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C A T E G O R I C A L P R I N C I P L E S O F L A W
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C AT E G O R I C A L P R I N C I P L E S O F L A W
. . . . . . . . . .

A Counterpoint to Modernity

O T F R I E D H F F E

T R A N S L AT E D B Y M A R K M I G OT T I

FOREWORD BY K E N N E T H BAY N E S

THE PENNSYLVANIA STATE UNIVERSITY PRESS

UNIVERSITY PARK, PENNSYLVANIA
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The German edition on which this translation is based is Kategorische

Rechtsprinzipien: Ein Kontrapunkt der Moderne. Suhrkamp Verlag,
Frankfurt am Main, 1990.
This translation also incorporates the article Eine Konversion der Kritis-
chen Theorie (Habermas), in Vernunft und Recht: Bausteine zu einem in-
terkulturellen Rechtsdiskurs, pp. 14659. Suhrkamp Verlag, Frankfurt
am Main, 1996.

Library of Congress Cataloging-in-Publication Data

Hffe, Otfried.
[Kategorische Rechtsprinzipien. English]
Categorical principles of law : a counterpoint to modernity/Otfried
Hffe ; translated by Mark Migotti.
p. cm.
Includes bibliographical references and index.
ISBN 0-271-02158-6 (cloth : alk. paper)
ISBN 0-271-02159-4 (pbk. : alk. paper)
1. Ethics. 2. LawPhilosophy. 3. Ethics, Modern20th century.
4. Philosophy, Modern20th century. I. Title.
BJ55 .H5713 2001
340.1dc21
2001021547

Copyright 2002 The Pennsylvania State University

All rights reserved
Printed in the United States of America
Published by The Pennsylvania State University Press,
University Park, PA 16802-1003

The paper used in this publication is both acid-free and totally chlorine-
free (TCF). It meets the minimum requirements of American National
Standard for Information SciencesPermanence of Paper for Printed
Library Materials, ANSI Z39.48-1992.
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CONTENTS

Foreword, by Kenneth Baynes vii

Translators Preface xxv
Abbreviations xxix
1 The Theory of Modernity in Dialogue with Kant 1

PART ONE: COUNTERPOINT OR ANACHRONISM?

2 A Transcendental Critique of Society? 17

3 In Search of the Lost Paradigm 31
4 Practical Metaphysics and Anthropology 59
5 The Categorical Imperative of Law in the Singular 85

PART TWO: EXAMPLES OF CATEGORICAL PRINCIPLES OF LAW

6 A Look at Utilitarianism 105

7 The Prohibition Against False Promising 125
8 Penal Law as Categorical Imperative 151
9 The Republic of Free, Confederated Peoples 175

PART THREE: TIMELY ALTERNATIVES?

10 Freedom Without Herrschaft (Axelrod)? 199

11 Is Rawlss Theory of Justice Kantian? 215
12 Kantian Doubts About Apels Discourse Ethics 233
13 Habermas and the Conversion of Critical Theory 249
Bibliography 289
Index 297

v
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FOREWORD

Kenneth Baynes

Though Otfried Hffes work is only recently becoming known in the United
States, he represents a distinctive voice in German social and political thought.1
In over three decades and more than a dozen books, he has developed an ap-
proach to political theory that resists easy categorization: he is at once a Kantian
who draws frequently on Aristotle and the ancients, a liberal who profitably en-
gages Hobbes and game theory, and a natural-rights theorist equally fluent in
contemporary social theory, including Luhmann and Habermas. This extensive
engagement with diverse traditions has afforded Hffe a perspective that is both
original and illuminating. The present volume, as much as any of his other works,
sets out this distinctive approach within the framework of his reception of Kant.
Given the general familiarity of Kant and Kantianism in this country, due largely
to the work of Rawls and his students, it also provides one of the best bridges for
the reception of his views within the U.S. discussions.
Contemporary political culture, according to Hffe, is deeply ambiguous or, in
his term, polyphonic. On the one hand, there is a widespread distrust of univer-
sals and universalisms, reflected, for example, in the rise of multiculturalism
and greater appreciation for the distinctiveness of cultures and traditions, in the
renewed interest in a variety of empirical social sciences, and in the general sus-
picion of grand theory. On the other hand, there is also a growing, if fragile,

Abbreviations used in the Foreword: KPW  Kants Political Writings, ed. H. Reiss (Cambridge:
Cambridge University Press, 1970); BFN  Jrgen Habermas, Between Facts and Norms: Contribu-
tions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, Mass.: MIT
Press, 1996).
1. Three earlier works already appear in English translation: Immanuel Kant (Albany: State Uni-
versity of New York Press, 1994), Political Justice (Cambridge: Polity Press, 1995), and Aristotle
(Albany: State University of New York Press, 2001).

vii
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viii Fo r e w o r d

recognition of the value of basic human rights and commitment to their legal and
political implementation. In Germany, this cultural ambiguity is reflected in the
continuing tension between conservative critiques of liberal thought (ranging
from Carl Schmitt to Odo Marquard) and the language of basic liberal rights in-
voked in the reunification of the two Germanys. In the United States, similar ten-
sions can be found in the liberal-communitarian controversy of the past decade
and in the continuing debates between liberalism and postmodernism. At one
level, then, Hffes interpretation of contemporary culture is not newin many
respects it recalls Alasdair MacIntyres discussion of the moral malaise of moder-
nity, in After Virtue, without its conservative undercurrent.2 What is distinctive
about his contribution, however, is his attempt to rehabilitate Kant as a modern
theorist (and theorist of modernity) whose views are still relevant particularly
because of the way in which they both reflect and speak to this deep ambiguity. In
fact, it would not be a distortion of his work to claim that its central theme is
pace MacIntyrean attempt to demonstrate the continuing relevance of Kant.
Kantianism and Kant studies have, of course, also seen a revival in this coun-
try due in large part to Rawls and his students. Hffes study can be viewed as
a contribution to this revivalone of his earliest works was on Rawlsand
in many ways, it seeks to develop and extend some of the Kantian elements in
Rawlss theory against Rawls or, to be more exact, against his political liberal-
ism. Hffes work will then find a ready audience for those already familiar with
this debate.
For those less familiar, let me offer a brief overview: In a series of essays writ-
ten in the late 70s and 80s, Rawls made more explicit the deeper Kantian intu-
itions that had guided the construction of his theory of justice, especially its more
egalitarian components.3 A Theory of Justice (1971), Rawls now claimed, had not
been an attempt to develop substantive normative principles from a purely neu-
tral, game-theoretic model of rationality as many had supposed. On the contrary,
the fundamental idea of a person endowed with two basic moral powerswhat
Rawls labeled the Rational and the Reasonableconstituted the deeper Kantian
aspects of his theory. The selection of principles of justice and the design of the
basic structure of society must reflect and secure equally for all these basic moral
powers of the person. However, at least partly in response to communitarian crit-
ics, such as Michael Sandel, who argued that the Kantian conception of the per-
son was abstract and disembodiedan unencumbered subject of possession

2. After Virtue, 2d ed. (Notre Dame, Ind.: University of Notre Dame Press, 1984).
3. See especially Kantian Constructivism in Moral Theory, Journal of Philosophy 77 (1980):
51572.
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Fo r e w o r d ix

Rawls, beginning in the mid-80s, shifted the direction of his argument, relying
more heavily on claims about ideas latent in our liberal political culture.4 The
strategy was, so to speak, to outflank the communitarian objection by claiming
that his theory did not depend on any metaphysical assumptions about the
person or otherwise, but could be developed from the ideas shared by all liberals,
whether they were Kantian individualists or not. To many, however, including
many of those sympathetic with Rawlss general project, Rawls was in danger
of giving away too much. An adequate defense of liberalism could not so easily
shun metaphysics without risking the alternative danger of a relativistic position
in which a coherent defense of liberalism was ultimately undermined.5 In effect,
in his latest writings, Rawls seems to want to have it both ways: the defense of
liberalism should be political, not metaphysical; but, at the same time, it must
also not be political, as he put it, in the wrong way. That is, the aim of justice
as fairness should not be construed as a mere modus vivendithe best that
can be done given the realities of contemporary social lifenor should the fun-
damental idea of the person with its two moral powers be viewed simply as the
content of a particular historical or cultural tradition.6 The difficulty of sustaining
this position, however, is evident in the extremely mixed reaction his political lib-
eralism has receivedespecially, though significantly, in its extension to the level
of international relations.7

4. See here especially Justice as Fairness: Political, Not Metaphysical, Philosophy and Public
Affairs 14 (1985): 22751; for a more detailed discussion of this evolution in Rawlss thought, see my
The Normative Grounds of Social Criticism: Kant, Rawls, and Habermas (Albany: State University of
New York Press, 1992).
5. For those otherwise sympathetic with Rawls but critical of his political turn, see especially
Samuel Scheffler, The Appeal of Political Liberalism, Ethics 105 (1994): 422; Jean Hampton,
The Common Faith of Liberalism, Pacific Philosophical Quarterly 75 (1994): 186216; and
Thomas Hill, The Problem of Stability in Political Liberalism, in Respect, Pluralism, and Justice
(New York: Oxford University Press, 2000); for a relativist who embraces Rawlss political turn,
see Richard Rorty, The Priority of Democracy to Philosophy, in Objectivity, Relativism, and Truth
(New York: Cambridge University Press, 1991), 17596.
6. For some of Rawlss remarks on this question, and especially the idea that a political concep-
tion must be stable for the right reasons and thus not political in the wrong way, see his
introduction to the paperback edition of Political Liberalism (New York: Columbia University
Press, 1996) and Justice as Fairness: A Restatement (Cambridge: Harvard University Press, 2001),
188.
7. In general, see, for example, Jrgen Habermas, Reconciliation Through the Public Use of
Reason, Journal of Philosophy 92 (1995), and J. Raz, Facing Diversity: The Case of Epistemic
Abstinence, Philosophy and Public Affairs 19 (1990): 346; for difficulties especially at the level
of international relations, see Thomas Pogge, An Egalitarian Law of Peoples, Philosophy and Public
Affairs 23 (1994): 195224, and Thomas McCarthy, On the Idea of a Reasonable Law of Peoples,
in Perpetual Peace, ed. James Bohman and Matthias Lutz-Bachmann (Cambridge, Mass.: MIT
Press, 1997), 20118.
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x Fo r e w o r d

The present work can, I believe, be situated within these debates concerning
the most suitable or appropriate interpretation and defense of liberal theory. As
I suggested above, Hffe belongs among those who, broadly speaking, deploy
Kantian arguments against Rawls in an effort to preserve Rawlss deeper Kantian
intuitions. However, that is just the first salvo in the exchange. Those, like Hffe,
who hope to demonstrate the continuing relevance of Kant must address the same
challenges that motivated Rawlss own political, not metaphysical, turnand
this is where Hffes work offers its most original contributions to the discussion.
Four challenges seem particularly relevant (and figure prominently in Hffes
own work): (1) a plausible interpretation of Kants moral philosophyand, in
particular, the idea of a categorical imperativethat can avoid the twin charges
of rigorism and empty formalism; (2) a convincing account of the relation be-
tween politics and morality (or political rightness) within Kants practical phi-
losophy; (3) an outline of Kants cosmopolitanism; and (4) a sketch of the contin-
uing relevance of Kant vis--vis some other contemporary political theorists. In
the remainder of this foreword I will attempt to indicate the force of each of these
challenges and the rough contours of Hffes own response. The more elaborate
details can be found in the chapters of his book.
(1) A central component of any attempt to rehabilitate Kant and his categori-
cal imperative must surely be a demonstration that the categorical imperative can
avoid excessive rigorism, on the one hand, and empty formalism, on the other
indeed, one could also show that this remains the central challenge of all neo-
Kantian moral theory since Hegel, including that of Rawls and Habermas. For
Kant, if the binding, or obligating, character of morality is to prove its worth, it
must be shown that moral principles are wholly rational and do not depend on any
empirical admixture.8 However, critics from Hegel to Bernard Williams have
argued that precisely this condition ensures that Kants morality must succumb to
one or the otheror, in Hegels case, even bothof these charges. A wholly
a priori moral principle will either be insensitive to important contextual variations
in a particular situation of action (consider Kants own treatment of the supposed
right to lie) or will remain too abstract in its formulation to allow for the deriva-
tion of any determinate duties. Recent Kant interpreterssuch as Henry Allison,
Onora ONeill, Barbara Herman, and Christine Korsgaardhave provided inter-
pretations of the categorical imperative (especially in its first, or universal law,
formulation) that attempt to rescue Kant from such criticisms. However, many

8. See, for example, Kants remarks in Grounding of the Metaphysics of Morals, trans. J. Elling-
ton (Indianapolis: Hackett, 1993), 22 (GMS, 411).
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Fo r e w o r d xi

others continue to claim that these interpretations either stray quite far from some
of Kants clear commitments, thus producing a quite un-Kantian account of
morality, or still retain a great deal of indeterminacy with respect to specific moral
duties and obligations. Thus, for example, in her important study The Sources of
Normativity, Christine Korsgaard introduces the notion of a practical identity
as an aspect of agency that is distinct from the agents moral identity.9 This
enables her to gain some critical purchase (in response to the Humean challenge)
on how agents might be obligated, or bound, by reasons, but it arguably threatens
the purity Kant sought in his conception of moral agency. A similar claim can be
made concerning Rawlss earlier notion of a persons individual life-plan. In both
cases, empirical or not solely rational elements are introduced in order to gen-
erate more specific duties.
Hffes alternative interpretation suggests that the contrast between the ratio-
nal and the empirical or anthropological has been overdrawn, even by Kant him-
self (see especially Chapter 4). He argues that, even in his own writings, Kants
sense of moral anthropology extends beyond a merely subsidiary status and
plays an indispensable role in specifying some of the background assumptions
required for any actual application of a categorical imperative. At the same time,
however, the concept of moral obligation itself depends on practices of evaluation
that, he maintains, transcend or outrun all empirical or anthropological features
and thus constitutes a distinctively metaphysical (i.e., purely rational) dimen-
sion to Kants moral philosophy. In a highly original reconstruction of Kants
example of false promise (see Chapter 7), Hffe proposes a two-step interpre-
tation of the categorical imperative that distinguishes between the logic and
pragmatics of an act-descriptionwhich, roughly, then allows him to distin-
guish between applications of the categorical imperative that test for moral le-
gality and moral worth respectively. He also introduces the important idea of
consequences of action that are internal to an act-description. The result is a
reading of the categorical imperative that is well situated to resist many of the
standard objections.
There are certainly many specific details of this interpretation that still need to
be worked out. However, one immediate virtue of Hffes reconstruction is that it
may, so to speak, split the difference in the more recent controversy in Kant inter-
pretation between constructivists like ONeill and Allison and teleological
interpretations, such as that recently defended by Allen Woodthat is, while re-
taining the constructivist insistence that moral obligations must be developed

9. The Sources of Normativity (New York: Cambridge University Press, 1996), 102.
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xii Fo r e w o r d

from the conceptions of autonomy and practical reason alone, Hffe is also able
to show how the foreseeable consequences of actions figure into judgments
concerning their moral status.10
(2) A second area of Kant interpretation to which Hffes work makes an im-
portant contribution concerns the relation between justice and politics in Kants
practical philosophy. Though there are several aspects to this broad topic, the fun-
damental issue (to which I will return again in the last section, in connection with
Habermas) concerns the way it which politics may properly be constrained by
morality or justice. Is Kants conception of political legitimacy independent, or
freestanding, of moral considerations (as, for example, a thoroughgoing posi-
tivist might hold), or does it rely irreducibly on a prior notion of moral rightness
(as natural-law theorists maintain)?11 Interpretations of Kant on this matter have a
long and disputed history, and Hffe, though more clearly aligned with one,
attempts to clarify the issues in debate.
One dominant interpretation of the relation between justice and morality
might be called, following Wolfgang Kersting, the independence thesis.12 It as-
serts that Kants concept of justice, and the task of establishing a just political
order in general, can be clarified without reference to the basic categories of
Kants moral philosophy, and in particular without reference to the notion of au-
tonomy (or positive freedom). The thesis is clearly expressed in the following
quotation from Yirmiyahu Yovels Kant and the Philosophy of History: Good
citizenship is possible even in a kingdom of devils. It requires no ethical commu-
nity (kingdom of ends) and presupposes none. It is something that can be im-
posed by coercion, while morality can be rooted only in the free or spontaneous
will of individuals. Therefore, even to the best of states cannot be attributed a
moral value per se, and it is not in any political organization that the end of his-
tory is to be placed.13 This passage contains several assertions that need to be
sorted out. Yovel is certainly correct in claiming that, according to Kant, a just
society does not entail that its citizens act on the basis of moral incentives and

10. For a recent discussion of these issues, to which Hffes own discussion constitutes a further
contribution, see Allen Wood, Kants Ethical Thought (New York: Cambridge University Press,
1999), and the critical review by Henry Allison, Ethics, Evil, and Anthropology in Kant, Ethics 111
(2001): 594613.
11. For a recent treatment of this controversy, see Thomas Pogge, Is the Rechtslehre Compre-
hensive? Southern Journal of Philosophy, suppl. vol. 36:16189; see also Otfried Hffe, Knigliche
Vlker: Zu Kants kosmopolitischer Rechts- und Friedenstheorie (Frankfurt: Suhrkamp, 2001).
12. See Wolfgang Kersting, Wohlgeordnete Freiheit (Berlin: de Gruyter, 1983), 3742, for other
examples and a critique of the independence thesis.
13. Yirmiyahu Yovel, Kant and the Philosophy of History (Princeton: Princeton University Press,
1980), 189 (italics in original).
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Fo r e w o r d xiii

thus does not require the existence of an ethical community. Similarly, it is true
that for Kant the highest good and end of history is not a just political order.
Neither of these observations, however, warrants the conclusion that no moral
value per se can be attributed to a political order founded on principles of jus-
tice. Further, in contrast to Yovels interpretation, the kingdom of devils pas-
sage is difficult to read as suggesting that a just political order can be based on
prudential considerations alone (which is what the independence thesis claims).
Since this passage from Perpetual Peace is central to Yovels interpretation, I
will cite it at length:

As hard as it may sound, the problem of setting up a state can be solved

even by a nation of devils (so long as they possess understanding). It may
be stated as follows: In order to organize a group of rational beings who
together require universal laws for their survival, but of whom each sepa-
rate individual is secretly inclined to exempt himself from them, the con-
stitution must be so designed that, although the citizens are opposed to
one another in their private attitudes, these opposing views may inhibit
one another in such a way that the public conduct of the citizens will be
the same as if they did not have such evil attitudes. (KPW 11213)

As Hffe also points out, this passage is admittedly difficult to reconcile with
Kants position in the Rechtslehre and requires an interpretation of the relation
between Kants philosophy of history and his systematic theory of justice. At this
point I will only offer three considerations that weigh against Yovels interpreta-
tion (and in favor of Hffes).
First, the claim that the problem of creating a just political order is merely a
problem of political technology and can be solved on the basis of rational self-
interest (that is, on the basis of Verstand rather than Vernunft) conflicts with other
claims made by Kant not only in other writings but even within Perpetual Peace:
A true system of politics cannot therefore take a single step without first paying
tribute to morality. . . . For all politics must bend the knee before right, although
politics may hope in return to arrive, however slowly, at a stage of lasting bril-
liance (KPW 125).
Second, as Yovel is also aware, the kingdom of devils passage is closely
connected to Kants notion of a providentially guided nature, or what Yovel calls
the cunning of nature. Thus it is not rational self-interest alone, but self-interest
together with the providential guidance of nature, that is able to solve the prob-
lem of a just political order. If Kants assumptions about the mechanisms of
nature are wrong, or at least if these mechanisms do not yield the consequences
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xiv Fo r e w o r d

he predicts, then we cannot look to rational self-interest alone to produce a just

political order. In other words, the critical turn that Yovel finds in Kants deci-
sion to restrict the cunning of nature to the production of a just state (and not
the production of an ethical community) would have to be extended further.
Third, two different readings of the kingdom of devils passage are possible,
depending on what knowledge one wishes to attribute to the devils. If they know
the moral law but choose not to act on it, in their rational calculations they may
still devise a constitution that would be different from one in which their calcula-
tions were made without any knowledge of the moral law at all (that is, one that
was based on rational self-interest alone).
In light of these considerations, as Hffe also argues, priority must be given
to Kants systematic presentation of the concept of justice as it is contained in
the Rechtslehre, where, as in his moral philosophy in general, the concept of
moral personality or autonomy is fundamental. Consequently, the most defensi-
ble interpretation of the independence thesisand one that Hffe would also
endorseis the formulation offered by Mary Gregor in her Laws of Freedom:
Law is independent of ethics in the sense that it has no need of ethical obliga-
tion in determining its duties. But it cannot be independent of the supreme
moral principle; for if its laws were not derived from the categorical imperative,
then the constraint exercised in juridical legislation would not be legal obliga-
tion but mere arbitrary violence.14
A second interpretation of the relationship between justice and morality, more
prevalent in the secondary literature than the independence thesis, is the teleolog-
ical interpretation. Patrick Rileys Kants Political Philosophy offers one of the
most sustained defenses of this position.15 I refer to this interpretation as teleo-
logical for two reasons. First, it is teleological in the sense that it is opposed to
constructivist interpretations of Kants moral philosophy. Rather than view
Kants moral theory as a construction developed in connection with a conception
of the person as an autonomous moral agent, it maintains that Kants moral theory
depends upon a rational intuition of objective ends given to us.16 Second, it is
teleological in that it regards justice, and politics more generally, as something
that exists for the sake of these objective ends. Thus, Riley writes, public legal
justice is instrumentally (purposively) related to morality in two ways: in a
weaker sense, it creates legal conditions for the exercise of a good willit limits

14. Mary Gregor, Laws of Freedom (Oxford: Blackwell, 1963), 31.

15. Patrick Riley, Kants Political Philosophy (Totowa, N.J.: Rowman & Littlefield, 1983).
16. Ibid., 16, 5657, 6768; for a criticism of this reading of objective ends, and a constructivist
interpretation, see John Atwell, Objective Ends in Kants Ethics, Archiv fr Geschichte der Philoso-
phie 56 (1974): 15671.
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Fo r e w o r d xv

occasions for sin and creates occasions for morality; in a stronger sense, it legally
enforces part of what ought to be, even where a good will is absent.17
Though I cannot pursue the matter further here (see below, Aristotle or
Kant? section 4.3) the first sense of teleological must be dismissed, since it
conflicts with Kants own commitment to an ethics of the will (or autonomy). It
also runs counter to the basic principle of his critical philosophy, namely, that we
cannot have knowledge beyond the bounds of sense experience. The second sense
of teleological in this interpretation is more difficult to assess, since, like the in-
dependence thesis, it finds some support in Kants writings, especially Perpetual
Peace and The Conflict of the Faculties. As before, the rule of interpretation must
be to read these essays in light of Kants more systematic presentations, and that
means the Rechtslehre must be given priority where Kant importantly distin-
guishes between a principle of judgment and a principle of execution and claims
that, regarding the former, all laws (ethical and juridical) have the same status as
moral laws.18 Thus, to describe justice as existing for the sake of morality is to
diminish the intrinsic value of political rights and duties, just as the independence
thesis denies them moral worth altogether. Political rights and obligations, ac-
cording to Kant, are unconditional commands of pure practical reason, whether
they produce a greater degree of internal morality or not (although Kant was, I
think, ultimately of the opinion that they do). In this regard it is also important to
note that while Kant considered legality inferior to morality when it refers to the
incentives upon which people act, this does not mean that a just political order is
somehow inferior to and merely instrumental for the moral kingdom of ends.
Hffes very helpful distinction (in Chapter 5) between the categorical imperative
in the singular (i.e., the moral law) and categorical imperatives in the plural (in-
cluding the universal principle of law [Recht]) goes a long way toward clarify-
ing what is misleading in this second, teleological interpretation of the relation
between politics and morality.
(3) Hffes discussion of Kants cosmopolitanism (Chapter 9) not only offers
an important reading of Kants influential essay Perpetual Peace (1795) but also
shows in an exemplary way Hffes attempt to demonstrate the contemporary rel-
evance of Kants practical philosophy in general. On the commonly received in-
terpretation, Kant envisioned a condition of international peace in which free and
independent nation-states would voluntarily agree to a treaty in which each state
announced an end not only to a specific war but, indeed, to all war. He accord-
ingly dismissed what he described as the otherwise theoretically correct model of

17. Riley, Kants Political Philosophy, 4; see also 14, 98, and 135.
18. Metaphysik der Sitten (Hamburg: Meiner, 1966), 214 and 220.
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xvi Fo r e w o r d

a unitary world-state, or world republic, as practically unattainable and a model

that would most likely give rise to a soulless despotism in which citizens no
longer felt bound to the laws of their state (KPW 113). Thus, contrary to some in-
terpretations of Kant, Kants sketch of a world order that would secure perpetual
peace did not include a world government, but only a very loosely conceived fed-
erationa kind of international society of republican nation-states based on
mutual respect for each others (internal and external) sovereignty.
As a consequence, then, for Kant only a partial analogy can be drawn between
the idea of the social contract and requirement that individuals quit the state of
nature and the idea of an international state of nature that nation-states are
morally required to abandon in pursuit of a cosmopolitan peace. In other words,
Kant does not conclude that a cosmopolitan state, or world republic, is morally
required. To be sure, the state is also a moral person entitled to freedom, or inde-
pendence, but there is no corresponding obligation (as there is upon individuals)
to secure this freedom through the creation of a world-state. Rather, only a volun-
tary agreement to an international rule of law in which states renounce war is con-
sistent with the principle of sovereignty to which Kant adheres. In short, Kant
seems to reject the idea of a world-state, or world republic, precisely because it
would have to acquire the same powers of sovereignty that he believes rightly be-
long only to the nation-state as an independent moral-legal person.
In a provocative reading of Kants essayand one that interestingly parallels
a recent reading by HabermasHffe argues that Kants arguments against a
world republic are not convincing and thus that his shift to a loose confederation
of nation-states (which Kant himself described as second best) lacks motiva-
tion.19 Hffe also persuasively argues that Kants conviction that the idea of a
world republic is inherently contradictory was largely due to a concept of sov-
ereignty that was too undifferentiated. Echoing some recent ideas of David Held
and others, Hffe maintains that a concept of political sovereignty that is unlim-
ited and indivisible is both factually obsolete (in a world of global interconnect-
edness) and normatively unattractive: Sovereignty itself has to be conceived
today as already divided among a number of agenciesnational, regional, and in-
ternationaland limited by the very nature of this plurality.20 Following the
earlier suggestion of Hedley Bull, Held describes the results of these trends
toward globalization as a kind of neo-medieval international ordera modern

19. See the interesting and parallel reading by Jrgen Habermas, Kants Idea of Perpetual Peace,
with the Benefit of Two Hundred Years of Hindsight, in Perpetual Peace, ed. James Bohman and
Matthias Lutz-Bachmann (Cambridge, Mass.: MIT Press, 1997), 11354.
20. David Held, Democracy and the Global System, in Political Theory Today, ed. David Held
(Stanford: Stanford University Press, 1991), 222.
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Fo r e w o r d xvii

and secular counterpart to the kind of political organization that existed in Chris-
tian Europe in the Middle Ages, the essential characteristic of which was a sys-
tem of overlapping authority and multiple loyalty. 21 Heldand Hffefurther
suggest that this model of overlapping authorities and criss-crossing loyalties
may continue to offer some normatively attractive features today.22
Of course, as Hffe also points out, these trends toward globalization have not
made the nationstate irrelevant and are themselves highly ambivalent with re-
gard to the values of global justice, peace, andperhaps especiallydemocratic
rule. Nonetheless, they indicate, at a normative level, the possibility for thinking
creatively about global constitutionalism in ways freed from the unitary concep-
tion of external sovereignty assumed by Kant and by much of contemporary de-
mocratic theory.
(4) In the final chapters of Categorical Principles of Law Hffe engages sev-
eral contemporary political theorists (Axelrod, Rawls, Apel, and Habermas) from
the perspective of the Kant interpretations he has carefully worked out in the ear-
lier chapters. Put most broadly, his aim is to show that these more recent political
theories either fail because they have neglected important distinctions in Kant
(Axelrod and, more or less, Rawls) or mistakenly assume that they have moved
beyond the limits of Kants paradigm (Apel and Habermas). The lesson to be
learned is that one can ignore or move beyond Kant only at too great a price. I
have, above, already briefly located Hffe with respect to current Rawls interpre-
tation. In the last chapter, Hffe discusses at length Habermass theory of com-
municative action and his further attempt, in Between Facts and Norms, to de-
velop from it a discourse theory of law and democracy. It is particularly in
Habermass model of a deliberative democracy, freed from any connection with
natural-rights theory, that Hffe locates the limits of his projectand his mis-
guided attempt to go beyond Kant. The concerns Hffe raises touch upon some of
the deepest normative issues within Habermass discourse-theoretic approach to
politics and, I think, point to areas that, like his reception of Rawls, will require
further clarification in view of Hffes queries.
Within the context of discussions about deliberative democracy, Hffe identi-
fies a central and difficult concern for normative political theory at least since
Rousseau: the connection between democratic process (or popular sovereignty)
and justice (or political rightness). Democracy means rule by the demos, or
people, and this suggests citizens must be the authors, in some nonfictively at-

21. Ibid, 223.

22. For Hffes related discussion of subsidiarity, see his Demokratie im Zeitalter der Global-
isierung (Munich: Beck, 1999).
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xviii Fo r e w o r d

tributable sense (Frank Michelman), of the laws that constitute their polity. Yet it
is far from clear precisely how political rightness and rule by the people are to
be related, since most deliberativistsand indeed most democratsdo not re-
gard the outcome of any given democratic procedure as just or right simply be-
cause it issues from that process. Moreover, even if one regards democracy as an
imperfect procedure at best, it is still not clear how democratic process itself is a
constitutive (and thus ineliminable) element in a conception of political right-
nessrather than, say, the best available means to an end specified in a process-
independent way. Yet it is just this claim regarding the constitutive role of demo-
cratic process in a conception of political rightness that is for Habermas the
hallmark of deliberative democracy.
Moreover, this problem is particularly acute for deliberative theorists, since
populists of a more positivist bent tend simply to identify justice with the popular
will, while more traditional liberal democrats (or rights fundamentalists) tend
to downplay the importance of democratic process.23 The relation between liberal
principles of right and democratic process thus appears to be largely contingent,
and, as Hffe warns, at least the attraction of the benevolent (liberal) despot
looms on the intellectual horizon. Neither of these options is available to deliber-
ativists like Habermas, however, since they seem to insist upon both a deontolog-
ical conception of political rightness (like liberals) and yet the indispensability of
democratic process to that conception of political rightness. Deliberativists are,
thus, faced with a unique transcendental burden, not found in other democratic
conceptions, which motivates the following sorts of questions: How is this ideal
of democratic polity even conceptually possible? How can political rightness, in
some deep or constitutive sense, be process bound and yet, in another, be asso-
ciated with a deontological notion of right reason that is process independent?
Is political rightness process dependent or process independent?
Hffe rightly points out that the conception of a procedural democracy and de-
liberative politics developed in Jrgen Habermass recent work Between Facts
and Norms is decidedly deliberativist and thus gives rise to the sort of paradox
just indicated.24 On the one hand, Habermas displays a commitment to the deon-
tological strain in deliberativist thought in his claim that the ideal of a procedural
democracy can be derived via reflection on the presuppositions of communicative

23. A similar criticism of this sort of (roughly) rights-based liberal theory articulated by Rawls,
Dworkin, or, for that matter, Nozick can be found in Michael Walzer, Philosophy or Democracy?
Political Theory 9 (1981): 37999, as well as in the strong democratic theory of Benjamin Barber
(see his Reconstruction of Rights, American Prospect [spring 1991]: 3646).
24. For a reading of Rawls that also locates him squarely among the deliberativists, see my own
Constructivism and Practical Reason in Rawls, Analyse und Kritik 14 (1992): 1832.
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Fo r e w o r d xix

reason and action. On the other hand, Hffe correctly notes that Habermas also
insists upon the indispensability of actual democratic process to ascertain and
give content to the fundamentally unsaturated (BFN 125) scheme of rights de-
rived in that manner. Habermas writes: Individual private rights cannot even be
adequately formulated, let alone politically implemented, if those affected have
not first engaged in public discussions to clarify which features are relevant in
treating typical cases as alike or different, and then mobilized communicative
power for the consideration of their newly interpreted needs (BFN 450). It
seems, then, that Habermass desire to embrace both elements in the deliberativist
position leads to what can be called the regress problem: Only the people in the
collective exercise of their private and public autonomy can define what their
legal rights are; yet, it would also seem that in order for the people to give ex-
pression to their will, a legitimate political order must already be presupposed.25
As Habermas puts it, The idea of the rule of law sets in motion a spiraling self-
application of law (BFN 39). For his own part, Hffe questions how such a con-
ception of deliberative politics is even possible, unless one explicitly takes up a
more transcendental (Kantian) line of inquiry. This, in short, is the (unanswered)
transcendental burden confronting deliberativists.
I believe that Hffe points to a difficult and important issue at the heart of a sec-
ular (e.g., non-natural-rights-based) account of democracy. Moreover, as Hffe
would no doubt agree, this is not a difficulty limited to deliberativists alone but
one that confronts all modern, secular accounts of political legitimacy: How, for
example, shall rights fundamentalists determine their preferred set of rights or
the appropriate weighing or balancing of rights and majority rule? Thus, I suspect
that the pivotal issue in dispute between Habermas and Hffe at this point will
turn on what each hopes can be gained from an appeal to transcendental argument
and, beyond that, what one understands by such an appeal. And here Hffe, more
firmly in the Kantian tradition, is clearly more confident than Habermas about the
eventual results. In Habermas, by contrast, though he too does not eschew tran-
scendental argument altogether, greater attention is focused on the level of mid-
dle-range theorizing that attempts to spell out the institutional conditions for
such a self-referential, self-limiting process of democratic law making. 26

25. For a similar deconstructive account of this paradox found in the act of constitution making,
see Jacques Derrida, Declarations of Independence, New Political Science 15 (summer 1986):
715. The paradox, of course, has a much longer history and is expressed also in the tension Sieyes
noted in the distinction between the pouvoir constitu and pouvoir constituant; see Hannah Arendt,
On Revolution (New York: Viking Press, 1963), 160 f.
26. See, for example, the recent edited volume by Robert Goodin, The Theory of Institutional
Design (New York: Cambridge University Press, 1996), especially 39 f.
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xx Fo r e w o r d

The primary task is to specify the institutional designtogether with the reasons
for itmost likely to realize the abstract ideals mirrored in an equally ideal set of
procedures. Yet, I suspect Hffe would respond, is that really an adequate substi-
tute for transcendental inquiry? What does Habermas hope to gain from his almost
single-minded focus on procedures, and what, for that matter, does he understand
by them? Does the appeal to procedure in Habermas not ultimately conceal the
normative work that Hffe (and Kant) assign to transcendental inquiry?
Procedural and proceduralist are among the most commonly used adjec-
tives in Habermass Between Facts and Norms. He broadly contrasts his preferred
proceduralist legal paradigm with the liberal and welfarist paradigms (BFN
409). He speaks of a procedural understanding of the constitution (BFN 246), a
proceduralist view of constitutional adjudication, a proceduralist understanding
of law (BFN 409), a proceduralist theory of politics (BFN 273), and a procedural
interpretation of popular sovereignty (BFN app. I). He also describes his own
conception of democracy as proceduralist. Within the context of German dis-
cussions, it is clear that Habermas seeks to distance himself from material-
valueethics interpretations of the law and political process, interpretations in-
spired by the work of Max Scheler and Nicolai Hartman (BFN 254). Habermas
also uses the term procedural to distinguish his own conception of the democ-
ratic process from liberal and republican alternatives. This is, in part, to distance
his own view from one that takes as fixed and given a prepolitical set of (nat-
ural) rights and from the view that the democratic process derives its legitimacy
from the prior agreement of a presupposed substantial-ethical community
that is, from a prior agreement on a conception of the good. Thus, Habermas
writes, a consistent proceduralist understanding of the constitution bets on the
intrinsically rational character of the procedural conditions grounding the suppo-
sition that the democratic process as a whole facilitates rational outcomes. In that
case reason is embodied solely in the formal-pragmatic facilitating conditions for
deliberative politics. (BFN 285).
However, within the wider context of legal and democratic theory, the term
procedural is ambiguous, and many different conceptions that have been de-
scribed as proceduralist differ importantly from Habermass own. For example,
in his influential essay Is Democracy Special? Brian Barry describes his own
conception as proceduralist, which he understands to mean dismissive of the
notion that one should build into democracy any constraints on the content of
the outcomes produced, such as substantive equality, respect for human rights,
concern for the general welfare, personal liberty, or the rule of law. The only ex-
ceptions (and these are significant) are those required by democracy itself as a
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Fo r e w o r d xxi

procedure.27 While the question of what is required by democracy itself as a

procedure is itself a matter of much debate, Habermass conception of democ-
racy is not procedural in this sense. It clearly has more substantive normative
content than Barry would grant.
Further, even more normatively rich procedural conceptions, such as Peter
Singers conception of democracy based on a notion of fairness as compromise
or John Elys process-oriented approach to the constitution and constitutional
review, fall short of Habermass conception.28 For these conceptions, the democ-
ratic process consists in a set of rules and procedures that are supposed to weight
equally preferences whose formation is largely exogenous to the democratic
process itself. Each person should be granted the opportunity to register his or her
preference, and no persons preference should count for more than another per-
sons. The conceptions thus operate with an ideal of political equality understood
in terms of the equal opportunity to influence political outcomes. A procedure is
fair if it captures this notion of equal power. The difficulty with such concep-
tions, however, is that they remain relatively indifferent to the initial preferences
that enter into the procedure.29 A fuller and thus more adequate account would
consider the formation and quality of preferences as well. To do this, the ideal of
political equality must initially be conceived at a more abstract level and cannot
be identified directly with the (procedural notion of the) equal opportunity to in-
fluence outcomes.30
Habermass conception of democracy thus presupposes a more abstract ideal
of political equality, and this more abstract ideal in turn serves as a guide to indi-
cate whether any proposed set of procedures is fair. The concept of democra-
tic procedure itself relies on a principle of justice in the sense of equal respect for
all (BFN 266 and 103). The ideal of political equality is then not identified solely
with a set of procedures that secures an equal opportunity (for any given prefer-
ence) to influence outcome. In this sense, Habermass procedural conception is
perhaps closest to what Charles Beitz has called complex proceduralism:

Like other forms of proceduralism, [complex proceduralism] holds that

democratic procedures should treat persons as equals; but it will not

27. In Philosophy, Politics, and Society, ed. P. Laslett (Oxford: Blackwell, 1979), 15556.
28. See Peter Singer, Democracy and Disobedience (New York: Oxford University Press, 1974),
and John Hart Ely, Democracy and Distrust (Cambridge, Mass.: Harvard University Press, 1980).
29. See Charles Beitz, Political Equality (Princeton: Princeton University Press, 1989), 82.
30. See, for example, Habermass remark linking the notion of equal respect with the idea of rea-
sons acceptable to all (BFN 103).
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xxii Fo r e w o r d

follow that the appropriate criterion for assessing procedures is the simple
principle of equal power over outcomes. Instead, complex proceduralism
holds that the terms of democratic participation are fair when they are rea-
sonably acceptable from each citizens point of view, or more precisely,
when no citizen has good reason to refuse to accept them.31

In Habermass conception, analogously, there are certain abstract idealsin the

last analysis an ideal of (public and private) autonomy or communicative free-
domthat are identified prior to (and thus independent of) any proposed set of
(ideal) procedures. It is these ideals that then confer a presumption of reasonable-
ness or fairness on the proposed procedures.32
In sum, then, for Habermas, ideal procedures attempt to capture or express an
ideal, or modelconception, of the citizen as free and equal, or, what amounts to
the same thing, an ideal of practical reason. This accounts for the deontological
aspect of his thought. But in what way is democratic process constitutive of polit-
ical rightness? Political rightness is process dependent, I believe, in two senses:
First, the specification of a set of (ideal) procedures represents an attempt to mir-
ror an interpretation of the requirements of right reasoning, or, in other words, a
model-conception of the citizen as free and equal. And the claim must be that this
set of procedures captures these ideals better than a more determinate or substan-
tive set of values is likely to do. Second, even the specification of these proce-
dures remains nevertheless quite abstract, and the rights they are said to express
remain fundamentally unsaturated. For Habermas, as Hffe points out, rights
can acquire a concrete and determinate character only through the exercise of the
citizens collective autonomy. Only the citizens can legitimately determine what
their rights shall be. Yet, to restate the regress problem, how shall they do that
unless they are already constituted as citizens?
Of course, when the issue is stated in such an abstract form, it has the air of
deep and insurmountable paradox: The people cannot make law unless they are
already constituted as a people. But why is it necessary to end with the most para-
doxical formulation? As Rawls points out in a related context, we are not begin-
ning at ground zero. Rather, we have a history and tradition of constitution
making, with its relative successes and failures, that can serve as a guide. Haber-
mass position appears to be the same: The system of rights does not exist in
transcendental purity. But two hundred years of European constitutional law have

31. Beitz, Political Equality, 23.

32. See BFN 295, and Jrgen Habermas, Three Models of Democracy, Constellations 1
(1994): 6.
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Fo r e w o r d xxiii

provided us with a sufficient number of models. These can instruct a generalizing

reconstruction of the intuitions that guide the intersubjective practice of self-
legislation in the medium of positive law (BFN 129). Further, in attempting to
give more specific content to that to which citizens could reasonably assent, spe-
cial attention should also be given to secure the conditions required for citizens to
give (or contest) such agreement. Hence, the importance of the basic liberties
(such as those contained in Rawlss First Principle). Thus, while the paradox to
which Hffe points cannot be altogether eliminated, its initially immobilizing ef-
fect can be mitigated by attending to the problems and dynamics associated with
various forms of institutional design. Yet, again, Hffe need not disagree, and, in
fact, his own interpretation of Kant suggests a similar intertwining of anthropo-
logical and transcendental considerations. Still the question can be posed: Is re-
flection on procedures, especially as Habermas now understands them, a substitute
for transcendental inquiry or a continuation of that inquiry under a different name?
Finally, as Hffe also points out, there may not be a definite or uncontestable
answer to many questions concerning the indispensability of various social and
economic guarantees, the regulation of speech, or the guarantee of various spe-
cific rights as preconditions for the democratic process. Yet it is not for that
reason inconsistent or incoherent to regard these as basic matters of democratic
debate while at the same time engaging in various critical efforts to convince the
demos that the demos cannot, at this place and time, properly or genuinely exist
without their recognition. Precisely such a strategy, it seems to me, is reflected in
the best understanding of what Rawls calls reflective equilibrium: It is an
attempt to convince usthat is, we citizens who are asked to regard ourselves
as simultaneously authors and subjects of the laws and constitutional essentials
in questionthat certain matters are of such deep importance that they should
be constitutionally secured from what Madison called the mischiefs of factions.
It is also, it would seem, not antithetical to democracy but rather democracy, most
broadly conceived, at work.
What this virtual debate between Habermas and Hffe may finally reveal,
however, is that, in a sense, both sides are right. On the one hand, transcendental
philosophy, at least as traditionally conceived, cannot be counted on to yield suf-
ficiently determinate answers to political questions in the absence of concrete re-
flection on institutional design and its foreseeable consequences; on the other
hand, normative reflection on our political practices always involves, at the same
time, distinctively philosophical inquiry about what is presupposed in our most
fundamental attempts to understand ourselves as practical (i.e., free and account-
able) agents. Here Hffe is surely right that this involves a level of transcendental
inquiryinquiry into the (nonempirical) conditions of possibilitythat could
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xxiv Fo r e w o r d

never be replaced by the empirical sciences or, for that matter, by appeal to the ul-
timately contingent fact that this is just the way we do things here. Philosophy
(now conceived as transcendental inquiry) and democracy, in any adequate analy-
sis of either, share more than ancient Athens as their common origin: both are
equally engaged in the projects of self-knowledge and self-realization. Hffes
study, it seems to me, helps us to better understand why this is the case.
FM_PS_Hoffe_117022 7/23/02 6:17 PM Page xxv

T R A N S L ATO R S P R E FAC E

Of the German words in this book that resist smooth rendition into English, two
require commentary, the same two that were singled out for attention by Jeffrey
Cohen, translator of Hffes Political Justice (1995). That work immediately pre-
ceded the present one in Germany and is thematically connected to it in numerous
ways. The words in question are Recht and Herrschaft. I follow Cohen, and
also Raymond Geuss in The Idea of a Critical Theory (1981), in leaving the latter
untranslated. Hegemony is perhaps the best single-word English rendering of
this term, but hegemony nevertheless designates a kind of Herrschaft, rather
than Herrschaft as such. As a translation of the German Vorherrschaft, formed
by prefixing Herrschaft with an intensifying vor, hegemony would be fine,
but what Professor Hffe speaks of here is Herrschaft, not Vorherrschaft.
Domination and rule each have their advantages and disadvantages, but in
the end I have found the disadvantages to be grave enough to justify leaving
Herrschaft in its original state.
The other problem term is Recht, which occurs in the books title, in its first
sentence, and on average at least once every page thereafter. Recht is one of
two German words for law. The other, Gesetz, resembles its English counter-
part in referring either to a descriptive law, the sort sought by natural and social
science, or to a prescriptive law, the sort enacted by statute. In both these cases
Gesetz is a count noun, which takes a plural. When Recht refers to law, it
refers to the prescriptive variety only, and when it carries the meaning of law
in this sense, it is not a count noun and does not take a plural. When Recht
does function as a count noun and take a plural, it refers not to a law but to a
right. Human rights in German is Menschenrechte, basic rights is Grun-
drechte, and so on. Naturally, when Recht is used in the singular to refer to the
law, to that which makes lawyers both possible and necessary, it does not shed its

xxv
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xxvi Tr a n s l a t o r s P r e f a c e

affiliation with concepts such as right, rights, right conduct, and even jus-
tice. Clearly, Recht is no more translatable than is Herrschaft.
But translated it must be. English readers can be asked to deal with only so
many foreign words at one go. If one had to choose a single English word for
Recht as it figures in these pages, law would be it. In the title of the book, I
have adhered to that choice. The categorical principles Hffe there invokes are, in
the original, principles of Recht. But I decided against inflexible adherence to
law throughout, largely because Mary Gregor, in her edition of Kants Meta-
physics of Morals, translated Recht as right. The first half of the Metaphysics
of Morals, the Rechtslehre, or Doctrine of Right, in Gregors rendering,33 is never
far from Professor Hffes mind in the present book. So it would have been awk-
ward to change Gregors translations of Recht and its derived forms (for the
reader who was sent to that work would not find there what he or she had been led
to expect), and even worse not to change them, since the reader would thus be
given the disastrous impression that Hffe and Kant were talking about two dis-
tinct things. My standard way out of this quandary has been the moderately cum-
bersome one of translating Recht with both law and right. So the reader
will find in this book much discussion of, for example, the ethics of law and
right, which is my attempt to get Rechtsethik, the ethics of Recht, ethics inso-
far as it pertains to Recht, into English. Rechtsethik, as Professor Hffe makes
abundantly clear, is, for Kant, the complement and contrast to Tugendethik, ethics
insofar as it pertains to virtue, which is the subject of the second half of the Meta-
physics of Morals.34 More to the point, Rechtsethik is the subject of the book be-
fore you. I hope that what my solution lacks in elegance it makes up in fidelity to
Professor Hffes text.
When Recht appears in a form or context that demands translation with an
adjective, I have generally employed the somewhat esoteric but, I hope, not objec-
tionably recondite juridical. From my conjunctive solution to the problem of
Recht as a noun, it would seem to follow that here I had to choose between
legal, rightful, and legal or rightful. The third put too much strain on Eng-
lish prose for my liking and strikes me as philosophically problematic to boot, and
either of the first two on its own would suffer from the same defect as law or
right on its own for the nominal cases. Because of its rarity, juridical has fewer

33. A rendering that prompts an acid rebuke from fellow Rechtslehre translator John Ladd, in
whose opinion it is not only unintelligible, but also incorrect, to refer to [Kants Rechtslehre] as The
Doctrine of Right (Ladd 1999, xxi). Ladds translation of the work in question bears the title Meta-
physical Elements of Justice.
34. For reasons that I hope will be apparent to the reader at the appropriate time, I have left un-
translated some half dozen or so occurrences of Recht in the third section of Chapter 11.
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Tr a n s l a t o r s P r e f a c e xxvii

distracting connotations than does legal, while yet being more firmly tied to in-
stitutions with the power and authority to enforce judgments than is rightful.
Nevertheless, when I had available a well-established English expression using
legal, as in the case of legal positivism, for example, I translated accordingly.
For the rest, whenever translation has been difficult enough to leave me less
than fully satisfied upon second, third, and umpty-umpth thought, I have put the
relevant German word in brackets after the translation.
I have been at this job for a long time, and have been helped and supported by
many people. First and foremost, I would like to thank Irmgard Vasudevan, who
read through a draft of the whole work, made hundreds of useful suggestions and
queries, and then had to suffer daily phone calls to discuss the trickier problems
yet again. Markus Fankhauser had earlier been through half of the manuscript to
similarly salutary effect; my colleague Dennis McKerlie has listened patiently to
dozens of requests for his preference between English expression a and English
expression b as candidate translations for German expression c, which is meant to
cover philosophical concept d; and Jrg Eselben was extremely helpful in the
later stage. I thank all three of them, and also Richard Sanger and Rita Sirignano
for moral support from beginning to end, Sanford Thatcher of the Pennsylvania
State University Press for his cheerful patience and ever prompt and helpful
replies to questions, Jean-Christoph Merle for the same, Keith Monley for his
wonderful copyediting, and Ann Levey, Susan Haack, and Elizabeth Brake, for
timely help with this preface.
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FM_PS_Hoffe_117022 7/23/02 6:17 PM Page xxix

ABBREVIATIONS

References and citations are identified parenthetically in the text and for the most
part use the author-date system or the abbreviations listed below. Full biblio-
graphical information may be found at the end of the book. References to Aris-
totle use roman numerals for books and arabic numerals for chapters; Bekker
pages follow convention. References to Kant use the abbreviations listed below,
each, with the exception of the Critique of Pure Reason, followed by the relevant
volume and page number from the Prussian Academy edition of Kants works
(Kants Gesammelte Schriften, edited by the Royal Prussian Academy of Sciences
[Berlin: G. Reimer, 1910]) and then by the page number of the relevant English
translation. For the Critique of Pure Reason, page references are made in the
standard way to the A and B editions of 1781 and 1787 respectively.

Kants Works
ANTH Anthropology from a Pragmatic Point of View (1974)
C1 Critique of Pure Reason (1998)
C2 Critique of Practical Reason (1997)
C3 Critique of Judgement (1951)
CF The Conflict of the Faculties (1992)
DR Metaphysical First Principles of the Doctrine of Right (called here
Doctrine of Right) ( first part of The Metaphysics of Morals
[VI:203372])
DV Metaphysical First Principles of the Doctrine of Virtue (called here
Doctrine of Virtue) ( second part of The Metaphysics of Morals
[VI:373493])
LE Lectures on Ethics (1980)

xxix
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xxx Abbreviations

G Grounding for the Metaphysics of Morals (1993)

IUH Idea for a Universal History from a Cosmopolitan Point of View
(1963)
ML1 Metaphysik L1 (XXVIII/I:167350)
MM The Metaphysics of Morals (1991)
OSL On a Supposed Right to Lie Because of Philanthropic Concerns
(1993)
OTH What Is Orientation in Thinking? (1991)
PP Perpetual Peace (1963)
R Religion Within the Boundaries of Mere Reason (1998)
THD On the Miscarriage of All Philosophical Trails in Theodicy (1791),
trans. Allen Wood and George Di Giovanni, in Religion Within the
Boundaries of Mere Reason, Cambridge: Cambridge University Press,
1998. (VIII:25372)
TP On the Common Saying: This May Be True in Theory, but It Does
Not Apply in Practice (1991)

Other Works
BFN Jrgen Habermas, Between Facts and Norms
NE Aristotle, Nicomachean Ethics
PJ Otfried Hffe, Political Justice
TCA Jrgen Habermas, The Theory of Communicative Action
TJ John Rawls, A Theory of Justice
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Fo r e w o r d xxxi
ch01_PSHoffe_117022 6/12/02 10:55 AM Page 1

1
THE THEORY OF MODERNITY IN DIALOGUE WITH KANT

In matters pertaining to the law, modern culture operates within a peculiar ten-
sion, almost a contradiction. Even as it is increasingly determined by an empirical
and, moreover, pragmatic style of thought, it nevertheless recognizes moral prin-
ciples such as human rights, which are distinguished by their being categorically
binding and which precisely because of this do not bend in the face of empirical
and pragmatic thinking. Human rights have the rank of categorical principles of
law, and insofar form a counterpoint within modern legal culture.
The importance of empirical thinking shows itself in the openness of legal
scholarship to the social sciences. This openness is especially visible in the rapid
growth of new disciplines such as legal sociology, criminology, legal ethnol-
ogyand in intensified research into facts of positive law. That this openness is
needed is (almost) self-evident. By heightening awareness of the empirical pre-
suppositions and consequences of the law, interaction between legal research and

1
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2 Categorical Principles of Law

social science prompts ever anew a rethinking of the laws fundamental premises
and thereby diminishes the risk of its becoming too distant from reality. In the
case of penal law, for example, the social sciences steer our attention toward
the perpetrator of the punishable act and limit the scope of the concept of guilt
by means of sociological and psychological insight. Cultural comparison, mean-
while, discovers radically other possibilities, and this gives society the opportu-
nity to shape itself legally in new ways.
Openness to the social sciences becomes questionable only when one voice,
necessary though it is within legal discourse, lays claim to dominanceor even
exclusivitywith respect to all others. Only then will we shift from an interro-
gation of the concept of guilt to its refusal; only then will we reject retributive the-
ories of punishment altogether instead of merely relativizing them. In short, the
social sciences, focused as they are, in their questions and methods, on what is,
are skeptical of normative considerations. At most they are prepared to make
judgments of social-pragmatic value, and they are thus open to orienting them-
selves toward personal and collective well-being. But the rights that someone has
simply in virtue of being human cannot be legitimated in this social-pragmatic
fashion. In order to secure their legitimation, we need categorical principles of
lawnot as an alternative to social pragmatism, but as a counterpoint.
A further argument in favor of the counterpoint provided by categorical prin-
ciples of law appeals to the fact that our communities are growing increasingly
sensitive to the diversity of human thought and action. Earlier, one spoke of plu-
ralism; today, in the face of a more encompassing and radical plurality, some
claim to see the beginnings of a new epoch, the postmodern. Even those who
remain skeptical about the idea of a change of epochand I shall be offering a
series of arguments in favor of such skepticismcan certainly acknowledge the
new sensibility. An expansion of emotional, social, and intellectual opportunities
can be observed within their own society, a development that results in increased
opportunities for self-realization (or, at the least, one that removes unjustified ob-
stacles). Perhaps more important still, this new sensibility runs counter to the
victory march of Western forms of life, which threatens cultural distinctiveness
the world over and alienates those affected from their indigenous forms of eco-
nomic and social life. To all of this are added the ecological problems that strike
back at Western societies when, as is often the case, the only portion of their cul-
ture they export is its technical, economic thinking.
But however justified the sensibility in question, its intellectual spokespersons
are still far from developing an adequate conceptual understanding of it. Those
who transfer Paul Feyerabends anything goes motto (1975) from the philoso-
phy of science to the philosophy of society overlook the many kinds of resistance
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in the face of which lifestyles and forms of culture must assert themselves. Pre-
conditions and frame conditions are necessary if difference is nevertheless to be
realized. The most elementary among these are without alternative and therefore
cannot themselves admit of pluralization. Neither can recognition ensue only
with the qualification that the required conditions serve the (alleged) collective
good. Categorical principles of law are needed to conceptualize just this task of
making possible a legitimate diversity even in the face of resistance.
Just as they do in the case of empirical-pragmatic thinking, so here categorical
principles of law run counter to an exaggerated ambition. Once again they do not
constitute an alternative to the new plurality, but a counterpoint. They do contra-
dict a one-sided plea for diversity such as that of Lyotard (1988), who urges that
we should finally give up the ambition for universal validity with which tradi-
tional philosophy and science has tyrannized humankind. Undoubtedly there is a
concept of universality that is incompatible with a right to particularity and indi-
viduality, but categorical principles of law will raise objections against a concept
of this sort as well. Here, the regularly criticized combination of rigorism and for-
mality that is characteristic of the categorical imperative turns out to be advanta-
geous: the unconditioned validity that is, the moral rigorismblocks a recog-
nition with reservations or qualifications, while the high degree of formality
makes possible an almost boundless wealth of determination regarding content.
The social sciences had already begun to influence thinking about law and
right in the early stages of the Enlightenment. Those who free themselves from a
one-sided picture of this period will discover in it more than the mere beginnings
of a diversity of confessions and religions, of values and social groups, and of
forces determining economic and political policy. In a word: postmodernity be-
gins in modernity. And we find as well in the earlier epoch the development of the
counterpointhuman rights. Thus, in the tension between empirical-pragmatic
thinking and categorical principles of law, two contrary tendencies of the Euro-
pean Enlightenment live on, and the same goes for the relationship between plu-
rality and the conditions that make plurality possible. Whether they want to or
not, our late- or postmodern societies remain, in the inter- and counterplay of dif-
ferent concepts of social rationality, bound to the heyday of modernity itself.
Because of the essential connection between these disparate tendencies, we
can no longer interpret the project of modernity homophonically. To be sure, the
interests of recently repopularized attributions of culpabilityfound, for exam-
ple, in Feyerabends notion of the false trails of reason (1987) or Lyotards of
the wrong turn of modern philosophyare well served by the simplifying strat-
egy of recognizing a single voice as leading the melody. In that case, the dangers
of modernity can easily be ascribed to the false leading melody. But how do
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4 Categorical Principles of Law

things appear if there is no leading melody, if modernity consists of a polyphony?

Modernity, on such a view, remains a project at risk, but the danger can now, in a
more nuanced fashion, be seen to result from attempts, themselves quite chang-
ing, to pick one voice out of the many and allow it to dominate the others. Some-
times, indeed, a voice will give itself the air of totality, that is, completely over-
estimate its weight and claim for itself exclusivity. In any case, categorical
principles of law urge an understanding of modernity as a polyphonous project.
This plea is to be taken on three levels. The basic concept stands for a program
of theory in which ethics, legal theory, and social philosophy form an integrated
context and in which, precisely from this context, new light on modernity is shed.
In the area of legal theory, categorical principles raise their oppositional voice
against an exclusively empirical-pragmatic thinking. In the area of social theory,
they constitute a counterweight to a theory of radical and exclusive plurality. And
finally, with respect to the theory of modernity itself, they support, albeit indi-
rectly, a polyphonous self-understanding.
At the same time, the adoption of categorical principles goes hand in hand
with a plea that questions of law and right (Rechtsfragen) be given greater weight.
The legitimacy of the modern age, today once again under discussion, needs, in
the areas of science, technology, and economics, to be judged differently from the
way in which it should be judged in architecture, literature, music, and the visual
arts; and in the area of law and the state, the situation is yet again different. In the
latter area, the modern age is to be assessed entirely positively, presupposing that
it remains open to the counterpoint, the categorical principles of law.
In order to present a conceptual profile of this counterpoint and to examine its
validity, this study is directed above all toward the overall conception and its jus-
tification. In its second part, by way of at least indicating the scope of the project,
I investigate a number of examples that are not so uncontroversial as human
rights. Finally, the counterpoint should prove itself in the arena of current dis-
course in moral philosophy.

I. Because we owe the theory of categorical principles to Kant, it is appropriate

that this work proceed in dialogue with him. Against this procedure, it might be
objected that the categorical imperative has long been discussed to death. The
objection overlooks the fact that even if, as may be the case, the categorical im-
perative has received sufficient attention in the field of general ethics, it has nev-
ertheless received relatively little in the field of law. Even among professional
moral philosophers, it is widely thought that the categorical imperative is directed
exclusively to the individual, whereby it becomes irrelevant for the law, which is
a social institution (Jonas 1984, 12).
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Under the slogan categorical principles of law, the categorical imperative is

regarded here as a fundamental principle of law and right and is elucidated from
two perspectives: systematically, as the counterpoint of modernity, and philo-
sophically-historically, as a new perspective on a well-known fundamental con-
cept. Beyond this, the reflections intend to transcend the particular case of the
law: since most of the arguments in moral philosophy have already been made,
the discourse can perhaps be revivified by an approach from the side, from the
ethics of law and right.
The revivification begins with a more finely grained conception of ethics and
its fundamental concept from a Kantian perspective. Traditionally, two distinc-
tions are made: On the one hand, the categorical imperative is regarded as the
measure of morality, and Kant presents different formulations of it. Apart from
the basic form, he recognizes three subformulations, whereby the basic form
takes the supreme principle of morality to be that of general law (allgemeine
Gesetz) as such (G IV:421/30), while the three subformulations take it to consist,
respectively, in the idea of a general law of nature (G IV:421/30), in that of hu-
manity as an end in itself (G IV:429/36), or in that of a harmonious kingdom of
ends as a kingdom of nature (G IV:436/42). On the other hand, one distinguishes
the categorical imperative in the singular, the supreme principle of morality, from
categorical imperatives in the plural, the substantial principles of morality.
Therein is contained the first element of the new perspective here proposed. With
the idea of categorical principles of law, I propose to introduce an intermediate
level between the categorical imperative in the singular and categorical impera-
tives in the plural. All told, in other words, I recognize three levels of categori-
cally binding validity.
In first moral philosophy, or fundamental ethics, we develop the categorical
imperative. In itself it is singular, but it can be expressed either in the basic for-
mulation or in any of the three subformulations. In the general branch of second
moral philosophy, this single imperative is applied to the two fundamental as-
pects of human practice, that is, to personal practice or virtue and to institutional
practice, and therein especially to the law. Finally, we find on a third level the spe-
cial branch of second moral philosophy, that which covers the field of retributive
justice, to which Kant ascribes a categorically binding validity, along with such
particular principles as the prohibition against lying and suicide. The categorical
imperative of law in the singular belongs, therefore, on the second level, while
categorical imperatives of law in the plural, that is, categorical principles of law,
belong on the third.
But in the end, not even this threefold distinction is sufficient. Critics inspired
by Hegel, such as Odo Marquard (1987a, 111), reject the categorical imperative
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6 Categorical Principles of Law

as a single-principle-ethics (Ein-Satz-Ethik); but in truth Kants thought harbors

a remarkably rich field of questions and suggested solutions, and it is not only in
the Metaphysics of Morals that this richness is developed.
To begin with, the problems involved cover a great deal of ground: the theory
of rationality, technical as well as pragmatic and moral, and beyond this the doc-
trine of the fact of reason, of the autonomy of the will and the undermining of all
eudaimonistic ethics. In addition, the categorical imperative is layered within it-
self. Beyond the distinctions already named, the fundamental ethical aspect of the
imperative consists of two levels. At a level more basic than that of a moral prin-
ciple, the categorical imperative in the first place defines what morality is insofar
as it is applied to human beings, who do not always and by their nature recog-
nize moral principles. Only in the second place does it represent a supreme crite-
rion. There, in its semantic, or metaethical, sense the categorical imperative is
nothing other than the concept of morality, the concept of validly binding claims
that can perhaps be weighed against one another in the case of conflicts of obli-
gation but that must not be relativized in the service of any other, allegedly higher
kind of validly binding claim.
Those who have grown attached to the oversimplified reading of the categori-
cal imperative will no doubt hold that its actual meaning is unclear. Nevertheless,
Kant had in mind something much more complicated than is allowed for by the
usual reading allows for, and no ethics that seeks a just conception of the prob-
lems involved can escape complexity of this sort. We must begin with a concept
of morality, then try to obtain a criterion from this concept, and then, in at least
two stages, apply the criterion in a general and a special ethics, both of law and
right and of virtue. These conceptual relationships are summarized in Table 1.
However nice it sounds, the idea of a categorical imperative of law, whether
we take it in the singular or in the plural, calls forth a divers array of worries
additional to that of having been discussed to death. They are, for the most part,
of an utterly fundamental nature, which is to say that they identify difficulties
that confront any normative theory of law, any ethics of law and right whatsoever.
Other, Kant-specific worries emerge as well, although some of the Kant-specific
objections end up dovetailing with the systematic ones.
The difficulties begin with the question whether the philosophy of law and
right to which the imperative belongs can be critical, a question that has more than
merely a Kant-immanent bearing. Subject to the powerful impression made by the
Frankfurt School, we expect a critical theory to be above all else negative in tenor:
we expect it to ferret out the injustices, contradictions, and prejudices that riddle
its object, social conditions. Since Kant, in his philosophy of law and right, does
not offer an incriminating or unmasking critique of this sort, it might be regarded
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Table 1. The Levels of the Categorical Imperative

I. First Moral Philosophy General Categorical Imperative

(Fundamental Ethics)

1. Semantic Level Concept of Morality

2. Normative Ethics Level Criterion of Morality

Basic Form Universal Law
Formal Subform Universal Law of Nature
Material Subform Humanity as an End in Itself
Complete Determination The Harmonious Kingdom of
Ends as a Kingdom ofNature

II. Second Moral Philosophy

3. General Branch Categorical Imperative Categorical Imperative

of Law in the Singular of Virtue in the Singular

4. Special Branch Categorical Principles Categorical Principles

of Law (for example, of Virtue (for example,
the prohibition against the injunction to help
false promising) those in need)

as thoroughly uncritical. In fact, Kant uses in his theoretical philosophy a third

notion of critique, one that both underlies the categorical principles of law and
expands the possibilities available to a critical theory of society (Chapter 2).
It is popular to write the history of modern law and society as a history of ad-
vancing neutrality. First, it is said, modernity became neutral (in the sense of in-
different) with respect to metaphysics, then with respect to religion, and finally
with respect to morality. The very title categorical principles of law calls two of
these alleged neutralizations into question and demonstrates thereby once again
its significance for the theory of modernity. One issue is immediately obvious: ad-
herence to categorical principles of law entails defense of the idea of morality and
rejection of the corresponding neutralization theses, the assertions, partly social-
historical and partly law-and-right-theoretical, that modern society has been re-
leased from morality (Behauptungen der Entmoralisierung).
To oppose the thesis of a release from morality (Entmoralisierung) is, of
course, to invite the charge of nave moralizing. But the concept of morality that
underlies categorical principles of law is far more complex and sensitive to the
relevant issues than is the concept with which its opponents operate. In fact, it
will be shown below that it is the proponents of a retreat from morality who argue
with a very simplistic concept of what morality is. A finely nuanced conceptual
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8 Categorical Principles of Law

grid is indeed not the least of the contributions that the idea of categorical princi-
ples of law can make to this debate. Within the network of concepts to be devel-
oped, the domain of law and right will be sharply distinguished from other areas
of morality, but will nevertheless be held accountable to judgment from the moral
point of view: the upshot being, so to speak, a morality of law and right without
moralizing (Chapter 3).
Categorical principles of law also place a question mark at the end of another
of the three indifference theses just noted, that of the end of metaphysics. Since
categorical principles have as such, according to Kant, an a priori status, so must
categorical principles that concern the ethics of law and right ethics be valid
a priori, that is, independently of experience. Thus, because claims that have con-
tent and yet do not depend upon experience for confirmation or disconfirmation
belong to metaphysics, the theory of categorical principles of law becomes an
ethics of law and right as metaphysics. Such a discipline appears impressive at
first glance, but upon closer examination seems instead to be anachronistic.
An ethics of law and right as metaphysics appears impressive because it trusts
in pure philosophy to justify principles of the same in order to provide a simple
and clear basic orientation for all juridical practice. Consequently, categorical
principles of law are opposed to the new modesty in philosophy. When Marquard
(1989) bids farewell to matters of principle and Habermas (1990b) restricts the
legitimate claims of the philosopher to that of an interpreter and place-holder,
we find, surprisingly, that both the right Hegelian (Marquard) and the left
Hegelian (Habermas) concur in proclaiming a self-limitation that undercuts the
orientation promised by categorical principles of law. That philosophy sees this
orientation as obtainable only by means of a metaphysics renders questionable
the ambition of providing it and with this the categorical imperative of law itself.
In the two hundred years that separate us from Kant, metaphysics has been so
repeatedly and fundamentally devalued that one can only be skeptical of a meta-
physical ethics of law and right. Is it really true that the political innovation of
modern times, the recognition of human rights, cannot be justified without meta-
physics?
Metaphysics finds in the idea of categorical principles of law a cautious reha-
bilitation. What is rehabilitated is not, or at least not immediately, the theoretical
metaphysics with which we are familiar. It is not, in other words, the theory of
knowledge or ontology or philosophical theology that is at issue. What is needed
for the purpose of establishing categorical principles of law is an unfamiliar brand
of metaphysics, a practical metaphysics particularly concerned with morality. The
scope of this sort of metaphysics is significantly narrower than Kant thought
it was. The philosopher of the categorical imperative falls victim to an error of
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Th e Th e o r y o f M o d e r n i t y i n D i a l o g u e w i t h K a n t 9

excess. He gives too much to the realm of the a priori, whose validity as such is
open to question, and he circumscribes the realm of the empirical far too nar-
rowly. Against Kant, we must appraise anew, and significantly more modestly, the
scope and limits of metaphysics. This more modest reappraisal will make it easier
for critics to recognize the claims of metaphysical thinking. One essential facet of
the reappraisal is this: the metaphysical moment in the categorical imperative is
to be supplemented by an anthropology, and in particular a distinctively moral an-
thropology. Only with such anthropological help can the standpoint of morality
find its way to substantial moral principles.
Kants error of excess concerns the program of the ethics of law and right
rather than its actual execution. For the above-mentioned empirical elements are
not lacking in Kants thought. By no means does Kant take leave of reality, as
Hegelians, following in the footsteps of the master, never tire of proclaiming.
In the theory of retribution, the legitimation of private property, the justification
of the state, and the common principle of freedom, we have four points of view
from which the philosophical views of Kant and Hegel in the area of politics and
the law are much closer to one another than is often thought to be the case. And
because Kant lived before Hegel, the description of the latter as a Kantian is
closer to the mark than is Marquards simplistic claim that Kant remains entirely
in the realm of the principled (Marquard 1987a, 112), while Hegel is ethically
concrete and fully open to reality. The notion that Kantian practical reason is
divorced from real-life conditions and contents itself with the impotence of a
mere ought is mythical (Chapter 4).
The categorical imperative of law in the singular constitutes the systematic
conclusion of the books first section. From the combination of the law-and-right-
specific anthropology with the metaphysically defined standpoint of morality
there emerges for the law an ultimate criterion of evaluation, the significance of
which transcends the juridical norms that happen to be in force (Chapter 5).

II. In an effort to ward off a perceived self-endangering of modernity, so-called

affirmative critics like to return to the ethics of Aristotle. Odo Marquards de-
fence of the commonplace and the everyday (1991, 116 ff.), for example, ac-
knowledges its Aristotelian roots proudly. In view of its many-layered texture,
however, Aristotles ethics cannot legitimately be appropriated exclusively by the
proponents of affirmative critique. In relation to Kant as well, Aristotles position
is not so simple as to force negative critics into an exclusively oppositional
stance, while permitting affirmative critics to call on it for support at all points.
Some of the material needed for a more nuanced assessment will be gathered in
the course of this study. For now, the viewpoint will simply be introduced.
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10 Categorical Principles of Law

In order to locate categorical principles of law within philosophical ethics, I

have distinguished between first and second moral philosophy. Kant himself does
not speak of first and second moral philosophy, and neither does he, in the way
suggested, distinguish within the latter a general from a special branch. In fact,
though Kant follows just the line of thinking that my terms are meant to identify,
his terminology points to a reversed order of priority. While first moral philoso-
phy is called a Grounding, it is second moral philosophy that is called a Meta-
physics of Morals, and within this normative moral philosophy, the first level, the
general ethics of law and right, is assigned the weight only of an Introduction to
the Doctrine of Right.
With this reversal of priorities, Kant shows that, despite any further differ-
ences there may be between them, he agrees with Aristotle on one important
point, the idea of a practical philosophy (Hffe 1971 and 1988b). With regard to
essentials, the recently popularized alternative Aristotle or Kant is inexact. Al-
though a fundamental ethics begins with a conception and a criterion of morality
as such, and a fundamental ethics of law and right begins with a general principle
of the same, the concern in each case is preliminary to the real task at hand, the
provision of substantial moral principles. The grounds that support the priority
of substantial principles over foundational reflection are not internal to philoso-
phy; rather, the thought is the Aristotelian one that the point of studying ethics is
action, not knowledge (NE I, 1095a).
Kant and Aristotle would agree that philosophers such as the advocates of
discourse ethics, who content themselves with the justification of an ultimate
principle of morality, are not to be commended for their sensible modesty, but
should rather be criticized for undervaluing the practical intention of moral phi-
losophy. By the same token, philosophers who view fundamental reflection as
superfluous undervalue moral philosophys philosophical intention. Sometimes,
those who engage in fundamental reflection overlook the fact that this activity has
no value in or for itself. Taken on their own, ultimate justifications of morality are
philosophical five-finger exercises that belong to scholastic philosophy and the
discourse of the academic seminar. But the situation is different with reference to
the thesis of a release from morality, which calls into question the legitimacy of
the moral perspective. Aristotle would agree with Kant that ethics must validate
itself in response to the threat of ethical skepticism. Fundamental reflection occu-
pies a much more prominent place in Kants ethical philosophy than in Aristotles
because ethical skepticism has, so to speak, come of age in the modern era and
because, in addition, standards of objective validity have become more stringent.
Both thinkers, however, engage in fundamental reflection, and neither does so
for its own sake. The second section of the present study reminds us that with a
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categorical imperative of law in the singular we have no more than an introduc-

tion to the ethics of law and right. By means of selected examples, this portion
of the work introduces us to the substance of the ethics of law and right, that is, to
the theory of categorical principles of law in the plural.
The history of ethical philosophy and of Kants influence on it since he wrote
has brought forth an abundance, and indeed an overabundance, of worries about
Kants attempt to derive substantial moral principles from the application of
the categorical imperative. The criticisms, which are directed toward virtually
every element of Kants treatment of his examples, can be grouped under three
headings.
According to a first, moral objection, Kants justification of particular moral
principles aspires to exceptionless validity in every case. If this is so, it is
claimed, one is not permitted to make a false promise under any circumstances
whatsoever, or, to take an even more troubling case, one must punish every mur-
derer with the death penalty. It is objected that demands of this sort betray a rig-
orism that, at the very least, is incompatible with present-day moral conscious-
ness. And neither is this criticism raised only from the empirical-pragmatic side.
Professed Kantians such as Friedrich Schiller (in On Grace and Dignity) are put
off by the rigidity of the moral law, and according to Nietzsche, one who ad-
heres to the categorical imperative merely manifests thereby a refined servility
(Gay Science I.5).
According to a second, moral philosophical objection, Kant fails in his attempt
to ratify substantial principles with the help of the categorical imperative. In
Hegels view (1970b, 2:460), Kants principle of universal lawfulness is tauto-
logical and not at all suited to distinguish morally good from morally reprehen-
sible maxims. Finally, according to a third, also moral philosophical objection,
Kant manages to ratify substantial principles only at the cost of contradicting his
own fundamental tenets, since his argumentation must appeal to empirical and
pragmatic considerations.
The examination of these three objections is an ongoing concern of the books
second section. The examples discussed there all stem from Kant, and I shall re-
serve an investigation of principles of law and right not considered by Kant for
a later study. Before delving into the examples, however, I will introduce a non-
Kantian ethical system into the picture, in order to heighten the plausibility of
Kantian ethics by way of contrast and critique.
Among the ethical theories that want to do without categorical principles, util-
itarianism has been especially influential. Because its criterion for moral choice,
the greatest good of the greatest number, requires reference to empirical condi-
tions in order to be effective, utilitarianism finds a warm reception among social
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12 Categorical Principles of Law

scientists and economists. The plausibility of the idea of categorical principles of

law should increase as a result of its confronting the leading alternative to it in the
modern age (Chapter 6).
The first example of a categorical principle of law, the prohibition against false
promises, is among the most prominent of the cases against which moral philoso-
phers test the applicability of moral principles and ask whether the results of their
application agree with our well-considered moral convictions. It is one of the four
examples used by Kant in the Grounding to illustrate the application of the cate-
gorical imperative, and it is the only one whose legislation belongs to the theory
of law and right rather than the theory of virtue (Chapter 7).
While the first example has above all a moral-theoretical significance, the next
example concerns an important matter of juridical policy. The retributive theory
of criminal punishment demonstrates in an exemplary fashion Kants faithfulness
to the Aristotelian idea of an emphatically practical and political philosophy, and
his commitment to putting philosophical reflection to more than just theoretical
ends. Admittedly, in the case of criminal punishment, Kants goal has long been
viewed as questionable.
If, under the influence of Kant and Hegel, the idea of retribution once held
sway in the theory of penal law, we have in the meantime experienced a veritable
paradigm shift. Nowadays, one speaks not of retribution but almost exclusively
of deterrence and general prevention and of improvement or resocialization, and
in the corresponding theories of penal law, one extols the virtues of empirical-
pragmatic modes of justification. Since Kant defends retributive punishment as a
categorical imperative, his views here are put to a difficult test. A thoroughgoing
reinterpretation of Kant will question certain premises of the currently dominant
readings of Kant, as well as some of Kants own inferences. It will in the end open
up a new way to mediate between the idea of retribution and the standpoint of
deterrence and improvement (Chapter 8).
Kants Doctrine of Right essentially consists of a theory of the bourgeois, or
republican, revolution, which legitimates the liberal rule of law. To the degree
to which the liberal state has been realized, and even expanded in the direction of
the social-welfare state, Kants philosophy of law and right, progressive in its
time, becomes a conservative justification of the existing juridical order. A third
example is intended to show that Kants approach is nevertheless still politically
relevant, not least because it harbors within it something that today is widely
missed, the power of a utopian vision. Although the justification of promising and
criminal punishment is controversial, we have in both cases to do with a practice
or a juridical institution whose origin reaches deep into the prehistory of human
civilization. In the last example to be discussed, we are concerned with a problem
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Th e Th e o r y o f M o d e r n i t y i n D i a l o g u e w i t h K a n t 13

that is relatively new to the history of humanity and is nowhere near being solved,
the problem of a peaceful international order. Here, one of the slogans of post-
modernism, that of radical plurality, is discussed in a global perspective: it is
construed as the legally guaranteed coexistence of different cultures and forms
of society (Chapter 9).

III. With his plea for an international federation over an international state, Kant
perhaps displays an impressive degree of political judgment. However, because
an international federation lacks the character of a state, one must ask oneself
whether the possibility defended by Kant on the international level, that of a
peaceful coexistence of people without the force of a state, which to say, without
hegemony or Herrschaft,1 is not equally available on the national level. Recently,
Robert Axelrod has investigated strategies for achieving hegemony-free coopera-
tion. The third section of this book is intended to prove the worth of the counter-
point of modernity, of categorical principles of law, in the context of present-day
debate. The section begins by confronting strategies that try to achieve coopera-
tion without hegemony or the use of state power (Chapter 10).
Having dealt with both the release from morality theses and the leading alter-
native to Kantian ethics, utilitarianism, I discuss, at the close of the book, two
positions that make reference to Kant but want to reject the provocative thesis of
the metaphysical character of a moral principle: John Rawlss theory of justice
and the discourse ethics of Jrgen Habermas and Karl-Otto Apel. I will show that
the divergences of these views from Kants do not always lie just where Rawls
and the discourse theorists think that they do. Beyond this, both positions have
difficulty meeting the demands they have placed on themselves. Rawls has diffi-
culties reaching his goal of developing a Kantian ethical theory (Chapter 11), and
discourse ethics has a hard time fulfilling its intention of moving beyond Kant
(Chapters 12 and 13). The reflections on Rawls, Apel, and Habermas put the jus-
tification of the Kantian idea of a categorical imperative of law to the test in yet
another way and bring into relief the difficulties facing fundamental ethics in the
present age.
In an earlier work, Political Justice: Foundations for a Critical Philosophy of
Law and the State (1995), I undertook a systematic inquiry into categorical prin-
ciples of law. In order to indicate the depth of this topic from the point of view of
the history of philosophy and to highlight the distinctive profile of the political
project of the modern age, I punctuated that book with digressions concerning the
classical texts of political philosophy. Nevertheless, one of the great philosophers

1. See the Translators Preface.

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14 Categorical Principles of Law

of law and the state, namely Kant, remained oddly in the background, although,
with respect to the theme of the inquiry, he deserves an especially prominent
billing. By way of supplementing the argument in Political Justice, the present
work enters into dialogue with Kant on the theories of law and modernity and
at the same time expands upon the concept of a categorical imperative of law
already broached in the earlier book. The project began as a collection and re-
working of a number of articles on Kant, but the overarching systematic purpose
quickly rendered new chapters necessary, and in the end each of the previously
published articles became a new text of its own.
This English translation of Categorical Principles of Law is also an expanded
edition, since its final chapter extends the critique of Habermas to include a dis-
cussion of Between Facts and Norms (published two years after the first edition
of Categorical Principles).
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P A R T O N E

COUNTERPOINT OR ANACHRONISM?
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2
A TRANSCENDENTAL CRITIQUE OF SOCIETY?

