The Moral Within, The Law Without

The common complaint that the distinction between Kant’s moral and legal philosophy is unknown is not strictly true.  Many engaged in legal philosophy have encountered, time and again, the reminder (or admonition) to treat with care the distinction between Kant’s ethics and the rechtlehre.  Further, Kant’s political philosophy has been the subject of many fine books over the last quarter century.  What is difficult, rather, is to keep the distinction foremost in one’s mind when the philosophical heat, so to speak, is turned on.  Well intentioned, one notes the critical distinction between the purity of a will acting on moral reasons undergirding Kant’s ethics and the preservation of equal external freedom on which Kant’s political philosophy is based.  Yet when thorny questions are leveled, it is too easy to slip into familiar groves, weighing whether an action is appropriately prohibited by measuring its legitimacy against, say, the Categorical Imperative.

One problem, I suspect, is the lack of a text, close at intellectual hand, which has carefully explored Kant’s political philosophy and explicated its branches  in a wide range of subject matters.  Arthur Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy could by its intelligence, clarity and ambition fundamentally arrest and repair the sloppiness with which Kant’s political and moral philosophy are too often jumbled.

Ripstein begins by clearing away the notion that Kantian legal theory can be isolated by translating Kantian moral prohibitions into legal ones.  Instead, he explores, with both depth and simplicity, Kant’s distinction between moral and legal duties.  Ripstein highlights the basis of Kantian legal theory as the freedom from interference with external freedom.  The fundamental idea is that the basis of legal right is the ability to decide for yourself what your purposes will be or, put otherwise, to be your own master and slave to none.  Thus, in order to ensure freedom one may use force to hinder those who would interfere with another’s external freedom.  Indeed, for Kant, the claim is stronger – freedom encapsulated in legal right is constituted by the ability to employ coercion to secure all from interference with their external freedom.  Thus, force is a constitutive element of freedom.

When described with the clarity and care Ripstein displays one may underestimate the full depth of the idea.  To take one example, Ripstein explores the long leveled critique that freedom, or more often put liberty, cannot serve as the normative basis for law as the preservation of one person’s liberty must always come by restricting another’s.  After all, the right to be free from violent assault requires restricting the liberty of the person wishing to assault you.  Ripstein illustrates how the Kantian model dissolves this critique in an intuitive way – because liberty is freedom from external interference, the assailant was never “free” to assault you in the first instance.  Not only does this undermine the apparent critique but it has the benefit of being perfectly intuitive, the kind of thing you would tell a child when they protest their rights were violated by not being able to take little sister’s toy.

Secondly, focusing on external freedom avoids justifying a legal system by welfare distribution or trade offs.  Kantian legal right is focused on protecting your freedom from being dominated by others, it is not based on one’s ability to achieve one’s ends and collect their rewards.  Freedom is the ability to aim your purposes at your ends not the right to succeed in reaching them.  In one nice example, Ripstein points out that if someone buys the last quart of cream you wished to use for cooking dinner tonight, they have done you no wrong.  While you remain free to set your own goals the world does not owe you successful conditions in achieving them – for that would require dominating others to force them to manufacture your success.

The remarkable aspect of Ripstein’s book is his systematic explication of Kantian political theory through field after field of law.  Ripstein works his way from the inherent freedom one has in her body to set purposes to the idea that one must be able to make useable unowned items instruments of one’s will.  So Ripstein illustrates how starting from external freedom, one can work their way to a distinctive model of Kantian property.  Likewise, Ripstein sees in the freedom to control one’s purposes the ability to join ends that is the basis of contract.

Of particular interest to political theorists is Ripstein’s exciting discussion of Kant’s thoughts on legal rights in the state of nature and the duty to establish civil society or a condition of right.  For Kant, legal rights only existed in the face of a omnilateral will that was empowered to act for all its subjects.  In this manner, legal officials are empowered to employ coercive power by the will of all do not make one the master of another.  Rather, all were equally masters of themselves.  Importantly, because legal rights exist in virtue of such a will and they are indeterminate or provisional until there is a political state – a condition of right.  This leads to intriguing questions on Kantian duties to exit the state of nature, enter into and maintain civic society.  These questions, I believe become even more poignant when one begins to consider a modern world of terrorist threats and government which justify many dark actions to preserve order.  (Related, Ripstein discusses Kant’s infamous refusal of a right of revolution.)  Ripstein also has a thoughtful discussion of how many of the features of the modern state can be understood as justifiable in light of preserving freedom and preventing anyone from being mastered by others.  Kant’s view that the state must provide for the poor from public funds is a core example.

A book of this ambition can not answer every particular question to the satisfaction of all.  Some may find it overly convenient that many state activities that liberal academics favor can all be redescribed as freedom protecting as opposed to welfare enhancing.  Further, despite the theme of book being the distinctiveness of Kant’s political theory from his ethics, one still cannot help but to wonder if they can remain perfectly hermeneutically sealed or how they fit together.  Ripstein’s explanation here may seem overly subtle to some.

Still, Ripstein’s book is a remarkable accomplishment; one I imagine will repay scholars returning to it time and again.  It is a compliment to the author that in reading this book one so often finds the ideas nearly obvious.  It is Ripstein’s clarity that leads the reader to realize or, more honestly, imagine that they had long held this view of Kant.  By building a wonderful and coherent scaffolding with which scholars can survey the landscape of legal doctrine Ripstein may well fix and rescue Kant’s distinctive legal philosophy.