Published in 1797, the Doctrine of Right is Kant's most significant contribution to legal and political philosophy. As the first part of the Metaphysics of Morals, it deals with the legal rights ...which persons have or can acquire, and aims at providing the grounding for lasting international peace through the idea of the juridical state (Rechtsstaat). This commentary analyzes Kant's system of individual rights, starting from the original innate right to external freedom, and ending with the right to own property and to have contractual and family claims. Clear and to the point, it guides readers through the most difficult passages of the Doctrine, explaining Kant's terminology, method and ideas in the light of his intellectual environment. One of the very few commentaries on the Doctrine of Right available in English, this book will be essential for anyone with a strong interest in Kant's moral and political philosophy.
Property rights generally tend to be subordinated to other rights, such as the right to life and bodily integrity. A crime of violence evokes far more outrage than a simple pickpocketing. Slogans ...such as 'property is theft' and 'no blood for oil' abound, but one is at a loss to cite similar slogans downgrading life or limb. Socialist and communist states have felt most justified in depriving citizens of the right to own property, but they could not ignore the right to bodily integrity entirely. And modern scholars have claimed that property rights are not rights at all but, instead, depend on the state and its decisions on wealth allocation.
Kant's theory of punishment is commonly regarded as purely retributive in nature, and indeed much of his discourse seems to support that interpretation. Still, it leaves one with certain misgivings ...regarding the internal consistency of his position. Perhaps the problem lies not in Kant's inconsistency nor in the senility sometimes claimed to be apparent in the "Metaphysic of Morals," but rather in a superimposed, modern yet monistic view of punishment. Historical considerations tend to show that Kant was discussing not one, but rather two facets of punishment, each independent but nevertheless mutually restrictive. Punishment as a threat was intended to deter crime. It was a tool in the hands of civil society to counteract human drives toward violating another's rights. In its execution, however, the state was limited in its reaction by a retributive theory of justice demanding respect for the individual as an end and not as a means to some further social goal. This interpretation of Kant's theory of punishment maintains consistency from the earliest through the latest of his writings on moral, legal, and political philosophy. It provides a good reason for rejecting current economic analyses of crime and punishment. Most important of all, it credits Kant's theory in its clear recognition of the ideals intrinsic to libertarian government.
In connection with his discussion of the three Ulpian formulae, Kant introduces three “leges,” namely the “lex iusti,” the “lex iuridica,” and the “lex iustitiae,” which he then defines in § 41 of ...the Doctrine of Right. The three “leges” correspond to the attributes “right,” “juridical,” and “established as right.” These three attributes in turn relate to the possibility, the reality, and the (material) necessity of our rights and juridical duties. The three “leges” and attributes have certain consequences for the division of public justice, public justice being constitutive of the juridical state, into “iustitia tutatrix,” “iustitia commutativa,” and “iustitia distributiva.” This article provides a comprehensive account of all these concepts from § 41 of the Doctrine of Right. It also explains what until now has seemed to be a rather cryptic comment Kant makes at the end of his discussion of the Ulpian formulae regarding internal and external legal duties, and those legal duties that contain the derivation of the external legal duties from the principle of the internal legal duties through subsumption. Indeed the article provides the key to understanding the entire Doctrine of Right from a totally new perspective.
This article examines the logical location and function of the originally and a priori united will in Kant's Doctrine of Right. The originally and a priori united will flows out of the original ...community of all human beings on the earth's surface, which in turn is based on each person's original right to a place on this earth. The original right to a place on the earth's surface follows analytically from the original right to freedom. The originally united will commands us to divide the surface of the earth. This will to divide the land makes original acquisition possible. Kant formulates this possibility in § 2 of the Doctrine of Right, which contains a permissive law of practical reason: "It is possible to have any external object of my choice as mine." This postulate does not follow analytically from the original right to freedom. Instead it is based on a reductio ad absurdum and thus contains a synthetic principle of law a priori. The postulate of public law (§ 42 Doctrine of Right) is added to the will to divide the earth's surface and requires entering a juridical state in order to secure property rights to things. This postulate is also a synthetic principle of law a priori. Founding a juridical state presupposes the original contract. Ownership of land logically precedes the founding of any state, because a state can be founded only if the people intending to found it have a state territory.