One who understands modernity as a polyphony must reckon with a fundamental

diversity of meanings, even of such a thematically leading idea as that of cri-
tique. Kants concept of critique is unusual, or at least unfamiliar to us. It is not
just that the subject of Kantian critique, reason, is at the same time its object, for
reflexivity of this sort is a necessary feature of any critique that extends to ulti-
mate fundamentals. What is truly remarkable is the fact that Kantian critique is
content neither with the role of prosecutor nor that of defendant, fulfilling instead
the offices of a judgespecifically, a civil rather than a criminal judge. It imposes
no sanctions, but adjudicates a legal title, the claim of metaphysics to deserve the
status of a science, and beyond this, it umpires the competing claims of different
metaphysical approaches.
Kant remains true to this conception of critique in the Critique of Practical Rea-
son. Without explicitly recurring to the image of a tribunal, he now investigates the

17
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18 Categorical Principles of Law

(legitimate) scope and limits of the faculty of desire (C2 V:12/9). Once again, the
critique is neither incriminating nor apologetic, but judicative.
Once could, polemically, interpret the modest role of negative critique even in
Kants social philosophy, his ethics of law and the state, as a manifestation of fear
on the part of a timid subject. But Kant was not timid. In the essay What Is En-
lightenment? (VIII:37 ff./5 ff.), he calls for freedom of opinion and criticizes state
sanctioned religious dogma; in On the Common Saying: This May Be True in
Theory, but It Does Not Apply in Practice (VIII:290 ff.), he rejects all forms of
despotism; in Perpetual Peace, he repudiates colonialism (VIII:35760/1025);
and in the Doctrine of Right, he is at pains to oppose serfdom (VI:282/100) and
aristocratic privilege (VI:329/138, 396 f./199 f.) In addition to all this, it is clear
that a judicative concept of critique underlies the whole of Kants later philosophy;
hence my reference to the first two Critiques. Today, however, philosophys claim
to occupy the office of an arbiter that sits in judgement on the lofty matters of sci-
ence, morality, and art has been disputed (Habermas 1990b, and below, Chapter
13). So we need more than a reference to Kants general concept of philosophy if
we are to defend a philosophy of law that is critical in this judicative sense.

2.1. Beyond Affirmative and Negative Critique

Long after 1968, critique was still being spelled according to the alphabet of the
Frankfurt School, the alphabet that begins with Adorno, or Advancing enlight-
enment, continues with Communication, societal Contradictions, and Emancipa-
tion, freedom from Herrschaft, and then runs through knowledge-guiding Inter-
ests, Injustice, and the context of Occlusion (Verblendungszusammenhang). In
the last few years, a second alphabet has emerged, one that does not explicitly
style itself as critical, but nevertheless corresponds quite well to the concept of
critique used by Hegel in the treatise On the Establishment of a Critical Journal
of Literature (1819/20). This new alphabet of positive, affirmative critique be-
gins with an Adieu to the realm of the principled,1 continues with Compensa-
tion, the Contingent, and the Commonplace, to which Marquard (1991, 109) de-
votes an apology, and ends with Disburdening and the nourishment of Sense.
Both critical alphabets have to do with the conditions of modernity. Critique of
the negative or emancipatory sort articulates the distinctively and characteristi-
cally modern interest in freedom and justice, as well as the canonical morality of

1. An allusion to Odo Marquards work, translated into English as Farewell to Matters of Prin-
ciple (1989).
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A Tr a n s c e n d e n t a l C r i t i q u e o f S o c i e t y ? 19

change (Baudrillard 1968, 139) that sees a crisis at every turn and therefore de-
mands ever more change. Affirmative critique, by contrast, reminds us of the fun-
damental conditions that are already given in contexts of human action, and of the
framework conditions that are better left alone in the course of effecting change,
and finally it reminds us of the importance of catching ones breath, without
which the new could not be enjoyed, in which case change would become an end
in itself and would lose its point. At the same time, it must be said that affirmative
critique has deeper roots, or what might be called a value added, with respect to
legitimation. To the canonical morality of change it opposes a canonical
morality of tradition, holding with Marquard that the modern world is . . .
marked more by the absence than the presence of crisis, and is thereby absolutely
worthy of affirmation (Marquard, 1987b, 16).
In the debate between these two critical alphabets, the struggle between left
and right Hegelians is played out anew. The one side follows Marxs eleventh
thesis on Feuerbach and asserts that the point is to change the world, while the
other side responds with the thought that it is better to leave the world in peace.
That negative critique is justified in many areas goes (almost) without saying. But
despite the manifest appropriateness of outrage at injustice and an unyielding
rejection of ideology (Adorno 1965, on Horkheimer), and despite the impor-
tance of fighting for the emancipation of humanity from conditions of slavery
(Horkheimer 1974, 58) and for the preservation of a more-than-merely-
instrumental form of reason, and despite the justice of so much of Adornos cri-
tique of culture and civilizationdespite all this, we cannot be fully persuaded by
a theory that, oriented as it is toward Marxs critique of the economy, is in virtue
of its very method, the uncovering of societal contradictions, intrinsically com-
mitted to a condemnation of the existing order. Such a theory is capable of grasp-
ing only the emancipation yet to be realized and cannot properly understand the
emancipation already achieved. It is no accident that the older Frankfurt School
has no systematic place for the positive results of modern social critique, that is,
for the democratic legal and constitutional state and its descendent, the democrtic
welfare state.
Still more problematic than this bias toward the negative would be a form of
social critique based upon Adornos notion of a critique that dismisses all rap-
prochement (Adorno 1965). Adorno coined this phrase to describe the conven-
tion-breaking music of Arnold Schnberg. As a model of interpretation and self-
interpretation the idea is not in fact all that new. Among artists, we find it applied
to social norms from the Romantics onward; and understood as a radical
distance from forms of thought handed down by tradition, it applies as well to the
great philosophers. Viewed from a historically distant perspective, however, the
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20 Categorical Principles of Law

absoluteness of the dismissal appears relativized in both cases, that of artists and
that of philosophers. Even singular artists of genius are tied to their time, and even
revolutionary thinkers that provoke paradigm shifts depend upon a particular his-
torical line of development. Rapprochement can be dismissed partially, but not en-
tirely. A purely dissociative critique, the launching of objections and contradic-
tions to everything given to one, is not possible.
Of some forms of negative critique, it is perhaps true, as Jean Starobinski re-
marked of Rousseau (1988, chap. 3), that critique invents a language of protest
that is always right. With far-reaching consequences, this sort of critique totalizes
the locus of criticism, splits it radically off from the world, and lends to critique
the dazzle of a rigorous extraterritoriality. Starobinski sees the child at work in
this way of thinking, and also the other face of a marked despondency.
As a counterweight to a merely incriminating and unmasking critique, as a
plea for diversity and individuality, for mature traditions, and for the naturally
given conditions of life, critique in its affirmative form is justified. On its own,
however, it is incapable of delivering a balanced judgment, and it gives its antag-
onist the same right to understand in turn its negative critique as a counterweight.
Philosophically more illuminating is a critical alphabet that does not leave the
issue of a balanced judgment up to the cunning of reason, but rather encourages
such a judgment by helping to ensure that each side receives its (relative) due in
the market of public discourse and that the whole is brought into balance. A cri-
tique that makes balanced judgment its theme and endorses both emancipation
and affirmation according to need is systematically more convincing than either
of its competitors. This sort of critique, which, being judicative in nature, is neu-
tral as to content, intention, and method, is not, as Habermas fears, prey to over-
ambition. In the role of a judge, philosophy pulls back from the simple alternative
emancipation or affirmation and presents itself as a third option.
Nonphilosophical discourse provides examples of the sort of critique envis-
aged. Scholarly text criticism is judicative, as are belles lettres and political com-
mentary. Critics in this sense may well lay down challenges and write polemi-
cally, but they cease to function as critics when they resort to a simple
condemnation of texts, performances, or political events. The critic is one who
knows how to evaluate these things with respect to philological or aesthetic or
political quality and significance.
A glance at a number of central tasks of our age shows that it is not only out-
side philosophy that judicative critique has a well-established right of abode
(Heimatrecht). Whether we look at scientific research and development, in partic-
ular biomedicine, or at the politics of commercial enterprises, at the world
economic order, or at the media, we see that critique faces new challenges, those
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A Tr a n s c e n d e n t a l C r i t i q u e o f S o c i e t y ? 21

of applied ethics. Neither of the familiar critical alphabets are sufficient for the
accomplishment of these tasks. Critical theory, long the dominant intellectual
voice in this discussion, has indeed opened itself up to normative ethics in a no-
table shift of attention, and it has thereby abandoned the intention and method of
a primarily negative social critique. The exemplary execution of ethical-political
discourses, that is, of applied ethics, remains, however, in its formative stages.
For their part, the proponents of affirmative critique have participated vigorously
in the debates concerning the ethics of scientific research. To the degree to which
they do not simply want to remove the burdens of ethics from the sphere of pure
researchone thinks here of Marquards (1984) brief against overmoralization
and in favor of a license for curiositythe positions they take on various con-
crete issues show them turning away from a merely affirmative critique. What has
hitherto been carried out by the Frankfurt School at the level of principles occurs
here in exemplary fashion at the level of applications: in both cases critique is
expanded by the addition of a judicative component.
If the proponents of discourse ethics began not only to talk about concrete eth-
ical discourses but actually to conduct them, and if the conservative philosophers
inspired by Joachim Ritter began to show an interest in the justification of ethical
norms (cf., recently, Spaemann 1989)if, in short, both sides continued the
expansion of their original forms of critique, then we would see two previously
antagonistic patterns of thinking and speaking approach one another. Such an
approaching toward one another would be conducted in the name of a form of
critique that stood beyond the dichotomy of negative versus affirmative.

2.2. A Venerable Pedigree

Those who are caught in the spell of the currently dominant alternatives might be
surprised by the result, but it is familiar to historians of philosophy: the construal
of philosophy as a judge is supported not only by arguments drawn from the the-
ory of modernity but also by considerations from the history of concepts (cf. von
Bormann 1976, Schalk and Weber 1976, Rttgers 1982, Tonelli 1978, and, for the
Middle Ages, Michaud-Quantin 1970).
The first consideration from the history of concepts that speaks for the his-
torical roots of the connection between the idea of critique and that of juridical
judgment might be called the aristocratic argument. The concept of juridi-
cal judgment has a venerable pedigree that reaches back long before the modern age.
Etymologically, critique and its cognates belong to a group of words whose
primary signification is juridical. Thus we find words meaning prosecution and
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22 Categorical Principles of Law

judgment, and also the judge (krites), who delivers a verdict, and the standard
(kriterion) he thereby uses. As Plato says in the Statesman (260c2), the critic is
committed to neither side of the dispute, but conducts himself as an observer or
spectator. Platos choice of metaphor for characterizing the critic as one deter-
mined by no commitment other than that to objectivity resembles the metaphor
used by modern philosophers such as David Hume (A Treatise of Human Nature
I.2); An Enquiry Concerning the Principles of Morals, sections 22 and following)
and Adam Smith (The Theory of Moral Sentiments, III:1 and 6, VI, conclusion) to
characterize moral objectivity. The critic as judge is related to the impartial or in-
different spectator. At the same time, there is this difference: whereas the impar-
tiality of the observer is purely theoretical and simply contemplative, that of the
judge who has to make decisions must be made practical.
Compared to negative critique, which is able to awaken a range of strong pas-
sions, judicative critique labors under a rhetorical disadvantage. While seeking an
objective judgment, however, it is still capable of pathos. The pathos of judicative
critique is that passion for dispassionate judgment that even Nietzsche, the great
critic of traditional morality, did not exclude from his own table of values: the
high, clear objectivitythat sees as deeply as it does generouslyof the just eye,
the judging eye is, according to the Genealogy of Morals, a piece of perfection
and highest mastery on earth (II, 11).
In order to render a just decision, a judge needs more than the sheer good will
to objectivity. For this reason, the adjective kritike must be supplemented by the
noun techne (or sometimes dunamis). In addition to a readiness to arbitrate in
an impartial manner, the judge needs to be well versed in the details of the field
in question. Those able to write texts with literary merit and lawyerly incisiveness
deserve a public; but critique does not consist in the ability to make brilliant but
one-sided arguments. Only those who render (relatively) objective judgments as a
result of their expert knowledge and their capacity for wise discernment count as
genuine critics.
Objective judgment does not count as philosophical per se. But the extra con-
dition needed to make it so is found already in Socrates, Plato, and Aristotle. So, in
addition to a venerable pedigree, philosophy as judicative critique is favored with
advocates of paramount significance. Consequently, we must correct the view of
Jean-Luc Nancy (1983, 36) that philosophy becomes juridical with Kant. The
truth is that philosophy has exercised the role of a judge since ancient times.
In Platos Theatetus (150b3) Socrates compares his work to that of a mid-
wife and claims that his distinctive achievement is that of distinguishing the true
from the false. Whereas the ordinary judge orients himself to existing law, the
philosopher is committed to a criterion that transcends sheer positivity, the aspi-
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A Tr a n s c e n d e n t a l C r i t i q u e o f S o c i e t y ? 23

ration to truth immanent in all assertion as such. The often quoted idea that phi-
losophy is born in wonder must, therefore, be supplemented and corrected. Mere
wonder has not yet emerged from a certain navet that is abandoned by judica-
tive critique. As doubt whether the allegedly true really is true insinuates itself
into knowledge, humanity loses its innocence in the realm of the theoretical.
Judicative critique, therefore, is one of the conditions of the origin of philosophy
as such.
Since theory loses its innocence long before the onset of modernity, it cannot
be said that critique is a peculiarly modern watchword. We do not need to read
Cartesian doubt into the concerns of ancient philosophers to see that critique,
which of its nature reacts to doubt, constitutes an indispensable element of the
conditio humana theoretica. Critique is called upon because of the copresence of
competing claims, and it is necessary because one hopes to decide the conflict,
not according to the power of those making the claims, but according to the force
of the better logos. The essential criterion of the decision hoped for lies in that ab-
solute impartiality that is called truth or objective validity, with its difficult
task of translating the demand for an unbiased decision into operational criteria.
The aspiration to a validity that transcends the merely positive, which is called
truth in the theoretical realm, is called to dikaion, the just or the right, in the
realm of social practice. It is Aristotle who provides us with the formula that ex-
presses for practical judicative critique what Platos Theatetus formula expresses
for theoretical judicative critique, judgment that distinguishes what is just from
what is unjust (NE V.6, 1134a31 ff; cf. also VI.11, 1143a20, and Politics I.2,
1253a38 ff.).

2.3. Universalization, Radicalization, and Autonomy

As long as we find judicative critique only in the ancient world, and perhaps still in
the Middle Ages, it belongs, however venerable and prominent, to that portion of
history with which our epoch contrasts itself. It appears that the modern age is dis-
tinctively lacking in just those qualities that are indispensable for judicious arbitra-
tion. In place of neutrality and serenity, modernity is marked by de-centering, by the
fragmentation of views and a repeated, almost impatient, change of perspectives.
Let us cast a last glance at the history of concepts in order to test this self-
understanding, and let us take as our guiding thread a single passage that can be ex-
amined in the light of certain historical considerations. In a famous footnote to the
preface of the Critique of Pure Reason, Kant diagnoses the Enlightenment: Our
age is the genuine age of [critique,] to which everything must submit. Religion
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24 Categorical Principles of Law

through its holiness and legislation through its majesty commonly seek to exempt
themselves from it. But in this way they excite a just suspicion against themselves,
and cannot lay claim to that unfeigned respect that reason grants only to that which
has been able to withstand its free and public examination (C1 A xi).
Kant implies here, indirectly, that there had already been critique before the
Enlightenment. It is not until it engages in a thematic universalizing that the mod-
ern epoch becomes truly the age of critique. In the Age of Enlightenment, cri-
tique is directed everywhere and allows of no exceptions. What Kant seems to
take for granted in this lapidary sentence took European thought many genera-
tions to work out. If one turns to the beginning, to the criticism of the humanists
who set the waves of modernity in motion in the late Middle Ages and early mod-
ern period, one finds judicative critique once again. The species of judicative cri-
tique that is found among the humanists, philological text criticism and aesthetic
criticism, is highly significant for the theory of modernity.
The first point, as Kant emphasizes, is that before we get to religion and a legal
order backed by the authorization to enforce its decrees, other objects must be sub-
jected to critique. Neither do the humanists follow the lead of Plato and
Aristotle and devote themselves to the critique of knowledge and action. Rather,
they take over that systematic secondary critique of texts, critique in sense of the
word that is in play when the Alexandrian philologians call themselves kritikoi.
Connected to this is the second significance of the sort of criticism practiced
by the early modern humanists. Skeptics about modernity emphasize, with jus-
tice, the natural and historical elements that live on in our era without having been
posited by our era. This reminder is correct but must be supplemented, for among
the conditions under which the modern era emerged is found a historical remem-
bering, the turning of the humanists to the classics of Greek and Roman literature.
Since the modern age, at least in the beginning, was not marked only by a cult of
the novel but also by a creative remembering of the old, it is hasty to describe an
architectural or literary style as postmodern just because it quotes classical
elements. Naturally, the manner of quotation has changed; quotation is itself a
quotation and is therefore done in secret or in a spirit of ironic, or even cynical,
estrangement.
We must not in any case picture modernity, including the Enlightenment itself,
as homogeneous and unilinear. It is not only Descartess much cited remark that
men are the masters and possessors of nature (Discourse on Method, pt. 6) that
belongs to the Enlightenment, but also Benthams utilitarian critique of Descartes
(An Introduction to the Principles of Morals and Legislation, 17.4), according to
which animals, in virtue of their capacity to suffer and experience pain, deserve
more than merely anthropocentric consideration. And let us not forget that
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Montesquieus Spirit of the Laws, that work of comparative political sociology

that raises historical and cultural diversity to the status of a principle, belongs to
the Enlightenment. The opposition between negative and affirmative critique is
not equivalent to that between modernity or the Enlightenment and its critique.
Modernity lives rather from a double canonical morality. The duty to innovate
is conjoined with an esteem for tradition in a complex relationship of point and
counterpoint.
Kant would perhaps have recognized text and aesthetic criticism, along with
another early modern form of critique, the organization, evaluation, and examina-
tion of arguments, critique as the logic of argumentation (cf. Ramus 1970 [1548],
8 ff.), as necessary preliminaries, but he does not include them in the genuine
business of critique. Interested neither in a critique of books nor a critique of
systems (C1 A xii), Kant insists on a primary critique of the things them-
selves. Kantian critique takes place in the context of a claim made by the
object of critique itself, a claim that, immanent to the matter itself though it is, can
certainly still be called a claim to objectivity. Kant speaks of an undisguised
respect and means to refer thereby to that absolute claim that we call justice in
the case of the state and sanctity in the case of religion but that we call truth in the
case of statements.
That one can not only make these claims to objectivity but can also make good
on themthis possibility is called into question by a proud line of skeptics. On
this issue, the critique of the Enlightenment extends far beyond that of the Re-
naissance humanists. Not only are different objects subjected to critique, and not
only is judicative critique (initially) pushed aside by negative critique, but, in ad-
dition, a question mark is set beside the very possibility of justifiable claims to
objective validity. Here the idea of an objective truth is placed in doubt (by David
Hume, and by Simone Foucher, whose Critique of the Investigation of Truth,
1675, is directed against Malebranches Search After Truth, 1675); there the idea
of an objective justice (legal positivism), or that of a legitimate religion
(Feuerbach), or that of legitimate Herrschaft (Marx). In this way, critique is, in
the literal sense of the word, radicalized, and in this radicalization lies, next to
universalization, the second characteristic of Enlightenment critique.
On the one hand, radical skepticism expands the usual negative critique by
raising it to a second level, and on the other hand, radical critique of the negative
sort provokes a renewed and now equally radical defense of ideas of objectivity.
Kant acknowledges as a new problem the fact that rationalist positions thereby
enter into competition with empiricist and skeptical ones. He sees that fundamen-
tal philosophy, having become a battleground, can no longer establish itself in a
direct manner, by, for example, employing the method of radical doubt to lay
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26 Categorical Principles of Law

down a secure foundation. Kants suggested solution to the new problem, tran-
scendental critique, is well known. But in order to decide under what conditions a
philosophy of law counts as critical in this sense, we need to keep four structural
characteristics in mind.

1. The transcendental tribunal deals with two disputed issues that are in the first
instance fundamentally different. The tribunal passes judgment, on the one
hand, on the objectivity of scientific knowledge and, on the other, on the ob-
jectivity of philosophy. Kant claims that these two issues necessarily belong
together. No objectively valid philosophy is possible without a connection to
objective knowledge, and it is not possible to ground objective knowledge in
the absence of an objectively valid philosophy.
2. Kant answers this twofold question of objectivity with an experience-
independent knowledge that contains the necessary conditions of possible ex-
perience. The corresponding argument has two parts. While the metaphysical
elucidation (i.e., the metaphysical deduction) shows a certain sort of knowl-
edge to be independent of experience, the transcendental elucidation (i.e., the
transcendental deduction) shows that it is impossible to conceive of an objec-
tive experience without presupposing just this sort of knowledge.
3. The insight achieved through the transcendental juridical procedure does not
increase the knowledge that we seek in everyday life or in the research of the
individual sciences. Through reflection on the objects of scientific and every-
day knowledge, one gains second-order knowledge that, Kant claims, enables
us both to legitimate and to limit our ordinary knowledge. On the first level,
transcendental adjudication ends with a comparison.
4. The second issue in dispute also ends with a comparison. Insofar as the skep-
tical and antiskeptical positions make claims to exclusivity, they are put in
their place, but as soon as they content themselves with a nonexclusive self-
understanding, their claims are acknowledged. Theoretical metaphysics is
possible as a theory of experiential knowledge, but as soon as it attempts to
settle its essential concern and tries to surpass the boundary of possible ex-
perience, it loses its legitimacy (C1 B xvii ff.).

There are good grounds for supposing that with the transcendental step back
philosophy reaches the highest possible level of critique, one that cannot in prin-
ciple be surpassed. For at this level the competition among different fundamental
philosophical positions becomes itself a philosophical problem. This does not,
however, mean that a post-Kantian philosophical critique is not possible. As we
know, such critiques abound and are often brilliant, passionate, and remarkably
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creative. One can, however, speak of a critique that remains at the level of reflec-
tion reached by Kant only where the presuppositions that are made by a critique
of the second order are themselves subjected to critique.
It is doubtful that post-Kantian critique has always set itself this task of criti-
cizing critique. Critique has indeed been expanded to include areas, such as po-
litical economy or language, that are not treated by Kant; post-Kantian critique
has without a doubt worked on the further universalization of critique. With re-
spect to its radicalization, however, a not inconsiderable number of thinkers tend
to remain in the grip of a merely negative radical critique and to reject all too
hastily Reason, Morality, Justice, or Rationality and, in short, objective
validity as a whole. As long as critique refrains from engaging in a transcendental
juridical proceeding, there is a danger that it will overestimate its scope. In the
case of negative critique, its judgment will as a rule be partial and too severe, as
with that of a prosecutor (in particular, a public prosecutor) who lacks the coun-
terweight of a lawyer for the defense, and in the case of merely affirmative cri-
tique, the judgment will be too mild, as with a defendant who faces no prosecut-
ing attorney.
I will leave the detailed examination and possible modification of this hypoth-
esis for another study. As far as the categorical principles of law are concerned,
the view will be applied only to a small, albeit often neglected, area of discussion,
the sphere of law and right. Taking up the four structural characteristics in turn, we
see that if there is to be a transcendental critique in the case of law and right, then,
first, radical skepticism has to be taken seriously, and the objective validity of the
law has to be regarded as putative only and shown to be real. Once again, the ob-
jectivity of two different things, the law and philosophy, must be investigated. In
the case of the law, objectivity no longer goes by the name of truth but rather
that of justice, and its philosophical theory consists of an ethics of law and right.
The dual question of objectivity is to be answered, second, with judgments
that are independent of experience. In the realm of the practical, Kant calls them
categorical imperatives; in the realm of law, it would be categorical principles of
law that make objectivity, that is, justice, possible. Once again, in the case of law
and right, philosophy rests content with a transcendental modesty. It cannot ex-
pand our knowledge of the laws that happen to be deemed valid here and now.
Nevertheless, philosophy must, third, seek to provide both a legitimation and a
limitation of positive validity. Finally, the second controversy, that concerning an
objective ethics of law and right, ends with a comparison between ethically skep-
tical and antiskeptical positions.
One expects of the fundamental concept of a transcendental critique of law,
that of categorical principles of law, that it will concern only a small part of the
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28 Categorical Principles of Law

social world, namely the juridical world. But the authorizations of force that be-
long to any and every juridical world are in ordinary critiques of law rejected for
certain areas of life and are rejected altogether by radical critique. Against the ex-
istence of socially accepted authorizations of force, radical critique counters with
the idea of freedom from Herrschaft. In the face of this, the categorical impera-
tive of law cannot claim transcendental status until it is able to show that it is ever
permissible for human beings to use force against one another.
If this demonstration succeeds, the world of law and right gains a new impor-
tance. It no longer constitutes a simple segment of the social world, but rather be-
comes the fundamental shape and universal form of human coexistence. Corre-
spondingly expanded is the significance of the ethics of law and right construed
as transcendental critique of the same. The latter becomes a transcendental cri-
tique of society and constitutes as such a fundamental task of social philosophy.
But the legitimation of force within society goes together with its limitation.
The only force that is legitimate, that is just, is that which is binding according to
the categorical imperative(s) of law, in the singular and in the plural

According to the quoted remark of Kants, Enlightenment critique distinguished

itself, not only by its universality and radicality, but also by its commitment to a
free and public examination (C1 A xi). Since Socrates had already laid claim to
autonomy of thought as to something self-evident and had indeed paid for this
with his life, it must be said that the valuation of autonomy that is often taken to
be typically modern is not in fact quite so new. In place of the modern overesti-
mation of itself, we should rather speak of a reemancipation or regaining of cri-
tique, along with a radicalizing of its autonomy.
The critical freedom demanded by the Renaissance humanists required in the
first place the breaking of a monopoly on judgment and decision and the coexis-
tence of humanistic and ecclesial exegesis. But the freedom demanded by the hu-
manists had a sting in the tail. It is already clear in their work that the ultimate
critical authority is called reason and that this authority, as jealous as the God of
monotheism, tolerates no alien authority beside it. According to Angelo Poliziano
(1971 [1492], 460), the competence required for creditable exegetical judgment is
had by profane literary scholars, philologists, and no one else. The long road to
the self-legitimation and self-empowerment of scholars, a road traveled later by
critics of literature and art, begins here.
Critique that is autonomous in the sense that it acknowledges no authority
alien to disciplinary competence has reached only a negative freedom, only the
first stage of intellectual autonomy. For this sort of critique also has a corrective,
the competence of other knowledgeable scholars. Because of this, critique takes
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A Tr a n s c e n d e n t a l C r i t i q u e o f S o c i e t y ? 29

place, as Kant says, not only freely but also openly, through confrontation with
colleagues in the discipline and, beyond this, before the eyes of the general pub-
lic. In this context, however, one must painfully acknowledge that the critics find
themselves in dispute with one another; anarchy, the lawless use of reason,
reigns (emphasis deleted; cf. OTH VIII:145/247). Disciplinary competence ap-
pears as a mere fiction in a way that is fatal to critique. Not until the fiction is su-
perseded can there be positive critical freedom and inner, second-stage autonomy
as well as the outer, first-stage variety.
A first group of disputes can be dealt with by means of a trivial resolution:
one shows that one party has made simple errors or hasty judgments. A second
group of controversies can be met with an enlightened resolution: one un-
masks certain statements or statement forms by accounting for them in a way
that compromises their credibility. A third kind of controversy, concerning the
question of the nature of disciplinary competence, can often be resolved through
careful differentiation. By now, a colorful bouquet of disciplinary competencies
has long been in existence, a pluralism of nonexclusive forms of critique that
sometimes border upon one another and then supplement one another unproblem-
atically, but sometimes pursue different knowledge interests and then remain in
agonistic rivalry. Here as well, a resolution through comparison can often dis-
solve the rivalry. Even these deliberately maintained differences can show them-
selves to be necessary parts of a truly universal critique.
The dispute over correct disciplinary competence assumes, however, that there
is a discipline, either an existing one or one to be created, capable of delivering
objective judgments. The varieties of skepticism mentioned above are directed
against this presupposition and thus call the autonomy of critique into question in
the sharpest way possible. It is a great merit of Kants to have drawn attention to
this fourth sort of controversy, to have pointed out that human thought is commit-
ted to two different sorts of lawfulness, both of which can lay claim to legitimacy
but are incompatible with one another. As a consequence, theoretical reason re-
veals itself to be self-contradictory. In order not to capitulate before this fourth,
speculative kind of controversy and thus in the end be forced to abandon the
autonomy of critique, Kant sketches a new speculative court of mediation. After
the transcendental analytic has laid bare the conditions of objective knowledge, the
transcendental dialectic seeks to resolve the fourth of the autonomy-threatening
scientific, or scholarly, controversies.
We know that the program of a transcendental dialectic is very ambitious. The
idea of taking it up for the philosophy of law and right in the face of post-Kantian
skepticism regarding transcendental thinking makes sense only where we find
that fourth stage of controversy, that is, the two sorts of lawfulness that ground a
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30 Categorical Principles of Law

juridical antimony. Now, the law aims not at truth, but at justice. If the attempt to
achieve justice were to give rise to two competing forms of lawfulness and there-
fore to an antinomy, then the program of a transcendental dialectic would be more
than just possible. To fulfill the office of a speculative tribunal would not be an
overly ambitious goal of philosophy, but its genuine task.
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3
IN SEARCH OF THE LOST PARADIGM

In many areas the categorical imperative is the subject of lively controversy, but in
the case of the law the situation is otherwise. The categorical imperative obliges
the law to answer to morality and defines this obligation, in the ambitious Kantian
sense, as one that is unconditionally binding. Our moral consciousness can, how-
ever, follow Kant without difficulty. Even if it broke through only in the modern
era, the idea that the juridical order is subject to unconditionally binding moral
principles, human rights, has since then been accepted as virtually self-evident.
Nevertheless, a number of important legal and social theorists no longer agree
with this consensus on the nature and status of human rights. Despite a diversity
of aims, the arguments of these theorists, partly general in scope, partly directed
at Kant in particular, are similar in form. In place of an obligation to morality,
these theorists assert a release from morality (Entmoralisierung); they claim that
the law should be released, partly or entirely, from the duty to answer to morality.

31
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32 Categorical Principles of Law

The release from duties that we know in the academic world, that associated with
the acquisition of the title Professor Emeritus, releases the so-titled from all du-
ties, but allows him to retain most of his rights and privileges. The release from
duty that is intended by the notion of Entmoralisierung is more radical. Ac-
cording to the social-theoretical interpretation, the moral perspective is no longer
valid, and according to the legal-theoretical version of the thesis, it never was
valid. It follows from these views a fortiori that a supposed categorical imperative
of law has nothing to do with the actual institution of the law; the notion that the
law is obliged to answer to morality is treated as a kind of irrelevant moralizing,
alien to the nature of the subject matter.
Since the idea of a categorical imperative of law agrees with our moral con-
sciousness, one must speak of a false consciousness if the arguments in favor of
the release-from-morality thesis are found to be convincing, and one must conse-
quently suspect that the singular categorical imperative of law, and its plural,
human rights, are merely ideological constructs. If, however, there were good
grounds for adopting the moral perspective, suspicion would fall on the other
side, and it would be the proponents of a concept of law that has been freed from
morality who suffered from false consciousness.
Kant affirms that the idea of an objective validity for the law expresses itself in
morality, and the release-from-morality theses do not take issue with the idea of
objective validity as such. What they dispute is the idea that objective validity
must be understood in moral terms. It appears that the release-from-morality the-
ses correspond to the skepticism whose justification is examined in a transcen-
dental critique, in particular, since we are dealing with the concept of morality, in
a transcendental-ethical critique. The possible results of such a critique are cate-
gorical morality of law and right or release from the morality of law and
right.
Critics of transcendentally grounded ethics such as Odo Marquard (1987a,
112) hold that followers of Kant today take leave of reality and wander about
entirely in the realm of the principled, in transcendental cloud cuckoo land.
Certainly, one who today is able to reply to questions such as Is in vitro fertiliza-
tion legitimate? or Is scientific experimentation with animals subject to moral
criteria? or Which are the principles that allow for a just economic world order?
with nothing other than a transcendental legitimation is indeed unable to help with
currently urgent ethical problems; an obsession with fundamental principles has
rendered such a one incapable of ethical concreteness.
Now, categorical imperatives of law do indeed allow for detailed discussion of
concrete problems, albeit only with the aid of specialized knowledge and the power
of judgment. For example, categorical imperatives of law determine rigorous
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I n S e a r c h o f t h e L o s t Pa r a d i g m 33

criteria of justice concerning our interaction with nature (cf. Hffe 1989a, 71 ff.).
Moreover, human reality is composed of more than the so-called concrete. In the
face of radical release-from-morality theses, the sort of moral philosophy to
which one is led is precisely the sort that Marquard (1987a) fears has forgotten
how to walk due to infatuation with transcendental force. There are, to stay
with the image, different means of locomotion. Just as, according to intention and
topography, sometimes a leisurely stroll is called for, other times a busy walk, and
other times a sure-footed and sure-handed clambering, so in the case of ethics
Marquards theory of the habitual is sometimes appropriate. As soon, however, as
one moves on to problems that are concrete but novel, such a theory offers little
help. In the ethics of scientific research, for example, its vote against overmoral-
izing and in favor of a license for curiosity lacks specificity. And when it comes to
doubts about the power of morality to found objectivity, what is required is just
the sort of philosophical reflection on fundamental issues to which Marquard
would like to bid farewell.

3.1. Release from Morality: An Overly Hasty Diagnosis

In its modern form, the release-from-morality thesis appears as a theory of

modernity. Niklas Luhmann (most recently, 1988) modifies Carl Schmitts neu-
tralization thesis and claims that in the course of the modern era society under-
goes changes that result in the diminution, or even elimination, of the role of
morality in the achievement of social integration. Since social integration is to a
great extent achieved by means of the law, Luhmanns diagnosis, which is the
work of one of our keenest social theorists, if accurate, entails that the law must
get by without morality, and therefore also without its ambitious notion of the cat-
egorical imperative. The alleged counterpoint to modernity, whether or not it ever
was valid, becomes anachronistic.
Cultural critics like to reproach their times for an alleged moral decline. Luh-
mann agrees with the descriptive content of such a reproach. For him, modernity
is the epoch of a progressive release from morality, and the present day bears wit-
ness to the fact that a full release has long been completed. But Luhmann is deaf
to the moral undertone that accompanies the more familiar forms of such criti-
cism. Cynical as this may seem on first glance, Luhmann sees the moral decline
and holds it to be a good thing. Sociologists have in fact, openly or not, often been
accused of cynicism, but Luhmanns position is actually more radical than that of
a cynic. A cynic holds that a revivification of morality is not necessary; Luhmann
contends that it is no longer possible. Even if it suits him to occupy ground close
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34 Categorical Principles of Law

to that of the cynic, his real intention is to promote that negative enlightenment
that consists in desacralizing the heretofore sacred.
But despite Luhmanns diagnosis to the contrary, morality, instead of dying off,
continues to enjoy a robust health. For all his brilliance Luhmann himself cannot
discover any good reason for the renewed vigor of the moral perspective in, for
example, the ethics of science and research, medical ethics, the ethics of nature, of
economics, and in many other forms. In all of this Luhmann sees merely a trend,
an ethics wave that he can only explain unscientifically: With virtually astro-
logical regularity, he declared upon receipt of the Hegel Prize, at least since the
spread of printing, the eighties of each century has witnessed the appearance of an
ethics wave of this sort (Luhmann 1988, 1). The thing itself, the moral perspec-
tive, has, in his view, long since lost its power to provide objectivity. Alluding to
Miltons epic, Luhmanns Hegel Prize lecture is entitled Paradigm Lost.
Luhmann offers a number of reasons for the paradigm loss. I shall discuss later
(at 3.3 below) his first reason, the ambivalence of moralitythe fact that moral-
ity must allow that reprehensible conduct can have good consequences and,
vice versa, that the road to hell is paved with good intentions, that the best of
intentions can become responsible for much nastiness. His second reason, the
polemical charge endemic to morality, is not convincing. Morality is indeed
polemically charged, but this property is not specific to it. The normativity of sci-
ence is also responsible for conflict, without our being, for this reason alone,
inclined to give up the idea of truth. The conflict-generating character of truth and
morality is in any case only a secondary phenomenon: in fact, the primary task of
truth in science and morality in law is conflict resolution. Moral principles, such
as the right to freedom, permit different individuals and groups to pursue highly
divergent goals and interests and, despite this, to live with one another in peace.
Neither can one disqualify the bona fides of morality by appeal to the dangers of
its being misused. Luhmanns complaint that politicians of the governing and
opposition parties use the language of morality merely in order to attack one
another (1988, 12) is fully justified, but speaks not so much against morality as
against a political culture that ducks debate on factual issues. A third argument
too lacks persuasiveness, since what appears to the sociologist Luhmann to be a
double standardthat for ourselves we are ready to take risks but are averse to
the risk-taking of othershas in fact good grounds for its existence. From the
point of view of the morality of law and right, one is perfectly permitted to gam-
ble with ones own life and fortune, but one who gambles with the life and fortune
of another moves very close to acts of thievery or homicide.
The most plausible of the reasons offered by Luhmann for the paradigm shift
is his fourth, one that relies upon the idea that modern societies are governed
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I n S e a r c h o f t h e L o s t Pa r a d i g m 35

by a novel principle of differentiation. According to this argument, the stratified

differentiation that once characterized societythat is, the division into hierar-
chically ordered stratahas been superseded by differentiation according to
function, so that we now find relatively self-sufficient partial systems such as
business, science, and law simply existing alongside one another. Luhmann sup-
plements this claim with two others. On the one hand he maintains that each of
these functional systems is subject to a normativity that is particular to it and
function-specific, and on the other hand the normativity of morality is (allegedly)
function-unspecific. From these three premises, Luhmann draws his conclusion
that, despite all ethics waves to the contrary, morality has been put out of com-
mission. According to Luhmann, none of the functional systems, and therefore
also no legal order, can be integrated into the social system through morality.
Being incapable of integrating either the parts or the whole of society, morality
has lost its function altogether.
It is true that each functional system is subject to its own binary encoding,
but the absence of a function for morality does not follow from this. By way of
exploiting the contemporary ethics wave, Luhmann urges that the tradition of tex-
tual commentary give way to a cooperation between sociological theory and eth-
ical reflection (1988, 4). Philosophical ethics is happy to accept this invitation
and to detach itself from Kants writings, all the more so as these do not in any
case take up a position with respect to Luhmanns theory-of-modernity variant of
the release-from-morality thesis.
At least three arguments independent of any tradition of textual commentary
speak against Luhmanns view. To begin with, there are objections to the social-
historical diagnosis. The thesis in question has become a rhetorical common-
place, but still we must ask: is functional differentiation really so fundamentally
new? Philosophy and science have long been relatively independent of politics. If
one accepts public financing as a criterion of dependence, then philosophy and
science have at various times, for example, that of Plato and Aristotle, been more
independent of politics than they are today. Business too has enjoyed a relative in-
dependence for some time now. It did not have to wait for modern capitalism to
acquire this independence. And neither, finally, are relatively independent courts
an invention of the modern age.
In all three casesof business, science, and the judiciaryfunctional systems
followed their own normative ideas long before stratified social divisions unrav-
eled. Luhmann thinks in simple alternatives: stratified or functional differentia-
tion. In fact we have here two principles of differentiation that are independent of
one another. To be sure, the type of normativity that holds for the different func-
tional systems has changed significantly in the course of time. Money, for example,
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36 Categorical Principles of Law

meant something different in the Athenian market than it does today on Wall
Street. But the fundamental structure of relative independence is found already in
hierarchically ordered societies. Economic transactions follow one criterion of ra-
tionality, politics another, science a third, and all three are independent of one an-
other. It follows that with regard to functional differentiation, the alleged moder-
nity of the modern age is in large measure an ideology that manifests, if not a
false consciousness, at least a limited one.
Modern social theory fears, second, that philosophical ethics, overrun by the
novelty and complexity of modern developments, has lost touch with todays so-
ciety. Philosophical theories of morality are, according to this diagnosis, far from
real, practical reality and severely lacking in complexity. In response, it must be
said that social theory can also paint a picture of society that is distant from real-
ity. As we saw above, the oversimplification begins with the social-historical di-
agnosis and continues with the concept of morality. A reservation that can be set
aside in the current context is this: in defining morality as a special sort of
communication that carries with it reference to respect or disdain (1988, 4),
Luhmann underestimates the crucial moral phenomenon of self-respect. More
troubling is Luhmanns connection of morality to man as a whole person, a
connection that restricts morality to natural subjects exclusively. Philosophy, for
its part, begins with a more formal concept of morality and then recognizes two
areas of application, persons, on the one hand, and institutions and struc-
tures, on the other.
Equally problematic is, once again, Luhmanns predilection for simple alterna-
tives. For him, a form of normativity must be either function-specific or function-
unspecific. Philosophy, by contrast, has no difficulty in complicating the situation
with regard to normativity and allowing, in addition to a function-specific codifi-
cation, a function-unspecific one, namely morality. Nevertheless, philosophy can
also put the unspecific codification of morality to use in a function-specific way.
In this way, philosophy introduces a more complex ethical option, and from this
perspective, Luhmanns release-from-morality thesis is shown to be an overly
hasty diagnosis.
Some scientists do get tempted to cook the books in order to gain or hasten a
reputation for their work, though the presence of critical colleagues ensures that
few of them actually succumb. Still, one does find cases of invented or altered or,
as in the case of the alleged achievement of cold fusion, prematurely interpreted
data. Analogous attempts to correct fortune are found in politics, on the part of
the opposition as well as that of the government. Because the pressure to succeed
is greater, or at least more short-sighted, in this area, and because its memory for
moral failings is weaker than in the field of science, and because, in addition, the
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I n S e a r c h o f t h e L o s t Pa r a d i g m 37

checking mechanisms here are in the nature of the case not so public and less
internationalin short, as a result of structural factors, and not because of the no-
torious and convenient idea that politics and politicians are less moral than other
professions and professionals, attempts to correct fortune, also called simply
corruption, are encountered more often in politics than in science.
Both of these examples concern the integrity of the person and therefore are
moral matters in Luhmanns sense. But they do not concern something that even
Luhmann could simply shunt into the domain of the personal and private. Al-
though the person as a whole is in question, the integrity that is at issue plays only
a function-specific role in the relevant functional subsystem. In the case of scien-
tists, what needs to be asked is nothing more, nothing less, than this: Regarding
the research in question, are they simply trying to cheat, perhaps deceiving them-
selves in the bargain? Or, alternatively, are they proceeding somewhat irresponsi-
bly? In the case of politicians, what is at issue is primarily, even if not exclusively,
whether they are corrupt as politicians. In both contexts, it is immaterial whether
the politician or scientist lacks honesty as a friend or spouse or private business-
man. (Nevertheless, it is legitimate in an indirect way to inquire into the honesty
of a politician in his private business affairs, since a politician who is dishonest in
business might be for that reason more open to blackmail than otherwise. Also,
since honesty in politics is often difficult to judge, one might legitimately fear that
dishonesty in business would spill over into politics in ways that would be diffi-
cult to observe directly.)
According to this more complex ethical option we have to do in these cases
with a function-unspecific normativity that is called on only in function-specific
contexts. In a function-specific morality the expectations of social systems re-
main, as Luhmann correctly notes, selective; they are directed exclusively at the
roles and functions in question and set aside all other interests and concerns. But
from this, one cannot conclude that the object of morality, the individual as a per-
son, is lost. In a function-specific morality one considers the individual as a
person, but in a particular respect.
For some time now, the old European subject has been declared dead. The
French variant of this thesis, influenced by Nietzsche and structuralism, goes
back at least to Foucault. One discovers, Foucault writes in an interview with
Paulo Caruso, that what makes man possible is an ensemble of structures that he
can think and describe, but of which he is not the subject or sovereign conscious-
ness (Foucault 1978, 16). In all essentials, this is no different from Luhmanns
division of man into a bundle of roles and functions no longer capable of being
unified into a person. The release from morality in the social realm corresponds to
a depersonalization on the part of the subject.
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38 Categorical Principles of Law

The idea of morality applied in a function-specific way allows us to counter

these and other modern or postmodern obituaries of the subject. On this view, the
moral subject is still alive and well, at least in certain function-specific respects,
and reflection upon the necessary conditions for the vitality of morality construed
in a function-specific way is likely to lead to the insight that wherever function-
unspecific morality is threatened, there too function-specific morality is fatally
impaired.
Function-specific morality is not, as Luhmann fears, a relic of a society long
since surpassed, that of premodern Europe. What it signifies is rather a second,
logically higher order of normativity, something that is particularly important for
a society that is modern in Luhmanns sense, that is, functionally differentiated.
This second dimension of normativity is in fact a necessary condition of the func-
tioning of the first dimension. Competition among scientists only contributes to
genuine knowledge when scientists by and large (perfection is not required) nei-
ther falsify nor rashly interpret their data. Judge, prosecution, and defense can
work together to produce just findings only if they do not, as they do in some dic-
tatorships, allow the result to be rigged. Exactly what the point of the give-and-
take between government and opposition is, is, for good reason, controversial.
But whether one boldly holds that the goal is still justice and the common good,
or claims, more cautiously, but also reductively, that it is the survival of the polit-
ical system, is of secondary importance. For neither goal will be reached if either
the government or the opposition is wholly corrupt.
In the negative formulations only if they do not falsify, neither goal will be
reached if either side is corrupt, a feature of morality comes to light that Luh-
manns release-from-morality thesis partially, but only partially, acknowledges.
Without the function-specific integrity in each case, one can be neither a good sci-
entist nor a good politician, but with it alone one is a good sort and nothing
more. Function-specific morality has a kind of right of veto: someone who is cor-
rupt disqualifies himself as a politician; someone who is not must still prove his
political abilities. Or, to put the point in the old European language of the moral
subject, personal responsibility has in the first instance only the negative signifi-
cance of a precondition.

According to the first, social-historical argument against Luhmann, modernity is

not quite so modern as imagined. According to the second, ethical argument,
modernity, for all its modern functional differentiation, cannot abandon the moral
perspective. According to a third argument, it will be shown that even if one
grants that modernity has freed itself from morality, it has done so only in one re-
spect. Morality has another field of application from which modernity has obvi-
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I n S e a r c h o f t h e L o s t Pa r a d i g m 39

ously not liberated itself, and this field is decisive for the morality of law and right
in particular.
Fraud and corruption have to do with personal morality, and even if there are
stronger arguments against this side of morality than Luhmann provides, the con-
cept of a morality of law and right does not thereby lose its function. In the form
in which it will be defended here, as a counterpoint to modernity, such a morality
does not concern the character or moral quality of judges, lawyers, ministers, and
members of parliament as people, but deals rather with social structures, institu-
tions, and systems. The categorical imperative of law asks, for example, why a
polity should be democratic in form and what justifies us in rejecting undemocra-
tic constitutions even when they function efficiently. Or: can a democratic polity,
since it is legitimate, pass any law it pleases, or are there, on moral grounds, sub-
stantial constraints, principles such as basic rights and human rights or obliga-
tions of social welfare, that are indeed formulated by a democratic polity but are
not actually granted or refused by the legitimate power of such a polity.
Legitimation questions of this sort cast doubt neither on the idea of functional
differentiation nor on the various particular codings. They can even accept Luh-
manns marginalization of personal morality, since they in any case accept his cri-
tique of the hollow moral posturing that characterizes much parliamentary debate.
To inquire into the legitimacy of a political constitution or the limits of a purely
formal democracy is to address a set of issues that are simply passed over by Luh-
mann. Because these questionsconcerning the foundations of political legiti-
macy and more generally the foundations of the legitimacy of the individual func-
tional systemsremain open, the dimension of morality, institutional morality,
that is addressed in the categorical imperative of law escapes the doubt that Luh-
manns theory of modernity tries to cast on the very idea of morality. Luhmanns
theory has a blind spot; its release-from-morality thesis resembles a rash promise.
Let us take stock with regard to the first, modernity-theoretical variant of the
release from morality. Good grounds for a radical skepticism concerning a moral
perspective on the law have not been found. On the contrary, the moral perspec-
tive remains plausible, and the suspicion of promulgating an ideology can be
turned back on the critics of ideology. In the first place, the functional systems of
a society cannot function without a certain personal morality, and in the second
place, the functional systems lose the foundations of their legitimacy in the ab-
sence of an institutional morality.
Miltons title Paradise Lost is well known, but he also wrote a sequel, Par-
adise Regained. Against Luhmanns thesis of a lost paradigm, the balance of
argument allows us to oppose the counterthesis, paradigm regained: the moral
of the story is the rediscovered paradigm.
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40 Categorical Principles of Law

3.2. Critique of Juridical Empiricism

The failure of the release-from-morality thesis does not yet pave the way to a
transcendental critique of law and right. A normative ethics of law and right cer-
tainly begins with a step back, but what is needed at first is not a transcendental
but a semantic step back. In the case of institutional morality, this means asking
the question, How is a morality that concerns juridical structures, rather than peo-
ple, to be defined?
Before embarking on this task, however, a second form of skepticism about
the ethics of law and right remains to be discussed. Whereas Luhmann holds
morality to be functionless only in modern societies, strict legal positivism rejects
entirely the relevance of morality to the law. This second, law-theoretical release-
from-morality thesis is not in the first instance directed against Kants exigent
conception of morality; it denies that morality is binding on the law in any way
whatsoever. For strict legal positivists, any subjection of the law to moral norms
entails the loss of the laws distinctive capacity to retain its validity even when it
fails to agree with the moral convictions of those affected. According to Hans
Kelsens famously provocative formulation, any arbitrary [including therefore
any arbitrarily immoral] content can be law (1970, 198).
The positivistic emancipation of the law from morality has motivations both
in legal theory and in legal practice. Each motivation testifies to a different stand-
point and grounds a different sort of positivism. The positivism of legal theory
withdraws the moral perspective from jurists; the positivism of legal practice
withdraws it from citizens. In both forms the release-from-morality thesis carries
a good deal of conviction, and there is no doubt that legal positivism is a philo-
sophically serious position. For it is true, on the one hand, that jurists are respon-
sible for interpreting and applying currently valid statutes, not for evaluating
them from a moral point of view. On the other hand, a legal theory that is critical
in the Kantian sense will indeed modify this thesis and will hold that lower-level
principles can, and in fact must, be evaluated in the name of higher-level ones.
But insofar as these higher-level principlessuch as, by way of example, funda-
mental articles of the constitutionbelong to the currently valid body of law, this
sort of critical view is compatible with the positivism of legal theory.
According to the positivism of legal practice, the suspension of obedience to
valid legislation in the name of fundamental moral principles of law is illegiti-
mate. This thesis can be understood very narrowly so that it rejects all civil dis-
obedience. Since such a blanket rejection is controversial, the positivism of legal
practice is plausible only within limits. If, however, one once again distinguishes
higher-order from lower-order juridical rules, and if one in addition sees that the
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I n S e a r c h o f t h e L o s t Pa r a d i g m 41

most important fundamental moral principles form, as higher-order rules, part of

the currently valid body of law, then the positivism of legal practice can, under re-
strictive conditions to be sure, permit certain acts of civil disobedience. Insofar, it
agrees with our ordinary sense of the point and purpose of the law.
The persuasiveness of both forms of legal positivism can make it appear that
any moral conception of the law amounts to a moralizing alien to the legal do-
main. Kant, however, provides a nice example of the surety with which a reflec-
tive ethics can oppose the release-from-morality thesis without binding morality
to the law in a way that is alien to the nature of the latter. For this reason, it makes
sense here to turn to a textual tradition. One often finds subtle models of thought
in such traditions, as we do in this case, where we see Kant arguing for a position
that mediates between a wholesale moralizing of the law and a wholesale release
from moralityin short, a morality of law without moralizing.
In the Doctrine of Right (VI:22930/55), as also previously in the essay on per-
petual peace and subsequently in the Conflict of the Faculties (in the section on
the Distinctive Features of the Faculty of Law), Kant recognizes the positive
conception of law both from the legal-theoretical and the practical perspectives.
In Perpetual Peace he says that the professional responsibility of jurists is simply
to apply positive laws (PP VIII:369/116). These laws are not to be sought in the
reason (that is, the practical or moral reason) of the lawyer or judge, but in the
code of law that has been publicly promulgated. Kant is equally uncompromising
with respect to the citizens subject to the law. To refuse to obey an external and
supreme will on the grounds that it allegedly does not conform with reason would
be absurd (CF VII:25 ff./39 ff.).
The legal-theoretical release-from-morality thesis concerns only the recogni-
tion of positive law from the point of view of legal theory. Here, Kant, without the
benefit of later, often somewhat prolix justifications of an autonomous theory of
the law (for example, Austins), has no difficulty acknowledging the validity of a
positive viewpoint on the law or its theoretical integrity. He claims no exclusivity
for the moral conception of the law in the sense of iustum, justice (in his
language, this answers to the question, what is right?). Alongside this con-
ceptionin the double respect of legal dogmatics (for Kant, concerned with
the question, what do the laws . . . say?) and legal history (concerned with the
question, what have the laws said? (DR VI:22930/55)the positive concep-
tion of the law (the quid sit iuris) remains valid. And insofar as Kant does indeed
claim a certain priority for the moral conception, he does not intend by this that a
law that is in force should lose its validity upon being recognized as immoral.
For Kant, only the claim to exclusivity on the part of the positive consideration
of the law is questionable, and this questionability is of a piece with the project of
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42 Categorical Principles of Law

a practical critique of reason. Just as the second Critique is directed against the
claim to absoluteness on the part of empirically conditioned reason in general, so
Kants ethics of law is directed against a special case, the claim to absoluteness on
the part of empirically conditioned reason with respect to law and right (Rech-
stvernunft). The fundamental concept of Kants ethics of law and right, the cate-
gorical imperative of law, corresponds to pure reason with respect to law and
right.
One suspects that some Kantian views are determined not by the topic in ques-
tion but by the internal dynamic of his system of philosophy. That Kants cri-
tique of exclusive juridical empiricism continues the program of the second Cri-
tique is not, however, a system-conditioned bias. It corresponds first and foremost
to the social and scholarly historical situation. For jurisprudence, both in juridical
communities and in universities, had by the late eighteenth century already estab-
lished itself so successfully that anyone proposing to place a question mark after
the doctrine of positive law was likely to be regarded as virtually blind to reality,
whereas the moral consideration of the law was, by contrast, thoroughly question-
able. Among Kants contemporaries, the Gttingen jurist Gustav Hugo contested
the possibility of a law above and beyond the positive. The relevant work of his
carries the provocative title A Textbook of Natural [i.e., moral] Law as a Philoso-
phy of Positive Law. Kant himself makes a systematic argument, not a historical
one. Against an exclusively positive consideration, a merely empirical doctrine
of law, he brings into play first an open-question argument. To restrict attention
to the statutes that are in force is to leave unanswered the question whether what
is in force is also morally valid, just or unjust. This very questionthe same,
incidentally, that Luhmann leaves open for his political systemproves that
two viewpoints on the law are possible and that they can coexist peacefully beside
one another. On the one hand, we are concerned with what is valid de facto; on the
other, with what ought to be valid.

An ethics of law and right that submits itself to the demanding program of a tran-
scendental critique might want to carry out the semantic task by constructing an
antinomy and thereby acknowledging a contradiction between two equally war-
ranted laws. Now, we can in fact say that since the law consists of enforceable
rules, it deserves the consent of those affected by it (if it deserves consent at all)
only if it agrees with moral obligations. Consequently, the moralistic thesis, the
unity of morality and law, seems persuasive. But the positivistic antithesis sup-
porting the separation of morality and the law is also persuasive. For a legal order
consists of rules and instances of an exclusively positive sort, the validity of
which does not therefore depend upon moral consent.
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I n S e a r c h o f t h e L o s t Pa r a d i g m 43

In The Metaphysics of Morals, Kant speaks of an antinomy only once, and

even then only in passing, in the Doctrine of Virtue, apropos the concept of a duty
to oneself (VI:417/214). There is never any mention of a juridical antinomy. Kant,
therefore, seems not fully to avail himself of the possibilities offered by a tran-
scendental critique of the law. Since a transcendental dialectic presupposes that
reason generates antinomies from its own nature, the relevant antinomy in this
case would have to be internal to reason with respect to law and right. Reason
with respect to law and right would itself have to give rise to two incompatible
laws corresponding to the moral and the positive perspectives respectively. A
speculative contradiction of this sort has yet to be found. Pure practical reason
corresponds only to the moral perspective and treats the positive perspective as,
in the first instance, external to it. So far, a transcendental dialectic of reason with
respect to law and right is unnecessary.
Whether or not one wants to speak of an antinomy, it is clear that the contradic-
tion between the moralistic thesis and the positivistic antithesis obtains between
two claims to exclusivity. The contradiction can be resolved by acknowledging
both sides to be partially correct. In this way the conflict ends not polemically,
with the victory of one side over the other, but irenically, with the peaceful coexis-
tence of both sides. The solution lies in that prespeculative comparison that recog-
nizes two kinds of cognitive interest to be different but compatible.
Now, one might regard the second question about the validity of positive law,
the one that asks after its moral underpinnings, as secondary or even superfluous.
Kant has a second argument to answer such a criticism. A merely empirical the-
ory of law, he writes in the Doctrine of Right, is (like the wooden head in Phae-
druss fable) a head that may be pretty enough, but unfortunately lacks a brain
(DR VI:230/my translation). With this remark, the ethics of law takes the offen-
sive. Within the framework of coexistence, Kant accords priority to the moral
perspective on the law. Through the coexistence the counterpoint to the modern is
made possible; through the priority it, in this case the categorical imperative of
law, shows itself to be indispensable.
Kant prepares the polemical jab at juridical empiricism with a number of sub-
arguments. First, he restricts the moral conception of the law to the realm of leg-
islation, to that part of the legal order that determines the validity of law. Here, at
the birthplace of positive validity, the positive, or empirical, consideration of the
law loses its rights in any case, thus making possible a moral consideration that
does not infringe upon the competence of the positive perspective on the law.
Thereupon, Kant assigns to the moral conception of the law the task of bringing
to light the immutable principles of all positive legislation. These principles
correspond to the categorical principles of law.
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44 Categorical Principles of Law

In the introduction to the Doctrine of Right, Kant formulates the categorical

imperative of law in the singular: the principle of the toleration of freedom of ac-
tion in accordance with strict universal laws. The categorical imperatives of law
in the plural follow in the two main sections of the Doctrine of Right, in the sec-
tion on private right and in that on public right. They are used to justify,
among other things, the institution of property and the necessity of a public ju-
ridical order, that is, a state. In addition, Kant defends the penal authority of the
state as a form of retribution (see Chapter 8 below). Finally, he considers the prin-
ciples to be the general criterion for justice and injustice. The polemical jab fol-
lows only after all this. Put positively and applied to the moral conception of the
law, the point of the polemical jab is to declare this conception to be the brains be-
hind positive legislation.
Brains are supposed to deliberate, make decisions, and govern action and
omission by means of decision. The moral conception of the law is supposed to
become active where the positive conception of law is out of commission, as it is in
the enactment of legislation. It is intended to guide the decision-and-deliberation
process and help the legislative body draft morally legitimate law. In short, it is
supposed to give norms to legislation by means of categorical principles of law.
Would Luhmann be convinced by this argumentation? He would begin with
the word legislation, in place of which he would speak of the political sys-
tem, which in turn he would regard from the point of view of systems theory and
pedagogy, not morality. Mutatis mutandis, Kants argumentation applies to Luh-
manns perspective in a remarkably illuminating way, given that the political sys-
tem has fundamental structural features. It is, as the case may be, democratically,
rather than autocratically, constituted; its powers are divided; and decision mak-
ing is not simply tied to certain procedures, but is bound by substantial principles
of justice such as human rights. The question whether a system that meets these
conditions is by and large to be regarded as legitimate, while one that refuses
them is to be seen as illegitimate, is posed from a moral perspective. The ques-
tion, therefore, must not be directed at each individual law, and nevertheless it
remains present as a question put to the guiding constitutional principles. Indeed,
in this fundamental form it is omnipresent.
The moral question is also appropriate in the case of certain particular laws. A
number of problems that are especially urgent today provide excellent cases in
point. One can, for example, consider legislation concerning genetic research or
animal experimentation from a purely system-immanent perspective and regard
whatever law is finally passed as a compromise that is negotiated between the dif-
ferent groups and associations concerned and that in addition reflects their re-
spective capacities for wielding power and making credible threats. But it is just
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I n S e a r c h o f t h e L o s t Pa r a d i g m 45

as important to evaluate the kind of arguments that play a role in the decision-
making process. A political system in which the first way of considering matters
holds sway exclusively cannot complain of a loss of legitimacy.

Although Kant rejects an exclusively positive consideration of the law, we find

notable positivists among the legal theorists that were influenced by him. Hugo
had already thought that his positivistic standpoint could be extracted from
Kants philosophy, although not from his writings on the philosophy of law,
which had not yet appeared when Hugo published his Textbook in 1789. But Kan-
tians are found among the great legal positivists later as well, even in our own
century. Once one understands this phenomenon, the Kantian program of a theory
of law as an ethics of law and right acquires a sharper profile, as does the perti-
nent network of concepts organized around the theme morality of law without
moralism.
The most influential, at the same time the most rigorous, example of a theory
of law that is inspired by Kant but nevertheless aspires to get by without a moral
standpoint is Kelsens Pure Theory of Law (1970). Kelsen does not renounce the
guiding theme of Kantian philosophy, the justification of objectivity. His model
for objectivity, though, is taken not from the second Critique but from the first.
Kelsen takes a transcendental theory of law to be a logic of the law, not an ethics
of the law. He reads the Critique of Pure Reason as an attempt to lay the philo-
sophical foundations of empirical science and wants to achieve for juridical
science, which is not considered by Kant in this context, what Kant achieved for
natural science. To this end, he first determines what objective validity means in
the realm of the law and then looks for the conditions that are necessary for it to
obtain. The characteristic property of legal norms is their enforceability. But the
objectivity of the law cannot lie in mere enforceability, since brigands, for example,
also exercise force.
In order to distinguish the objective enforceability of legal norms from the
subjective enforceability of brute force, Kelsen defines the law by means of
four mutually complementary elements. Taken together they yield a conception
of the law that is much truer to its reality than is the imperatival theory of clas-
sical legal positivism (cf. Hffe 1995, chaps. 5 and 6). Kelsen begins with the
observation that (1) the law consists, not of commands, but of rules, or norms,
and he sees also that (2) these norms owe their existence to the existence of an au-
thority with the power to set the rules. Further, Kelsen observes that (3) the law
consists of a hierarchy of authorizations, and he (4) takes a foundational norm to
sit at the top of the hierarchy and function as the last instance of all legal autho-
rization. This foundational norm, misunderstood in manifold ways, demands that
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46 Categorical Principles of Law

we obey the highest legal authority, the relevant legislature, and, historically con-
sidered, the original constitution.
Kelsen ascribes to this foundational norm the status of a transcendental pre-
supposition of the logic of the law (1970, 2015). He sees in it, therefore, some-
thing equivalent to Kants transcendental unity of apperception, that highest
point to which objective validity is to be made fast. The fact that Kant himself
does not recognize such a logical presupposition (in the transcendental sense) of
the law is not, of course, a mark against Kelsen, but stands in his favor as a sign
of his creative appropriation of Kants thought. What we have to ask is whether
the foundational norm can accomplish the task required of it, that of making pos-
sible the objective validity of law.
One can speak of a constitution framer to whom obedience is due only in the
context of a legal order. But Kelsen had set out to identify what distinguishes a
legal order from a mere structure of power relations. So his definition of the law
turns out to be circular. If one tries to avoid this result by taking the expression
constitution framer to be free of all juridical connotation, one must allow that
any sufficiently powerful person or group thereby qualifies as a constitution
framer. But Kelsen himself sees that criminal organizations can enjoy sheer supe-
riority in power, in which case they can lay claim only to a subjective validity. In
brief, the objective validity of legal obligations cannot be defined with Kelsens
foundational norm alone.
To be sure, Kelsen defines positive validity not as an is but as an ought. De-
spite this, he does not investigate this ought, that is, validity, as an ought; he con-
siders legal norms not with respect to their being binding but simply as realities
found in the world. The legal ought is thereby made into a quasi-nature, and the
theory of law, in full agreement with Kelsens understanding of the Critique of
Pure Reason, becomes a quasi-natural science. Regarded as a piece of quasi-na-
ture, the enforceability of the law must appear to those affected by it as a matter
of brute force.
While the superior power of criminals is imposed upon its victims as a sort of
natural phenomenon, the force of the law always presents itself with a claim to
rightfulness. A consistent logic of the law becomes, for wholly immanent reasons,
an ethics of the law. A minimum of morality in the form of a first level of justice
is needed to define the sort of validity specific to the law. This law-defining level
of justice requires that, at least in certain cases, those subject to the force of the
law are also those that benefit by it. The prohibitions against killing and stealing
that emanate from a legal order act in the service of the lives and property of the
very individuals to whom the prohibitions are directed.
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I n S e a r c h o f t h e L o s t Pa r a d i g m 47

The argument sketched here does not run contrary to the basic intention behind
Kelsens theory of law by appealing to a genuine interest in morality. On the con-
trary, the argument is content to remain with Kelsens goal of defining the sort of
validity that is particular to the law. The transition from a positive science of law
to an ethics of law is necessary even if one is content to inquire into the merely
positive, though still objective, validity of the law. So it is not merely for inquiry
into the binding nature of the law that the idea of a distinctively moral objectivity
proves to be indispensable. Even a theory of the more modest sort of objectivity
characteristic of legality is forced to abandon any attempt to cut itself off from an
ethics of law and to join in the search for a highest point beyond Kelsens foun-
dational norm. In the course of continuing this search, we will see that the relative
objectivity that is tied to a particular legal order, legality, opens to an absolute and
universal objectivity valid for all legal orders, namely the objectivity characteris-
tic of moral legitimacy.
Juridical science has a complication that natural science does not, and Kant,
who did not write a logic of juridical science, does not notice it. The law cannot
be regarded exclusively on the model of the first Critique, for the practical or
moral perspective belongs to the law alongside the theoretical, or positive, per-
spective. Because of this, there are two different ideas of objectivity involved in
the institution of the law and corresponding to them two different sorts of objec-
tive juridical science. Beside the idea of positive objectivity, that of statutory va-
lidity, is the normative objectivity of a morality of the law that is treated in the
ethics of law. Although fully compatible, these two ways of considering the law
do not simply sit beside one another. Once again, the coexistence thesis is to be
supplemented by a thesis of priority. Even a merely positively oriented theory of
the law must acknowledge the priority of the moral perspective. For the distinc-
tive claim to objectivity made by the law, its authority to exercise force on the
basis of something other than sheer power, cannot be understood apart from this
perspective. The resulting situation is somewhat paradoxical. The notion of posi-
tive law, which is uncontroversial within the ensemble of sciences, is, from a sys-
tematic viewpoint, tethered to a thoroughly controversial discipline, the disci-
pline of ethics with respect to law and right.
A moral conception of the law such as that embodied in the categorical imper-
ative of law does more than simply give norms to the law for the purpose of dis-
tinguishing between just and unjust law. It is needed even for fixing the concep-
tual distinction between legal enforceability and criminal violence. Kant,
however, did not pose the question in this way in his ethics of law, and because of
this the answer to it escapes him as well: before the categorical imperative of law
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48 Categorical Principles of Law

develops the capacity to give norms to the law, it already gives evidence of its im-
portance as a counterpoint to modernity with regard to the problem of defining
what positive law is.
In the previous chapter we found for the categorical imperative of law a sec-
ond task, that of constituting the law. Both tasks, that of constituting the law and
that of defining it, indicate two aspects of the same issue. The morality of law and
right that is indispensable for the definition of the law marks at the same time a
piece of legitimation of the institution of the law. And the same goes for the moral
point of view needed to constitute the law. It says that social relations maintained
by force are legitimate only when the force is exercised not, as in criminal vio-
lence, for the benefit of others, but rather, as in the prohibition of murder, benefits
the very people who are subject to the force.

3.3. The Emancipation of the Law from Disposition

Kants moral theory places great importance on a distinction that plays only a
small role in todays ethical debates. He holds that moral duties can be recognized
on grounds either of voluntary conviction or of something external to morality,
such as the achievement of personal advantage or the avoidance of punishment.
This difference between morality and legality (in a moral, not a juridical sense) is
of course familiar to Kant interpreters. Because Kant holds in addition that gen-
uinely moral action requires the fulfillment of duty entirely for its own sake, with
no ulterior motive, because that is what morality in his sense requires, his position
is taken to be an ethics of disposition (Gesinnungsethik).1 A third release-from-
morality thesis is directed against this ethics of disposition. Since the two ver-
sions of the complete release-from-morality thesis are unconvincing, this third
view demands only a partial neutralizing of morality. It leaves room for the moral
perspective, though not often as clearly as one would like, but rejects an inappro-
priate moralizing, which, in H. Lbbes words, amounts to the triumph of dispo-
sition over judgment (Lbbe 1987, 37).
As a rule, the criticism of moralizing is formulated in the context of politics,
and since one of the most important of political tasks is legislation, the sense of the
criticism applies also to the law. Lbbe (1987, 37 ff.) directs the objection directly
at Kant. With the claim that conscience is infallible, Kant attributes to conscience
a certainty of judgment that from the standpoint of a postconventional morality is

1. In other contexts, it has become customary to translate Gesinnungsethik as ethics of convic-

tion.
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I n S e a r c h o f t h e L o s t Pa r a d i g m 49

seen to have an ideological element and can only be explained by the rich fund of
material norms that in Kants day still enjoyed an unquestioned cultural validity.
Lbbe takes the appeal to an infallible conscience to be politically dangerous.
The idea does indeed threaten a condition of democratic adversarial culture: the
ability to compromise. In addition, politics is in many cases concerned only with
efficiency, feasibility, and stability. In other cases, moral principles are in play, but
what is debated is not so much the principles themselves as their application to
particular situations. Someone who appeals in such cases to the last foundation of
moral integrity, ones conscience, can increase the weight of his own position.
Such a maneuver can, therefore, be a piece of political rhetoric. Even when an ap-
peal of this sort was honestly intended in a subjective sense, it would, objectively
seen, be misplaced; it would be a case of irrelevant moralizing.
This is not the place to reflect upon when exactly appeals to conscience in pol-
itics can be justified. What is at issue is simply whether the charge of moralizing
is justly leveled at Kant and the categorical imperative of law. In the Doctrine of
Virtue, which rejects the notion of a mistaken (irrende) conscience as an absur-
dity (VI:401/202 f.), Kant makes precisely the concession that his critics take to
be absent. Far from claiming objective infallibility, Kant admits the opposite and
insists that one can very well make mistakes in ones objective judgment of mate-
rial norms. It is in another respect alone that one is immune to error, in a subjec-
tive judgment concerning whether one has compared the deliverances of ones
conscience with the deliverances of ones practical reason. According to Kant,
one can very well be deceived in the opinion that p is morally good (or bad),
but one cannot be deceived in the opinion that [f]or my part, I am convinced that
p is morally good (or bad).
In addition, Kant does not see moral disposition as an alternative to legality.
He sees in disposition, rather, a strengthening of the conditions of legality. In
adding a condition to legality, morality in the Kantian sense is a legality plus,
an agreement with duty that occurs for the sake of this duty itself. Kants formu-
lation in the Doctrine of Virtueact in conformity with duty from duty
(VI:391/194)leaves no room for doubt: morality does not suspend legality; it
surpasses it. Last but not least, Kant sets out to defend against precisely that
which his critics also want to avoid. Instead of leaving morality to a criterionless
inwardness, Kant places great emphasis on the need for an objective measure, for
universalizable maxims. Kant puts the duty to subject ones subjective convic-
tions to an objective testing procedure ahead of the right to act according to ones
own convictions. As a consequence, Kants ethics of morality need not offer any
irritation to either Lbbe the Hegelian or Lbbe the advocate of a democratic ad-
versarial culture.
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50 Categorical Principles of Law

The essential difference between Kant and Lbbe cuts across the latters alter-
natives. As was the case with Luhmann, here also a third theoretical possibility
needs to be introduced, albeit in a different way. While Lbbe opposes mere dis-
position to judgment, Kant holds that both disposition and judgment are
bound to universal principles. Insofar as Lbbe pays too little attention to this tie
to moralityan issue that is uncontroversially open with respect to the tasks of
judgmenthis critique of an ethics centered on disposition comes close to a
more-than-partial release from morality on the part of the law.
Now, Kant is not satisfied with the mere recognition of universal principles;
and his insistence that the concept of morality goes beyond that of moral legality
could be the source of residual irritation. It is in fact true that to demand more
than legality in the case of the law is to uphold a dubious disposition-based con-
cept of law. Kant, however, emphasizes time and again and with unmistakable
clarity that no disposition to obey the law is part of its definition; in particular,
such a disposition plays no role in the moral definition of the law. The demand
that one make duty ones motivation is not made by the law and the right, but
only by virtue (e.g., DR VI:218 ff. and 231/45 ff. and 67; and DV VI:389/193).
Kant thus escapes even the residual objection of moralizing, and he succeeds
thereby in freeing juridical morality from his own more rigorous concept of strict
morality. The fact that Kant adheres to the emancipation of the law from disposi-
tion has been overlooked in discussions of ethics in general and even by inter-
preters of Kant.
The emancipation in question does not remain at the merely programmatic
level. It is implicated in Kants concept of the law as optimizing freedom of ac-
tion by prohibiting its exercise in mutually incompatible ways, and it provides the
grounds for justifying the authority of the law to use force (see also below, 5.2).
The emancipation of the law from disposition is found also in the systematic por-
tion of the Doctrine of Right. Kants argument for supplementing the morality of
law and right that precedes the state, which he calls private right, with a public
legal code depends upon precisely this point. The obligations of private right re-
quire public protection precisely because they demand no recognition that goes
beyond sheer legality.
Kants emancipation of the law from disposition does more than correct a prej-
udice in the history of philosophy, it has many consequences for systematic discus-
sions of ethics as well. Every moral philosophy contains a piece of action theory or
rational psychology in which the practical subject to which obligations are directed
is defined. The side of morality that concerns the theory of action, which is to say,
that concerns the freedom of the will, is hotly disputed. The ethics of law and right,
however, enjoys a great advantage in that it dispenses with the freedom of the will
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I n S e a r c h o f t h e L o s t Pa r a d i g m 51

and contents itself with the freedom of or responsibility for action. Because the
issues involved in ethics are thus simplified in this respect, it is remarkable that
the recent revivification of ethics does not concern itself more often with the ethics
of law and right. Finally, above all else, the emancipation from disposition allows
the concept of the categorical imperative of law to be made more precise. Within
the culture of the law, the counterpoint to modernity is not tied to morality in
Kants strict sense. The moral ambitions of the law are much more modest.
If, therefore, one reads the release-from-morality thesis as making a relative,
rather than an absolute, claim, if the point is not that one takes leave of morality
altogether but simply that the significance of morality is diminished, then the
thesis is thoroughly acceptable. Qua strict Kantian morality, morality drops out of
the concept of the law.
It is no accident that the emancipation of the law from disposition has played
such a small role in the history of Kant interpretation and Kant-inspired philoso-
phy. For the emancipation in question has a systematic range of which Kant him-
self was not sufficiently aware. The emancipation of the law from disposition
brings with it a reevaluation of moral legality, of the relationship to duty that
Kant, in the writings on the foundations of morality, treats only as a deficient
mode. Formulated paradoxically, morality can manage without morality, at least
as far as the morality of law and right is concerned; in that case the boosting of le-
gality in the moral sense into morality in the strict Kantian sense is not required.
It follows, however, that what we can call universal morality, the morality that is
indifferent to the distinction between virtue and the law, cannot consist in acting
out of duty. On the contrary, the agreement with duty that results exclusively from
self-interest also has moral significance. The universal concept of morality that is
treated in fundamental ethics must allow for that which Kant excludes from
morality in the strict sense: a coincidence of self-interest and morality. Such a
coincidence does not, however, have moral import for the entire domain of prac-
tical activity, but only for the realm of law and right. As far as personal morality
is concerned, the turn away from the principle of self-interest obtains.
In his essay on perpetual peace (PP VIII:366/112), Kant adheres to the coinci-
dence thesis for the public rule of law. Even a race of devils, if only they [were]
intelligentand that means a race of enlightened egoistswould, he says there,
need a state (cf. Hffe 1988a, 56 ff.). With this admission, he declares self-
interest, that is, the self-interest of each member of the polity, to belong to the
foundations of the legitimation of the state. But Kant did not see that this thesis is
valid not only for public codes of law but also for law and right as a whole. One
can also try to legitimate the morality of the private law that precedes the state
from the enlightened interest of those subject to it (see PJ chaps. 11 and 12).
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52 Categorical Principles of Law

Wherever Kant and German idealism play a significant role, a thesis that is es-
sential to the self-understanding of modernity is upheld: namely, that in the mod-
ern age morality acquires a radically new origin. In particular, in the work of Kant
the moral subject discovers its autonomy. This discovery has not gone unchal-
lenged. With Nietzsche, at the latest, begins a long line of philosophers for whom
the morality of autonomy has become questionable. That Kant adhered to the
morality of autonomy is, however, never doubted. But with respect to the realm
of law and right, we have just seen that this is not the case; in this area, self-
interest, which is to say, the heteronomous subject, is sufficient for the achieve-
ment of moral legitimation.
Nevertheless, Kant does not simply take back the notion of autonomy in his
philosophy of law and right. On the contrary, it is entirely possible to speak of au-
tonomy with respect to the law, but the bearer of autonomy in this case is not the
will of a natural subject but the collective will of all who are subject to the law to-
gether, the volont gnral. The criterion in the social realm, as on the personal
level, is universalizability. And just as a natural person demonstrates his morality
by suspending happiness as his guiding principle, so too does a legal community
demonstrate its commitment to the (morally legitimate) rule of law. We know that
Kant excluded the promotion of social welfare from the realm of morally man-
dated duties of the state, but to social-pragmatic arguments in favor of the welfare
state he had no objection. We see now that Kants position signifies something
philosophically deeper than a credo of political liberalism; the position springs
from the fundamentals of his moral views on law and the state. Kants critique of
eudaemonism on the personal level corresponds in the realm of law and right to
his criticism of the welfare state (for some remarks critical of Kant on this point,
see 5.1 and 5.3 below).
Nevertheless, the concept of morality that Kant develops in his writings on the
foundations of ethics does not, in fact, agree with rehabilitation of legality that is-
sues from his ethics of law and right. According to the famous opening of the
Grounding (IV:393/7), only a good will can be held to be morally good, that is
good without qualification. This provocative thrust is not simply the rhetorical
exaggeration of an introductory sentence; it is consistently upheld throughout the
work. Already in the preface (IV:390/3) and then in greater detail in the first sec-
tion, Kant says that acting according to the moral law is not sufficient for moral
goodness; one must instead fulfill the law out of duty and out of respect for the
law (IV:397 ff./9 ff.). Furthermore, the moral worth of an action lies precisely in
that which is excluded by the emancipation of the morality of law and right from
disposition, in the maxim that issued in the resolution to act (IV:399 ff./12 ff.).
Beyond this, Kant enters into underlying motivation in his discussion of exam-
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I n S e a r c h o f t h e L o s t Pa r a d i g m 53

ples, despite the fact that the law allows for a coincidence of self-interest and
morality. Kants aim in the foundational writings is not to establish what in par-
ticular is morally required or forbidden; this he presupposes as self-evident and
familiar. What Kant wants to show is what it means to fulfill ones duty even
when, as is often the case, doing so does not coincide with self-interest. Conse-
quently, he constructs the examples so that the morally right action is threatened
by a competing claim of self-interest. Only one who follows the prescriptions and
prohibitions of morality also in situations of duty against inclination acts in a
truly moral way (see 7.3 below).
In truth, morality is not yet contained simply in the criterion of universaliz-
ability, to which the categorical imperative is all too often reduced. It appears
only with the addition of two further elements. First, the categorical imperative
begins with a demand: Act . . . ! It is primarily a criterion of action, not of
judgment. Second, universalizability is not demanded of just any rule of conduct,
but only of maxims. A maxim for Kant is a certain determination of the will, a
principle that the agent has set for himself. This is why the following of univer-
salizable maxims is evidence of moral goodness on the part of the will itself.
Now, the categorical imperative in the Grounding demands the universalizability
of maxims, and it follows that this imperative cannot provide us with the criterion
of universal morality. The truth is that the categorical imperative functions as the
measure of something more special, it is the criterion for the morality of the fac-
ulty of desire. Because control of the faculty of desire corresponds to virtue, the
categorical imperative with which we are all so familiar is an imperative of virtue,
not of law or right; it is a measure of morality in the strict Kantian sense in which
morality is opposed to legality.
In the Grounding, the concept of legality is used only in opposition to that of
morality in the strict sense in order to highlight, through contrast, the nature of the
latter, of morally governed desire; legality in the moral sense does not acquire an
importance of its own. The Critique of Practical Reason does not deviate from
this concept of morality; it too delimits morality by means of its opposition to in-
clination, which is now called the principle of self-love or ones own happiness
(C2 V:22/19). Since the Doctrine of Virtue adheres to this concept of morality as
well, we can conclude two things: first, that Kant uses the same concept of moral-
ity in the Doctrine of Right as he does in the writings on the foundations of ethics,
and second, that these foundational writings do not accomplish what they set out
to accomplish; they do not lay the grounding for the whole of the Metaphysics of
Morals, but only for its second part, the Doctrine of Virtue.
One must, however, make this conclusion more precise, and in doing so
weaken it somewhat. Technically speaking, the Grounding does not begin with
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54 Categorical Principles of Law

the normative-ethical thesis about the good will. What constitutes the systematic
beginning is rather a metaethical definition that precedes fundamental ethics, the
theory of the categorical imperative in general. This definition, which is in a sense
the zero point of the argument and is neutral with regard to the difference between
the theory of law and the theory of virtue, reads: morally good is equivalent to
good without qualification. Kant himself, however, pays no special attention
to this neutral, and consequently most universal, concept of morality, and his inter-
preters have followed him in this omission. The systematic first step of an ethical
theory, the legitimation of the perspective good without qualification, is given
short shrift by Kant and his successors.
When Kant holds that the good will alone is good without qualification, he
applies the universal concept of moralitythe concept good without qualifica-
tionto the personal side of human activity. This application is undoubtedly
legitimateas is the inference that, in comparison to the good will, mere
(moral) legality of action counts as a deficient mode. But it is not legitimate to
apply the universal concept of morality exclusively to the faculty of desire. It is
equally possible to apply it to social conditions, and when it is so applied,
morality is emancipated from disposition. More precisely, one should say: there
is no conceptual tie between morality and disposition that must upon reflection
be loosened. As the morality of coexistence, morality is originally independent
of disposition, and the same goes for the concepts of freedom and autonomy. As
soon as these concepts are defined in a way that ties them to the concept of
virtue, that is, as soon as they are defined by reference to the faculty of desire,
they lose validity in relation to the law. Understood as pure self-legislation, and
consequently understood independently of desire, they regain their legitimacy.
We are left, therefore, with a pair of alternative applications. In the one case
pure self-legislation concerns desire, whereupon it is equivalent to the auton-
omy of the will, while in the other case it has to do with the structure of social
coexistence. In both cases freedom is construed as pure practical reason and
constitutes the supreme principle of order for human activity: in the first case it
orders the personal side of human action and practice; in the second it orders the
social side.
A corresponding point holds with regard to practical reason. Universal pure
practical reason is neutral between the particular areas of application, between the
faculty of desire and coexistence. It consists of nothing more than the idea of
the unconditioned good, and its criterion is universal legislation as such, with no
implication that the legislation must be self-given. The criterion of universal moral-
ity is universalizability tout court.
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3.4. A Morality of Law Without Moralizing

This universal concept of morality that is neutral with respect to personal conduct
is not found in Kants writings on the foundations of ethics. One might therefore
think that Kant had not at this time taken clearly enough into account the law as
an object of moral consideration or that he had not seen the difference between
virtue on the one side and law and right on the other. Since, however, Kant had
occupied himself with a moral theory of the law, a theory of natural law, long be-
fore the development of the critical philosophy and had never abandoned this in-
terest, the first possibility can be ruled out. Because, further, he had also already
in his precritical philosophy of law and right recognized that the law is distin-
guished by its authorization to enforce externally imposed legislation, the second
possibility is excluded as well (cf. Ritter 1971, 168 ff.). Some interpreters of Kant
have tried to understand the problematic relationship between the foundational
writings and the Doctrine of Right from the perspective of personal morality, that
is, the theory of virtue. Both neo-Kantians, such as Herman Cohen, and jurists
tend to place the law in the service of morality and accord to it the function, for
example, of protecting what we can call ethical freedom, the freedom to act
from duty (see Kersting 1984, 52 ff., and Khl 1984, 59 ff.). Karl Jaspers too
thought that Kant tied the law to morality. According to him, the law springs
from the transformation of man into an ethical being (1957, 135). In this moral-
ity-oriented interpretation of the law, the Groundings virtue-specific treatment of
morality is indirectly confirmed but no longer seen as a weakness.
This ethical ennobling of the law (Kersting 1984, 46), however, does justice
neither to Kant nor to the systematic point at issue. The authorization to obligate
others belongs to the nature of the law, while the call to bind oneself constitutes
virtue. Since the binding of oneself to the demands of duty cannot, by definition,
be arranged by an external force (cf. DV VI:381/186), ethical freedom is not in
any case susceptible to legal protection. The more a moralizing of the law, a
disposition-based theory of the law, allows itself incursions that are morally ille-
gitimate, the less it can help the cause of ethical freedom. True, the law does have
the function of protecting freedom, but the freedom it protects is not ethical free-
dom in the sense spelled out above, but rather freedom of action and choice. The
relationship between ethics and the law can be construed neither as a subordina-
tion of the law to ethics nor as a simple divorce of the law from ethics. The only
conception that does justice to the situation is that of a horizontal juxtaposition
whereby the law and virtue (strict morality) are jointly subordinated to the idea of
an unconditioned good. From this subordination follows, in the case of the faculty
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56 Categorical Principles of Law

of desire, morality in the strict sense and, in the case of the law, the emancipation
of morality (in the broad sense) from disposition.
Against this interpretation of Kants views, one can object that, among the ex-
amples he discusses in his writings on the foundation of morality, we find con-
strued as a duty of right the prohibition against making false promises or, as a
variant, the case of a deposition. It seems to follow that the foundational writings
cannot be regarded as devoted exclusively to matters of virtue. Since Kant does
nevertheless emphasize morality in the strict sense, that is, virtue, in these writ-
ings, one might take them to be inconsistent; they might seem to include a moral-
ity of the law and still focus entirely on that virtuous disposition that is excluded
from the concept of a morality of the law.
The impression of inconsistency is dissolved when one observes Kants
twofold definition of virtue. In a formal sense, what is at issue is the manner of
obligation. Virtue consists in self-constraint, or inner freedom (DV VI:380
and 396/186 and 199); the law consists in the authorization to constrain others,
which is a matter of external freedom. Materially, duties are divided into two
categories, those of right and those of virtue. While the foundational writings re-
strict themselves to the Doctrine of Virtue with respect to form, they anticipate the
entire Metaphysics of Morals as far as the material classes of virtue are con-
cerned. In dealing with the duties of right, the foundational writings emphasize
the formal features of morality in the strict sense, and in particular that juridical
morality, or disposition to obey the law, whose respect for the law (DV
VI:390/194) extends beyond what can be extracted by force. One who acts out of
a disposition to obey the law will fulfill what is legally required independently of
any fear of punishment; this person will observe the law even in those border
areas, such as a deposition made without witnesses (C2 1/18), that are exempt
from the arm of the law.
In its essentials, Kant takes the double definition of virtue from the tradition,
and this double definition still appears justified today. If there were to be a moral-
ity of law and right along with only one class of duties, the public legal order
would have not merely the authorization, but the obligation, to see to the fulfill-
ment of duty by means of the threat of punishment. If the state were responsible
for the two guiding principles of the Doctrine of Virtue, for personal perfection
and the happiness of others (DV VI:385 ff./190 ff.), it would run the risk of
becoming totalitarian. Kant escapes this danger, that of moralizing the law in
a material, rather than a formal, sense, by subjecting the morality of the law to two
principles limiting its content.
The morality that can be imposed by force when necessary, the morality of the
law, includes first of all only duties to others; it leaves duties to oneself out of
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I n S e a r c h o f t h e L o s t Pa r a d i g m 57

account. The prohibitions against suicide, against voluptuous self-defilement

and self-benumbing, against lying, miserliness, and groveling servility, and
the obligations to cultivate moral self-knowledge and develop ones talents
Kant counts all of these obligations and prohibitions as part of morality and holds
that they are nevertheless not legitimate topics for the law. For this reason he crit-
icized contemporary jurists who wanted to make the preservation of ones own
body a duty of right (LE 196/117). In our century he would have argued against
laws that declare simple homosexuality and premarital sex to be punishable of-
fenses, and he would also demand a more fundamental and nuanced legitimation
of the illegality of certain drugs: self-benumbing and neglect of ones talents are
not acceptable grounds for legal prohibition.
In the sphere of duties to others, the second limiting condition requires a distinc-
tion between obligations whose recognition brings one credit and honor and those
whose observation is owed. The morality of law and right is far from coextensive
with the whole of social morality. Attitudes such as love of ones neighbor or, more
modestly, benevolence, sympathy, and solidarity may be morally required of indi-
viduals as such, but it is difficult to maintain that these are attitudes others can claim
we owe them as a debt and that they therefore can be insisted upon by force.
While the first limiting condition concerns above all else the classical tasks of
the state, the second is important for the development of the legal state to the so-
cial-welfare state. Kantians cannot follow utilitarians in justifying the increase in
governmental tasks that marks this transition by appeal to the welfare of all who
are thereby affected; for Kant, the social-welfare state is morally legitimate only
when it can appeal to duties that are owed to others.

