Abstract
In this paper I examine the relationship between the principle of right and the principle of morals [Sitten] in Kant’s Metaphysics of Morals. My interpretation denies that the principle of right is derived from the categorical imperative, but neither does it adhere to the independence thesis. I present a third way of understanding the relationship between the law of right and the universal law of morals: the latter is needed in order to formulate the former, but it is not sufficient. The principle of right is obtained by applying the categorical imperative to the concept of right. I highlight the discussion on the subject within the late eighteenth-century German natural law tradition and similar arguments found in Achenwall.
1 Introduction
Towards the end of the eighteenth century, German natural law theorists were especially concerned with the foundations of Naturrecht and its relation to moral philosophy.[1] This debate was expressed in a concrete question, namely whether the universal law of right [Rechtgesetz] can be derived from the universal law of morals [Sittengesetz]. In the Metaphysics of Morals of 1797, Kant did not offer an explicit answer to this question, and his position in this regard has been open to discussion since the early reception of the text.[2] A review of the Metaphysics of Morals published in the Neue allgemeine deutsche Bibliothek in 1799, for example, argues that “the supreme principle of the doctrine of morals [Sittenlehre] is, therefore: act on a maxim which can also hold as a universal law. We understand this according to other assertions from critical philosophers, so that both the principle of natural right [Naturrecht] and the principle of ethics have to be derived from this proposition, and that both sciences have a common foundation”.[3] Some other early reviewers deny that Kant derives the principle of right from the categorical imperative, as expressed for instance in the review published in the Oberdeutsche allgemeine Litteraturzeitung (1797): “therefore, one can sufficiently see from this formula [i. e. the universal principle of right, FT] that the author does not in any way derive the universal principle of the doctrine of right from the moral law [Sittengesetz]. They are of a completely heterogenous nature, and it is impossible for one to be the source of the other”.[4]
In this paper, I wish to explore the widely debated topic of the relationship between right and morals in Kant’s practical philosophy, taking up the question of the relationship between the Rechtsgesetz and the Sittengesetz. In order to do so, I shall i) situate Kant’s Metaphysics of Morals as part of a debate within the late eighteenth-century German natural right tradition, and ii) focus on the final form of Kant’s moral philosophy and the definitive formulation of its principles. With regard to i), I shall present the position of the so-called frühe Kantianer, such as Gottlieb Hufeland and Theodor Schmalz, who aim to derive the law of right from (some version of) the moral law. I shall argue that Kant does not follow the strategy vastly explored by the early Kantians, and that in order to illuminate his position we have to go back to his sources. In a similar fashion to Achenwall, whose Ius Naturae served as a basis for his regular lectures on the discipline, Kant conceives of the doctrine of right as pertaining to a broader system, i. e. the doctrine of morals [Sittenlehre], without appealing to a derivation of the supreme principle of the former from the supreme principle of the latter. Yet, for both authors, these principles are logically or normatively related. With regard to ii), I shall first identify the formula of the categorical imperative as presented in the Metaphysics of Morals as the relevant moral principle that is to be analyzed in connection with the principle of right. I shall then contend that the principle of right includes maxims, not only actions, within its scope and that this key feature indicates its relation to the universal principle of morals [Sitten].
In the last decades, the relationship between right and ethics in Kant’s moral thought has been widely discussed. In this debate, we can identify two general positions: on the one hand, the claim that Kant’s theory of right presupposes, or is based on, his moral philosophy, and on the other hand, the thesis that right is independent of it. Some interpreters focus on the concept of right’s dependence/independence on fundamental elements of Kant’s moral philosophy (such as autonomy, obligation, freedom, etc.). Julius Ebbinghaus, for example, holds that the concept of negative freedom (on which the Rechtslehre rests) is independent of moral autonomy,[5] whereas Wolfgang Kersting, Bernd Ludwig, and Heiner Klemme claim that the doctrine of right relies not only on Kant’s moral philosophy but also on the doctrine of transcendental idealism.[6] Other authors center their analysis on the relationship between the universal principle of right and (some formula of) the categorical imperative, arguing in favor of or against the possibility of deriving the former from the latter. Marcus Willaschek, Allen Wood, and Arthur Ripstein, for instance, adhere to Ebbinghaus’s general thesis (i. e. Kant’s theory of right does not ultimately presuppose his moral theory) but also emphasize that the universal principle of right (and the permissibility of coercion) cannot be derived from the categorical imperative.[7] In opposition to this, Mary Gregor holds that the universal principle of right is derived from the categorical imperative, and Paul Guyer argues in favor of a derivation of this principle from “freedom and its unconditional value”.[8] My interpretation engages with this debate in the following way: I will focus my analysis on the relationship between the universal principle of right and the universal principle of morals, as presented in the Metaphysics of Morals. The formula of the categorical imperative as stated in 1797 has not received sufficient (if any) attention from interpreters who defend the dependence of right on morality, since they relate the foundations of right either to the general outcome of the critical philosophy (e. g. Wolfgang Kersting, Bernd Ludwig, Heiner Klemme) or to one of the formulas of the categorical imperative found in the Groundwork (e. g. Mary Gregor, Paul Guyer).[9] I will claim that the principle of right is not obtained by means of a derivation, but I will not endorse Ebbinghaus’s independence thesis either. The principle of right does not stand on its own. I will argue that the fact that the universal principle of right cannot be derived from the universal principle of morals does not imply that the two are not related at all. The Rechtgesetz is the result of the application of the Sittengesetz to the concept of right. Thus, it presupposes the categorical imperative.
