (or ‘not subject to spatio-temporal conditions)

Sections 1-9 of the Doctrine of right have to do with the distinction between holding (sensible possession) and having (intelligible possession). Sections 10-17 have to do with (original) acquisition, which in involves the transition from holding to having. \

Question: how is such a transition possible?

Holding = Sensible possession (subject to spatio-temporal conditions)

Having = Intelligible possession (not subject to spatio-temporal conditions)

Acquisition = Transition from holding (sensible) to having (intelligible)

Questions:

1. What is division of labor between a critique of practical reason and a metaphysics of morals?

2. What is division of labor between a metaphysics of morals and moral anthropology.

Metaphsyics = a systematic body of a priori principles

a priori = non-empirical? Marks of a priority = necessity and universality.[2]

1.) What is relationship between Groundwork/CPrR and Doctrine of Right?

(Groundwork) Categorical Imperative: “There is, therefore only a single categorical imperative and it is this: act only in accordance with that maxim through which you can at the some time will that it become a universal law.” (4:421)

(Critique of Practical Reason) Fundamental Law of Pure Practical Reason: “So act that the maxim of your will could always hold at the some time as a principle in giving a universal law.” (5:30)

Political philosophy is often thought of as an application of general moral principles to the factual circumstances that make political institutions necessary. . . Kant might be expected to adopt a parallel strategy, applying the Categorical Imperative to questions of political legitimacy, state power, punishment, or taxation, or perhaps viewing the state as a coordinating device that enables people to carry out their moral obligations more effectively. Alternatively, Kant might be expected to stand back from such questions, and recommend indifference to worldly matters of politics. Kant is often taken to understand morality exclusively in terms of the principles upon which a person acts. As such, it might be thought to depend contingently or not at all on the kind of society in which the agent found herself.

Such expectations quickly lead to disappointment . . . Kant not only denies that political philosophy is an application of the Categorical Imperative to a specific situation; he also rejects the idea that political institutions are a response to unfortunate circumstances.[3]

2.) Metaphsyics of Morals vs Moral Anthropology

Officially a metaphysics of morals is a system of a priori principles, which could be determined independently of any empirical knowledge of human nature (and so would bind a community of angels?) whereas moral anthropology involves the application of these principles, which involves empirical knowledge of human nature.

“a metaphysics of morals cannot be based upon anthropology but can be applied to it” (6:217)

BUT: Are the arguments of MM really independent of empirical knowledge? E.g. the argument in section 13 seems to depend on our knowledge that the earth is spherical rather than being an infinite plane. (6:262)

(B.) The place of the Doctrine of Right in the Metaphysics of Morals.

Morals can be divided into (a) Recht and (b) Ethics (for Kant = The Doctrine of Virtue).

Recht can be translated as: Right, Law, Justice In contemporary German Rechtswissenschaft is jurisprudence.

|Doctrine of Right |Doctrine of Virtue |

| | |

|External freedom |Inner freedom? |

|External lawgiving |Internal lawgiving |

|External Court |Internal Court (conscience) |

|Rights (6:240) |Ends |

|Strict/Narrow duties |Wide duties |

|Enforceable |Not-enf0rceable |

“It can be seen from this that all duties, just because they are duties, belong to ethics; but it does not follow that the lawgiving for them is always contained in ethics: for many of them it is outside ethics. Thus ethics commands that I still fulfill a contract I have entered into, even though the other party could not coerce me to do so” (6:219)

(C.) The Structure of the Doctrine of Right

A person = “a subject whose actions can be imputed to him” (6:223)

A thing = “is that to which nothing can be imputed” (6:223)

PRIVATE RIGHT

Property = rights to things (land = substance, moveables = accidents)

Contract = rights against persons

Status = rights to persons ‘akin’ to rights to things.

PUBLIC RIGHT = a system of laws for a people (6:311)

Public right is a necessary condition for (the security and determination? of) private right.

Every state contains three authorities:

Sovereign Authority (sovereign)

Executive Authority (ruler)

Judicial Authority (judge)

In situations of potential conflict about what is right, we have a duty to help create an external court and submit the judgments of our inner court (conscience) to it.

“[H]owever well disposed and law-abiding human beings might be, it still lies a priori in the rational idea of such a condition (one that is not-rightful) that before a public lawful condition is established individual human beings, peoples and states can never be secure against violence from one another, since each has his own right to do what seems right and good to it and not to be dependent on another’s opinion about this.” (6:312)

SESSION II – THE CONCEPT OF RIGHT (and COERCION)

(1) Right and authorization to use coercion. . . mean one and the same thing” (6:232)

(2) Rights are “(moral) capacities for putting others under obligation” (6:237)

COERCION: In talking about ‘powers of coercion’ in his ethics lectures, Kant explains perfect obligation as ‘an obligation where the agent can be necessitated to an act of duty by another’s choice’ (V-Eth/Vigil 27: 289) Such laws could even govern a community of angels. For example, if in an ideal community governed by juridical law one individual lends another individual a particular object and then asks for it back, the second individual is necessitated, or coerced, to return it. The threat of punishment is not needed for a law to be coercive in this sense. It is in this sense that (ideal) juridical laws are coercive.