Since man is a being endowed with reason but also subject to temptation, the
moral concept of the law confronts humanity as an imperative. The various as-
pects of the moral concept of the law that Kant discusses represent, therefore, so
many building blocks of the categorical imperative of law. In emphasizing both
conceptual connections and differences between morality and the law, these
building blocks bring into relief the idea of a relationship that is at once a neat
separation and a unity. In this way these multiple perspectives escape both a mor-
alizing of the law and a releasing of it from any moral basis at all. We thus find in
Kant a conceptual network that does remarkable justice to the phenomena. The
counterpoint to a merely empirical-pragmatic legal culture is defined in a benefi-
cially sober manner.

1. The moral character of the categorical imperative of law is, in the final analysis,
to be sought in that feature of the critical philosophys conception of morality
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58 Categorical Principles of Law

which the Grounding, albeit only in passing, defines as the unconditioned

good and for which, not quite so fleetingly, it establishes universal legislation
as the ultimate criterion. The standpoint of morality consists in the idea of the
unqualified good, its measure lies in strict universalizability, and the stand-
point and the measure together constitute the decisive commonality unifying
personal and legal morality. In the former case it is the faculty of desire that is
submitted to the concept and the criterion of morality, and in the latter case it
is social conditions.
2. Whereas in the case of the faculty of desire the unqualified good is the good
will, morality in the strict sense, unqualifiedly good social conditions are inde-
pendent of this. The morality of the law gets by without the presence of a
moral disposition. A disposition-based theory of the law that demands beyond
legality an inner recognition of the obligation to obey the law is guilty of a for-
mal moralizing of the law.
3. The class of moral obligations is divided into two groups, which traditionally
are called the duties of virtue and those of right. The moral concept of the law
restricts itself to the second group of duties, to those duties which, as owed to
others, contain within them the authorization to enforce them. A legal order
that wants morally to accomplish more than this in fact accomplishes less: it
tries to extract by force that which is not fit to be extracted by force; it is guilty
of moralizing the law in a material sense
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4
PRACTICAL METAPHYSICS AND ANTHROPOLOGY

In the form of human rights, modernity recognizes principles that cannot be rela-
tivized; in other words, it recognizes categorical imperatives. The legitimacy of
such principles is, however, according to their discoverer, Kant, tied to meta-
physics, a long-obsolete form of rationality. Insofar as Kants claim is plausible,
modernity is once more shown to lack an adequate self-understanding. For if
Kant is correct, modernity avails itself of principles whose justification is pre-
cluded by its dominant critique of metaphysics.
If Kant was not mistaken and we really do need a metaphysics in order to le-
gitimate human rights, an attempt to rehabilitate metaphysics will certainly be
worthwhile. For the idea that a human being is a person endowed with certain
rights simply because he is a human being, not because he is a Jew, Catholic,
Protestant, German, Italian, and so on, is for the modern consciousness, as Hegel
put it, a thought of infinite importance (Elements of the Philosophy of Right,

59
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60 Categorical Principles of Law

209). By the same token, a rehabilitation of metaphysics merits more than

merely academic attention only when it is grounded in phenomena, such as
human rights, that are relevant to life in the real world. For metaphysics, the one-
time queen of the sciences (C1 A viii), has long been devalued in many quarters.
Some see the demise of metaphysics beginning with Comte, others with Niet-
zsche, and still others with the logical positivists. For the learned among the dis-
paragers, metaphysics has been undermined since the Stoics, or since the Renais-
sance, or even since the emergence of self-sufficient philosophical subdisciplines,
that is, since Aristotle himself.
True, the venerable title metaphysics still plays a positive role here and
there. Ernst Tugendhat (1982), for example, claims that the role of metaphysics,
that is, fundamental philosophy, needs to be handed over to formal semantics, and
Apel argues that transcendental pragmatics should be given the part. The expres-
sion metaphysics has served as the title both of a philosophy colloquium
(Oelmller 1987) and, albeit followed by a question mark, of the 1988 Stuttgart
Hegel Conference (Henrich and Horstmann 1988). This oscillation between cri-
tique and regeneration of metaphysics is characteristic of modernity and contin-
ues to the present day.
On the whole, though, skepticism about metaphysics predominates. Not only
has Patzigs slogan ethics without metaphysics long been in circulation, but
even the two major philosophers who have bestowed new importance on Kants
ethics, Rawls and, differently, Habermas, remain reserved. Although Rawls inter-
prets his theory of justice as Kantian (TJ 40), he calls it political, not metaphys-
ical (Rawls 1985). And Habermas, having already distanced himself from Apels
ambitions for fundamental philosophy, has lately spoken of a post-metaphysical
thinking (1992).
Someone intent on opposing these assembled skepticisms must make a
weighty decision. The social practice that provided Kant with the model accord-
ing to which he called his philosophy critical, that of administering justice, rec-
ognizes in such a situation the utility of a preliminary examination (Vorprfung).
In cases that are at once difficult and important a preliminary investigation is un-
dertaken with the goal of determining whether the prospects of success are suffi-
ciently promising as to justify the time and effort required to mount a full-scale
inquiry (Hauptprfung). Because no final judgment is to be rendered, the exami-
nation can aim at something more modest than a conclusive demonstration. In the
sense of a preliminary examination of this sort, then, we ask whether their depen-
dence on a metaphysics disqualifies categorical principles of law so unequivo-
cally as to make it better to spare oneself the main investigation. Two questions
are asked: First, what sort of metaphysics underlies categorical principles of law?
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Practical Metaphysics and Anthropology 61

What, in other words, does metaphysics mean with regard to law and right?
Second, what importance should this metaphysics be granted? How far does
metaphysics extend in the case of law and right?

4.1. The Turn of Metaphysics to Practice

Philosophy has arrogated to itself a long list of proud titles to describe at once the
nature of its special task and its unique distinction. The slogan meta ta physica in-
dicates in the first instance merely the confusion of an editor. But philosophers
soon came to believe that the expression, as Kant said, [did not] come from
nowhere, since it fits the science itself so exactly (ML1 XXVIII/I:174). Philosophy
claims to go beyond ta physica, beyond experience, and nevertheless to remain
within the domain of scientific and scholarly rationality, making no claim to be a
special, esoteric sort of knowledge.
Philosophys pride goes still further. Since all men, according to Aristotle, de-
sire by nature to know, and since this desire is not completely fulfilled until we
have achieved knowledge of reasons that are independent of experience (Meta-
physics I.1 and Posterior Analytics II.19), the transcendence of experience ac-
quires a human, even an existential, significance. For Aristotle, theoria, that is,
metaphysical thinking, is the highest form of human existence (NE X.7). But crit-
ics of metaphysics take this pride to be sheer arrogance; they help the proverb
come true and bring pride to a fall. If we want to avoid the fall, or at least avoid
falling too far, a politics of modesty is advised.
Kant is no stranger to such a politics of modesty. He does not in any way de-
mand exclusivity for the metaphysics of the law, but restricts its tasks to a small
region, that of metaphysical first principles. Nevertheless, metaphysics on this
conception does not abandon either its traditional profile or its provocative pride
entirely. In speaking of first principles, Kant fits himself into the tradition that
begins with Aristotle and seeks ultimate grounds. But even this search for princi-
ples remains true to the politics of modesty. For this search is not concerned with
knowledge of the world as a whole or with an unqualifiedly highest and at the
same time individual being. Metaphysics remains fundamental philosophy, no
longer in the singular but rather in the plural. There is metaphysics not only as a
philosophy of nature (meta-physika) but also as a philosophy of practice (meta-
praktika), and within the realm of practice as a whole there is a primary
metaphysics (as a Grounding) and a secondary metaphysics (as a Metaphysics of
Morals), and this secondary metaphysics is further divided into a metaphysics
of law and right and a metaphysics of virtue. To critics, this modesty is insufficient.
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62 Categorical Principles of Law

They refer disparagingly to any kind of search for principles as a fundamental-

ism, about which they have misgivings that are partly political and partly theo-
retical. If the person who is good through and through distinguishes him or her-
self by four cardinal virtues, the bad philosopher, the fundamentalist, is marked
by four cardinal vices.
The first objection goes by the name of self-overestimation and is not specific
to law or right. Critical rationalism teaches us that to reflect on principles is to
seek an ultimate certainty and with this a kind of knowledge that is immune to
error. Metaphysics is frequently mentioned in the same breath as religion. In the
case of human rights, a second argument, one that is political and at the same time
drawn from the theory of modernity, speaks against metaphysics. The argument is
that principles of law whose legitimation depends upon religion threaten the neu-
trality of the modern legal and political order with respect to different world-
views. The third objection is also politicalin particular, democraticin nature.
That which Habermas (1990b, 66 ff.) criticizes in the material part of Rawlss
(TJ) theory of justice is present even more clearly in a metaphysics of law and
right. The philosopher, objects Habermas, feels that he is an expert on justice (and
Habermas forgets that the critical theorist feels himself to be an expert on injus-
tice). But insofar as he conceives himself to be an expert on justice, the philoso-
pher shows that he has not fully freed himself from the aristocratic ideal of the
philosopher king; he aspires to a privileged access to the truth and thereby runs
counter to a democratic scientific culture. Finally, anyone who still sees hope for
metaphysics despite these three arguments will doubtless bend in the face of the
fourth argument. This argument underlies Marquards objection that in doing
metaphysics one repairs to the realm of the utterly principled, into transcenden-
tal cloud-cuckoo-land (Marquard 1987a, 112), and also Blumenbergs remark
about the sad simplemindedness of ultimate conceptions. Reflection on princi-
ples is in any case in danger of being intellectually irrelevant and boring to boot.
The metaphysics of law and right pleads not guilty to all four charges. It is not
a fundamentalism in the criticized sense. With regard to the first objection, it must
be said that the fact that metaphysics too participates in the epistemic finitude of
man and is therefore threatened with the risk of error is, despite the pathos with
which fallibilism presents itself, rather a trivial point. And metaphysics escapes
the further difficulty posed by the trilemma of justification through the reflexivity
that is peculiar to it. Moreover, although there are no doubt philosopherssuch
as Hans Jonas (1984, 1112), to give a recent examplewho grant that their
moral principles can perhaps not be justified at all without religion, religious
justifications are entirely foreign to Kants autonomous ethics and do not appear
at all in the metaphysics of the law. The religious postulates of pure practical
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Practical Metaphysics and Anthropology 63

reason, the immortality of the soul and the existence of God, play no role in this
part of Kants philosophy, and in the second Critique, where Kant sets out these
postulates, he is concerned with a problem quite different from that of grounding
morality (see 12.3 below). In addition, as long as metaphysics is defined exclu-
sively as inquiry into principles, it offers no privileged answers, but rather asks
somewhat more fundamental questions, something that in no way contradicts a
democratic scientific culture.
With respect to politics, Western philosophy is familiar with two models for
approaching the fundamental question posed by metaphysics. Aristotle argues
from natural social impulses and the idea of a successful life. Modern philosophy
does not attack these arguments directly, but formulates an open question by
means of which reflection on principles is sharpened. Aristotle underestimates the
fact that the polis enforces its norms. It is the legitimation of this enforcement that
is the primary task of reflection on political principles, and it is here that human
rights have their place; they are inalienable rights, which are not fully realized
without a public authorization to enforce them. For Aristotle, man was regarded
as a political being by nature, and as a consequence fundamental reflection on so-
cial theory took place as political philosophy. In the modern ageand here Kant
stands in the Hobbesian traditionthe ancient understanding is not rejected but
modified. The political nature of man becomes a juridical nature, and because a
public means of applying it is essential to the law as such, this juridical nature is
supplemented by a state, or, more precisely, a state-nature (Staatsnatur). Fun-
damental reflection on social theory changes accordingly, from an undifferenti-
ated political philosophy to a more precisely demarcated philosophy of law and
the state.
Finally, anyone who observes how Kant, in the Doctrine of Right, speaks not
only of the concept of law and its authorization to enforce but also of equity and
the right of necessity (Notrecht), of property, marriage, and family lawnot to
mention how he deals with the questions of what a book is and what money is,
and how beyond this he treats various kinds of contracts, and also constitutional
law, penal law, and the law concerning pardons and clemency, and even, finally,
the law of nations and world-citizensfor anyone who takes account of all this,
there can be no talk of a sad simplemindedness of ultimate conceptions.
As these counterarguments show, the fundamentalism debate takes us only to
the threshold of metaphysical discussion. This point holds when Kant calls his
metaphysics of law and right a systematic knowledge (DR VI:229/55) and
means by this a body of knowledge in which all parts hang together according to
necessary laws (cf. C1 A 832/B 860; DR VI:218/45). To discuss only the system-
atic ambition of metaphysics is not yet to penetrate to the core of what meta-
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64 Categorical Principles of Law

physical means with respect to categorical principles of law. What is essential

is that the principles should not have their origin in experience. With this idea,
Kant raises an ambition that is no longer quite so modest. While the first concep-
tion of metaphysics consists only in a question of reflection upon fundamentals,
the second conception contains a thesis about the sort of answer that will be
acceptable.
The exact form of this answer is, however, controversial. When Rawls denies
that his theory of justice is metaphysical, he wants to avoid ontological com-
mitments to such things as an intelligible world, which have long fallen victim to
Nietzsches mockery of the otherworlders. Now, it is true that he who is willing
to search patiently will find assertions of this kind in Kants text. In Perpetual
Peace (VIII:350/93) Kant claims that with the assumption of inalienable human
rights, man represents himself as a citizen of a supersensuous world. In the
conclusion of the Doctrine of Right he even says that a perfectly rightful consti-
tution among human beings is . . . the thing in itself (DR VI:371/176, emphasis
deleted). Assertions of this kind, however, have no legitimating but only an ex-
plicative significance. They do not justify the thesis that categorical principles are
indispensable for a moral legal order; their function rather is only to elucidate the
ontological status of these principles, which, it must be said, is no mean thing.
Although the ontological interpretation of categorical principles of law is en-
tirely worthy of discussion, it has only a secondary, explicative significance with
respect to the principles themselves. This is why expressions corresponding to
those cited above are found so seldom (and also not in central passages) in the
Doctrine of Right. My preliminary examination will remain true to the politics of
modesty and will, for the moment at least, dispense with the ontological interpre-
tation of the categorical principles.
Kants core thesis concerning the metaphysical character of the law consists of
two other assertions. In opposition to skepticism about the ethics of law and right,
he claims that the law rests upon moral principles, and in opposition to an empiri-
cist ethics of law and right, he takes the origin of these principles to lie beyond the
empirical realm. The legitimating ground of politics, qua the law and the state,
lies outside political experience; politics begins as metapolitics.
We tend to regard a nonempirical justification as an epistemological problem.
An experience-independent justification of morality is naturally fascinating and
provocative: fascinating because it attributes to pure reflection the capacity to dis-
cern moral principles of law and with them to give a clear orientation to all prac-
tical activity, and provocative because doubts about the possibility of doing this
are well entrenched. Kants slogan for a form of knowledge that is purely rational
is synthetic a priori judgments. An ambitious rehabilitation of metaphysics will
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Practical Metaphysics and Anthropology 65

defend this class of judgments; a more modest rehabilitation will consider the de-
gree to which it requires them.
For Kant, the categorical imperative is certainly an a priori synthetic practi-
cal principle (G IV:420/29); and in the Metaphysics of Morals he speaks of
a system of a priori cognition from concepts alone (MM VI:216/44). In the first
case, however, the point at issue is the connection of the will to an action (G
IV:420/29), and in the second case it is a universal law that each person has
within himself (MM VI:216/44). In both cases, therefore, Kant is concerned
with a practical phenomenon, and it is only because the phenomenon in question
excludes determination by experience with, once again, experience defined prac-
tically as an empirical ground of determinationwithout presupposing any
condition taken from some inclination (G IV:420/29)that the corresponding
knowledge therefore must also dispense with experience. So what goes for meta-
physical ontology goes also for the theory of rational knowledge: in ethics their
significance is subsidiary. The ethics of law and right is metaphysical in an origi-
nary sense, neither because it purports to think about the whole world or its ab-
solutely final ground, nor yet because it assumes an intelligible world or synthetic
a priori judgments, and it is certainly not metaphysical in virtue of making theo-
logical assumptions. The ethics of law and right is metaphysical because its ob-
jectmorality insofar as it concerns law and right (die Rechtsmoral)
transcends every empirical ground of determination. It is not the philosophy of
morality that is metaphysical, but morality itself.
Kant preserves the existential significance of metaphysics, but at the same
time weakens the importance of philosophy. In so doing he creates an essential
difference between him and Aristotle. Even if humanitys natural urge to know
does reach fulfillment and perfection in the knowledge of principles, and even if
theoria is a superior form of human existence, all this plays an insignificant role
in the realm of praxis. Practical metaphysics is not simply the theoretical meta-
physics familiar to us but applied to human practices. Practical metaphysics is
fundamentally different from theoretical metaphysics and is concerned with the
practical, not the theoretical, logos. The perfected form of practical metaphysics
is not theoria but moral judgment and moral action.
The highest form of practical humanity lies in the practice of morality. In the
case of the law it lies in a just legal and political order. Philosophy brings the phe-
nomenon of morality to conceptual clarity and enlightens moral consciousness
about its own nature, and it can also, by means of a criterion of morality, help
avoid mistaken judgments and self-deceptions. All of this is nevertheless only a
subsidiary achievement. The primary task falls not to the theory of morality but to
human praxis. It is here that the democratization of the theory of justice that
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66 Categorical Principles of Law

Habermas misses in Kant takes place. The chief expert on the metaphysics of
the law is not the philosopher involved in the attempt to provide morality with
ultimate foundations. Whether he argues semantically or pragmaticallyand, in
the latter case, whether in a universal or transcendental sensein any case, the
philosopher leaves the regal throne and becomes a mere adviser to the real
monarch, he who judges the law from the standpoints of justice.
The empirical side of the practical consists of drives, needs, and interests, and
its transcendence consists in the negation of these as ultimate grounds of deter-
mination. If one now understands the empirical needs and interests as impulses of
sensibility and assigns them to a phenomenal world, it then makes excellent
sense to speak of a noumenal world where these impulses are negated. Kants on-
tological interpretation of morality remains, therefore, worthy of discussion, but
it has only secondary significance for practical metaphysics. Insofar as the theory
of categorical imperatives of law takes leave, for the time being at least, of theo-
retical metaphysics, it fits happily into a program of ethics without metaphysics
or postmetaphysical thinking. Since the theory nevertheless includes another
sort of metaphysics, it becomes, to speak paradoxically, a metaphysics without
metaphysics: it becomes a practical metaphysics that renounces theoretical
metaphysics.
The idea of an ethics without theoretical metaphysics was not in any case in-
vented by Kant; it is already found in the work of the thinker whose writings on
fundamental philosophy were, belatedly, given the title Metaphysics. In the
Nichomachean Ethics (I.4), Aristotle first criticizes Platos theory of the Forms on
ontological grounds: he views it as a flimsy piece of theoretical metaphysics.
After this he begins anew, grants Plato the theory of the Forms for the sake of ar-
gument, and inquires into its genuinely ethical significance. His conclusion is as
brusque as it is radical: the Form of the Good is ethically irrelevant. Even if there
were a Good that was one and predicated generally or that existed separately in
and for itself, this would clearly not be the good for man that is investigated by
ethics (NE I.4, 1096b3235).
Philosophical ethics allows that human beings relate to the world in multiple
ways and concentrates on the practical relationship that is peculiar to its sphere of
application. It claims that there is a nonempirical dimension to this practical rela-
tionship, and to begin with it affirms this nonempirical dimension only with re-
spect to this particular way of relating to the world. We call the actual embodi-
ment of the satisfaction of empirical grounds of determination well-being, and
in the case of groups we call it social welfare or collective well-being. With
this formulation we have finally found the topic of the preliminary examination
proper and can move on to the second question: Is there for law and right a
ground of determination that transcends collective interests, or social welfare?
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Practical Metaphysics and Anthropology 67

4.2. A Moral Anthropology

In his systematic writings on ethics Kant deals with two clearly distinct tasks. On
the one hand he investigates the concept and principle of all morality, the general
categorical imperative. On the other hand he develops in a doctrine of right and a
doctrine of virtue a system of substantial moral obligations. He believes that
both tasks are to be solved metaphysically, that is, purely rationally. Since the sec-
ond task follows upon the first, Kant recognizes, from a systematic viewpoint, a
primary and a secondary metaphysics. The ethics of law and right belongs to the
secondary metaphysics; its theory of categorical imperatives of law is built upon
the foundation of the general categorical imperative.
According to their prefaces, the first two of the three systematic works on
ethics published by Kant, the Grounding and the Critique of Practical Reason,
are concerned exclusively with primary metaphysics. It appears accordingly as if
the ethics of law and right will be dealt with only in the corresponding portion of
the Metaphysics of Morals, the Doctrine of Right. A closer investigation shows
this division to be too simple. True, the Grounding proposes to occupy itself with
nothing more than seeking out and establishing the highest principle of moral-
ity (G IV:392/5). Similarly, the second Critique seeks only to find and deter-
mine the a priori principles of the faculty of desire in order thereby securely to
lay the ground for a systematic practical philosophy with the character of a sci-
ence (C2 V:12/10). Despite these intentions, the foundational writings on ethics
venture beyond primary metaphysics in one important respect. In the extensive
examples of the Grounding and in the far briefer indications of the Critique of
Practical Reason, Kant concerns himself already with the secondary metaphysics
whose systematic treatment he had reserved for the later Metaphysics of Morals.
It is the second example given in the foundational works, that of the false
promise, that is relevant to the realm of law and right. In the Grounding, and also
in the second Critiques variation of the example, the deposition, Kant construes
the false promise as a case of dishonesty to another, and, beyond this, a case of
dishonesty that aims to take from another what is his. He anticipates in his discus-
sion the legal institutions of contracts and property. In the example of the false
promise, Kant not only anticipates the later Doctrine of Right, he also makes its
program more precise. In principle, the ethics of law and right could restrict its
metaphysical ambitions to the imperative of law in the singular. In this way, the
provocation of the program would be reduced, but so also would its fascination,
since it would be able to provide orientation only with respect to law and justice as
such, leaving the shape of substantial juridical principles to empirical-pragmatic
thinking. With the juridical example in the foundational writings, Kant hints at the
more ambitious program of categorical imperatives of the law in the plural.
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68 Categorical Principles of Law

Someone who thinks that a morality of law and right, because it is metaphysi-
cal, must renounce empirical elements root and branch can easily show two
things: first, that Kant without doubt set out to fulfill the program of a com-
pletely isolated metaphysics of morals, free of any admixture of anthropology
(G IV:410/my translation), and second, that he just as doubtlessly overextended
himself in this enterprise. Already in the examples of the Grounding, elements
appear that can in the end only be identified empirically. These elements are in-
deed of a general nature and beyond this are hardly controversial. All the same,
they do fall under the rubric of that empirical anthropology Kant never tired of
excluding from a metaphysical ethics (G IV:388/2). A twofold knowledge of this
empirical sort is involved in the case of the false promise (see Chapter 7 below
for more on this topic). It is not only the story Kant tells (of a man in dire straits
who can be helped out of them by others like him) that depends upon empirical
knowledge, but also the argument he develops; for the knowledge that he who
promises thereby gives his word and can give his word insincerely is not of a
purely rational kind.
Because of these empirical elements Kant seems obviously to fail in his stated
objective. Instead of an ethics wholly cleared of everything which can only be
empirical and can only belong to anthropology (G IV:389/2), Kants ethics needs
empirical anthropology to play an essential role; and it plays this role not only in
the secondary but also in the primary metaphysics of morals. That the moral law
constitutes for us a duty, that it confronts us as a categorical imperative, also pre-
supposes a twofold experiential knowledge. It presupposes that there exist beings
to whom one can ascribe a faculty of desire with that relationship to itself that is
called practical reason or will, and that the will of these creatures stands under
certain subjective restrictions and hindrances (G IV:397/9; cf. C1 A 15/B 29).
According to this anthropology from a fundamental ethical perspective, man is
a rational natural being that can be tempted by desires and inclinations. Moreover,
he has the potential for evil; for Kant indeed he has a predisposition to it.
Insofar as the Grounding anticipates the second level of moral philosophy, it
supplements the anthropology from a fundamental ethical perspective with cer-
tain elementary situations that put practical reason to the test. These situation
types are, in the case of the prohibition against suicide, weariness of life; in the
case of the prohibition against false promising, ones own distress; in the case of
the duty to help others, the distress of another; and, in the case of the duty to cul-
tivate ones talents, sloth.
That Kant fails to achieve a metaphysical ethics might be regarded by some
critics as a merit. Such critics had feared that the philosopher of the categorical
imperative was seeking, as Tugendhat puts it, to free morality as a whole from
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Practical Metaphysics and Anthropology 69

all contamination with the empirical (Tugendhat 1984, 87). Instead of this, they
now find a colorful bouquet of empirical elements. Kants ethics, including the
ethics of law and right, appears more plausible than expected, albeit less provoca-
tive. The allegedly pure moral philosophy is in fact shot through with anthropo-
logical assumptions. If one investigates Kants task more thoroughly, however,
the contradiction is resolved. Although an appeal to anthropology is indispens-
able for Kants argument, it plays no role in the concept of moral obligation. An-
thropology is used only to define the challenge without which the moral impera-
tive has no function; it leaves the content of the imperative itself entirely open.
That which the critics bemoan as a false trail and which Kant boasts of as a
great merit, the cleansing of morality from everything empirical, restricts itself
to the aspect of morality that is brought into relief by a practical metaphysics.
Kant himself introduces the aspect as an argument; it is the ground of obliga-
tion (G IV:389/2). The question whether it makes sense to define man by practi-
cal reason is already, though not exclusively, an empirical question. But what
experience decides is not what the concept of practical reason is, but with what
right it can be ascribed to humanity. If we had no right to ascribe practical reason
to man, it would follow, not that the concept had changed, but that it lacked
application.
We also need experience, and beyond this creative imagination, in order to dis-
cover the nature of the typical situations with which people must reckon and the
possibilities for reaction that they offer. Empirical elements, therefore, are con-
tained in categorical imperatives through and through. But which of the sug-
gested and tentatively considered reactions is moralthat, Kant holds, is no
longer empirically conditioned. In short, finding maxims requires experience; but
in order to hit upon the moral choice among them, a moment that goes beyond all
experience is needed.
Because the anthropological elements define the conditions of the application
of morality, one can take them to be part of a moral anthropology. Nevertheless,
it will not correspond to the branch of research that Kant himself calls by that
name, the anthropology he introduces as the other member of the division of
practical philosophy as a whole and accepts as the counterpart of a metaphysics
of morals (MM VI:217/44). For Kant, what is involved in a moral anthropology
is a philosophically subordinate task that we might more aptly call moral peda-
gogy. Kants moral anthropology presupposes moral principles as already deter-
mined and investigates only the subjective conditions that impede or foster their
execution. The new and anti-Kantian sense of moral anthropology that I am
introducing here belongs to the indispensable stock of the metaphysics of morals
itself. Not a counterpart to the metaphysics of morals, but a part of it, the moral
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70 Categorical Principles of Law

anthropology in question is of primary, not secondary, significance. It is indeed an

integral element even of fundamental ethics.
With this concept of a moral anthropology that is essential to moral philoso-
phy, we gain a first result for our second question. Even if Kant is correct to de-
mand a metaphysics for ethics, he overestimates its scope. The program that he
develops in the preface to the Grounding and confirms in the Introduction to the
Metaphysics of Morals (MM VI:21120/4345) proves not to be formulated pre-
cisely enough, and the missing precision explains certain misunderstandings. In-
tensely concerned to protect the purity of morality from the stain of any foreign
elements, Kant draws a sharp boundary line between the rational and the empiri-
cal realms, and this tactic may enable him to do justice to the origin of moral
obligation. But he is deceived when he thinks that the entire philosophy of moral-
ity is purely rational; in truth, experience is required as well.

Moving from the Grounding to a less demanding level of understanding, we

would expect that the metaphysical portion of the Doctrine of Right would be cor-
respondingly slighter than that of the foundational text. Granted, Kant here no
longer speaks simply of metaphysics, but more modestly of metaphysical first
principles. Only the principles of law qualify as metaphysical; their concretiza-
tion is left to empirical legal practice. Even this assessment, however, overesti-
mates the achievement of metaphysics and diminishes the importance of experi-
ence. Kant believes that all propositions of law and right are a priori
propositions, since they are laws of reason (dictamina rationis) (DR VI:249/my
translation). To be sure, ethics does fall back on the particular nature of human
beings, which is cognized only by experience, but it does so only where what
can be inferred from universal moral principles is at issue (DR VI:217/42). In
fact, though, anthropological elements enter already into the principles them-
selves. Whether we consider the categorical principles of law in the singular or in
the plural, it is their genuinely moral portion alone, that ground of obligation that
transcends needs and interests as the ultimate ground of determination, that is in-
dependent of experience.
A preliminary examination already confirms this expectation. We find in Kant
a twofold counterpoint to the empirical and pragmatic considerations that domi-
nate current thinking about law and right. In addition to the moral element (taken
as a metaphysical element), the categorical principles contain once again the
building blocks of a moral anthropology. To the degree to which the Doctrine of
Right grounds them, human rights flow from the mediation of the idea of moral-
ity with just this anthropology. The moral anthropology of law has its systematic
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Practical Metaphysics and Anthropology 71

place behind the anthropology of fundamental ethics. In total, Kants ethics of

law and right has three layers of anthropology.
The first layer belongs to the general categorical imperative. The fundamen-
tal ethical anthropology preliminary to matters of law and right takes man to be
a finite rational being subject to temptation through inclination. Joined to the idea
of morality, this level yields the categorical imperative that is neutral with regard
to the difference between virtue and the law.
The second level has to do with Kants unconditional first principle of justice,
the categorical principle of law in the singular. This, the anthropology of law in its
general part, states the conditions under which the law is needed at all. In essence,
it consists of a doctrine of what makes up the social nature of man. The general
anthropology of law is nothing other than the most general social anthropology.
And because the general ethics of law and right needs no further anthropological
presuppositions, it acquires, as we shall see (5.3 below), the status of a funda-
mental social philosophy.
The social anthropological fact presupposed by the imperative of law in the
singular is as simple as it is uncontroversial: the natural rational beings in ques-
tion appear multiply in the same external world. Although this assumption is em-
pirical in nature, it does not call into question the categorical character of the
imperative of law, for it has no legitimating force. In the absence of coexistence
among natural rational beings, the categorical imperative of law would not give
up its obligatoriness, but would instead lose its applicability and become a moral
fiction. Nevertheless, the assumption is indispensable for the applicability of the
imperative. For this reason, the categorical imperative of law contains a twofold
claim to validity: in addition to the moral claim, there is the empirical claim: that
natural rational beings must coexist. In the empirical portion of the categorical
imperative of law lies, furthermore, the ultimate reason for which humans must
live with the possibility of conflict. People share the same living space, and be-
cause this space is limited, every action has, in principle, consequences for others.
The categorical imperative in the plural distinguishes itself from that in the
singular through its further empirical claims to validity. The third level, the spe-
cial anthropology of law, supplements the general anthropology of law. Viewed
systematically, the special anthropology of law begins with an element that is
given peculiarly short shrift in Kants Doctrine of Right: the fact that humans
have bodies that are susceptible to injury at the hands of their peers. Only if this is
presupposed does it make sense to talk of a human right to life and limb.
Kant begins with mine and thine in the external sense, that is, with the institution
of property. For the legitimation of property, he presupposes certain specifications
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72 Categorical Principles of Law

of the bodily nature of man. The institution of property is intelligible only because
man, as a corporeal being, needs a certain amount of space in which to live and also
goods to satisfy his needs and interests. Kants theory of marriage law rests in turn
on the fact of human sexuality, and his theory of family law on the fact that new-
borns are nestlings that require divers kinds of assistance for a prolonged period.
His account of family law presupposes as well that no one has put himself into this
state of helplessness. All of these elements are again empirical and in addition in-
alienable for the categorical principles of law. Nevertheless, they determine no
more than the conditions of the application of these principles.
Moral obligation itself is grounded in a meta-anthropological element, in the
demand to shape the anthropological conditions in a moral fashion. It is for this
reason alone that categorical principles of law acquire a metaphysical character.
Because moral principles carry with them an absolute necessity, their obligatori-
ness must be sought, a priori, solely in the concepts of pure reason (G IV:389/2).
As with the case of the general categorical imperative, here too it is only the
ground of obligation that proves to be independent of experience. All else is ma-
terial, with the methodological significance of empirical facts that receive their
characteristic form through the idea of the unconditioned good. Beginning with
those elements of the human condition that define the conditions of the application
of morality, and continuing through the conditions that determine specific princi-
ples of law and right, ethics is determined by an ever richer body of empirical ma-
terial. Skeptics will be satisfied to see that the categorical imperative does not re-
quire one to repair to the single place one feared it could be encountered, to the
realm of the utterly principled, to transcendental cloud-cuckoo-land (Marquard).
Not even the general categorical imperative is purely a priori, and a good deal
more from the realm of experience enters into the categorical principles of law.
The three levels of a metaphysical ethics oriented toward the lawfundamen-
tal ethics, the general and the special ethics of laware not distinguished from
each other by differing degrees of moral obligatoriness, which is the same in
each case. From a conceptual or metaethical point of view, a highest level of
obligation is at hand: what is demanded, viewed criteriologically or from the
standpoint of normative ethics, is universalizability. A difference in moral rank
ordering could, however, result from the differentiation, immanent to morality, of
perfect and imperfect duties and of duties to oneself and duties to others. Since,
however, duties of law and right in the moral sense all belong to the same class,
that of the perfect duties owed to others, the possibility of constructing a hierar-
chy of levels of morality in this way does not obtain. Beyond this, moral obliga-
tion is metaphysically identified in the same way: through the thought experi-
ment of universalizing.
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Without doubt, the ethics of law and right has divers ambitions. Assuming that
the rigorous concept of morality, and therefore the component of it that is inde-
pendent of experience, is recognized, the differences will not lie in the amount of
independence of experience. It is rather within the moral anthropology that dif-
ferences between more and less fundamental elements will be found. Because life
and limb have priority over property, murder, an offense against life itself, can
count as morally more serious than an offense against property; but the grounds
of the greater seriousness are anthropological, not moral.
At this point, the criticism of the self-ascribed philosophical modesty espoused
by Habermas can be made more precise. With his turn to discourse ethics, Haber-
mas wants, not to abandon the theoretically guided critique of society, but to ex-
pand its possibilities. Insofar, the not a judge but an interpreter thesis must be
considered inconsistent with his fundamental aim. Now, one expects from an
ethics intended to expand a critique of society that it will identify certain human
rights or other substantial principles around which the critique of society can be
oriented. The absence of such principles in Habermas is explained, not by his
more rigorous abstention from all metaphysicshe still presupposes the idea of
the morally goodbut by his failure to include a complementary anthropology.
In his Notes on a Program of Justification (1990b, 103), Habermas indeed
comes close to arguing for a situationist ethics. He regards the desire to conduct a
practical discourse . . . without the horizon of the life-world of a particular so-
cial group and without practical conflicts in a particular situation as pointless.
In truth, there are fundamental practical discourses that precede the situation-
relative discourses. These fundamental discourses are conducted exclusively
within the horizon of the life-world of the group Homo sapiens, and they thema-
tize only those conflicts of action that are given with the human condition. From
these fundamental discourses flow the elementary principles of justice, human
rights at the forefront. Those who, on the contrary, follow Habermas in erecting
only one foundational norm and tying its application, the carrying out of practi-
cal discourses, to the social conditions that happen to hold sway are denied this
possibility of a substantial orientation.
Human rights, such as the right to life and limb, admit of various anthropolog-
ical justifications. In a naturalistic anthropology such as Hobbess, life is a goal to
which men give priority over all others; it is, as a matter of fact, a dominant de-
sire. The actuality of religious and political martyrs, along with the Friesian
motto lewwer duad as slaav (better dead than a slave) and a suicide out of weari-
ness with life, speaks against this hypothesis. Rawls weakens Hobbess natural-
ism by taking life to be a condition of life plans, which is interpreted moreover
simply as one condition among others. Rawls has not, however, explained the
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74 Categorical Principles of Law

precise nature of this condition. As I have suggested elsewhere (Hffe 1988a,

63 ff., and PJ chap. 12), the explanation required should take the following form.
Even one who is not especially attached to life has, consciously or uncon-
sciously, an interest in it. He has this interest because without life he can neither
desire anything nor strive to fulfill any desires he might have. Life is a presuppo-
sition of practically oriented desire, and therefore a condition of the capacity to
act, independent of the content of that for which one strives or which one avoids.
According to this argument, life is a higher-order interest; indeed it is a highest-
order, no longer substitutable interest. As a condition of the possibility of mans
being a creature that can act at all, life has a transcendental significance, albeit a
transcendental significance that is not theoretical but practical; what is made pos-
sible is not the knowing but the acting subject. In this sense, he who contemplates
taking his own life wants to decide himself whether and when he is weary of life,
and the religious or political martyr wants himself to decide the cause for which
he sacrifices himself, a sacrifice he wants to make in order to remain true to his
convictions, and not, for example, in order to be killed by robbers.
In the special anthropology of the law, the point is not to give a naturalistic de-
finition of the essence of humanity but to identify those elementary and at the
same time not substitutable interests that have a transcendental significance rela-
tive to the capacity to act. One can, if one likes, somewhat ambitiously call this
part of the metaphysics-supplementing anthropology a transcendental anthro-
pology. By contrast, the fundamental anthropology of law rests on a contingent
fact: humans must share the same external world with their peers.

4.3. Aristotle or Kant?

Because Kants ethics of law and right cannot get by without an anthropology,
there is a certain contradiction between the program of this ethics and its actual
execution. This contradiction is, however, more subtle than that between meta-
physics and the empirical. According to the program, a pure a priori must stand in
the middle of ethics. A moment of this sort, independent of any anthropology,
does indeed appear in Kants theory. It is the idea of a good without qualifica-
tion, that is, an unconditioned good. Kant speaks, for example, of an intrinsic
unconditional worth (G IV:394/7) and of a good in itself (IV:396/9), and he
traces its profile by contrast as well. But he does not turn the idea into an object of
investigation. Beginning with the famous opening sentence of the Grounding
(IV:392/7), the idea is presupposed, but it is just as little thematized as the anthro-
pological a posteriori.
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Practical Metaphysics and Anthropology 75

In Ethics and the Limits of Philosophy (1985), Bernard Williams develops an

antifoundational and antireductionist ethics. He holds that there exists neither a
group of moral categories that are foundational for all human activity nor a pro-
cedure for tracing back all moral thinking to a group of categories of that sort.
Neither view is consonant with Kants outlook. In his work we find a concept that
is foundational for all moral practice. This concept is, however, much more for-
mal than one tends to expect such a concept to be, and it is seldom treated at this
level of formality. With the pathos of Martin Heidegger, we might say that we are
not yet thinking the origin of morality deeply enough; it lies not in the good will,
but in the unconditioned good.
Kant concerns himself exclusively with that relative a priori that results from
the mediation of the unconditioned good with the moral anthropology. Kants eth-
ical thought needs in this respect to be newly evaluated. The sharp contrast set
forth in the program, the opposition between the a priori and the a posteriori, is
superseded (aufgehoben) in the execution. To be sure, Kant himself had noted this
in the first Critique. In a passage that remains in the second edition of the work,
which appeared after the publication of the Grounding, he affirms that the
supreme principles of morality and their foundational concepts are known a pri-
ori, while at the same time acknowledging that they contain in themselves
something empirical, [namely] the concepts of pleasure and displeasure, of de-
sires and inclinations and so forth (C1 A 14/ B29). But in the formulation of his
program for ethics, Kant did not make allowance for this insight. The idea of a
pure moral philosophy developed in the preface to the Grounding does not draw
attention to the connection between the a priori and the a posteriori.
This deficiency should not be overestimated, for it concerns only the formula-
tion of the program. A more consequential deficiency is Kants failure to notice
that ethics includes a moment that is wholly independent of anthropology and the
empirical realm. This moment escapes his attention not only in the formulation
but also in the execution. In the first Critique, Kant includes in transcendental
philosophy exclusively the worldly wisdom of pure, entirely speculative rea-
son. His reason for excluding practical reason from transcendental philosophy is
its above-mentioned combination of the empirical and the a priori: for every-
thing practical rests upon feelings, which are empirical sources of knowledge
(C1 A 15/B 29). Ethics could, however, enter into that transcendental philosophy
that deals with the absolutely pure a priori. The idea of the unconditioned good is
not concerned with feelings, but is nevertheless concerned with the practical; the
idea gives us the highest possible form of evaluating practice.
Because the idea of the unconditioned goodand in the realm of the practical
this idea aloneis purely a priori, there is indeed a practical transcendental
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76 Categorical Principles of Law

philosophy, and it is coextensive with that part of ethics that is metaphysical in

the strict sense. The idea of the unconditioned good forms the genuine first level
of Kantian morality, not, as we assume as a rule, the general categorical impera-
tive. Kant himself presses this level into service, but he manages at best a frag-
mentary justification of it.
A thorough justification of this first level of morality would have to show why
anyone who evaluates human practices thereby raises a question that reaches
completion only in the idea of the unconditioned good. In accordance with the
idea of a transcendental critique, the justification would proceed in two stages.
The metaphysical argument in a narrow sense shows that to evaluate something
as good in an unconditioned way surpasses all empirical grounds of determina-
tion; the transcendental argument establishes that the idea of the unconditioned
good is a condition of practical objectivity. Kant did undertake the beginnings of
such a justification, for he showed that the question of the rationality of action, al-
though it begins with technical and pragmatic rationality, cannot be satisfactorily
answered with these concepts alone. Furthermore, the third level of rationality
that is neededthat of presuppositionless and therefore categorical obligation
is not in turn susceptible to being outstripped. Because an obligation of this sort
transcends all empirical grounds of determination, it has on the one hand a pre-
empirical, indeed metaphysical, character. On the other hand, what makes a
preempirical ground of determination possible is that a practice is objective in a
rigorous sense, that is, necessarily and without exception valid. In the on the
one hand, the metaphysical argument is signaled, and in the on the other hand,
the transcendental argument.
Since this double argument lies beyond the bounds of the idea of a categorical
imperative of the law, a closer examination of it does not come within the
purview of this study. A brief reference to an important present-day Kantian,
namely Rawls (see 11.2 below), will nevertheless not be out of place. Rawls takes
his theory of justice to be both Kantian and nonmetaphysical. He derives his prin-
ciples of justice from a rational choice, and therefore from self-interest. Since
self-interest is nothing other than the epitome of empirical grounds of determina-
tion, these principles do appear to be nonmetaphysical. The choice, however,
takes place under ideal conditions. The most important of these is a paucity of
knowledge. In accordance with the veil of ignorance, one is to know neither ones
personal situation nor that of the society in which one is to live. As a result, the
ground of determination lies in a self-interest that lacks all knowledge of self.
What is left is a self-interest defined by the negation of the self, a self-interest
without a self, or a general interest that as such is no longer empirical in nature.
Against his own desire, Rawlss theory of justice is metaphysical, albeit only in
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Practical Metaphysics and Anthropology 77

the practical sense. Whether this practical metaphysics can dispense with Kants
doctrine of the two worlds, which is what concerns Rawls (cf. Rawls 1975), is, I
have suggested, a question that can be left open.
The customary thesis is that metaphysics is impossible, or at least has long been
left behind. Kant, by contrast, holds that metaphysics is necessary. In the Prole-
gomena (IV:367/121) he goes so far as to compare its necessity with that of drawing
breath. This comparison, which looks at first like a wild exaggeration in the case of
ethics, appears now as at most a moderate hyperbole, a rhetorical intensification.
The idea of the unconditioned good, which is indispensable for the strict concept of
morality, belongs namely to practical metaphysics. At the same time nothing more
than this idea belongs to practical metaphysics. By contrast, the moral philosophy
worked out by Kant mediates the idea of the unconditioned good with a moral an-
thropology; it consists of a relative a priori and a relative metaphysics (cf. C1 B 3,
where Kant distinguishes between a pure and an impure a priori).

A comparison with Aristotle confirms the nonmetaphysical elements in Kants

moral thought and shows at the same time where the real differences between an-
cient and modern ethics lie. The two epochs are not distinguished by the idea of
the unconditioned good itself. Aristotle lays claim to it as well as Kant. In each
epoch, however, the idea is connected with a different anthropology and theory of
action. The unconditioned good takes on a different shape according to the struc-
tural model of action that underlies it. If, with Aristotle, one understands action as
a spontaneous dash toward a goal, as a striving (orexis), then the idea of the un-
conditioned good will demand that orientation toward a goal be extrapolated to its
complete fulfillment. The unconditioned good will become a goal that cannot be
outstripped for reasons of principle; it will become happiness in the sense of a ful-
fillment of all striving as such.
When Aristotle identifies happiness as telos teleiotaton (the most complete
goal), he thinks of it as something analogous to what will later be called the onto-
logical concept of God, as an absolutely highest. For Aristotle, however, happi-
ness is not the highest in the sense of an object, it is not that entity than which
none greater can be thought, but rather the highest of everything desired. In
Aristotles formal determination, happiness is the concept, formed by way of
increasing generality, of a goal beyond which no further goal can be thought
(cf. NE I.5). Once again we have a metaphysical concept, but once again it is
metaphysical only in the sense of a genuinely practical metaphysics, which
corresponds to a preempirical ground of moral action.
If one is to interpret human action as striving, one must presuppose certain
goals, which are determined either by natural needs and passions or by lived
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78 Categorical Principles of Law

morality and custom. In moral phenomena such as a protest in the name of human
rights, preexisting goals become matters of choice rather than unreflective as-
sumption. An occurrence of this sort issues from a distance between oneself and
ones striving and founds the modern concept of the will. For the law, the relevant
concept is that of the general will. In a world that has freed itself from the cosmi-
cally centered thinking of the ancients, it is through the will that possible goals
become actual ones and that some goals are accepted and others rejected. In this
way the will is responsible for founding a political order, which, as the case may
be, is morally legitimate or illegitimate.
Supporters of affirmative critique have been trying lately to play common
customs and habits (in other words, Aristotle) off against universal principles (in
other words, Kant). Marquards defense of the commonplace and everyday
(1991, 11318) helps us to assess more precisely the difference between an ethics
oriented around striving and an ethics oriented around the will. Insofar as a striv-
ing-oriented ethics is mediated by lived morality and custom, Marquard appeals
to Aristotle with good reason. On the other hand, we found in Aristotle (2.2
above) a judicative critique in the form of the distinction between the just and the
unjust. Viewed systematically, this distinction, which unfolds on various levels,
begins in ethics with things already given, with habits or a system of habits, a
form of life. Since he is not, as a philosopher, responsible for positive distinc-
tions, Aristotle bypasses the details of such habits and forms of life. What inter-
ests him is the relatively suprapositive question, Which forms of life make a suc-
cessful life possible, and which forms are condemned to failure for structural
reasons?
Since this distinction between successful and unsuccessful lives bridges the
beginning of the Nichomachean Ethics (NE I.2) with its end (X.68), Marquards
either-oreither common customs and habits, and then Aristotle, or universal
principles, and then Kantis shown to be too simple, not only from the point of
view of systematic moral philosophy but also from the point of view of Aristotles
text. Before he undertakes the enterprise to which he is supposed to lend his
authority, that of defending a substantial moralitytranslated into todays terms,
before he sets himself against Kant and discourse ethicsAristotle carries out a
critique that is at once judicative (that is, concerned with judgment) and supra-
positive. He rejects the life of pleasure and luxurious consumption, as well as the
life of business, the spirit of capitalism as it might be called, but legitimates the
moral-political and the theoretical forms of life.
Now, Marquards concern is ultimately not the interpretation of a classical
philosopher but the systematic discussion of ethics. In this context, his apology
for the commonplace and everyday could either fit into an ethics oriented around
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Practical Metaphysics and Anthropology 79

the will or could free itself of such an ethics. In the first case, Marquard would ac-
knowledge the modern concepts of the moral subject and political legitimation,
but would argue that if moral principles are to be more than mere words, they
must provide stability. For the people who hold them, moral principles must
acquire the fixity of moral stance and attitude that used to be called virtue. With
regard to the law and the state, Marquard supports institutional precautions,
above all else a division of powers.
But someone in search of this double stabilization need not make special ap-
peal to Aristotle or set himself against Kant. For it is maxims, that is, rules of ac-
tion that have become fundamental attitudes, that are tested for morality by
Kants moral principle. And Kant, in his ethics of the state, is no less in favor of a
division of powers than is Marquard. In addition, a defense of the commonplace
and everyday must be supplemented by a defense of moral rightness. For the
point is not that any arbitrary custom should be in place but, for example, that it
should be usual and normal to be prepared to help others rather than to be indif-
ferent to their plight. With regard to a juridical order, matters such as the permis-
sion or prohibition of slavery and the protection or suppression of freedom of
opinion and expression are decisive. Marquard indeed lacks a criterion of moral-
ity altogether and thereby retreats not only behind Kant but also behind Aristotle.
Indifferent to the question of morality, Marquard actually practices what Luh-
mann erroneously claims to be a mark of the modern: a clear release from moral-
ity. In Aristotles doctrine of virtue we find, to the contrary, a moralizing of the
commonplace and everyday. With the distinction between moral and nonmoral
fundamental attitudes, Aristotle engages in the critique of forms of life; and
although in the Politics he does hold slavery to be legitimate, in the so-called doc-
trine of the forms of state he argues against a morally neutral state and on behalf
of a constitution committed to the common good. In short, Marquards defense
of the commonplace and everyday does not have the central property ascribed to
it by admirers and detractors alike, for it simply is not Aristotelian, not even
neo-Aristotelian.
With categorical principles of law, Kant raises the moral standards required for
political legitimacy. Beyond the principle valued by Marquard, the division of
powers, he supports a second normal custom, human rights. The notion of
human rights brings with it a more precise sense than Aristotle had of what in an
elementary sense is to be understood by the idea of the common good, namely,
a general good that is distributive, not collective, a good that benefits each indi-
vidual. This distributively general good consists, for example, in rights that are
valid for each human being simply in virtue of being human. By comparison with
the political principle so highly esteemed by Marquard, that of the division of
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80 Categorical Principles of Law

powers, human rights are to be ascribed a systematic priority. For states owe their
legitimacy above all to their ability to guarantee human rights, while the division
of powers has the important but subsidiary task of diminishing the danger of the
abuse of state power.

To return to the difference between Aristotelian and Kantian ethics, it does not lie
in their metaphysical components. In both cases, for Aristotle as much as for
Kant, metaphysics plays a role in ethics primarily in a practical, not a theoretical,
sense. And both philosophers subscribe to the same modest metaphysical idea,
that of an unconditioned good. The difference between the two outlooks, by con-
trast, lies in the realm of anthropology and the theory of action. Aristotle here rep-
resents the ancient conception of practice as oriented toward the absolutely high-
est goal, while Kant is on the side of the moderns who think of practice from the
point of view of an absolutely first beginning. There are good reasons to try to re-
habilitate Aristotles ethics; but because of the difference just noted, it can, as a
premodern ethics of striving, be rehabilitated only at the cost of giving up the
concept of the will. Not even the great neo-Aristotelian Hegel was prepared to
pay this price.
For Aristotle, as for Kant, it is only the ground of obligation, the idea of a high-
est level from which practice is judged, that is truly independent of experience.
Everything else within Kants ethics is interwoven with experience. In no way
does Kant take leave of reality. Experience in Kantian ethics begins with the con-
cept of the will, is included in the concepts of duty and the categorical imperative,
and leads finally to the substantial principles of law and virtue. In the categorical
imperativeAct according to universalizable maxims!the purely rational ele-
ment, the ground of obligation, is restricted to the universalization. The two other
elements, by contrast, the imperatival character itself (Act according to . . . !)
and, more clearly still, the object of universalization (according to . . . maxims),
depend upon a certain sort of experience. The experience in question is certainly
of a very general character and permits philosophers, without laying claim to
a privileged access to the truth, and within limits to be sure, to be experts on prin-
ciples of justice.

4.4. The Integration of Experience

Because it is connected to an anthropology, metaphysical ethics is able to defuse

a number of objections. Even so, certain reservations remain, and they are di-
rected precisely at the metaphysical side of the package. It is, for example, feared
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Practical Metaphysics and Anthropology 81

that an experience-free examination of maxims underestimates the complexity of

human action and encourages that self-satisfied moralism that is open neither to
ones own experience of life nor to the arguments of ones peers. Instead of taking
in with ones natural thirst for knowledge the colorful multiplicity of the world,
one hurries too quickly to principles, and with the help of principles, one tends all
too readily to play the judge, and that leads to hasty judgments and condemna-
tions (cf. Lbbe).
One part of this objection becomes untenable as soon as one distinguishes two
levels of application of the categorical imperative. These two levels correspond to
the two fundamentally different meanings given to the term application in the
preface to the Grounding. On the first level, moral duties are justified with the
help of universalization, for example, the injunction to help others (G IV:392/5).
On the second level, duties are contextualized, so that, for example, the injunction
to help others will be concretized in a manner appropriate to a particular situation
(G IV:389/3). While Kant allows no empirical knowledge to enter into the first
level, the thought experiment of universalizing ones maxim, he demands for the
second level of application a power of judgement sharpened by experience
(G IV:389/3). It is precisely this demand that contradicts self-satisfied moralism.
Because duties require contextualization, the categorical imperatives orienta-
tion toward action is weakened, and metaphysical ethics is unable to free a moral
conduct of life from uncertainty. One might find in the remaining uncertainty a
diminished attractiveness. The categorical imperative, according to a popular crit-
icism, is abstract and distant from life. In fact, it is distinguished by just the sort
of precision that is appropriate to practical philosophy.
The concept of this sort of precision stems from Aristotle; once again the
widely accepted alternative Kant or Aristotle needs to be relativized. In the
Nichomachean Ethics (I.1, 1094b), Aristotle mentions a particular form of knowl-
edge, the draft-sketch or outline (tupo) knowledge that brings invariable norma-
tive elements into relief while at the same time putting into play historical and
individual particularities, that is, the ever varying circumstances of life (cf. Hffe
1971, pt. 2; PJ 2.2). Because the job of the categorical imperative is simply to
identify principles or maxims as moral, leaving to action itself the task of trans-
lating them into concrete practice, Kant also contents himself with an outline
knowledge. With this outline knowledge Kant draws attention to a kernel shared
by all moral practice and yet escapes the danger of understanding moral action
exclusively as something universal. Because moral maxims give no more than an
outline, they offer a pointed challenge to the other moment, the unmistakable in-
dividuality (and it is in this way that Kant escapes the Lyotardian critique of the
concept of the universal).
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82 Categorical Principles of Law

The connection to action is in any case tighter for the class of duties to which
the categorical principles of law belong, the perfect duties, than it is for the im-
perfect duties. While the law prohibits individual actions, so that, for example,
each and every false promise falls under the prohibition against false promising,
imperfect duties only enjoin certain attitudes toward life, for example, the readi-
ness to help others. Because of this difference, a different amount of experience is
required in each of the two cases, from which it follows that earlier accounts of
Kants concept of a maxim (Bittner 1974 and Hffe 1987, both having recourse to
Hffe 1971) must be modified. In the case of perfect duties, the power of judge-
ment sharpened by experience is needed for only two things, partly in order to
distinguish in what cases they are applicable, and partly to gain for them access
to the human will (G IV:389/3). In the case of the imperfect duties, by contrast,
experience serves also to contextualize the duty.
In Hegels essay on natural law, he rejected the categorical imperative as a
production of tautologies. Max Scheler speaks of an empty and barren formal-
ism (1973, xxiii), and both criticisms have often been repeated since in many
variations. In order to escape this criticism and to ground a material ethics by
Kantian means, one is naturally attracted to the formulation that Kant himself
calls material. But however interesting this formulation, of man as an end in
himself, is, it too is insufficient to ground a truly material ethics. This point holds
both for the anticipations of the Metaphysics of Morals in the examples from the
Grounding and for the Metaphysics of Morals itself: if duties of right and virtue
are to be justified, the categorical imperative must be mediated by anthropologi-
cal elements, and if one makes appeal to these anthropological elements, one will
find a material ethics also with the aid of the formal formulation of the categori-
cal imperative, the formulation of sheer universalization or natural law. The point
can be formulated in terms closer to Hegels: in categorical principles of law is
and ought are gathered in an original unity, and because the ethics of law and
right has no object other than this unity, it must attend to both aspects, to the nor-
mative as to the anthropological.
Since this new interpretation of Kant holds that the moral perspective is com-
bined with an anthropology, it also fulfills the demands made on ethics by the the-
ory of knowledge. In order to avoid the fallacy of inferring from an is to an ought,
Kant argues from more than merely empirical premises, while he appeals to more
than normative ethics in order to escape a moralistic fallacy. So the objection
made by Ernst Tugendhat against Kants ethics in general, and by H. G. Deggau
(1983, 109) against his ethics of law and right in particular, can be defused. A phi-
losophy of the categorical imperative can quite well integrate experience into
moral theory.
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Practical Metaphysics and Anthropology 83

We even find in Kant a fitting expression for the integration of experience into
theory in this area, albeit one that is no less obsolete than the term metaphysics,
namely the expression natural law. The term natural law is, moreover, just as
ambiguous, and in a similar way, as the term metaphysics (cf. PJ chap. 4). In
Kants work, however, it receives a sufficiently clear definition. He calls natural
law that part of the lawindependent of the will of the legislatorthat rests on
pure a priori principles (DR VI:229/55). Because its legitimating ground lies in
practical reason, natural law is rational law and falls together with the ethics of
law and right as critical metaphysics. It introduces no provocation beyond that
present in such a metaphysics. The provisos that limit the metaphysical character
of Kants theory of law apply also to his concept of natural law as rational law. It
is not the princi-ples of natural law that are a priori or rational, but the grounds of
their validity alone.
If one understands by nature those elements that are beyond human control,
then we find that Kants theory of categorical principles of law, like other serious
theories of the sort, contains the notion of a kind of law that can be called nat-
ural in two senses. Human rights are in the first place natural in that normative
sense in which they provide a moral yardstick against which positive law can be
measured. While Kant remarks upon this legitimating side of the notion, he does
not see that his ethics of law and right is also natural in a second, descriptive
sense. The empirical component of the theory belongs to anthropology, and there-
fore to conditions of which we can acquire knowledge only through experience
and over which, despite our knowledge, we lack control. Among the vicissitudes
with which man must live, the conditio humana forms the foundational element.
Anthropological conditions of human life are a contingency that lies before all
human history.
As Kant overestimates the metaphysical character of his ethics of law and
right, so he underestimates the naturalism present in natural law, and the two mis-
taken evaluations share a common cause: they operate with an overly simple al-
ternative. To say that philosophy is either founded on experience or else sets
forth its doctrines as founded entirely on a priori principles (G IV:388/1) is to
elide the anthropology of law as an intermediate link. Those who introduce the in-
termediate level, and therefore not so much correct Kants Doctrine of Right as
weaken its self-understanding as metaphysics, can overcome a popular opposi-
tion. Many are inclined to label the natural law of the modern era rationalistic
and are opposed to the anthropological natural law of the older tradition. While
critics of modernity accuse modern natural law of a rationalistic reductionism, its
defenders take its overcoming the naturalism of a merely anthropological natural
law to be a mark in its favor. The facts of the matter are that rationalistic natural
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84 Categorical Principles of Law

law and anthropological natural law form a unity in the modern era and that only
out of the unity can human rights as categorical principles of law be justified.
The expression rational law puts the emphasis only on the one side of a cat-
egorical theory of law, its a priori and genuinely moral character. Because the ex-
pression natural law can, by contrast, be taken in an anthropological as well as
a moral sense, the principles that are indispensable for modern legal culture are
more aptly designated by it. The philosopher of categorical principles of law lap-
idarily called the theory of such things, the ethics of law and right, metaphysical.
In truth, it combines metaphysics and anthropology.
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5
THE CATEGORICAL IMPERATIVE OF LAW IN THE SINGULAR

Thematically, the notion of a categorical imperative of law fits smoothly into

Kants practical philosophy; but the expression itself does not appear in the rele-
vant texts. In the case of the Grounding and the other foundational writings, the
absence of such a formulation might be explained by appeal to the exclusive con-
cern of those texts with morality in the strict sense, together with the circum-
stance that the concept of law abstracts from morality in this sense. In addition, an
imperative of law has characteristic conditions of application that cannot be de-
veloped until the subject of an ethics specifically of law and right has been
broached. So it is astonishing to find the expression absent also from the general
part of the ethics of law and right, the Introduction to the Doctrine of Right. The
analogous Introduction to the Doctrine of Virtue, by contrast, identifies its
supreme principle as the categorical imperative (DV VI:395/98).

85
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86 Categorical Principles of Law

It would, however, be premature to speak of a clearly negative result. For aside

from the imperatival mode, the categorical imperative is equivalent to the moral
law, and Kant does not always scrupulously observe the terminological distinc-
tion between an imperative and a law. In the title of section 7 of the second Cri-
tique, Kant announces a discussion of the fundamental law of pure practical rea-
son, which is to say, the moral law; in the text he formulates the categorical
imperative (C2 V:30/28). Because of this, the imperative we are looking for might
be hidden under a different label. In fact, the Introduction to the Doctrine of
Right does contain a number of different moral determinations of the law, and in
each of them morality has a categorical significance. The categorical imperative
of law we are after is found in three forms: first, albeit formulated in the indica-
tive mood, as the universal concept of law (B); second, as the universal principle
of law (C; cf. the addendum to the DR VI:371/176); and finally, as the universal
law of just legislation, this time in the imperative form.
Even if we take all three forms together, the text in which they appear, sections
B and C of the Introduction to the Doctrine of Right, is very short. Conse-
quently, the extent of the discussion already precludes us from the expecting the
high degree of clarity that emerges from a step-by-step elaboration of fundamen-
tal ideas and beyond this an exploration of certain branchings of the argument and
a warding off of likely misunderstandings. But those who approach the compact
text with systematic questions will find in various passages an awareness of the
issues that is fully capable of being defended even today.
Philosophy, unlike mathematics, cannot begin with definitions, but must de-
velop its concepts from the subject matter itself. In the case of the moral concept
of law and the categorical imperative of law, the subject matter has two mo-
ments. Formally, it is moral obligatoriness that is at issue, legitimacy rather than
legality in a statutory sense. Now, the genuinely moral moment is familiar from
the ethical prolegomena, and it is in addition called upon in the general section of
the Metaphysics of Morals, in the introduction that precedes the special sections
of that work, the Doctrine of Right and the Doctrine of Virtue. Kant is right, there-
fore, to begin with the determination of the material moment, with the conditions
of application that correspond to the anthropology of law (DR VI:22930/5556).