The paper proceeds as follows. In section 2, I offer a few remarks on the context of the debate on the relationship between natural right and morals and present the positions held by the frühe Kantianer and Achenwall. In section 3, I first discuss the universal principle of morals [Sitten] and the categorical imperative within the Metaphysics of Morals (3.i) and then proceed to examine the principle of right (3.ii). I indicate that right restricts maxims, not only actions, and maintain that this does not generate a paradox regarding the externality of ius. I then analyze the relationship between these two normative principles in light of the results of the previous sections (3.iii). Section 4 contains a brief conclusion.
2 The context of the debate
In this section, I present the views held by the early Kantians, who aimed to derive the principle of ius from the principle of morals. Consideration of this debate on the foundations of ius naturae will show that Kant did not in fact adopt the strategy proposed by the frühe Kantianer. Instead, he seems to have followed a chain of reasoning similar to that found in Achenwall’s doctrine of right. Looking into Kant’s sources on natural right will help to clarify his final position on the relationship between the universal law of morals and the law of right.
2.1 The early Kantians
Following the publication of the Groundwork of the Metaphysics of Morals in 1785, many German natural law theorists acknowledged that Kant’s moral philosophy strongly challenged the then dominant account of ius naturae, which was based on Wolffian principles, and thus believed that the discipline needed a new foundation. Many of them, such as Gottfried Hufeland, Wilhelm Tafinger, Theodor Schmalz, and Karl Heydenreich, went even further and sought to develop a Kantian doctrine of natural right via a concrete strategy, namely deriving the concept of right (and the fundamental Rechtsgesetz) from a Kantian conception of the moral law.[10] In his Essay on the Principle of Natural Right (1786), for instance, Hufeland holds that juridical obligations “nevertheless must not be merely borrowed from morals [Moral], but derived for themselves from the universal principle of morality [Sittlichkeit], and must be considered in connection with the whole system of remaining principles”. Accordingly, Hufeland aims to “present [his] own system of morality and then to derive the principle of natural right from it”.[11] Another example can be found in Das reine Naturrecht (1792), written by Theodor Schmalz, a professor of law in Königsberg. Like Hufeland, Schmalz pursues a derivation of the law of right from the moral law, but he disagrees with him on the formulation of the relevant principles. He argues that Hufeland’s and Tafinger’s books “cannot really be considered an application of Kantian principles to natural right” because both authors make use of material principles (instead of formal ones).[12] Schmalz claims that the correct method for grounding natural right by appealing to critical philosophy is to first analyze the concept of freedom in order to establish the principle of morality (which, on his account, resembles Kant’s formula of humanity)[13] and then derive the principle of natural right from it.
When Kant published Perpetual Peace in 1795 and the definitive and systematic version of the Rechtslehre in 1797, some authors immediately remarked on the fact that the Kantian textbooks on natural right were a far cry from Kant’s own vision of the discipline. Such was Fichte’s claim in the Introduction to the Foundations of Natural Right, for instance, where he refers to Kantian works and the “usual way of dealing with natural right”, namely the strategy of deriving the law of right from the moral law. He suggests that Kant had questioned “the usual way of dealing with things” and that he provides another kind of deduction in Perpetual Peace, one that agrees with the deduction in the Foundations.[14] This divergence between Kant and the early Kantians is also mentioned by Gustav Hugo, one of the founders of the Historical School of law and a devoted reader of the Metaphysics of Morals, who in his Lehrbuch des Naturrechts (1798) writes: “his metaphysische Anfangsgründe der Rechtslehre (1797) were, in many parts, precisely opposite to what has been taught in his name until now”.[15]
Kant was presumably aware of the discussion on the possibility of deducing the Rechtsgesetz from a Kantian version of the moral law and thus giving ius naturae a new foundation with the resources of critical philosophy. In 1786, he wrote a review of Hufeland’s Essay for the Jenaer Allgemeine Literaturzeitung. He met Fichte and was acquainted with his work and had Schmalz’s Das reine Naturrecht in his own library, among other books on law written by Schmalz.[16] However, Kant never gave a statement on the subject and, most importantly, did not introduce the universal law of right in terms of a derivation from the universal principle of morals [Sitten] or a formulation of the categorical imperative in the Metaphysics of Morals. At the same time, however, he held that the Rechtslehre, together with the Tugendlehre, belong to the Sittenlehre. As such, both moral doctrines share fundamental moral concepts (e. g. freedom, obligation, duty, categorical imperative, imputation) and are ruled by the universal principle of the Sittenlehre.[17] In other words, although Kant does not talk about a deduction of the Rechtsgesetz from the Sittengesetz, he does claim that the latter law holds both for right and for ethics.