INTERACTION: interaction understood metaphysically, requires that the agent be able to ‘determin[e] the active power of the substance being acted upon’ (V-MP/Mron 29: 823), and the existence of coercive juridical laws enables me to ‘determine another’s choice by my choice’ (MS 6: 271).

The problem with conceptualizing interaction is fairly simple. Following Leibniz, Kant thinks that the idea of an individual (substance) is the idea of something essentially active. There is, however, a problem in explaining how two essentially active beings can act upon one another, for we must be able to give an account of how an essentially active substance can suffer or be passive. Kant himself addresses this problem in his metaphysics lectures, explaining that ‘that substance suffers ([is] passive) whose accidents inhere through another power’. He then asks ‘how is this passion possible, since it was said earlier that it [i.e. the passive/sufferingsubstance] is active insofar as its accidents inhere’. (V-MP/Mron 29: 823)

The problem is not merely that Kant conceives of individual substances as essentially active, but that following Leibniz he is committed to the view that an accident (or more generally whatKant refers to as a ‘determination’) can only truly inhere in or belong to a substance if the substance is the active cause or ground of the accident. I name this doctrine the Principle of Active Inherence. It is Leibniz’s acceptance of this principle that lies behind his claim that monads are windowless and it also lies behind Kant’s rejection of ‘physical influence’: the view, popular in the early eighteenth century, that action should be understood in terms of determinations flowing from the agent into the patient.15 If we accept the Principle of Active Inherence, though, it is not clear how one individual can ever be the cause of any change in another individual. If a determination can only be a determination of individual b if b is the active ground or cause of the determination, how can another substance ever be the cause of a change in b? Leibniz’s solution was to admit defeat and conclude that one substance cannot be the cause of a change in another.

Kant’s solution to this problem would be to claim that we can understand the idea of an individual being acted upon without appealing to the untenable notion of accidents flowing from one individual into another, in terms of the agent ‘determining the active power of the substance being acted upon’ (V-MP/Mron 29: 823).16 This account of action does not violate the Principle of Active Inherence, because the patient’s determination inheres in the patient due to the patient’s own power. This power, however, has been determined by the agent. And Kant explains the notion of one agent ‘determining the power’ of another in terms of the withdrawal of resistance.17 On this model, one individual substance (the agent) is the ‘cause’ of a change in another individual substance (the patient) if the change in the patient is the result of the agent withdrawing its resistance. The patient remains, however, essentially active, for the determination is the result of its power.

As the start of his discussion of Contract Right Kant explains that:

My possession of another’s choice, in the sense of my capacity to determine it by my own choice to a certain deed in accordance with laws of freedom (what is externally mine or yours with respect to the causality of another), is a right (of which I can have several against the same person or against others); but there is only a single sum (system of laws), contract right, in accordance with which I can be in this sort of possession. (MS 6:271)

Here Kant defines a (contractual) right in terms of ‘the possession of another’s choice’. The language here is very similar to the language he uses to explain action in his metaphysics lectures. There, he argued that the agent must have a capacity to ‘determin[e] the active power’ of the patient. Here, he claims that to have a right is to possess ‘a capacity to determine the choice of another’. And he argues that an individual can only possess such a capacity if there is a system of juridical laws and others (a) recognize and (b) affirm

these laws. These laws are not physical laws but juridical laws, the existence of which depends upon them being freely taken up by each individual member of the community. Kant explains that ‘my capacity to determine another’s choice by my own choices’ is called

a right and that it is the existence of juridical laws that makes rights possible and, consequently, allows one individual to act upon (‘determine the choice of’) another. Laws that assign rights are called juridical (or coercive) laws. Such laws make interaction possible because they are the basis of resistance between individuals. Kant repeatedly stresses the relationship between juridical laws and the notion of resistance. For example, in his ethics lectures he argues that

The universal law of reason can alone be the determining ground of action, but this is the law of universal freedom; everyone has the right to promote this, even though he effects it by resisting the opposing freedom of another, in such a way that he seeks to prevent an obstruction, and thus to further an intent . . . The other, however, obstructs the action by his freedom; the latter I can curtail and offer resistance to, insofar as this is in accordance with the laws of coercion; so eo ipso I must thereby obstruct universal freedom by the use of my own. From this it follows that . . . the right to coerce the other consists in restricting his use of freedom, insofar as it cannot co-exist with universal freedom according to universal law; and this is the right of coercion. . . // Since nobody can exercise a right to coerce, who has not obtained a right thereto from a higher ground, which consists, however, in one’s own freedom and its congruence with the freedom of everyone according to universal law, it is clear that the right to coerce can only be derived from the idea of law itself. (V-Eth/Vigil 27: 523; my emphasis)

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[1] Kant did not plan to write a separate Critique of Practical Reason until he started working on the second edition of the Critique of Pure Reason – what ended up at the Critique of Practical Reason started off as appendix to the second edition of the 1st critique.

[2] But does a priori really mean non-empirical? “Such [Metaphysical] principles must be derived from a priori grounds if they are to hold as universal in the strict sense. But physics . . . can accept many principles as universal on the evidence of experience . . . But it is different with Moral laws.” (6:215)

[3] Arthur Ripstein, Force and Freedom, pp.1-2.

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