5.1. The Anthropological Foundation

The laws conditions of application constitute a response to the question, For

what is the law responsible? This question can mean different things. It can look
toward matters for which it is permissible to assign responsibility to the law, or
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toward matters for which it is advisable so to assign responsibility, or, finally, to-
ward matters for which such an assignment of responsibility is necessary. Work-
ing without distinctions of this sort, Kant presents the laws conditions of appli-
cation in the form of brief, highly compressed theses, without extensive
discussion of problematic issues. A more detailed interpretation is required in
order to understand the sense and importance of his definition and to discover the
reasons that tell in its favor. The question, Is there a humanly unavoidable social
relationship? is found to be an unspoken ide directrice of Kants argument. Kant
himself speaks of an unavoidable being beside one another during his discus-
sion of the transition from private to public law (DR VI:307/my translation). So
what is at issue is something elementary, something for which the law must be re-
sponsible. Kant develops this idea in three steps.
First, the moral conception of law concerns only the external and practical re-
lations of one person to another insofar as their actions, as deeds, can have (direct
or indirect) influence on one another (DR VI:230/56). Three moments of this
complex determination need to be emphasized.
A. The first moment is valid for ethics as a whole. Whether one is dealing with
external legislation, as in matters of law and right, or with internal legislation, as
in the Doctrine of Virtue, it makes sense to appeal to moral obligation only where
persons, not things, are concerned. For Kant, persons are subjects to whom ac-
countability, and therefore intentional action, can be ascribed (DR VI:223/56).
That there are beings accountable for their actions and that humans, but not
beasts, are among them can only be known from experience, and because of this,
empirical knowledge enters into the conditions of the laws application from the
beginning. Despite the title, even the first principles of the doctrine of right are
not purely metaphysical. Nevertheless, the experience to which Kant appeals is
part of an invariant human condition. One could, therefore, supply the missing ar-
gument by saying that because humans are endowed with the capacity for speech
and thought, we ascribe to them accountability for and freedom of action. One
would, however, have to add an in principle clause, since there are a sufficient
number of humans not yet accountable for their actions and even some who do
not become so accountable for the length of their lives and yet again others who
temporarily or enduringly enjoy only a diminished accountability.
For the concept of law, it is equally important that Kant remain satisfied with
accountability. While the freedom of the will is required for virtue, the law is con-
tent with a more modest conception of freedom, precisely the concept of nega-
tive freedomthe freedom to do what one wants and refrain from doing what
one does not wantagainst which Kant, according to Isaiah Berlins famous
criticism (1969, 37 ff.), is supposed to have been hostile. In consequence, the
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88 Categorical Principles of Law

manifold criticisms of Kants idea of the freedom of the will and the partly argu-
mentative, partly nonargumentative rejection of it could all be true and defensible
without, contrary to the belief of the critics, affecting Kants ethics as a whole. In
line with the emancipation of the law from disposition (see 3.3 above), the
ethics of law and right dispenses with the supposition that those subject to the law
act autonomously.
B. One suitably competent subject alone does not make up a situation in which
the law is required. Even if persons can suffer internal conflicts, problems of law
and right arise only when several of them stand to one another in a relationship
that is not exclusively aesthetic or theoretical and contemplative but, rather, prac-
tical. Such people live in the same external world and can therefore not avoid recip-
rocally influencing each other through their actions (cf. DR VI:30711/12123).
C. That human coexistence is never merely an aesthetic or theoretical affair
depends upon two further conditions, which, like the first pair, are empirical in
nature. In the first place, the external world is bounded, and the earths surface is
not unlimited, but closed (DR VI:311/123). Second, persons are not pure intelli-
gences; they have bodies that already because of their extension lay claim to a
part of the common world. In addition, corporeal beings have needs and interests,
for the satisfaction of which they need goods, and in order to obtain them, people
intervene in the common world in manifold ways.
Taking the three component elements together, we arrive at the first condi-
tion of application as a whole. With this condition, the practical coexistence of
subjects accountable for their actions, Kant brings what is decisive into relief
with brilliant clarity and renders the discussion of additional questions superflu-
ous. Kant separates from the moral conception of the law the whole quarrel
ignited in connection with Hobbes, and anthropological and also partly social
and historical-philosophical in characterover the question why people influ-
ence each other, and beyond this whether the reciprocal influence is friendly or
hostile and what the reasons are for potential hostility. But he does not simply
set aside the whole of anthropology. He concentrates on that which the key
word demands, on invariant conditions of human being. Within the framework
of these conditions, he emphasizes an unavoidable social relationship. By argu-
ing in this way, Kant undermines the sort of objection that has repeatedly been
formulated, from the earliest reception through Borkenau to Macpherson,
against Hobbes, the first great modern philosopher of law. Kants social anthro-
pological assumptions do not depend upon the social and economic conditions
of a bourgeois competitive society.
Through its systematic simplicity, Kants argument achieves both greater per-
suasive power and philosophical elegance. This is overlooked by those who fol-
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low Schopenhauer (World as Will and Representation, I.4:62) in seeing in the

Doctrine of Right a third-rate work, to be explained away as the product of the au-
thors enfeeblement from old age. To be sure, Kants ethics of law and right is
found in a highly compressed and indeed arid text. But the elegance that is deci-
sive to a philosopher is argumentative and conceptual, not stylistic, and the for-
mer sort of elegance is not foreign to the Doctrine of Right. For in that work Kant
is successful in leading the argument to the core of the matter, whereby he not
only simplifies things significantly but also renders untenable a second sort of
criticism, that which proceeds from the assumption, very popular in the evalua-
tion of philosophies of law and the state, of an anthropological relativism.
According to this view, divers justifications of law depend upon divers images of
man, among which argument can no longer decide. In the end we would be left
with an anthropological relativism (with respect at least to the anthropology of
law), and an objective justification of the law would, by contrast, not be possible.
With respect to the first condition of the laws application, the difference between
Kant and other philosophersamong his contemporaries, between him and
Mendelssohn, for exampledoes not lie in the diversity of their images of man
(Altmann 1981, 43), but in the differing depths of their respective fundamental
reflection.
According to its second condition of application, the law is concerned, not
with the relationship of choice and the capacity for it (Willkr) to desire (and
consequently to mere need) . . . , but exclusively with the relationship of ones
own choices to those of others (DR VI:230/my translation). Kants emphasis on
choice and voluntary agency, and therefore on the freedom to act rather than the
freedom of the will required for autonomy, agrees with his taking accountability
as a starting point for his theory. In addition, while one can desire something one
is incapable of attaining, choice concerns itself only with that which one believes
oneself capable of attaining through action. Since the law is directed toward ac-
tions as facts and toward their reciprocal influence, while mere desires remain in-
ward, Kant does well to begin with the freedom to act. Different inner worlds, no
matter how heterogeneous, can exist beside one another without problems. It is a
shared external world that creates an unavoidable task for the law.
Kant subsumes needs under the notion of desire he sets outside the scope of the
law, and therefore also so subsumes, even if he does not say so explicitly, their ful-
fillment, happiness. According to Kant, the law is not responsible for caring for the
well-being of fellow humans, for actions of beneficence or callousness (DR VI:
230/56). In the second part of On the Common Saying: This May Be True in
Theory, but It Does Not Apply in Practice, Kant set himself against Hobbes and
thereby clearly emphasized his own concept of the law, which excludes everything
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90 Categorical Principles of Law

to do with the aim of achieving happiness (VIII:289/73). The difference between

Hobbes and Kant is frequently located in their differing conceptions of morality.
In truth, Hobbes, with the idea of reciprocity and equality, upholds in the second
law of nature a moral principle very close to Kants criterion of universal legisla-
tion. There is, by contrast, a difference between the two philosophers on the de-
scriptive side, with regard to the laws conditions of application. Hobbes, how-
ever, does not fall so unambiguously into the group of positions to be criticized, as
Kant makes it sound. For although Hobbes does begin with the natural desire for
self-preservation and happiness, he speaks only of freedom in the decisive second
part of the second law of nature (Leviathan, chap. 14).
In substance, Kant opposes a utilitarian theory of law. In the utilitarian crite-
rion of the good of all concerned, the conceptual difference between need and
choice is elided. According to Kant, this elision blurs the difference between le-
gitimate law and the duties of benevolence enjoined by virtue (cf. DR VI:230/56).
Only the relationship to voluntary agency fulfills, moreover, the guiding condi-
tion of unavoidable coexistence. One can very well disregard the sheer needs of
others, but in light of the same external world it is impossible in principle to re-
move oneself from all effects of the voluntary agency of others. Since Kant was
scarcely aware of Bentham and his systematic exposition of utilitarianism, An In-
troduction to the Principles of Morals and Legislation (1789), his criticism,
viewed historically, is directed against Wolff and Mendelssohn rather than against
actual utilitarians. For in the works of these last two, a juridical and political order
is very much responsible for the officia humana and therefore for the duties of
brotherly love and solidarity.
Kants implicit critique of utilitarianism has significance not only for legal the-
ory but also for legal policy. It excludes the tasks of the social-welfare state from
the moral concept of the law, thus turning Kant into an exponent of political lib-
eralism. At best, the development of the welfare state would be legitimate for
Kant in a pragmatic sense, as a means of securing the rightful state, both in-
wardly and outwardly, against external enemies (TP VIII:298/80, emphasis
deleted). A Kantian argument in favor of the welfare state might also be sought in
the command not to humiliate others. In virtue of this command, Kant concludes
that acts of beneficence (Wohlttigkeit) must be conducted as if our help is either
merely what is due [to the recipient of aid] or but a slight service of love (DV VI:
449/243). Kant, however, holds this command to be a duty of virtue only.
Further considerations are important for a systematic evaluation of Kants con-
cept of the law. To begin with, it might be objected that, in view of the fact that a
significant proportion of our voluntary agency operates in the service of our needs,
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Kant draws too sharp a conceptual distinction between the power of arbitrary
choice on the one hand and need on the other. To this objection, he would retort
that when needs lead to particular actions, they are compatible with his concept of
law, and when they remain inward, they do not, in the first instance, pose any
problems of law or right.
Matters are different with respect to a second objection, according to which
freedom of action is, as Kant himself notes in his theory of property, tied to an
external mine and thine. Those who call nothing their own, who, like certain
among the severely handicapped, do not even have labor power to offer, will
enjoy real freedom of action only when they are enabled to achieve the necessary
level of social welfare. Finally, freedom of action is a comparative concept, and
the degree to which it is real depends on economic power and intellectual capac-
ity, not least on psychic stability, and sometimes even on a readiness to press
ones interests without reservation against the claims of others. Because consider-
ations of this sort are absent from Kants critique of the social-welfare state, justi-
fied doubts can be raised about his own final position. But we will also see that
the categorical imperative of law need not be interpreted in a sense that entails
political liberalism.
According to the third condition of application, it is the form, not the matter, of
reciprocal transactions among voluntary agents that is significant for the ethics
of law (DR VI:230/56). What Kant means by this easily misleading formula be-
comes clear from the example he gives to illustrate it. According to the example,
the law does not ask of someone who has purchased a piece of merchandise
whether it was to his advantage to do so. Here, voluntary agency is exercised in
buying and selling, the reciprocal transaction is the exchange of money and mer-
chandise, the material of choice is the aims pursued by the parties to the ex-
change, and the form of the reciprocal transaction consists in the fact that the
exchange took place voluntarily (freely) and wittingly on both sides, without
force or fraud.
The exclusion of the matter of choice from the purview of law and right can be
justified from the moral perspective, since for Kant the exclusion of matter and
the concentration on form is constitutive of that perspective (cf. C2
V:2128/1926). The fact that exchanges can take place under duress and fraudu-
lently and thus take on a nonmoral form speaks, however, against this conjecture.
Kant in the first instance uses a different concept of form. The justification of his
thesis is to be sought in the premoral element of the law. Since the categorical im-
perative of law concerns an unavoidable social relationship, it can leave interests
out of consideration insofar as they do not influence the manner of action.
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5.2. The Principle of Human Rights

To consider the coexistence of persons accountable for their actions from the
standpoint of morality while acknowledging the Kantian criterion of morality,
universal legislation, is to achieve the moral conception of law and right
in Kants much quoted formulation: Right is therefore the sum of the conditions
under which the choice of one can be united with the choice of another in accor-
dance with a universal law of freedom (DR VI:230/56).
In its lapidary brevity, this sentence can be misunderstood and demands further
elaboration. To begin with, the previously stated qualification remains in force.
Although Kant speaks of the law as it is, he is not defining positive law but
rather is presenting its moral concept (DR VI:230/56). In regard to such a con-
cept, one thinks of a criterion for distinguishing morally legitimate from morally
illegitimate law. But a moral concept of law could also be a means of claiming
that it is morally legitimate to regulate human coexistence according to law in the
first place. In the first and more modest case, the concept has a normative signifi-
cance for the law, while in the second caseeither in addition or insteadthe sig-
nificance is constitutive of it. Since Kant himself does not introduce this distinc-
tion, we must later deduce which of the tasks he grants the moral concept of law.
When Kant, in the formulation of the moral concept of law, speaks of a law of
freedom, he appears to retract the emancipation of the law from disposition; for
the freedom he means is the full-fledged freedom of the will, as a consequence
of which he also means morality in the strict sense in which it includes the dispo-
sition to obey the law. Further on in his argumentation, however, in section C,
Kant states explicitly that the adoption of the principle of law as a maxim is not
required (DR VI:231/56). Those who recognize the principle of law from motives
other than that of duty remain moral in the relevant sense. The further reaching
demand for a disposition to obey the law is made only by ethics, that is, by the
doctrine of virtue. With the addition of the word freedom to the formulation,
Kant qualifies the law in question as a moral law that, in contrast to laws of na-
ture, has no reality without freely chosen recognition.
When Kant, further, speaks of a universal law, the adjective is not to be read
explicatively, since the fact that laws formulated without proper names have a cer-
tain degree of universality is too obvious to need repeating (DR VI:230/56). With
the property of universality, Kant calls to mind his general criterion of morality.
The moral concept of law fits into Kants program of a universalistic ethics.
The moment of practical metaphysics is present as well, since the moment of uni-
versality brings with it the supersession of personal and collective well-being as ul-
timate grounds of the determination of action. And the moral concept of law, which
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insists that the anthropology of law be shaped according to the criterion of univer-
sality, satisfies the Kantian pattern of legitimation: practical metaphysics plus an-
thropology.At the same time, metaphysics enters the picture only with respect to the
genuinely moral element, the moment of universality. No further metaphysics, in
particular no assumptions of theoretical metaphysics, makes an appearance. The
metaphysics contained in the categorical imperative of law is unproblematic.
According to its moral concept, rightful law requires the reciprocal compati-
bility of the freedom of action of persons. This concept has a negative side not ex-
plicitly mentioned by Kant, perhaps because it would have struck him as all too
obvious: everyones freedom of action is to be restricted. The fact of this restric-
tion precedes the legitimation of administrative law and, in addition, precedes the
legitimation of private law and right. It flows from a concept of law that precedes
the right to property and its public protection.
Kant does not explain why freedom should be restricted at all, but the follow-
ing argument might accomplish the task. Because persons live in the same exter-
nal world, it is always possible that one will wish to settle where someone else al-
ready lives, or that one will desire something that another also desires. Where one
or the other of these situations obtains, there is conflict, and freedom of action is
thereby restricted in any case. According to this argument, in the form of a
thought-experiment concerning a primary state of nature, the initial restriction on
freedom of action is, systematically viewed, not a moral phenomenon but a con-
tingency given by nature that emerges unavoidably with the sheer fact of coexis-
tence (cf. PJ 10.4). As soon as several persons have the same external world, no
one can claim living space for himself without thereby restricting the possible liv-
ing space of all others. When we have one universe and several people, a recipro-
cal restriction of freedom of action is unavoidable.
The restriction of freedom acquires moral significance through its taking on a
particular form. Not every restriction is morally legitimate, but only that kind
that is carried out according to a universal law, strictly identical for all parties.
Kant himself emphasizes only the second, positive side of the matter, that the
voluntary agency of one must be capable of being united with that of others
(DR VI:230/my translation). A restriction of freedom carried out with strict equal-
ity is as such an assurance of freedom, and so the assurance of freedom for all
concerned proceeds, according to its moral concept, in just this same way. The
restriction and the assurance of freedom are two sides of the same coin; only
where one limits freedom according to a universal law is freedom universally
and equally protected.
To the moral concept of law, Kant adds a moral principle of law (DR VI:
231/5657). The concept and the principle formulate the same state of affairs,
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94 Categorical Principles of Law

only the point of view is different. With regard to the concept of law, it is objec-
tive law that is at issue, while it is the corresponding subjective right, the totality
of actions one is entitled to perform according to the objective law, that is defined
by the principle of law (DL VI:230/5556). The principle of law constitutes a
moral criterion for subjective claims in the sense of legal entitlements. These
claims exist before and independent of positive juridical activities; they are those
pre- and suprapositive rights that we call innate or human rights. The moral prin-
ciple of law fits hand in glove with the criterion of human rights. Kant himself
puts it this way in the introduction to the Doctrine of Right, under the title There
Is Only One Innate Right: Freedom (independence from being constrained by
anothers choice), insofar as it can coexist with the freedom of every other in ac-
cordance with a universal law, is the only original right belonging to every man
by virtue of his humanity (DR VI:237/63).
The moral concept of law answers to the idea of justice, and we have, since
Aristotle, distinguished different kinds of justice. Kant deals neither with distrib-
utive nor with corrective justice. Because of the reciprocity of the restrictions of
freedom, I would assign the sort of justice discussed by Kant to the third Aris-
totelian category, justice in exchange. According to this interpretation, what is,
from a systematic point of view, crucial for coexistence is not in the first instance
the distribution of goods or services but rather a reciprocal exchange undertaken
by persons who find themselves alongside each other. The primary units of ex-
change are not economic goods; with regard to the systematically primary human
right, the protection of life and limb, it is abdications of freedom that are
exchanged. Each gives up his right to kill his fellow man in case of conflict.
The morally fundamental principle of law formulated by Kant is not addressed
to a legislator or a constitution framer. It is aimed at those who naturally share
the same right, people insofar as, independent of any relations owing to a state,
they interact with (and act against) one another in manifold ways exclusively as a
consequence of the shared external world. Relative to this state of nature, rela-
tions of law and right dependent upon the state are of secondary, though still
indispensable, significance (DR VI:3058/12021). Kant rejects an overvaluation
of the state, though he holds it to be necessary even if subsidiary.
Kant then introduces a third variant for the morality of law, the universal
(and once again moral) law of right (Rechtsgesetz). Because the material already
treated by the concept and the principle of law is here formulated as an imper-
ative, we have finally arrived at the categorical imperative of law in its precise
form: act in the external world in such a way that the free use of your volun-
tary agency is consistent with the freedom of all according to a universal law
(DR VI:231/my translation). But since the content of the imperative, mutually
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consistent freedom of action according to a universal law, is already addressed

in the concept and in the principle of law, they too can count as formulations of
the categorical imperative of law.

To grant someone an entitlement of law or right is at once to maintain that all

others are, as a matter of right, prohibited from interfering with action or refrain-
ing from action that corresponds to the entitlement in question. The same point
holds for the special case of human rights. I have a right to life and limb, for
example, only when others are, as a matter of right, prevented from assaulting me
physically, when their doing so would be wrong. Positively formulated, all legal
entitlements bring with them a second-order entitlement: that which is demanded
or prohibited can be enforced. The moral concept of law would be incomplete if
it did not deal with the legitimation of authorized force, a legitimation that is vig-
orously disputed.
John Rawls, for example, explains the principles of justice as deriving from
primary social goods. He gives no satisfactory answer to the question why these
goods become rights and therefore claims whose satisfaction can be secured by
force if need be. Robert Nozick, for his part, sees the deficiency of Rawlss
account but is equally unable to give a convincing answer. Kant sketches an argu-
ment that promises to remedy that lack of a satisfactory legitimation of force. Un-
like Nozick (1974, 131 ff.), he does not claim that an enforcement-authorized
obligation needs to be justified by a two-level account, but rather sees, in the au-
thority to enforce, a definitional element of every moral obligation insofar as it
belongs by nature to the sphere of law and right. Kant therefore carries out a one-
level legitimation. He declares that the authority to enforce is connected to the
law according to the principle of non-contradiction (DR VI:231/57; cf.
VI:23233/5758). By law here, Kant understands the subjective concept, a
legitimate claim, but the thesis is valid also for the objective concept, for the
framework of rules that formulate subjective claims.
One might arrive at the legitimation by means of an antinomy between a rigor-
ous legal positivism, on the one hand, and a rigorous anarchism, on the other. Ac-
cording to the positivistic thesis, the legal order would have carte blanche; its
force would be everywhere legitimate. According to the anarchistic antithesis, all
force would be reprehensible. The resolution of the antinomy would consist in
a legitimation of force that limited its scope. The measure of both legitimation
and limitation would lie in the Kantian criterion of morality, universalizability.
The characteristic profile of the task of legitimation emerges better in an argu-
ment of this sort, which would also repeat a line of thought that already pertains
to the application conditions of the law. Nevertheless, Kant did not spell out the
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96 Categorical Principles of Law

argument in that context. The argumentation takes the form of a thought experi-
ment in which one imagines a primary state of nature that brings out the internal
inconsistency of both the thesis and the antithesis of the antinomy of law. With re-
spect to the debate with anarchism, it is important to see that the thought experi-
ment reveals a first level of force. Because a multitude of people must share the
same external world, the introduction of force at a systematically primary level
takes place behind our backs; no one, at any rate, can be held responsible for it.
The reality principle introduced by Freud in opposition to a principle of sheer
pleasure has its systematic origin here, in the emergence of force at the primary
level. For this reason Freud is wrong to make culture responsible for the reality
principle. In fact, it is not culture but sheer coexistence that demands an unavoid-
able exercise of social force, and herein lies hidden the dark side of the social
nature of humanity. The arguments developed since Plato and Aristotle in favor of
mans social nature are in essence correct, but are one-sided, bringing into relief
only its positive aspect. But one must not therefore fall into the contrary position
and emphasize only the negative aspects of human sociality. Beyond a view that
oscillates between the positive and the negative, we can, from a judicative-critical
position, see that the social nature of humankind is not only a pleasure but also
a burden.
The thought experiment required for the argument from antinomy is to be car-
ried out relative to the unavoidable level of social force. If, in agreement with
strict legal positivism, a subjective right entails an arbitrary authority to enforce,
the concept of a legal claim vanishes. Whether it is an entitlement to property or
life and limb that is at issue, anything that I can claim for myself can just as eas-
ily be claimed by another. If, as the anarchistic antithesis would have it, there is
no force at all, one is dependent on the benevolence of others for recognition of
ones rights, and life and property do not have the status of goods to which one
has a legitimate subjective claim. The thought experiment just sketched corre-
sponds to the two sides of the moral concept of law. It carries out in more detail
what in the explication of the concept was merely asserted. The reciprocal assur-
ance of freedom is only possible through an equally reciprocal limitation of free-
dom. Since the thought experiment itself is not found in Kant, he does not exhaust
the possibilities offered by a critical ethics of law.
One might want to explain the absence of a rigorous argument from antinomy
in the Introduction to the Doctrine of Right historically, claiming that when
Kant was working on his philosophy of law and right, near the end of the eigh-
teenth century, neither the thesis nor the antithesis were seriously upheld. Certain
passages from Hobbess Leviathan could, it is true, be put forward as evidence for
the positivistic thesis-for example, the claim that the sovereign is not subject to
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civic law (Leviathan, chap. 26). According to the second part of On the Common
Saying, which is devoted to a confrontation with Hobbes, Kant did not, however,
read Hobbes in this way. As far as the antithesis is concerned, the tradition of
influential anarchist thinkers does not begin until Proudhon, a half century after
Kants Doctrine of Right. It is true that a passionate critique of all political
authority did appear forty years before Kants treatise. Edmund Burke, in A Vin-
dication of Natural Society (1756), does not, however, take aim at all force, but
only at the use of force by the state. He does not defend the antithesis as such,
but only a part of it, the antithesis with regard to public law. One would expect to
find this topic discussed in the course of the transition from the natural law that
precedes the state to the law as enacted by the state, but in the relevant sections of
the Doctrine of Right (41, 42, and 44), Kant does not raise the issue. Anarchy, the
antithesis of the antinomy of law, does appear in Kants writingsdescribed as
law and freedom without power (ANTH VII:330/191)and is even defined in a
neutral sense. The antithesis does not, however, appear in the Doctrine of Right,
and elsewhere it appears only in systematically secondary contexts (cf. C1 A iv;
TP VIII:302/8485; CF VII:34/57).
Kants justification of the authority to enforce is prepared in section C and
elaborated in sections D and E of the introduction to the Doctrine of Right. His
highly formal argumentation corresponds to his aim of demonstrating an autho-
rization to enforce that is immanent to the concept of law.
When one hears the word force in this context, one thinks first of physical
violence. Besides this sort of force, however, there are a number of other forms,
including not only direct force but the indirect constraint that results from social
dependence or poverty. Since Kant does not introduce the wide spectrum of pos-
sible concepts of force, it is easy to ascribe to him a narrow construal that limits
force to its physical expressions. In fact, it remains open whether force is exer-
cised physically, psychically, or economically, whether it operates directly or in-
directly, and whether it is easily observable or hidden. With respect to the ques-
tion of fundamental legitimation, these questions are of secondary importance,
and Kant is well advised not to broach them. The decisive question is whether
force is morally permitted at all and, if it is, to what degree it is permissible to ex-
tend it. Kants answer to this question is as convincing as it is simple: an instance
of force is morally legitimate when it constitutes a response to an illegitimate in-
stance, that is, to an injustice.
With this claim, Kant signals his opposition to the antithesis of the antinomy of
law and tacitly rejects a strict anarchism. Kant declares that force is permitted, but
insists that it is legitimate only under two restrictive conditions. These conditions
contradict the positivistic thesis of the antinomy of law. To begin with, force is
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98 Categorical Principles of Law

only permitted where it already exists, where someone else has infringed upon the
sphere of my legitimate freedom. Legitimate force for Kant does not attack, it de-
fends itself; it is not an aggressive force, but a defensive one, a counterforce. And
within the context of a defensive force, the only legitimate force is that which is
directed against injustice. Without this second restriction, a thief who tried to pre-
vent his victim from reclaiming his property would be morally in the right, since
he would be exercising a counterforce. The thiefs action is indeed defensive, but
still illegitimate, since it does not consist in a defense against injustice.
Defense against injustice, the only legitimately rightful use of force according
to Kant, can take one of two forms: preventative and restitutive. If, for example, a
robbery is in the offing, one is permitted to foil it, and if it has already taken place,
one is permitted to recover the stolen goods. The argument allows counterforce
only insofar as it restricts itself to defending against injustice. Someone who
not only foils the robbery but deliberately injures the thief, or someone who takes
back more than was stolen, himself commits an injustice.
In order to legitimate force as defense against injustice, Kant employs the con-
cepts of the hindering of an effect and of resistance that counteracts the hin-
dering of an effect (cf. DR VI:231/57). Both concepts can be called practical
negations, with a hindrance playing the role of a simple negation of an action
and resistance the role of a double negation. When an action is legitimate accord-
ing to the principle of law, the simple negation, a hindrance, defines a moral in-
justice (cf. DR VI:230/56), and injustice conversely consists in nothing other than
the hindering of legitimate freedom of action (DR VI:231/57). Kant correctly
maintains that he who negates the negation regains an affirmative position. When
an injustice is resisted, whether preventatively or restitutively, the injustice is su-
perseded and rightfulness is once again recognized: If, Kant writes, a certain
use of freedom is itself a hindrance to freedom in accordance with universal laws
(i.e. [it is] wrong), coercion that is opposed to this (as the hindering of a hin-
drance to freedom) is consistent with freedom in accordance with universal laws,
[which is to say that it is] right (DR VI:231/57).
Kants legitimation argument relies exclusively on the moral concepts of jus-
tice and injustice along with the logical law according to which a double negation
returns one to the original affirmation. The authority to enforce can, therefore, be
regarded as contained within the concept of the principle of law. Kant is right to
call his legitimation analytic. Consequently, he writes, an authority to con-
strain one who breaks the law is connected to the law itself according to the law
of noncontradiction (DR VI:231/my translation). Kant has indeed shown that the
authority to enforce is part of the definition of the principle of law and that what
is rightfully permitted includes within it the second-order permission to see to the
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upholding of first-order permissions by force: the law and the authority to en-
force signify, therefore, one and the same thing (DR VI:231/my translation).
Since the categorical imperative of law is the result of the application of a
moral perspective to a fundamental empirical fact, the coexistence of accountable
subjects, and since the authority to enforce is analytic in relation to the categori-
cal imperative of law, it follows that the authority to enforce also fits into the pro-
gram of a Kantian ethics of law and right. Relative to the fundamental empirical
fact, the authority to enforce is justified on purely rational grounds. Like the cate-
gorical imperative of law itself, the laws authority to enforce its dictates is valid
a priori, even though the a priori status is relativized to the anthropology of law.
The argument pattern practical metaphysics plus anthropology remains intact.

5.3. The Counterpoint

Postmodern philosophy espouses radical plurality. It is not concerned with

strictly political pluralism, with the several groups that struggle for public recog-
nition and parliamentary influence. Partially by means of a description of social
reality, partially by means of challenges to that reality, the spokespeople for
postmodernity fight for a rich diversity of lifestyles and cultural forms. While
we do not need to rehearse the arguments in favor of diversity, we do want to ask
how far the diversity extends; in particular, can it be as radical as the postmod-
ernists would like, can it extend all the way to the roots?
In order for a plurality of lifestyles and cultural forms actually to obtain, cer-
tain conditions must be met. First, there must exist different needs, interests, ca-
pacities, and convictions, since otherwise there is no call for the construction of
different styles and forms. These differences must furthermore be accompanied
by the social and personal capacity to translate them into distinctive forms of life
and to maintain this distinctiveness even under difficult conditions. A juridical
order exercises only an indirect influence on these two conditions, but it has a di-
rect and essential bearing on a third condition: the right of different people and
groups to live in their own particular ways. The categorical imperative of law
constitutes precisely the measure of this right. According to it, each person and
each group has a claim to what is distinctive and particular to them; indeed, they
are entitled to be stubborn in the pursuit of their distinctiveness, provided that this
claim is recognized reciprocally and with equal validity for all.
The categorical imperative of law is the measure for all conditions without whose
recognition a coexistence among free and equally entitled persons is impossible.
With this point in focus, we can look again at Luhmanns thesis that morality cannot
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100 Categorical Principles of Law

serve to integrate society. In fact, the very opposite has now been shown to be true.
Where sheer oppression is found, there can be no question of integration, the very
word carries with it a connotation of equal entitlement on the part of those who find
themselves living together in a society. Here, then, is the argument against Luh-
mann: societal integration is not possible without that minimum of equal entitle-
ment expressed in the categorical imperative of law, without an elementary layer of
juridically enforced morality.
The categorical imperative of law is justified by the interplay of anthropologi-
cal considerations with moral judgment that is metaphysical in a practical sense.
Both the anthropological and the practical metaphysical sides express a unity and
a universality. The philosophy of postmodernity, with its commitment to radical
plurality, has in fact deprived itself of the chance to include a moment of this sort
in its thinking. As a rule postmodernists fear that the anthropological and meta-
physical elements will privilege certain forms of life above others and thereby
stand in the way of the radical plurality whose growth and success is so charac-
teristic of the world today. To be sure, one can find anthropological and meta-
physical ideas that can very plausibly be read, critique-of-ideology-wise, as
attempts to help raise particular life projects to the status and dignity of univer-
sally valid principles. But this criticism does not touch the anthropological and
metaphysical elements that mediate the formulation and defense of the categori-
cal imperative of law; these elements do not harbor any uniformizing tendencies.
They state conditions that need to be recognized if the desired plurality is to have
a chance of surviving.
Postmodern philosophy wants to let one voice lead the melody in the concert
of the present. But the vote for diversity overestimates its load-bearing capacity.
The plurality for which postmodernity pleads may be more radical than any yet
envisaged, but instead of being absolutely radical, it needs a contrapuntal unity.
And by comparison with the voice of diversity, the categorical imperative of law
is not merely the countervoice of unity; it has a methodologically more precise
significance. As one of the conditions without which diversity is not possible, it
has a transcendental importance and a systematic priority.
At this point, we can return to the question of the scope of the categorical im-
perative of law. Does the imperative respond only to the relatively modest ques-
tion of which norms and principles of law are legitimate and which illegitimate?
Or does it also undertake to show why a society should have laws at all? What
was said above concerning diversity holds also for individuality: the categorical
imperative of law states the conditions without which a coexistence of agents en-
joying freedom of action is not possible. This fact endows a Kantian ethics of law
and right with a greater significance. While one usually expects that a moral prin-
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ciple will simply provide norms, the fundamental concept of Kants ethics of the
law, the categorical imperative of law, undertakes in addition the task of consti-
tuting the law. The imperative demands that human coexistence be shaped ac-
cording to law. At the same time, the importance of the transcendental ethics of
the law is increased: it is more than a partial social ethics; it becomes rather a fun-
damental component of social theory.
In the context of this fundamental level of social theory, a first, strictly meta-
physical argument establishes the moral concept of law as a categorical impera-
tive that is, with respect to its capacity to bind by obligation, a purely rational
concept. The second, transcendental argument shows that the social world can
only constitute itself as an objectively valid world on the basis of the categorical
imperative of law. The objectivity in question here is not, nevertheless, the famil-
iar theoretical sort but rather a practical objectivity; at issue is not the truth of a
world of natural objects but the justice of a world that arises from human coexis-
tence. In the metaphysical argument a counterpoint to the prevailing juridical
culture is defined; in the transcendental argument the counterpoint acquires a con-
stitutive significance. To institute legally sanctioned force among men is not only
morally legitimate in principle, it is also morally demanded in order to make pos-
sible freedom of action for all.
On the other hand, the categorical imperative of law states only one of many
conditions for individuality, plurality, and freedom of action. It deals only with
the social side of things and, within these boundaries, only with the standpoint of
a rule of law having the power to enforce its edicts. In the terms of the theory of
the state, the categorical imperative of law supports the juridical state
(Rechtsstaat). Are social programs thereby excluded from the sphere of legiti-
mate state activity? I have interpreted the categorical imperative of law as a prin-
ciple of justice in exchange (PJ esp. 3.2). Now, it is uncontroversial that justice in
exchange needs to be supplemented by corrective justice. One way or another,
prior injustice must be redressed. With the help of this principle, one can already
justify a good portion of the social-welfare state.
Issues concerning the scope and detailed application of the principle of redress
lie outside the boundaries of the present studys discussion of problems of
grounding the law. One question, however, should be broached here: that of the
self-understanding of the categorical imperative of law. Is the imperative to be un-
derstood as a necessary condition or as a sufficient condition of a coexistence with
the authority to use force? This question, which is not posed by Kant himself, is of
cardinal importance for the philosophy of law and the state. Our answer to it will
determine our position with regard to the following alternatives: if the imperative
expresses a necessary condition, it follows the idea of a transcendental social
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102 Categorical Principles of Law

science. It takes responsibility for stating the elementary principles of political le-
gitimacy and formulates the responsibilities without whose recognition no legal
order, and indeed no society, can be accounted morally legitimate, and it does this
without excluding the possibility that a juridical order might accept responsibili-
ties that are not necessary but advisable. If, by contrast, the imperative states a
sufficient condition for political legitimacy, then it will not be satisfied with the
role of grounding a transcendental social science and will become a political the-
ory, or even a political program, a political liberalism that supports a minimal or
night-watchman state and that, apart from a restrictive policy of compensation,
rejects all forms of the social-welfare or culturally implicated state.
We need not enter into the question how Kant himself would have responded
to the alternative necessary or sufficient condition. Regarding the systematic
issue, it is the more modest understanding of the categorical imperative of law
that is to be upheld, the merely transcendental self-understanding of the counter-
point to modernity, not the political and specifically liberal interpretation. Further
considerations are needed to negotiate the transition from the transcendental to
the political interpretation. Some of these considerations have already been artic-
ulated in the course of the interpretation of the second application condition (5.1
above). Kant does not raise questions of this sort, and within the parameters of an
exclusively transcendental ethics of law there is no need to do so.
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P A R T T W O

EXAMPLES OF
CATEGORICAL PRINCIPLES OF LAW
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6
A LOOK AT UTILITARIANISM

The radical changes in patterns of thought and social relations that have taken
place in the course of the modern era have not left morality and its philosophical
theory, ethics, unchallenged. Indeed, one sometimes gets the impression that in
this area modernitys power to corrode has been developed to a far greater extent
than has its capacity to regenerate. Today we are threatened with a disparity be-
tween a great need for ethics and a dearth of argumentative potential for meeting
this need.
Utilitarianism is one of the few ethical positions that have successfully resisted
the destructive power of modernity. In the German-speaking world this claim
runs so counter to accepted opinion as to sound paradoxical. German intellectuals
traditionally regard utilitarianism as an unsubtle morality of mere usefulness and
connect it to self-interest and opportunism. Utilitarianism is said, in its extreme
form, to be pure value-nihilism (Hartmann 1958, 139), and even a crude and

105
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106 Categorical Principles of Law

naked domination of the economic. In truth, the utilitarian exhortation to further

the happiness of all concerned is anything but egoistic or opportunistic. That it in-
spired a proud series of social and political reforms in late feudal and early capital-
istic Great Britain is entirely consistent with its basic principles. And with regard
to present-day issues such as the world economic order, ecological responsibility
for future generations, or a nonanthropocentric protection of animals, utilitarian-
ism has not yet exhausted its potential for progressive social critique.
German antipathy for utilitarianism reaches far back into the nineteenth cen-
tury. Although the two classical exponents of utilitarian ethics, Jeremy Bentham
and John Stuart Mill, were soon translated into German, the intellectual spokes-
people of the time vehemently rejected the utilitarian position. In the chapter of
The German Ideology entitled Morality, Commerce, and the Theory of Exploita-
tion, Marx and Engels accuse it of espousing the exploitation of man by man.
Friedrich Nietzsche classifies it among the foreground modes of thought and
navets which anyone conscious of creative powers and an artists conscience
will look down on with derision, though not without pity (Beyond Good and Evil,
225); and he adds to this one of his Maxims and Arrows (no. 12) from Twilight
of the Idols: Man does not strive after happiness; only the Englishman does that.
With respect to the categorical principles of law, utilitarianism is the counter-
point to the counterpoint. It is the most effective present-day model of an empiri-
cal-pragmatic ethic. Before discussing examples of categorical principles of law,
we will inquire into utilitarianism as the leading contrast to the Kantian position.

6.1. The Justice Objection

The less sweeping critique to which utilitarianism has been subject since its for-
mulation in the writings of Bentham and Mill has taken aim, now at the thought
that human happiness can be calculated, now at the value-theoretical presupposi-
tion of such a calculation, the idea that pleasure and freedom from pain are the
only things desirable as ends (Mill 1979 [1861], chap. 2).1 Not least, utilitarian-
ism has been accused of not providing a satisfactory account of its fundamental
moral principle: the happiness of all concerned. Among the objections to utilitar-
ianism, however, it is a fourth one that has the greatest significance, the criticism
raised in the name of justice.
The conceptual apparatus for measuring happiness introduced by Bentham,
the hedonic calculus, has since undergone many refinements. But the host of

1. Further references to Utilitarianism in this chapter will be by page number alone.

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A Look at Utilitarianism 107

clever suggestions should nevertheless not lead us to overlook the fact that the
problems of intrapersonal- and interpersonal-utility comparisons are not yet
anywhere close to being solved. The utilitarian could, nevertheless, weaken his
ambition and dispense with the idea of a thoroughgoing calculability. Instead of
taking the hedonic calculus literally, he could treat it as a regulative idea,
namely, the demand that in order to make a well-reasoned choice, one seek out
alternative courses of action and then evaluate their advantages and disadvan-
tages in the light of their likely contribution to human well-being.
The second group of objections raised against utilitarianism often turns out not
to be as strong as might appear at first. The accusation that hedonism is a pig phi-
losophy worthy only of swine (Carlyle) can be met by means of distinctions in-
ternal to utilitarianism, for example, by Mills qualitative hedonism. Moreover,
even quantitative hedonism is not without defense against this reproach. For be-
cause humans differ from other animals in the nature of their capacities and inter-
ests, it follows that they cannot seek their happiness in the same way as animals
seek theirs. In addition, utilitarianism demands that one take the happiness of
others into account, for which reason one might, under certain circumstances,
have to relinquish a good part of ones own happiness. Mill, indeed, maintains, no
doubt exaggeratedly, that one might even have to give up ones own happiness
entirely (16). And if willingness to relinquish personal happiness is otherwise ab-
sent, inner sanctions, such as pangs of conscience, and outer sanctions, such as
social or legal punishments, are supposed to help out. Further reservations fall
away when the happiness of those affected is regarded as only indirectly in-
tended, whereby the utilitarian can accommodate Nietzsches point that man does
not strive after happiness. Already in the case of private action, and even more so
in the case of public action, what goes on as a rule is simply the elimination of
certain barriers and obstacles to happiness and the creation of the presupposi-
tions, the fields of action, and room for maneuver needed for a worthwhile life;
happiness itself is not decided upon.
The third standard criticism charges utilitarianism with facing a difficulty that
it shares with other moral theoriesthat of demonstrating the truth of its funda-
mental moral principle; and there is in any case no consensus regarding what
a satisfactory demonstration of a moral principle should look like. Beyond this, a
valid proof might be forthcoming, even if Mills own attempt in the fourth chap-
ter of Utilitarianism is not convincing.
With regard to the debates just adumbrated, the development of the utilitarian
position conforms to the pattern of normal science. Progress is made through
the drawing of distinctions or the addition of postulates or the reduction of theo-
retical ambition. In the end, the view can be defended as a criticalor, better,
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self-criticalutilitarianism (cf. Hffe 1975, chap. 7). The objection raised in

the name of justice can, by contrast, no longer be integrated into utilitarian theory,
no matter how critically refined, and it is this that identifies it as a singularly im-
portant criticism. Within the framework of critiques of utilitarianism, the objec-
tion from the point of view of justice bursts the bonds of normal science and de-
mands a veritable paradigm shift. Two theses underlie this demand: according to
the difference thesis, utilitarianism and justice can lead to different results, and
according to the priority thesis, it is justice that should take precedence in case of
divergence between it and utilitarianism.
The idea of human rights is one of the most important sources of principles of
justice we have. It is part of the very concept of such rights that violations of them
cannot be permitted even in the name of a greater collective good. Utilitarianism,
by contrast, does not exclude the possibility that under certain marginal circum-
stances a slave or a feudal society, or even a police or military state, not only
might be morally permitted but might be morally required, provided that the gen-
eral welfare would thereby be increased.
Upon closer examination, the opposition between utilitarianism and justice di-
minishes somewhat. Given certain empirical assumptions, in particular the law of
decreasing marginal utility, utilitarianism indeed yields a prescription of strictly
equal treatment. Nevertheless, it remains the case that utilitarianism allows the
well-being of one to be weighed against the suffering of another without neces-
sarily insisting on compensation for the victimized individual. While utilitarian-
ism is free to introduce considerations of justice into decision making in a sup-
plementary way, in cases of choice between alternatives that promise equal
collective well-being and are thus welfare-indifferent, our moral consciousness
takes the reverse to be true: only decisions that are on an equal footing from the
point of view of justice can then be submitted to the supplementary test of maxi-
mal collective well-being.
The difference between utilitarianism and justice stems from differing basic
normative concepts. According to utilitarianism, morally good means good
for the totality of those affected. In the case of justice, a notoriously ambiguous
concept, there is at least one meaning according to which morally good means
good for each individual. While utilitarianism defines good in a collective
sense, the sense of good embodied in the concept of justice, or at least in one of
its aspects, is distributive. In case of divergence, it is distributive welfare, justice,
that claims priority.
The definition of the morally good as collective welfare constitutes the inner-
most kernel of utilitarian ethics. I conjecture that this concept is logically inde-
pendent of many other elements, so that it forms the nucleus of the kernel, or the
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A Look at Utilitarianism 109

primary kernel. I would accordingly classify the other elements of utilitarianism

as belonging to an outer, or secondary, kernel. In order to bring this downgrading
of much that has traditionally been thought central to utilitarianism, this demo-
tion in the service of a systematic end, more sharply into relief, I will restrict the
kernel of utilitarianism to the defintion given above and will consign all other el-
ements to the periphery. Nevertheless, one can distinguish within the periphery an
inner from an outer shell. I would, for example, place hedonism, insofar as it is
not, as logical hedonism, already implied in the concept of collective welfare,
in the inner shell, while I would locate the ideas of measuring welfare and making
interpersonal comparisons in the outer shell.
The idea of justice has always played a special role in discussions, both philo-
sophical and prephilosophical, concerning the evaluation and condemnation of
legal and political conditions. Because, as is evident from his title, Bentham, in
An Introduction to the Principles of Morals and Legislation, promises to investi-
gate the principles of legislation, we expect him to grapple at length with the idea
of justice. But Bentham disappoints us in this expectation. He is far too convinced
of the correctness of his utilitarian ethics to subject it to a fundamental and
searching examination. He does not regard the objection from justice as worth
more than a brief note, and we would seek with equal futility for a more subtle
and differentiated discussion in the other relevant works, such as Of Laws in
General or A Fragment of Government. Bentham nevertheless does succeed in
putting forward the decisive utilitarian thesis. In chapter 10 of the Introduction,
entitled On Motives, he first calls justice a phantom, an imaginary person,
and an imaginary instrument (as so often, he writes without any self-doubt at
all), only to press it into the service of his own ethics without further ado. The
dictates of justice, he asserts, are nothing more than a part of the dictates of
benevolence.
Among the classical texts of utilitarianism, Mills eponymous essay is not
only that which has had the greatest influence, it is also the most philosophically
ambitious defense of the doctrine. In the fifth chapter, dedicated to an investiga-
tion of the connection between justice and utility, Mill remains true to Ben-
thams subsumption thesis, the claim that justice is to be subsumed under the
principle of happiness maximization. Appealing to an alleged consensus on the
matteras is commonly acknowledged (41), as people are in general willing
enough to allow (42)he claims that justice is coextensive with a part or branch
of the general welfare. He must maintain this partial coincidence between justice
and welfare on pain of abandoning the claim to exclusivity on the part of utility
that he had made when introducing the theory. In contrast to Benthams self-
confident tone, however, Mill takes the objection from justice seriously. Somewhat
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110 Categorical Principles of Law

overoptimistically, he takes it to be the only true difficulty facing utilitarianism

(62) and devotes his longest chapter to it.
The third classical utilitarian thinker, Sidgwick, has many subtle things to
say about justice, but he finds no new arguments regarding its connection to
utilitarianism. In fact, he rather underestimates the problem. He regards the idea
of justice as a piece of intuitionism and sees so little problem combining it with
utilitarianism that he forgoes any detailed discussion of the topic (Sidgwick
1967 [1874], 49698). As far as the relationship between justice and utilitarian-
ism is concerned, the following at least can be affirmed: in Utilitarianism, Mill
undertakes the philosophically most ambitious defense of utilitarian ethics. He
advances beyond Bentham in the very presentation of the objection from jus-
tice. He sees the two component objections and indeed rejects only one of these,
the difference thesis. Mill subsumes justice under the general welfare and ac-
cords it normative priority over all other components of this welfare, writing
that justice is far more imperative in its demands and has a superior binding
force (43).

In light of the largely successful paradigm shift inaugurated by John Rawlss

theory of justice, one might think it superfluous to discuss once again the rela-
tionship between justice and utilitarianism. The position that defends Kant in up-
holding a moral concept of law (DR VI:22930/5556) has now gained wide cur-
rency in circles in which one had hitherto argued less after the example of Kant
than after those of Bentham and Mill, namely, in the ethical discourse of English-
speaking thinkers. But the paradigm shift is not universally acknowledged, and R.
Trapp (1988) has even recently tried to develop a utilitarianism of justice.
Moreover, while Rawlss critique of utilitarianism may perhaps convince on an
intuitive level, his precise argumentation is not compelling. Because Rawls does
not undertake a semantic investigation of the fundamental ethical concepts
morally good and just, he cannot identify the precise point at which the dif-
ference between justice and utilitarianism begins. Also, Rawls presupposes a
sense of justice, and thereby a fundamental normative attitude, and strictly speak-
ing accomplishes no more than the explication of this sense. The utilitarian, how-
ever, does not recognize justice as a self-standing fundamental normative con-
cept, but relies exclusively on, in Benthams words, the most extensive and
enlightened benevolence (introduction, chap. 10), or the disposition to general
benevolence (Smart 1973, 67). Because a fundamental critique must first legiti-
mate the standpoint of justice, which Rawls fails to do, utilitarianism even today
has a good chance of defending itself.
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6.2. The Secondary Topic: Punishment

One might take the notorious ambiguity of the concept of justice as a reason for
excluding it from rigorous philosophical discourse. But the ambiguity of its fun-
damental concepts has been known to philosophy since its beginning and is one
of the reasons why one undertakes, in Hegels phrase, the heavy labor of the
concept in the first place. So Mill does not dispose of the objection from justice
by the overly simplistic means of setting it aside on the grounds that its central
concept is not sufficiently determinate.
In order to confront the justice objection at its deepest, Mill first confirms the
ambiguity of the concept (42). Next, he searches for a common distinguishing
character, but does not distill this out of the different meanings of justice that he
has listed, and neither does he distinguish elementary from less elementary senses
of the concept. Mill, rather, proceeds etymologically, seeking out a core idea (46).
Finally, he proffers the promised utilitarian justification of the allegedly central
meaning of justice. Mill brings an astonishing variety of aspects to light in the
course of outlining the six senses of justice that he mentions. His reflections are
expressed with great fluency, and even elegance. But if we look for a guiding
thread or something even approaching completeness, we will be disappointed. In
order to discern a systematic coherence, we can put together three pairs of con-
cepts and find in them different themes of a global theory of justice.
Mill begins, entirely plausibly, with justice as the recognition of legally guar-
anteed rights and then, with equal plausibility, relativizes this determination by
noting that it is possible for laws themselves to be morally bad and unjust. In both
cases there are subjective claims whose violation counts as unjust. Mill, then,
identifies two levels of justice. In the case of legally guaranteed rights, we are
concerned with the justice or injustice of the application of laws, while in the case
of morally good or bad laws, we are concerned with the justice or injustice of leg-
islation. So the first pair of concepts already shows that the ambiguity surround-
ing the notion of justice does not result merely from a simple equivocation or
from vague thinking. It mirrors rather the complexity of the matter. With the word
justice we intend to capture a moral standpoint with respect to social condi-
tions, and since we recognize different levels and aspects of social conditions,
one and the same standpoint of morality can be presented in different respects and
at different levels.
Since the standpoint of justice acknowledges different respects, it can have
divers relations to utilitarianism. We are not, in consequence, bound to the exclu-
sive alternatives: difference or subsumption and priority or secondary consid-
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112 Categorical Principles of Law

eration. One might find a partly-partly relationship between utilitarianism and

justice, a view according to which there are both utilitarianism-independent and
utilitarianism-dependent principles of justice, both the difference thesis and the
subsumption thesis. In such a case, a problem of priority would present itself in
the form of the question, For which aspect of justice must utilitarianism defend its
subsumption thesis?
There are good grounds, as far as the standpoint of justice is concerned, for
evaluating legislation first; for the application of a law naturally presupposes the
law in question. In addition, Mill himself, with the recognition of the second
meaning of justice, relativizes those claims of mere positive law, which owe their
existence to their being subsumed under given laws. Bentham, moreover, had al-
ready recognized the priority of legislation over application in the title of An In-
troduction to the Principles of Morals and Legislation; his target is, namely, the
principles of legislation, not the principles of application. In order to fix this pri-
ority conceptually, one can call the justice of rules primary justice and the justice
of the application of rules secondary justice.
In order to meet intuitively plausible objections to utilitarianism, it has been
common since J. O. Urmson to distinguish an extreme act-utilitarianism from a
limited rule-utilitarianism. Since Bentham tries to establish the principle of
utility as the ground of legislation, he can doubtless be regarded as a precursor
of the more sophisticated, rule-based form of utilitarianism. Urmson also sees Mill
as espousing the more sophisticated form of the doctrine, but at least as far as the
theory of justice is concerned, he cannot be followed in this opinion (with regard
to the question whether Mill was a rule-utilitarian, see also Harrison, Mauro,
Berger, and others in Cooper et al. 1979). Because Mill simply lists the different
pairs of meanings, he misses with regard to the first such pair the opportunity to
rid utilitarianism of the objection from justice by defending the subsumption the-
sis only for legislation and allowing independent principles to govern the applica-
tion of laws, for example, the principles of equality and impartiality, mentioned
by Mill himself in his third pair of meanings.
One can find in Mills second pair of meanings of justice, in distribution ac-
cording to desert and in injustice as the breaking of faith, substantial criteria of
morally acceptable laws or, more generally, of just rules of action. As the full title
of Benthams Introduction to the Principles of Morals and Legislation indicates,
it is concerned not only with legislation but also with morals, by which is meant
the rules of conventional morality. Mill too does not limit himself to the realm of
judicially instituted law.
The utilitarian enterprise is subdivided yet again through the second pair of
meanings of justice. What emerges are two levels of rules and a relationship be-
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A Look at Utilitarianism 113

tween utilitarianism and justice that has three levels in total. In contrast to the
rule-utilitarianism that is familiar to us, there can be an internally layered version
of the theory. With this sort of theory, the utilitarians challenge is eased; the fa-
miliar rule-utilitarianism is in a sense divided in two. The subsumption thesis can,
that is, be limited to the first level, the justification of the criteria of moral accept-
ability, the criteria governing distribution according to desert and the prohibition
against the breaking of faith. The second and third levels, by contrast, the specifi-
cation of desert or the breaking of faith and the application of the specified rules,
could be defined independently of utilitarianism by appeal to the third pair of
meanings, the principles of equality and impartiality, with the principle of equal-
ity having a bearing on the specification of rules and that of impartiality on the ap-
plication of the specified rules in a way appropriate to particular cases.
It is not only systematic reflections on the particularity and importance of the
different meanings of justice that are missing in Mills textthe best he does in
this regard is recognize the secondary rank of impartiality when he deems it an
instrumental duty (44)he also fails to mention a number of meanings. One
misses, for example, the distinction between personal justice, justice as a virtue of
character, and an institutional, and here namely political, justice. In addition,
there is no mention of the three areas of application, of distributive and proce-
dural justice, and of justice in exchange. That justice and utilitarianism might be
related to each other in divers ways is especially likely in these three areas.
Because the principles of procedural justice try to translate the idea of impar-
tiality into usable rules, they belong to the sphere of secondary justice and are
granted an independent status by the rule-utilitarian. Two spheres of application
remain, however, and the utilitarian must defend the subsumption theses for them
separately. It is possible that the thesis would hold for the principles of distribu-
tive justice but prove false for the principle of justice in exchange, the principle of
the equivalent value of the goods or services exchanged.
Mill perhaps takes the six meanings of justice to be too disparate to permit the
discovery of a common denominator or a systematically primary meaning. His
defense of the priority thesis and rejection of the difference thesis does not, in any
case, directly follow this discussion. Rather, in a second train of thought, Mill
looks for the linguistically original meaning of justice. He correctly points to the
connection in European languages between words for just and words for law,
but he narrows the connection when he limits the law to positive law. Both the
Latin iustum and the Greek dikaion mean more than the sheer imposition of
law. And what Mill sees but undervalues is the aspect of normative correctness
that is etymologically present in the English right, the French droit, and the
German Recht. These expressions hang together with the idea of the straight
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A Look at Utilitarianism 115

and the correct and also with the higher appraisal of the right side of the body and
the long-standing higher value placed on right as opposed to left, as is manifest,
for example, in the word gauche. Recht and droit originally mean not only
positive law but also the correctness of that which is in force.
The term justice can highlight either side of the unity of positive legal valid-
ity on the one hand and morally valid law on the other. While the term justice
in English and French, along with the German borrowing Justiz, accentuates
the secondary justice that consists in the enforcement of legally valid statutes, the
German word Gerechtigkeit includes within its meaning the moral evaluation
of legally valid statutes and highlights as well, therefore, the normatively primary
level of justice. Although Mill, in the course of his first line of reasoning, as men-
tioned above, does recognize in passing this priority of primary justice, in his
etymological remarks he sees the fundamental element of the concept of justice in
mere agreement with existing law. Mill here tacitly reverses the justice-immanent
priority that Bentham had recognized, de facto if not de jure, in placing legisla-
tion before application. Mill overvalues conformity to positive law and tends
thereby to a positivism that runs counter to the normative and critical interest of
utilitarianism. Above all, he evades the deepest thrust of the objection from jus-
tice, namely, that the justice of rulesand, in case of different orders of rules, the
justice of the highest-order rulesto all appearances contradicts the utilitarian
principle.
Conformity to law does not yet provide Mill with the concept of justice for
which he will defend the subsumption thesis. In a third line of reasoning, he
brings into relief, against the background of the sentiment of justice, the notions
of being deserving of punishment and of having the authority to enforce. Both of
these formal elements could be located either in the sphere of primary justice or
in that of secondary justice. Without explicitly formulating this alternative, Mill
appears simply to leave the question open. So the criticism leveled above, that
Mill concentrates on secondary, rather than primary, justice, might be weakened
in the following way: although Mill does not limit himself to secondary justice,
neither does he focus on primary justice. But the fact that the alternative remains
undecided shows at least that Mills conception of the problem is lacking in depth
and clarity.
Mills statements concerning the role of the two formal elements of justice are
not free of contradictions. At first, he accords an authority to enforce to all duties,
saying of duty in every one of its forms that it has the character of being a
thing which may be exacted from a person and which gives me a claim on others
and others a claim on me (47). Later, though, he limits these properties to duties
of justice (4849). Since the second assertion fits better with the rest of what Mill
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116 Categorical Principles of Law

says, the following interpretation of his position is suggested: with the notion of
being deserving of punishment, Mill delimits the field of morality as such and dis-
tinguishes it from the rest of the domain of general welfare; with the authority to
enforce or exact, he distinguishes within morality duties of justice from other
duties such as those of generosity or benevolence. The demands of justice can be
enforced; by contrast, although he who is not benevolent deserves punishment,
for example, pangs of conscience or social disapprobation, he should not be
forced to be benevolent.
Mill also uses the traditional distinction between perfect and imperfect duties
to elucidate the distinctiveness of justice. In both cases, he says, there is moral
obligation. In the case of perfect duties, obligation is incurred to a definite person
or group, while this is not the case with respect to imperfect duties. Because the
authority to enforce and the obtaining of a definite claim of right belong to duties
of justice, one can ascribe to these a stricter sort of obligation and acknowledge
the priority thesis that constitutes the second objection from justice. Mill has not,
however, provided a utilitarianism-specific reason for the normative priority of
justice within the framework of morality. All he has done is find the precise point
at which he will defend the subsumption thesis, that violations of definite claims
of right deserve punishment, that, in other words, offenses against justice deserve
punishment. Has he then found the right point at which to defend his thesis, albeit
by a circuitous route?
Mill is far removed from vulgar utilitarianism. Not only does he try to refine
the hedonistic element of the doctrine, but he also, instead of wanting to measure
each action directly against the utilitarian principle, recognizes that some utilities
have moral significance while others do not. Within the domain of the morally
relevant utilities, he distinguishes perfect from imperfect duties, so that justice as
a perfect duty makes up only a small part of the sum of utilitarian obligations.
Mill demonstrates an equally impressive capacity for making subtle distinctions
with respect to justice. He sees that the rights whose recognition we owe to others
can have either a positive or a moral character. He provides examples of criteria
for moral rights and assigns a subordinate role to impartiality, understood as the
duty to give everyone what is rightfully his (44). Finally, he deems violations of
rights to be deserving of punishment and begins his defense of utilitarianism at
just this point.
However, the objection from justice, in whose name the paradigm shift away
from utilitarianism took place, does not appeal to the notion of being deserving of
punishment. The objection draws attention to claims of justice that every person
has simply in virtue of his or her humanity, and it asserts that these human rights
cannot be legitimated on utilitarian grounds. To defend himself, then, the utilitarian
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A Look at Utilitarianism 117

must either accept the first part of the opponents thesis, the idea that there are
human rights, and reject the second part, by showing that human rights can per-
fectly well be justified on utilitarian grounds, or he must call the first part of the
thesis, the idea of human rights, into question. The first line of defense entails a
weaker, merely legitimation-theoretical difference from certain other theories of
justice, while the second strategy leads to stronger, moral-practical differences.
Mill pursues neither of these two strategies. In connecting desert of punishment not
to human rights but to all violations of rights indiscriminately, he simply evades the
objection based upon justice.
Beyond this, the concept of human rights is concerned with the adjudication of
justice, while the concept of punishment is concerned with its execution. Insofar
as the question of enforcing justice presupposes the question of what justice re-
quires, the issue of punishment represents a secondary problem. Only under the
presuppositions, first, that human rights have been shown to be valid and, second,
that one cannot count on their being recognized voluntarily does the question of
how to help them function effectively in spite of failures of voluntary acknowl-
edgment arise. The threat of punishment is a possible answer to this question,
since, under the assumption of enlightened self-interest, the recognition of human
rights can be expected if the penalties and the chances of apprehension in case of
violation are high enough to make violation not worthwhile.
Because Mill sees neither that in talking of punishment he has changed the
subject as far as the fundamental question of justice is concerned, nor that the
issue of punishment has only a secondary bearing on the issue of justice, he also
does not see that he in fact evades, rather than meets, the objection from justice.
Both the dearth of systematic reflection in Mills definition of justice and its in-
completeness can be remedied by appropriate modifications and additions. But
the incongruity between his aim of defending an ultimate moral criterion, and
therefore of answering the question of how to establish what justice demands,
and his shift from the leading task of a theory of justice to a subsidiary one can-
not be so easily corrected. Beyond this, Mills answer to the question of how jus-
tice is to be enacted contributes nothing toward answering the question of how it
is to be adjudicated, of how its requirements are to be established.
Although there is an objection from justice on this topic as well, it is neverthe-
less entirely possible that utilitarianism could prove tenable as far as the sec-
ondary question, concerning violations of justice and deservedness of punish-
ment, is concerned. According to the objection, there is justification for punishing
someone because and only because the person in question deserves it, not because
punishment contributes to the general welfare (see Chapter 8 below). If utilitari-
anism were able to escape this objection and justify deservedness of punishment
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118 Categorical Principles of Law

on the basis of general welfare, its claim to exclusivity, though not yet defended,
would be subject to a diminished set of misgivings.

6.3 An Unsuccessful Defense

Mill interprets the felt need to punish as stemming from a natural instinct for self-
defense and thinks that it is linked to the equally natural feeling of sympathy, as a
result of which one defends not only oneself but also all fellow humans and even
all sentient beings against injustice. Added to this, as a third moment, would be
the higher intelligence that allows one to see the way in which ones own interests
are connected to the interests of society. The utilitarian principle is to extract
whatever is moral in this sympathy-enlarged and intelligence-supported instinct
of defense. This task of identifying the moral element of the instinct to defend
oneself is to be understood as a double one: on the one hand the felt need to pun-
ish is to be justified, while on the other hand it is to be limited, in that the only part
of the felt need to punish that is justified is that which serves the general welfare.
As plausible as the general argumentative strategy isthe legitimation of the
urge to punish is to be linked to a limitation of the samethere are nevertheless
problems with the individual arguments. A first misgiving is that while the inter-
est in self-defense reacts indiscriminately to each and every attack, it is only the
prevention of injustice that can count as legitimate. Now, Mill holds that the in-
terest in self-defense is supposed to be united with sympathy and understanding,
but this connection does not guarantee that one will defend oneself only against
violations of ones rights. One might, then, want to carry out the demarcation of
legitimate from illegitimate defense with the help of the utilitarian principle. But
Mill does not have an argument to show that it serves the general welfare to de-
fend against each injustice and only against injustice. So here the utilitarian must
deal with another objection from justice, since an appeal to the general welfare
might explain why one should take action against injustice as a rule but not
why one should take such action as a matter of principle.
If Mill were a convinced rule-utilitarian, he might want to reply to this objec-
tion by appealing to impartiality as the secondary justice that the rule-utilitarian
recognizes as a utilitarianism-independent principle. But this argument does not
suffice to rebut the objection. For while a utilitarian who aims to legitimate the
moral element of the need to punish might be permitted to determine the way in
which claims of justice are enforced on grounds independent of utilitarianism, he
must at least provide a definition of what it is to run counter to a legitimate claim
of justice, that is, what it is to be an injustice, that does depend upon the utilitarian
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A Look at Utilitarianism 119

principle. Since Mill concentrates on the urge to punish and consequently on the
enforcement of rights, he fails to provide a definition of the required sort. But
the objection from justice is concerned with just such a definition.
A second misgiving is this: that a defense is, in the nature of the case, prospec-
tive; its aim is to prevent oneself from becoming a victim and ones aggressor
from becoming an offender. A punishment, by contrast, is retrospective, it results
from an injustice and is imposed because of the injustice. Because of this retro-
spective focus, punishment has the character of retaliation, albeit in a neutral
sense. Punishment can secondarily acquire a prospective sense and seek to avert
injustice by means either of a special or a general prevention. But the primary
function of punishment is to respond to injustice, and its significance is therefore
retrospective (see Chapter 8 below). With respect to the penal code, the theory of
general prevention, or deterrence, is accounted utilitarian, while the retributive
theory is regarded as Kantian. Mill, surprisingly, does not articulate these two
possibilities, and indeed, he tends toward the anti-utilitarian retributive theory of
punishment when he demands that evil be returned for evil (59).
A further difficulty concerns the relationship between sympathy and intelli-
gence. If, as Mill maintains, ones understanding helps one to recognize a danger
to society as a personal danger, then one has no more need of sympathy to prompt
one to defensive action. That Mill does not spell out this objection shows that
although he is aware of the difference between justice and benevolence, the full
extent of the difference has not become clear to him. While benevolence restricts
self-interest by means of sympathy, a good part of the demands of justice can be
developed from self-interest enlightened by understanding. Pace Mill, sympathy
and understanding are not so much two mutually complementary as two alterna-
tive elements. If it is understanding that expands the natural-defense instinct, then
one will be concerned about threats to society only insofar as they threaten one-
self as well, while if one is moved by sympathy, then one will make efforts to
defend others even when one is not oneself at all affected.
The possibility of justifying demands of justice on the grounds of enlightened
self-interest is especially evident with respect to Mills own topic, the need for
punishment, although a supplementary argument is needed to show this. The re-
quired argument begins with an open question: whether a danger affects one di-
rectly or indirectly by means of its threat to society, why should an institution such
as that of punishment be required to motivate one to take defensive action? One
would think that instinct or enlightened self-interest alone would present a suffi-
cient motive. The answer to this question lies in a second-order danger, that of the
free rider. Because any threat to society is also a threat to others, I can count on
others defending themselves and thereby reap the benefits of having the danger
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120 Categorical Principles of Law

warded off while not incurring the cost of making any effort to defend myself. It is
smart to defend oneself, but it is even smarter to wait for others to do the defend-
ing, and smartest of all is to encourage others to defend society and to withhold
any contribution of ones own
The danger of the free rider represents precisely the sort of secondary or sub-
sidiary problem of justice that arises with respect to its implementation, rather
than its definition, and that justifies the need to punish. Retrospectively, punish-
ment is supposed to cancel the unfair advantage of free riding, and because pun-
ishment is to be expected, it can also function prospectively and deter one from
getting mixed up in free riding. The dual function of punishment is thereby ex-
plained: it is primarily retaliation for an unfair advantage, and secondarily it is
supposed to deter.
When argumentation is flawed, the weaknesses and errors are seldom few.
Here is a fourth argument against Mills position. If the moral justification of pun-
ishment lies in the principle of utility, then Mill cannot uphold his priority thesis.
For in both cases the truly moral element is the same, so that the strictness of
obligation will also have to be the same. Mill, therefore, defends a thesis that is
convincing in itself, but he defends it with the faulty argument that justice im-
poses a stricter obligation than does benevolence.
Now, one might try to substantiate this normative argument by appeal to the el-
ementary character of the goods with which justice is concerned, that is, to the
character of the goods with which punishment is concerned. According to Mill,
punishment stems from the need for security, but in comparison with security, the
need for food is still more elementary. With respect to the need for food, the dis-
tinction between justice and benevolence is conceptually indifferent. He who,
like the Samaritan in the biblical parable, helps someone to whom he is under no
legal obligation, or he who saves a total stranger from starvation, concerns him-
self with an elementary good, but nevertheless fulfills a duty of benevolence that
is normatively secondary. One cannot rely upon the elementary character of the
goods protected by justice to support the priority of justice over benevolence. As
Mill himself saw, the mark that distinguishes justice from benevolence lies in the
presence or absence of well-defined claims of right. Mill has not shown that this
difference can, on utilitarian grounds, justify a normative hierarchy. The argu-
mentative goal of providing a utilitarian justification of the priority of justice re-
mains plausible, but it has not been reached.
Mill in any case still owes us an adequate execution of the main task. In his ex-
pansive conceptual investigation of justice he does not put his finger on the se-
mantic crux. He appeals to Benthams dictum that everybody is to count for one,
none for more than one (60), and it is true both that a fundamental equality is
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A Look at Utilitarianism 121

recognized in this dictum and that Mill sees equality as one meaning of justice.
He overlooks, however, the fact that utilitarianism recognizes equality only as the
foundation for the calculation of the general welfare, not as a result of the calcu-
lation. Because of this, the individual becomes a mere means to the ends of oth-
ers; in calculating collective welfare, the happiness of one can be traded off
against the happiness of another. Marx and Engels are entirely justified in labeling
this endorsement of trading off one against another the exploitation of man by
man. The idea of justice is supposed to defend us from just this instrumentaliza-
tion of the individual for the sake of the collective.
The common moral consciousness of mankind has long taken it for granted
that it is morally impermissible to instrumentalize people in this way. Kant
brought this principle to conceptual clarity in his second subformulation of the
categorical imperative, which states that man is an end in himself (G IV:428/36),
but the point itself had been recognized long before. It is therefore astonishing
that, in the English-speaking world, utilitarianism could for so long have estab-
lished itself as the exclusive ultimate principle of morality and not have been rel-
ativized by the idea of justice far sooner. As far as Mill is concerned, the explana-
tion cannot be that utilitarians refuse to acknowledge the demands of justice. He
offers at least indirect support for human rights in Utilitarianism (62), calling the
distinction between slaves and freemen just as unjust as that between nobles and
serfs or patricians and plebeians. As well, he rejects aristocracies based upon skin
color, race, or sex, and elsewhere, in his writings on freedom and the oppression
of women, he inveighs against other injustices.
The lateness of the paradigm shift in English-speaking circles cannot be ex-
plained by the absence of sufficiently clear and philosophically acute formulation
of the opposing, nonutilitarian position. The practical philosophy Rawls appeals
to today in his criticism of utilitarianism, the ethics of Kant (see Chapter 11
below), was worked out long before Mills time. Although Mill several times
quotes Kant, he is not clear on the source of the difference between their posi-
tions. Mill has too vague a conception of the general welfare, and this vagueness
prevents him from seeing the following open question: Is a collective benefit also
a benefit to each in a distributive sense? or: Does the welfare of the group always
coincide with the welfare of each individual?
Mills insufficient conception of the problems involved manifests itself in a
brief digression on Kant (4). Here Mill claims that, unbeknownst to Kant, the cat-
egorical imperative leads to utilitarianism. He argues that one who follows Kants
moral principle must take into account the interest of mankind collectively, or at
least of mankind indiscriminately. In order for Mills criticism to hold good, the
phrase or at least cannot have a disjunctive meaning. Both the concept of general
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122 Categorical Principles of Law

welfare that precedes the or and that which follows it must correspond to the
utilitarian position. But this is not the case. Instead, Mill offers an alternative, one
that corresponds exactly to the difference thesis contained in the objection from
justice. For in the one disjunct, mankind collectively, lies the utilitarian stand-
point, while in the other, mankind indiscriminately, lies that of justice. Because
the collective interest of mankind is conceptually distinct from the distributive in-
terests of men, Mill must decide which of the possibilities is supposed to corre-
spond to Kants moral principle. The fact that Mill refrains from making this deci-
sion demonstrates the inadequacy of his conception of the problem, and this
inadequacy is independent of his particular thesis about Kant; it results from the
conceptual tool kit he uses in the justification of his thesis.
Because moral legitimacy, which is to say, justice, means, at least in part,
good for each individual, it cannot be wholly subsumed within utilitarian the-
ory, not even if in certain cases collective welfare might happen to coincide with
distributive welfare. Mill is certainly correct to say that justice and utilitarianism
are not simply disparate; in both cases one is concerned with benefit. One who
considers the benefit with which utilitarianism is concerned and that with which
justice is concerned as forming a common genus might even speak of them as
being homogeneous. The kind of benefit involved is nevertheless different. In
the one case, collective benefit is at issue; in the other, distributive benefit. Be-
cause justice and the principle of utility constitute two different species of one
and the same genus, the subsumption thesis, the Bentham-Mill variant of the ho-
mogeneity thesis, cannot be correct. Utilitarianism and the standpoint of justice
do not stand to each other in the relation of superset to subset or whole to part.
Leaving aside the possibility that they might in a secondary way stand to one an-
other in a hierarchical relationship, the two standpoints are in the first instance
horizontally, rather than vertically, related.
To say that justice consists in distributive benefit is not yet to say anything
about the nature of the benefit involved. The philosophical theory of justice
leaves the determination of the content of the benefits conferred by justice to
other, nonnormative considerations. For this reason, nonutilitarian theorists of
justice can claim the same advantage that utilitarians often boast of (cf. Smart
1973, 73), and a favorite utilitarian argument correspondingly loses power. The
standpoint of justice too is open to empirical considerations: it too is capable of
reacting to changing marginal conditions of life in a flexible manner.
Whether something is beneficial to someone depends to a great extent on the
person himself, on his talent and history, on his needs and interests. For this rea-
son, a subjective concept of benefit suggests itself; at best one can supplement it
with certain objective pieces of advice about what is truly advantageous. One
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must, by the same token, consider very carefully Mills suggestion of a qualitative
hedonism. For the demand that people develop their capacities for higher gratifi-
cation contains paternalistic elements not so easily made compatible with the idea
of justice. When it is not merely advice that is at issue, but enforceable duties, pa-
ternalism is permitted only when, as with a legitimation of rights pertaining to
freedom, one can name goods that are distributively beneficial and of indispens-
able advantage (cf. PJ chap. 12).
I maintained in the opening remarks of this chapter that even after Rawlss
Theory of Justice it was not out of place to investigate the relationship of utilitar-
ianism to justice. In the case of the work that generally is taken to be the most am-
bitious defense of the utilitarian position, Mills Utilitarianism, this investigation
lights upon several misgivings. So, at least in the case of the relationship to jus-
tice, either the status of Mills essay is undeserved, and there are philosophically
more ambitious defenses of utilitarianism, or the status is deserved, and the posi-
tion itself is weak. Mills Utilitarianism probably is the most ambitious defense,
and it is without doubt the most influential. Compared to Bentham, Mill reads
very well, but as far as the issues themselves are concerned, one comes away
from a detailed examination with renewed sympathy for the sharp criticisms of
Marx, Engels, and Nietzsche. With respect to the central problem of justice, utili-
tarianism cannot be called philosophically sophisticated.
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7
T H E P R O H I B I T I O N AG A I N S T FA L S E P R O M I S I N G

7.1. The Groundings Juridical Example (Rechtsbeispiel )

Examples in philosophy are usually meant to give vivid expression to abstract

thoughts. In Kants Grounding, they are not limited to this function. Certainly, the
categorical imperative is illustrated by putting it to work by way of example, but
in seeing the imperative illustrated, we are able also to perceive a new philosoph-
ical task. As long as Kant develops the concept of the categorical imperative and
investigates its validity, he holds fast to the intention of the preface and nothing
more than seeking out and establishing the supreme principle of morality (G
IV:392/5). In the very act of constructing and interpreting examples, Kant departs
from this intention and, glancing momentarily beyond the project of a first phi-
losophy of morals, or fundamental ethics, concerns himself with that second
moral philosophy which, relative to fundamental ethics, can be called applied

125
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ethics but which, by comparison to the application of moral obligations in con-

crete praxis, is better named a theory of moral duties. This second moral philoso-
phy is concerned with the categorical imperative in the plural and therefore with
examples of unconditionally valid moral imperatives.
While Kant reserves the systematic exploration of these duties for a future
metaphysics of morals, in the Grounding he already anticipates such a metaphysics
in the fragmentary form of examples. In fact, his procedure is not altogether frag-
mentary. For the examples he discusses twice in the second section (G IV:42123
and 429 ff./3032 and 36 ff.; cf. also 435/41) and introduces also in the first sec-
tion, albeit without the third example (G IV:39799 and 402 ff./912 and 14 ff.)
the examples, that is, of the prohibitions against suicide and false promising and
the injunctions to develop ones talents and to help othersconstitute the four cor-
nerstones of the later system of morality.
Kant professes modesty on this point, reserving the division of duties for a fu-
ture metaphysics of morals (G IV:421/30). Despite this disclaimer, we find in the
second part of the Metaphysics of Morals, the Doctrine of Virtue, specifically in
its Elements of Ethics, that the two viewpoints of the Grounding are employed:
the customary division of duties into those toward oneself and those toward
others, which is perhaps taken over from Mendelssohn (1983 [1783], 115 and
127), along with the distinction between perfect duties and imperfect duties, or
duties that are owed and meritorious duties. The Doctrine of Virtue indeed grants
a special weight to the examples from the Grounding and even introduces them in
the same order; nevertheless, it discusses the second example from a perspective
different from that of the Grounding. Since the topic of legislating perfect duties
to others belongs to the Doctrine of Right, the prohibition against lying in the
Doctrine of Virtue is treated as a perfect duty to oneself.
The Doctrine of Virtue begins with a human beings perfect duties to himself
as an animal being, among which is included the prohibition against suicide,
called there killing oneself [die . . . Entleibung seiner selbst] (DV
VI:42224/21820). The prohibition against lying follows as a a human beings
perfect duty to himself merely as a moral being (DV VI:42831/225), after which
comes the injunction to develop and augment ones talents as a human beings
imperfect duty to himself (DV VI:44446/23940). The Elements of Ethics
concludes with duties of virtue, which is to say, imperfect duties, to others, at
the head of which Kant once again places the example from the Grounding,
the injunction to help others, or, as it is called here, the duty of beneficence
[Wohlttigkeit].
Not least of the grounds for the high philosophical rank of the Grounding is
that its examples belie their unprepossessing appearance and turn out to signify
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much more than a mere illustration of the abstract points; they turn out in fact al-
ready to contain an anticipatory sketch of the future Metaphysics of Morals.
When Kant says in a footnote that the division of duties presented here stands as
merely an arbitrary one (G IV:421/30), he does not mean that the examples have
been chosen haphazardly or at random. By arbitrary Kant means not yet justi-
fied. He thinks that the division of duties in the Grounding is apt and worthy of
approval, but its rationale is made apparent only in the Metaphysics of Morals.
From a historical perspective, Kants footnote was perhaps prompted by Johann
Friedrich Zllners (1784, 1025) doubts about Mendelssohns division of duties,
doubts into which Kant could not delve further in the Grounding, since the man-
uscript was already in press.
The examples in the Grounding anticipate not only private morality but, with
the example of false promising, also the philosophy of law and right. Looking to
the future Metaphysics of Morals, the making of a false promise falls, on the one
hand, under the prohibition against lying in general and so violates a duty of man
to himself; insofar, the example is to be assigned to the Doctrine of Virtue, with the
result that the examples in the Grounding anticipate precisely the divisions of that
portion of the Metaphysics of Morals. On the other hand, although Kant does in
the Grounding have in mind the prohibition against lying in general (G IV:403/15),
he discusses a special case. Since the example emphasizes loss of credibility and
therefore the reaction of a second party (G IV:403 and 422/15 and 31), it consti-
tutes a lie that is unlike a false vow in that it does not affect only the liar himself.
Kants choice of example concerns untruth to others.
The Groundings discussion of the prohibition against lying has, therefore, to
do not with the perspective of virtue but with the perspective of right. In addition,
false promising is the only one of the Groundings examples that has to do with
the ethics of right and law. For Kant takes duties to oneself to be just as much du-
ties of virtue as are imperfect duties. To be sure, one should not overestimate the
significance of the example in the Grounding for Kants philosophy of law and
right. In examining false promising, Kant aims neither to present the categorical
imperative of law, the fundamental principle of morally acceptable law that con-
sists in the coexistence of individuals with freedom of action according to a uni-
versal law (DR VI:22931/5556), nor to deal with the first principle of private
law, the postulate of practical reason with respect to law and right, which legiti-
mates the institution of property (DR VI:27476/9495). Neither, finally, does the
example concern the justification of public law and its fundamental institution,
criminal punishment (DR VI:30513/12024).
The fact that Kant deals in the Grounding with duties that are fundamental to
the ethics of virtue but constitute secondary obligations from the point of view of
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128 Categorical Principles of Law

the ethics of right and law can be explained by the intention of the work. Since the
whole range of topics that form the primary focus of the Doctrine of Right have to
do with legality, what was left for the Grounding, whose focus is morality, was
but a single example with a relatively smaller importance for the ethics of right
and law. At the same time, the credibility that is at stake in false promising is the
basis for all rights based on contracts (OSL VIII:426/64).
The false promise that Kant discusses in the Grounding is not only a lie to oth-
ers, it is also a special case of untruth in two further respects. The lie he examines
is not neutral with respect to advantage and disadvantage, but is a harmful lie; and
in contradistinction to the case he debates with Benjamin Constant, it is not only
humanity in general (OSL VIII:426/64) that is harmed by the lie, but the party
lied to is himself deprived of a justified claim. With respect to these two addi-
tional features of the case, we must distinguish between the story that Kant
sketches and the argument upon which he relies. Since he rests his criticism of
false promising on the loss of credibility as such, independently of whether this
loss harms anybody, he in fact discusses, and disqualifies, lies to others in gen-
eral. As he says expressly in the debate with Constant, he rejects not only those
harmful lies that are aimed at depriving some person or group of what is right-
fully theirs. Insofar as inner lies can diminish ones credibility before oneself,
Kant discusses, as far as the core of his legitimation strategy is concerned, not
only lies to others but all varieties of lying.
If the following reflections concentrate on false promising, they do so deliber-
ately, in the effort to seek out an example of a categorical imperative in the plural
that is more easily legitimated than other examples, and this for two reasons. In
the first place, the example does not come under the heading of a duty to oneself,
a concept that is essentially foreign to the modern moral consciousness. Second,
it belongs to the perfect duties, with regard to which the categorical imperative
takes the more rigorous and easily understood form of claiming that actions that
violate it are unthinkable, rather than unwillable. If the categorical imperative can
prove itself valid here, it will have shown itself to be a moral principle capable of
being applied. That it perhaps fails to function in the case of the other examples
might be attributed to their marginal conditions, and in the case of some of the
duties that Kant wants to validate morally, one might have justified doubts not
only about the way he tries to do this but also about the very aim of the enterprise.
The task of legitimating a perfect duty, such as the prohibition against false
promising, is, however, made more difficult by the fact that the prohibition must,
in contrast to imperfect duties, be shown to hold without exception. Because of
this, the attempt to legitimate perfect duties can provoke the charge of, as it can be
called, rigorism. So in the example of false promising it is not only the applica-
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bility of the categorical imperative that is brought under discussion, but also the
question of ethical rigorism. In addition, as a third element, the example contin-
ues the debate over fundamentals between Kant and utilitarianism.
Because of its concern for the consequences of action, and specifically the
value of these consequences for human well-being, utilitarianism is called a teleo-
logical ethics in contradistinction to Kantianism, which is taken to represent the
deontological position. This description of the two outlooks is often regarded as
favorable to utilitarianism, since it treats reflection on the consequences of ones
actions as indispensable, whereas Kant excludes them entirely. What is true about
this characterization of the opposing views is that utilitarianism generates moral
duties from empirical-pragmatic considerations, whereas Kants rational, and in
this sense metaphysical, ethics forbids such considerations. Now, the utilitarian
maxim that enjoins one to further the well-being of all concerned has a (more nar-
rowly construed) correlative in Kants duty to help others. In the case of this duty
we must distinguish its application from its justification. It may be the logic of the
argument itself that precludes Kant from appealing to empirical-pragmatic consid-
erations for the purpose of justifying the duty to help, and this should be accepted
by the utilitarian. For one cannot without circularity validate the duty to take into
consideration the consequences of ones actions for the well-being of ones fellow
men by arguing that the observance of this duty contributes to the well-being of
ones fellow men. But one who makes this duty his own, and does so on Kantian
rather than utilitarian grounds, can fulfill it only by paying ever renewed attention
to the consequences of his actions for the well-being of his fellow men.
So the consideration of consequences does play a role in Kants ethics. To
begin with, and perhaps trivially, Kant allows consequences to be considered
when applying the fundamental principles of morality. One who takes the duty to
help others seriously has to know which actions will result in the overcoming, or
at least the attenuation, of a desperate situation. At least in the case of imperfect
duties, one must inquire into consequences in a second way. Sensitive people per-
ceive a great deal more distress than they are able to diminish or relieve. Such
people are morally permitted, and indeed enjoined, to reflect on where they can
intervene with the greatest likelihood of success. Similar considerations hold for
the duty to develop ones talents. Here too we frequently meet with many more
possibilities than can be realized, and then reflections oriented toward conse-
quences are certainly morally acceptable.
In the dispute between Kant and utilitarianism over ethical fundamentals, the
issues go beyond those mentioned above; they have to do not only with the appli-
cation but with the justification of fundamental moral principles. Even here Kant
allows the consideration of consequences, albeit in a strictly limited form. The
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130 Categorical Principles of Law

example of false promising is well suited to showing the sort of considerations of

consequences that are acceptable according to Kant, and it enables one to show,
beyond this, that at least in the case of false promising the Kantian treatment of the
role of consequences in moral deliberation is superior to its utilitarian counterpart.

7.2. Logic and Pragmatics

Kants way with his examples has led many to interpret the categorical imperative as
a test for moral duties. But the fact that Kant speaks of the fulfillment of duty in
abstraction from considerations of why one is so motivated as dutiful (G IV:397/
10) or, from the Critique of Practical Reason onward, as legal, not in the sense of
conforming to positive law but instead morally legal (C2 V:71, 81, 118, 151/62,
69, 99, 125), speaks against this view. The supreme principle that the Grounding is
supposed to seek out and establish is, however, the supreme principle of morality (G
IV:392/5). If the categorical imperative is to fulfill its task as the highest principle of
morality, then it must function as the criterion of morality, which is to say that it
must be the criterion of purity of disposition. In the case of a duty of law such as the
prohibition against false promising, this means that the categorical imperative must
be the measure of the corresponding disposition to obey the law.
By the same token, Kant holds that morality can only show itself on condition,
first, that moral duty be observed and, second, that it be observed for no reason
other than that it is there. Kantian moral worth is not neutral with respect to legal-
ity, but signifies a second level of morality, which presupposes the first (that is,
legality). According to Kant at least, the test for motivational or formal correctness
is built upon the assumption of material correctness, or correctness of content.
Kantian moral worth does not represent an independent condition, but sharpens
the demands of moral legality (see 3.3 above).
Now, there could be two different criteria, one for moral legality and another
for strict morality, or moral worth. It is further conceivable that only the second
testin the case of promising, the test for the disposition to obey the lawwould
be nonempirical in nature, while the former, the test for the prohibition against
lying as such, would rely upon empirical-pragmatic considerations. This situation
would relieve Kant of a certain amount of ambition and make his program of a ra-
tional ethics less provocative, and also less fascinating; for in that case the
sought-for justification of morality, an experience-free, metaphysical justifica-
tion, would be restricted to the formal side of moral action and would be empty as
far as the material side is concerned, the system of substantial duties. By legiti-
mating material duties both in the Metaphysics of Morals and in the examples that
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anticipate it in the Grounding, Kant shows that he does not follow this path of
caution and modesty.
Kants discussion of examples demonstrates in a particularly complicated way
that he sees in the categorical imperative a criterion at once for morality and for
legality. Kant does not test for universal legislation immediately. He sketches
first, in a step of the argument connected to the question of moral worth, a clear
decision situation in the manner of a Kierkegaardian Either/Or. Not until the
second step of the argument, connected to the question of moral legality, does he
carry out the purely rational method of universalization. In the absence of more
apt designations, I will speak, in the case of the first step, of the pragmatics of the
categorical imperative and, in the case of the second step, of its logic. While it is
correct as far as its logic is concerned to regard the categorical imperative merely
as a test for moral duties, it is wrong so to regard it with respect to its pragmatics.
I shall elucidate the pragmatics of the categorical imperative only for the per-
fect duties. In the case of the prohibition against suicide, the either is to give
oneself over to weariness of life and kill oneself; the or is to live on despite loss
of hope. In the case of false promising, the either consists in borrowing money
when that is possible only through dishonesty, and the or consists in remaining
honest even if one thereby renounces the possibility of escaping severe distress.
The either-or sketched by Kant consists in a dilemma. Both situations are re-
grettable, but from different perspectives. One who remains loyal to life despite
loss of hope contravenes his self-interest, as does one who remains honest al-
though his honesty consigns him to a desperate situation. And neither is the dam-
age to self-interest of merely marginal importance. Being weary of life and being
in severe distress are situations of existential weight. On the other hand, Kant
postulates in the pragmatic part of the argument that one who kills himself out of
weariness of life violates the command of duty, as does one who cheats another
in order to free himself from his dire straits. In this way, Kants either-or consists in
that dramatic alternative between duty and inclination of which the biblical verse
holds: He who is not for me is against me. One who chooses duty in Kants hy-
pothetical extreme situation must sacrifice inclination, and one who decides for
inclination must eo ipso contradict duty.
Kant finds himself forced to the construction of these dilemmas because either a
natural or a reflected harmony often subsists between duty and inclination. People
normally have a natural urge to live (G IV:397/10), and businessmen tend to be
honest in order not to lose their customers, debtors, and creditworthiness (G IV:397
and 402/10 and 1415). Because duty and inclination overlap for long stretches,
one can identify purity of disposition, action for the sake of duty, only in situa-
tions that take the form of dilemmas. Only in a case of conflict between duty
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132 Categorical Principles of Law

and inclination does one recognize that to choose duty is, precisely thereby, to
renounce self-interest. Here, but only here, does the material correctness of an
action at once put its morality to the test. In the examples in the Grounding,
Kant does in fact test for more than mere legality.
It is not, however, universalizability as such that is used to check for moral
worth, but rather universalizability as applied in the exaggerated situation in
which a decision must be made. Beyond this, the test for moral worth presup-
poses something that is not proved until the second step of the argument, the ac-
tual universalization procedure: in each case only one maxim is universalizable
and therefore accords with duty. In this way, Kant gives to understand, through
his treatment of the examples, that moral worth cannot be examined on its own,
but only relative to a knowledge of moral legality.