2.2 Achenwall
This claim is not unexpected if we take into consideration the context of the discussion on ius naturae before the emergence of Kant’s (and the early Kantians’) doctrine of right – a context that was dominated by Wolffian principles. For Wolff and Wolffian authors such as Achenwall and Baumgarten (whose textbooks on natural right and practical philosophy were very popular and used by Kant as a basis for his lectures), right was part of a broader discipline (i. e. natural right in a broader sense, or moral philosophy) that comprehends the totality of duties and obligations.[18] Moral philosophy as a systematic discipline was built, in turn, on a first fundamental principle (or practical law). According to both Baumgarten and Achenwall, this first principle of practical philosophy, or universal moral law, was the principle “Commit the good and omit the bad”, which amounts to the Wolffian precept “perfect yourself”.[19]
Achenwall conceived his doctrine of natural right as part of a broader system of moral principles without introducing the principle of ius in terms of a direct derivation of the universal principle of morals. In the Prolegomena, his argument to ground the universal law of right runs as follows: i) there is a fundamental obligation to preserve oneself and to preserve “each and all of [one’s own] perfections”;[20] ii) the obligation to preserve oneself, in particular the obligation to preserve one’s life and body, generates a “moral ability” (i. e. a subjective right) to coerce others not to hinder one’s preservation;[21] iii) from i) and ii) it follows that there is a natural obligation, corresponding to the natural right to coerce, not to infringe on the life and body of others. This perfect natural law (i. e. “Do not go against another man’s preservation”) is the universal principle of right in a strict sense, and from it one can obtain other perfect laws, rights or obligations.[22] In this way, according to Achenwall, the fundamental law of right is not completely contained in, or subsumed under, the universal law of morals. This means that it cannot be obtained by means of a derivation. Further premises (or definitions), such as right as a moral capacity to coerce, must be introduced in order to establish the universal principle of right. Thus, the fundamental law of right presupposes the universal law of morals, without the former being directly deduced from the latter. As I shall argue below, this resembles the way in which the Rechtsgesetz and the Sittengesetz relate to each other in Kant’s Metaphysics of Morals.
3 Rechtsgesetz and Sittengesetz in Kant’s Metaphysics of Morals
In the Metaphysics of Morals, Kant presents his definitive system of juridical duties, or duties of right, as part of a broader moral doctrine, i. e. the Sittenlehre. The fact that the Rechtslehre belongs to the Sittenlehre, as I will argue in section 3.iii, does not imply that the universal principle of right is to be derived solely from the universal principle of morals. Moreover, I will advance the thesis that the principle of right is obtained once the principle of morals is applied to the concept of right. Before this, I will discuss the principles separately. I will begin with the universal principle of morals (Sitten) and point out that the relevant formulation for analyzing the relationship between the principle of right and the categorical imperative is the one that Kant himself presents as holding for both ethics and right (3.i). I will then continue with the universal principle of right and indicate that this practical principle applies not only to actions but also to maxims (3.ii). I will show that the claim that maxims are relevant to the domain of right is not at odds with right’s being, by definition, external. Taking into consideration the definitive form of the categorical imperative and the presence of maxims in the formulation of the principle of right will put us in a better position to clarify the relationship between the two universal laws.
3.1 The universal principle of the Sittenlehre
Let us begin with a brief clarification of the idea of the Sittenlehre. The doctrine of morals consists of a system of laws of freedom, or moral laws, that proceed from pure practical reason. “Morals is the name for the use of freedom according to the laws of reason [Sitten nennt man den Gebrauch der Freiheit nach den Gesetzen der Vernunft]”[23] and thus involves the possibility of Willkür’s being determined by reason regarding both the internal and the external use of freedom. Here we find an important terminological remark: the terms Sitten and Moral (which I here render in English as “morals”) encompass both right (Recht, ius) and ethics (Ethik, ethica); correspondingly, the doctrine of morals or moral philosophy (Sittenlehre, philosophia moralis) comprehends both the Rechtslehre and the Tugendlehre. The latter is also called “ethics” (Ethik or ethica). The term Sittlichkeit, on the other hand, is quite misleading, for Kant sometimes uses it as a synonym for Moralität or moralitas (morality),[24] and thus as a feature related to ethical duties that opposes mere legality (Gesetzmäßigkeit or legalitas), and sometimes as a synonym for Sitten (morals).[25]
Kant speaks not only of a doctrine of morals but also of a metaphysics of morals. This (original) idea that metaphysics has a moral part, and that first principles [Anfangsgründe] are metaphysical, has to do with the type of cognition that a Sittenlehre entails, including its origin. Moral philosophy involves not only rational cognition (as classical rationalism thought) but pure rational cognition, i. e. principles and moral concepts that have their origin in pure reason.[26] Accordingly, the metaphysics of morals is a “system of a priori cognition from concepts alone [System der Erkenntniß a priori aus bloßen Begriffen]” that has freedom as its object.[27] As I have already indicated, laws of freedom, or moral laws, can refer to the external or to the internal use of the freedom of Willkür. Kant maintains that in the former case moral laws are called juridical, whereas in the latter they are called ethical.[28] Furthermore, moral laws give rise to duties, and therefore morals [Moral or Sitten] can be regarded as a “system of duties in general [System der Pflichten überhaupt]”.[29] Duties arising from juridical lawgiving are juridical duties, or duties of right, and duties arising from ethical lawgiving are ethical duties, or duties of virtue. Considering that the main division of the metaphysics of morals is based on the internal and external uses of freedom, a distinction can also be drawn between “duties of external freedom” (as equivalent to Rechtspflichten) and “duties of internal freedom” (as equivalent to Tugendpflichten).[30] As the two moral doctrines that contain a system of laws of freedom and duties, the Rechtslehre and the Tugendlehre share their main concepts, such as freedom, obligation, duty, categorical imperative, and imputation.[31] Moreover, both right and ethics fall under the universal principle of the Sittenlehre, and indeed they must do so if they are to be conceived of as moral doctrines.
The principle of morals is a practical law because it grounds duties.[32] For beings that possess both the capacity to act according to principles and a sensibly affected Willkür, the moral law is experienced as a constraint [necessitatio], and thus it takes the form of a command. Kant calls the formula of a command an “imperative” and holds that an imperative is categorical when it represents an action as objectively necessary.[33] In other words, for rational beings who also possess a sensuous nature, an objective practical principle takes the form of a categorical imperative that, by making certain actions necessary, establishes duties and obligations.
Let us now turn to the universal principle of Sitten. As expected, in the Metaphysics of Morals Kant presents the universal principle of the Sittenlehre as the categorical imperative (although there are in fact many moral laws, and each is formulated, in turn, as a categorical imperative).[34] This principle says: “act on a maxim which can also hold as a universal law [handle nach einer Maxime, die zugleich als allgemeines Gesetz gelten kann]”.[35] This formula parallels the general formula of the categorical imperative introduced in the Groundwork, but they are not identical. In the Groundwork, the principle says: “act only in accordance with that maxim through which you can at the same time will that it become a universal law [handle nur nach derjenigen Maxime, durch die du zugleich wollen kannst, dass sie ein allgemeines Gesetz werde]”.[36] Whereas the formula of the categorical imperative in the Metaphysics of Morals only requires that the maxim qualify as a universal law [“gelten kann”], the formula in the Groundwork also demands that, simultaneously, one be able to will [“du wollen kannst”], through the adoption of the maxim, that it become a universal law. Many commentators overlook this and refer to the formulas of the 1785 text when discussing the relationship between the universal principle of right and the categorical imperative, making no reference to the formula that Kant explicitly presents in the Metaphysics of Morals as the general practical law of both right and ethics.[37] It is beyond the aim of this paper to analyze the extent to which the formulas of the categorical imperative differ from each other or to determine the exact respects in which they vary. It is safe to affirm, however, that the relevant formula for giving a coherent explanation of the logical structure of the metaphysics of morals and its two doctrines is the one that Kant himself presented in 1797 as the supreme principle of the discipline.
The principle of morals as the formal principle of obligation
In the Metaphysics of Morals, Kant argues that the universal principle of the doctrine of morals, the categorical imperative, “only affirms what obligation is [überhaupt nur aussagt, was Verbindlichkeit sei]”.[38] This reflects the claim that pure reason is able to become practical (i. e. to establish obligations) precisely because reason, by itself, demands something about the subjective principles of action: that maxims should qualify for the universality of a practical law.[39] Therefore, the universal law of morals, for both inner and outer actions, says that a maxim, “the rule that the agent himself makes his principle on subjective grounds [das subjective Princip zu handeln, was sich das Subject selbst zur Regel macht]”,[40] is morally permissible when it is suitable to be a law. The Sittengesetz[41] does not positively command the adoption of certain maxims (as the principle of the Tugendlehre does); rather, it serves as a negative principle that states that any maxim that is not universalizable is “contrary to morals”. Nor does it require a specific motive to act, or the pursuit of a certain end.[42] If this were the case, it could not be applied to the moral domain of right (since ius does not make demands on our reasons for acting or our setting of ends).[43]
Furthermore, the universal principle of Sitten, as presented in 1797, does not include any reference to the volitions of the agent. Recall that the general formula of the categorical imperative of the Groundwork states that the agent should be able to will that the maxim become a universal law. When discussing the principle of autonomy, Kant also argues that acting on maxims that are consistent with universal laws implies “that the will could regard itself as at the same time giving universal law through its maxim [dass der Wille durch seine Maxime sich selbst zugleich als allgemein gesetzgebend betrachten könne]”.[44] The idea is that the principle of morality tells us not only to act on maxims that we can at the same time will as universal laws, but also to think of our own will as giving universal laws through its maxims.[45] By contrast, the formula of the categorical imperative of the Metaphysics of Morals only says that our maxim should be able to hold as a universal law. It does not tell us to (necessarily) will the maxim as a universal law or to regard our own will as giving laws to itself. Note here that in the Vorbegriffe section, where Kant defines the main concepts and principles that must be made clear in order to proceed with the development of the doctrine of morals as a whole, the principle of autonomy is not mentioned at all.[46] The main point to note is that, according to the principle of the Sittenlehre, I can consider not only my own will but also a will in general (and thus a will other than my own) as giving universal laws. Moreover, I can conceive of a lawgiving general will under which the freedom of one can coexist with the freedom of others. This is indeed what Kant seems to argue in the Doctrine of Virtue, where, after describing the universal principle of the Sittenlehre as “the formal principle of duty”, he claims that “ethics adds only that this principle is to be thought as the law of your own will and not of a will in general, which could also be the will of others; in the latter case the law would provide a duty of right”.[47]
Finally, the Sittengesetz does not establish substantive duties by itself.[48] As the formal principle of morals, it only indicates when a maxim is permissible or impermissible (“contrary to morals”).[49] In order to obtain substantive duties (duties of right and duties of virtue), the supreme principles of each particular doctrine must first be established by adding further conditions to which the general formula of the moral law is to be applied. In the case of the doctrine of virtue, it will be crucial to consider the concept of objective ends (i. e. ends established by pure reason).[50] In the case of the doctrine of right, it will be crucial to consider the concept of right. Before considering how the transition from the Sittengesetz to the Rechtsgesetz is effected, however, I will introduce the principle of right and briefly discuss its external character.