Since moral worth, as the second stage of morality, presupposes its first stage,
moral legality, it assumes a knowledge of this legality without demonstrating it.
One might regard this approach with suspicion. In truth, we will see that the ap-
proach chimes well with Kants primary interest, the rejection of moral laxity.
With respect to the logic of the argument, the test for moral worth is hypothetical:
whatever the moral law consists in, it is to be fulfilled even when there is no in-
clination to do so.
With regard to the step of the argument that remains to be carried out, the step
I have called the logic of the categorical imperative, it is disputed whether Kants
criterion of morality, the categorical imperative, represents a measure only of pro-
hibitions or of moral injunctions as well. The answer has to be the latter. Because
prohibitions and injunctions are contraries from the point of view of modal logic,
it might appear that a criterion for prohibitions can insofar function as a criterion
for permissibility but not for injunctions. For this reason, the answer to the con-
troversial question can seem paradoxical, but the paradox resolves itself when
one takes the first step of the argument, the dilemma between duty and inclina-
tion, into account.
To begin with, Kant does not run through the second step of the argument, the
demonstration of a moral duty, in a positive way. True, he does in the promising ex-
ample maintain that the concept of the action itself contains a law for me (G IV:
402/15), but he justifies the law of honesty only e contrario, by proving that
false promising is not universalizable. Although Kant formulates the categorical
imperative as a positive commandAct only on a maxim such that . . .he
applies it in the Grounding in its negative form only, as a measure of prohibitions.
Moreover, this negative application holds good not only for the two perfect du-
ties, the prohibitions against suicide and lying, but also for the imperfect duties.
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There too Kant discusses maxims that are contrary to duty, and claims that neither
an unwillingness to hone ones abilities nor an indifference to the distress of
others could be willed as universal laws of nature. Thus, what is probably the
dominant way of reading Kant appears confirmed, the reading according to which
the categorical imperative is a measure of prohibitions alone.
However, in the dilemmatic situation, the prohibited actions are not contrary
to, but contradictory of, the corresponding positive achievements; thus suicide
contradicts living on, a dishonest promise contradicts an honest one, the neglect
of ones talents contradicts their development, and indifference to the distress of
others contradicts helpful action. In a strict dilemma between duty and inclina-
tion there is no third way, no chance of washing ones hands in innocence. As
Kant puts it in the essay on religion, disposition with regard to the moral law
[can never be] indifferent (R VI:24/49). Because the dilemmatic situation does
not allow an intermediate resolution of the conflict between self-interest and
duty, the categorical imperative is not only a direct criterion for moral prohibi-
tions and, because of the modal-logical equivalence of not prohibited and per-
mitted, an indirect measure of permissibility; it represents as well, due to the ex-
clusive disjunction of the alternative possibilities for actioneither kill oneself
or live on, either make a false promise or make an honest onea direct criterion
for moral injunctions. Depending upon the perspective adopted, therefore, it fol-
lows that not only the imperfect but also the perfect duties are duties of com-
mission, and not only the perfect but also the imperfect duties are duties of
omission. One who refrains from dishonesty performs an honest deed in
virtue of this omission, and one who is not indifferent to the plight of others is
thereby helpful.

7.3. Two Concepts of Rigorism

According to the rigorism of which Kant is frequently accused, the categorical im-
perative is supposed to demand observance without exception, something that
does not always agree with our moral intuitions. In the case of a collision of duties,
namely, a case in which one duty can only be fulfilled at the expense of another, it
is hard to uphold the view that duty is to be followed without exception. Accord-
ing to this criticism, Kant, who defends the exceptionless character of duty in spite
of this difficulty, does not do justice to the difficulties of human decision making.
Of course, not all collisions are collisions of duties. Conflicts between a per-
sons various interests do not qualify as such, and neither do conflicts between
self-interest and moral duty. A first variety of conflict between duties holds
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134 Categorical Principles of Law

between different ways or cases of applying the same duty. Using the injunction
to help others as a case in point, one might, for example, ask whether one ought to
remain with ones ailing parents or join the Resistance. However such conflicts
of application are decided, the validity of the injunction to help remains recog-
nized. The question of rigorism arises only at the second level of collisions
between duties, at the point at which one faces a conflict of priorities between
different kinds of duty.
The conflict of priorities most widely discussed in philosophical ethics is that
which concerns the collision between the prohibition against lying and the in-
junction to help. The favorite passage cited in support of the claim that Kant es-
pouses a counterintuitive rigorism is that in the essay On a Supposed Right to
Lie Because of Philanthropic Concerns, in which Kant upholds the duty to the
truth even to a murderer (OSL VIII:425/63). It is worth noting in passing that the
example was invented neither by Kant nor by Constant, whom Kant criticizes.
What is at issue is an old puzzle case that has received various answers in the
course of history. While a permission, and indeed the requirement, to lie has been
defended by certain Old Testament authors, by Xenephon, Ovid, Quintilian, and
by Enlightenment philosophers of law such as Grotius, Pufendorf, Thomasius,
and Christian Wolff, Kant stands in the tradition of Augustine and Thomas
Aquinas, who defend an absolute prohibition against lying. This view, to be sure,
remains disputed. Schopenhauer, in the seventeenth section of his second prize
essay, On the Basis of Morality, offers respectable reasons for defending lies as a
necessary defence against force and cunning. Respectable reasons are also con-
ceivable for limiting openness in a way that strikes some as already dishonest but
that others take to be part of civilized and generous human intercourse. (For the
conceptual history of lying, see Mller 1962 and Bien 1980; for recent interpreta-
tions of Kant on the subject, see Geismann 1988 and Korsgaard 1986; and for
older work on Kant, see Geismann and Oberer 1986.)
In what follows I shall not be concerned with the whole of Kants theory of
the prohibition against lying, but only with the reflections in the Grounding. In
this text, Kant discusses neither a conflict of application nor one of priority, but
only the competition between duty and inclination. The rigorism that he endorses
in that context is directed against the moral laxity that looks for exceptions in the
interest of self-love (G IV:422/3031). A rigorism of moral worth, or of disposi-
tion, directed against laxity in this way needs to be distinguished from the legal-
istic rigorism that would forbid any exceptions to duty, including exceptions for
the sake of other moral duties.
In order to respond to the charge of rigorism in a differentiated way, we must
first distinguish between the nature of an obligation and its scope and, with regard
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to scope, distinguish two concepts of validity without exception. Kant, though,

does not do this, and thus provokes certain misunderstandings. With respect to the
nature of obligation, he develops the contrast between hypothetical and categori-
cal varieties and maintains with crystal clarity the view that the validity of moral
duties is exclusively categorical and therefore independent of self-interest. But it
does not follow from this that a moral duty must be valid absolutely without ex-
ception. An intolerance of exceptions that is relative to self-interestin short, a
relative intolerance of exceptionsis indeed quite different from an absolute in-
tolerance of exceptions that holds across the board. The relative intolerance of ex-
ceptions, moral rigorism, forbids one from lying in order to gain some advantage
thereby, or to escape an imposition such as a justified punishment. By contrast to
lies of this sort, a lie that serves the justified interest of another or saves a life, for
example, cannot eo ipso be accounted immoral. It is only legalistic rigorism that
would hold such a view.
Kant himself distinguishes between perfect duties that admit of no exceptions
and imperfect duties that on occasion allow of exceptions. Whether we think now
of the prohibition against homicide or theft or, in the case of the Grounding, of the
prohibition against false promising, duties of right fall into the class of perfect du-
ties, so that the difference between relative and absolute intolerance of exceptions
might seem superfluous for our example. One gets the impression that, as far as the
categorical imperative of law is concerned, it is legalistic rigorism alone that holds.
Nevertheless: the Grounding can rest content with the first, weaker concept of
rigorism, both in the case of the categorical imperative as a sort of obligation that is
independent of self-interest and in the case of autonomy as legislation independent
of self-interest. In order to preserve the categorical and not merely hypothetical
character of morality, only exceptions to the benefit of inclination are to be rejected.
It is in this rejection, and this rejection alone, that one who defends the uncondi-
tional character of moral obligation has to be uncompromising; such a person is sat-
isfied with the relative intolerance of exceptions. The distinction between perfect
and imperfect duties does not, therefore, coincide with that between the relative
and the absolute intolerance of exceptions. Rather, the former distinction operates
within the realm of the relative intolerance. The exceptions allowed by imperfect
duties and not allowed by perfect duties are exceptions based upon inclination.
That human life is such that different duties can often enough come into play
in one and the same situation and that it may happen in such cases that one duty
can be fulfilled only at the cost of another and that conflicts of priority can there-
fore occur is a topic whose significance for moral philosophy Kant underesti-
mates. Insofar as what is at issue is solely the ground of moral obligation, as is
the case in the ethical prolegomena, this topic can legitimately be set aside. For
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136 Categorical Principles of Law

the existence of collisions of duties that take the form of conflicts of priority
issues from the complexity of the situations in which people find themselves. In the
situation sketched in Constants example, it is highly likely that an injustice
can only be prevented by dishonesty. The reasons for complications of this sort lie in
the theory of action; they define the conditions of applying the moral perspective,
not the perspective itself.
As soon as Kant develops a system of moral duties, as he does in the Doctrine
of Virtue, he must nevertheless also discuss the scope of these duties. In order to
escape the trap of his legalistic overvaluation of the categorical imperative, he
would, in considering this issue, have to separate clearly the ground that deter-
mines a duty as a duty from the question whether its validity allows of certain ex-
ceptions. When several duties are in play at once and one of them cannot be ful-
filled at all, or at least not completely, the demand for an absolute intolerance of
exceptions makes little sense. The obtaining of such an absolute intolerance
would in any case not count as evidence for or against the moral worth of a per-
son. For that job, as noted above, the relative intolerance that forbids any excep-
tions for the benefit of satisfying inclination is sufficient.
What is colloquially referred to as an ethics of disposition is often nothing
other than an absolute prohibition against exceptions, that is, legalistic rigorism.
Some do believe that certain moral duties should hold at all costs, even that of vi-
olating other moral duties. Someone who opposes an ethics of disposition to an
ethics of responsibility wants, in the first instance, nothing more than engagement
with the greater complexity of human action, especially moral action. When com-
peting duties are in play, it is right and fair to demand that one not dogmatically
rate one duty simply more moral per se than the others, but that one instead first
simply notice the collision of duties and then resolve it by weighing the goods at
stake. Since the deliberate refraining from action has itself the character of an ac-
tion, the weighing of goods takes place in any case. One who refrains from hin-
dering an injustice, especially such an elementary injustice as murder, does the
wrong of omitting to help another. To try to avert the murder by lying is to
do the wrong of dishonesty. In this dilemma one weighs the goods by searching
for the lesser evil, and in this new context Adornos claim comes true: thrown into
a dilemma by the potential murderer, one cannot, from within falsity, act with
absolute rightness, one cannot act without doing wrong.

We tend to read Kants famous debate with Constant as having to do with a con-
flict of priorities, and we then believe that Kant espouses an absolute intolerance
of exceptions to the prohibition against lying. To most readers, the idea that one is
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not permitted to lie when one could save a life by doing so appears nothing short
of grotesque. The love of mankind referred to in the title is, however, to be un-
derstood as an inclination, albeit an admirable one. So Kant does not in the first
instance take himself to be discussing a collision of dutiesprohibition against
lying versus injunction to helpbut once again the choice between duty and in-
clination. One could alter Kants story and consider a case of helping that is
prompted not by mere inclination but by a feeling of duty. If the persecuted indi-
vidual were the spouse of the person of whom information was requested, there
would even be a positive duty of right to help involved. The case of a collision
between the prohibition against lying and the injunction to help, which in the case
just outlined is not merely an indeterminate but a well-defined duty, would, how-
ever, deviate from the case considered by Kant.
In addition, even if Kant does come close to legalistic rigorism in some pas-
sages in his works on moral philosophy (for example, OSL VIII:430/67), that view
is not found in the discussion of examples in the Grounding. Contrary to what one
would expect, legalistic rigorism is not thoroughly discussed and rejected in the
Doctrine of Virtue, although it is at least watered down. In one of the casuistical
questions, Kant speaks of a collision of grounds of determining action and de-
fends, albeit in the form of a question, a law of moral-practical reason that
would grant leniency in the form of permitting something in itself impermissible,
when it is done for the sake of preventing a still greater violation of the moral law
(DV VI:426/22122). The Doctrine of Right provides another example of weigh-
ing goods against one another. If, says Kant, there are too many accomplices to a
murder, the sovereign is allowed to condemn the criminals to deportation rather
than to their deserved deaths (DR VI:334/143). And last but not least, Kant has a
place for the right of necessity, according to which certain actions that are in fact
criminal, in that they violate the rights of others, are nevertheless not punishable
(DR VI:235 ff./60 ff.).
Although Kant mentions neither the leniency of moral-practical reason nor
other points of view more than in passing, and although he in general deals too
cursorily with the problem of collisions of duty, one finds in his work a number of
arguments for the weighing up of goods. One who gathers together the dispersed
arguments will perhaps discover that the Stoic distinction between rules of action
that hold for the most part and those that hold in exceptional situations is not ab-
solutely foreign to Kant (cf. Forschner 1983).
In my view, it is a different aspect that is more important. The Stoic distinction
presupposes that one knows what is morally required in a normal case, one in
which no additional duties are in play. Insofar as the Grounding inquires into the
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138 Categorical Principles of Law

ultimate determining grounds of morality and thereby rightly discusses the

dilemma between duty and inclination, one looks to it only for a justification
of the normal case of a duty and not for the exceptional situation of a conflict of
priorities.
To be sure, the problem of the Grounding would reappear in the case of a con-
flict of priorities. In order to be assured that the conflict is not being resolved ac-
cording to the principle of self-love, the action must issue from a universalizable
maxim. Viewed formally, the maxim in question would be more complex than the
simple maxims with which we are familiar. If we call a simple maximof hon-
esty or dishonesty, readiness to help or indifferencea basis maxim, then the
maxim that resolves the priority of conflicts must, to begin with, consist of more
than one basis maxim, and each basis maxim involved must already have passed
the categorical-imperative test: honesty and the injunction to help will enter into
the complex maxim, not dishonesty and indifference. The complex maxim must,
second, contain a priority rule for the basis maxims. In contrast to the basis max-
ims, the priority rule would be formulated as follows: Under conditions Asay,
the saving of a human lifea violation of honesty is allowed.
Whatever these more complex maxims would say in the end, the minimal con-
dition for their being morally worthy would lie in the universalizability of the pri-
ority rule. In short, I am suggesting that conflicts of priority would, in the frame-
work of a Kantian ethics, be resolved by a two-level universalization procedure.

7.4. Nonempirical Universalization

In the dilemma of duty and inclination constructed by Kant, there is but one deter-
minate means of not sacrificing inclination, adhering namely to the impudent de-
mand of self-love (die Zumutung der Selbstliebe; G IV:422/my translation),
which has the status of a pragmatic imperative. When one is weary of life, this im-
perative counsels suicide; when one lacks money and means of repayment, it
counsels a false promise; and so on. In the categorical-imperative thought experi-
ment, one examines whether the relevant pragmatic imperative can function only
as an ad hoc means or whether it can be established as a universal law of nature. A
law of nature holds at all times and for all people; so with the universalization de-
manded by the categorical imperative, Kant rejects two different sorts of privilege.
The first sort of rejected privilegein which I imagine that the maxim I am
following at the moment is one I follow throughout my lifepresents a demand
for a weaker sort of universalization. For duties to oneself, it is in fact this alone,
the universalization of cases, that plays a role. In opposition to the privileging of
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the present moment, one is to universalize the singular, special case so that it be-
comes the model for all cases. Accordingly, one who wants to kill himself because
of the unpleasant feelings constitutive of weariness of life must also want to kill
himself when afflicted with any unpleasant feeling at all, for example, hunger,
thirst, or fatigue. Kant claims, however, that such a situation is unthinkable for a
being whose life processes are in large measure guided by unpleasant feelings. A
living being of the sort envisaged would be very poorly designed. Instead of rem-
edying the lack of energy signaled by hunger, thirst, or fatigue, thereby permitting
life to continue, such a creature would cut off its life, would destroy it.
The soundness of this example can be shown by asking two questions. First, in
using pleasant and unpleasant feelings partially to define human life, does Kant
not make dubious teleological assumptions? Although it is popular to put this
question to Kantians, it is easier to answer than is insinuated by the skeptical un-
dertone of those who ask it. By contrast, a different question, which is not raised,
is much more difficult to answer: Is the absence of the first sort of universaliza-
tion, universalization of cases, a sufficient argument to disqualify suicide as im-
moral, insofar as it is premeditated and deliberate? This question is philosophi-
cally more important, since answering it requires that one deal at the same time
with the question whether there is any such thing as a duty to oneself. Current
skepticism about a duty of that sort would in any case have to begin with the
question of the moral status of suicide, as would a refutation of that skepticism.
In opposition to the motto of all privilege and discrimination, Quod licet Jovi,
non licet bovi,1 Kant holds that the maxims permissible to one person must also
be permitted to every other person. The second, stronger universalization de-
mands that the maxim that I now obey be followed by everyone. In virtue of this
universalization with respect to persons, Kants categorical imperative contains
the idea of justice. Because, however, the universalization of cases is also de-
manded, the categorical imperative cannot be reduced to the idea of justice. Kant
does not, it should be noted as well, justify duties to others directly, with an argu-
ment from justice. He does not, for example, declare that one who promises
falsely is a free rider with respect to the institution of promising. Kant indeed
would not deny that one who promises falsely acts as a free rider, but he would
not take this point to be a sufficient argument for the immorality of false promis-
ing. For the question why free riding is immoral remains open, and Kant answers
it with universalization with respect to persons. The free riders maxim of promis-
ing falsely when it suits him is immoral only because it cannot be thought coher-
ently as a natural law.

1. That which is allowed to Jove is not allowed to the ox.

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140 Categorical Principles of Law

In the Grounding, Kant does not tire of asserting the failure of universaliz-
ability for each and every example of an immoral maxim. Of false promising, he
says in the first section that I can indeed will the lie but can not at all will a uni-
versal law to lie (G IV:403/15). In the second section, he writes that the maxim
that allows false promising could never hold as a universal law of nature, and
that it could never . . . be consistent with itself and must necessarily be self-
contradictory (G IV:422/31).
The test that Kant claims to carry out here is of a purely rational nature and is
to be distinguished from two universalization procedures that have proponents in
current discussions in philosophical ethics. First of all, it differs from the concept
of universalization that derives exclusively from the logic of language. Someone
such as Richard Hare (1965, chap. 2), who demands only a consistent use of
language, does indeed set up a nonempirical criterion. All the same, he does not
satisfy the demands Kant makes on a moral principle. From a systematic perspec-
tive, the universalization derived from the logic of language has neither a
self-sufficient nor a primary significance. Hare can evaluate a maxim that com-
mits one to a false promise only by confronting it with other maxims and then dis-
covering that selfsame property called morally good or morally bad. Accord-
ing to Kant, by contrast, a maxim that commits one to a false promise is morally
reprehensible as such and not only in comparison with other maxims, for exam-
ple, that which counsels suicide from weariness of life.
Because the universalization derived from the logic of language can check
only the coherence of a moral language, it leaves open the question of which of
various alternative moral languages is morally adequate. In order to escape a rel-
ativism of different internally consistent moral languages, Hare (1965, chap. 7)
supplements his universalization procedure with a variant of utilitarian ethics;
and because Hares systematically primary criterion of morality lies in this sup-
plement, his ethics as a whole belongs to the utilitarian tradition. Hares principle
of universalization merely extends or refines utilitarianism in a way that is almost
self-evident. The demand for logico-linguistic consistency is also contained in
Kants categorical imperative.
When Kant claims that the universality of a law [of false promising] . . .
would make promising itself . . . quite impossible (G IV:422/31), his argument
differs also from an empirical-pragmatic interpretation of universalization. Some-
one who follows Marcus Singer (1961, chap. 4) in holding to be immoral actions
that have undesired consequences if they are carried out by everyone upholds a
rule-utilitarianism and appeals to considerations of purpose and consequence that
go beyond the concept of the action itself (G IV:402/15).
Considerations of consequences that belong to the concept of an action in it-
self and are also allowed by a rational test can be called action-internal and must
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be clearly distinguished from action-external considerations. Consequences that

have nothing to do with the concept of the relevant action but can play a role in the
decision whether to perform the action all the same are action-external. Kant
holds that credibility is internal to the action of promising, while freeing oneself
from distress by promising is external to it. In the case of the injunction to help,
the action-external consequences lie in the expectation of a reward, either ideal (in
the form of gratitude) or material (in the form of money, for example); the action-
internal consequences consist in actual success, eventually, at the end of a com-
plicated chain of actions, in overcoming distressfor example, by pulling a
drowning individual from the water in timeor in attenuating it, as when one
helps someone contemplating suicide to take heart. Because one can never be sure
how one is to bring about action-internal success of this sort, it is not possible
even for an ethics as demanding as Kants to free people from all uncertainty re-
garding how to lead a morally adequate life.
To return to conflicts of priority: Pace Kant in his debate with Constant, we
must understand the action to be accomplished in these cases as structurally com-
plex. Because of the situation with which one is presented in such a case, the de-
cision space contains, in addition to the question of honesty versus dishonesty, the
question of helping versus refusing to help. Internal to the complex action is
the question of where it is that the greater injustice lies, in the refraining to help
that preserves honesty or in the dishonesty that tries to help. External to the action
would be the question of which solution is less risky; perhaps I am honest in order
to avoid being caught out by my lie, thus provoking the rage of the murderer and
endangering my own life. Also external to the action would be the question of
which reaction is likely to be more lucrative; perhaps I decide to tell the life-
saving lie in the hopes of receiving a generous reward for doing so.
To the idea that a rational and, in the Kantian sense, metaphysical universal-
ization procedure allows only action-internal consideration of consequences, one
might object that Kant himself does not adhere to it. In discussing the false-
promising example, namely, he says that even the end [to be attained by the
promise] would be made impossible (G IV:422/my translation). Kants refer-
ence to an end would, however, run contrary to his rational objective only if the
end were action-external. But this is not the case. Because Kant asserts the im-
possibility of the end to be attained in connection with the impossibility of the
false promising itself, and because he moreover grounds the impossibility of the
end by appeal to the absence of credibility, and because, finally, credibility be-
longs to the concept of promising, I understand Kants reference as explicative.
Since promising itself would be impossible if there were no credibility, it follows
a fortiori (and without further considerations of consequence) that any end to be
attained by means of promising is impossible. The impossibility of the end is
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142 Categorical Principles of Law

supposed to be logically implied by the impossibility of promising. As a result,

Kants goal of a rational demonstration is not damaged, but neither has the
demonstration yet begun.
The frequency with which Kant repeats the claim that false promising is inco-
herent is matched by the brevity of his argument for the claim. The proof is actu-
ally indicated in only a half sentence: inasmuch as no one would believe what
was promised him but would merely laugh at all such utterances as being vain
pretences (the German Vorgeben [pretences] here has the sense of idle feign-
ings) (G IV:422/31). Kants chariness with detail here has abetted many misun-
derstandings. Since the maxim is supposed to contradict itself when made into a
universal law of nature, the contradiction needs to be sought in the maxim itself
and not in any additional action-external consequences. And since the contradic-
tion is not supposed to lie in the maxim of promising as such, but only in that of
false promising, the contradiction must lie in the combination of promising
with false (in the sense of dishonest).
In an earlier attempt at an interpretation (Hffe 1987, 10912), I sought the
contradiction in the opposition between a promise as the acceptance of a commit-
ment to oneself and dishonesty as a revoking of that commitment. The idea was
that a promise that one makes knowingly, while fully intending not to keep it, is
underpinned by the contradictory maxim that a commitment to oneself is at the
same time no commitment to oneself. I still think that this interpretation is
correct, but I now think that it needs supplementing. In order to reconstruct the
example of the Grounding, two further parts need to be added to the argument.
In the first place, the contradiction can be identified only by making essential use
of the intermediate step concerning the loss of credibility, and it, second, must
appear only when one attempts to universalize the maxim of false promising; it
cannot be present already in the individual case of a false promise.
Without the intermediate step, the argument does not yet touch upon the prob-
lem situation characteristic of the Grounding, namely, that someone else is lied
to. As long as one abstracts from the issue of credibility, the contradiction be-
tween accepting and not accepting a commitment would obtain also in the case of
a false oath. The contradiction identified in my earlier account is aimed at secur-
ing a stricter conclusion, one belonging to the ethics of virtue rather than only to
the ethics of law and right; the duty violated is a duty to oneself, which is not dis-
cussed in the Groundings second example. The characteristic intermediate step
can be taken into account if one, in a first semantic step of the argument, shows
credibility to be a defining element of promising. The demonstration of this point
has the status of a preliminary semantic step, and it can be unproblematically
empirical.
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Once again the interplay between anthropology and metaphysics characteristic

of Kants ethics comes to light (see 4.12 above). The human capacity to give
ones word, and to do so either honestly or dishonestly, has a number of anthro-
pological and perhaps also social-historical presuppositions, and we know of this
capacity only through experience. The fact, however, that if a human being is in a
position to make a promise, then, in the face of the alternative honest or dishon-
est, morality forbids the second optionthis and only this, claims Kant, is to be
determined independently of experience, and insofar metaphysically. This inde-
pendence of experience holds first and foremost of the determining ground of
honest promises, secondarily of the prephilosophical knowledge of morality, the
natural consciousness of duty, and thirdly of the confirmation that philosophical
ethics offers after the fact.
The other examples in the Grounding also contain a preliminary semantic ar-
gument. In the case of the prohibition against suicide, for example, the semantic
element is found in the definition of human life through feelings of pleasure and
pain. In the case of the prohibition against unwillingness to cultivate ones talents
and the injunction to help others, not only the assessment but also the very under-
standing of the semantic premise is disputed. I conjecture that Kants premise in
the first case is that the cultivation of aptitudes and talents is part of the concept of
the will, as the practical reason, of a natural rational being such as man. In the
case of the injunction to help others, Kant will say that natural rational beings can
end up in distress and that on the assumption of a plurality of such beings it is part
of the concept of the will not to refuse help from ones fellow human creatures as
a matter of principle.
The main legitimating argument from the loss of credibility follows the se-
mantic preliminary argument. Now, the empirical-pragmatic interpretation of
Kants argument also appeals to the loss of credibility. Since Kant, in the Ground-
ing, operates exclusively with this argument from the loss of credibility, one
might think that he deviates unwittingly from his rational account of moral legit-
imation. Whether this is actually the case and Kant slides from a rational to an
empirical-pragmatic interpretation of his own point depends upon the nature of
the argument offered.
On the empirical-pragmatic interpretation of Kant, the loss of credibility rep-
resents an action-external consequence of false promising, while on the rational
interpretation it represents an action-internal consequence. Whether a loss of
credibility really is an action-internal consequence depends upon the nature of
the linkage between the preliminary semantic argument and the main legitimat-
ing argument. To begin with, credibility must be ascribed to the concept of
promising as such, so that it is even possible for the loss of credibility to have an
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144 Categorical Principles of Law

action-internal significance. It must then be shown that if there were a law of na-
ture necessitating false promising, the action-internal condition of promising
would go missing, whereby it would follow that a law of false promising would
be self-contradictory. So only when, first, credibility represents a defining ele-
ment of promising and when, second, the loss of this defining element is inex-
orably posited with the idea of a law of false promising can Kant arrive at his
dual goalnamely, that of proving in a purely rational way that the moral prohi-
bition, in relation to inclination, holds with strict universal validity.

7.5. Suggestion for a Reconstruction

Kant does not present the two-part argument in detail. His manifold assurance
that the universalization of false promising runs into contradiction stands in a pe-
culiar contrast to the absence of a precise demonstration of the point. I would like
to suggest a way to provide the missing demonstration and at the same time claim
that without such an attempt at reconstruction neither defense nor critique of Kant
will be convincing.

The Preliminary Semantic Step

The reconstruction of the contradiction begins with the concept of the action in
itself (G IV:402/14) with which the one in distress seeks to relieve his need of
money. The question is whether promising falsely puts at risk an element of the
meaning of the concept. An empirical-pragmatic legitimation also begins with the
concept of promising. According to that style of legitimation, promising is ac-
counted an institution in the sense of a socially binding rule of action (cf. Rawls
1955, 29 ff.; Wolff 1973, 166; and Hume 1984 [1740], 2.2.5). Institutions of that
sort, it is further claimed, define advantages and duties. They coordinate ones ac-
tions with those of others and offer thereby the chance of a reciprocally advanta-
geous coexistence for all. The general advantage, to be sure, is obtained only if
one agrees to make promises in the first place, and this in turn presupposes credi-
bility; that is, it presupposes that one can expect promises to be kept.
The empirical-pragmatic style of legitimation agrees with Kants in finding
that credibility belongs to a promise. A difference between them might lie in the
nature of the belonging. According to Kant, credibility is a defining element of
the institution of promising, while, according to his opponents, it does not play a
role until one asks the additional question why one should agree to participate in
the institution. Another difference is more important: in the empirical-pragmatic
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legitimation, credibility as such is at issue, while in Kants purely rational legiti-

mation, only an aspect of credibility is at issue, namely honesty. Dispute between
the two positions begins already with the concept of promising and does not
break out only over the nature of the universalization.
The concept of promising can be reconstructed in the following way. Accord-
ing to the first, generic element, one who seeks to obtain money by means of
making a promise wants not a gift but a loan. Kant does not discuss a fourth ex-
ample, that of a possible duty to help on the part of a potential creditor. Readiness
to repay the borrowed money at a later date belongs to the concept of a loan as a
matter of pure conceptual analysis. Borrowing money is a reciprocal affair, an ex-
change. The mutual giving and taking can take place only when the creditor and
the debtor are, each in his way, able to pay (from the objective viewpoint, so to
speak) and willing to pay (from the subjective viewpoint).
Now, there are various ways of borrowing money. According to the second,
specific conceptual element in the example we are looking at, we are con-
cerned, in a case in which one borrows by promising to repay, with a special case
of exchange, one different, for example, from borrowing by providing collateral.
In this special case, the reciprocity is displaced in time, though not exclusively so
displaced. Even in the case of a loan without collateral, there is a simultaneous
reciprocity as well, but it takes place on different levels. Instead of providing a
material equivalent for the money as security, one gives simply ones word as col-
lateral. The exchange should nevertheless restore things to a single level in the
end, since readiness to repay is a part of accepting a loan.
Because, with respect to the guiding, material component of the exchange, it is
in the first place the one party that gives and the other that receives, it is, once
again as a conceptual matter, the first party that bears the risk. In this situation, the
mere words that one utters, I promise that . . . , aim to inspire credibility, and
this in two respects. The content of ones word is supposed to be credible, the p
that one promises, and also the giving of ones word, signaled by I promise
that. . . . The first, propositional credibility ranges over the content of the
promise and signifies a double creditworthiness: objectively, the expected capac-
ity to pay, and subjectively, the expected readiness to pay on the agreed upon
date. Credibility is not, however, decided by creditworthiness alone; a second,
language-pragmatic credibility is also involved, that raised by the question
whether the expression I promise that . . . is intended honestly and actually
stands for the resolution to keep the promise.
Of the two sides to credibility, the propositional creditworthiness and the lan-
guage-pragmatic honesty, Kant singles out only the latter, a thematic limitation
that is hard to understand from the empirical-pragmatic perspective. In order to
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146 Categorical Principles of Law

coordinate ones action with that of others both sides are needed, propositional as
well as language-pragmatic credibility. For the empirical-pragmatic style of legit-
imation, but not for Kant, the reason for a loss of credibility is a matter of indif-
ference. For the former type of legitimation, the question whether people might,
for lack of intelligent foresight, generally underestimate future difficulties and fail
to keep a number of promises for this reason, despite the best of intentions, is just
as important as the other question, whether a good intention, that is, honesty, is
absent or not. One could indeed regard the language-pragmatic credibility of the
petitioner as objectively more fundamental and grant it priority within the empir-
ical-pragmatic project of legitimation. For when a promise is not intended hon-
estly, repayment will not be forthcoming despite creditworthiness. In some cases,
thoughfor example, that of childrencreditworthiness is more important. In
addition, Kant is interested in honesty, not simply primarily but exclusively, and
his approach to moral philosophy speaks in favor of this.
An ethics such as Kants, which concentrates on that for which people can be
fully responsible, directs itself toward the determination of the will. It is inter-
ested, not in future events as such, since these are in any case only partially under
our control, but in that which is decided here and now; it is interested in the pre-
sent resolve. Just this aspect of things is given thematic attention in the case of
promising when one leaves propositional credibility to one side and deals only
with language-pragmatic credibility. One who follows Kant and investigates nei-
ther the question whether a promise is fulfillable nor whether it has been made by
a dependable or a forgetful person but rather asks only if the promise was given
honestly or dishonestly is one who pays thematic attention to the single element
of the concept of promising that is relevant from the point of view of an ethics of
the will.

The Main Rational Argument

After it has been determined that honesty is the morally relevant conceptual ele-
ment in promising, the contradiction can finally be reconstructed. The motivation
for dishonesty is not hard to find. The needy individual wants to obtain money de-
spite his knowledge that he will not be able to repay it. Against thisso goes the
first attempt at reconstructionspeaks the fact that in this way a loan becomes
transformed into a gift. The moneylender is, however, by the definition of lend-
ing, not prepared to give the money outright. The transformation occurs against
the moneylenders will and, in addition, deprives him of property; so the false
promise ends up as theft.
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According to this attempt at a reconstruction, false promising does indeed

appear as a violation of duty, but the argument meant to establish this makes no
essential use of the concept of honesty and so misses Kants actual argument. A
second reconstruction attempt observes first that in the world in which we live
both options, honest and false promising, are really possibilities. Because the
creditor cannot look into the heart of the debtor and establish his true intention, it
remains uncertain in a particular case which of the two possibilities is actual.
Now, one who shies away from risk will be deaf to mere words and will lend his
money only against sufficient collateral. One who, by contrast, is prepared to take
risks will let himself be rewarded by the corresponding interest, will hope for
honesty, and will agree to a loan without collateral. In the real world, promises are
not in any case unanimously false, and trusting people when they give their word
is a rational option that is not in itself contradictory.
Things would look different if a natural law ensuring that all promises were
false were to obtain. In this hypothetical world, no one who promises anything
would ever intend it honestly. The language-pragmatic credibility that is intended
by a promise as a conceptual truth would be retracted through the law of dishon-
esty, not merely on occasion but on principle. And this is where the contradiction
lies. The conceptually internal goal of promising, that is, the universal goal that
lies in pragmatic credibility, would be impossible in principle as a result of dis-
honesty necessitated by law. I shall call this impossibility a pragmatic impossibil-
ity or a pragmatic contradiction.
By implication, the petitioner cannot achieve his particular goal of freeing
himself from distress by means of a promise. In a world governed by dishonesty
there is no longer an alternative. The creditor knows that the expression I
promise does not mean what it says. The hope of coming across an honest
rogue is destroyed, and it would truly be the case that no one would believe
what was promised him, but would merely laugh at all such utterances as being
vain pretenses [i.e., idle feignings] (G IV:422/31). In a natural order that ties the
speech act of promising to dishonesty, relying on a promise is no longer a rational
option even for a creditor who is prepared to take risks. This, and not only addi-
tional empirical-pragmatic considerations, is the reason that it would be impossi-
ble to realize the general aim of finding a lender and a fortiori impossible to real-
ize the particular aim of freeing oneself from distress. Whether the impossibility
of borrowing money without collateral would eliminate many opportunities for
generally advantageous cooperation and would therefore be regrettable is some-
thing that must be decided on the action-external grounds, considerations that are
empirical-pragmatic relative to the concept of promising. Kant no longer needs to
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148 Categorical Principles of Law

put them forward. Since the attempt at strict universalization fails, the target con-
clusion has been reached. The promise constitutes a violation of duty, and be-
cause the violation occurs in the name of ones own welfare (in order to escape
from distress), it is not only contrary to moral legality but is positively immoral.
Empirical-pragmatic considerations are not only unnecessary for establishing
whether false promises are morally permissible, they also do not even lead to a
contradiction. A world in which promises are never trusted, because of disap-
pointed expectations, might be exceedingly inconvenient, but it is not logically
impossible. Even if one assumes the extreme case in which people no longer
speak with one another, because of rampant dishonesty, and adds that humans
cannot live without speech, even if a world of disappointed expectations would
end up as a world without people, one would find nothing unthinkable about the
situation. A society that does not recognize the institution of promising is merely
foolish. By contrast, one who makes a false promise behaves immorally.
The contradiction in false promising could also be unearthed in the form of an
anti-free-rider argument. One would then say that the false promisor expects from
his would-be lender the honesty that he himself is not prepared to adhere to. He is
a free rider with respect to the institution of promising. The petitioner can escape
from his plight only if he is treated honestly by the person he approaches; he will
not reach his goal if his request receives an affirmative answer that is not meant
seriously or an affirmative answer that is backed up by the provision of worthless,
because counterfeit, money.
The universal legislation of the absence of the other, propositional side of
credibility appears to yield the same result. Lending without collateral would dis-
appear as a rational option. In a hypothetical world in which creditors knew that
promises, though honestly intended, would never be kept, due to inability to pay
or sheer forgetfulness, all hope of repayment would indeed be destroyed. The rel-
evant expectation is not, however, rendered otiose because a maxim raised to the
level of a law is contradictory.
Let us at the end of the suggested reconstruction cast a glance at the scope of
the duties legitimated by Kant. With regard to this, we must remember the dis-
tinction between the story that Kant outlines and the argument that plays a role
when he applies the categorical imperative. The fact that from the moral perspec-
tive, more narrowly from the perspective of an ethics of the will, it is not proposi-
tional but language-pragmatic credibility alone that matters has far-reaching
consequences. The moral duty that Kant justifies in the example is not limited to
the special case of the story in question, that of honesty when borrowing money;
it extends to honesty as such. Beyond this, the injunction to be honest is valid for
all beings capable of giving their word and thus of facing the alternative to do so
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honestly or dishonestly. In agreement with our moral intuitions, Kant writes that
the command thou shalt not lie does not hold only for men, as if other rational
beings had no need to abide by it (G IV:389/2).
Kant has two adversaries in his discussion of the permissibility of false
promising. With the primary opponent he has a dispute on the object level, moral-
ity itself, while with the secondary opponent the conflict occurs at a metalevel,
that of the theory of morality. Against his primary opponent, who out of self-
interest wants to grant himself exceptions from the moral law, Kant shows that the
exception, dishonesty in emergency situations, is not morally admissible, since it
cannot coherently be thought as a natural law. With his secondary opponents,
such as Singer and other rule-utilitarians who defend an empirical-pragmatic uni-
versalization, Kant could perhaps reach an accord on the concept of promising:
they could agree that to promise is to give ones word as collateral. Kant could
also agree that the general aim of promising lies in credibility and that dishonesty
contradicts this aim. Kant parts from the rule-utilitarians over the question of
what sort of knowledge it is that allows one to recognize the contradiction. For
the rule-utilitarian, who asks, What would it signify for the general welfare if
everyone acted in that way? it is empirical, social-pragmatic knowledge that lets
us apprehend the contradiction; for Kant it is a preempirical kind of knowledge.
One who wants to know how he can inspire trust in a moneylender, in particu-
lar how he can best garner an unmerited trust, needs cleverness and experience in
the ways of the world. He also needs experience to know whether he can free
himself from his plight with money. By contrast, experience is not required to
know that a false promise harbors two conceptually internal and mutually incom-
patible aims. So although one who wants to see a false promise as illegitimate
might want to take a detour through considerations of an empirical-pragmatic
sort, the detour is nevertheless superfluous. Moreover, the detour misses the real
point: that the false-promising maxim, when conceived as a natural law, is self-
contradictory.
What kind of knowledge yields insight into the moral illegitimacy of a false
promise is not exclusively a theoretical question, since it is decisive for the prin-
ciple of moral obligation. General well-being cannot be regarded as the ultimate
principle of morality, and the debate between Kantian and utilitarian ethics over
ethical fundamentals must be decided in favor of Kant.
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8
PENAL LAW AS CATEGORICAL IMPERATIVE

Within Kants philosophy of law and right, the views on criminal punishment are
among the few that still attract systematic attention. By contrast to those on tran-
scendental philosophy, these views are generally cited only as a negative foil. In a
debate about penal law that in the years of reform euphoria favored rehabilitation
and resocialization, or at most deterrence and general prevention, as the only de-
fensible aims of punishment, Kants thesis that only the law of retribution (ius
talionis) . . . can specify definitely the quality and the quantity of punishment
(332/141, emphasis deleted)1 simply forms the background against which the hu-
manity of modern theories of penal law can stand out all the more clearly.

1. References to the Doctrine of Right are so frequent in this chapter that they will be made by
page number alone.

151
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152 Categorical Principles of Law

Because roughly the same goes for Hegel, the accepted maxim in the politics of
punishment has long been Farewell to Kant and Hegel (Klug 1968).
Kants thesis is made especially provocative by the uncompromising only,
through which he claims exclusivity on behalf of the right of retribution. The
provocation is increased by the moral status Kant accords penal law and the penal
justice to which it gives expression; he calls it a categorical imperative (331/141
and 336/145); and it reaches its peak in the concrete applications he makes. While
corporal punishment has long been banned in our legal culture, Kant demands
that sexual criminals be punished with castration (363/168). And in the face of
current efforts to outlaw the death penalty, the claim that one who murders must
die, since there can be no substitute that will satisfy justice (333/142), sounds
like bad metaphysics.
The European Enlightenment saw the emergence of important impulses
toward a humanizing of penal law. Cesare Beccaria, writing in Italy, had already
demanded the abolition of the death penalty and the restriction of the aim of pun-
ishment to that of deterrence (1973 [1764], XXVIII and XXII), and in this latter
view he was seconded by the utilitarian Jeremy Bentham in England (1970
[1789], XIV) and Paul Johann Anselm von Feuerbach in Germany (1801, I:2.84
and 3.133). So one who still wants to deal with Enlightenment positions in the
theory of penal law would seem better advised to turn to Beccaria, Bentham, and
Feuerbach than to Kant.

8.1. The Concept of Punishment as Reparation

One who wants to evaluate Kants position soberly will begin by distinguishing
between the broader reparation theory and the idea of retribution, the lex talionis,
which constitutes a part or aspect of the broader position. In addition, such a one
will uncover different meanings of retribution and will come to doubt that support
for the idea of lex talionis entails endorsement of castration and the death penalty.
It may even be that Kants examples contradict other, more fundamental elements
of his philosophy of law and right, namely, his thesis that there is an original
right that belongs to everybody in virtue of his humanity (237/63). And as an
aside, it might be noted that the death penalty was defended three generations
after Kant by so humanitarian a utilitarian as John Stuart Mill (1868).
Concentrating on the plausible kernel of the idea of reparation, it is as true
today as it was in the eighteenth century that the competitor ideas of deterrence
and rehabilitation have fundamental weaknesses. These weaknesses become ap-
parent if one either denies retributive punishment any role at all or tries to reduce
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its role to that of providing a merely secondary justification. One who endorses
deterrence or rehabilitationalone or togetheras the exclusive or dominant
aim of punishment must, for example, allow harsher punishments for more
minor offenses than for graver ones. And should a murderer who is caught only
many years after his crime and has in the meantime lived a lawful life because he
is convinced that that is the right thing not go free? Furthermore, if the idea
of reparation is abandoned, one cannot explain why innocents should under no
circumstances be punished. Not least, we should remind ourselves that the effec-
tiveness of the current penal system is doubtful when measured against the stan-
dard of deterrence and resocialization. For offenses such as drug dealing, it ap-
pears that even drastically increased sentences do not accomplish much, and it is
not only in this area that recidivism is unfortunately high despite the entrench-
ment of humane punishment.
The idea of reparation was long held to be the product of vengeful feeling, one
that all who took themselves to be enlightened consequently rejected as irrational
and immoral. Against this view stands the lesson of ethnology, that the talionis
principle was regarded as entirely reasonable for thousands of years, both by so-
called primitive cultures and so-called advanced ones. The core idea, that of reci-
procity, is more easily discovered if one formulates it, not in the somewhat offen-
sive vividness of the biblical image an eye for an eye, a tooth for a tooth, but
rather more formally as what you do to me, I do to you. This principle today
still forms an uncontentious maxim of social morality, that of commutative jus-
tice. If the idea of reparation conjures that of returning evil for evil alone, one is
overlooking its primary, entirely neutral meaning. The expression Vergeltung
(reparation or repayment) has the same root as Geld (money) and makes ety-
mological reference to the fundamental form of human intercourse, namely ex-
change. Reparation in this broad sense means all action undertaken in return
for services rendered, all repayment; in the case of positive service the repayment
takes the form of remuneration, and only in the case of disservice does it con-
sist in a retribution or punishment. Finally, modern game theory shows how much
the concept of reparation can achieve (see Chapter 10 below). The attempt to re-
discover the wisdom of the absolute theory of punishment (Hassemer 1981, 299)
with reference to the example of Kant is made easier in virtue of a new openness
to the concept of reparation.
The retreat of reparation theories hangs together with the empirical turn in
penal law and the social scientific turn in the theory of penal law. One who en-
dorses prevention and resocialization simply because penal law thereby satisfies
one of the conditions of modernity, its empirical orientation, understands the de-
bate about penal law as a quarrel between the ancients and the moderns and casts
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154 Categorical Principles of Law

his lot exclusively with modernity. A brief look at the relevant history will en-
courage skepticism with regard to this understanding of the matter and will once
again render us more open to the concept of reparation.
The concept of deterrence stems neither from our century nor even from the
early phase of the Enlightenment. More than a hundred years before Beccaria,
Bentham, and Feuerbach, Samuel Pufendorf, in his influential work De Jure Nat-
urae et Gentium (8.3.2324), urged that punishment be apportioned according to
its utility for the public interest (utiiltas rei publicae). Contemporary critics
wasted no time in presenting counterarguments. Both Thomasius, in his Institu-
tiones (3.7.118 and 120), and Locke, in The Second Treatise of Government (2.8,
in the context of the state of nature), speak out in favor of reparation. Later, Mon-
tesquieu, in order to limit the arbitrary power of absolute legislators, will argue in
favor of a penal law that assesses the type and extent of punishment solely on the
basis of the crime committed (On the Spirit of the Laws, 12.4).
Someone who today cites Kant but not Mill as a defender of the death penalty
and associates a retributive theory of punishment with Kant and Hegel but not
Locke or Montesquieu, and who, finally, credits British utilitarianism but
not Feuerbach and Pufendorf for supporting a prevention theorysuch a person
betrays, perhaps unwittingly, a peculiarly German line of interpretation in the the-
ory of penal law. From this angle, one opposes the sober Englishman, with his
empirical-pragmatic thinking and attendant openness to modern legal culture, to a
German tradition that stands in the way of humane enlightenment. The history of
the philosophy of penal law corrects a thus simplified picture. It finds in Kant a
theory that was widely shared in the age of Enlightenment, defended even by
Locke and Montesquieu, classical exponents of a more empirical style of thought.
In addition, even after Bentham and Mill, the utilitarian approach to punishment
corresponds in no way to the dominant doctrine of penal law in Great Britain.
If one asks where Kants significance lies within the history of penal law, one
can answer by pointing to the novel importance that he gives to the idea of repa-
ration. This novel importance consists in thematic clarification, and perhaps ex-
tension, of the idea of reparation, in the enhancement of its moral status, and not
least in a methodological clarification.
From the thematic perspective, Kant does not restrict the idea of reparation to
the severity of the punishment in the way that Montesquieu does. Although he
speaks of penal law on only a few pages in the Doctrine of Right (33137 and
362/14045 and 16768), Kant does succeed in dealing with two further funda-
mental questions. True, he uses the expression right of retribution (ius talionis)
only apropos the third question, and he never speaks of Vergeltung on its own.
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In effect, however, he defends the idea of reparation in all three respects. For
state-sanctioned criminal law he develops by way of introduction the concept of
reparation; then, in answer to the question, Whom is one permitted to punish? he
responds with general reparation; and finally, he puts forward special reparation,
the retribution of the principle of lex talionis, as the criterion for the sort and
severity of punishment. In the first respect, the definition of criminal punishment
is at issue; in the second, its legitimation; and in the third, its proportion.
Kant heightens the importance he gives to the idea of reparation by raising it to
the status of a categorical imperative, and in doing this he intensifies its moral
claim. As a rule we are content to show that punishment is a morally permitted
legal institution. Kant, however, maintains that penal law, as a means of gaining
reparation, is morally required, and further that penal law, like all moral require-
ments, has neither an empirical nor a pragmatic ground of obligation; his talk of a
categorical imperative means nothing other than this. By contrast, a fourth ques-
tion, why the state is justified in inflicting punishment at alland is perhaps even
obliged to do sois not raised and therefore also not answered with the aid of the
theory of reparation.
In virtue of its very logic, a categorical imperative has a purely rational legiti-
mation. So Kants notion of punishment as reparation returns discussion once
again to the program of an ethics of law and right as metaphysics. A systematic
doctrine of law and right would not be directly interested in this discussion. It
might even find therein additional grounds for skepticism toward Kants project.
But the situation changes as soon as one remembers the practical, nontheoretical
character of the metaphysics in question and also recalls the relatively modest
role that the metaphysics plays in the ethics of law. What is at issue is nothing
more and nothing less than the ultimate grounds of legitimation.
If Kants position is convincing and punishment as reparation really does have
the status of a categorical imperative, then we once again find a counterpoint to a
merely empirical juridical culture. The empirical turn in doctrines of penal law is
sensible in many respects, in particular for the manner in which punishment is
meted out and also for the procedures involved in deciding upon it. But against
the idea that the empirical orientation can deliver an adequate legitimation of
punishment, it must be pointed out, independently of the debate concerning penal
law, that empirical facts on their own will never yield a legitimation of anything.
Because Locke and Montesquieu had already espoused a retributive theory,
while it was left to Kant, through the concept of the categorical imperative, to
bring the preempirical significance of the theory to light, the retributive theory
finds in his work, after the thematic clarification and the enhanced moral status, a
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156 Categorical Principles of Law

methodological clarification. Punishment as reparation has, as a categorical im-

perative, a preempirical and insofar metaphysical ground of legitimation.

Kant begins his elucidation with the concept of penal law. His definition, which in
essentials remains convincing today, has a broadly empirical character. It does not
say in which societies and times we will find the institution of criminal punish-
ment, neither does it say anything about the different forms punishment might
take in various times and places. It fixes, one level deeper, what one generally un-
derstands by the matter itself. Because of its empirical character, it might be ob-
jected that no penal law could have the status of a valid categorical imperative.
But as was the case with the legitimation of the prohibition against false promis-
ing, so here the conceptual determination simply presents the object of the debate
over legitimation and does not enter into the dispute itself.
Kant adopts the standard meaning of punishment and with remarkable brevity
and clarity specifies it in the context of the institution of law. If we examine the
definition very closely, we find that it consists of a seven-place predicate. Penal
law is held to be (1) the authorization (right) of (2) a public power (comman-
der) to (3) inflict (4) pain upon (5) a citizen (subject) (6) because of (7) his or
her crime (331/140). The series of elements that conceptually distinguishes penal
law from revenge begins already with the second item on the list. While revenge,
whether individual or collective (exacted by kinship groups, families, tribes,
clans), represents a form of self-help, the authority to punish is the prerogative
of a public office. To this is added a point that Kant omits as being too obvious to
need mentioning, that punishment is pronounced on the basis of formal proce-
dures, and the holders of the office authorized to conduct these procedures cannot
be victims of the crime they are prosecuting.
With the sixth element of the definition, a point that is seriously debatable in the
theory of punishment comes to light. A punishment, in the first place, is meted out
because of something, and this can mean two things: first, a weak claim to sheer
succession, and second, a genuinely causal or explanatory on account of. Pun-
ishment differs from preventative actions, such as quarantine measures, in being a
genuinely post and propter hoc reaction. Punishment also differs from the manip-
ulative techniques of a Brave New World, from open or concealed forms of con-
ditioning and propaganda, and not least from the sheer pacification of asocial
individuals. Punishment does not intervene until a violation of right has actually
occurred, and has therefore in a neutral sense the character of reparation. Accord-
ing to the principle no punishment without a lawwhich marks another differ-
ence between punishment and revengethe law whose violation provokes pun-
ishment must be well defined and known in advance. It is for this reason that
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punishment, although its nature is retrospective, can also exert a prospective force;
it can frighten off the potential lawbreaker. The retrospective character has, how-
ever, conceptual priority; deterrence is a side effect, albeit an unavoidable one.
So long as penal law governs those intentional actions that are undertaken
after and because of breaches of law, it can be reformed in manifold ways, but its
fundamental character of reparation cannot be eliminated. In light of this, a good
portion of the recent criticism of retributive theories proves to be exaggerated.
Since the alleged alternatives, prevention and resocialization, also consist of post
and propter hoc reactions to breaches of law, they too acknowledge the idea of
reparation, even if against their own intention.
The final element of the definition, the referent of the because, is equally
important for the concept of penal law. According to Kant, and also according to
the institution of criminal punishment as such, what is at issue is not just any vio-
lation of law but only serious forms of violation; penal law does not deal with
mere bylaw infractions, but only with crimes and misdemeanors. Kant himself
speaks of crimes, and the addition of the Latin crimen (331/140) shows clearly
that he is concerned with the strict meaning that does not include misdemeanors.
The distinction between felonies and misdemeanors is not, in any case, especially
pertinent to the argument in favor of punishment as reparation.
By a crime, Kant understands that transgression of public law that makes
someone who commits it unfit to be a citizen (331/140). We can put to one side
the question whether one truly loses the capacity for citizenship in virtue of
breaking the law in certain ways. More cautiously formulated, the objective issue
concerns the most elementary laws of justice. And looking to a formulation from
the Introduction to the Metaphysics of Morals, it can be added that we are deal-
ing subjectively with a witting violation of law (224/50); otherwise the action
would count only as a fault (culpa), not a true crime.
The state has resort to many things in the course of doing its job, and criminal
punishment is the most intrusive of them. In tying punishment as reparation to
crimes and not allowing the state to respond with such punishment to each and
every transgression of law or right, and certainly not to every form of deviant be-
havior, Kant recognizes criminal punishment as the last resort, the ultima ratio,
of public power. He thus maintains that criminal punishment is justified only
when an ultima ratio is genuinely needed, when violations of law occur that
damage the fundamental elements of law-abiding coexistence or the public pro-
tection of such coexistence. In the case of less serious offenses, it can be entirely
sensible to endorse the current trend toward making them matters of civil, rather
than criminal, liability. This approach can be defended on the grounds that civil
proceedings do not stigmatize the accused as much as criminal ones, and that
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158 Categorical Principles of Law

they are nevertheless more effective in achieving the goal of ensuring scrupulous
observance of the rules.
Whether one understands a crime in a technical, legal sense or in a wider sense
according to which every blameworthy breach of law counts as a crime, the pro-
nouncement of punishment on the reparation view requires a garnering of empir-
ical information that some of Kants critics miss. At issue in the controversy over
penal law is not the simple opposition between conceptually and empirically ori-
ented thinking; rather, the dispute concerns, more subtly, the scope and limits of
each sort of thinking. With regard to the empirical side of things, the reparation
theory makes use of knowledge that is retrospective and internal to the offense in
that it concerns the action and its motive, while prevention and resocialization
theories require knowledge of a prospective and offense-external kind, knowl-
edge of the deterrence and rehabilitation value of the punishment.
Kants fourth definitional element, which states that punishment is painful and
therefore noxious (cf. C2 V:37/3435), is uncontroversial, as is the third element,
which states that the pain of punishment is inflicted upon the recipient
(331/140). While therapies, be they ever so painful, are at the end of the day un-
dergone voluntarily, punishment is, if need be, forced upon one. Some euphoric
reformers have believed that with the help of appropriate laws aimed at reinte-
grating offenders into society, the punitive character of the relevant measures
might be eliminated. But so long as the measures in question are juridically or-
dained, they will be imposed upon the accused against his will if need be. Juridi-
cally sanctioned punishment remains something imposed by force even when it is
conceived as a means of resocializing offenders.

8.2. A Merely Partial Legitimation of Punishment

Expressly or tacitly, most Kant interpreters connect the categorical imperative of

penal law to the establishment of state-imposed criminal punishment as if this
were unproblematically evident. Some even assume that Kant maintains cate-
gorically that there should be punishment (Forschner 1982, 386). Now, Kant
does actually say that there is in the idea of our practical reason something fur-
ther that accompanies the transgression of a moral law, namely its deserving pun-
ishment (C2 V:37/34). The fact that someone deserves punishment, however,
means that it is permissible to punish him, not that punishment is mandatory.
Moreover, this argument does not appear in the Doctrine of Right, and neither
does it appear in the rest of Kants published philosophy of law and right. We
must take seriously the thought that perhaps the idea of deserving punishment
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from a moral point of view is to be located systematically in the sphere of inner

morality, the problem domain of the Doctrine of Virtue and also of the philosoph-
ical theology that constitutes a continuation of that work (cf. THD VIII:257 and
26062/19 and 2123). The notion of morally deserved punishment might prove
dispensable for the ethics of law, concerned with enforceable duties. On the other
hand, it is true that in the second Critique Kant speaks as well of crime (C2
V:38/35) and therefore of legal punishment.
Setting the idea of morally deserved punishment aside for the moment, there
are other assertions that clearly cannot be ignored by a comprehensive legitima-
tion of criminal punishment. These assertions all belong to the ethics of law and
right and indeed are more central to it than one might at first expect. The point,
moreover, holds mutatis mutandis for non-Kantian theories as well. A fundamen-
tal legitimation of criminal punishment is not an isolatable piece of philosophy,
but is diversely bound up with a normative theory of law and the state.
A comprehensive legitimation begins with the authority to enforce (23133/
5758). Criminal punishment is something that is enforced and is therefore legit-
imate only under the supposition that the authority to enforce is already part of the
concept of law. A second element of a theory of this sort is found in those cate-
gorically valid principles of law, such as the prohibition against killing or stealing,
the deliberate violation of which constitutes a crime and the criterion for which is
provided by the categorical imperative in the singular (see 5.2 above). A public
rule of law, yet another element of the theory, is required in order to give these
categorical principles a more than provisional reality. Kant in this context speaks
of the postulate of public law (3078/my translation). A fourth element is con-
tained in the thesis that the very idea of a political constitution among people car-
ries with it the concept of a penal law that is the sole prerogative of the supreme
power (362/my translation). Kant here declares that the institution of criminal
punishment is among the indispensable components of the state-backed guarantee
of categorical principles of law. By speaking emphatically of people, Kant
means to say that criminal punishment does not belong to the moral concept of the
state as such, but is needed only when deliberate and culpable violations of law
are to be reckoned withsomething that is, Kant indicates, in fact the case as far
as man, a rational being seducible in a variety of ways, is concerned.
Two points are important for evaluating Kants reparation theory of punish-
ment. In the first place, when he takes up the discussion of penal law in the Doctrine
of Right, he takes the four theoretical elements listed above as having been dealt
with in advance. (This is why he says, for example, in connection with the fourth el-
ement, The only question is whether . . . 362/168.) Section E of the General Re-
marks and section 5 of the appendix do not, contrary to the assumption of many
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160 Categorical Principles of Law

Kant interpreters, contain Kants full theory of penal law. Kant believes himself al-
ready to have answered the question why the state introduces criminal punishment
in the first place; in the passages we are looking at, he handles only certain supple-
mentary questions.
Second, and perhaps more important, the four elements in question do not in-
clude a moment of reparation. Both supportive and critical interpreters of Kant
have missed this point. Because the idea of reparation sketched in the General
Remarks deals only with one aspect of the legitimation of penal law, and be-
cause Kant does not elsewhere speak of reparation, it must be concluded that he
maintains a reparation theory that, while indeed trenchant, is not exclusive. The
idea of reparation remains important enough, to be sure: it defines penal law,
legitimates the restriction of punishment to the guilty, and gives the criterion for
the severity of punishment. But the fourth question, concerning the justification of
establishing a juridical institution of criminal punishment in the first place, is
no longer answered with the notion of reparation, but rather with the categorical
imperative of law in the singular and with the idea of a political constitution
among people (cf. Chapters 9 and 10 below).
In order to label the competing approaches to legitimating penal law, one
speaks today of absolute and relative theories of penal law. In the context of
a debate with Kants theory, this way of speaking is misleading. Absolute theories
are taken to include positions committed to theses such as that punishment ought
to be or that punishment has an immanent value or that punishment compen-
sates for the disturbance of the social order occasioned by an offense. Further,
the expiation theory, the view that punishment reconciles the offender with the
society that has been hurt by the offense, also falls into this class. Kant holds
none of these positions; he holds only that, in virtue of its moral concept, punish-
ment cannot be merely a means but must be also and primarily an end.
Kant looks for the legitimating ground of state-sanctioned and -imposed crim-
inal punishment in elements that are posited with the concept of punishment itself,
and he criticizes theories that locate the legitimating ground in something outside
the very concept of punishment, in deterrence or rehabilitation. In consequence,
we need to take up the distinction between action-internal and action-external
considerations (see 7.4 above) and to speak more precisely of the difference be-
tween a punishment-internal and a punishment-external legitimation. According
to Kant, the punishment-internal reparation theory is the moral position; those
punished are those who have perpetrated something. Punishment-external theo-
riesKant uses prevention theories as an exampleoffer a pragmatic position;
one punishes out of prudence, in order to prevent crimes (363/169). Anglo-
American moral philosophers speak, in the former case, of a deontological style
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Pe n a l L a w a s C a t e g o r i c a l I m p e r a t i v e 161

of theory and, in the latter, of a teleological or consequentialist style. Kants coun-

terpoint to the empirical-pragmatic penal culture consists in this thesis: one who
wants convincingly to legitimate state-sanctioned punishment needs moral argu-
ments, which will, in turn, have to take a punishment-internal, not a punishment-
external, form.
The famous passage in which Kant sets himself against pragmatic theories of
punishment and contrasts them with his own theory follows directly upon his de-
finition of penal law. Because what Kant says here is, in its scope and content,
subject to manifold misunderstanding, it is worth quoting extensively: Punish-
ment by a court [writes Kant] . . . can never be inflicted merely as a means to
promoting another good, be that the good of the criminal himself or that of civil
society, but must always be pronounced upon the criminal only because he has
committed a crime. . . . The criminal must previously have been found punishable
before one can think further of deriving benefit from this punishment for he him-
self or for his fellow citizens (331/14041).
As mentioned above, it is important that Kant takes for granted that the ques-
tion why the power of the state is authorized to punish at all has already been
answered. He asks only upon whom the pronouncement of a sentence is permissi-
ble (331/140), and he rejects pragmatic theories as responses to this question.
Pragmatic theories are not, though, rejected root and branch. Pragmatic theories
of penal law are denied only a claim to provide the exclusive and dominant aim of
punishment (can never be inflicted merely, 331/140, cited above [cf. 362/168:
only . . . or whether also]; [The criminal] must previously have been found
punishable before any thought can be given to drawing from his punishment
something of use for himself or his fellow citizens, 331/141, also cited above).
Kant concedes to the state the right to be concerned in penal matters with rehabil-
itation (good for the criminal himself) and with deterrence (or for his fellow
citizens), but he ties this right to the condition that the state direct its attention
only to the guilty party (because he has committed a crime). We can now de-
mythologize Kants position. In connection with the concept of punishment as
reparation, Kant defendsin substance, if not in namethe validity of general
reparation and understands by that the strict prohibition against punishing the in-
nocent. Every violation of this prohibition is unqualifiedly reprehensible.
Although the moral consciousness of the present age has difficulty with excep-
tionless duties, it does not seem to have any problem acknowledging that a moral
duty is unconditionally valid when it comes to the case of the prohibition against
punishing the innocent. In this respect the prohibition against punishing the in-
nocent contrasts sharply with the prohibition against lying, whose unconditional
validity is today much disputed. The reason for this state of affairs cannot lie in
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162 Categorical Principles of Law

the categoricity of obligation, since, in the first place, the prohibition against lying
is just as categorical as that against punishing the innocent and, second, as we
have seen, a relative intolerance of exceptions is sufficient to underwrite the con-
cept of a categorical obligation. Neither can the reason lie in the perfection of
duty, since here as well there is no difference between the prohibition against
lying and that against punishing the innocent. Does the reason perhaps lie in the
relative priority of the prohibitions? If this argument were sound, the priority of
the prohibition against punishing the innocent would not only have to be greater
than that of the prohibition against lying, it would, in order to justify an absolutely
exceptionless validity, have to emerge victorious in every conceivable conflict of
priorities. The prohibition against punishing the innocent would have to take pri-
ority over all other moral duties, including, for example, the duty to protect
human life. But no argument in support of an absolutely dominant priority is in
the offing. Is our moral consciousness then guilty of fallaciously inferring from
moral to legal rigorism?
Before putting forward this thesis, we must consider wherein exactly is found
the moral rigorism in the case of state authorization to punish. The authorized
subject is a collective, the state. So the exceptions in the interest of inclination, the
ones already forbidden by moral rigorism, lie in the welfare of the state as a col-
lective. This fact has far-reaching consequences: the social-pragmatic, utilitarian
maxim enjoining the promotion of social welfare falls on the side of inclination
and as such contradicts moral duty. To punish an innocent in the name of social
welfare, or of raison dtat, is already illegitimate, and indeed unconditionally so,
from the point of view of penal law as a categorical imperative even when, as in
this work, one equates the categorical imperative with a moral, not a legalistic,
rigorism. Formulated positively, only one who is guilty of a crime may be pun-
ished, and in that case the justification for punishment is based upon reparation
and not upon the social-pragmatic ground of prevention (363/169).
Pragmatic theorists of penal law could, however, insist that they recognize the
concept of reparation as a matter of course and that they exclude the punish-
ment of innocents for this very reason. Since one speaks of a punishment only
when it occurs after and because of a breach of the rules, any unpleasantness in-
flicted by the state upon an innocent cannot, for purely semantic reasons, consti-
tute a punishment. The argument is valid but insufficient. For when dealing with
questions of legitimation, what is at issue is no longer simply the definition of
criminal punishment; what is being asked is, rather, why the punishment of in-
nocents represents an injustice. The injustice in question can be located on either
of two levels, that of the judge or that of the legislator, and it can take place de-
spite or for lack of knowing better.
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That injustice should not occur for lack of knowing better, that is, that there
should not be errors in judicial proceedings or in legislative enactments, is so un-
controversial that Kant does not even discuss this kind of case. The need to avoid
errors of this kind is not the least of the considerations in favor of a public penal
authority. A formalized procedure that includes the right to defense and appeal
can do a much better job of reducing the risk of errors than can any private form
of justice. With regard to the chance that still remains, the law adheres to the prin-
ciple: When in doubt, decide in favor of the accused.2 An analogous principleIn
case of doubt, institute no punishment 3must be respected by the legislator, who
is allowed to declare punishable only those actions that represent a moral wrong
beyond any doubt. The once popular appeal to moral feelings is hardly a sufficient
argument. In response to the claim that social peace or human dignity is violated,
one may be permitted to ask in return whether these notions are not as a rule too
vague to justify so intrusive a measure as state-sponsored criminal punishment.
Kant sees a legitimation issue only in the case of a second sort of punishment
of the innocent, the case of punishment despite knowing better, the case of a per-
version of justice. Kant discusses the first level of this sort of case, the perversion
of justice by a judge, but his argument applies, mutatis mutandis, to the second-
level case, the perversion of justice by a legislator. As an example of a judicial
perversion of justice, Kant refers to the pharisaical saying according to which
it is better for one man to die than for an entire people to perish (33132/141).
Kant does not discuss a legal-theoretical position directly, but discusses rather the
practical legal maxim that permits exceptions to the prohibition against pervert-
ing the course of justice in the name of collective welfare or raison dtat.
Since collective welfare is, as noted, a social-pragmatic principle, a principle
of collective prudence, Kant does not discuss the conflict between two moral du-
ties, but once again concerns himself with the alternative: duty or (in this case,
collective) inclination. In rejecting all perversions of justice, Kant is condemning
laxity in juridical morality and is committed only to moral, not to legal, rigorism.
Although Kant sets himself directly against a maxim of legal practice alone, he
holds also that pragmatic theories of law and punishment, insofar as they under-
stand themselves as exclusive, will not be able to provide a justified rejection of
the maxim in question. Just such an attempt has, nevertheless, recently been
made. According to V. Vanberg (1982, 9), the punishment of innocents suspends
the systematic connection between breaches of the rules and punishment, so that
the individual no longer sees any cause to refrain from breaking the law because

2. In dubio pro reo.

3. In dubio contra delictum.
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164 Categorical Principles of Law

of the threat of punishment. Perversions of justice are supposed therefore to con-

tradict the aim of deterrence.
The second step of Vanbergs two-part argument is convincing. If punish-
ments were no longer pronounced consequent upon and because of infractions
but rather were dispensed arbitrarily, they could no longer exercise any power of
deterrence, and the reason for this lies precisely in the arbitrariness of the punish-
ment. The first step of the argument, however, is not convincing. The maxim of
collective welfare does not enjoin arbitrary behavior; to accept it is only to de-
prive the systematic connection between breaches of the rules and punishments
of its categorical character and, in order to allow occasional exceptions, to reduce
it to a rule of thumb. As a rule, the prohibition against punishing the innocent
serves the collective welfare and will be observed to a corresponding degree,
being violated only in exceptional circumstances. If the exceptions remain suffi-
ciently rare, the ability of punishment to deter will be as good as unchanged. If
exceptions become more frequent, provisions will, within certain limits, be made
to avoid coming into conflict with the welfare of the collective: people will take
pains to adhere to an inconspicuous style of life. So the punishment of the in-
nocent, without thereby diminishing legitimate deterrence, brings with it an
extra deterrence; it creates pressure to conform.
The one side of the prohibition against perverting the course of justice, that
which prohibits punishing the innocent, is almost self-evident, but the other side,
that which enjoins the punishment of all who are guilty of crimes, is not. An argu-
ment analogous to that supporting the prohibition against punishing the innocent
can be mounted in support of the prohibition against letting the guilty go unpun-
ished. Here too the general effectiveness of punishment as a deterrent would not
disappear as long as the prohibition was violated only occasionally. The only sig-
nificant result of such occasional violations would be the abetting of corruption.
We have long known that corruption, as well as pressure to conform, are welcome
to certain regimes, and a merely preventative theory of punishment cannot show
that these things are nevertheless unconditionally, that is, morally, illegitimate.
Attempts at legitimating punishment on the basis of resocialization run into
difficulties similar to those we have identified for deterrence theories. From the
resocialization perspective, the punishment of the innocent would consist in
state-enforced attempts to improve those persons who, though they have commit-
ted no criminal offense, nevertheless behave in a provocatively conspicuous man-
ner. In order to forbid the punishment of such individuals by reference to the aim
of resocialization, it must be shown that such punishment is counterproductive
with respect to that aim. Once again, there is no reason to think that force directed
occasionally at those who have not committed crimes would substantially alter
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the success of force directed at those who have committed crimes; and the pres-
sure to conform along with opportunities for corruption would also be fostered.
Another argument against pragmatic legitimations of punishment is this: ac-
cording to them, one should let typical one-time offenders go free. Someone who
commits a crime under circumstances that are almost certain never to recur needs
neither a deterrent nor improvement in order to ensure his living within the law in
the future. Would it thus be just to let him go unpunished, while one by contrast
prosecutes less harmful thefts and batteries with the force of penal law?
Since pragmatic theories of penal law are unpersuasive, Kants reparation-
theoretical argument is no longer obsolete. It is, on the contrary, welcome. We are fa-
miliar with Kants precise argumentthat a human being can never be treated
merely as a means to the purposes of another (331/141)from the Grounding
(for interpretation, see Ricken 1989). Since the Groundings argument is not spe-
cific to the law, it might be considered suspect in this context. But in the Doctrine
of Right, Kant elaborates his position with the law-specific argument that a person
can never be permitted to be grouped together with the objects of property law
(331/my translation; cf. also 362/16768). Apart from appealing to the prohibi-
tion against instrumentalizing persons, a negative argument, Kant also offers as a
positive justification the innate personality of humanity (e.g., 331/141, which
raises objections to Enderleins 1985 interpretation). Kant alludes to the unique
human right that, as freedom . . . insofar as it can exist along with the freedom of
all others according to a universal law (237/63), follows immediately from the
universal principle of law, that is, from the categorical imperative of law. Kant,
however, appeals to the categorical imperative of law in its universal form,
whereas it would have been more elegant, from a legitimation-theoretical point of
view, to argue from the categorical imperative of the state. Because the states au-
thorization to enforce is morally legitimate only so far as it needs to use force to
guarantee rights that are antecedently valid, it is permitted to use force only to
counter a violation of one of these rights. State power is legitimately exercised
only against those who have committed crimes, not against those who have
merely made themselves conspicuous or annoying.
Since Kant grounds reparation in general on inborn rights of all humans, he
does not appeal to transcendental posits such as God, a divine law, or a cosmic
order. Practical reason as it pertains to law and right is the unique and ultimate
measuring stick of his theory of penal law. Today, the inborn rights of all humans
form an integral part of our juridical order. For this reason we can justify the pro-
hibition against perversions of justice in a positive way: someone who wittingly
punishes an innocent not only, as it is popular vaguely to argue, offends human
dignity, he also violates more particularly the freedom of the person or the right to
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166 Categorical Principles of Law

property, according to whether the punishment consists of a deprivation of liberty

or of goods.
Although Kant does not avail himself of the formulation of natural law for the
purpose of legitimating penal law, a legitimation strategy corresponding to that
formulation might also be considered. As in the case of false promising, the legit-
imation begins with a semantic state of affairs, in this case the concept of criminal
punishment as reparation. In the punishment of an innocent, the reparation that
is a defining characteristic of penal law is, so to speak, contradicted. Such a
contradiction is entirely conceivable if restricted to individual cases; they are en-
countered often enough in the actual world. But thought of as a natural law, pun-
ishing the innocent means punishing all who are not guilty of crimes. A law of this
sort is inconceivable, since it is in conflict with the very concept of punishment.

Let us recapitulate the results of this discussion of the theory of the legitimation
of punishment. Pragmatic theories of penal law do not succeed in justifying the
prohibition against perverting the course of justice, neither with the reparation-
theoretical argument that they do acknowledge, that which employs a merely
semantic reparation theory, nor with the aid of their own recognized goals of
punishment, deterrence and rehabilitation. The principle that innocents should not
be punished cannot be justified by appeal to the effects that the prohibition has in
the world. Neither can it be justified by appeal to cognitive limitations, on the
grounds that one cannot know enough to legitimate penal law and punishment
on the basis of their effects (Hassemer 1981, 299). On the contrary, the prohibi-
tion limits both the effects that a state power is justified in seeking to bring about
in the world and the effects about which the power of the state should be inter-
ested in acquiring information. Pragmatic theories miss the real reason for the cat-
egorical prohibition. Perversions of justice, each and every one, are not categori-
cally forbidden because the deterrence or rehabilitation value of punishment
would otherwise be put at risk; the prohibition is valid because the authorization
to use force enjoyed by the state holds only with respect to guilty parties. Some-
one who has committed no crime ought not to be the victim of state power. The
prohibition against perverting the course of justice ensures for citizens the right to
live in as conspicuous or deviant a way as they like, provided they do not thereby
make themselves guilty of criminal activity.
The failure of pragmatic arguments to exclude the acceptability of perversions
of justice, together with the plausibility of Kants argument, shows that penal law
offers yet another example of the systematic superiority of nonteleological over
teleological approaches to ethics. Only when, on the basis of a moral argument,
the guilty alone are punished is it permissible to employ secondary considerations
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Pe n a l L a w a s C a t e g o r i c a l I m p e r a t i v e 167

concerning consequences. Kants argument offers at the same time a critique of a

juridical culture that understands itself in exclusively empirical-pragmatic terms.
With regard to the complex task of legitimating state-sponsored criminal punish-
ment, at least one question cannot be answered by empirical-pragmatic consider-
ations, but only by genuinely moral ones.

8.3. Special Reparation

Penal law has the character of a categorical imperative in a second respect as

well, with respect to the severity of punishment. After Kant has argued against the
punishment of the innocent and the nonpunishment of the guilty with the aid of
the concept of reparation in general, he proceeds to argue against the arbitrary de-
termination of sentences. The snakelike sinuosity of the doctrine of happiness
that Kant rejects consists in this case in punishments determined, not on the basis
of the crime, a basis internal to penal law, but on the basis of the consequences of
the punishment for public or private welfare, that is, grounds external to penal
law. Because the penal-law-internal determination of the severity of punishment
is oriented toward the gravity of the crime, reparation plays a role once again
this time in its special, or narrower, sense, that which amounts to the genuine ret-
ribution of the jus talionis.
Kant rejects the proposal to preserve the life of a criminal sentenced to death
if he agrees to let dangerous experiments be made on him and is lucky enough to
survive them (332/141). Were the suggestion made to an individual offender, he
would in effect be offered a reduced sentence. Were one to treat all alike in order
to avoid this injustice, the individual reduced sentence would become a specially
reduced sentence for all crimes of a certain kind, and a new injustice would
appear, this time on the level of legislation; those condemned to death would be
favored over those who had committed other crimes. In either case, that of the
rule itself or that of its individual applications, Kant believes that exceptions to
the principle of just punishments would be made. But a categorical injunction
such as that of the principle of just punishments admits of no exceptions.
Even those good-hearted interpreters of Kant who do not immediately begin to
speak of inhumanity and lack of enlightenment do express criticism of his theory
of special reparation. Criticism is leveled from two sides, both in the systematic
discussion and in the encounter with Kant. On the one hand, it is directed against
certain applications or forms of application, for example, against the presupposi-
tion that the perpetrators of capital crimes can only make reparation with their
own lives, in order, as Kant writes, that each one experience in his own person
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168 Categorical Principles of Law

the worth of his actions (333/142). The more fundamental kind of criticism re-
jects special reparation itself.
The first style of criticism assumes a literal employment of the jus talionis. In
the Philosophy of Right ( 101, Zusatz) Hegel observed that it is very easy to
portray the retributive aspect of punishment as an absurdity (theft as retribution
for theft, robbery for robbery, an eye for an eye, and a tooth for a tooth, so that
one can even imagine the miscreant as one-eyed or toothless) (128). Hegel nev-
ertheless correctly maintained that this objection is too superficial to do any real
damage. If one does look about in the history of penal law (cf., for example,
Gnther 1966), one will certainly find examples of as literal an application of the
principle of retribution as possible. Medieval law, for example, recognized burn-
ing at the stake as the punishment for arson. Besides this sort of example, there
are analogical applications, such as the severing of a hand as the punishment for
theft, present in medieval law and in Islamic law to this day, or the cutting out of
a tongue as punishment for blasphemy and slander.
A more adequate conception of special reparation will exclude not only a lit-
eral understanding of it but also each and every material understanding. Instead of
aiming to stamp the physiognomy of the crime itself on the punishment for it
(Berner 1876, 30), one defends a purely formal concept. Kant himself is not so
clear about the matter and offers examples that accord with a superficial material
understanding of retribution. His inability to conceive of a punishment for capital
crimes other than the death penaltyBut if he has committed murder, he must
die (333/142)reflects this lack of clarity, as does his demand that sexual
crimes be punished by castration. And he demands that slander be punished with
a solitary confinement involving hardship; in addition to the discomfort he un-
dergoes, the offenders vanity would be painfully affected, so that through his
shame like would be fittingly repaid with like (332/141). Passages like these
force one to agree with Nietzsches remark that the categorical imperative smells
of cruelty (On the Genealogy of Morality, II.6). At the same time, Kant speaks of
the ius talionis by its form (363/168) and himself grants that retribution is not
always possible in terms of the letter (332/141). Above all else, he explains that
retribution, as the principle of equality (in the position of the needle on the scale
of justice), [can] incline no more to one side than to the other (332/141).
The midpoint of the balance amounts indeed to a purely formal criterion, since
it shows nothing more than the equilibrium of the two sides. What is on the left
and right sides of the balance remains open. The idea of special reparation is to
be understood in a correspondingly formal way, a way that makes it logically
prior to the material issues of how to measure the nature and severity of crimes
and how to determine the punishments appropriate to them. One who differs
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from Kant in refraining from any material use of special reparation will tie pun-
ishments to punishable actions and try to make sure that the punishment is nei-
ther too severe nor too mild. Such a person employs a purely formal criterion of
correspondence.
Special reparation can be defended with an uncontroversial principle of jus-
tice, the one called by Kant the principle of equality. Insofar as the state is per-
mitted to punish criminals at all, it is, for reasons of justice, not permitted to pun-
ish the one and let the other go free, and it is just as impermissible to render in the
one case a draconian judgment and in the other a mild and lenient one. Justified
punishment, in opposition to arbitrary punishment (363/my translation), must
rest all distinctions among punishments on distinctions in the nature of the crimes
themselves. One must naturally warn against too thoughtless an application of the
idea of reparation, since there are, after all, legitimate grounds for excuse or ex-
oneration in certain cases in which the law has been broken. When sitting in judg-
ment on a particular punishable action, one must consider whether the offender
was responsible for his actions, not responsible, or responsible to a diminished
degree, as well as whether the action was deliberate or negligent and whether a
judicial error was committed. Such considerations are vital with regard to the
question whether a crime has been committed at all, along with the further ques-
tion how severely a particular incident or class of crime is to be judged. Beyond
this it is permitted, and perhaps even enjoined, to take into account the social
background of the offender, since this can be partially determinative of the qual-
ity of the action. Kant does, in his General Remarks, frequently incline to an
objectivistic conception of a crime, according to which questions of this sort
are irrelevant. But this conception of a crime is required neither by the notion of
general nor by that of special reparation. A rigidly objectivistic conception indeed
contradicts Kants own definition of a crime (224/50).
Because not only deviations in the direction of greater severity but also those
in the direction of clemency would be unjust, Kant is only being consistent when
he expresses reservations about the right of sovereigns to grant clemency
(337/146). Kant, however, pays too little attention to an alternative point of view.
Philosophy cannot spare anyone the trouble and effort of establishing a just rela-
tion between punishable offense and punishment. Philosophy shows only that le-
gitimation problems that can only be solved morally, not empirico-pragmatically,
arise not only with respect to the prohibition against perverting the course of
justice but also with respect to the determination of sentences. The standpoint of
categorical morality receives at the same time a further rehabilitation vis vis
the standpoint of social pragmatism, and finally, a supplementary argument
speaks in favor of deontological ethics over an exclusively teleological ethics.
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The injunction to punish more severe crimes more severely and less severe
crimes less severely binds not only the judge deciding the individual case but
also, and indeed first and foremost, the legislators that decide how different types
of crime will be classified. The formal correspondence criterion that constitutes
special reparation limits the arbitrary power not only of judges but also of legisla-
tors. For this reason, there was cause for concern, and indeed moral concern, if
the maximum penalty for drug dealers under the 1982 narcotics law of the (for-
mer) Federal Republic of Germany was raised from ten to fifteen years in the in-
terests of general prevention, and [if] in the interests of special prevention for
drug addicts susceptible to resocialization, therapeutic rather than punitive mea-
sures were ordained (Hassemer 1983, 43). If on the one hand punishment was
increased merely on grounds of deterrence and on the other a therapy reprieve
was supported by nothing other than arguments from rehabilitation, then the idea
of penal justice would have been violated by these measures. The instrumental ra-
tionality of the measures can in any case be called into question. Instead of more
effectively deterring drug dealers, the increase in punishment might simply lead
to a rise in prices for drugs, thus bringing in its train as a secondary consequence
an increase in the crimes against property committed by addicts. If this were so,
the law would show itself to be self-contradictory. Perhaps the rise in the maxi-
mum sentence expresses something like the powerless rage of the legislators
and the enraged public; the sentence is raised because one cannot control traffic
in illegal drugs. In this case, the increase in the sentence, though not necessarily
the sentence itself, would constitute a perversion of justice.
Nevertheless, there is a third way of viewing the case. One need not justify the
amendment of the narcotics law either on grounds of general or special prevention,
or by a self-disqualifying appeal to powerless rage. One can also argue on the
basis of special reparation. One can suggest that the maximum penalty for dealers
has been raised because the severity of the crime they commit, trafficking in drugs,
has been underestimated until now. In effect, the seller of drugs seduces his clients
into destroying their lives (in installments, so to speak), or at least encourages their
tendency to do so, and his motivation for doing this is base. That one ordains
therapy instead of punishment for those addicted to drugs can in turn be explained
as a reflection of the fact that one cannot sensibly ascribe to such individuals the
capacity for carrying out premeditated action. Perhaps the amendment is informed
by the deeper insight that the use of illegal drugs on its own constitutes an offense
but not a crime; it does not violate the elementary rights or goods of another or
of the legal community as a whole. If this point holds good, then the abolition of
criminal punishment for drug use is not only morally permitted but morally en-
joined, as indeed it is if one cannot credit drug addicts with premeditated actions.
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8.4. Sketch of a Unified Theory

Let us, in conclusion, cast a glance back at the threefold function of the idea
of reparation. The first, semantic aspect is seldom contested by critics of the
idea, but also seldom emphasized. The points here are, first, that punishment has
the character of reparation on purely conceptual grounds and, second, that state-
sponsored criminal punishment expresses reparation in the guise of an ultima
ratio, an instrument that is directed against the most severe form of a violation of
law, a crime. Restricted to the role of an ultima ratio, the reparation theory of penal
law is relieved of some of its more implausible ambitions and consequences.
The real dispute between reparation theorists and their opponents concerns the
two remaining aspects of the concept. The debate is intensified by Kants talk of a
categorical imperative. Kant does not, however, designate penal law as such, that
is, the authority to punish at all, a categorical imperative, but rather what we
might call the moral law of punishment, the essential norms of penal law that the
state is morally permitted to decree within the confines of its authority to punish.
This state of affairs implies a second relief from unwelcome ambitions and con-
sequences. Reparation theories need not claim a comprehensive legitimation of
punishment. Kant assumes that the important question, whether the state is per-
mitted to punish at all, has already been answered. Under this assumption, his
reparation theory sets out two conditions limiting the morally legitimate imposi-
tion of criminal punishment.
The form of a norm of penal law is as follows: if one does x, one will be pun-
ished with y; for example, one who kills a man deliberately will be sentenced to
not less than five years in prison. The categorically imperative status of the moral
law of punishment, from which Kant wants to keep away the snakelike sinuosity
of the doctrine of happiness, consists in the idea that norms of penal law of this
sort are legitimate only if they eschew pragmatic considerations of consequence
in two respects and instead commit themselves to the notion of reparation. Since
this double commitment is not recognized as a matter of natural necessity, it has
the character of an imperative. And since the imperative rests on moral grounds
and moral grounds for Kant are unconditionally valid, the imperative has a cate-
gorical significance.
Although we are in general skeptical about categorical imperatives, they can
be given a surprisingly good defense in the case of the moral law of punishment.
Far from being a system-conditioned eccentricity of Kants, the moral law of
punishment is a good example of the systematic attention that Kants thought to
this day continues to deserve. This thought gives pragmatic ethics its due, but in-
sists that it play only a secondary role. Only when the categorical imperative of
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172 Categorical Principles of Law

punishment has been fulfilled is it permissible to enter into considerations of con-

sequences in the name of public and personal welfare.
The first categorical obligation, general reparation, says that in a norm of penal
law the consequent, . . . one will be punished with y, is justified only in virtue of
its connection to the antecedent, if one does x. . . . The consequent is further-
more legitimate only under the condition that the antecedent contains not just any
breach of the rules but the violation of an elementary rule of right. In short, state
authority to inflict criminal punishment holds only with respect to a criminal.
The second categorical obligation, special reparation, demands that legislators
set the severity of the punishment contained in the consequent according to the
severity of the crime stated in the antecedent. From judges, it demands that they
orient themselves only to the severity of the breach of law. One is permitted to
punish only according to the measure provided by the crime committed.
The reparation that defines penal law as such exhibits, through the concepts of
general and special reparation, a twofold criteriological significance. It deter-
mines both the single legitimate victim of state criminal punishment and the sin-
gle legitimate criterion for the severity of a punishment. In opposition to Kants
view, however, the approach just sketched sets out only a formal criterion and is
silent as far as the actual sort of punishment is concerned. The categorical charac-
ter of the two criteria consists in the fact that, relative to submoral interests or
obligations, they are to be observed unconditionally and without exception. A
morally legitimate scheme of punishment is not allowed to deviate from the twin
demands (a) that only he who is guilty of a crime can be punished and (b) that
the severity of the punishment must be guided exclusively by the severity of the
crime. Neither collective welfare nor the interest of the punishable individual or
group can outweigh these categorical prescriptions.
Because both general reparation, the demand for a correspondence between
deed and punishment, and special reparation, the demand for a correspondence
between the severity of deed and extent of punishment, follow not from empirical
considerations but from reflections on justice, the validity of reparation as the
grounds for punishment is established independently of experience, and the rele-
vant laws flowing from reparation can be said to be justified a priori (334/143).
It is, to be sure, only the grounds of obligation of the two correspondences that
are a priori in character; the considerations with whose help one determines the
actual correspondencescorrespondences between type of crime and guidelines
for punishment, in the case of legislators, and between individual crimes and par-
ticular punishments, in the case of judgesthese concrete deliberations are not of
a purely rational nature.
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Pe n a l L a w a s C a t e g o r i c a l I m p e r a t i v e 173

The threefold significance of the idea of reparation leads only to a partial, not a
complete, rejection of pragmatic theories. Kant espouses the reparation theory
only as a dominant, not as an exclusive, theory and remains therefore open to
supplementation by pragmatic theories. One who interprets Kants arguments
from a systematic perspective will even see that pragmatic supplementation is
necessary.
The punishment, which is to take place after the crime, assuming the situation
has been clarified, is specified in advance, and because of the advance specifica-
tion it also threatens before the fact. Advance specification, embodied in the
maxim no punishment without a law is indeed a requirement of justice. In
virtue of anticipatory threat of punishment, the moral law of punishment ac-
quires an element of deterrence. Without being designated one of the goals of
punishment, deterrence is a psychologically necessary concomitant of the moral
law of punishment, a side effect that cannot be separated from the institution of
punishment itself.
A side effect can, as an unavoidable drawback, simply be accepted as insepa-
rable from the rest of a particular package, or it can represent an additional ad-
vantage. Deterrence actually helps the state to fulfill its moral task of ensuring the
rule of law, and it can insofar be accounted a welcome side effect. And to the ex-
tent that, in certain areas at least, the state cannot ensure the rule of law without
deterrence, it even acquires the moral significance of an indispensable means to a
morally required end.
In light of the foregoing it is evident that a healthy proportion of anti-Kant
polemic launched by prevention theorists, along with much of the criticism of
prevention theory by Kantians, is superfluous. Does it follow that Kants critique
of social-pragmatic, utilitarian theories of punishment dissolves into an exercise
in vain posturing? No, for we do not call just any means-oriented legitimation
utilitarian, but rather only the sort that takes the ultimate goal to lie in the col-
lective welfare of all concerned. In the Kantian legitimation strategy just
sketched, both punishment itself and its secondary benefit of deterrence serve not
the collective welfare but the guarantee of rights, indeed moral rights, at the head
of which stand those known as human rights. It is incumbent upon the state to
guarantee these rights even when doing so diminishes collective welfare. Repara-
tion, moreover, remains the dominant aim of punishment within this framework
of rights as guarantees of justice. Prevention is legitimate only insofar as neither
general nor special reparation is infringed upon, insofar as two morally mandated
limits to state-administered punishment remain in placethe mandate that only
the guilty may be punished and that severity of punishment be apportioned only
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174 Categorical Principles of Law

according to the severity of the crime. In short, although it leaves room for pre-
vention, the legitimation strategy here sketched remains Kantian all the same.
Under the supposition that the more serious a criminal offense, the greater the
possible gain for a potential criminal, it could even be that the severity of punish-
ments established on the basis of reparation would coincide with that established
on the basis of a prevention theory. For if one wants to achieve the desired deter-
rence, one must attach greater punishments to greater potential gains. It could be,
then, that as far as the practice of sentencing law is concerned, the difference
between a predominantly reparation theory and a predominantly prevention
theory would not in the end amount to very much, either from the point of view of
the legislator or from that of the judge. Nevertheless, only one of the theories can
be successful as a theory of legitimation, and that is the one that allows consider-
ations of prevention to enter in only for the institution of criminal punishment as
such, and even there allows such considerations to play only a subsidiary role,
while permitting only considerations of reparation to shape the precise form to be
given to the institution in question.
Deterrence is not, in any case, the only way to impede the infringement of ele-
mentary rules of law. Since deterrence presupposes a deliberate action, one needs
a fundamentally different kind of security for rights when this condition is absent.
When an offense is not premeditated, deterrence cannot, by definition, have any
effect. This is where we find a legitimation-theoretical place for resocialization.
Faced with those, such as drug addicts, who are to some degree no longer ac-
countable for their actions, the state tries to devise means of restoring them to full
accountability, and if needed it forces offenders of this sort to subject themselves
to such measures. Faced with criminals who do act deliberately, one attempts,
after deterrence has failed, the extremely difficult task of changing their attitudes.
So the third of the currently popular theories of penal law can also be combined
with the reparation theory, albeit only if one acknowledges the concept of repara-
tion as primary. Alongside the principal goal of guaranteeing rights, both deter-
rence and resocialization are legitimate secondary goals.
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9
THE REPUBLIC OF FREE, CONFEDERATED PEOPLES

The exhaustion of utopian energies is not the least important complaint of our
times. The weight of evidence for such a diagnosis is great, almost oppressive.
Whether we think of the juridical-constitutional state or of the welfare state or
of the idea of freedom from Herrschaft, we see, for different reasons, the same
result: political ideals have lost their shine. Matters are no different with respect
to technology; one expects from it a certain amount of help in the diminishment
of hardship and toil, and one needs to promote it in order to maintain competi-
tiveness, but it has long been drained of its power to promise a significantly better
future overall. Neither are there signs of utopian impulses from literature and the
arts. In vain do we seek a Gauguin capable of carrying us away to the South Seas
and there leading us into the mansion of joy; equally in vain do we seek a
Chagall capable of opening our eyes to the realm of spiritual salvation already
available in this world.

175
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176 Categorical Principles of Law

These divers observations combine to issue in a new spirit of the times. The
mood of the general public is no longer captured by the liberating Principle of
Hope espoused by Ernst Bloch; the times are exemplified instead by Hans
Jonass Principle of Responsibility, an altogether more sober and burdensome
slogan. Nevertheless, before we resign ourselves to living in a postutopian age,
some small doubts might be permitted: perhaps it is not sources of energy them-
selves that have given up, but rather certain topics that have been exhausted. The
juridical-constitutional state has (in principle) been realized; the welfare state and
technology are, for different reasons, phenomena that provoke ambivalence rather
than unalloyed enthusiasm; and the ideal whose validity goes without saying in
philosophical discussion, that of freedom from Herrschaft, is, as a principle of so-
ciety, tied to the juridical state (Rechtsstaat), which is to say, to public authority.
If one wants to release new energies or, more modestly, new impulses, one
must consider the conditions under which utopias thrive. The vague insight that
every society needs a stock of hopes is not sufficient. Widespread problems, the
importance of which is frightening, offer a good opportunity for kindling energy.
It is crucial, furthermore, not to restrict ourselves to narrowly confined solutions;
only a reasonably grand project can kindle energies of the required sort. Prag-
matic skepticism is, finally, a serious opponent of utopian projects. Grand solu-
tions in the utopian mold will succeed in overcoming such opposition only if they
refrain from blithely ignoring difficulties and can plausibly claim for themselves
the same advantages boasted by the pragmatist, a sober awareness of the scope
and nature of the problems involved. Grand solutions are not fervid, fuzzy visions
that, because they are fundamentally unrealizable, point to a perpetual Nowhere
and Never. The goal, rather, is a realizable Not Yet, something more accurately
called an ideal than a utopia.

9.1. A Monument to the Republican Revolution

There is no shortage of pressing problems. We do indeed believe that our lands

are free of poverty, social injustice, and violations of human rights, and we would
prefer to feel neither directly nor indirectly responsible for the persistence of such
horrors elsewhere. But we are clearly both victim and perpetrator of the dangers
facing the environment. Not least of the vital problems facing humanity today is
war; however abstract this possibility has become for us peace-pampered Euro-
peans, it remains a painful reality for many others. The grand solution to this
problem is simply that men become fed up with war, and the philosopher of this
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solution is Immanuel Kant. The relevant Kantian work here states its project in its
title: Toward Perpetual Peace.
Historically considered, Kant offers with this work a monument to the young
French republic. The occasion for this intellectual homage was the Peace of Basel
concluded by France and Prussia. The homage places itself in the tradition of the
Project of Perpetual Peace of the abb de Saint-Pierre and of remarks of
Rousseaus in The Social Contract, 3.15, and in the fifth book of Emile, in con-
nection with political institutions (cf. IUH VIII:24/18; TP VIII:313/92). Though
it is true that Kant contests the moral legitimacy of revolutions, this does not pre-
vent him from harboring sympathythat, in his own words, borders on enthusi-
asm (CF VII:85/153)for a powerful and enlightened people [that] can make
itself into a republic (PP VIII:356/100101),1 that is, for revolutionary France.
Kants affection for revolutionary France survived even the reign of terror under
Robespierre, as well it should have. Just as an end, such as the founding of the
Republic, can hardly justify such means as the Jacobin terror, so can a good end
hardly be disqualified through unjustified means employed to achieve it.
Those who know Kants ethics only from the Grounding or the second Cri-
tique are fond of accusing it not only of rigorism but also of a deficient power of
practical judgment. If, however, one takes the trouble to assemble the remarks on
the French Revolution that are strewn throughout his oeuvre (see Burg 1974), one
will discover a remarkably nuanced assessment. Kants judgments do not simply
reflect contingent political views, but are rather determined through and through
by fundamental principles of the ethics of law and right. While Kant endorses the
takeover of state power by the National Assembly (DR VI:33942/14749), he
sharply criticizes the execution of Louis XVI (DR VI:320/132); while he holds
that the secularization of church property is justified (DR VI:368/173), he regards
Robespierres dictatorship as illegitimate (ANTH VII:259/164), but thinks that the
constitution of the Directorate is legitimate, since it is dependent upon represen-
tatives of the people (CF VII:85/153).
The first Article of Definition of Perpetual Peace constitutes the essays
clearest homage to the republican revolution. Alluding to the new situation in
France, Kant states in unequivocal and lapidary form: the civil constitution
should be republican; and to make his attitude even more evident, he elabo-
rates this demand by means of two principles of the Revolution: freedom and
equality.

1. In this chapter, further references to Perpetual Peace will be made simply by page numbers to
volume VIII of the Academy edition and to Lewis White Becks 1963 translation.
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178 Categorical Principles of Law

The young Republic took notice of the monument erected to it. While German
intellectuals such as Wilhelm von Humboldt visited Paris as no more (but also no
less) than tourists of the Revolution, Kants presence was much more widely
felt. The quickly translated essay on peace received an unusual amount of atten-
tion in intellectual and political circles. Even before the appearance of the French
version of the essaywhich, incidentally, occurred at the same time in Knigs-
berg (published by Nicolovius) and in Paris (by Jansen and Perroneau)one
could read that the celebrated Kant, this man who has in Germany effected a
revolution in the minds of people, . . . has now lent his support to the cause of the
republican constitution. The author of this tract nonetheless sees very clearly
that Kant erects a monument in the style of his craft, that is, in a philosophical
manner; Perpetual Peace, it is said, develops not the republicanism of France,
but that of the whole world. The perspective of particular nation-states is foreign
to Kant; as a philosopher he transforms a particular ideal into a genuinely
global one, the ideal of a world republic.
The philosophical manner not only entails a universalization, both for republi-
canism and for the ideal of peace, it determines also the literary genre of the
piece. Kant is no journalist, offering a simple commentary on a political event.
All of the fundamental ideas are in fact already found four years before the Rev-
olution in the small but richly significant essay Idea for a Universal History
from a Cosmopolitan Point of View. In addition, Kant does not conform to a
preexisting genre, but rather creates a new one, thereby once again documenting
his intellectual rank.
The novels that in the sixteenth and seventeenth centuries followed the exam-
ple of Mores Utopia in dealing with issues of statehood and government were
called imaginary voyages. In his proposal for perpetual peace, Kant does in-
deed allow philosophers to dream this sweet dream (343/85), but it is pure prac-
tical reason, not the power of political imagination, that makes a journey in this
work. Because Kant defines morality by means of pure practical reason, he attains
a standpoint beyond the choice between Bloch and Jonas. Perpetual peace is not
simply something to be awaited from Providence; it is imposed upon humankind
as a moral duty, and indeed a moral duty of right, not virtue. Not merely the ob-
ject of an expectant hope but equally that of an engaged responsibility, perpetual
peace has the character of a moral utopia, better yet, a political ideal. Since Kant
defines morality as something categorically obligatory, the task of establishing
perpetual peace acquires the status of a categorical imperative.
Because peace, that for which we are responsible, must be established through
a shared political will, the requirement to realize it is, in the Kantian sense, a re-
quirement of law and right. In this way, the list of categorical imperatives is
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expanded to include an imperative of peace. Following the model of the peace

treaties of his time, Kant develops this imperative in the shape of a formal treaty
structure. Alluding with subtle irony to contemporary means of concluding peace,
he even includes a secret article. The content of this article consists, however, in
no more than the demand that a free and public discussion be permitted concern-
ing the general maxims of the conduct of war and the institution of peace. This
secret article contains also Kants transformation of the Platonic principle of the
philosopher-king. Manifesting a twofold modesty, philosophers on the one hand
renounce all public power, since the possession of such unavoidably corrupts
their task and competence; and on the other hand, they demand neither special
tasks nor special capacities. Philosophers, as Kant conceives them, accord to
themselves nothing more than a universally human competence, that of exercising
the untrammeled judgement of reason (369/116). Having become in this way
democratic, philosophy is able to do that which is today widely denied it, to pass
judgment upon human culture and to legislate the grounds of such judgments.
Although Kant gives to the imperative of peace the form of a treaty, he does
not offer a spelled-out legal text. He names preconditions (the Preliminary) and
principal conditions (the Articles of Definition), but he introduces only the princi-
ples of perpetual peace. Further reflection on the matter, however, will discover in
this only no defect but an advantage.
The competence of philosophers for concrete political judgment is no greater
than that of a well-informed reflective citizen. Kant does well to leave the task of
establishing peace in concreto to citizens, the politicians that represent them, and
the experts that advise them, namely jurists (cf. the Second Addendum). Kant for
his part restricts himself to a kind of philosophical legislation. In so doing, he
releases himself from any ties to a particular historical situation, and it is only
because of this that he can remain a systematic partner in discussion through to
the present day. That France has known republican government for two hundred
years can well fill the land with a pride worthy of worldwide commemoration, but
it can hardly awaken utopian impulses for the Western democracies of today.
Not so with regard to the philosophical perspective that expands the republican
idea to a republicanism of the whole world.

9.2. The Categorical Imperative of Peace

In recent years debates about peace have given rise to passionate argument con-
cerning the fundamental concept. If a consensus has in the end been extracted, it
has been so only in a form that we know from politics to be regrettable; what has
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180 Categorical Principles of Law

been achieved is merely a subterranean and moreover negative consensus:

namely, that peace, a broad and equivocal goal, does not set free new energies in
each and every definition of it. For Kant, the visionary, or utopian, element lies
in the qualification perpetual. Kants concept is nevertheless far from woolly-
minded. The sobriety that complements its visionary character lies in the fact that
Kant does not understand by perpetual (ewig) simply a temporal duration
extrapolated without limit. What Kant understands by perpetual is instead a
particular quality, something like that intended by someone who promises per-
petual or eternal fidelity. No one can guarantee by giving his word today that
he will in fact remain true tomorrow. What he can do is bind himself to a fidelity
without reservation or condition. Kant begins his essay with a definition of per-
petual in this sense of without qualification or reservation; he begins, in other
words, with a qualitative, rather than a temporal, understanding of peace. Accord-
ing to the essays first precondition, no peace treaty can count as such that is
made with a tacit reservation of the material for future war.
Astonishing though this may be to those who know European history only
after the French Revolution, the ideal of a perpetual peace has a long tradition in
the West. It was alive before the writings of Erasmus and Sebastian Franck at the
dawn of the modern era. In fact, Dante had sketched the blueprint of an interna-
tional political order aimed at securing peace and the rule of law. Four hundred
years later, after the Peace of Utrecht in 1713, the abb de Saint-Pierre demanded
a federation of perpetual peace for the twenty-four states of Europe and even
added that the federation might eventually be joined by the Mohammedan
princes. Against this background, Kants second visionary element can be
brought to light: he aims, not for a peace that is content to limit itself to Europe,
but rather for a genuinely global peace. Here too, though, Kant brings to the dis-
cussion elements of sobriety.
In the first Western treatise on the state, the Republic, Plato had connected ex-
ternal peace with internal peace, with the peace of man with himself. Kant man-
ages without such a far-reaching condition; he locates perpetual peace in the
realm of law and right and, in virtue of its emancipation from disposition (cf. 3.3
above), defines the law independently of personal attitude. Similarly, Kant re-
nounces the other element of Platos ideal of peace, an element that we find again
in Rousseaus First Discourse: the idyllic vision of eternal freedom from conflict.
A conception of peace that presupposed this would contradict the fundamental
anthropological determination that Kant had already outlined in his work on the
philosophy of history and that he confirms in the First Addendum to the essay on
peace. According to the concept in question, that of unsociable sociability, pas-
sions such as vainglory, lust for power, and avarice are in themselves unami-
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able (IUH VIII:21/15) but, as opposition to the inclination to laziness, never-

theless lead men from barbarism to culture (IUH VIII:21/15). A life in vain har-
mony is for Kant not only unrealistic, it is not even desirable, since all culture
[and] art . . . are fruits of unsociability (IUH VIII:22/17).
Kant is perfectly willing to admit conflict and defines peace negatively as the
end of all hostilities (First Preliminary Article, 343/85). Enmity and hostility
are not truly ended, rather than merely deferred, until all war is forbidden. Kants
first conception of peace precludes war as a means of resolving conflicts.
The end of war can certainly awaken hope wherever war is currently waged.
More than this, as soon as the modest conception of peace was realized, human-
ity would be free from a fear that today hangs heavy over it, the fear of an atomic
catastrophe. This hope, however, is not the truly great hope that can set free new
energies for all humankind. For the threat of war, even that of a nuclear variety,
would pass quickly by if one side gave in and accepted the conditions of the
other.
According to the famous Master and Slave chapter of Hegels Phenomenology
of Spirit, the formation of human self-consciousness begins with a struggle for
recognition. This struggle, carried out to the death, does indeed succeed in ending
hostilities, but results nevertheless in a relationship that is hardly desirable, the
extreme asymmetry between master and slave. There is, moreover, no unqualified
peace, since hostilities are brought to an end only under the condition that one
side gives into the fear of death and submits in time to save himself. Peace is ob-
tained in only a qualified form, for as long as one side recognizes survival as a
dominant good. As the confessional civil wars of the early modern period and the
many more recent, not always religiously motivated civil wars show clearly
enough, people are often prepared to fight until all energy is exhausted for goods
such as religious freedom, political self-determination, and cultural identity, not
to speak of less exalted goods. People fight, in other words, over goods that are
taken to dominate the good of mere survival. The peace that results is not far from
the peace of the grave. Another reason only a peace with qualifications and
reservationsin Kants terms, an extended cease-firecan exist between mas-
ter and slave is that the slave can surmount his servile consciousness that takes
survival to be a dominant goal and rebel against the master.
Above all, though many may regard it as prudent to value survival above all
else in the case of a conflict between goods, it is not morally required. A peace
that is determined by the principle of survival is merely a pragmatic imperative.
To be sure, this imperative can vary in scope. Up until now, wars have been
regional in character, and the threat of a war that could jeopardize the entire
species is quantitatively much greater than anything regional could be. Does it
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182 Categorical Principles of Law

follow that the prevention of a war of the latter, nuclear sort becomes, as a
species-pragmatic imperative, binding in a genuinely moral way?
Remarkably, Kant, in ignorance of the nature of present-day weapons arsenals,
takes a global war into consideration. He speaks of a war of extermination that
would permit perpetual peace only in the vast burial ground of the human race,
and holds that such a war is absolutely forbidden (347/90). Now, absolutely
forbidden is equivalent to forbidden without qualification, that is, categori-
cally. Does Kant therefore anticipate the position, currently defended in the de-
bates about peace, that bringing about the demise of the human race is morally
prohibited? In the case in which not merely a group but humanity as a whole is
threatened with annihilation, does an imperative of peace founded on the value of
survival then lose its merely pragmatic validity and become a categorical prohibi-
tion of the form Humanity is not permitted to annihilate itself?
The annihilation of the species is something so horrifyingly conclusive that
one is fully warranted in speaking of something qualitatively new. Whether the
quality of the horror entails a categorical imperative to avert it depends, however,
on the ground of the relevant obligation. In this case, the ground in question is
that of survival. The imperative to avert the extermination of humanity contains
an element of well-being and cannot, therefore, ground anything more than a
pragmatic imperative.
Nowhere in Kants essay on peace do we find an argument to the effect that
war is not permitted, because it puts human life at risk, and that it is absolutely
impermissible when it puts the whole species at risk. Such a train of thought can-
not then help illuminate Kants thesis that a war of extermination is absolutely
prohibited. In addition, there are wars that risk no human lives. In the History of
Florence (5.102), Machiavelli boasts of a war conducted in such a way that nei-
ther side lost a single man. Today as well, one can perhaps imagine weapons sys-
tems and military strategies that would enable conflicts to be resolved without
any killing, while still relying on force as the means of resolution. Would such
wars be legitimate simply because they issued in no casualties? One whose only
argument against war is the prohibition against the taking of life would have to
answer this question in the affirmative.
Kant answers the question above in the negative and constructs in support of
this answer a second and more ambitious conception of peace, one that reflects
the conditions that make a peace that is truly without qualification or reservation.
One can reconstruct the conception by means of an argument e contrario. States
of peace exist with qualification whenever conflicts are resolved only because one
side, for whatever reason, submits to the force of the other. Force, in turn, gives
rise to an asymmetry that in the extreme case takes the form of master and slave.
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Qualification and asymmetry fall away as soon as it is no longer force that de-
cides, but law and right, the supersession of force. Since mere positive law can
conceal brute force within it, at issue is instead morally acceptable law, just law.
Where just law rules, parties to a conflict acquire a fundamental equality of right,
and the asymmetry between them is dissolved. In his second, positive conception
of peace, Kant emphasizes this equality of right.
Although he does not develop it until the first Article of Definition, Kant
makes use of this positive conception of peace already in the Preliminary Arti-
cles. In the Sixth Preliminary Article, that in which the war of extermination is
mentioned, he twice alludes to a means of conflict resolution that results, not from
force, but from just law (34647/8990). It is this moral argument, merely
sketched to be sure, that gives Kant the right morally to condemn a war of exter-
mination as absolutely prohibited.
Recent discussion of peace has concentrated on the threat of nuclear war, a
focus that is legitimate insofar as nuclear war conjures new dimensions of danger
into existence. Nevertheless, this orientation diverts attention from the fact that it
is not only nuclear war that is to be condemned. The many little wars that at the
present time are not only possible but actual represent a striking moral injustice
that should not be trivialized on the grounds that it does not threaten the continu-
ation of humanity as a whole.

Because, according to Kants second conception, the achievement of peace serves

the achievement of the rule of just law, it acquires the status of an element of the
morality of law and right. Since Kant defines the morality of law as a categorical
imperative, he implicitly deems perpetual peace a categorical imperative of law.
Though he does not actually use the expression categorical imperative of law, he
does declare the state of peace to be a direct duty (356/100, and cf. 378/126).
With regard to peace as a categorical imperative of law, the accent is not placed
first on the element of categoricity; the juridical character of the imperative is
equally important. The imperative of peace represents an obligation whose recog-
nition human beings can demand of each other irrespective of their religious, po-
litical, or even moral attitudes. While a religious morality such as that embodied in
the Sermon on the Mount is concerned with a meritorious above and beyond the
call, the morality of law contents itself with that which people owe to one another.
Structurally, the imperative of peace has two levels. First, just law must be de-
fined, and only then can one try to see to its peaceful establishment. From the
point of view of the ethics of law and right, one has a categorical imperative in the
narrower sense to acknowledge morally grounded rights, such as human rights. In
this case, by contrast, we are dealing with the demand to establish just law, not
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184 Categorical Principles of Law

with private force, but with shared public force. When Kant speaks of public
force, he has in mind a state. So the thematically second level of the categorical
imperative of peace, subsidiary to the first imperative of law, coincides with the
categorical imperative of the statethe demand together to form a state that sees
to the establishment of moral rightsand it is this latter that is the genuine im-
perative of peace. (In substance, Kant espouses a categorical imperative of the
state, for example, at 378/12526 and 386/13435.) Relative to moral rights, this
imperative orders nonviolent conflict resolution.
Political discussion is familiar with a controversy that plays a role in debates
about peace: the dispute over which of the three principles liberty, justice, and
peace merits priority. In the Doctrine of Right (VI:355/161), Kant states that peace
is the highest political good, and appears thereby to side with the pacifists. Ac-
cording to the second principal section of the Dialectic of the Critique of Prac-
tical Reason (C2 V:110/92), the concept of the highest is ambiguous. It can
mean either the supreme (supremum) or the complete (consummatum). Ac-
cording to the first meaning, peace, as the highest good, would be, in a meaning
specific to Kant, a dominant political goal, for whose sake reductions or sacrifices
of liberty or justice could be demanded. According to the second meaning, peace
would be, once again in a specific sense, an inclusive political good, the achieve-
ment of which could require no loss of liberty or justice, since these would be re-
alized together with peace itself. Because it consists in the nonviolent establish-
ment of just law, which in turn consists in a liberty compatible with its possession
by all, this second conception of peace functions as the highest political good in
an inclusive, not a dominant, sense. One achieves this good in submitting oneself
to the rule of just law and promoting the establishment of the latter by exclusively
nonviolent means. Talk of a categorical imperative of peace needs then to be mod-
ified along the following lines. The establishment of perpetual peace remains cat-
egorically commanded. But despite the second Article of Definitions declaration
that the state of peace is a direct duty (356/100), Kant sees more precisely in the
appendix that the duty in question can be directly applied only to the two stages
adumbrated above. One is obliged to acknowledge the claims of just lawthis is
the categorical imperative of law in the narrower senseand also to see to the or-
ganization of this acknowledgment by public, rather than private, means, which is
the categorical imperative of the state. Perpetual peace, peace without qualifica-
tion or reservation, is nothing other than that which results from the observance of
this double imperative. Alternatively, as Kant expresses it with a New Testament
allusion: Seek ye first the kingdom of pure practical reason and its righteousness,
and your end (the blessing of perpetual peace) will necessarily follow (378/125).
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9.3. A Second Republican Revolution

Since law needs to be established on three levels, Kant, in three Articles of Defi-
nition, formulates three aspects of the categorical imperative of peace. The three
articles express with acute brevity an entire philosophy of public law. The first ar-
ticle treats of relations within states (the law of the land), the second article of re-
lations between states (international law), and the third article investigates the
relations between persons and foreign powers and contains the cosmopolitanism
in whose name Kant sharply rejects every form of colonialism.
At least in the Western democracies, the effective nonviolent implementation
of legitimate law within national borders has in principle become accepted as a
matter of course. If the present day still harbors hopes capable of awakening en-
ergy, they are more likely to be found at the level of the law of nations. In order to
grasp more precisely what it is that should be valid between states, let us cast a
brief glance at the domestic perspective. Kants lapidary demand that the consti-
tution should be republican has a scope that is often underestimated, even by
Kant interpreters. Indeed, those familiar only with todays linguistic usage can
even get the impression that Kants demand has little to do with political legiti-
macy, since, according to the definition offered by a recent Political Lexicon, re-
public is a designation for all states that are not monarchies, and is therefore
virtually meaningless in view of its lack of differentiation (Drechsler et al. 1979,
479). In truth, we do today prefer to use expressions such as human rights,
democracy, juridical-constitutional state, and social-welfare state as crite-
ria of the legitimacy of national constitutions.
Kant himself is partially responsible for his readers undervaluation of the
scope of his demand. For he defines a republican constitution by means of five
conditions, of which the fourth, the division of powers, is introduced separately.
In addition, he discusses the conditions in such a way that it looks as if they
should combine to form a complete conception of republicanism. In fact, for
Kant, republicanism means much more than this. His conception includes most of
the criteria of legitimacy upheld today. Kants first three conditions, liberty, de-
pendence, and equality, are reminiscent of the revolutionary triad liberty, equality,
fraternity. Kant, however, strikes the communitarian notion of fraternity and em-
phasizes in its steadalthough the phrase in addition would perhaps be more
accuratethe principle of dependence upon the law. The conditions named by
Kant lead to the juridical-constitutional state.
From the point of view of the ethics of law and right, Kant has good grounds
for beginning, as he does, with principles of . . . freedom (350/94; cf. 373/120
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186 Categorical Principles of Law

and 378/126). The systematically first task of a republic consists in the recogni-
tion of human rights (350/93) and thus coincides with the first level of the cate-
gorical imperative of peace. As we would put it today, a republic is a constitu-
tional state. As long as human rights are merely postulated, they often enough
remain merely a pious wish. To counter this danger of mere postulation, Kant
formulates as a second condition the dependence of all upon a single common
legislation (350/94). This means that a republic needs public powers, above all
legislative powers; it needs, in accordance with the second level of the categorical
imperative of peace, to become a state. With this second level, Kant rejects the
ideal of freedom from Herrschaft as a principle of society. Public powers such as
legislatures do not, however, prevent human rights from remaining merely a pos-
tulate. The state that drafted the first-ever declaration of human rights, Virginia, is
one of the southern states of North America that condoned slavery for many more
generations. A republic arms itself against this danger with the law of . . . equal-
ity (350/94); as a consequence of this supplement to the constitutional state, the
latter becomes, in the third place, a juridical state, one that respects universal
legal rights. Not until public powers treat all equally and in accordance with the
principle of liberty, not, that is, until human rights are enforced, are slavery and
other forms of discrimination and privilege abolished.
The fourth Kantian element, the division of powers (which some philosophers
take to be of itself sufficient to define a republic), is needed by a republic be-
causebut only becausepublic powers are exercised by human beings who,
being natural creatures subject to human passions, are capable of misusing their
authority (352/96). To found a republic philosophically, a fifth element is needed
as well. Kant interprets the principle of liberty as the privilege to lend obedience
to no external laws except those to which I could have given consent (350/93).
This condition gives republicanism a democratic depth and gives the categorical
imperative of law an interpretation that points in a consensus-theoretical direc-
tion. At the same time, it shows that Kants ideal still harbors critical potential for
the Western democracies. The fact that laws supported by a majority of particular
interests are enacted in the course of party struggles does not suffice to render
them legitimate. Laws, or at least the substantial principles underlying them, must
also deserve the consent of all affected by them.
According to Kant, states can be judged as are individual people (354/my
translation). For this reason what is applicable to relations between individuals is
applicable to relations between them: to begin with, the only morally legitimate
sort of conflict resolution is that which depends exclusively upon the dictates of
just law. Now, a war is won only by the side that is on the whole stronger; vic-
tory and defeat depend solely upon relative power. In view of this, reason . . .
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absolutely condemns war as a legal recourse (356/100). The idea of a just war,
which contributes to the determination of European discourses on peace until
well into the modern age, loses all legitimacy for Kant, with the single exception
of sheer self-defense (345/8788). Indeed, in the relevant passage from Perpet-
ual Peace, Kants usually sober argumentative prose acquires a purple tinge: the
condemnation of war, he writes, comes down from the throne of the highest in-
stance of moral legislation.
In order to get serious about outlawing war, the republican order defined by the
five conditions mentioned abovethe recognition of human rights (now the
human rights of states, that is, the rights of nations), the effective establishment
of these rights by public powers, equality before the law, the division of powers,
and finally the capacity to gain universal consentneeds to be present on an inter-
national level. The two utopian aspects of Kants essay on peace, perpetual peace
and a truly global republic, do not designate two distinct visions, but rather one and
the same outlook: the ideal that the law as morally defined, and it alone, governs.
In order fully to realize the principles of the French Revolution, republicanism
needs to be acknowledged universally, and this in a double sense. First, each indi-
vidual state must adopt a republican constitution; this is in principle, though not in
actuality, trivial. Second, and no longer trivial even in principle, relations between
states must in turn be constituted in a republican manner. This second step has the
force of a renewed republican revolution. What heretofore has held only within
states is made real also between states in a republic of republics, a world-republic.
Epigrammatically: the republican revolution fulfills itself in a world-republic.

9.4. Ideal or Surrogate?

Pragmatic skeptics, the opponents of ideals, will speak up against the aim of es-
tablishing a world-republic. As in the case of individuals, so in the case of states:
the existence of a republic requires the ceding of sovereignty, and, says the skep-
tic, few indeed are the states prepared to do that. Though one might try to dis-
credit this lack of readiness as a sort of stubborn cussedness, the experience our
century has had of totalitarian regimes offers grounds enough for justified suspi-
cion. So long as there is no shared consciousness regarding the morality of law
and right on the global level, it will be force, not law, that governs. Further, the
danger looms that todays international conflicts, transformed into domestic con-
flicts as they would be in a world-state, would be decided by a majority in their
own interests, with even less consideration for the rights of all. Indeed, this threat
is accentuated from the global perspective. Since the Enlightenment, permission
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188 Categorical Principles of Law

to emigrate has been accepted as a valid human right, and where this right is de-
nied, one can at least attempt to flee. In the context of a world government, both
of these, the right to emigrate and the possibility of escape, would effectively dis-
appear, as would the chance of hoping that a dictatorship might be overthrown
from outside.
Against the background of this sort of worry, the depth of Kants awareness of
the issues is once more made evident. He is entirely familiar with the most im-
portant arguments against a world-republic. He does not, however, in the essay of
peace discuss the simple alternative: state of war or world-republic. Rather, he
brings into view three alternatives to the practice of war, and to this day we have
not developed substantially different options.
The one extreme, a homogeneous world-state, Kant calls a universal monar-
chy. In order to establish this form of government, the antecedently existing indi-
vidual states would have to renounce their sovereignty entirely; they would dis-
solve themselves. Kant opposes this option with two arguments that have lost
none of their force today. In Perpetual Peace he raises the specter of what we
would call a dictatorship; he fears, namely, that the world-state could degenerate
into a soulless despotism (367/113) and a burial ground of freedom
(367/114). Two years later, in the Doctrine of Right (VI:34950/15556), this ar-
gument no longer appears. Here, Kant points only to another worry, also one that
we share with him: he holds that a global state of this sort would be ungovernable.
Kants arguments are convincing (within limits) if they are understood as ex-
pressing pragmatic considerations. They issue from demands of political pru-
dence, in particular the thought that with regard to the formation of an interna-
tional state heightened caution is in order; but they do not amount to a
fundamental moral objection. Neither danger, that of dictatorship nor that of un-
governability, is structurally different at the level of individual states, and both
can be protected against with relatively reliable measures. Kants ideal republi-
canism is in any case concerned with a moral conception of the state, and this
from the start excludes the danger of a soulless despotism.
Nevertheless, despite the weaknesses of Kants arguments, assuring the rule of
law and right on an international scale does not in fact require the establishment
of a homogeneous world-state. Moreover, a more fundamental argument against
this idea can be mounted, one entirely in line with Kantian philosophy of law and
the state. Remarkably enough, the argument does not appear in Kants writings
on these subjects. Global statehood is morally mandated only for a single, clearly
circumscribed task: for the coexistence of already existing states to be made con-
formable to law. It is not the initial establishment and consequent enforcement of
human rights for groups and individuals that is sought at this level. These are
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tasks incumbent upon individual states, which need only to be supplemented by a

subsidiary global political order. Individual states remain primary, and the world-
republic is at best a secondary state. It is not an individual state blown up to
global proportions and certainly not a monolithic state; it is rather a state of
states. And since Kants world-state is republican in character, what is aspired to
is a republic of republics, a republic composed of individual states that Kant
some years before the essay on peace had characterized as a republic of free,
confederated peoples (R VI:34/my translation).
Since the primary states are not alone on earth, conflicts between them can
arise, conflicts that can threaten those rightsto the integrity of life and limb, to
property, to freedom of religion and opinion, and so forththat are in principal
already assured at the primary state level. Cases can occur in which either the rel-
evant rights of individuals or the right of primary states to the integrity of their
territory and to political and cultural self-determination will be threatened. In the
context of the universal requirement of peace, however, peace between nations
amounts only to a small and residual responsibility. The tasks of the state familiar
to ussuch as those concerning civil and penal law, labor and social law, the
right to language, religion, and cultureall these responsibilities of primary states
are removed from the jurisdiction of the secondary state, the world-republic.
A world organization that arrogated to itself more responsibilities than that of
securing international peace would violate the human right to form states, the
right to political and cultural self-determination. Kant takes this right to form and
sustain states to be so basic that he formulates it in the Preliminary Articles. Ac-
cording to the second such article, no existing state can be acquired by another
state through inheritance, exchange, purchase, or gift, and according to the fifth
article, no state, and that means also no world-state, can interfere in a violent
manner in the constitution and government of another state.
If one adopts Kants argument, or an argument along his lines, there remain
only two serious alternatives to the practice of war: either a state of nations, more
precisely the state of states, or republic of states, which discharges the remaining
task by means of a full-blooded state, or the possibility Kant himself espouses, a
confederation of nations that manages to do without any renunciation of sover-
eignty. On this model, parties renounce war without reservation through bi- and
multilateral treaties and declare themselves prepared to resolve all differences
without recourse to violence. Should conflicts nevertheless arise, the confedera-
tion of nations envisages neither a common book of statutes (356/100) nor an au-
thorized tribunal, much less the power to enforce the decrees of any such court.
That a confederation of nations would have a juridical, rather than a statist,
character would be welcome to the individual states that jealously protect their
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sovereignty. But it contradicts the fundamental thesis of Kants ethics of the state,
that because in the sort of coexistence that precedes the political state, the state of
nature, all rights are valid only provisionally (354/98; cf. DR VI:3058/12022),
the state of nature is to be overcome in favor of the political state. Where the usual
criticisms of an international state compare its advantages with its disadvantages,
thus drawing up a cost-benefit analysis, Kant argues more fundamentally: he
maintains that the idea of an international state is self-contradictory (354/98).
On hearing the word contradiction, those well versed in Kant will be re-
minded of the antinomies of the first two Critiques. Since Kant calls perpetual
peace the highest political good (DR VI:355/161) and articulates the concept of
a highest good in the Dialectic of Pure Practical Reason, one might conjecture
that the essay on peace will offer as a variant an antinomy of practical reason with
respect to law and right. Worthwhile though it would be to work through this
speculative problem, no hints of it are found in Perpetual Peace. The contradic-
tion Kant claims to find in this work is not at all speculative, but derives from the
two components that together make up the concept of an international state. Ac-
cording to Kant, the concept of a state contradicts that of a nation or people. This
view, however, is not convincing.
In Perpetual Peace, Kant runs together two concepts of a nation that are in
fact independent of one another. Sometimes he takes a nation to be constituted by
shared ancestry; at other times he understands it as a public juridical unity. Corre-
sponding to each distinct concept are two ways of reading the supposed contra-
diction in the notion of an international state. On the first reading, the reason that
an international state could encroach upon the distinctiveness of individual na-
tions is that in the course of realizing themselves, organs of state institute extra-
juridical commonalities. But if an international state were constructed with the
foresight and circumspection demanded by the ethics of law and right, were con-
stituted as a republic, and, above all, were restricted to the modest residual task of
securing peace between nations, any tendency to homogenization would be ex-
tremely slight. If anything, the competition between languages and religions de-
sired by Kant (367/1314)one could speak more generally of a right to social
and cultural identitywould be protected rather than threatened. The great ten-
dencies to homogeneity stem in any case from other factors, from economics
and technology, from science, even from architecture, the plastic arts, and music,
perhaps even from the international language of highways, airports, train stations
and the like. If today there are indications of something like a really existing
world-state, it is not a state in the legal sense of the word that is indicated; global
hegemony is found rather in the predominantly Euro-American civilization.
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The state of peace is first and foremost a task for the law. So, on the second
reading, Kants alleged contradiction is to be found in the concept of law itself.
Now, this much is true: as soon as nations in the juridical sense of the word, as
divers states, unite themselves into a superordinate state, they renounce a portion
of their sovereignty. To see in this renunciation a contradiction consisting in the
fact that the first element, the state of states, cancels out the second element,
the state of individual states, is to think in terms of the overly simple alternatives:
either full sovereignty or none. In fact, there are many intermediate stages, and
the international state can designate one that is defined by an exceedingly slight
renunciation of sovereignty, one that is not far from allowing individual full sov-
ereignty. While the great majority of the tasks of state fall within the jurisdiction
of the primary states, the world-republic is entitled only to prevent states from
losing their rights through the aggressions of other states. There is no contradic-
tion in the concept of an international state, only something that has long been
familiar to us from the concept of a federal state: a layered understanding of
sovereignty that in this case has another layer added.
Kant has good grounds in the ethics of right and law for saying that nations,
as states, can be judged as are individual people (354/my translation). This anal-
ogy leads to a surprising alternative: Either the renunciation of liberty that is
indispensable to the constitution of a state is just as contradictory in the case of
individuals as it supposedly is in the case of states, so that no state is morally
permitted to govern relations between individuals and the advantage of securing
peace must somehow come about without the disadvantage, the renunciation of
sovereignty by those affected. Or there can be no assurance of the rule of law
without a certain renunciation of sovereignty, in which case the idea of interna-
tional statehood, so far from being self-contradictory, is a condition that makes
possible the morally commanded state of international lawfulness.
This alternative is just as overlooked by interpreters of Kant as it is in the sys-
tematic discussion of the relevant issues. If federations are alone legitimate forms
of coexistence, then Kant, whom we have come to know as a critic of freedom
from Herrschaft as a principle of society, turns into an advocate of this sort of un-
political, even apolitical, utopia. While Kant elsewhere (373/120) holds that any
state is better than none at all, since anarchy would mean the disappearance of any
and every protection of rights, he would here offer us an argument for a state-free,
and insofar Herrschaft-free, coexistence. So, can Kant, contrecur, reawaken
for the ideal of freedom from Herrschaft those utopian energies that the juridical
state and the social-welfare state are today no longer capable of inspiring? A fed-
eration, after all, would have the same advantage in the case of individuals as it
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does in the case of the primary states; it would amount to a guarantee of peace
without renunciation of sovereignty.
Kant himself sees the positive idea only in the statist world-republic and calls
the confederation of nations by contrast the negative surrogate (357/1012). To
expect the assurance of peace from a confederation is to content oneself with a
substitute, with something that does not in fact fully achieve the desired goal.
Peace protected only by a confederation would remain always provisional, thus
contradicting the freedom from reservation or qualification demanded by the con-
cept of eternal peace as interpreted above.
Some interpreters of Kantincluding, recently, Geismann (1983, 366)see a
fundamental difference between the international and the intranational assurance
of peace and think that because of it one can content oneself with a confederation
at, and only at, the international level. The difference in question, however, is not
to be found, and neither, given the analogy that exists between individuals and
states, should it be expected. In the Doctrine of Right (VI:31637/12745) Kant
ascribes autonomy to the state and understands by that the right to form itself
according to laws of freedom, and in the essay on peace he demands that nations
conserve their independence and diversity. These formulations are just as valid
for individuals as for states. The right to autonomy and individuality is, to be
sure, subject to the limiting condition of universal compatibility, but states are
just as bound by this moral condition as are individuals. So the difference be-
tween international and intranational levels does not lie here. Whether one
takes individuals to be physical persons or states, in both cases legal indepen-
dence, that is, freedom of action, should be protected against threatening attacks,
and in both cases protection cannot be provided until morally legitimate liberty is
publicly and communally assured.
Kant furthermore says explicitly that [f]or states in their relation to each
other, there cannot be any reasonable way out of the lawless condition which
entails only war except that they, like individual men, should give up their savage
(lawless) freedom, adjust themselves to the constraints of public law, and thus
establish a . . . state . . . of . . . nations (357/101). This solution deserves the title
moral and so is once again categorically demanded. Kant says that the solution
is that dictated by reason, and asserts moreover that an international state is the
only moral solution to the problem of war (there can . . . be no other way).
The real problem of securing international peace does not lie in a contradiction
in the concept of an international state, but rather in a dilemma whose structure is
found already in the case of individual states. A power strong enough to protect
the rights of each small and weak minority is also strong enough to abuse its
power and employ it in the oppression of those same minorities. Nevertheless, the
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normative idea of the state constituted as a republic is intended precisely to re-

solve this dilemma, the dilemma of state power as such.
If Kant does not recognize this solution to the problem of the rights of nations,
then the contradiction he alleges in the idea of an international state must lie else-
where. Kant says of an international state that nations, according to their idea of
the rights of nations, will not want it at all. I think that the accents in this state-
ment are placed on their and on will not want. Kant is carrying out a rhetorical
shift rich in consequences and is changing argumentative levels from the funda-
mental and moral to the historical-political. No longer does he speak of a morally
best way, of a categorical ought to which the wills of all affected must submit. In
order that all not be lost and open war be waged if states refuse to grant even the
small diminishment of sovereignty required, Kant developed a second-best
path. Instead of the positive idea of a world-republic as an international state, he
proposes as a negative surrogate agreements in the form of treaties with no supe-
rior authority, a confederation of states.
Doubtless, agreements are better than open warfare. But a mere confederation
lacks the instruments requisite for securing that which is to be agreed upon, world
peace. A peace without security is a peace with reservations and qualifications, in
Kants terms a mere cease-fire. For this reason, the cost of accepting a confedera-
tion of states is a significant loss of visionary power for the ideal of world peace.
In place of a project that awakens hope, we have a halfhearted solution.

This interpretation of the confederation of nations as a second-best path departs

from the usual reading of Kant and must contend with at least two counterargu-
ments from the traditional perspective. One point, made by Kant himself, is cor-
rect: individual states already have an internal juridical constitution. But from
this it does not follow that they have outgrown compulsion from others to sub-
mit to a more extended lawful constitution according to their ideas of right
(35556/100). In accordance with the right of self-determination, states are in-
deed exempt from the duty to change their constitution in view of the desires of
other states. Desires of this sort, however, are not at issue in the case of a world-
republic. At issue in that case is simply the protection of territorial integrity of the
individual statestoday including protection against threats to the environment
that know no borders. Cultural identity too is to be protected; but the states are
morally obliged to enter into treaties with their neighbors only for minimal tasks
of this sort, tasks for the effectiveness of which a mere confederation is insufficient.
According to a second misgiving, Kant himself introduces in the First Adden-
dum a guarantee of peace that dispenses with the need for a statenamely, the
great artist nature, that which, contrary to their own wills, [allows] concord
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194 Categorical Principles of Law

among men to arise out of their discords (360/my translation). The appeal to the
artist nature is an argument from the invisible hand, something much favored in
the discourse of economics. Kant is thus offering a highly modern argument: the
operation takes place behind our backs, with no need of a political will to conduct
it. By the artist nature, Kant understands both anthropological and natural pre-
dispositions. He believes that people are driven by war to inhabit even the least
hospitable corners of the earth; this is the anthropological predisposition. To this,
as a sort of condition of nature itself, is added the fact that people can live virtu-
ally anywhere on earth. Finally, Kant thinks that it is precisely through war that
people are forced into more or less lawful relations (363/108).
Continuing to cleave to his threefold division of the theory of the state, Kant
specifies the general thesis concerning nature the artist for each of the three
levels of public rights. In the case of rights of states themselves, it is advanta-
geous for each to place himself under enforceable laws and thus to form a state:
dramatically, even a race of devils, as long as they had intelligence, would need
a state (366/my translation). With regard to the rights of nations, Kant says that
the diversity of languages and religions takes care to ensure that there exists a
multiplicity of neighboring states independent of one another rather than a single
homogeneous state (367/113). Finally, regarding the rights of world-citizens,
Kant holds that the spirit of commerce, which is incompatible with war, sooner
or later gains the upper hand in every state (368/114).
According to the middle argument, the one that is essential for the rights of na-
tions, the artist nature is supposed only to hinder a homogeneous world-state. It
can guarantee neither that certain states join together in a confederation at all nor
that such a confederation, as Kant hopes, will expand ever more widely
(357/102). Above all, the artist nature is incapable of superseding the aporia of
a confederation of nations. Either the confederation is supposed to enforce the
peaceful resolution of disputes, in which case it needs a certain power and is more
than a mere confederation; it has, even if only minimally so, the character of a
state. Or it contents itself with a stateless confederation, whereby its goal, the ef-
fective securing of peace, remains a hollow assurance. A mere confederation
remains, so to speak, a state of nature, lacking precisely that for whose sake it was
brought into being. Without a sword of justice a mere confederation cannot
guarantee the peaceful resolutions of conflict.
Neither objection against the interpretation sketched here is, therefore, com-
pelling. The fact that they nevertheless crop up in Kants text shows that he had
not yet arrived at final clarity. Historically and politically, he may be right. In his
own time, in any case, neither the larger nor the smaller powers were prepared to
see their sovereignty diminished. Given this presupposition, a historical contin-
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Th e R e p u b l i c o f Fr e e, C o n f e d e r a t e d Pe o p l e s 195

gency, a confederation of nations is indeed a sensible surrogate, though still a sur-

rogate in the pejorative sense of an incomplete substitute, since a confederation
cannot guarantee that conflicts will be resolved according to law rather than force.
The conjecture that Kant had not arrived at full clarity on this question is con-
firmed by his passing over the second of the three possibilities for overcoming the
practice of warfare and his speaking only of the alternatives: homogeneous state
or nonstatelike confederation. An example of this oversimplification is found in
the second Article of Definition, where Kant says that many nations in one state
would . . . constitute only one nation, and speaks of nations being fused to-
gether into one state (354/98).

Since Hegel, Kant has been accused time and again of espousing an ethics of a
mere ought. Is the situation in the ethics of peace in fact reversed? Is it Kant that
renounces a mere ought with the idea of a confederation of nations, while those
whocontrary to Kantpromote the idea of a world-republic are demanding
something that political reality has long since (and mercilessly) left behind it. Per-
haps the contrary is the case. Though the public has not yet clearly taken notice of
this, the sheer juxtaposition and opposition of states has long since been trans-
formed into a tightly knotted network of treaties, a large number of which corre-
spond to Kants idea of a confederation of nations. The singular has become a
plural, a regionally and thematically complex diversity. To be sure, nothing in all
of this indicates a shared state power in the slightest. Nevertheless, I conjecture
that some aspects of the treaties reach beyond the scope of a mere confederation.
Wherever treaties have provisions for international inspection, a certain renuncia-
tion of sovereignty takes place, hardly noticeable to be sure, but nevertheless real.
We find, therefore, in these cases a first element of multinational statehood. This
element would be expanded if one were in addition to establish international
courts or other means of arbitration. As soon as these means of arbitration were
granted a certain power to enforce their decrees, the marks of statehood would be
unmistakable. In short, a world-republic is not a woolly utopia that is fundamen-
tally nowhere and never to be realized; it is a utopia of the not yet, an ideal toward
the realization of which we are already underway.
Whether one speaks of a second republican revolution or, in deference to
France, of a completion of the French Revolution, the ideal of perpetual peace
will not be achieved by a single juridical act. In order to arrive at the definitive
solution to the danger of war, at a state of unconditional and global peace, the
regulation of international conflicts must be transformed into the shape of en-
forceable law item by item, in many small steps. The republican order between
states themselves constituted as republics is nothing other than the epitome of all
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196 Categorical Principles of Law

these legal forms. The ethics of law and right leaves the concrete determination
of these forms to practical discourses and political decisions. In order to seek these
forms in the first place and to declare oneself ready to make the minimal conces-
sions of sovereignty required to make them effective, a lot of patience and a cor-
responding will is required. Because the path is long and wearying, there is a
great deal of room for the bad-faith disguising of lack of will, or for at best offer-
ing help only in the search for modest, piecemeal solutions. Against this danger,
the political will of the relevant parties needs something of that enthusiasm that
inspired the beginning of the republican revolution. Kant shows that the forma-
tion of such a political will is not only a demand of collective self-interest;
the establishment of a republic of free confederated peoples is a moral re-
quirement.
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P A R T T H R E E

T I M E LY A LT E R N AT I V E S ?
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According to the collected objections of Hegel, Marx, and Nietzsche, to name only
some of the more prominent critics, Kants ethics was dismissed as a rather antiquated
affair; for many philosophers it was even taken to be obsolete. In the German discus-
sion, which often enough read Kant through Hegelian lenses, Hegels criticism of the
Kantian moral ought was repeated time and time again. Haughtily tossing the Meta-
physics of Morals aside, philosophers pled for the recovery of substantial ethical life.
French philosophy, more inspired by Nietzsche or by Heidegger, whose mind was no-
toriously closed to ethics, corroborated in a lapidary way: nothing is more alien to us
than a categorical imperative.
For some time now, however, a strong countercurrent has been in evidence. John
Rawls, with his Kantian interpretation of justice, introduced, as is well known, a
new trend into the English-speaking world. And after the Erlangen school, in the con-
text of its systematic concerns, developed an interest in Kants ethics, proponents of
discourse ethics, above all Karl-Otto Apel and Jrgen Habermas, have recently turned
to Kant with systematic questions. Kants position shows itself today to be once again
an approach to moral philosophy that needs to be taken seriously.
The newer turns to Kant are conjoined with certain corrections to his views, some-
thing that is not astounding given the two hundred years separating him from us. At
the same time, talk of progress in philosophy is justified only with a number of provi-
sos, and it is therefore sensible to ask, first, whether the new Kant renaissance always
grasps the philosophy of the categorical imperative at the level of its own problems
and, second, whether its systematic intentions results in the development of timely al-
ternatives.
Before discussing Rawls, Apel, and Habermas, I will continue the debate about
peace, asking the question whether recent research into the question of Herrschaft-
free cooperation speaks in favor of the Kant who deals with guarantees of interna-
tional law or for the Kant who investigates the law of sovereign states. In the first
case, Kant rests content with a state-free coexistence, but in the latter, he holds state-
hood to be indispensable.
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10
FREEDOM WITHOUT HERRSCHAFT (AXELROD)

Game theory is known for attempting to legitimate public authorizations of force,

which is to say, Herrschaft, by formalized means. Not so well known is the at-
tempt, with the aid of game theorys most famous device, the prisoners dilemma,
to test the possibility of freedom from Herrschaft. This attempt calls into question
the foundations of modern society, the fundamental form of its legal and govern-
mental organization. In addition, it calls into question a familiar and popular an-
tagonism in the realm of political theory and theoretical politics. From the point of
view of the philosophy of science, game theory belongs to that empirical-analytic
form of knowledge to which critical theory is fond of attributing an interest in the
stabilization of authority and Herrschaft, and against which it sets its own interest
in the emancipation from the same. While in the most recent works from the
critical-theory tradition, for example, in Habermass Theory of Communicative
Action, the idea of freedom from Herrschaft has more or less disappeared, new

199
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200 Categorical Principles of Law

impulses in favor of this idea have emerged in game-theoretical investigations

such as that of the American political scientist Robert Axelrod. A critical en-
counter with his much admired book, The Evolution of Cooperation (1984), will,
therefore, serve to continue the discussion of Kants suggestion that an interna-
tional state of peace be won by mere treaties and so without hegemonic control.

10.1. Social Philosophy in the Modern World

Game theory stands in the tradition of social theories that undertake to explain or
justify social relations from the principle of self-interest. Because this principle
dominates the postmedieval world, it strikes us as distinctively modern. In truth,
though, it has been familiar to Western social philosophy from its very begin-
nings. Plato, for example, when he conjectures that the polis develops out of the
advantages of specialization and the division of labor (Republic II, 369b376d),
defends the thesis that cooperation serves the interests of cooperators. It follows
that the principle of self-interest as such does not typify the modern age in partic-
ular. The principle becomes unmistakably modern through the addition of two
further features: on the one hand, the universalization of the principle of self-
interest, and on the other, a complication of the task that is supposed to be
accomplished by means of it.
Each of these characteristically modern additions to the generic principle of
self-interest can be traced back to the origins of the postmedieval world and at-
tributed to new social-historical experiences as well as to new theoretical ambi-
tions. The second distinctively modern feature leaves its mark on game theory in
a quite general way in the form of the prisoners dilemma, while the first is pre-
sent only in very ambitious varieties, for example, in Axelrods attempt to ex-
plain, by means of the prisoners dilemma, not only the entire evolution of social
cooperation but also the presence of cooperation in nature.
The first of the features constitutive of modernity eliminates from social the-
ory those traditional elements, such as Aristotles presumption of a natural social
impulse, that transcend the principle of self-interest by, for example, understand-
ing the sexual relationship between man and woman as a consequence, not of the
interests of individual men and women, but of the task of propagating the species,
which is to say, the collective interest of species survival (Politics I.2,
1252a27 ff.). The theoretical consequences of the second distinctively modern
feature are more serious still. The complication embodied in it consists in an ex-
pansion of the range of theoretical options. This expansion precludes postpone-
ment of the question of public authorization of force, that is, the question of
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Herrschaft, and it, but only it, provokes the idea of freedom from Herrschaft as a
countermovement. Whereas the ancient and medieval worlds chiefly discussed
the nature of just rulers and just rule, the legitimacy of rule as such takes center
stage in the modern age. And in the wake of attempts at a fundamental legitima-
tion of Herrschaft appear equally fundamental critiques of it.
Although cooperation is advantageous, it occurs far less frequently than would
be useful to those able to choose whether to engage in it. Sometimes the reasons
for failure to engage in advantageous cooperation are trivial, but it is not at all
trivial that in deciding to cooperate one runs the risk that others will seek out the
benefits of cooperation without taking on its burdens. Given the second modern
feature, therefore, one is faced not only with the choice between cooperating or
not, a choice that was in any case already decided in favor of cooperation by the
ancients, but also with a new question, Should one genuinely cooperate rather
than become a free rider? The very question marks a loss of social and social-
theoretical navet. While the decision with regard to the first, innocent pair of
options is clearcooperation is more advantageous, or, formulated anthropolog-
ically, man is a social beingthe second, enlightened question provokes an
answer in the form of a dilemma.
At first blush, free riding appears more beneficial than honesty. By its means,
one enjoys the benefits of cooperation without paying the costs. Anthropologi-
cally, one could here call man an asocial being: in Hobbess phrase, homo homini
lupus (man is a wolf to man). In this context, people are not represented as asocial
beings because of some allegedly natural aggressiveness. It is instead enlightened
self-interest, knowledge of the advantage of free riding, that sets people against
each other. Still, the insight into the social nature of humanity remains valid: free
riders can reap their benefits only if cooperation is actually practiced. Humans are
at a first level social beings, but at a second level asocial beings; cooperation is
good, free riding is better.
The complication experienced by social theory in the modern age would not
issue in a dilemma if the problem of cooperation were in fact solved in this unam-
biguous way. Because free riding would appear to promise the best result to each
and everyone, cooperation would never get off the ground; it would be akin to a
public transportation vehicle in which all are pleased to sit down but which never
moves, because no one is prepared to pay for the fuel. Here now lies the dilemma,
the dilemma of recognition. According to the natural principle of self-interest,
acknowledged since the ancient world, certain social interactions turn out to be
suboptimal, not contingently but out of necessity. Everyone knows that coopera-
tion would be better than noncooperation. But since the free rider appears to be
better off than honest cooperators, cooperation is decided againstwith a heavy
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202 Categorical Principles of Law

heart, no doubt, but decided against nonethelessfor fear of falling victim to the
free riding of others. Accordingly, on the off chance that others are not so clever,
one presents oneself as cooperative in order not to throw away the chance of free
riding. Since the rational opponent calculates in exactly the same way, both find
themselves neither in the absolutely best situation of free riding nor in the distrib-
utively optimal situation of cooperation, but rather in the second-worst situation
of noncooperation.
It appears that there is but one way out of the dilemma. A public power is es-
tablished that lays down sanctions designed to ensure that free riding does not
pay. Hobbes had already sketched the main outlines of this means of escape, and
Kant, in the Doctrine of Right (VI:30513/12024) and in the essay on peace
(VIII:354/9899) and elsewhere, subscribes to the Hobbesian solution. From the
point of view of the history of theory, this state of affairs has a consequence that
is swept under the carpet by many social theories: namely, that a social philoso-
phy that does not want to be nave cannot dispense with a legitimation of law and
the state. Contrary to those social theorists who call themselves critical, the
second distinctive feature of modernity leads not to the freedom from Herrschaft
but to its legitimation (see 13.4 below).
As long as we oppose only certain legal or political formations and do not
reject the form of public law and the state as such, we recognize, in a practical-
political way, the turn that social theory has taken with respect to the philosophy
of law and the state. Axelrod, however, introduces a question mark. Although he
works within the context of the dilemma of recognition, he investigates the condi-
tions under which cooperation might, without a central locus of authority, come
about in a world of egoists. More precisely, he should speak of a world without
social or public authority to exercise force, since the issue of how force is exer-
cisedwhether by means of a central agency, as in a modern state, or in a radi-
cally federalist fashion, or even, in the form of effective taboos, acephalously,
with no head, no personal source of authorityis of secondary significance from
a systematic point of view. What is decisive is whether cooperation is generated
of its own accord and manages to sustain and regulate itself in an equally spon-
taneous way.
Insofar as Kant holds that the international legal order that is to ensure world
peace should be established without public force, the rehabilitation of the goal
of freedom from Herrschaft would constitute an argument in favor of Kants
suggestion that we seek to establish a world-federation rather than a world-
state. The same argument, however, could also be used to support skepticism
toward juridically authorized powers, that is, governments, at the national level
of individual states.
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The topic of cooperation gives rise to a colorful bouquet of difficulties, not all
of which are broached by the prisoners dilemma. In essence, the prisoners
dilemma restricts itself to one problem, which, to be sure, it elaborates with im-
pressive clarity and exactitude. The dilemma allows us to investigate how worth-
while cooperation can emerge, even where no external power promotes it, neither
the head of a family nor a charismatic leader nor a legal or political order nor even
effective taboos.

10.2. A Coincidence of Self-Interest and Justice

The prisoners dilemma has been discussed in its precise, canonical form for only
just over a generation. Nevertheless, a sufficient number of theoretical and exper-
imental investigations have, in that time, been devoted to the topic, that one
frankly does not expect anything genuinely new to come of yet another study.
Axelrods originality does not in the first instance lie in his contribution to the
question of authority, but rather in his presentation of a computer tournament.
Research into the prisoners dilemma has established that, in a single game,
noncooperation is the uniquely rational decision to make, but this result does not
transfer to repeated, or iterated, games of the prisoners-dilemma form. In the
iterated case, decisions to cooperate can also be advantageous. There exists, how-
ever, no rule that is optimal independently of the behavior of other players. Axel-
rod asked himself how one could play such an iterated game well. To answer the
question, he invited a group of specialistsand later a group interspersed with
nonspecialiststo send him appropriately formulated strategies. Both tourna-
ments were won by the renowned expert Anatol Rapoport, who suggested a strat-
egy that was already known to be strong and that in addition is the simplest of
strategies: the approach known as tit for tat.
One is tempted to add color to ones description of the technical term tit for
tat by appealing to the injunction an eye for an eye, a tooth for a tooth. Such a
characterization has misleadingly pejorative connotations insofar as, from the
point of view of European cultural history, the principle of retribution in question
corresponds to the old law that is to be superseded by the new law of broth-
erly love. The principle of retribution, moreover, highlights only the negative side
of tit for tat, the side turned toward reprisal, and ignores the fact that a positive
side is equally important, since one responds to cooperative moves by ones play-
ing partner with further cooperation of ones own. The winning strategy is in fact
captured by the neutral principle As you do unto me, so will I do unto you.
What we have here is a strategy of reciprocity that constitutes the core element of
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204 Categorical Principles of Law

many moralities and is concisely expressed in the popular principle of the Golden
Rule. The reciprocity in taking and giving that we take for granted both within
and without the realm of commercial transactions proves to be rational: tit for tat
expresses a principle of justice in exchange.
Axelrods computer tournaments have the comforting result that justice pays.
If you consistently follow the principle of reciprocity, you will at the end of the
game not only be in a relatively good position, you will be in first place. We have
here the rare case of a coincidence of justice and self-interest, and it obtains not
because free riding, thanks to the threat of punishment, does not pay. In the com-
puter tournament, there is no external source of penal sanction. The tournament
shows, therefore, what manages to establish itself in a world of egoists that rec-
ognize no social authorizations of force, neither a formalized Herrschaft nor a
prehegemonically organized social pressure that is often far from trifling.
The winning strategy in prisoners-dilemma games is, however, underdeter-
mined by justice in exchange. Tit for tat is distinguished from other strategies that
conform to justice in exchange by a predisposition to cooperate. Knowing that co-
operative work is advantageous, but knowing also that it can be exploited, tit for
tat takes the risk of making the first move. It counsels one to be friendly and ac-
commodating at first. This friendliness is motivated by self-interest and therefore
requires no element of authority. One who with accommodating behavior signals
his willingness to cooperate receives more chances to cooperate than one who
always waits for others to take the initiative. From the same guiding precept of
realizing as many cooperative opportunities as possible, one reacts to others
refusals of cooperation not with a thirst for eternal revenge but rather with
forbearance; one is ready to be reconciled and prepared to rekindle ones will-
ingness to cooperate in the wake of any return to cooperative ways on the part of
erstwhile refusers. The forbearance of one who plays tit for tat is not, though,
equivalent to a Christian commitment to forgiveness. To a refusal to cooperate,
the tit-for-tat player responds with a return strike, or, to put it in less dramatic
terms, with a suspension of cooperation on ones own part. Such a suspension is
not motivated by revenge; it is rather a signal that one will not let oneself be
exploited. The winning strategy in repeated prisoners dilemmas combines
accommodation with deterrence. The enlightened egoist freely offers the first
cheek, but not the second. Like successful businessmen and politicians, he is
friendly but not magnanimous.
Generosity is not an attitude that entered the world only with the advent of
Christianity. Aristotle had already introduced the concept into moral philosophy
in various guises and from various standpoints: as megalopsuchia, greatness of
soul, as eleutheriotes, liberality, and as megaloprepeia, magnificence. Even
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Thomas Hobbes, critical as he was of Aristotle, weighs in on the side of generos-

ity and argues the point on the basis of self-interest: riches joined with liberality
is Power; because it procureth friends and servants: Without liberality, not so; be-
cause in this case they defend not; but expose men to Envy as Prey (Hobbes
1991 [1651], chap. 10). Hobbess claim can be confirmed by any number of
divers experiences in life. Superiority not paired with generosity encourages
envy, the great virtue of democrats. That Axelrods computer tournament does
not confirm this observation is a consequence of special boundary conditions that
need further elaboration.
Tit for tat does, in any case, contain a corresponding warning against envy. In
addition to the three pragmatic imperatives to behave (1) amicably, (2) with for-
bearance, but (3) without magnanimity, it counsels one not to be envious. Envy
may be natural, but it is not prudent. One who is envious measures himself
against the success of others and attempts to correct any greater success en-
joyed by those others in a downward direction. In a repeated prisoners dilemma,
such a correction is possible only as a refusal to cooperate, which refusal there-
fore provokes a return strike and results in that long-term abandonment of coop-
eration that is universally counterproductive.
Downward correction of an opponent in an advantaged position is only ratio-
nal in interactions with the structure of a zero-sum game, and such a form of in-
teraction is in fact implicitly or explicitly assumed wherever envy is widespread.
Thinking along the lines of board games, such as chess, or the struggle between
two or more candidates for an office, we tend in social theory to designate our
societies as competitive and in practice to take the view that what one gains, the
other must lose. But even in a game of chess, winning is not the only point of
playing; one wants as well simply to playto learn and to test ones powers. And
those who live with calm and security in their general superiority will think in the
same way in the arena of politics and economics. Such fortunate ones will not
play only to win, but will also pay heed to the sheer lust for life and to opportuni-
ties for self-realization.
It is not only the computer tournament that speaks in favor of tit for tat, but
also a virtually overwhelming amount of evidence from everyday life and from
history. The merest glance at social and political life confirms the claim that we
improve our situation through cooperation and worsen it through noncooperation,
and that in the long run a rigorously held reciprocity joined to a predisposition to
cooperate is a paying proposition. By way of supplementing these points, Axel-
rod refers to a rather unusual example, the positional warfare of the First World
War. The system of live and let live that developed over the course of that war
corresponded to a tacit cease-fire and followed the model of tit for tat. One can,
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206 Categorical Principles of Law

moreover, transfer the example to the case of our pluralistic societies in which an-
tagonisms are attenuated but also perpetuated in the form of struggles between
the competing interests of different groups and associations. The fact that these
groups do not confront each other in open hostility but live side by side in mani-
fold forms of cooperation and symbiosis can be explained by the advantages that
thereby accrue to all concerned.