3.2 The universal principle of the Rechtslehre and the externality of right
After having defined the concept of right in § C of the Introduction to the Doctrine of Right, Kant establishes the universal principle of right: “any action is right if it can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of the Willkür of each can coexist with everyone’s freedom in accordance with a universal law”.[51] This practical principle equates to the universal law of right [das allgemeine Rechtsgesetz]. Kant claims that this normative principle “is indeed a law that lays an obligation on me”, an obligation that commands me to “so act externally that the free use of [my] Willkür can coexist with the freedom of others according to a universal law”.[52]
I find it important to first highlight that the universal principle of right refers not only to actions but also to maxims (“die [Handlung] oder nach deren Maxime”). It does not require us to act on a particular maxim, as the universal principle of the doctrine of virtue does, but rather tells us which set of maxims (and actions) are permissible from the perspective of right.[53] The reference to maxims’ qualifying as universal laws in the general law of right is a relevant feature that indicates its connection to the universal principle of Sitten.[54] Many commentators who support some version of the ‘independence thesis’, such as Arthur Ripstein, Thomas Pogge, Allen Wood and Marcus Willaschek, neglect the role of maxims in the sphere of right and hold that ius only gives laws for actions.[55] Other interpreters such as Manfred Baum, Mary Gregor, Onora O’Neill, and especially Marie Newhouse have pointed out the relevance of maxims to the sphere of external actions.[56] If right indeed left maxims out of its scope, this would provide a strong basis for the claim that the Rechtsgesetz is independent of the Sittengesetz, for these laws would not have any elements in common (or maybe just the idea of universality). It is not my aim here to explain how the principle of right functions with regard to maxims; this topic deserves a paper of its own, including a discussion of contested issues such as what a maxim is,[57] what constitutes a wrong, and what it means to act on a wrongful maxim in a legal or juridical sense.[58] For present purposes, I wish only to underline that the principle of right refers to maxims and not only to actions. I take this as evidence that the general law of right presupposes a central element of the general law of morals.
One might object at this point that a restriction on maxims of action established by the principle of right cannot be squared with the external character of right, for it is often assumed that the act of adopting a maxim is internal, in the sense that it “takes place” in the realm of Gesinnung.[59] Hence, a few points on the externality of right are in order before turning to the relationship between the principle of morals and the principle of right.
The externality of right
As I see it, Kant’s claim regarding the externality of right has a precise meaning that is not equivalent to those aspects of action to which we have empirical access (that “we can see or hear”), such as the movement of bodies or the handling of objects.[60] The external character of right means that juridical duties and obligations tell us nothing about our motives for action or our ends when we are acting or shaping our maxims. Hence, that the principle of right restricts maxims of action poses no paradox with regard to the externality of right. Let me explain.
Kant uses the terms “internal-external [innere-äußere]” in several senses. In the Metaphysics of Morals, he makes use of them with regard to the distinction between juridical duties and duties of virtue,[61] with regard to the distinction between innate right and acquired rights,[62] and with regard to the distinction between duties to oneself and duties to others.[63] Here, we are concerned with the first use of the term “external”, namely as a key feature of right and its conceptual elements.
In the Introduction to the Metaphysics of Morals, Kant talks not only about “external duties” but about “external actions [äußere Handlungen]”,[64] “external lawgiving [äußere Gesetzgebung]”,[65] “external relation [äußeres Verhältniß]” between persons,[66] and “external coercion [äußerer Zwang]”.[67] Duties are external when they arise from juridical lawgiving, “since this lawgiving does not require that the idea of duty, which is internal, itself be the determining ground of the agent’s Willkür”.[68] Accordingly, ethical lawgiving, “just because it includes within its law the internal incentive to action (the idea of duty) […] cannot be external”.[69] Therefore, a form of lawgiving and its corresponding duties are external when they do not command a particular incentive or motive to act. Juridical laws are thus “directed merely to external actions and their conformity to law [sie nur auf bloße äußere Handlungen und deren Gesetzmäßigkeit gehen]”,[70] namely, to the aspects of actions that exclude, or are not related to, motivation. In other words, that right deals with the external sphere of action thus far only means that, by definition, juridical principles do not put the agent under an obligation to act from duty, or to act on maxims adopted from duty.
Let us now turn to the notion of external coercion. In the Introduction to the Doctrine of Virtue, Kant contrasts this notion with that of self-coercion [Selbstzwang],[71] while also referring to the distinction between external and internal freedom.[72] In Section I of the Introduction, he defines the concept of duty as being “already in itself the concept of a necessitation (coercion) of the free Willkür through the law [ist an sich schon der Begriff von einer Nöthigung (Zwang) der freien Willkür durchs Gesetz]”.[73] This coercion can be external or self-coercion. Kant argues that the notion of äußere Zwang corresponds to the doctrine of right, since it “deals only with the formal condition of external freedom (the consistency of external freedom with itself if its maxim were made universal law)”.[74] But ethics, he goes on to say, “goes beyond this and provides a matter (an object of the free Willkür), an end of pure reason”.[75] By considering ends established by reason, “from which right abstracts altogether”, the doctrine of virtue introduces the notion of Selbstzwang, that is, “the capacity for self-coercion not by means of other inclinations but by pure reason”.[76]
The coercion involved in the case of duties of virtue (internal coercion or self-coercion) is thus a kind of constraint of the self (which by definition cannot be exerted by an external will) through which one sets an end of pure reason “against the end arising from sensible impulses”.[77] This act of constraint implies not merely the adoption of an end above empirical or subjective ends but the pursuit of a moral end from respect for the law. Self-coercion, Kant writes, occurs “in accordance with a principle of inner freedom, and so through the mere representation of one’s duty in accordance with its formal law”.[78] What makes coercion external, in contrast to what makes coercion internal, is, once again, the absence of normative requirements on motives, incentives and ends within the notion of duty (of right). When Kant argues that duties of virtue involve Selbstzwang, he is not merely saying that a constraint of the self is at play, but also that these duties are based on objective ends that are set from the idea of duty itself. Accordingly, the claim that duties of right involve an äußere Zwang does not merely mean that there is a constraint that can be exerted by a will other than one’s own at play, but mainly that these duties do not bind us to adopt moral ends or to comply with them from mere recognition of the law.
Thus, the reason why right is external is neither that it gives laws to actions (instead of maxims) nor that it only affects interactions between persons. The externality of right seems to refer to the fact that it does not require us to act on maxims that are adopted from duty and that incorporate ends of pure reason. Of course, right is not only external, but it is also concerned with reciprocal and practical relations between persons. It requires that actions, or maxims of action, be compatible with the sphere of action of others, that is, that one’s use of external freedom not infringe on the freedom of others. Therefore, the claim that the universalizability of maxims can be relevant to the moral (or normative) realm of right is not at odds with right’s being, by definition, external.[79]
3.3 Rechtsgesetz and Sittengesetz
In section 3.i, I argued that the Sittengesetz is a merely formal principle that does not ground substantive duties by itself; it only says what obligation is in general. In other words, the principle of morals demarcates the normative realm (or the moral domain) within which the supreme principle of each doctrine (the Rechtslehre and the Tugendlehre) is to be formulated and its corresponding duties established. After all, Kant does not talk about “moral duties” but classifies them into duties of right [Rechtspflichten] and duties of virtue [Tugendpflichten], and each branch depends on its general corresponding law. The supreme principle of each brand of pure morals, the universal principle of right and the universal principle of virtue, is not gained by means of a derivation. If this were the case, these principles would be completely contained in, and could be subsumed under, the principle of morals. But the principle of right and the principle of virtue contain elements that are not present in the principle of morals (such as interactions between agents, in the first case, and ends, in the second). Put differently, from the universal law of morals alone we can obtain neither a fundamental law of right nor a fundamental law of ethics. Hence, the principle of Sitten, i. e. the categorical imperative, must be combined with further conceptual elements in order to formulate the supreme practical principles of each part of the Sittenlehre. In the case of the Rechtslehre, the Sittengesetz is applied to the concept of right. In the case of the Tugendlehre, the Sittengesetz is applied to the concept of a duty of virtue and therefore incorporates the notion of an “end that is at the same time a duty [ein Zweck, der zugleich Pflicht ist]” (which is a “concept that belongs exclusively to ethics”).[80]
In the Doctrine of Right, Kant introduces the concept of right in §B, precisely when addressing the question “What is right?” and before establishing the supreme principle of right in §C. There, he holds that the concept of right only affects external and reciprocal interactions among persons and considers “the form in the relation of the Willkür”, not the matter (the ends of actions). More precisely, right is concerned with the question of “whether the action of one can be united with the Willkür of another in accordance with a universal law of freedom”.[81] After indicating its relevant features, Kant defines it as “the sum of the conditions under which the Willkür of one can be united with the Willkür of another in accordance with a universal law of freedom”.[82] Thus far, right is described as dealing with the relationship between agents and the compatibility of their external spheres of action under universal laws. Nothing is said about the universality of maxims. But then, in §C, Kant establishes the principle of right, which, as we saw in the previous section, refers not only to actions but also to maxims. This principle is in turn a practical law that tells us how we ought to act and therefore takes the form of a categorical imperative.[83]
The presence of maxims in the universal law of right indicates that this principle presupposes the general law of morals. But this formal law, which tells us that our maxims must be able to serve as universal laws, is now applied to the concept of right, which introduces an important normative element: the necessary coexistence of the sphere of external freedom of all under universal law. As a result, the principle of morals gains substantive content and a particular meaning. From the point of view of right, a maxim is universalizable (and thus recht) if acting on it is compatible with the external freedom of all in accordance with a universal law. Note here that this is not to say that right only (or primarily) concerns maxims. Since the concept of right mainly has to do with reciprocal relationships between agents, the principle of right takes both actions and the maxims of actions into account when establishing how agents ought to relate. The main distinction when defining the scope of right is therefore not between actions and maxims but between the internal and the external use of Willkür. As we have seen, the fact that right is concerned with the external aspect of actions means that, when considering the reciprocal interactions of Willkür, it abstracts from ends and incentives.