10.3. Limits of the Freedom from Herrschaft

The possibility of a Herrschaft-free coexistence in certain domains is not suffi-

cient to establish the possibility of freedom from Herrschaft in general. After all,
freedom from Herrschaft in the form of a market is something with which we
have been familiar for a long time, and not only in the economic sphere, but
equally in the areas of art and science, for example. We must therefore devote fur-
ther thought to the questions of how attractive is freedom from Herrschaft and
how great its scope. If the costs of achieving it are too high or the boundary
conditions that make it feasible too restricted, an evolutionary social theory can-
not be built on the basis of freedom from Herrschaft. Although Axelrod indicates
some of the conditions under which freedom from Herrschaft can emerge and
survive, the most important of its conditions for success can be discerned only
through certain metareflections that are absent from his work. He does not do jus-
tice to the theoretical ramifications of the issue.
In order to be successful, friendly strategies such as tit for tat must have more
than one follower. This first precondition of success can be called the cooperative
impotence of the individual. One who is alone in his willingness to cooperate will
end up worse off than those unwilling to cooperate, and such an isolated coopera-
tor will end up worse off than noncooperators even when playing against a strat-
egy governed by mere chance. A predisposition to cooperate pays only because
cooperators benefit each other and thereby, even if they are occasionally victim-
ized by free riders, obtain greater advantages than those who are unwilling to co-
operate. Being wary of free riders is good, but openness to cooperation is better.
Long-term relations constitute a second condition for the success of friendly
strategies. Stability, more than trust, is important for the securing of cooperation.
This principle of the diminishment of risk through durable relations can, inciden-
tally, be used to justify a certain degree of social nostalgia. Those who long for
the relatively firm and readily graspable conditions of old European society are
not merely retrograde dreamers; they are on to something insofar as previous ages
allowed Herrschaft-free forms of cooperation to flourish more easily than do our
anonymous and highly mobile mass societies. The way in which long-term rela-
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tions can reduce the danger of falling victim to deception can also help explain
why international negotiations such as disarmament talks proceed so slowly. To
infer from the prolongation of negotiations to a failure of political will would be
to fall into a nave moralism that retreats behind the second major feature of
modernity, wariness of free riding. No doubt as a means of gaining time or calm-
ing the public, parties sometimes only pretend to be willing to negotiate. It can
also be the case, however, that a strategy of risk diminishment is in play. Because
disarmament and other international accords are not protected by a legal order
with the authority to enforce its edicts, cheating on ones bargains can be worth-
while. One way to counter the danger of cheating is to divide the accords into
many small steps, thus reducing the amount to be gained by any given attempt to
cheat. As a result, cheaters will deprive themselves of the benefits of cooperation
in return for a very modest gain; they will exchange short-term profit for long-
term loss.
In light of the fact that friendly strategies are paying propositions neither for
solitary individuals nor for short-term interactions, the genesis of cooperation is
actually difficult to explain. Axelrod accordingly introduces a third condition of
success, which I will call the law of the large power of small numbers. This law
states that over the course of sufficiently many interactions even a relatively small
group of cooperators have greater success than the majority of noncooperators,
who shy away from making the first move for fear of free riders. We find here an
argument for Kants optimism concerning an ever expanding confederation of
peoples (PP VIII:357/1012). As long as there is a core group of cooperators, one
can reasonably await snowball effects, and there is a good chance that the core
will continue to expand until all parties to potential conflicts are included in the
confederation. All the same, Axelrod underestimates the difficulties posed by the
genesis of cooperation, and the greatest among these difficulties speak against
Kant as well.
Because strategies hostile to cooperation are more successful than friendly
strategies in the case of one-time interactions, the former must be seen as histori-
cally prior, both in the case of natural and of social evolution. This assumption not
only confirms Hobbess view of the state of nature but extends it beyond the realm
of the specifically human situation. Hobbess conclusion about life in the state of
nature acquires a universal scope and turns out to be applicable to human and sub-
human coexistence alike. What Axelrod describes as a pessimistic view (1984, 3)
is in fact realistic and describes the beginnings of evolution. As long as strategies
hostile to cooperation dominate, people must fear violent death, and human life is
solitary, poor, nasty, brutish, and short (Hobbes 1991 [1651], chap. 13).
Kant attributed to humankind a natural inclination to war (IUH VII:2026/
1521; PP VIII:364/110). Construed as an empirical statement, this supposition is
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208 Categorical Principles of Law

questionable. Counterexamples to it exist, and one does not, from a methodologi-

cal perspective, know what a verification or falsification of it would look like. But
if Kant intended his assertion to be a normative remark about the origin of social
evolution, one could agree with him. Because one knows neither whether others
are willing to cooperate nor whether opportunities to cooperate will be repeated,
it is rational and prudent to prepare oneself for a single-case prisoners dilemma.
Accordingly, for fear of being taken for a ride by someone and left unable to pay
him back appropriately, one adopts an uncooperative posture.
In order to establish his thesis and explain how it is that teamwork can gain a
foothold in a world of egoists who are initially unwilling to cooperate, Axelrod
appeals to the mechanisms of genetic kinship and the way in which willingness to
cooperate emerges group by group.
The first mechanism is widely propounded in the most recent theoretical work
in biological evolution. According to that work, closely related players are pre-
pared to sacrifice themselves as long as genes with better chances of survival are
propagated. A genetic altruism of this sort is in fact widely observed in nature,
but the theory of genetic kinship nevertheless propounds as an explanation some-
thing that is in fact only a description. The question why individuals interested
only in their own advantage would voluntarily behave altruistically remains unan-
swered. Unbeknown to itself, this theory falls back on the assumption of a nat-
ural social impulse and thus retreats to an Aristotelianism that runs counter to the
modern universalization of the principle of self-interest. Is it not the case that for
Axelrod the beginnings of cooperation can be explained only by the principle of
chance or by a quasi-Providence that takes the gene instead of the individual or-
ganism to be the subject of self-interest? From a scientific point of view, both
these hypotheses amount to nothing more than the great unknown, the proverbial
X. We simply do not know how cooperation got started; we cannot explain it.
Axelrods second explanatory mechanism also succeeds only in pushing the
problem back one step. The law of the great power of small numbers can explain
how a small group of cooperators can establish themselves over the long term. But
since an isolated willingness to cooperate ends up worse off than one that is unwill-
ing to, it remains unexplained how the principle of self-interest leads to the forma-
tion of a group of cooperators in the first place. We can, at best, once again appeal
to the great X, to the deus ex machina of the controversy, chance or Providence.
Because neither of Axelrods explanatory models is convincing, he can be
credited at most with having, within certain limits, made intelligible how cooper-
ative enterprises, once they have a foothold, remain relatively stable and in addi-
tion will tend to find more and more joiners. He does not, however, achieve his
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more ambitious goal of explaining how cooperation based on reciprocity can get
off the ground in a predominantly uncooperative world (Axelrod 1984, 90).
Aristotles dictum that more than half the work lies at the beginning is perhaps
applicable to the task of explaining the emergence of cooperation, and this work
is not done by Axelrod; he simply bypasses the fundamental task that arises from
a distinctively modern understanding of the principle of self-interest, one that un-
derstands this principle to be universal in scope.
Cooperation based on reciprocity is a long-established feature of both the nat-
ural and the social worlds. Because these kinds of cooperation can be explained
by Herrschaft-free, and indeed enforcement-free, strategies such as tit for tat, the
following practical-political question is raised: Why do we still need a social
order that recognizes the authority to enforce and within this framework includes
the sort of second-order social institution that we call the law and the state?
A first answer to this question is indicated by the activity of World War One
raiding parties, to which Axelrod himself draws attention. Despite their relatively
small size and number, such parties were able quite quickly to break down the
tacit cooperation between the hostile camps that constituted the positional war-
fare that reigned for most of the Great War. An example such as this shows us that
the law of the great power of small numbers has two variations: it not only, in its
cooperation-friendly variant, explains how small groups of willing cooperators
can be successful, but it explains equally, in its cooperation-hostile variant, how a
small group of cooperation resistors can impose their will against even a majority
of willing cooperators. With this counterexample, one argument for freedom from
Herrschaft, and therefore for Kants peaceful international order free of world
government, loses its force.
Because even a small number of aggressive groups can, if they intervene in a
carefully considered way, threaten the delicate balance of a pluralistic society,
whether national or international in character, we find here a first argument in
favor of a social order with the authority to enforce: such an order is justified as a
framework for Herrschaft-free cooperation. Social institutions with the authority
to enforce provide the environment required for cooperative work based solely on
reciprocity; only in such an environment can freedom from Herrschaft and en-
forcement thrive. Given that society as a whole is structured according to
Herrschaft, a great deal of freedom from Herrschaft is possible within it. Mar-
kets, for example, which are structurally free of coercive Herrschaft, are able to
function (whether in the economy or science or art) only because even the worst
of enemies are required to observe certain elementary boundary conditions. They
are not, for example, allowed to encroach upon each others life, limb, or property
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210 Categorical Principles of Law

(whether material, scientific, or artistic). In short, a freedom from Herrschaft that

wants to be attractive will be tied to an overarching institution that exercises
Herrschaft.
An analogous argument can be extracted from the second condition for the
success of friendly strategies. Cooperation is established over the long haul be-
cause stable relationships diminish the risks of a willingness to cooperate. It is,
insofar, a disadvantage of stable institutional forms that they cannot emerge with-
out a moment of enforcement. Often, however, they more than compensate for
this, in spite of the principle of self-interest, with the advantage of allowing the
proliferation of strategies more generous and serene than tit for tat. Whereas in
the Herrschaft-free computer game only strategies that exact retribution immedi-
ately and punctiliously come out on top, institutionalization allows a longer view
to be taken; it allows reciprocity to be deferred even to the point of allowing ex-
changes between generations.
A third argument in favor of social coercion, including that exercised by the law
and the state, is found by reflecting upon certain deeply entrenched features of ac-
tual life that are absent from the prisoners dilemma. The assumptions that one can
never predict an opponents move and can never leave the game need to be men-
tioned in this context, for these presuppositions, especially the second, have far-
reaching consequences; the latter entails, for example, that no one can go broke or
bankrupt, that no one can become unemployed or unable to work, and, finally, that
none can be expelled from the group or threatened with loss of life and limb.
The most important presupposition of the prisoners dilemma, though, is this:
questions of power are not addressed. Although not directly bracketed, which
would be too nave, these questions are neutralized in a more subtle way: through
the boundary conditions. Power in the prisoners dilemma consists in the ability
to benefit or harm ones fellow players. Not only does each and every player have
this ability at his disposal, but each has it to exactly the same degree. Whoever
ones opponents are, mutual cooperation brings the same advantages, and mutual
defection the same disadvantages, a predetermined number of points. So too, in
the case of unilateral cooperation, everyone that takes suckers for a ride receives
the same payoff, while the victims go away empty-handed. In short, contrary to
the real game of life, the payoffs in the computer-simulated prisoners-dilemma
situation are invariant.
Because each participant possesses the same amount of power, its distribution
in Axelrods computer tournament is strictly symmetrical, and this symmetry re-
mains in place from the beginning of the game to its end. Neither coalitions nor
treaties; neither oligopolies nor monopolies; neither threats, promises, nor the
formation of capital that increases productivity or generates interestnone of this
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Fr e e d o m W i t h o u t H e r r s c h a f t ( A x e l r o d ) ? 211

is present in the game. Each player can, it is true, gain a greater or a lesser benefit
with a given move, but the benefits accumulated over time do exactly as little to
increase ones opportunities for cooperation as ones poverty does to decrease
them. A rigorous and stable symmetry of power of this sort amounts to nothing
other than its effective neutralization.
In its neutralization of power, the prisoners dilemma manifests a surprising
affinity with certain quite differently focused recent ethical theories. In Axelrods
prisoners-dilemma games, as in the ideal deliberation situation of the Erlangen
school and the Apel-Habermas ideal communication or speech situation and the
Rawlsian original position, the relative power of the participants, in sharp con-
trast to the situation in real life, plays no role. In philosophical ethics it is reason-
able to tune out questions of power in order to define the standpoint of morality;
but what is legitimate in that case is not so in Axelrods, since he appeals to self-
interest alone.
We find in Axelrods counterfactual neutralization of power yet another condi-
tion for Herrschaft-free cooperation. In order for reciprocity to underpin cooper-
ative work even without enforcement-authorized institutions, it is not merely nec-
essary that a number of people be willing to cooperate and that in addition they
can reasonably expect cooperation to persist over an adequate length of time; it is
equally important that they be relatively equal in power. At this point, we can
look back to the topic of generosity and realize why philosophers such as Hobbes
spoke in favor of it, while in the prisoners dilemma it does not pay. Generosity
does not pay in the artificial dilemma situation because what we have in that situ-
ation is a two-person game that therefore precludes the possibility of alliances or
hostilities with third parties. Hobbess argument that superiority, or, as he puts it,
wealth, is power only in conjunction with generosity, while, without it, envy is
provoked and power diminished, is thereby deprived of force. It is not so much
refuted as rendered inapplicable through a counterfactual assumption. As soon as
one removes the fleshless abstraction governing the computer tournament, as
soon as one operates with more than two players and allows alliances among
them, tit for tats lack of generosity loses its advantage. In the real world, unlike
the computer world, one is pragmatically required to make friends, and generos-
ity is one of the best means of doing so.
As long as an approximate balance of power obtains, reciprocity will be ad-
vantageous, but sufficiently large differences in power provoke the emergence of
those one-sided relations that extend to homicide or, stopping short of that, remain
content with mere oppression and exploitation, only on grounds of prudence. In
North America, for example, the native populations were largely exterminated,
while in Africa one put the local manpower to work as slaves rather than waste it
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212 Categorical Principles of Law

through large-scale massacre. Significantly, The Evolution of Cooperation is

silent on historical examples of this sort. As far as Europe itself is concerned, it
is sufficient to recall the context in which the modern state was born. As long as
heterodox believers were few enough in number and therefore weak, they were
persecuted as heretics. Not until the opponents of Roman Catholic orthodoxy had
become strong was any effort made to seek a means of coexistence, and European
society paid for the acquisition of this insight in the bloody coin of the religious
wars of the seventeenth century. The strategy for obtaining cooperation was, in
the first place, the religion of the ruler is the religion of the region;1 only later
was the present-day means of a religiously neutral state adopted.
Strategies for freedom from Herrschaft can be readily used in the service of
liberating utopian energies. But do they deserve these energies? Insofar as
Herrschaft-free cooperation presupposes an equality of power, it cannot see to the
accomplishment of two characteristically modern social tasks. It can secure the
preservation and protection neither of human rights nor of the environment. And
this failure obtains at both the national and the international levels.
Herrschaft-free cooperation cannot guarantee the preservation of human
rights, both because such rights are supposed to be had by all, not just by those
roughly equal in power, and because they are supposed to be recognized under all
circumstances, not just in the case of repeated interaction. Because Axelrod
wants to set himself against Hobbess pessimism, it is advisable, with regard to
the topic of human rights, to recall the existential problem that motivated
Hobbess political philosophy, especially since it is conspicuously absent from
Axelrods computer simulation. Modern political philosophy discusses the
dilemma of recognition, not as such, but with an eye to the critical case (Ernst-
fall), that in which the life and limb of anyone is at risk of being taken by another,
in which property is endangered, and in which culture, religion, and so forth are
under constant threat. The establishment of a sovereign state power is supposed
to solve the dilemma of recognition for this critical case above all. The precise di-
mensions of the critical case, how often and where it obtains, are another matter.
What is clear is that a certain number of Axelrods exampleshis discussion, for
instance, of the question how often one should invite someone to dinner who
never reciprocates with an invitation of his ownfall without doubt far short of
the critical case. In other cases, the question whether to designate a situation as
critical or serious may in part depend upon historical boundary conditions. In
general, however, the insight that not every dilemma of recognition justifies so-
cially authorized enforcement can be granted.

1. cuius regio eius religio.

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Fr e e d o m W i t h o u t H e r r s c h a f t ( A x e l r o d ) ? 213

Herrschaft-free strategies fail also with regard to environmental protection.

They fail here at least to the degree that the game is played across generations
and national borders. Once again, the third success condition for Herrschaft-fee
cooperation, a balance of power, is violated, since future generations and, often
enough, neighboring states are relatively weak. The ruling generation, namely
the present one, lives at the expense of future generations, and stronger states live
at the expense of weaker ones. Since proposed solutions that simply bracket the
question of power are nave, it is necessary to think as imaginatively and cre-
atively as possible about ways in which the interests of future generations and
neighboring states can be weighed more heavily in the balance. As with the prob-
lem of human rights, game theory is at best of help in an indirect way in that it can
show what is missing. In the case of human rights, the rule of law and the state is
required to guarantee that such rights are upheld; in the case of environmental
protection, further precautions are needed in order to strengthen the hand of fu-
ture generations. In both cases, we see that Herrschaft-free communication is
welcome only when it takes place inside a framework that is not for its part free
of Herrschaft.
To give due credit to the philosopher who saw the dilemma of recognition
clearly for the first time, it must be said that however much certain details of
Hobbess justification of law and the state deserve criticism, the truth of its essen-
tial point cannot be denied: the dilemma of recognition, the second addition to the
general notion of self-interest that makes the principle of self-interest distinc-
tively modern, cannot be resolved without institutionalized Herrschaft. The de-
velopment of a social order with institutions authorized to enforce its norms is
neither a step backward nor a wrong turn. On the contrary, such institutions rep-
resent social progress wherever the authority to enforce opens up new dimensions
of reciprocally advantageous cooperative work. To conclude with a glance back
at Kants theory of peace: no attempt at securing international peace will be able
to escape the consequences of this Hobbesian insight.
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11
IS RAWLSS THEORY OF JUSTICE KANTIAN?

With A Theory of Justice, John Rawlss status as a political thinker has, within a
relatively short period of time, risen to that of a veritable classic. His outline of
a countermodel to utilitarianism is an important factor in the worldwide discus-
sion of his theory. For utilitarianism, the dominant theory of morality and justice
in the English-speaking world, contradicts our well-considered moral judgments
on a crucial point, the idea of justice. In the wake of Mills failure to resolve this
contradiction and reconcile utilitarianism with the notion of justice (see Chap-
ter 6 above), another approach seems to be demanded. Since utilitarianism repre-
sents an empirical-pragmatic ethic, the most significant alternative model to it is
to be found in Kants a priori and categorical morality, and it is therefore appro-
priate that Rawls should refer back to certain fundamental ideas of Kants and
consider his own anti-utilitarian theory of justice to be Kantian (TJ 22127;
Rawls 1980).

215
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216 Categorical Principles of Law

Three generations before Rawls, Henry Sidgwick had already drawn the atten-
tion of English-speaking philosophers to Kants importance for moral philosophy.
He thought, however, that Kants ethical theory was compatible with that of utili-
tarianism (Sidgwick 1967 [1874], 3.5 and 4.34). Rawls has good grounds for
dissenting from this view. For the principles of justice that Kant takes to be un-
conditionally valid are, for the utilitarian, subject to permissible limitations in the
name of collective welfare.
Alongside the fundamental agreement on human rights we find a host of con-
troversial points separating Rawls from Kant. One has the impression, upon re-
viewing these controversies, that Rawlss views are distinctly superior to Kants,
so that A Theory of Justice turns out, fortunately, not to be all that Kantian after
all. Kant, for example, denies any but a passive right to resist authority, while
Rawls holds that civil disobedience is, under certain conditions, morally legiti-
mate. Further, Kant denies active civil rights to journeymen, servants, . . . all
women and in general anyone unable to secure his existence (his food and shel-
ter) through his own gainful employment (DR VI:314/my translation), thereby
contradicting Rawlss first principle of justice, which demands the greatest
amount of equal freedom, along with the first part of the second principle, which
demands that offices be open to all. A further difference concerns the social-
welfare state, which Kant considers to be legitimate only as a means of securing the
rightful state, especially against external enemies of the people (TP VIII:298/80),
and which therefore is not on a par with conditions mandated by political justice
itself. Rawls, by contrast, holds to be not only the liberal juridical state by means
of his first principle of justice, but also the social welfare state, by means of his
second. It is this double ambition, indeed, that no doubt accounts for a good deal
of the attention his work has received. Finally, while Kant is frequently charged
with formalism, A Theory of Justice is rich in consideration of substantial ethical
and political matters.
Since Rawls agrees with Kant in recognizing human rights but contradicts him
on so many other points, his claim to promulgate a Kantian theory needs to be as-
sessed in a subtle and delicate way. A theory of justice may be described as Kant-
ian in three senses: in a weak sense insofar as it adopts Kants way of putting the
question, in a stronger sense insofar as it recognizes as true fundamental elements
in the answer that Kant gave, and in a comprehensive sense when it agrees with
Kants views on a large number of details. The examples of sharply opposing
views just given exclude the possibility of Rawlss theory being Kantian in the
third sense. But Rawls does not simply take up Kants question concerning a
moral concept of law. He also builds upon Kants concept of autonomy, considers
the principles of justice to be categorical imperatives in Kants sense, and sees in
the original position a procedural interpretation of Kants concept of autonomy
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I s R a w l s s Th e o r y o f J u s t i c e K a n t i a n ? 217

and the categorical imperative (TJ 22127). Last but not least, Rawls appeals to
that characteristic idea of early modern social and political philosophy, the notion
of social contract. Although this construct no longer plays an essential role in
Kant, it is nevertheless present there.
It is true that we do not find a theory of justice as such in Kants writings, but
Rawlss theory of justice as the first virtue of social institutions (TJ 3) combines
two conditions that can easily be identified in Kants writings and that justify
Rawlss construal of his theory of justice as Kantian in an ambitious sense. On the
one hand, Rawlss theory of justice does not allow any compromises whatever
with other aims or purposes; justice is in his view not a relative but an absolutely
first and therefore unequivocally highest and categorically valid principle. And
since human beings do not always acknowledge the claims of justice of their own
accord, it has the further status of an imperative. On the other hand, Rawls
understands justice primarily as a principle of law and the state, rather than as a fun-
damental attitude manifested by a person; he is concerned with political justice,
not personal justice. Rawlss categorical imperative, therefore, turns out to be that
imperative of right in which lies the fundamental task of a Kantian theory of law
and the state.
If one looks, however, at the way in which Rawls carries out his intention, sig-
nificant reservations about his claim to develop a Kantian theory emerge. These
reservations are not in the first instance directed at the perhaps secondary ele-
ments mentioned above, but concern rather the two principal features of Rawlss
theory of justice: its categorical character and its significance for the realm of law
and right. According to Kant, moreover, a theory of categorical obligations has to
satisfy a methodological condition that tends to provoke the empirical spirit of the
modern age in general and the British philosophical tradition in particular: it has
to be metaphysical. Rawls, meanwhile, expressly rejects metaphysics. Prima
facie, Rawls turns Kants methodological program on its head. Kant had sought
an ethics of law and right without anthropology but with metaphysics. Rawls
seeks a theory of justice without metaphysics and with anthropology. Anthropol-
ogy enters Rawlss theory under the heading elementary social goods, by which
he means goods that are indispensable to all people. Nevertheless, since I myself
have modified Kants own self-understanding (Chapter 4), the gulf between
Rawls and Kant here may be somewhat diminished.

11.1. Utilitarianism or Categorical Imperative

In Rawlss complex legitimation argument, the conjunction of two fundamental el-

ements stands out. The first element, the primary social goods, comprises general
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218 Categorical Principles of Law

conditions required in order to pursue the most divers strategies for happiness, or
life-plans. These primary goods have more than an anthropological significance.
They are, even if only indirectly, requirements for human well-being. Because of
this connection to well-being, the interest that people have in these primary goods
falls unequivocally into the domain of pragmatic, rather than categorical, impera-
tives. It does not, though, follow from this that the principles of justice have for
their part only a pragmatic validity. The primary goods only define the object of
principles of justice, not their morally obligatory status.
Rawlss intention of articulating a distinctively Kantian theory is endangered
only with the second, normative, fundamental feature of his account. He deter-
mines his principles of justice by means of a rational choice made with an eye to
prudential considerations, and he understands rationality in the sense given to it by
decision theory. According to decision theorys subjective concept of rationality, a
decision is rational when the agent making it strives exclusively to pursue his own
interests through a dispassionate process of information acquisition and calcula-
tion. To be sure, decision theory understands self-interest in an entirely formal
way, and this in two senses. From decision theory in the narrow sense, through
game and social-choice theory, it remains an open question whether the particular
interest of the self in a given case should be described as egoistic, altruistic, or
socially indifferent, as it remains open whether the self whose interests are cal-
culated consists of an individual, a group, or a society. But even decisions bound
to such a formal notion of self-interest are, according to Kant, excluded from
the realm of the categorical. Such decisions are rationally binding in virtue of
ones interest in ones own well-being and so are of an entirely pragmatic nature.
Perhaps, though, Rawlss appeal to decision theory is meant to be taken differ-
ently. Rawls, as is well known, seeks not only a Kantian interpretation of justice,
he wants also, with the aid of up-to-date tools of thought and argument, to formu-
late anew the classical social-contract theory of the state. If these two aims could
be isolated from one another, Rawls might limit the subjective conception of
rationality to the social-contract side of his program. Social-contract theory in-
cludes two argumentative steps (see PJ 10.2). First, certain principles of morally
legitimate law are justified by means of the thought experiment of a primary state
of nature; and second, by means of the thought experiment of a secondary state of
nature, a public source of enforcementin a word, the stateis justified as a nec-
essary means to the establishment of such principles. The first step corresponds to
Rawlss legitimation of principles of justice and so cannot be separated from the
Kantian aspect of his program. Since the decision-theoretical approach calls cate-
gorical validity into question, Rawls would, in order to remain in harmony with
the Kantian interpretation of this thought, have to restrict its use to the second
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I s R a w l s s Th e o r y o f J u s t i c e K a n t i a n ? 219

step in the argument. At this point, the subjective concept of rationality would not
serve to legitimate the principles of justice, but only to justify their establishment
by the state. The principles of justice would retain their aspiration to categorical
validity, while the merely pragmatic sphere would be that of their public efficacy.
A division of labor of this sort between Kantian principles of justice and a
decision-theoretical legitimation of the state is conceivable, but not to be found in
Rawls. In his work, the justification of a public power to enforce law and order
plays no essential role. Kant, moreover, puts both steps of the argument to the
same legitimation-theoretical purpose. He takes to be morally, which is to say,
categorically, required not only the principles of justice discussed in the Intro-
duction to the Doctrine of Right and in the section on private right but also their
public enforcement.
Rawls might, though, put decision theory to yet a different purpose. According
to him, there are various principles for the fundamental ordering of society, and
among these conflicting principles we can find principles of egoism as well as
those of utilitarianism and Rawlss own principles of justice. Since these princi-
ples are in competition with one another, Rawls cannot posit an original interest
in justice, on pain of begging the question by ruling out egoism in advance.
Rather, he ascribes the choice of the principles of justice to persons who feel
themselves bound only to their own interests. For him, therefore, ordinary feel-
ings of justice have no power to provide foundations but are, on the contrary, that
which is to be grounded. In order not to fall into a vicious circle in his criticism of
egoistic principles of societyfor example, the principle favored by a one-man
dictatorship: everyone must serve my interestsRawls appears to derive the
principles of justice from an unambiguous cost-benefit calculation. But in virtue
precisely of this calculation, the principles of justice become pragmatic impera-
tives, not categorical ones.
This reading of the role of decision theory in a theory of justice comes closer to
Rawlss actual use of it, but is still not precise enough. Principles of justice are,
namely, to be chosen from behind a veil of ignorance, in virtue of which it is not
possible for the chooser to make his decision dependent upon the individual, so-
cial, or cultural conditions in which he lives. There is, therefore, a symmetrical re-
lationship between all choosers in the original position. We could also speak of an
ideal situation of choice, strictly free of Herrschaft relations of any sort. In such a
situation, all those living in the past, present, or future are recognized as endowed
with equal rights. The veil of ignorance therefore pursues the same intention as the
two other presently dominant types of ethical theory, the discourse ethics of Apel
and Habermas, with its ideal conditions, and the (rule)-utilitarian ethic, with its
appeal to all in the principle of the welfare of all concerned. So, whether we are
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220 Categorical Principles of Law

concerned, as Rawls is, with the choice of the principles of justice or, as Habermas
and Apel are, with the ideal agreement of ethical norms or, as utilitarianism is,
with rules of actionin each case privilege and discrimination of every kind are
to be excluded from the outset, and every human being is to be recognized as en-
dowed with equal rights. Consequently the principles of egoism are not excluded
by the explicit choice of principles of justice; they have already been excluded by
the very conditions under which that choice is made, namely the veil of ignorance.
Rawlss use of decision theory and the paradigm of a rational prudential
choice in fact aids and abets a fundamental misunderstanding. It inclines one to
think that Rawlsian justice is the result of an individual cost-benefit calculation,
whereas in fact it is an a priori valid corrective to it. The choice of the principles
of justice made in the original situation simply represents the explication of the
fundamental restrictions imposed on the choosers in advance through the defini-
tion of the choice-situation. The fairness of the conclusions, the principles of
justice, reproduces the fairness of the premises as the conditions from which we
began. As soon as the veil of ignorance falls and individual, class, or status con-
ditions become known, the subjective concept of rationality will no longer under-
write principles of justice but will instead mandate the choice of principles that
favor the individual or class or status group in question. That such a choice in
favor of particular interests is not made behind the veil of ignorance is a conse-
quence of the lack of information stipulated in the thought experiment. The epis-
temic lack entailed by the veil of ignorance has priority over rational self-interest
both from the point of view of the logic of Rawlss argument and from the point
of view of ethics. To choose in favor of justice is in the first instance to make a
moral choice and only in a secondary respect to carry out a cost-benefit calcula-
tion. It is not rational choice itself that guarantees justice, but rather the determi-
nation of the conditions under which such choice is exercised.
When we talk about rational prudential choice in a specific and particularly
modern sense of the word, as opposed to the phronesis of ancient thought or the
prudentia of medieval thought, then we presuppose the difference between the in-
dividual and the general will and assert that prudence is concerned with the indi-
vidual good while morality is concerned with the general good. But with the help
of the veil of ignorance Rawls has extinguished all individuality, or even particu-
larity, and by means of this artifice he is able to posit in advance a universal sub-
ject of rational choice. By canceling the difference between the general and the
individual will, a prudential choice in the specific sense of the word prudential
becomes impossible. In the original position the rational decision makers are un-
able to maximize their own utilities because they do not represent subjects with
any individual or group-specific utilities of their own. What they pursue is in fact
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I s R a w l s s Th e o r y o f J u s t i c e K a n t i a n ? 221

general utility, the general good. The choice, therefore, can be carried out by a
single subject, and this subject is indifferent with respect to all individual and par-
ticular determining grounds of will. This is therefore a universal subject, which
cannot decide in any but an impartial way, and the principles such a subject
chooses are moral in nature. Since the veil of ignorance is, moreover, a counter-
factual supposition and is formulated in terms of a deliberately constructed cogni-
tive lack, something we are called upon to bring about as a practical achievement,
the moral result has also an imperatival character. With respect to the structure of
their legitimation, Rawlss principles of justice are nonpragmatic imperatives.
It would appear that Rawlss principles of justice, since they are not merely
pragmatically valid, must be accorded a categorical status, but such an inference
overlooks a complication. The general good that is pursued behind the veil of
ignorance can be understood collectively or distributively. The first understanding
corresponds to utilitarianism, a position that is pragmatic in a social, though not
an individual, sense and that is moral in a wide sense, but not in Kants strict
sense. Since the choice of principles of justice concerns a choice of rules, indeed
higher-order rules, the position is, more exactly, a rule-utilitarianism. For such a
view, equality of rights is restricted to the entry conditions for determining gen-
eral welfare. The idea is that in determining general welfare, the welfare of any
one is to count as much as that of any other; just as in a democratic election, the
vote of any one equals that of any other. In the result of the determination, how-
ever, utilitarianism allows for the possibility that a majority can impose its will at
the expense of a minority; its principles of society contain no guarantees against
privileges and discrimination. Only the second, distributive interpretation of gen-
eral welfare extends the equality of rights to the result of the determination and
recognizes in each of the principles of justice themselves a subject of equal rights
and dignities.
The principles of justice put forward by Rawls come down on the side of the
stronger, result-oriented version of equal rights, but they do not in this version
follow directly from the legitimation formula decision theory plus veil of igno-
rance. The veil of ignorance makes the self that is maximizing its interests an ar-
bitrary, interchangeable subject. This device marks the passage from individual to
collective self-interest, along with a democratizing of the collective realm, within
which there are none whose well-being matters more and none whose well-being
matters less when calculating the welfare of the whole. Maximizing the interests
of an arbitrary subject corresponds to the utilitarian position that it is average util-
ity that is to be maximized. That maximum average utility will be found by fol-
lowing the result-oriented interpretation of equal rights cannot be determined
a priori, but depends upon empirical boundary conditions. Categorical morality,
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222 Categorical Principles of Law

by contrast, espouses a conception of equal rights that makes them independent of

all empirical boundary conditions.
According to the principle of maximum average utility, it is permissible that
some people end up with less, even a lot less, than others as long as others end up
with a still greater overall benefit. In bargaining of this sort, people are, from a
Kantian perspective, degraded to the status of means; they are treated as means to
the end of collective well-being, something that is prohibited by the categorical
principles of law, at least for the case of human rights. At the end of the day,
Rawls, with the aid of the principle of the greatest equal amount of freedom,
holds the same position; and even with respect to economic goods, he allows for
legitimate inequality of entitlement only under the two restrictive conditions of
his second principle of justice. Nevertheless, he cannot achieve the desired result
with the legitimation-theoretical means at his disposal. The veil of ignorance is
neutral with respect to collective and distributive well-being and includes as a
matter of necessity, therefore, only the weaker, collective construal of well-being.
As long as rational choice takes place behind the veil of ignorance, it has not yet
reached the Kantian standpoint of a categorical imperative.
A more technical chain of reflections can also show that Rawls has not distin-
guished his position clearly enough from that of a rule-utilitarian. Pace Rawls
himself, the choice of the principles of justice made behind the veil of ignorance
is not made under uncertainty but under risk. When we make decisions under risk,
we do not know the factors in the situation that are relevant to the decision, but
we can ascribe certain probability values to them. With a decision made under un-
certainty, on the other hand, this is not possible. But probability values are indeed
given in Rawlss choice of the principles of justice. For if we let M be the number
of members of society, then the probability Pi of being in the position of any
member of society i is:

1
Pi 
M

The criterion of rationality for decisions under risk is Maximize expected util-
ity. Now, for the parties in the original position, the expected utility (Ui) of each
is equal to the sum of the utilities of all, that is, the total social utility (Ut) multi-
plied by the probability (Pi) that one assumes the position of any given individual:
U i  Ut  Pi. Since the probability Pi is one over the number of members in
the society, the expected utility is equal to the total social utility divided by the
number of members and coincides with average utility, independently of any con-
siderations of distribution:
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I s R a w l s s Th e o r y o f J u s t i c e K a n t i a n ? 223

Ut
Ui  Ut  Pi 
M

Since the parties in the original position are rational egoists, and therefore
choose the maximal expected utility, they decide for the maximal average utility.
Thus they choose utilitarianism rather than Rawlss principles of justice. Rawlss
own decision-theoretical approach actually legitimates the competitor position.
Now, one could object that the veil of ignorance deprives one of knowledge of
the generation in which one lives and that this further bit of ignorance renders
the choice made in the original position one made under uncertainty, not simply
risk. But an analogous reflection is applicable in relation to this second piece of
ignorance. If Q is the number of generations, then the probability Pk of living
in any generation k is:

1
Pk 
Q

The probability of being in the position of an arbitrarily chosen member of soci-

ety living in any generation k is:

1 1
Pi,k  Pi  Pk  
M Q

Once again we have an objective probability value, and the case remains that of a
decision under risk, with its criterion of rationality embodied in the command
Maximize expected utility. The expected utility is equal to the total human util-
ity, that is, the total social utility of all generations divided by the number of gen-
erations and the members of society in a generation. Once again, expected utility
is maximal average utility.
Rawls offers a number of supplementary arguments in order to avoid this re-
sult (TJ 13068). Rights and freedoms, for example, are supposed to be of such
incomparable importance to people that each would only be satisfied with their
being distributed equally. In the case of income and welfare, by contrast, one is
perfectly prepared to accept inequalities, though, because their importance is fun-
damental, albeit not incomparable, one would choose only the difference princi-
ple. We can set to one side the issue of how convincing Rawlss supplementary
arguments are, since it is only the kind of these arguments that needs to be estab-
lished in order to evaluate the adequacy of the Kantian interpretation of Rawlss
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224 Categorical Principles of Law

theory. The supplementary arguments are not unequivocally anti-utilitarian. On

the one hand, the accuracy of Rawlss claim that most people have an absolute
preference for liberty and a merely relative preference for economic well-being
must in the end be decided by empirical means, and utilitarians are entirely open
to such considerations. On the other hand, Rawlss normative claims remain tied
to a deliberation of collective utility; the rational choice carried out behind the
veil of ignorance is that of a universal subject in a collective sense, and this cor-
responds to the utilitarian perspective that enjoins maximizing average expected
utility.
Nevertheless, if we look at the result of the choice of principles, at least one of
them, the first principle of justice, corresponds to Kants categorical imperative of
law. Drawing an interim balance, then, we find the following ambiguity in Rawls:
The clarity that is missing from the logic of Rawlss critique of utilitarianism
is at least reached in the results that are legitimated, the principles of justice. But
as far as the underlying logic of the legitimating argument is concerned, this
result is not entirely free of the taint of mere assertion.

11.2. Without Metaphysics?

According to Kant, categorical imperatives can be justified only by pure practical

reason and are therefore metaphysical in nature. Rawls, by contrast, wishes to dis-
pense with all dubious metaphysics, as the subtitle (Not Metaphysical) of a
recent article indicates clearly enough. To this end, he abandons transcendental
idealism, with its assumption of an intelligible world and a noumenal subject, and
offers instead a procedural interpretation of the concepts of autonomy and the cat-
egorical imperative.
In his rejection of metaphysics, Rawls agrees with the fundamentally empiri-
cal character of our scientific and legal culture. According to the line of reasoning
just rehearsed, however, this agreement turns out to involve Rawls in a misunder-
standing of his own project. Although he has not elaborated the logic of legitima-
tion required to see the point clearly, the following is nevertheless true of his
intention to delineate categorically valid principles of justice: the subject of
the choice of principles of justice is precisely that subject that is universal in the
strictest of senses, the subject that Kant speaks of as a pure rational being, as-
signed to the domain of metaphysics. Kant does not, however, assign the rational
subject of morality to a metaphysical theory of objects, to ontology, or to a meta-
physical theory of knowledge, an epistemology. The step beyond experience that
constitutes morality as metaphysical does not, as it does in theoretical meta-
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I s R a w l s s Th e o r y o f J u s t i c e K a n t i a n ? 225

physics, occur with respect to objects of nature; what is transcended in morality is

personal interest as the last ground of the determination of social practice.
In the 1975 article The Independence of Moral Theory, Rawls had con-
tended that moral philosophy, including the theory of justice, is largely indepen-
dent of other areas of philosophy, not only of metaphysics but also of the philos-
ophy of mind, epistemology, and the theory of meaning. With the exception of
metaphysics, the areas named by Rawls indeed do not belong to the core of a
moral philosophy, and if Rawls restricts metaphysics to theoretical meta-
physics, then he is right to say that moral philosophy is largely independent of it.
But moral philosophy is not independent of a practical metaphysics. For without
the reduction in information and the transcendence of personal interest afforded
by the veil of ignorance, Rawls cannot exclude egoistic principles of society. And
without a further element, not yet reached by Rawls, that enables one to transcend
the standpoint of universal interests in a collective sense, Rawls does not over-
come utilitarianism.
With his procedural interpretation of autonomy and the categorical imperative,
Rawls wanted to dispense with the metaphysical assumptions of Kants ethics.
What he in fact did was give these assumptions a procedural interpretation that
enables them still to carry conviction today. In an approximate way and without
full clarity at the legitimation-theoretical level, Rawlss veil of ignorance
amounts to a formulation of Kants notion of a noumenal subject. As a conse-
quence of this, Rawlss theory of justice is Kantian in a stronger sense than its
author thinks. Nevertheless, Rawls reformulates the noumenal subject, not for
the realm of theory, but for that of practice, and even here, not for all of practice
as such, but for the realm of right and lawmore precisely, for the fundamental
juridical constitution of a society. The individual juridical subject may not have
the status of a moral subject that is also noumenal, but the subject that determines the
fundamental principles of justice for the juridical orderthe highest transpositive
constitutional legislatorcertainly does. Rawlss self-understanding on this point
needs to be reversed. His critique of Kant and agreement with the empirical legal
and scientific culture of the modern world turns out to entail agreement with Kant
and a contrapuntal relationship to the empirical-mindedness of modernity. In his
methodological self-understanding, Rawls remains a prisoner of a merely empir-
ical culture, but in his actual argumentation he transcends his captivity. His theory
of justice is more convincing at an intuitive, than at a discursive, level.
The veil of ignorance corresponds to that element in Kant which Rawls (TJ
22127) thinks is frequently overemphasized by interpreters, universality. Kant
himself, though, took universality to be an important element in his moral phi-
losophy. Both the fundamental form of the categorical imperative and the first
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226 Categorical Principles of Law

formulation of it, the natural-law formulation, are based precisely on the idea of
universality. Rawlss criticism of Kants interpreters is, therefore, in truth a crit-
icism of Kant himself, and here too it becomes apparent that his criticism does
not carry conviction and that he offers a theory that is significantly more Kant-
ian than he had himself thought. The principles of justice chosen under condi-
tions of reduced knowledge are not only categorical imperatives in the concep-
tual or metaethical sense that they represent unconditionally valid demands, they
are also categorical imperatives in a criteriological or normative-ethical sense. In
the transformation of a rational choice made on prudential grounds into a gen-
uinely moral choice, a moment of strict universalization does the decisive work
of legitimation.
By appealing to his second model of legitimation, that of reflective equilib-
rium, Rawls might argue against an interpretation of his principles of justice as
metaphysically grounded and endowed with strict universal validity. He might
object that only principles established independently of experience are metaphys-
ical and that only those valid for all possible worlds have strict universal validity.
He himself, meanwhile, resting his case on the idea of reflective equilibrium, has
the much more modest goal of reconstructing the conception of justice recog-
nized in a particular time and place, in the highly developed political societies of
the liberal democratic West.
At first glance, Rawlss modesty is welcome. It renounces an excessive uni-
versality and escapes the danger of that self-overestimation that takes the social
and political morality of the Western democracies to be the only correct one. In
reality, though, this restriction entails an ethical relativism that would be fatal to
the discourse of international law and politics. For the violation of human rights
would, on this view, count as unjust only in the states of the advanced West and
might be perfectly legitimate outside the sphere of Western culture.
No doubt all theories of justice fall short of transhistorical validity in certain
respects. For one thing, sociohistorical boundary conditions determine whether a
society comes to recognize the demands of political justice at all and also
whether, once recognized, these demands are taken seriously, prompting the soci-
ety in question gradually to alter its social conditions until it finally concedes to
all men certain inalienable rights and freedoms. But the sociocultural conditions
affect here the historical process of coming to recognize principles of justice; they
do not bear upon their content. Rawlss primary goal is to define the content
of justice. Insofar as he introduces justice as a moral concept, along with the veil of
ignorance as an operational interpretation of the claim of morality, he cannot
argue for historically variable principles of justice. With his veil of ignorance
Rawls has eliminated all social and cultural differences and as a result declared
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I s R a w l s s Th e o r y o f J u s t i c e K a n t i a n ? 227

them irrelevant to the grounding of his theory. In this he has indeed adopted a
Kantian standpoint that cannot be reconciled with ethical relativism.
Principles of justice can be historically conditioned in a second sense as well:
they might, namely, be applicable only to societies at a certain stage of develop-
ment. The right to life and limb or to freedom of expression is tied only to the
human condition as such and is therefore valid for all human cultures. Academic
freedom, by contrast, and the right to privacy with regard to mail or telephone
conversations only make sense in societies familiar with the relevant institutions.
But here too that which is dependent upon history is not the fact that the rights to
freedom in question are binding but rather the problem that raises the question of
obligation, or bindingness, in a particular context. And problems of this sort can
be posed only where the veil of ignorance is not thick enough to remove all social
and cultural differences from view. Since Rawls himself appeals only to primary
social goods and so has need only of universal, anthropological elements, this
second possible dimension with regard to which principles of justice might be
historically conditioned plays no role in the core part of his program.
With these arguments in hand, we can answer the first part of our question
whether Rawlss imperatives of justice are pragmatic or categoricalin favor of
the Kantian, categorical interpretation (always keeping in mind the above-men-
tioned reservation concerning the clarity of Rawlss understanding of his own
normative theory). Decision making on the basis of a cost-benefit calculation, that
is, rational choice on a prudential basis, really is transformed into moral decision
making by means of the veil of ignorance. In the first instance, this transformation
only reaches the level of rule-utilitarianism, but the addition of supplementary ar-
guments enables Rawls to determine principles of justice that have the signifi-
cance of categorical imperatives.

11.3. Principles of Recht or Principles of Virtue?

Morality has two areas of application: the domain of virtue (or ethics proper) and
that of law and right (Recht). According to Kant, the same principles (of univer-
salization and autonomy) are valid in both domains, but are employed in funda-
mentally different ways in each case. In ethics proper, the motives and intentions
of a personmore precisely, ones self-given principles of will, ones maxims
are autonomous and capable of being universalized in a strict sense. In the do-
main of law and right, by contrast, what is at issue in a material sense is the social
coexistence of responsible subjects, and in a formal sense it is legality, rather than
morality, that is the object of concern (see 3.3 above).
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228 Categorical Principles of Law

Now, Rawls wants to depart from Kant by ascribing a certain priority to the so-
cial realm over the personal realm (1980, 552). This priority can be read in two
ways: as a philosophical thesis and as a thematic restriction. As a philosophical
thesis, it implies the systematic primacy of Recht over ethics. A primacy of this
sort, however, could at best be justified on historical and social grounds. No
philosophically principled reason in favor of it would appear to be forthcoming.
Such a primacy would, moreover, contradict Kants view, and Rawls does not, in
any case, offer any detailed defense of the thesis.
According to the second reading, Rawls has chosen political justice as an
object of investigation without thereby ascribing to it any thematic priority over
the field of personal morality. On this interpretation, Rawls, contrary to his self-
understanding, is wholly in line with Kant. Within the Metaphysics of Morals, the
doctrine of right and the doctrine of virtue are two subdomains ranged alongside
one another. But it remains to be determined whether Rawls sustains this concep-
tual distinction and really does develop a law-and-right-based theory of justice
rather than one based upon virtue.
Kant first develops the moral concept of the law and the state in smaller works,
such as Idea for a Universal History from a Cosmopolitan Point of View
(1784), On the Common Saying: This May Be True in Theory, but It Does Not
Apply in Practice (1793), and Perpetual Peace (1795), and undertakes a com-
prehensive and systematic investigation in the Doctrine of Right: this fact speaks
against the idea that Rawlss theory of justice is a law-and-right-based theory in
Kants sense. For the appropriate Kantian texts to cite in that case would be the
ones just mentioned, especially the Doctrine of Right. Rawls, though he often ap-
peals to the Grounding and sometimes to other of Kants ethical writings, refers
very rarely to the political writings and the Doctrine of Right, and the references
we do find (e.g., at TJ 115 n. 8) are of minor importance.
This textual evidence can, nevertheless, provide nothing more than a sec-
ondary argument against the thesis in question. More important is the substantial
question whether Rawls implicitly or explicitly takes up fundamental ideas of
Kants philosophy of law and right. In keeping with Kants twofold difference
between virtue and Recht, the second question concerning a Kantian interpretation
of justice divides into two subquestions: a material question concerned with the
object regulated by principles of justice (for Kant it is the social coexistence of re-
sponsible subjects), and a formal question concerning the relationship to justice
of those who fall within its scope (according to Kant the legality of actions and in-
stitutions is here sufficient; full-blown morality is not required). With regard to
the first question, we need to inquire into Rawlss account of the conditions in
which justice is applied, and with regard to the second, we need to inquire into the
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I s R a w l s s Th e o r y o f J u s t i c e K a n t i a n ? 229

two model-conceptions (as he calls them) developed by Rawls, that of the

moral person and that of the well-ordered society.

1. Since I have already dealt with the conditions in which justice is applied in my
Political Justice (chaps. 1012), I will content myself here with a brief reminder.
Kants definition of the object of theories of justice, the social coexistence of re-
sponsible subjects, is entirely compatible with Rawlss outlook. Kants definition
fits well with Rawlss decision-theoretical approach, with the Kantian notion of a
responsible subject corresponding to decision theorys subjective concept of ra-
tionality. Rawls, however, does not exploit decision theory in this fashion. When
determining the conditions of the application of justice, he begins, emphatically,
with the fact of cooperation. Naturally, he discovers moments of conflict and sees
that conflict more than cooperation brings justice into play. Unlike Kant, though,
Rawls does not see clearly enough that conflict alone makes law and justice nec-
essary. While Kant consistently restricts himself to the provision of a moral solu-
tion to problems of right and law, Rawls mixes economic problems into his in-
quiry, and the reason for this is that he does not relate political justice only to the
realm of the conflictual but relates it as well to the realm of mutually advanta-
geous cooperation. Rawlss first principle of justice, that of equal rights and free-
doms, touches exactly the task that Kant assigns to the moral concept of law: that
of assuring the compatibility of the freedom of action of all. By contrast, the first
part of Rawlss second principle of justice, the difference principle, is concerned
with income and welfare and therefore with problems that are, in the first in-
stance, economic, not juridical.
One can, it must be admitted, interpret the difference principle in a way that
construes it as responding to a task of law and right. On this account, the immedi-
ate task of a juridical orderthat of securing the greatest possible equal free-
domcannot be entirely divorced from economic matters of income and welfare,
because real freedom is impossible without material goods. Access to material
goods such as income and welfare is therefore required if real freedom is to be
had. According to this model of a legitimating argument, the social-welfare state
brought into thematic focus by Rawls in the difference principle has no immedi-
ate bearing on justice, but does have a mediated bearing. The tasks of the social-
welfare state assumed by the societies of the industrial West in the course of the last
several generations would, on this view, serve the realization of concrete freedom.
Rawls does in some measure recognize that the rights to freedom and partic-
ipation that characterize the juridico-constitutional state belong directly to the
sphere of justice, while the social-welfare state belongs to it only indirectly.
He shows his awareness of this thematically layered significance in granting
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230 Categorical Principles of Law

an absolute priority to the first principle of justice, the principle of freedom, over
the second principle (TJ 5256). But Rawls fails to notice that from this
absolute priority it follows that only the first principle has the status of a funda-
mental theorem of justice, while the difference principle has a bearing on jus-
tice, not on its own account, but only under the presupposition of the first
principle. From a legitimation-theoretical perspective, therefore, it would be
clearer to derive the difference principle, not directly from the original position,
but from reflections on the realization of the first principle of justice. A layered
argumentative structure of that sort would take up Kants definition of the con-
ditions of applying justice and would in its first step investigate only the condi-
tions of the possibility of the social coexistence of free subjects. In a second
step, the question of the conditions of the realization of freedom would be
raised, and in this context one could partially correct Kants misgivings about
the social-welfare state.

2. Rawlss account of the first of the two model-conceptions that he presents in his
Dewey Lectures as the foundations of his theory of justice, the conception of the
moral person, suggests that he understands it as an ethical-moral notion. This non-
right-or-law based (nicht-rechtliche) interpretation is corroborated by Rawlss as-
cribing to moral persons an effective sense of justice (1980, 521 and 525) and his
holding them to be not heteronomous (533). But we also find claims that run in the
opposite direction. The fact that Rawls regards moral persons not as fully au-
tonomous but as autonomous only in a rational sense speaks in favor of a right-
and-law based (rechtliche) understanding, since rational autonomy is supposed
to get by without a moral attitude. Rationally autonomous subjects need not be
guided by antecedent principles of justice (598). Rawlss claim that the freedom
of moral persons consists in their being self-originating sources of claims [who]
. . . are not required to justify the claims they wish to make (548) also argues in
favor of the right-and-law-based, rather than the ethical, understanding of the
moral person. The accent in this determination is on the right-and-law-based con-
cept of freedom of action, not on the virtue-based notion of moral freedom.
At the same time, the moral person as understood by Rawls includes certain
characteristics that are not to be found in Kants concept of responsibility or free-
dom of action. The most important of these characteristics is an interest in devel-
oping and exercising ones own moral powers. To be sure, Kant also recognizes
such an interest and even takes it to be a duty. But the duty to cultivate (cultura)
his natural powers (of mind, spirit, and body), which are the means to all sorts
of possible ends, is for Kant a duty of a human being to himself
(DV VI:44445/23940), and it therefore belongs to the Doctrine of Virtue, not
the Doctrine of Right.
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I s R a w l s s Th e o r y o f J u s t i c e K a n t i a n ? 231

Canvasing the different elements involved, one misses in Rawls a clarity com-
parable to Kants. Rawlss conception of a moral person includes some elements
that belong to the more modest concept of a juridical subject and some that be-
long to the more ambitious concept of a subject of virtue. A further ambiguity lies
in Rawlss adoption as a premise of rationality the principle that all agents want to
maximize their interests, in particular, that all have a higher-order interest in pro-
tecting and advancing their conception of the good as best they can (1980, 525).
This higher-order interest belongs to economic theory, not the theory of law and
right: it corresponds to the idea of Homo economicus. Once again, Rawls runs
aground on the shoals of his bias for the economic.
According to Rawlss second moral ideal, that of the well-ordered society, so-
ciety ought to be governed by a public conception of justice. This demand corre-
sponds perhaps to Kants moral concept of public law, but Rawls counts full au-
tonomy as part of a well-ordered society (TJ 533, and 1982, pt. 3). This conten-
tion would agree with Kants view if the concept of full autonomy applied only to
the juridical order, not to individual juridical subjects. In a just society, it is not in-
dividual subjects who need to satisfy the demand of autonomy; it is rather the
fundamental form of their lives together that cannot be heteronomous. Since
Rawls does not introduce the relevant connection to a juridical order, he once
again ignores the distinction between Recht and virtue. It is not ethical but only
juridical autonomy that must be counted as a part of the well-ordered society, and
juridical autonomy consists simply in the full realization of political justice.
According to Kant, a community of right is distinguished by three elements not
required by a community of virtue: (1) the power of coercion, which (2) the pub-
lic juridical order, the state, exercises with the aid of (3) a criminal code. The fact
that these elements play almost no role in Rawlss idea of a well-ordered society
corresponds to his failure to distinguish between ethics and law. Because of this,
Rawls runs the danger of distorting the idea of the well-ordered society into an
ethical, rather than a juridical-political, ideal. In Kant a community determined by
the laws of virtue, rather than the laws of Recht, is called an invisible church
a concept that finds its systematic place in the philosophy of religion as the exten-
sion of ethics. One wonders whether Rawls is not, without noticing or intending it,
importing an element from the philosophy of religion into the theory of justice.
The fact that Rawls derives his principles of justice from a prudential choice,
while failing to take up Kants essential distinction between Recht and virtue,
suggests that his claim to have formatted a truly Kantian theory of justice cannot
be sustained. Oliver Johnson (1974), for example, has drawn just this conclusion,
objecting that Rawlss theory of justice has no place for the concepts of auton-
omy, the categorical imperative, and pure practical reason. But this is too quick.
Since Johnson takes as little account of the difference between Recht and virtue
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232 Categorical Principles of Law

as does Rawls, he misses the distinction between (1) the universal and the specific
meanings, and (2) the right-and-law-relevant meanings of autonomy and the cat-
egorical imperative, on the one hand, and the ethical meanings, on the other.
Instead of this, he understands the concepts as if their sense were self-evidently
the ethical one. But the fact that these concepts, understood in the ethical sense,
are missing from Rawlss theory speaks in favor of, not against, his claim to be
developing a Kantian theory.
On closer examination Rawlss claim to a Kantian affiliation proves to be irri-
tating rather than simply false, as Johnson thinks. While Rawlss principles of
justice do, with certain reservations, have the status of categorical imperatives,
there is no clear distinction drawn in his work between the realm of Recht and the
realm of virtue, or between the former realm and that of the economy. The philo-
sophically more ambitious side of Kants philosophy of law and right, the cate-
gorical element, is recognized, at least on an intuitive level, but the other
element, having to do with the conditions of applying justice, is not determined
with the clarity already found in Kant.
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12
K A N T I A N D O U B T S A B O U T A P E L S D I S C O U R S E E T H I C S

The current status of transcendental thinking in philosophythe fact that it is of

more than historical significance and that its influence is felt not only in such sub-
domains of philosophy as the theory of argumentation, with its interest in tran-
scendental arguments, and ethicsis due largely to the work of Karl Otto Apel.
Apels attempt to negotiate fruitful contact between Anglo-American patterns of
thought and those characteristic of the European continent was in itself important
for the development of postwar philosophy in Germany. As work on the project
progressed, what emerged was a virtually encyclopedic fresco of recent philoso-
phy, and the philosophical importance of the project is in no way diminished by
the fact that not every position represented in the fresco is rendered with minute
accuracy. For Apels attempt to open up dialogue between the two traditions is
undertaken with a systematic goal in view. Prepared by studies in the humanistic
philosophy of language, he adopted from analytic philosophy the orientation

233
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234 Categorical Principles of Law

toward language; influenced by American pragmatism, however, he interpreted

the linguistic turn pragmatically, not semantically, and conjoined it with a
Kantian interest in ultimate transcendental justification. Apels ambition for this
philosophical constellation, for transcendental pragmatism, is nothing less than
a fundamental philosophy for our time.
Transcendental thinking acquires more than a regional significance within the
framework of Apels newly fashioned first philosophy. Apels thinking, though,
has not owed its greatest effect to his fundamental philosophy, but to one of the
second philosophies, which, he is convinced, can be developed from the first
philosophy without difficulty. It is Apels ethics that, as a transcendental ethics of
communication, has, through the university radio broadcast Practical Philosophy/
Ethics, become familiar to many in the German-speaking world outside the
confines of academic philosophy (see Apel et al. 1984 [and therein esp. Apel,
13153 and 60634; D. Bhler, 313435, and W. Kuhlmann, 495622]; cf. Apel
1976 and 1980).
That Apel develops his philosophy in dialogue and confrontation with Kant is
even more evidently true of his ethics than of his general transcendental pragmat-
ics. At first blush, we find an impressive amount of agreement between Apel and
Kant. Apel is just as convinced as Kant that there exist rationally justifiable prac-
tical obligations, the justifiability of which is not limited to considerations of
technical or strategic rationality. Apel continues to follow Kant when he defines
morality by way of autonomy, not by way of enlightened self-interest, as he does
when he seeks to provide a criterion for autonomy and when he defines it in pro-
cedural terms. With regard to the criterion itself, Apel thinks he has to take leave
of Kant, but he remains Kantian in spirit insofar as the new measure of autonomy,
consensus, is at least anticipated by Kant (PP VIII:350/93). Apels criterion of
autonomy is Kantian too in its universalism, and Apel shows his Kantian colors
not least in his interest in providing a transcendental justification of the criterion.
In light of such far-reaching agreement, one should not overestimate the dif-
ferences that remain. Disputes between Apel and Kant, like those between Rawls
and Kant, are a kind of family quarrel.
The differences Apel claims between his views and Kants can be gathered
under four points. The first is that Kant did not succeed in providing an ultimate
foundation for morality and that what Kant only aspired to, the articulation of a
genuinely transcendental ethics, Apel has actually accomplished. Apel attributes
Kants failure to an inadequate paradigm. Since Thomas Kuhn, it has become
customary in discussions of the history of science to use the term paradigm
shift to designate what in political history would be called a revolution. In order
to take his step beyond Kant, therefore, Apel thinks that nothing short of a radical
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K a n t i a n D o u b t s A b o u t A p e l s D i s c o u r s e E t h i c s 235

reorientation is required. Kants consciousness-oriented transcendental philoso-

phy is, in Apels hands, transformed into a linguistic-pragmatically oriented phi-
losophy, thus making transcendental ethics into a subdiscipline of transcendental
pragmatics. This is the second point of difference emphasized by Apel. Apel is
not so immodest as to ascribe the accomplishment of this paradigm shift to him-
self alone. He has taken essential elements from currents in recent philosophical
work and inserted them into his fresco: the humanistic idea of language, Ameri-
can pragmatism, Wittgensteins idea of a language game, perhaps also Heideg-
gers analysis of Dasein, and not least John Searles theory of speech acts.
In his third criticism, Apel gives a substantial formulation of the idea that
Kants approach to transcendental legitimation suffers from a lack of attention to
the pragmatics of discourse. Kant, he says, still poses the ethical question from
the point of view of the isolated individual, whereas what is needed is the con-
struction of a genuine understanding of the claims people make of and against
each other. At this point the paradigm shift emphasized by Apel acquires a
specifically ethical cast. Apel counters Kants monological criterion of auton-
omy with the principle of dialogical morality: the ideal community of commu-
nicators, or consensus achieved by means of discourse (Apel et al. 1984, 125).
Ethics, in Apels hands, becomes a transcendental ethics of discourse.
Finally, Apel takes credit for simplifying Kants views in essential respects,
and he attributes the simplifications to the philosophical paradigm shift as it bears
upon ethics in particular. According to Kant, the isolated individual has to see
to it that his will, that is, his inner disposition, could be judged good by a super-
human, omniscient judge (Apel et al. 1984, 125). For this reason, Kants mono-
logical ethics is tied to the postulates of practical reason, in particular that of the
existence of God. Dialogical morality, by contrast, can dispense with such oner-
ous presuppositions.
Doubts about Apels fourfold attempt to set himself off from Kant remain.
Inspired by Kant, these doubts issue in what could be called a Kantian skepti-
cism. Motivated as they are by considerations of philosophical substance, how-
ever, these doubts do not bear the stamp of a mere orthodox Kantianism.

12.1. Republican Reason

Apel has few reservations about calling his ethics transcendental; and since he
alludes to Kant in the course of developing his own views, he takes it for granted
that Kants ethics is also transcendental in nature. Kant himself, however, re-
stricted the transcendental program to the theory of knowledge and the theory of
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236 Categorical Principles of Law

objecthood (C1 A 11/B 25) and precluded its expansion into the realm of the prac-
tical (C1 A 15/B 29). Now, as we have seen in Chapter 4, we can certainly trans-
late the transcendental program into the terms of ethics and inquire into the pre-
empirical conditions of the validity of action. In the process of such translation,
however, the program undergoes consequential changes, one effect of which is to
vitiate two of Apels arguments in favor of the post-Kantian paradigm shift.

1. According to Apels first argument, the paradigm shift from consciousness

to language is required because Kants justification of ethics fails. Apel refers to
Kants doctrine of the fact of reason as evidence of this: Kants assertion that
the moral law is known a priori as a fact of reason, he writes, must, in the
light of current philosophy, appear either as a dogmatic break with any attempt at
providing rational justification . . . or else as a violation of the principle that he
himself acknowledges, that one cannot infer a norm from a fact (Apel et al.
1984, 129).
It is true that the doctrine of the fact of reason has not yet found a universally
convincing interpretation (and Kants rather cursory treatment of the topic may
be not the least of the reasons for this). It is true as well that the paradoxical situ-
ation of ethics as such is brought into sharp relief at just this point. As a recon-
structive inquiry, ethics reflects upon that which is always already given, as moral
consciousness or moral discourse. It concerns itself therefore with a fact, an is,
but its ultimate aim is to arrive at a moral principle, the justification and measure
of an ought. The appearance of paradox, however, dissipates as soon as we rec-
ognize the distinctive nature of the fact in question and its status within the theory
of legitimation.
A. On the one hand, what is at issue is not the givenness of something from
the realm of nature but rather the effective presence of morality in human affairs.
The effective presence of morality does not require reference to an ought as a
matter of principle, but takes on that character only in the case of finite beings sub-
ject to the temptations of inclination. The fact of reason allows Kant to defuse a
criticism of Hegels in advance of its having actually been raised. Although Kant
does take morality to involve an ought, he does not, contrary to Hegels fears, de-
grade morality to the level of a mere ought. Morality as a fact remains, on the con-
trary, something astonishingly real. Hegel might reply that Kant still does not do
justice to the idea of substantial ethical life, and to this Kant would respond by dis-
tinguishing different levels of moral reality. Substantial ethical life is fully present
in Kants Metaphysics of Morals, and indeed in a twofold manner: not only as the
morality of social life but also as that of personal character. For Kant, however,
substantial ethical life is tied to a precondition. In order to give a moral shape to
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K a n t i a n D o u b t s A b o u t A p e l s D i s c o u r s e E t h i c s 237

social relations or personal attitudes, these relations and attitudes must first (in the
systematic-logical, not the historical-chronological, sense) be subjected to a moral
evaluation. In the absence of this evaluation, the theory of substantial ethical life
degenerates into a defense of customs and habits with no reference to morality at
all. Hegels idea of a reality-saturated morality turns into Marquards vision of a
morally impoverished reality. According to Kant, the fact of reason shows unmis-
takably that we always already recognize the need for such a prior evaluation and
the standpoint of morality from which it is made.
One can certainly question whether Kant himself offered conclusive evidence
for the ever-present recognition of morality. In the sixth section of the Critique of
Practical Reason, he contents himself with a reference to the judgment people
make regarding their conducts conformity to law. He constructs an exemplary
case of conflict between duty and inclination, turning on the question whether,
under threat of immediate executionwhich is to say, in the face of a crass threat
to ones inclinationone would be required to bear false witness against an hon-
est person, or whether instead it is possible to overcome the inclination and refuse
to present the false testimony. The answer, without a doubt, is that one can refuse
to bear false witness, though whether one would is another story. According to
Kant, a proper understanding of this answer requires us to appeal to a legislative
instance higher than that of inclination and self-love. Since we really do make
judgments such as thisthe judgment that we could refuse to bear false witness
and also that, if we decided nevertheless to do so because of the threat of death,
we would still hold it to be an illegitimate course of actionshows that moral
consciousness in the sense of a moral way of judging is real through and through.
B. On the other hand, one should not mistake the role that Kant assigns to the
fact of reason in legitimating morality. Kant does not in fact place any justifica-
tory weight on the fact of reason. He appeals to it neither (1) to define morality as
a categorical imperative nor (2) to support an inference to universalizability as the
criterion of morality nor (3) to underwrite the concept of autonomy. All Kant
wants the fact of reason to showand herein lies the fourth element of his
ethicsis that the three-part justification of morality is not the justification of
a philosophical fiction. Because practical judgments are actually made whose
determining ground transcends the welfare of the individual who passes judg-
mentbecause, therefore, genuinely moral judgments existmoral philosophy
loses the character of a mere intellectual glass-bead game and becomes instead
the search for enlightenment about human existence.
Apel, it should be noted in passing, takes advantage of something analogous to
the fact of reason in his own work. The argumentation situation to which he ap-
peals may be unavoidable, may in addition anticipate an ideal communication
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238 Categorical Principles of Law

community, and may finally, as a real or ideal community, entail certain ethical
obligations in an entirely convincing way: but even when all of these theses have
been granted, the argumentation situation does not lose the status of something
given. One should notice, too, that to demonstrate that the argumentation situa-
tion is unavoidable is not yet to arrive at a transcendental justification of morality.
If the concept of the transcendental is not to lose its characteristic profile, a con-
cept will be shown to be transcendental only when two demonstrations are forth-
coming: on the one hand the concept must be shown to be valid before any expe-
rience, and on the other it must be a condition of the possibility of some sort of
objectivity (in the theoretical sphere, the objectivity of knowledge; in the practi-
cal sphere, the objectivity of action). Apel needs to provide more details about
both of these steps in his legitimating argument.
2. A second argument for the thesis that philosophy has undergone a paradigm
shift from a focus on consciousness to a focus on language is taken to be so obvi-
ously sound that as a rule it is simply stated that Kants thinking belongs to the
superseded, incriminated paradigm, and no justification of this claim is thought
necessary. For all that this claim has become philosophical common knowledge
and has therefore acquired a de facto exemption from critical scrutiny, it is vul-
nerable to important objections.
An initial, historical misgiving is this: that the philosopher who introduced the
paradigm of consciousness into early modern thought, Descartes, is the target of
numerous criticisms in the Critique of Pure Reason. It is not only in the chapter
on the paralogism that objections to Descartes are found. Onora ONeill (1990,
chap. 1) has shown that Kants distance from Descartes reaches farther than this,
and in the second edition of the first Critique this distancing begins with the
motto from Bacon. A more important objection is that the Critique of Pure Rea-
son is, from the ground up and not just in occasional declarations, a communica-
tive and discursive undertaking in exactly Apels sense. The communicative char-
acter of the work begins with the stimulus to the critique itself, with dispute
among philosophers. It is present also in the concept of science to which, accord-
ing to Kant, philosophers too must subject themselves and by comparison with
which philosophical debate appears merely irritating: scientists, according to this
concept, pursue a common goal and seek, entirely in accord with Apel, una-
nimity among themselves. Neither is Kants critique monological, since it seeks
to resolve disputes among philosophers not by means of a superior brand of
dogmatic knowledge but through a discursive juridical procedure. The juridical
procedure is moreover public, and no one is reduced to the condition of a mere
spectator. What is required for participation is reason alone, that jurisdiction in
which all people have authority, even if only in an obscure fashion.
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K a n t i a n D o u b t s A b o u t A p e l s D i s c o u r s e E t h i c s 239

Jrgen Habermas, the other leading defender of discourse ethics, invokes

G. H. Mead in the course of calling for an ideal exchange of roles. Kant had not
only answered this call long before Mead but had also put forward the idea in the
distinctive form of an exchange of roles with a genuinely universal significance.
And this idea first appears, not where one might most naturally expect it, in
Kants ethical works, but rather in the Critique of Pure Reason. Because the first
Critique recognizes no esoteric philosophical knowledge but allows universal
human reason alone to count, any and everyone can be party to the juridical pro-
ceedings concerning theoretical reason, as prosecutor, defender, and (not least)
judge. Kant is clear enough on this point in the Discipline of Pure Reason when
he declares that the very existence of reason . . . is never anything more than the
agreement of free citizens, each of whom must be able to express his reservations,
indeed even his veto, without holding back (C1 A 73839/B 76667). Reason,
we might say today, is democratic from the ground up. In order to ward off the
mistaken thought that this dictum entails that the voice of reason can be deter-
mined by a majority decision, Kant prefers to say that reason is republican in na-
ture (cf. Chapter 9 above).
The Critique of Judgment confirms that the idea of an ideal exchange of roles
recalled to our attention by Habermas is not at all foreign to Kant. In order to
grasp the peculiarity of aesthetic judgment (judgment of taste)namely, that
although not objective, it nevertheless requires the agreement of everyone (C3
V:237/74)Kant posits a common sense, the fundamental principles of which he
articulates through three maxims of ordinary human understanding. The second
of these maxims demands that we put ourselves in thought in the place of every-
one else, and its rationale lies in the fact that a universal standpoint that disre-
gards the subjective, private conditions of [a persons] own judgment can [be
determined] only by his placing himself at the standpoint of others (C3 V:293
96/13538).
It follows from these references that we can no longer assimilate Kants phi-
losophy to the paradigm of a monological consciousness in an unproblematic
way. Apel and Habermas could of course weaken their claims and speak instead
of a certain residue of precommunicative thinking to be found in Kants work.
Such a weakening would, however, have significant consequences for the self-
understanding of discourse ethics. Kant could no longer be taken as a principal
source of the old paradigm, but would stand rather for the onset of emancipation
from just this paradigm. An unbiased rereading of Kant could, in fact, discover far
more than the timid beginnings of emancipation.
For Apel, Kants (theoretically central) doctrine of transcendental self-
consciousness counts as one of the items that still belong to the philosophy of
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240 Categorical Principles of Law

consciousness as opposed to that of discourse. Where Apel places the accent on

consciousness, I would place it more on transcendental and self: what Kant
is concerned with is a reflexivity that is at once constitutive for knowledge as
such and preempirically valid.
I do not mean these remarks to suggest that Kant should be declared the first
transcendental pragmatist, but I do want to place a question mark after Apels his-
tory of modern philosophy. For present purposes, that is all that needs to be said
on this score, since, as far as ethics is concerned, the paradigm shift alleged by
Apel is to be sought in Kants practical philosophy, not his theoretical philosophy.
But in neither the Grounding nor the second Critique nor the Metaphysics of
Morals does the incriminated paradigm, the philosophy of consciousness, play a
significant role. The fundamental concept of the practical philosophy is not con-
sciousness but will. An ethically relevant paradigm shift, therefore, might be
found in the theory of action, or rational psychology. The ancients, notably Aris-
totle, understood action as a movement that took place for the sake of a pregiven
goal or objective; the fundamental concept for the theory of action was that of
striving (orexis). Kant, for his part, gives particularly clear expression to the mod-
ern sharpening of action-theoretical reflection and, inquiring into the origin of the
pregiven, traces the goal or objective back to a recognition or positing on the part
of the agent and so speaks of the will as the ultimate source of conduct.
Apel does not himself engage in any significant reflection about the theory of
action and therefore underestimates the ethics-specific paradigm shift. He re-
mains a Kantian nevertheless and recognizes the will as if it were something self-
evident on two distinct levels. On the one hand, discourse on his conception is
concerned not with mere talking at or with one another but with the achievement
of a practical consensus, which is to say, a common will. On the other hand
(and on a logically more fundamental plane), in order for situations of conflict to
prompt a search for consensus in the first place, a will to consensus is needed, or,
in Apels cognitivist synecdoche, a will to argumentation (1980).

12.2. The Categorical Imperative as Original Given

With regard to the paradigm of practical philosophy oriented by the concept

will, a transcendental ethics inquires into the preempirical conditions of a de-
termination of the will that has absolutely objective validity. The theory program
thus designated is frequently oversimplified, but we know (in principle any-
way) that Kant divides the question into three. Even if his answers are controver-
sial, a fundamental ethics, and all the more so one that takes itself to be transcen-
dental, cannot evade any of the three questions.
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The concept of unconditional obligation, that is, the categorical imperative in

the semantic sense, is offered by Kant as an answer to the metaethical question,
What does objective validity mean in the case of willing? In a normative-ethical
context, Kant seeks the preempirically valid determination of the will and finds it
in the notion of autonomy. The idea of universalization, to which Kantian ethics
is all too often reduced, is an answer only to the last of the three questions alluded
to above. Like the second question, this one is normative-ethical in character and
it concerns the provision of a criterion for both unconditional obligation and au-
tonomy. For Kant, the cooperative criterion of both these things lies in the proce-
dure of universalization.

1. Apel might explain why he accords the metaethical question no significance in

his ethics by treating it as a mere propaedeutic. In fact, the question is much more
important than this and is inescapable for an ethics of discourse as well as for
Kant. Apel endows the fundamental concepts of discourse ethicscommunica-
tion, discourse, consensuswith moral significance, and this raises the threat of
his projects suffering from a circular justification. Knowing, on the one hand,
that an actual consensus can be hindered by time constraints or fundamental dif-
ferences of opinion and, on the other hand, that its legitimacy can be undermined
by intellectual, emotional, or other inequalities among the parties to it, Apel rec-
ognizes only a qualified form of consensus as a moral principle.
Only a discourse that takes place under ideal conditions has a chance to under-
write morality, and the application of moral principles is required for the determi-
nation of certain conditions of discourse as ideal. Expressed in the language of
morality, the point that Apel develops by means of speech-pragmatics amounts to
this: the participants in an ideal discourse are not permitted to use on one another
force of any sort (neither physical nor emotional nor rhetorical, for example), and
neither are they permitted more subtly to lie, cheat, or deceive. Expressed in posi-
tive terms, the participants must acknowledge each other as endowed with an
equal right to full and unimpaired participation. A threat of circularity looms, in
that the principles for which a legitimating criterion was sought enter into the def-
inition of the proposed criterion, albeit in a disguised fashion. Moral principles, in
a word, are already contained in the conditions that establish a discourse as ideal.
Apel has defended himself against the charge of circularity by distinguishing
different levels of legitimation (Apel et al. 1984, 620 ff.). The ideal consensus is to
be engaged at a second level, and it is here that concrete moral principles are to be
reached. The systematic ground floor, however, is constituted by a reflection of the
argumentative discourse on itself, and this reflection shows two things: first, the
unavoidability of argumentation tied to language, and second, the tacit recognition
of certain norms (precisely, I would add, those that are morally fundamental).
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242 Categorical Principles of Law

Unfortunately, this answer only pushes the problem back a step. Having escaped
perhapsfrom the danger of the vicious circle, Apel finds himself confronting a
new difficulty. The semantic discussion neglected by transcendental pragmatics
can no longer be put off, and whenever such a discussion is absent, the justificatory
value of the discourse is weakened in a manner rife with consequences.
At the same time, reflection on this issue lets us see why a transcendental prag-
matics cannot proceed with so little ado from a first philosophy to ethics as a sec-
ond philosophy. One who does not answer the metaethical question beforehand
cannot defend the claim that the self-reflection of the argumentative discourse has
anything to do with ethics. So long as one merely draws attention to norms im-
plicit in discourse of any kind, one provides no more than a discourse-theoretical
insight. The point gains ethical significance only if a prior task of identification
has been accomplished; the ideal discourse, namely, must be shown to be a case,
even an exemplary case, of morality. In order justifiably to make such an identifi-
cation, one has to know what morality means, and discourse ethics, which pre-
supposes such an understanding without arguing for it, weakens significantly its
ability to achieve a transcendental justification of ethical norms.

2. With regard to Kants first normative-ethical view, Apel is divided. He wants to

acknowledge the autonomy of the will but dispense with the concept of a pure
will (1980). Chariness toward the idea of a pure will is understandable insofar as
one understands by that idea something free of any connection with human needs,
interests, sympathies, antipathies, or social conflicts. But the idea involves noth-
ing so foreign to reality as this. Kant takes all of the factors named above fully
into account and asks simply how one ought to react to them and, above all,
where the ultimate ground of determination with respect to a given way of react-
ing lies. His either-or obtains only for this latter question. Those who react
strategically or pragmatically (in the normative sense) thereby follow grounds of
determination that Kant groups together under the concepts inclination and het-
eronomy; only those who free themselves from such grounds of determination
and in this sense follow the negation of a heteronomous willwhich is to say, a
pure willact autonomously. Someone who nevertheless finds the concept of a
pure will misleading is well advised to follow Rawls and look for a new proce-
dural definition of the concept. The concept itself, though, can be given up only at
a price that Apel is unwilling to pay, the price, namely, of dispensing with the idea
of autonomy.
In lieu of doing without autonomy, I would suggest to advocates of discourse
ethics that they no longer take Kant to be merely an outmoded harbinger of their
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ideassomeone who was caught in an inadequate paradigm from which we

needed to be liberatedbut rather that they take their ideas to be a renewal of
Kants, formulated in terms of the pragmatics of speech. Consensus as such, with
no further qualification, corresponds to a shared or general will; but as soon as
one imposes on consensus certain ideal and, indeed, moral preconditions, one
has, by eschewing strategic, pragmatic, and the external grounds of determina-
tion, transformed a merely actual consensus into an ideal one. Or, in Kants lan-
guage, a factually shared or general will has become a pure will, a transformation
that is manifested by the reciprocal recognition of persons as equally entitled par-
ticipants in the discourse.
This new way of reading the relationship between Apel and Kant refrains from
ascribing to Kant a solipsistic concept of autonomy. Apel fears indeed that Kant
takes explicit account of the reciprocity of intersubjective relationships only on
the plane of law (Apel et al. 1984, 125). In fact, Kant sees in the relationship be-
tween reciprocity and autonomy a great deal more complexity than does Apel. On
the one hand, Kant would have had difficulty with Apels disjunction between
subjectivity and intersubjectivity. For Kant, these two phenomenain Apels
terms, monologue and dialoguestand to each other not as an exclusive
either-or but as an inclusive both-and. The Doctrine of Right develops the
autonomy of groups, while the Doctrine of Virtue develops that of natural persons.
Personal autonomy, on the other hand, encompasses recognition of all moral
duties, including those that are also legal duties. In addition to a reciprocity that is
legally instituted and binding as a matter of a morally justified legal practice, the
Doctrine of Virtue introduces a reciprocity that is not legally binding in this sense
but is nevertheless morally commanded. Concerning one or other of the princi-
ples of virtuefor example, the duties of benevolence, gratitude, sympathetic
identification, mutual respectone might prefer a different description to that
offered by Kant, or even have substantial modifications to suggest: the topic as
such, however, is anything but outdated.
A further element in Kants theory of autonomy runs into skepticism time
and again: the distinction between legality and morality. Ironically enough, the
need for such a distinction is made all the more evident by Apels attempt to over-
come Kants alleged solipsism. One can in fact satisfy Apels demand and inter-
nalize the obligations of a dialogical morality entirely on strategic grounds or
with an eye to social conformity. But someone who is concerned simply to remain
inconspicuous and to be taken for a reputable fellow citizen is someone who,
though he may meet the requirements for legality in the moral sense, is far from
the possession of moral autonomy. In order for the principle of autonomy to be
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244 Categorical Principles of Law

something more than an empty assurance, discourse ethics too must introduce a
full-fledged morality whose demands surpass those of legality in the moral sense.

3. If discourse ethics wants to set itself off from Kant in more than a secondary
sense, it might still criticize the categorical imperative in its criteriological sense.
Once again, though, with respect to Apels demand that a monological criterion
be abandoned in favor of a dialogical principle, Kantian skepticism prevails.
The most serious reservation about Apels proposal derives from the logical pri-
ority of Kants criterion to Apels alternative. Apels ideal discourse is itself sub-
ject to Kants criterion of universality, since in order for an ideal discourse to
function as a moral principle, it must be binding without limitation or exception,
and this in a double sense (see 7.4 above). Universalizing with respect to cases,
the ideal discourse must be valid for every situation, and universalizing with re-
spect to persons, it must be valid for everyone. Kants categorical imperative,
therefore, enjoys a twofold precedence over Apels concept of an ideal discourse:
the categorical imperative has priority on both the metaethical and the normative-
ethical planes.
What Apel, for his part, takes to count against Kant, the fact that Kants
thought experiment can be carried out alone, in a solitary decision of con-
science, does not in fact represent an objection. True, the fallibility of each of us
might speak against the wisdom of carrying out the categorical imperative test
all on ones own, and the danger of error would be reduced by cross-checking
with others, but it would not disappear entirely. Moreover, cross-checks introduce
no genuinely communicative or discursive element into play; they simply offer a
repetition of what is structurally the same sort of deliberation: an inner discourse
that each carries on with himself.
According to a second argument, what speaks against doing it all on your
own is the danger of partiality. With regard, for example, to the question whether
a lying promisesay, to pay back a loancould be universalized, one person
might overvalue the perspective of the potential debtor, another that of the poten-
tial creditor. For Kant, the idea that one should engage in an ideal exchange of
roles, the idea by means of which George Herbert Mead and Jrgen Habermas
seek to surmount the danger of partiality, is so obvious as to be taken for granted.
In fact, the Kantian universalization test accomplishes more than the Mead-
Habermas ideal exchange of roles; it answers the question that Mead leaves open:
the question what to do when one becomes cognizant of the perspectives of
everyone. According to Kant, one has first to weigh alternative reactions to a sit-
uation, next to generalize these reactions into principles or maxims, and finally to
ask of the generalized principles whether they can consistently be universalized.
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Any principle that passes this severe test will eo ipso fulfill Habermass condition
of recognition from the point of view of all affected (Habermas 1983, 75, my
translation).