Let us now return to Achenwall and the similarities between his and Kant’s understanding of the relationship between the universal moral law and the universal law of right. Like Achenwall, Kant holds that the universal law of right is part of a broader system of moral laws (although he understands these laws as laws of freedom rather than natural laws). For both authors, this system has a fundamental moral law, and the doctrine of right, as a particular subset of moral laws, has its own supreme principle or general law (which only pertains to its corresponding branch of moral philosophy). Neither Achenwall nor Kant claims that the universal law of right derives from the universal law of morals, but neither do they regard the former principle as completely independent of the latter. Their doctrines of right (the Ius Naturae and the Rechtslehre) share the view that, if the moral law is to define the scope of obligation in general, it must somehow be contained or reflected in the law of right, since this is the practical principle from which juridical duties and obligations are to be gleaned. Of course, the similarity ends there. Kant and Achenwall offer markedly different accounts of how the law of right includes elements of the general formula of the moral law. According to Achenwall, the fundamental natural law (like natural laws in general) is conceived in a teleological manner, in the sense that it obtains its normative content from an end (i. e. the perfection of the self). The universal principle of right presupposes this normative claim, i. e. human beings should pursue their natural ends, but it also depends on the introduction of additional premises or definitions (e. g. the idea of a moral capacity to coerce). In the case of Kant’s doctrine of morals, the presence of the supreme principle of morals in the principle of right is evidenced by the fact that it contains the general view that maxims of action must be capable of universalization if they are to be morally permissible. The principle of right presupposes the principle of Sitten, but it also depends on the introduction of the concept of right and its normative features.
Finally, I would like to suggest that in the Metaphysics of Morals, the relationship between the principle of Sitten and the universal principle of right parallels the relationship between the principle of Sitten and the universal principle of the doctrine of virtue. As I see it, whereas in the Rechtslehre the categorical imperative is applied to the concept of right, in the Tugendlehre this general principle is applied to the concept of a duty of virtue.[84] I will now give a rough outline of how the relationship between the universal principle of morals and that of ethics may be understood.
Kant introduces the supreme principle of the doctrine of virtue in the section titled “What is a duty of virtue? [Was ist Tugendpflicht?]”. Before introducing the principle, he discusses the notion of Tugendpflicht and distinguishes it from the notion of virtue [Tugend]. Virtue is the “strength of a human being’s maxims in fulfilling his duty [die Stärke der Maxime des Menschen in Befolgung seiner Pflicht]”.[85] He holds that this notion is merely a formal one, in the sense that it has to do with the form of one’s maxims and the “conformity of the will with every duty [Übereinstimmung des Willens mit jeder Pflicht]”.[86] By contrast, a duty of virtue concerns the matter of one’s maxims, and hence “the end that is at the same time a duty [Zweck, der zugleich als Pflicht gedacht wird]”.[87] Kant maintains that there must be such ends and identifies them as one’s own perfection and the happiness of others.[88] He goes on to argue that the concept of an “end that is at the same time a duty” is the only one that “establishes a law for maxims of actions [ein Gesetz für die Maximen der Handlungen begründet]”, precisely “by subordinating the subjective end (that everyone has) to the objective end (that everyone ought to make his end)”.[89] Accordingly, not only does ethics require that a maxim be able to serve as a universal law, but it also demands, given that a maxim of action is a “means to ends”,[90] that we pursue ends set by pure reason through the adoption of maxims of ends. A duty of virtue can thus be defined as an “obligation to the maxims of such an end” (i. e. an objective or obligatory end).[91]
Having explained the notion of a duty of virtue, Kant introduces the supreme principle of the doctrine of virtue: “act in accordance with a maxim of ends that it can be a universal law for everyone to have [handle nach einer Maxime der Zwecke, die zu haben für jedermann ein allgemeines Gesetz sein kann]”.[92] This principle seems to result from the application of the principle of Sitten to the concept of a duty of virtue, namely, the duty to adopt maxims of ends. When the categorical imperative, which requires us to act on maxims that could qualify as universal laws, is applied to the notion of duties of virtue (or “obligatory ends”), the outcome is a law (a principle of internal legislation) that prescribes acting on maxims of ends that can be the object of universal legislation. Put otherwise, by means of the notion of ends that we have a duty to adopt, the universal principle of morals can be converted into a principle of internal willing (i. e. a law for my own will and not for a will in general), and hence into a principle of ethics.[93] Whereas the principle of right was only able to restrict maxims of actions (and actions), the principle of ethics, by taking recourse to ends of reason, commands us to act on certain maxims and thus to promote certain ends.[94] As a result, the notion of obligatory ends plays a key role in delimiting the realm of ethics within morals and thus in distinguishing right from ethics; Kant affirms that ethics “can also be defined as the system of the ends of pure practical reason. End and duty distinguish the two divisions of the doctrine of morals in general [allgemeine Sittenlehre]”.[95]
A third way
Before concluding, I would like to briefly return to the current debate in the literature on law and morality in Kant and say a few words on how my reading relates to it. For ease of comparison, I will restate it here: the categorical imperative is necessary in order to formulate the principle of right, but it is not sufficient; the latter is obtained once the universal principle of morals is applied to the concept of right. In a nutshell, my interpretation offers a third way of explaining the relationship between the principle of right and the categorical imperative – one that differs from ‘derivationist’ and ‘independentist’ readings.
As I mentioned above, Gregor (1965) and Guyer (2002) argue that the universal principle of right is derived from the categorical imperative (or from the fundamental principle of morality). In a similar vein, other commentators, such as Seel (2009), Oberer (2010), Ludwig (2015), and Hirsch (2017), maintain that the law of right can be obtained solely from the categorical imperative, although they do not hold that this procedure involves, or must involve, a derivation. For example, Ludwig (2015) holds that “there is no need for any ‘derivation’ of the principle of right from the categorical imperative at all since the former is just a special version of the latter”.[96] They all agree, however, on a central tenet: the categorical imperative is both a necessary and a sufficient condition for obtaining the universal principle of right.[97] My interpretation denies not only that the principle of right is derived (solely) from the categorical imperative but also that the universal law of morals is sufficient to formulate the universal law of right. My claim is that the categorical imperative is a necessary principle but not a sufficient one: it has to be applied to the concept of right. Put otherwise, the necessary coexistence of the sphere of external freedom of all under universal laws is a normative element that is not present in the principle of morals, and thus it must be added to it.
The interpretation advanced in this paper does not endorse the so-called independence thesis either. Supporters of this thesis contend that the categorical imperative is not necessary to formulate the principle of right. Some of them, e. g. Pogge (2002) and Ripstein (2009), seem to hold that the principle of morals is not necessary (but may be sufficient) for formulating the concept of right. This means that even though the categorical imperative is not necessary for obtaining the general law of right, one may find a way to justify the latter by appealing to the former.[98] Some others, e. g. Willaschek (1997), Wood (2002), and Geismann (2006), argue that the categorical imperative is neither necessary nor sufficient for establishing the universal principle of right; that is to say, they maintain that the latter does not presuppose the former.[99] Therefore, advocates of the ‘independence thesis’ may disagree about the possibility, or impossibility, of deriving Kant’s concept of right from his moral theory, but they all regard the categorical imperative as unnecessary for formulating the general law of right. By contrast, I contend that Kant views the universal principle of the Sittenlehre as grounding both right and ethics, and thus as necessary for establishing the general law of right and the general law of ethics. I agree, however, that the categorical imperative is not sufficient to establish the principle of right, for important normative elements of the realm of right are simply missing from it. As Willaschek (2009) and Geismann (2006) have already pointed out, the idea of the necessary coexistence of the external freedom of all under universal laws cannot be extracted from the universal principle of morals.
4 Conclusion
Kant never specifies how the Rechtsgesetz and the Sittengesetz relate to each other, and because of this the possibility (or impossibility) of a deduction of the former from the latter has been a matter of discussion since the very early reception of the text. This lacuna has raised all kinds of questions on the relationship between law and morality, and both early readers and current interpreters of Kant’s work disagree on whether right belongs to the metaphysics of morals. In this paper, I have argued that Kant did not pursue the strategy proposed by the early Kantians and that he never presented the Rechtsgesetz in terms of a derivation from a formula of the categorical imperative. However, even if we accept that the principle of right is not derived from a more general moral principle, it does not follow that it should be regarded as completely independent. As in Achenwall’s view, the fundamental law of right presupposes the universal moral law and is obtained once the latter general principle is combined with additional conceptual elements. Accordingly, I have argued that the universal principle of right in the Metaphysics of Morals follows from the application of the principle of morals to the concept of right, thus offering a third way to understand the relationship between the categorical imperative and the principle of right.
If this article is convincing, it will contribute to our understanding of the relationship between right and morals in Kant. More remains to be said on the development of the general formula of the categorical imperative between the Groundwork and the Metaphysics of Morals and on the general dependence of Kant’s theory of right on his moral theory, as outlined in the Groundwork and the second Critique. Also worth exploring are related issues such as the changes that his moral philosophy and its main concepts (autonomy, obligation, freedom, etc.) had to go through in the 1790s in order to accommodate right as part of a doctrine of pure morals.
Acknowledgements
I thank Pauline Kleingeld and Fred Rauscher for their insightful feedback on earlier versions of this article. I also benefited from comments from Luke Davies, Mike Gregory, Suzanne Jacobi, Leon van Rijsbergen, Janis Schaab, Sabina Vaccarino Bremner, Pablo Zadunaisky, Lu Zhao, two anonymous referees, and audiences at the Ninth Multilateral Kant Colloquium and at Virtual NAKS, “Women Scholars Network: Formal Principles in Kant’s Political Philosophy”. I am grateful to the Dutch Research Council (NWO) for supporting this research.
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