12.3. A Danger of Hubris

The overall quality of a philosophical position is a function not only of the preci-
sion of its concepts and the strength of its arguments but also of its intellectual el-
egance. Apel claims for his position superiority over Kants on just this score
when he deliberately leaves out of communication ethics the presuppositions that
Kant had formulated in the Postulates of Practical Reason. An example, in
Apels words, is the presupposition that an omniscient God exists, one who
judges the inner dispositions of men and women, who created the world as an eth-
ical proving ground of humanity, and who consequently retains, as the true gov-
ernor of world history, ultimate responsibility for what happens. Instead of this,
human beings themselves, communities made up of interacting and intercommu-
nicating people, would take on a sense of responsibility imbued with solidarity for
caring about, and therefore recognizing duties arising from, possible conse-
quences of human activities (Apel et al. 1984, 126).
Even well-meaning Kant interpreters take the quoted postulates to be vestiges
of dogmatic metaphysics best passed over in discrete silence. Rawls (TJ 22127),
for example, regards them as not worthy of mention in his Kantian interpreta-
tion of justice. A tendency to regard metaphysical postulates as religious in char-
acter makes it appear all the more urgent to reject them on the grounds that they
have no place in the ethics of industrial societies committed to neutrality with re-
spect to comprehensive worldviews. But before Apel can take credit for a position
that is more elegant, because simpler, than Kants, it is worth asking what task
Kant assigns to the doctrine of the postulates and whether this task can be taken
over by the ideal communication community or has, in the time between Kant and
ourselves, become otiose.
With the doctrine of the postulates, Kant sought to resolve the dialectic of
pure reason in the determination of the concept of the highest good. We are not
here, pace Apel, dealing with a presupposition of moralityquite the contrary
in fact, since Kant sees in a theological foundation for morality a material ground
of determination and therefore heteronomy.
With the postulates of practical reason, Kant responds to a quite different ques-
tion, that of ultimate meaning as the highest good, and he sees in the immortality
of the soul and the existence of God necessary presuppositions of such a good.
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246 Categorical Principles of Law

What is at stake here is the correspondence of actual happinessunderstood as

the complete good, an inclusive goal that encompasses all others in itwith wor-
thiness of happiness, that is, with morality and virtue. For this goal to be fulfilled
is for each to be happy exactly insofar as he has lived well and justly. Communi-
cation ethics cannot foreclose the possibility that happiness is not always distrib-
uted in a way precisely proportional to worthiness of it; it cannot preclude there
being in the real world scoundrels who do well and just people, Job, for example,
who do very badly. So the problem raised by Kant remains.
Even if the communication community did want to take on responsibility in
solidarity for all possible consequences of its activities, it could not obviate the
fact that action takes place in a field of natural and social forces over which agents
do not have full control, cannot, indeed, even fully survey. In addition, the conse-
quences and side effects of actions develop dynamics of their own that cannot
always be foreseen. One should not underestimate the role of happenstance in
human life, the fact that we are delivered up to an external destiny. Those who are
incurably ill or permanently injured, those who lose best friends and life partners,
those, numbering in the tens of millions in our century, who lose their possessions
and their homeland to bootsuch people may, out of moral conviction, remain
immune to despair; their level of well-being will nevertheless suffer considerably.
To be sure, if the communication community truly were always to act out of
responsibility in solidarity, many such blows of fate could be averted. But the com-
munication community is neither omniscient, and therefore capable of foreseeing
all occurrences of suffering, nor omnipotent, and therefore capable of banning
suffering from the world entirely or distributing it according to moral desert. The
communication community can use legal and social sanctions to punish the evil
and reward the good, and in this way a certain degree of compensation and bal-
ance might be achieved. Nevertheless, it is not punishment from ones fellows
alone that provokes human suffering, and human well-being is derived only in
part from any social rewards one receives for good deeds.
In short, without hyperbolically attributing omniscience and omnipotence to
the communication community, one cannot believe that a proportionality of hap-
piness to moral worth is guaranteed. Worse yet, we do not live our lives under the
conditions of an ideal society, but among people who, like ourselves, often
enough lack a sense of responsibility in solidarity. It is because of this that moral-
ity presents itself to us as making demands, a point that adherents of communica-
tion ethics do not deny. Although we are called to solidarity, we often enough fol-
low our own interest instead, and in consequence we fall short of achieving even
that measure of proportionality between being happy and being worthy of being
happy that would be brought about by a communication community that never
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failed to act in solidarity with its members. As a result, skepticism concerning any
advancement of discourse ethics beyond Kant increases. With the best will in the
world, it remains impossible for the communication community to fulfill the task
that Kant formulates under the heading the dialectic of pure practical reason.
Whether Kants solution is convincingwhich is to say, whether the doctrine of
the postulates of pure practical reason is soundis another matter, but Kant at
least notices a problem that Apel, along with most contemporary moral philoso-
phers, ignores. Perhaps it is wise not to raise the problem, since we seem to lack
the conceptual and argumentative resources for a plausible solution. But it could
also be that moral philosophy should self-critically seek new resources precisely
because it otherwise leaves this kind of difficulty unresolved.

It is not only in the sciences that language and communication are today experi-
encing something of a boom. The self-evidence accorded, at least in principle, to
democracy as a political structure is surely one of the many reasons for this. Yet it
is also a fact that things are sometimes vehemently defended only when their exis-
tence is threatened. This point holds good for entities such as language and com-
munication as well, and we should not minimize the dangers of impoverished lan-
guage or indeed of utter speechlessness. Today, the capacity truly to speak, to enter
into intensive personal relationships and simply to conduct conversations whose
aim is not entirely functional, is threatened by a number of phenomena that accom-
pany the culture of industrial societies, for example, by the rampant proliferation of
simplifying, image-centered media such as television, advertising, and cartoons,
by the penetration of technical and wannabe-technical jargon, and by the super-
abundance of stimuli, of self-imposed obligations and functional imperatives.
In this situation, it makes sense to join Apel in drawing attention to the funda-
mental, encompassing meaning of language and communication. It is also correct
to argue against an individualistic conception of freedom in favor of a commu-
nicative one, since genuine freedom manifests itself in the recognition of others
as free and equally entitled persons. Because people have such divers needs and
interests, a communicative conception of freedom cannot get by without a will-
ingness to respect ones fellow humans in their otherness. Concrete norms of ac-
tion are not the result of a monological and ahistorical process of subsumption,
still less that of pure power and sheer decision; they arise, rather, out of historical
processes of communication. Not the smallest task of a juridical order, for exam-
ple, is to make discursive formations of will institutionally possible. Neverthe-
less, a vote for language, communication, and argumentation does not amount to
a sound argument for grounding a philosophical ethics exclusively on the founda-
tion of a transcendental pragmatics of speech.
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13
HABERMAS AND THE CONVERSION OF CRITICAL THEORY

What sort of contribution can and should be made by a critical theory of society,
one that recognizes itself as the philosophical heir of Hegel and even more of
Marx but that nonetheless has, under the influence of subsequent developments in
science, philosophy, and society, called much of their philosophies into question?
Jrgen Habermas, long the most influential and creative representative of the
Frankfurt School, combines critical theory with the ambitious goal of, as it might
be called, renovating modernity. Though he too sees many pathologies in the
modern world, he does not align himself with those radical critics who wish de-
finitively to part ways with the project of modernity. The program appears para-
doxical only at first glance. What Habermas wants to do is defend modernity
against itself.
Four aspects of Habermass expansive project deserve particular attention. First,
he seeks in The Theory of Communicative Action to articulate the fundamental

249
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250 Categorical Principles of Law

theoretical concepts and normative criteria needed for a theory of modern society.
Second, he abandons traditional critical theorys aspiration to an absolute stand-
point, together with its often hermetic and self-assured language, submitting him-
self instead (in the article Philosophy as Placeholder and Interpreter) to the dic-
tates of a more modest concept of philosophy and science. If Hegel and Marx had
hitherto stood in the foreground as master thinkers, along with Freud from more
recent intellectual developments, Kant now becomes a greater presence. Someone
interested in exaggerating the new tendency might speak of a Kantian turn, the
most important evidence of which is a new attitude toward moral philosophy in
general and the categorical imperative in particular. In the tradition of Hegel, the
older critical theory had closed the file on both, but in Habermass newer critical
theoryand herein lies the third viewpoint to be highlightedmisgivings about
the viability of moral philosophy and the categorical imperative are overcome. As
discourse ethics, the former undergoes a remarkable rehabilitation in the 1983
work Moral Consciousness and Communicative Action, and within its framework
the latter plays a special role as a bridge principle. Finally, in Between Facts and
Norms Habermas develops in detail a theory of law and the state, which rectifies the
older critical theorys neglect of these topics and corrects as well that traditions un-
tenably negative attitude toward the basic principles of modern constitutional
democracy.
In a more modest sense, a Kantian turn signifies that critical theorys alter-
nately critical and affirmative reflections on the philosophical tradition no
longer privilege Hegel and Marx but include Kant as well. In a more ambitious
sense, it means that certain elements characteristic of Hegel and above all of
Marx are, in consequence of the role played by Kantian points of reference,
abandoned, or at least watered down. Marxs outlook can be characterized
oversimplistically, to be sureby three elements: (1) a search for contradic-
tions, mandated by a guiding concept of critiqueexamples of this would in-
clude unmasking a consciousness as false or social relations as unjust; where
Marxist critique is negative, Kantian critique is not so much affirmative as ju-
dicative (see Chapter 2 above)(2) a replacement of ethics as an allegedly
mere ought by a theory of society, within which (3) the primacy of the eco-
nomic sphere is taken to be well established. To the neglect of the realms of
law and the state, Marxist social critique is above all else critique of political
economy.
To get a clearer view of the new profile, let us consider Habermass updated
form of critical theory with reference to Kant and against the background of these
three elements.
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13.1. The Theory of Communicative Action

(a) An Ecumenical Theory

After more than a decade of preliminary works and promissory notes that had at-
tracted much intellectual attention and sparked a vigorous discussion among
philosophers, sociologists, and students of language, we have been able, since
1981, the 200th anniversary of the publication of the Critique of Pure Reason, to
study the full-dress version of Habermass theory of communication. The 1,200-
page magnum opus presents itself as a major piece of work, even by the measure
of sheer size. The first of the treatises two volumes carries the subtitle Rational
Action and Social Rationalization, while the second is called Towards a Cri-
tique of Functional Reason, a choice that could remind one of Kants first Cri-
tique, but the content of which lies nearer to that of Horkheimers Critique of In-
strumental Reason.
On the basis of the more narrowly academic preoccupations of the preliminary
papers in which he addressed such topics as the theory of truth, the justification of
morality, and communicative competence, it might have been thought that Haber-
mas had forsaken, or at least set aside, the business of social criticism. The The-
ory of Communicative Action shows this to be a misunderstanding. The author of
this book moves critical social theory forward, though not in the manner of an or-
thodox spokesperson. Habermas has always been an independent mind who
never lets himself be tied down to a particular party line. In an unwavering cri-
tique, including a dose of self-critique, he seeks here both to ascertain the limits
of neo-Marxist social theory and to develop that theory further, taking into ac-
count both new concepts in social science and changed circumstances within so-
ciety. In the most important innovations found in the The Theory of Communica-
tive Action, Habermas proposes to counter the overvaluation of economics and
work in Marx and the imprisonment of older critical theorists in the conscious-
ness-oriented philosophical tradition of Kant and Hegel with the suggestion that
communicative action and rationality should function as the foundational con-
cepts of critical social theory.
Like Marx and the older Frankfurt School before him, Habermas understands
critical theory in a twofold sense. It is supposed to be critical both of establish-
ment theory in the social sciences and of social reality itself. In the new book,
however, it is the critical reappraisal of recent social science that is clearly pre-
ponderant. Even granted its presence in other chapters here and there, the only
place in which sustained explicit criticism of social reality is found is the third
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252 Categorical Principles of Law

and last section of the Closing Remarks, in which Habermas seeks to shed light
on dangers specific to the contemporary world and experience with the aid of his
new fundamental concepts.
As in his earlier work Knowledge and Human Interests, Habermas elaborates
his theory in the course of a critical appropriation of landmarks in the history of
social scientific research. His chief landmark, though, is not Karl Marx but Max
Weber and his theories of disenchantment and rationalization. For, as he writes,
[a]mong the classical figures of sociology, Max Weber is the only one who
broke with both the premisses of the philosophy of history and the basic assump-
tions of evolutionism, and who nonetheless wanted to conceive of the moderniza-
tion of old European society as the result of a universal historical process of ra-
tionalization; and further: the theory of rationalization does not belong to that
speculative inheritance from which sociology as a science should free itself
(TCA I:143). Habermas nevertheless sees in Weber a peculiar duality. On the one
hand he succeeds in grasping the process of societal rationalization in its full
complexity, but on the other his theory of action is essentially determined by the
limited concept of instrumental, means-ends rationality. In opposition to this sec-
ond feature of Webers thought, Habermas calls for a paradigm shift: from instru-
mental to communicative rationality.
From Lukacs and Horkheimer to Adorno, old-style critical theory had already
launched passionate objections to the limitation of social practice and its theory to
the domain and vocabulary of instrumental rationality. Habermas follows his pre-
decessors in this critique, but since his 1965 inaugural lecture, Knowledge and
Human Interests, he has regarded the normative foundations of the old-style cri-
tique as problematic. In close contact with Apel, he has for some time sought to
ground critique in the realm of language.
In the second chapter, on the history of social theory, Habermas takes up the
critique of old-style critical theory, reworking the critique of instrumental reason
in the form of a critique of functionalist reason in order to create space for his
views. According to Habermas, Horkheimer and Adorno had indeed appealed to
an expanded concept of reason in the course of their work, and such an appeal is
indispensable to the success of critical theory as such; but due to their insufficient
conceptual means, they managed only to circle around it by means of a negative
dialectic (TCA II:1), rather than really develop a positive account. The chief de-
ficiency of older critical theory is held to lie in the fundamental idea of a philoso-
phy of consciousness that underlies philosophical thinking from Descartes
through Kant to Hegel. Like Webers notion of means-ends rationality, this idea
needs to be philosophically transcended. Habermass new fundamental concept of
communicative rationality is enlisted, therefore, not only against Webers concept
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of means-ends rationality but also against the critique of this concept from the
side of the first generation of the Frankfurt School. Habermas holds fast to the
ideas of reconciliation and freedom and believes that they can be elaborated only
with the help of his new concept of communicative rationality.
Habermas carries out this doubly necessary paradigm shift in a third theory-
historical step, in which he parts company with the German tradition and turns to
the sociologists George Herbert Mead and Emile Durkheim. Both of these
thinkers, he writes, developed basic concepts in which Webers theory of ratio-
nalization may be taken up again and freed from the aporias of the philosophy of
consciousness: Mead with his communication-theoretic foundation of sociology,
Durkheim with a theory of social solidarity connecting social integration to sys-
tem integration (TCA II:1).
Nevertheless, Habermas is aware that a theory of society cannot be reduced to
a theory of communication. In order to escape the limitations of such a reduction,
he conceives society as simultaneously system and life-world. Durkheims antic-
ipations notwithstanding, credit for bringing the concept of a system into social
theory belongs to Talcott Parsons. In a fourth chapter, on the history of social the-
ory, Habermas confronts Parsonss work. Arguing against the hermeneutic ideal-
ism of an entirely communication-theoretical foundation, he integrates the con-
cept of a system into social theory.
In spite of the wide-ranging theory-historical discussion, Habermass work is
aimed at a systematic, rather than a historical, goal. Compared to that in Knowl-
edge and Human Interests, this systematic discussion receives greater, though
still insufficient, weight. The books Closing Remarks in particular are still
overburdened with theory-historical considerations. According to them, the path
that leads from Parsons back to Marx via Weber is supposed to provide a
view of the currently conspicuous aporias of societal modernization (TCA
II:302). To open up a view is to enable something new to be seen or something
familiar to be seen anew. Habermas, though, spends more time describing the
view than he does actually training it on society and teaching us how to see this
in a new way. Yes, he formulates the tasks of a critical social theory inspired
not only by the spirit of Western Marxism but also by Webers theory of social
rationalization and Durkheims and Meads concept of communicative reason;
but the questions of what new things or aspects of society someone so inspired
sees, and of what new evaluations are invited, are answered only in a very pre-
liminary way.
In his foreword, Habermas announces a critical social theory that builds on the
foundational concept of communicative action and opens up access to three in-
tertwined topic complexes (TCA I:xl). The first two of thesea concept of
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254 Categorical Principles of Law

communicative rationality that is sufficiently skeptical in its development but is

nevertheless resistant to cognitive-instrumental abridgements of reason and a
two-level concept of society that connects the life-world and system para-
digms in more than a rhetorical fashionreceives a much more detailed treat-
ment in the two-volume work than does the last, a theory of modernity that ex-
plains the type of social pathologies that are becoming ever more visible in
todays world.
Habermas sees two social pathologies emerging in the wake of capitalist mod-
ernization: the petrifaction and reification of everyday life and practice, together
with their cultural impoverishment and stultification. Both tendencies could cor-
respond to the loss of freedom and meaning noted by Weber. But while Weber re-
garded these losses as the unavoidable result of the process of Western rational-
ization, Habermas accounts for them by appeal to (1) the uncoupling of social
subsystems, especially that of the economy and the state from the communicative
life-world, and (2) the penetration of system imperatives into areas, such as
school and the family, that are not at all suited to them. Habermas expects that
wherever this trend toward uncoupling is reversed and the corresponding institu-
tions freed from system imperatives, the two social pathologies will also largely
be reversed and a greater measure of freedom and meaning will be repossessed.
So much for outlining a general orientation to the topic, the guiding interest and
the plan of Habermass book. Although the plethora of historical and systematic
materials might at first intimidate some readers, the underlying thought informing
the work is clear and indeed becomes ever more readily discernible through the
course of its progressive systematic and theory-historical development.

Habermas wrote his book for those with a professional interest in the founda-
tions of social theory (TCA I:xiii). Scholars and scientists today, though, live in
a world of increasing specialization, a trend that Habermas here contradicts in an
altogether provocative manner. Because of this, the professional sociologist will
feel inclined to regard him as a philosopher, while the professional philosopher
will tend to address him as a social scientist. In either case, Habermas becomes an
outsider from the point of view of the specialist. In fact, he is a border figure
better, an intermediarychallenging social scientists and philosophers to work
together. Philosophy is to regain its practical significance, and the social sciences
are expected to engage in philosophical reflection. Beyond this, by means pre-
cisely of the method of the book, the reconstruction of the history of social theory,
Habermas protects systematic thinking from a loss of history and historical re-
flection from a retreat to the archive. Last but not least, he makes it difficult for
either the historian or the systematic thinker to cocoon himself into a narrowly
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circumscribed field of study. For the imposing wealth of material worked through
here, coming as it does from various traditions of thought and different areas
of inquiry, demands of all mere specialists that they look beyond the confines of
their narrow areas of specialization and take note of the overarching context.
What Habermas says of Parsons applies equally to himself: he has the ecu-
menical style of an all-incorporating theorist (TCA II:200). Confrontation with
such a thinker naturally calls forth skepticism. Can one manage all of that? And
even if one can, should one? Habermas shows brilliantly that one can operate on
such a grand scale, and he proves also that one can be within ones rights to do so.
But whether an undertaking of this sort is necessary in order to provide critical
theory with a new foundation remains an open question.
The structure of Habermass book bespeaks an encyclopedic interest reminis-
cent of Hegel and Max Weber. Literally, an encyclopedia is a circle of learn-
ing, specifically, the knowledge that every young Greek in ancient times, or
more generally any cultivated person, should acquire. To an encyclopedia, there-
fore, belongs a didactic moment, and in Habermass case an additional element of
autodidacticism. By his own admission, the systematic assimilation of the history
of social theory helped Habermas to find the level of integration on which philo-
sophical intentions unfolded from Kant to Marx can be made scientifically fruit-
ful today (TCA I:xl). By the same token, though, the works encyclopedic struc-
ture leaves too little room for analytic work on the scale of fine-grained detail
rather than that of the broad brushstroke. Had he paid more attention to small-
scale details, he would have been able to follow out more thoroughly the ramifi-
cations of the main argument and to engage misunderstandings and objections
that naturally arise, many of which had already been formulated in the discussion
surrounding the preparatory works. Social scientists will likely think this a
typically philosophical work, while Anglo-American philosophers will think it
a typically German one; and those skeptical of one aspect or another of the pro-
ject will, despite admiration for Jrgen Habermass intellectual capacity, remain
less than fully convinced. The one skeptics reservations might pertain to one or
another theory-historical front, the others to the categorial framework, and yet a
thirds to the social critique present only in an adumbrated form.

(b) A Theory-Historical Battlefront

From the large theory-historical picture, I will emphasize only a small detail, al-
beit one that points beyond itself. Habermas charges earlier critical theorists with
remaining tied to the philosophy of consciousness that runs from Descartes
through Kant to Hegel. Their paradigm, in consequence, is still that of the subject
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that represents objects and toils with them (TCA I:390) According to Habermas,
the Lukacs-Horkheimer-Adorno critique of instrumental reason as a vehicle by
which social relations and relations between man and nature become reified could
show only that something was being destroyed. Not until the advent of the new
paradigm of communicative action could it be spelled out exactly wherein the de-
struction consists, namely, in the fact that relationships based on mutual under-
standing become uncoupled from the kind of agreement in understanding proper
to them and thus are destroyed in their very essence.
In this context Habermas does not (yet) take the Kantian turn of which I spoke
in the Introduction, but instead adopts an explicitly hostile position with regard to
Kants thought. He does open up a connection to Kants concept of action, seeing
in the philosophy of consciousness an account of action as toiling with objects.
In any case, the alleged philosophy of consciousness tradition extending from
Descartes and Kant to Hegel and Marx is too heterogeneous to permit one (or me,
at least) to identify a unified paradigm of practical rationality common to it. Fol-
lowing the line of interpretation suggested by the Kantian turn, I will take up
Kant alone, whom, we have already seen, one may subsume under the incrimi-
nating paradigm of consciousness only with caution.
At issue in any case, as far as a social philosophy is concerned, is not the phi-
losophy of consciousness as such but rather the question whether it leads one to
adopt the criticized concept of rationality. And it is not easy to find Kant conceiv-
ing of rationality as action that toils with objects. Even his first level of ratio-
nality, technical, success-oriented rationality, must be understood more formally
than this. And when it comes to the second and third levels, to pragmatic, happi-
ness-oriented rationality and moral rationality, it is still clearer that one cannot
speak of action simply in terms of working on objects.
One might regard Habermass historical oversimplifications as a matter of
mere detail that does not affect his basic systematic interest. In fact, the worry
goes deeper than this and points to a fundamental ambivalence in The Theory of
Communicative Action. On the one hand, Habermas wants to reinvigorate certain
essential intentions of philosophy from Kant to Marx and, beyond this, to bring
philosophy and the social sciences into conversation with one another. On the
other hand, whenever he wants to derive positive impulses from the history of
theoretical inquiry, he restricts himself, the older critical theory excepted, to clas-
sical figures in sociology. Apropos of these thinkers, he can indeed reconstruct the
paradigm shift from instrumental rationality to communicative action and also
make plausible the integration of life-world and social systems in an ecumenical
social theory. But certain important elements of the theory are subject to the
same criticism leveled by Habermas at the older critical theory: the idea of free-
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dom and a moment of unconditionality (TCA II:399) are necessarily appealed

to but not, owing to insufficient conceptual means, adequately developed, much
less justified. It is advisable in light of this to supplement the return to Marx and
Weber with a strengthened turn to Kant.
In addition to distinguishing three levels of practical rationality, Kant distin-
guishes within the third level personal morality from juridicalwhich is to say,
social and politicalmorality, and this distinction can be of use to the theory of
communicative action. The concept of personal morality contains a warning
against the overvaluation of social actions and projects vis vis personal ones,
while Habermas in fact remains bound to the corresponding Marxist tendency:
his history of theoretical inquiry treats amply of sociology but not at all of a com-
plementary normative psychology. A creative development of Kants thought
could deal thematically with both personality and communication and try as well
to sustain dialectically a certain tension that exists between the two. The con-
cept of a juridical morality of right calls, moreover, for reflection on whether
we still have subjects responsible for society. Not content merely to diagnose
social pathologies, Habermas has therapy to suggest as well. Who, though, is
to undertake the task of freeing institutions from the system imperatives alien to
them? Can it be the government, which is itself complicit in the formation of the
pathology in question, the penetration of system imperatives into the life-world?
The apparatus of government has lately undergone transformations labeled
rashly by H. Willke (1983) as the disenchantment of the state, more cautiously
by others as the emergence of a new statehood, and more forthrightly and mod-
estly as the introduction of an altered statehood (cf. Schuppert 1989). Of these
developments, however, neither the preference for talking of the political sys-
tem rather than of the state and for demoting the political system to one sub-
system alongside others, nor the fact that the state, despite an abundance of new
tasks, operates less and less with the tools of traditional sovereignty, nor the con-
junction of increased tasks and expectations with decreased capacities for taxa-
tion, nor the weakening of state sovereignty by supranational organizations, by
the integration of world markets, and by the growth of regionalismnone yet
speaks against an interest on the part of society in the existence of subject-
analogous elements that play as strong a role as possible in social processes. By a
subject-analogous agency or instance, I mean an agency or instance to which
one can ascribe something like responsibility, albeit in an altered form. One does
not have to think that the state ought to be strengthened, much less mystified, to
hold that the traditional branches of governmentthe legislature, executive, and
judiciaryremain worthy of discussion as candidates for fulfilling this interest
in subject-analogous institutions, and neither does this view commit one to
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258 Categorical Principles of Law

excluding other possibilities or to disputing the permeability of the borders

between the state and the media, science, and so on.
Another argument in favor of a strengthened turn to Kant is this: mutual
agreement in understanding (which is the goal of communicative action) depends
de facto on the boundary conditions set by the intellectual and emotional capaci-
ties of the participants as well as on their social and cultural backgrounds. Depen-
dencies of these sorts can favor some and disadvantage others, from which one
may conclude that the mutual understanding aimed at, the agreement of all par-
ticipants, would not in fact serve the interests of all participants. Because his ulti-
mate end cannot lie in a consensus of a distorted kind, Habermas imposes a con-
dition of unforcedness on the agreement sought. What is aimed at, he
maintains, is a reciprocal conviction, a valid agreement (TCA I:392). The nor-
mative burden of proof carried by these concepts of unforced mutual understand-
ing and valid agreement can be reconstructed only by recourse to the classical fig-
ures of philosophy, not those of sociology. Without doubt, Habermass theory of
communicative action would be well supplemented by an ethics of discourse
that made appropriate reference to Kant.

(c) An Inner Colonization?

Habermas is right to regard modernity as an internally endangered project.
Like many others before him, he takes note of threatening developments; what is
new is his diagnosis of the source of the pathologies, his explaining them as the
result of an encroachment of system imperatives into the communicative life-
world. As examples, he offers the juridicalization (Verrechtlichung) of family
and school, the increasing degree to which these institutions are enmeshed in
complex juridical and regulatory networks. The process itself he calls an inner
colonization. Thanks to legislation enacted in recent decades, bureaucracies and
courts, in particular administrative courts, have indeed made their way with nu-
merous system imperatives into various communicative life-worlds, sharing dili-
gently in the governing not only of school and the family but also of higher edu-
cation and research, technology, labor, and the economy. But for all the
impressive evidence Habermas can point to on his sidethe more detailed a pic-
ture we get of his diagnosis, the less convincing it ultimately becomes.
Doubts begin with the theorys fundamental concepts. To carve the social
world into an exclusive disjunction of system and communicative life-world
is greatly to oversimplify its wealth of forms. On the one hand, with respect to
those areas interpreted as belonging to the everyday communicative world, the
very real constraints that exist even in the most successful examples of family,
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school, or university are papered over and hidden from view. On the other hand,
with respect to the system side of things, influential theories in the social sciences
talk of subjectless networks of relations and processes in the conduct of politics,
the economy, management, and so on. It is, in any case, in Habermass own inter-
est to look for alternative interpretations. In order to acquire or regain as much
communicative rationality as possible, it is worth delving further into the in-
stances of subjective and intersubjective responsibility that already exist in soci-
ety. What is needed is first to notice their existence, next to develop for them
an adequate conceptual articulation, and finally to consider means and forms
by which they can develop further. The reference above to the subject-analogous
responsibilities of governmental agencies belongs in this context.
A new conceptual articulation would, for example, depart from Habermas by
including a comparative element according to which system and communica-
tive life-world no longer form two halves of a social whole but constitute two
idealized extremes of a spectrum rich in intermediate forms of social existence.
Moments of subjectivity and communication appear within this spectrum with
waxing and waning importance. This comparative conceptual framework ex-
plains much better how it could be that system imperatives could begin to pene-
trate family, school, and so forth, for it allows us to say that such imperatives
were always there to a limited degree and that what is under discussion now is
simply the scope and manner of their presence. A comparative conceptual frame-
work makes it possible as well to acknowledge that politics, the economy, and the
law each operate to a great degree as social systems, but to insist nevertheless that
in the case of public institutions shaped by law, there is still present that which is
largely absent from system thinking, political will on the one hand and collec-
tive social responsibility on the other.
In the wake of these misgivings about Habermass conceptual scheme come
doubts about the thesis of an inner colonization. The connection here is not sys-
tematically tight, but still, if Habermass picture is accurate, then system impera-
tives must intrude into communicative life-worlds like foreign colonial masters
into tribal societies, and they must set out to enrich themselves at the expense of
these life-worlds. In the case of juridicalization, however, we are victims of our
own actions; we, the members of the tribe, not foreign colonial masters, descend
upon ourselves via parliamentary intermediaries. Furthermore, there have long
been a certain number of laws, and therefore system imperatives, governing fam-
ily and school, and to assume a communication world free of system imperatives
is to fall into the grip of a backward-looking utopia. Finally, as Habermas well
knows, the recent extensive, and perhaps overextensive, proliferation of laws
governing life in these areas can be defended with good arguments from the
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260 Categorical Principles of Law

points of view of the social-welfare state and of democratic and egalitarian the-
ory. And when disadvantaged groups are aided and, to put it dramatically, living
conditions worthy of human beings are secured for all citizens, one cannot speak
of colonization and the exploitation of others, increasing sociopsychological and
cultural costs (TCA I:xii) notwithstanding.
Our dissatisfaction with what has been achieved in this area has, I conjecture, at
least three sources. Some stems from overly high expectations. This sort of struc-
tural overoptimism is found, for example, when it is thought that the social-welfare
state is in the business of directly furthering the welfare of groups and individuals;
in fact it can never do more than improve the preconditions and framework condi-
tions within which people live. A second source is an overestimation of the states
capacities, for taxation and so forth. A third reason for dissatisfaction is that the
measures taken to achieve certain ends are not always optimal. Something well in-
tendedfor example, making a certain sort of claim actionablecan, beyond a
certain thoroughness, show itself to be the continuation of an authoritarian state
paternalism by other means. The social-welfare state is, in the end, in spite of the
best of measures, an ambivalent instrument that cannot achieve its goal of help-
ing all to realize freedom without making incursions into precisely this freedom.
Since the system imperatives that are supposed to have colonized the commu-
nicative life-worlds have little to do with the first two reasons for dissatisfaction,
Habermass diagnosis explains the pathologies only partially. By contrast, Haber-
mass diagnosis might well be helpful in elaborating the third reason, the ambiva-
lence of the social-welfare state. Instead of interpreting the intrusive system im-
peratives as colonization, however, it would be preferable to use the neutral
concept of a cost-benefit calculation. This concept reminds one that the social-
welfare state exists to serve, not itself, but those affected by it, and it allows one
to appraise better-grounded system imperatives (i.e., more cost-effective ones)
positively and inefficient or overabundant ones negatively. It goes without saying
that neither the costs nor the benefits are exclusively financial in nature, not even
in the first instance. Cost-benefit thinking relativizes the negative critique that
dominates Marxs thought, and rehabilitates Kants paradigm of a judicative cri-
tique, though not, of course, on a transcendental level.
A broadened diagnosis of contemporary pathologies will also take into ac-
count still other factors, for example, the modern aspirations to subjectivity and
self-realization, through which a communicative life-world such as the family
can be stretched to, or even beyond, the limits of its capacities. And not the least
part of the pathologies in question results from the fundamental alienation that
holds sway in the modern world between the family as the place of intimacy and
the life of work and occupation as the place of functional necessity, competition,
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and career. The family is thus subject to the demands of a double morality: an
internal morality, committed to communication, and an external morality,
characterized by economic, technical, and strategic obligations. Neither can the
model guiding family morality be restricted to the principles of a communicative
internal morality. For the family must be nourished, and its children need not only
to acquire trust in themselves and the world and to grow up in freedom, responsi-
ble only to themselves and subject only to communication free of constraint, they
need also today to learn how to earn their daily bread for themselves tomorrow;
so the family must open itself to the functional, competition-oriented morality of
the outside world. In the nature of the case, the task of mediating between two
such moralities pulling in different directions is extraordinarily difficult. Since
this tension between the inner law of love and the outer law of occupational sur-
vival originated long before the recent tendencies to the juridicalization of soci-
ety, these latter can at most have exacerbated the problem, and changing them for
the better will not remove the pathologies altogether.
Reference to the double morality of the family leads to a still more funda-
mental source of doubt about the adequacy of Habermass diagnosis. In an earlier
piece, Work and Interaction, Habermas still regarded work as a fundamental
category. The Theory of Communicative Action, by contrast, not only opposes
Marxist overvaluations of work, which might well be sensible, but abandons the
category entirely, retaining for it at best a restricted place within the encompass-
ing concept of communication.
To be sure, any attempt in social philosophy to restore to work the major im-
portance it was once routinely granted can all too easily appear to amount to the
adoption of a research perspective long surpassed by the history of society and
theory. Having taken to heart the lessons of rising levels of welfare, Western soci-
eties have transformed themselves from worker societies into consumer and
leisure-time societies. All the same, work retains an essential function. Despite
the fact that an ever smaller proportion of the population works the land and is
therefore responsible for the actual sustaining of life, and despite the fact that not
only is the workweek ever shorter but longer periods of training and longer life
expectancy have combined to lengthen the amount of their lives that people spend
before and after their careers, it is still implausible to think that a society as a
whole could ever dispense with work. This truism holds all the more obviously for
the countries of the second and third worlds. In addition, it is clear to anyone free
of a certain narrowness of perspective that work enjoys a thriving reputation,
which finds expression, inter alia, in a profusion of verbal forms: in talk of work-
ing on a relationship or working toward consensus or the work of memory,
grief, or even sleep! Positions with high prestige in the economy, politics, and
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262 Categorical Principles of Law

science are linked to high-quality work and lots of it, and the composition of a
magnum opus requires a resolutely traditional work ethic.
Work deserves special attention for categorial reasons, as well as for its endur-
ing significance. It belongs to the class of intermediary phenomena that cannot
casually be placed on one side or the other of the divide between strategic ac-
tion and communicative action. Work offers the prospect of unifying diverse
aspects of rationality and practice into a human unity: a unity within a person
and a unity that promotes the development of personality. Habermas of course
knows from Hegel that in work human beings give form in three different
ways: they give form to (a) nature, (b) themselves, and (c) their relations with fel-
low human beings. Present both in the etymology of the word and various deriv-
ative senses is the idea that work is an activity conducted in the face of resistance
and therefore requires effort. In work, ones effort changes something, and in
changing it appropriates it, though not always in a possessive fashionthink here
of how something past can be appropriated by work that takes place in the pre-
sentand at the same time ones efforts effect changes in oneself. Finally, this
structurally complex process occurs often enough, directly or indirectly, in coop-
eration and competition with others.
Work is not merely an instrumental conduct aimed at sustenance or welfare. As
a medium of self-evaluation, it contributes to self-awareness, and as a medium of
evaluation by and of others, it is decisive for ones career and social recognition.
Because it involves divers forms of both cooperative and conflictual interaction,
work also opens up possibilities for self-realization and sometimes even for a
kind of self-presentation or performance that is not limited to the realm of the arts.
Far from wanting to rejuvenate the Protestant work ethic, I mean with these re-
marks to help us break out of a dichotomy that governs so much of our social life:
that between the Protestant work ethic and the hedonistic consumer and leisure-
time society. Work, with its potential for developing into forms that enhance lib-
erty and sensuous experience, could function as a counterforce to the social
pathologies of our world, its reification and cultural desolation. Granted, work
would be no more than one of many in a spectrum of counterforces, and in order
to play this role successfully, work would have to be improved in the various
ways that we vaguely summarize under the heading the humanization of the
work-world. The reduction in the proportion of work needed to secure basic sub-
sistence ought to facilitate the accomplishment of this task.
In short, whereas I maintain that a sustained turn to Kant is helpful in other
regions of social philosophy that unfold in historically informed ways, I would
urge a timely reformulation of thoughts from Hegel and Marx with respect to the
category of work.
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I close this line of criticism of The Theory of Communicative Action by reiterating

how clear it has become that, accurate though it is in certain respects, Habermass
diagnosis of the dangers threatening modern society is on the whole insufficiently
complex. Behind grand social theories with global ambitions, there remains a
fundamental question mark, even in the case of the theory of communicative ac-
tion. But work in science and philosophy derives its significance not only from
the plausibility of its proposed solutions. The manner in which it enhances aware-
ness of problems, and the perspectives for research that it develops and reveals,
are also relevant. To Habermas we owe, among other things, new ways of reading
the history of recent social theory as well as a certain discomfort with narrow dis-
ciplinary boundaries felt by social scientists and philosophers alike. The Theory
of Communicative Action is a significant work of social theory at the intersection
of philosophy and social science.

13.2. Stand-In or Judge?

With regard to the second aspect of his transformed critical theory, the new mod-
esty, Habermas urges a cooperative division of labor between philosophy and
the human sciences. The presently far more influential natural sciences go curi-
ously unmentioned. Even if current scientific practice encourages mutual isola-
tion of research areas in numerous ways, a simple recommendation in favor of
cooperation between disciplines will be endorsed universally. What matters,
therefore, are the details of Habermass concept of cooperation. In the words
Habermas uses for the title of the first chapter of Moral Consciousness and Com-
municative Action (1990), he conceives of philosophy as a Stand-In and Inter-
preter. He means the phrase to indicate his opposition to the more ambitious
claim of philosophy to be, not a mere stand-in and placeholder,1 but a place-
assigner and judge.
However pleasant it may be to look forward to and follow, with a more affir-
mative or a more critical reaction, the program of a transformed critical theory,
one cannot believe that a philosopher who rejects completely the more ambitious
tasks will still be capable of social critique. A more modest modesty is more
plausible. One rids oneself of Hegelian and Marxist absolutist ambitions, aban-
dons the sometimes apodictic and prophetic style of the older Frankfurt School,

1. Following Lenhardt and Weber Nicholsons translation of Habermas 1990b, stand-in here
translates Platzhaltermore literally: placeholder. Hence the wordplay involved in contrasting a
placeholder with a place-assigner (Platzanweiser, literally an usher).
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and, not least, approaches the task with caution; but one cannot refuse entirely the
office of place-assigner and judge.
Habermas first presented the modest program at the Stuttgart Hegel Con-
gress in 1981. In honor of the 200th anniversary of the publication of the first edi-
tion of the Critique of Pure Reason, the congress was devoted to the relationship
between Kant and Hegel. These two thinkers, in whose shadow or on whose
shoulders so much of philosophy after them stands, represent two different styles
of justification. With the brevity required of a conference presentation, Habermas
discussed both Kantian transcendental thinking and Hegelian dialectical thinking.
Habermas answered the Congresss central question, Kant or Hegel? with
neither-nor. Kant, in his transcendental deduction of the categories, had laid
claim to a kind of justification, or rational grounding, that granted to philosophy
the role of assigning to the sciences their appropriate place. But this Kantian am-
bition is, according to Habermas, just as exaggerated as that of Hegels specula-
tive dialectic, and for this reason philosophy since Kant and Hegel has ever more
contented itself with more modest functions, eventually reaching the point of
wanting entirely to liquidate its pretensions to being a rational enterprise. This last
stage takes a therapeutic form in Wittgenstein, a heroic form in Georges Bataille
and Heidegger, and a soterial form, examples of which are found in the significant
interpretive accomplishments of a hermeneutically accented neo-Aristotelianism.
Habermas recounts the unfolding of recent philosophy with a concision that
captivates at first glance but appears somewhat oversimplified upon closer in-
spection. Post-Hegelian philosophy should not be read as a linear development of
increasing modesty alone. Through Husserls phenomenology and Heideggers
analyses of Dasein, through the philosophy of science and analytic philosophy,
and not least through those thinkers in whose tradition Habermas stands,
Horkheimer and Adornothrough these and other figures, philosophy has in fact
gained a new importance over the relevant time span. In spite of these objections,
though, one can by and large agree with the nub of Habermass account.
To a point, Habermas follows Rorty, though the two part company when the
question is whether philosophy has played itself out entirely. Although Habermas
agrees with Rorty that philosophy cannot fulfill the role contemplated for it by
Kant and Hegel, he is not willing to follow him in abandoning the role of a
guardian of rationality. In opposition to this abandonment and to the present
tendency to take leave of the subject, Habermas grants to philosophy two impor-
tant, albeit vestigial, functions. No longer serving to lay an ultimate foundation for
science and culture, philosophy on this conception contents itself with the roles of
an interpreter and a stand-in that can perform useful work on behalf of empirical
theories with strongly universalistic ambitions (Habermas 1990b, 15).
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A stand-in performs a temporary service; he stands in for another, the real per-
former upon the appearance of whom the duties of the stand-in come to an end.
According to Habermas, philosophy prepares the way for pathbreaking theorists,
who insert a genuinely philosophical idea like a detonator into a particular con-
text of research (1990b, 15). As examples, he offers Freud and psychoanalysis,
Max Weber and the rationalization of the modern world, and Jean Piaget and the
theory of cognitive development.
The comparison to a stand-in, however, both underdetermines and undervalues
the function of philosophy. On the one hand, a scientist of genius can find that
new research perspectives are opened up by religious, artistic, or political ideas as
well as philosophical ones. So the role of a forerunner does not define philosophy
in particular. On the other hand, as Habermas himself allows, philosophy clarifies
the rational foundations of knowledge, action, and speech. This task, specific to
philosophy, is more ambitious than that appropriate for a stand-in. It cannot,
indeed, be carried out in isolation, but demands rather that there be cooperation
between philosophy and not only the human sciences but also, as Habermas
does not mention, the natural sciences and nonscientific areas of culture. In this
multilateral cooperation, however, philosophy is a full and equal partner.
The notion of reciprocal cooperation among philosophy, the sciences, and
other cultural domains is not only truer to the particular nature of philosophy
and its relations to its respective partners, it is better suited to promote successful
collaboration. And it is better suited to Habermass own guiding intention of for-
mulating a critical theory of society. Finally, the notion corresponds to what
Habermas actually does in the two most extensive pieces in Moral Consciousness
and Communicative Action, the first essay of which articulates the new modesty.
Habermas understands himself as a pathbreaking theorist who introduces a
philosophical idea, that of communicative reason, into the discussion surrounding
Lawrence Kohlbergs psychological theory of moral development. With respect
to the concept of reason, Habermas claims for himself the office of a judge: he re-
jects ethical skepticism and argues for an ultimate moral principle. And when he
discusses Kohlbergs work, he does so as an equal partner, able to use discourse
ethics to clarify the theoretical core of Kohlbergs developmental schema and to
make well-grounded suggestions for improvement.
The relationship of philosophy to great theorists in other disciplines yields a
still more exalted assessment of the former subject. For if, as Habermas supposes,
the great empirical theorists find their way prepared for them by philosophy, then
it is the philosophers who deserve credit for the pathbreaking that Habermas
ascribes to the empirical theorists alone. In all, we find a three-level relationship:
the great philosophers blaze a trail; the great empirical theorists work it up into
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a concept of empirical science; and the normal scientists turn it into a well-paved
thoroughfare. Since this image, like Habermass, oversimplifies matters even as it
displays them more vividly, ones preference for one or the other is not that im-
portant. A more appropriate medium for the task at hand is that of philosophy
itself, the medium of concepts, not images. And here we must agree entirely with
Habermas: philosophy clarifies the rational foundations of the various regions of
human culture.
Just this, though, is, more or less, Kants view. It is not at all clear that what
Habermas portrays as a heroic renunciation, philosophys retreat from the aspira-
tion to hegemony vis vis the rest of science and culture, is even necessary for
Kant. Habermass image of a placeholder varies the old image of philosophy as
an ancilla, a handmaid. Once, philosophy was the handmaid of theology; now it
is supposed to serve the special sciences. In neither case has philosophy laid
claim to a hegemony that needs now, finally, to be renounced. The Critique of
Pure Reason, after all, takes the long-established scientific character of mathe-
matics and natural science as a given, in virtue of which these enterprises can
serve as a model for philosophy. To the degree to which the first Critique
grounds or justifies the special sciences, it investigates only the question
whetherand, if so, whythe sciences are justified in sustaining a certain self-
understanding, one according to which they achieve rigorous objective validity.
Since, from a Kantian perspective at least, there is no need for philosophy to
renounce a hegemony to which it never aspired, it can instead raise the more pre-
cise question whether it must trail behind the special sciences, todays occupant
of the hegemonic role, or rather carry the torch in front of them. Does philosophy
merely hold a place open for a future occupant, or does it, by opening new theo-
retical perspectives, accomplish the essential preparatory work, without which
certain new orientations in science and scholarship would be inexplicable.
In the beginning of his discourse ethics, Habermas clarifies the phenomenon:
the object of ethics, he says, is the validity of norms. Next, he shows that a phi-
losophy that takes itself to be a guardian of rationality has something to say on
this subject: it has something to say because practical questions are susceptible to
true and false answers, albeit in not the same way as are theoretical questions.
Third, he proposes an ultimate criterion for moral norms, a moral principle that,
in the Kantian tradition, takes the form of a universalizability requirement. He
takes this principle to be a rule governing moral argumentation and discussion,
not a veiled principle of participation. In a fourth step, Habermas supports the
principle of universalizability with a cautious formulation of Apels transcenden-
tal pragmatic justification. This argument varies Descartess classic I doubt,
therefore I think, therefore I am. In its first part, it claims that anyone who dis-
putes the principle of universalizability is thereby engaged in argumentation,
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which means that argumentation is unavoidable, and in the second part it claims
that the principle of universalizability is always already presupposed by any argu-
mentation whatsoever. In consequence, Habermas does more than merely pro-
pose a moral principle; he seeks to justify it as unavoidable and without alterna-
tive. So this program of philosophical ethics turns out to involve anything but a
farewell to classical, and in particular transcendental, justificatory ambitions.
What Habermas in fact does is rehabilitate the aim of transcendental justification,
manifesting thereby once more the imprint of Immanuel Kant.
In a fifth step, discourse ethics is boiled down to the thin principle that only
those norms can claim to be valid that meet (or could meet) with the approval of
all affected in their capacity as participants in a practical discourse (Habermas
1990b, 66). Habermas concludes with a few brief remarks [on] Hegels critique
of Kantian morality, in order to provide a simple interpretation of the primacy of
ethical life (Sittlichkeit) over morality (44).
As a whole, Habermass sketch of a philosophical ethics is pedagogically and
philosophically impressive. Still, there is a crucial objection, even apart from the
contradiction embodied in the rejuvenation of an aspiration to fundamental justi-
fication, the contradiction between Habermass program, according to which phi-
losophy is merely a stand-in, and his practice, according to which it is a judge.
The objection can be expressed by means of the question, Is the ethics on offer
here really a discourse ethics? Habermas would reply in the affirmative on the
basis of his thin principle, according to which norms are moral only if they are
agreed to by all to whom they pertain. But the only norms that could be agreed to
by all interested parties are those that are strictly universalizable. So the criterion
of the moral lies not in discourse but in the rule of argumentation that Habermas
himself recognizes as a moral principle, albeit only in the sense of a bridge prin-
ciple: the principle, namely, of universalizability. The logic of the legitimating
argument shows the priority of universalizability over discourse, a priority that
is, once again, Kantian in character.
Habermass frequent references to the principle of universalizability as a con-
sensus-enabling bridge principle bring him close to this insight, since, if univer-
salizability makes consensus possible, it has primacy over any actual agreement.
But universalizability, as the condition that makes possible agreement by all, is
not a bridge that leads to something else, the real principle; it is rather the pillar
on which the whole of morality rests. For all the use Habermas makes of concepts
and logical structures derived from recent work in English- and German-speaking
philosophy, his ethics is ultimately a rehabilitation of Kants ethics.
Although Habermas in essence reconstructs Kant, he is in one respect more
modest than his mentor. According to Kant, the categorical imperative is able to
certify as moral certain rules of conduct, maxims as he calls themfor example,
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268 Categorical Principles of Law

rules enjoining honesty, the provision of help to those in need, or the securing of
the elementary conditions of effective agencyand disqualify as immoral certain
others, such as those permitting cheating, indifference to urgent need, or disdain
for the lives of others. Habermass discourse-theoretical turn entails that only an
actual discussion can identify particular norms as ethical or not. But not only is the
alleged formalism of Kants theory thereby magnified, but the whole idea is coun-
terproductive for discourse ethics itself. If discourse is to be capable of functioning
as the arena in which moral norms are examined and assessed, then the partici-
pants in such a discussion cannot be permitted to lie to each other, trick each other,
or kill each other. Discourse, therefore, presupposes the recognition of just such
principles as these, which can be established as morally required with the help of
Kants categorical imperative and which, as principles that are not merely merito-
rious, have the status of kategorische Rechtsprinzipien, categorical principles of
law and right conduct. And if ones principle of morality is not able to justify such
elementary political principles as those embodied in human rights, a critical theory
of society would also be made impossible. Apel, to whom Habermas dedicates his
volume with thanks for three decades of instruction, is open to the idea of expli-
cations of moral norms that are independent of actual discourses, and seems in this
respect closer both to Kant and the truth.

13.3. Prejudices of Discourse: A Reply

The fundamental thesis of discourse ethicsthat social matters are not external to
ethics, that in fact the whole moral world is ultimately to be conceived as nothing
other than claims to reciprocity that have their origin in the communicative com-
munity of rational beingsis developed with diverse arguments and from ever
new perspectives. It is especially provocativeand quite reasonably contested
in the area of personal morality, that is, with regard to the very concept and crite-
rion, and not merely the formation, of a moral character, to questions and deci-
sions of personal conscience, and, if they exist, to obligations people have to
themselves. Discourse ethics faces fewer difficulties, but also offers less provoca-
tive claims, where the object of morality is already social in nature, in an ethics of
law and the state.
The differences between discourse ethics and other, competing positions are as
a rule rather subtle. At first glance, a condition such as the permission of each
to articulate his needs appears to belong to discourse ethics, but in fact even
utilitarianism fulfills it. For the condition can be interpreted as a procedure opened
up by the demand that the needs and interests of all concerned be given equal
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consideration. Those who aim to satisfy the utilitarian principle of achieving the
greatest possible collective well-being will begin with an opening move that is
thoroughly democratic in character, and this opening move is as good as identical
in any and all ethical views.
Like that of Rawls in A Theory of Justice and that of discourse ethics, my own
position, articulated in Political Justice, distinguishes itself from utilitarianism
only in the further continuation of the procedure noted above. All three of these
positions belong to those universalistic ethics whose progenitor is Kant, not
Bentham. As it did apropos Rawls and Apel, the detailed discussion bears, ac-
cordingly, the marks of a family quarrel.
Controversy begins with the very description of the respective positions. In a
review article published in 1989, Habermas represents the project of Political
Justice with sympathetic understanding, leavened by candid skepticism. Haber-
mass interpretation of Political Justice as utilitarian can be left to one side,
since its definition of justice as distributive advantage (PJ 37) is developed out
of a critique of utilitarianism (PJ 3940). Habermass more important worry
amounts to the charge of insufficient attention to intersubjectivity. He criticizes
the individualistic presuppositions of Political Justice (Habermas 1989, 325),
complains of a deficiency of democratic theory (327), misses the perspective of
a hierarchically layered intersubjectivity (322), and takes it to be a virtue of his
own discourse-ethical position that it does not prejudice the yes/no statements of
those participating in the discourse.
Because no well-developed ethics of the law and the state had yet been devel-
oped from a discourse-ethical perspective, Political Justice dealt with Apel and
Habermas mainly in passing. The book does, however, deal explicitly with the dis-
course-ethical principle of the capacity to elicit universal consensus (PJ 46), and it
also, in the context of strategies of political justice (300 ff.), calls for moral-
political discourses (315 ff.). From Habermass critique, I take away, among other
things, a request to determine more precisely the relationship between my views
and those of discourse ethics. I will suggest in response an understanding of the
situation that diverges somewhat from Habermass. In the first place, Political
Justice does contain a hierarchically layered intersubjectivity, albeit one devel-
oped in a manner alien both to traditional and to speech-pragmatic theories. This
new strategy of legitimationintersubjectivity as transcendental exchangeis,
second, motivated by considerations specific to an ethics of law and the state. It
also sheds a different light on the individualistic presuppositions of the view that
understands these presuppositions not in a substantial but only in a legitimation-
theoretical way. The principles of justice legitimated by the theory of transcenden-
tal exchange have, finally, for juridical-practical discourse the status of prejudices.
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270 Categorical Principles of Law

1. Intersubjectivity as Transcendental Exchange

Intersubjectivity in general is as intuitively plausible as it is difficult to cash out

argumentatively, especially insofar as it pertains specifically to law and right. Dis-
course ethics itself confirms the difficulty through an open question. When Haber-
mas insists that a contested practice is valid only when it can be agreed to by all
those affected themselves (Habermas 1989, 322), he articulates a criterion com-
mon to the whole family of Kantian ethical theories. Kant himself speaks of the
the privilege to lend obedience to no external laws except those to which I could
have given consent (PP VIII:350/93). Unanimity is part and parcel of Rawlss
metacriterion of justice (TJ 105-9), and, as noted above, Political Justice appeals
to the criterion of capacity to elicit universal consensus and agreement (PJ 85).
The individual family members of the Kantian fold do not distinguish them-
selves one from another until the question is posed, What form of argumentation
is capable of resolving disputes over the validity of practices? At first glance, dis-
course ethics appears to evade the question, but the truth is that it believes itself
capable of reformulating it. Instead of identifying particular arguments, discourse
ethics states the conditions that must be fulfilled by the mere argumentation situ-
ation. In particular, these conditions require that all participants take up the per-
spective of each of the others (Habermas 1989, 322). This demand, borrowed
from G. H. Mead, transforms the multiplicity of perspectives from one external to
the individual participants in the discourse to one that is internal to each. A social
public discourse is, surprisingly enough, turned into an inner personal dis-
course. But does a dialogue that each engages in with himself count as mono-
logical, or private, or as communicative, as an anticipation of a social dialogue. I
conjecture, in any case, that the inner dialogue is supposed to unearth suggestions
for resolving disputes about practices, on the basis of which a social dialogue
would, in a second phase, deliver a consensus decision. But if the suggestions for
resolution are the same for each party to an inner dialogue, the genuinely social
dialogue would become nothing more than an acclamation of the inner one.
This suggested reconstruction conveys a doubt about the self-understanding of
discourse ethics. According to Habermas, the ideal-hypothetical adoption of roles,
which can in principle be accomplished on ones own, is to be transformed into a
public institution. It is more convincing, though, to understand the public dis-
course neither as a transformation nor a substitute, but as an addition. Personal
and social dialogue supplement each other reciprocally. We need not choose be-
tween them as between dichotomous alternatives. In the interplay between these
two dialogues, the inner one seems, moreover, to bear the greater weight, since
the social dialogue is perhaps left with the function only of confirmation. This
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evaluation of the relative importance of the two forms of dialogue is, however, not
essential to the argument from the open question. For the point of that argument is
to note that both sides or phases of Habermass process, the social and the per-
sonal, leave ineluctably open the question of what kind of argument has the power
to resolve the relevant disputes and the competence to decide the relevant issues.
At issue in the case of the object of discourse in question, contested practices,
is, in the end, needs and interests. Political Justice tries to resolve one part of the
dispute by discovering, in a first legitimating step, needs or interests that meet a
singular condition: that of being particular and yet universally valid. The only
needs that can fulfill the condition are higher-level needs; strictly speaking it is
only those highest-level needs that constitute the condition of the possibility of
lower-level needs and thus are indispensable for their fulfillment. In relation to
human interests and capacities for action, they are transcendental interests, and
they are essential elements in the constitution of a practical subject.
Transcendental interests, though, do not on their own justify societys declar-
ing itself accountable and intervening juridically in the lives of its citizens, which
intervention is always accompanied by the authorization to use force. In order
validly to claim that they are capable of supporting a conflict-resolving argument
in a fundamental discourse about the law, these interests must meet an additional
condition that would be welcome to proponents of discourse ethics. Thus, in a
second legitimating step, it is affirmed that these interests are distinguished by
their inherently social character. The transcendental interests that bear on juridi-
cal-practical discourse are those that can be realized only in and from reciprocity.
The model of a reciprocal giving and taking is an exchange, for which reason the
immanent mutuality based on transcendental interests can for short be called a
transcendental exchange. It should go without saying that a number of associa-
tions conjured up by the notion of an exchange in the ordinary world must be over-
come.An exchange at the transcendental level must not be understood too narrowly,
as merely an economic process, nor too narrow-mindedly, as a process involving
the trading of equivalents for equivalents, nor too shortsightedly, as exclusively an
immediate giving and taking. Indeed, to regard the concept of a transcendental ex-
change from the point of view of the history of its development is to discover affini-
ties with what Hegel calls the education of consciousness. In his most fundamen-
tal self-interest, man discovers his dependence on the interests of others.
That which other language games call reciprocity or exchange, Habermas
calls intersubjectivity. At issue with respect to the object of a transcendental ex-
change, transcendental interests, is the constitution of practical subjectivity. In
the language of discourse ethics, therefore, transcendental exchange amounts to
nothing other than this: the constitution of practical subjectivity is, exclusively or
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272 Categorical Principles of Law

essentially, tied to a transcendental reciprocity, a transcendental intersubjectivity.

Because of this, I do not, as Habermas makes it sound, hold natural justice to be
the neutral business of a third person (Habermas 1989, 322). Transcendental
exchange fulfills Habermass intersubjectivity condition; it requires a first-per-
son-plural perspective. Habermas fears that my view encourages the disappear-
ance of the enabling conditions of justice behind its constraining conditions
(1989, 325), but the truth is that what in Political Justice are developed under the
slogan natural justice (PJ 248) are, if only by way of example, the fundamental
enabling conditions. These are the conditions that can only be realized in social
form, and so, in agreement with Habermas, subjects are from the first socially
constituted (Habermas 1989, 325).
Social-enforcement mechanisms take on the task of providing security in order
to prevent the intersubjective constitution of the practical subject from being ren-
dered either impossible or overly threatened. Social enforcement is justified be-
cause and only because this security benefits everyone, and indeed relates to
interests that are indispensable to the constitution of the practical subject as such.
We might here have a difference between Habermas and me that pertains not
only to the kind of argumentation employed but to the conclusions reached. For
Habermas, subjects have already constituted themselves socially [before] social-
enforcement mechanisms recoil upon them (Habermas 1989, 325). According to
Political Justice, by contrast, social-enforcement mechanisms neither precede
nor follow the transcendental exchange; one simply buys the advantage of social-
ization and its enablement of practical subjects at the price of constraining condi-
tions. In this price, I find an argument against a radical anarchism.
As far as the more detailed determination of the constraining conditions is
concerned, the State of justice2 (PJ 281 ff.), I believe neither that it makes the
political system into the center of the consciousness of society as a whole and
the self-programming agent of justice, nor that it is the prisoner of the natural-
law model of the whole and its parts (Habermas 1989, 327). The merely sec-
ondary and subsidiary legitimation of the state undertaken in Political Justice is
in fact a plea for greater modesty on its part. I hold in any case that the so-called
disenchantment of the state, the functional differentiation that renders the politi-
cal system a subsystem alongside other, relatively autonomous systems of justice,
is not an invention of our epoch. Differentiation among subsystems might be
more pronounced today than it was earlier, but a recognition of the independent
importance of, for example, the economy is much older. Aristotle, moreover, had
2. The uppercase initial letter in State is meant to indicate that what is intended here is the state
in the sense of a political institution, not in the sense of a general condition, as in a state of affairs.
In Political Justice itself, Cohen translated this phrase as just state.
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already, under the title of the theoretical life, claimed for philosophy and science
an independence from the life of the polis; in fact he argued for a priority of
the former over the latter. The presence in the legendary Hippocratic oath of a
preponderance of professional regulations in addition to moral principles
licenses here as well an inference to the existence of a self-conscious indepen-
dence. In short, the historical dimension, examined in sufficient depth, calls into
question the self-overestimation and dramatization of the present (see 3.1 above).
Neither, finally, should we, under the spell of the disenchantment thesis, underes-
timate either the functions of the state that it continues to exercise or the diversity
of new tasks that it faces. The means by which governments exercise power
might indeed change over time, and the state today perhaps makes much less use
of direct, executive force, but state legislation today still sets important frame-
work conditions for the various relatively autonomous subsystems, such as the
spheres of economic life, labor, the family, education, and scientific and scholarly
research.

2. On Legitimation-Theoretical Individualism
Since the legitimation of the state offered in Political Justice is oriented to the ad-
vantage of each and everyone, it can certainly qualify as individualistic (Haber-
mas 1989, 325). In the first instance, though, what is individualistic is only the
legitimation perspective, and this, at least within the framework of the ethics of
law and the state here under discussion, counts in its favor. Because the force
of law affects each member of the group, a collective advantage is not sufficient
for its legitimation. In order to avoid countenancing what utilitarianism in princi-
ple countenances, fundamental privileges together with complementary discrimi-
nation, the advantages conferred by the presence of law must redound not to all
collectively but to each distributively. Discourse ethics too, for good reason,
grants the value of this distinction. For when it demands the agreement of all af-
fected, it naturally understands the expression all (or, alternatively, universal)
in a distributive, not a collective, sense. Consequently, in order to answer the
open question of which kind of argumentation deserves the endorsement of each
and everyone, discourse ethics also must identify some kind of advantage for
each affected party.
Habermas finds in Political Justice a deficiency with respect to democratic
theory (Habermas 1989, 327). On the contrary, the legitimation-theoretical indi-
vidualism corresponds to the distributively universal consensus and therefore
amounts to something fundamentally democratic: juridico-political relations can
in the end be legitimated only by the agreement of all concerned.
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274 Categorical Principles of Law

One could, as long as one was considering legitimation only up to but not in-
cluding transcendental interests, regard the individualism of Political Justice as
substantial as well as legitimation-theoretical (Habermas 1989, 327). Transcen-
dental interests, however, are shown to have an immanent reciprocity, which
means that the legitimation-theoretical individualism is genuinely open with re-
spect to discussion of intersubjectivity. If one were so inclined, one could put the
liberal intellectual mold of legitimation-theoretical individualism to use in justi-
fying a nonliberal (or, at any rate, not simply liberal) theory of the state.
The concept of a transcendental exchange not only takes my view beyond a
possessive individualism (Habermas 1989, 325), it also takes it beyond Kant as
a source of inspiration (327). According to Kant, law makes possible subjects
able to act in a field of social conflict; according to Political Justice, the funda-
mental layer of law consists of those conditions of practical subjectivity that are
in themselves intersubjective. Political Justices move beyond Kant includes also
its openness, in spite of fundamental objections from Kant himself, to the tasks of
the social-welfare state. Matters are otherwise as far as Kants concept of a cate-
gorical imperative of law and right is concerned. In my view, this basic concept
defines the fundamental task of any ethics of law and right, and for this reason
Political Justice avails itself of it (PJ 4043).

3. Transcendental Exchange as Prejudice

Transcendental exchange designates the minimal conditions of legitimate law.
The principles developed (albeit only in a preliminary manner) under he heading
natural justice do amount to prejudices in the sense that they are decisions al-
ready made vis vis any particular legal order. The catalogue of rules that Haber-
mas, following Robert Alexy, draws up for discourse ethics has, it should be
noted, the same legitimation-theoretical significance. The logical-semantic and
the procedure- and process-related rules involved are presuppositions, which,
while they can be made the theme of a discussion, are not open to discussion in
the sense of being optional features of discourse.
In contradistinction to what he finds in Political Justice, Habermas calls for
real-life argumentation relevant to actual conditions. But for discourse-ethics
itself, this demand is of diminished importance with respect to the self-reflection
needed to establish the presuppositions of argumentation as such, and the same
applies to the explication of both transcendental and social interests. The demand
for the sort of argumentation called for by Habermas is, to be sure, entirely legit-
imate; and at the present time, for example, non-Western cultures have the right to
secure for themselves those principles of justice whose recognition is necessary
for the moral legitimation of a juridical order. Structurally speaking, though, this
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real-life argumentation is simply a repetition of the legitimation strategy that

responds to the open question of which kind of argumentation deserves the en-
dorsement of each and everyone.
Two fundamentally different levels are to be distinguished within juridico-
practical discourse. At the first, fundamental level, elementary, minimal condi-
tions of a legitimation of law and the state are designated. As transcendental in-
terests that are at the same time social interests, these are preconditions for the
process of mutual agreement and unification among subjects capable of speech
and action. They are no longer dependent upon any actual agreement, and therein
lies a second element of democratic theory in Political Justice. The principles
arrived at in accordance with the first element, democracy qua fundamental prin-
ciple of legitimation, are formulated as inalienable preconditions or prejudices of
a second element of the theory, democracy qua constitutional principle.
These second-tier principles have the same significance for the juridico-
practical discourse. Here, another group of prejudices is added to the presupposi-
tions arrived at by Habermas (1990b, chap. 3) via an argumentation-theoretical
route, with the result that discussion whether to acknowledge the transcendental-
cum-social interests of natural justice is no longer a morally live option. Haber-
mass discourse ethics has not, as yet, pronounced upon the nature and status of the
form of existence appropriate to the acknowledgment of such interests. Because
they are indispensable for the constitution of practical subjects, which subjects
nevertheless themselves pose a threat to their recognition, these transcendental-
social interests deserve the protection of a juridical order capable of enforcing its
dictates.
In order to identify certain presuppositions as indispensable, discourse ethics
argues by appeal to the notion of a pragmatic contradiction, understanding by that
the sort of incoherence that results from arguing against presuppositions that are
in fact required by ones own argumentation. Now, although one can certainly in-
terpret the role of the prejudices just discussed in terms of an argument from prag-
matic self-contradiction, the contradiction exposed must be located at a deeper
level than that to which discourse ethics assigns it. It is not just those who argue
who presuppose the prejudices in question, and it is not simply in virtue of argu-
mentation that they are presupposed. The prejudices are both more elementary
than those discussed by discourse-ethics and also specific to ethics; they are con-
ditions of the possibility not merely of argumentation but of the practical subject
as such, of the capacity to act at all. Certainly, for human beings as linguistically
competent creatures, the conditions of argumentation are at the same time condi-
tions of the capacity to act. On the one hand, though, the conditions of practical
subjectivity as such include more than the conditions of argumentation, and on
the other, as far as practical, rather than theoretical, subjectivity is concerned, it is
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276 Categorical Principles of Law

not argumentation as such but its significance for the capacity to act that is
relevant,
Turning now to the second of the two levels of discourse distinguished above,
the level of real-life processes of understanding and unification, matters are quite
different. The task that Habermas finds missing in Political Justice is, appropri-
ately enough for a foundational study, only handled prospectively. Habermass
questions(1) how, under changing historical challenges, does one manage to
distinguish specific fundamental rights? and (2) by what procedure can one sat-
isfy a concrete need for regulation in a way that [grants to the corresponding]
laws the presumption of legitimacy? (Habermas 1989, 326)are answered with
Strategies of Political Justice (PJ 300 ff.). Indispensable for these strategies are
those moral-political discourses (PJ 315 ff.) that consist of real processes of
mutual understanding and unification operating against the background of the
elementary principles of justice. In Political Justice, these processes represent
a third aspect of democratic theory.

13.4. Between Facts and Norms

Between Facts and Norms builds on Habermass familiar fundamental concepts

of communicative action and discourse. Despite this continuity, the book intro-
duces as well a noteworthy change of orientation. From the point of view of first-
generation critical theory, the work marks a decisive break, and from Habermass
own point of view, it amounts at least to a shift of accent. Heretofore, critical the-
ory had concerned itself with social theory and the philosophy of history, with the
critique of knowledge, science, and technology, as well as with literature and
music. Law and the state do not figure prominently on the roster of themes, and
when they do receive attention, it is in the disfigured shape of the authoritarian
state (Horkheimer 1942), not in the basically successful form of constitutional
democracy. It is symptomatic of this neglect that Franz Neumanns study The Gov-
ernance of the Rule of Law (1936, rev. 1980) Has no place in the mainstream of
critical theory, and this neglect is not remedied in Between Facts and Norms,
which does not mention Neumanns book, although it is one of the few works
published that contributes significantly to a theory of juridically organized
Herrschaft.
Once one pays attention to the Marxist roots of critical theory, one finds un-
derstandable its deficiency with respect to the theory of law and the state; but the
deficiency is nonetheless astonishing, since a theory of modernity must surely
make theoretical room for the form of social self-organization that has conclu-
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sively established itself in the modern age, the form embodied in law and the
state. Today, a social theory must also make clear why, in spite of Marxs progno-
sis, the state has not turned out to have been condemned to wither away but on the
contrary enjoys an overwhelming consensus in its favor. Both goals are achieved
when socialization in the form of the juridical state combines with the moral-
political aspirations of modernity, thus bringing forth the democratic constitu-
tional state. Even if the precise tasks of such a state are still disputed, there is
virtually uncontroversial unanimity with regard to such basic elements as the rule
of law, the protection of liberty rights, democracy and the division of powers,
and, within limits, the social-welfare state and responsibility for the environment.
Astonishment at the older critical theorys deficient treatment of the theory of
law and the state is provoked as well by reflection on the backgrounds of its chief
architects. Adorno, Horkheimer, and Marcuse had to flee a state that violated its
most elementary responsibilities with regard to the rule of rightful law. They
obtained right of abode in a society that on the one hand exhibited very clearly the
pathologies they had diagnosed, a capitalist economy and a flagrant inequality of
opportunity, but on the other hand guaranteed something that, had it been granted
in Germany, would have made exile unnecessary: life, limb, and the right to cul-
tural individuality.
With Between Facts and Norms, this thematic deficiency has been conclu-
sively overcome. A theme that, though absent from the Legitimation Crisis
(1973/1975),3 had already begun to appear in the earlier Structural Transfor-
mation of the Public Sphere (1962/1991) and that was more clearly present in
The Theory of Communicative Action has now become a guiding thread. With
the help of discourse theory, Habermas reconstructs the normative content
of the freedom-fostering institutions of states under the democratic rule of law
(BFN xl).
Habermas appeals to a theory-historical line of development in his attempt to
explain how a theory that understood itself as part of the intellectual avant-garde
could neglect this topic. Beginning with the society-as-nature doctrine of the
Scottish moral philosophers Adam Fergusen and John Millar, and progressing
through Adam Smiths articulation of political economy and up to Marxs critique
of political economy, so the story goes, the role of the law within social theory di-
minished apace. At the end of this process of the disenchantment of the law by
means of social science (and I note that Neumann, in part 2 of the work cited
above, had already employed a similarly Weberian turn of phrase), the erstwhile

3. The first date indicates the year of the original publication in German, the second the year of the
English translation found in the bibliography.
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key category of social analysis had sunk to the level of an epiphenomenon of

anonymous nomological forces (BFN 2.1).
This development did indeed take place, but its causes need to be explored in
more precise detail. For in part, as in the case of Adam Smith, we are talking
only about a thematic differentiation and specialization; and there is moreover in
the basic concept of Scottish moral philosophy, that of moral sentiment, the
suggestion of a shift in emphasis from the institutional to the personal realm.
Above all else, though, it remains true that the disenchantment, the scholarly-
philosophical emasculation of law and the state, did not go uncontradicted.
Hegel, while he is prompted by the insights of political economy to modify
Kants doctrine of law and right, sees no reason to give up on the philosophy of
law and the state as such. For his part, Marxs contemporary John Stuart Mill
finds nothing standing in the way of developing ideas both about political econ-
omy and about law and the state. Last but not least, we find that the thinkers
appealed to by Habermas, namely Durkheim, Max Weber, and Talcott Parsons,
combine their social-scientific outlook with an openness to the achievements of
law and the state.
Traditional critical theorys deficiency with respect to the theory of law and the
state has causes other than those proffered by Habermas. Pre-Habermasian criti-
cal theory lacked the appreciation of the democratic constitutional state from
which could have emerged what Durkheim had already undertaken to provide at
the turn of the twentieth century, a social theory of democracy. Two elements are
necessary for such a theory, and traditional critical theory closes itself off from
both of them. The elements in question are connected in that the one, pertaining to
the fundamental concepts of a social theory, leaves its mark on the other, the sort
of knowledge sought by the theory.
On the one hand, a neither exclusively nor primarily negative concept of social
Herrschaft is required. Since Herrschaft pertains to any sort of government by
law and the state at all and not just to predemocratic communities, a concept that
entails a negative view of Herrschaft as such must inevitably lead to a social-
theoretical ideal of freedom from Herrschaft as such, and that leaves no room for
the political ideal approached by constitutional democracy. Where there is no
neutral concept of Herrschaft, a genuinely political utopia of just rule is neces-
sarily, on internal grounds, displaced by the unpolitical utopia of anarchy, the
literal meaning of which is simply freedom from Herrschaft. If the hunch that
constitutional democracy approaches the ideal of just rule is true, then, to turn
to the second element noted above, the theory of this form of state will, vis vis
traditional critical theory, exhibit an expanded (and even new) sense of the sort of
knowledge sought. The theory of constitutional democracy will require a greater
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degree of affirmation of what actually exists than is conceded by a critique

interested chiefly in the emancipation still to be realized.
Habermas now frees critical theory from the earlier fixation with a primarily
negative concept of Herrschaft and a primarily negative critique of society. But
before developing his own position, he takes up a second line of development,
the return of natural law [Vernunftrecht] and the impotence of ought (BFN
2.2). What Habermas has in mind here is John Rawlss theory of justice together
with the international discussion it has provoked. Habermass view that this de-
velopment manifests a surprising reaction [to the] sociological undermining of
the normativism of modern natural-law theories (BFN 56) allows him to craft a
dramatic presentation reminiscent of Hegels dialectic. He composes his work as
a synthesis that eliminates the weaknesses of two theory-historical developments
while joining their strengths. From the one line of development, Habermas
wants to take over the social scientific appreciation of the institutional dimen-
sion, albeit without an emasculation of the concept of what is right and lawful.
From the other line of development, he picks up the acknowledgment of the
standpoint of moralityor, more precisely, of justicebut without a deficiency
with respect to the institutional dimension. From the unity of these two view-
points comes the dual perspective announced by the works title. Following Max
Weber and Talcott Parsons, Habermas develops a theoretical possibility accord-
ing to which one can both take the legal system seriously by internally recon-
structing its normative content, and describe it externally as a component of so-
cial reality (BFN 43 [the task is carried out in 2.2]). The Facts part of the
title, then, refers to the law qua component of social reality, and the Norms
part to the expectation of legitimacy. In the first case, regarding the establish-
ment and enforcement of law, the philosopher adopts the stance of an observer;
in the second case, with respect to the laws normative content, he acts as a par-
ticipant in the juridico-political order.
As the argument unfolds, however, it becomes apparent that Habermas intends
more than this. The space between facts and norms is a place of tension that
manifests itself in three dimensions: in the dimension of juridical validity, it is
the tension between the positivity and the legitimacy of law; within the system
of rights, it is the tension between private and public autonomy; and with respect,
finally, to political Herrschaft, it expresses itself as the tension between a threat
of sanctions backed by instruments of force held in reserve [and the fact that]
this force is authorized by legitimate law (BFN 136).
Habermass diagnosis of a threefold tension can be fully endorsed, but matters
are not so clear with respect to the reconstruction of the history of social theory
that serves as the springboard to his own theoretical project. However much, as a
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280 Categorical Principles of Law

philosopher, one values dramatic presentation in Hegelian style, one must, in the
current case, remain skeptical about the view that the dual perspective under dis-
cussion is generated by deficiencies in each of the theory traditions noted above.
In fact, it is other theoretical projects that are pursued in those traditions. Kant, for
example, never doubts that the law can be described as a component of social re-
ality, but neither is he interested in that fact. Perhaps Habermas would retort that
Kant has to be interested in this, since without the view of law as an empirical
action system, philosophical concepts [of law and justice] remain empty (BFN
66). But, referring as they do to something that is at the same time empirical and
yet more fundamental than anything envisaged by Habermas, namely, to the an-
thropologically relevant fact that numerous agents with the capacity to act share
with each other a spatially limited territory, the relevant Kantian concepts are
not empty.
In addition, Mills work shows us that the epistemic interest appropriate to po-
litical economy and social science is fully compatible with a theory of law and the
state, whereas Rawlss extraordinary impact is owed, not to the overcoming of a
prior deficiency with respect to the normative theory of law as such, but rather to
three other factors.

1. If the overcoming of a deficiency in normative theory were decisive for Rawls,

he would have to provide a critique of legal positivism, whereas he instead
criticizes another normative position, utilitarianism, arguing that it is norma-
tively inadequate.
2. If Rawlss theory were marked by an impoverishment with respect to eco-
nomic and social scientific perspectives, its interdisciplinary significance in
just these areas would be scarcely understandable. In fact, the theory can be
discussed with particular intensity in economics and related sciences because
it speaks their language, that of decision theory and game theory. Moreover,
the claims about primary social goods offer at the very least a promising point
of departure for an empirically rich social theory. And even in the case of
Kant, it is not true that an attention to Vernunftrecht4 blocks the social
scientific dimension from view. Kant refrains from asserting an either-or
and holds instead that both perspectives, that of reason and that of the empiri-
cal realm, are equally justified. Competition arises only when the partisans of
one of the perspectives overrates it and tries, for example, using empirical
concepts to discern the rational ambitions of the law or, using concepts of rea-

4. Translated natural law by William Rehg, it would be rendered by me as reason-based law

and right.
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son alone, to understand the social function and historical organization of the
law. Kant does neither; he commits no naturalistic fallacy of inferring an ought
from an is, and no normativistic fallacy of inferring an is from an ought.
3. Not least of the reasons for the attention paid to Rawlss work is the fact that
within American debates about the state, he opposes a constricting liberalism
and argues instead for the social-welfare state.

Skepticism about Habermass reconstruction of the history of the relevant the-

ory is also called for when he rehearses the charge, familiar since Hegel, that a
reason-based conception of law and right falls victim to the impotence of
ought. Kants Doctrine of Right deals precisely with the power of ought, both
with the authorization to enforce that belongs conceptually to the law as such and
with its public protection, which is to say, its enforcement by means of a state.
Oughts, however, are only entitled to these authorizations for use within a well-
bounded domain: that of seeing that people receive what, from the point of view
of reason, they are owed. The authorization to enlist force on its side, in other
words, obtains only with respect to the realm of reason-based law and does not
extend to that of the rationality or morality of meritorious supererogation.
According to Habermas, modern law steps in to fill the functional gaps in so-
cial orders whose integrative capacities are overtaxed; it provides insurance
against the damage wrought by the failure to achieve social integration by other
ways and in other places (BFN 42). Reason-based morality (Vernunftmoral) is
responsible for the excessive demands on traditional institutions and the conse-
quent failure of social integration because it contributes to the dilapidation of
those organically organized institutions, leaving only the moral subject as such,
which is not able on its own to achieve any reliable integration. Two objections to
this functional determination raise their heads at once.
First of all, Habermas fails to consider where the law operates in premodern
contexts. In fact, the phenomena regulated by law prove to have been remarkably
constant for a very long time. For over three and a half millennia, written laws
(chiseled, for example, into a block of black rock) have regulated most of the
areas of life that are so regulated today. In the codex of Hammurabi, we find de-
terminations of marriage and family law, contract law, property law, and even the
protection of animals. If we focus on criminal law, we find the now familiar
classes of offenseagainst life and property, against honor and sexuality, against
arson and falsification of weights and measuresto be common to virtually all
cultures and civilizations. And if we think of prohibitions against the poisoning of
wells, we will see that even the idea of an offense against the environment is not
entirely new. We can generalize and assert that even if the need for legal regula-
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282 Categorical Principles of Law

tion has increased in the modern age and has taken on new tasks, especially in the
areas of economic and social law, including labor law, it remains true that in the
many areas of life noted above, the law has been active since time immemorial; in
civil law as in criminal, and even in constitutional law, there are a host of domains
that never cease to be regulated by law.
Second, Habermas, as indicated by the concept of an excessive demand,
thinks that the law insinuates itself in cases marked by the destabilization of once
stable social orders. But marriage and family law, and contract and commercial
law, are found even in solidly constructed societies with stable marriage and fam-
ily relations, along with equally stable institutions of exchange; and protection of
life and property is not needed only where institutions have become dilapidated.
The concept of an excessive demand is, however, fitting if it is understood, not
as Habermas does, in the context of social history, but rather anthropologically.
However it is understood, whether as instinct-binding or as openness to the world
or as the capacity for speech (the relevant controversies are here of secondary
importance), the human condition exposes individuals to a wealth of options that,
as individuals, they are not always able to handle. A tendency to suffer from
excessive demands is not something that emerges only with the modern subject; it
belongs to man as man. So it is the human condition itself, and not only the
problems of organizing and governing complex societies, that prompts the intro-
duction of civil and criminal law. Criticism of reason-based morality is to be
countered with the observation that such a morality, far from destabilizing natu-
rally grown institutions, can even contribute to their stabilization. It can do this,
as it does in the case of Kants model example of a morality of law and right,
by providing moral legitimation for such fundamental institutions as marriage,
the family, property, and the state in general, and beyond this for an international
juridical community.
As far as the law is concerned, Between Facts and Norms recognizes two sorts
of moral resource: social solidarity (78, 3637) and justice. The relationship
between these two resources is not made fully clear. According to the books
preface, the task of imposing social and ecological constraints on capitalism
(BFN 13) falls to social solidarity. That this task deserves top priority on the
agendas of both domestic and international policy is intuitively clear. It is ques-
tionable, however, whether the principle of solidarity, the gender-neutral expres-
sion for fraternity, is up to the job. It is not just that there is a danger of confusing
an intuition with a fully elaborated argument; there is also a conceptual difference
blurred by the intuition itself. Something demanded by solidarity might belong to
the realm of supererogation, as does the provision of aid with no context of reci-
procity, and in that case it is not something for which a public body authorized to
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use force is responsible. Or demands of solidarity might be akin to the provision

of aid in the context of a reciprocity that is partially simultaneous and partially
delayed and executed in stages over time, and in that case it belongs to the realm
of what is owed, and the corresponding tasks are better ascribed to reason-based
right or justice. Or perhaps the principle of solidarity falls under a third modality
and into the domain of the juridically permitted, which is neither clearly some-
thing owed nor clearly something merely supererogatory.
Habermass choice among these options is not made clear, not even in the
essay Justice and Solidarity. The task there assigned to solidarity, that of seeing
to the welfare of consociates who are intimately linked in an intersubjectively
shared form of life (Habermas 1990a, 244), is, namely, compatible with each of
the three modalities: it could be clearly something owed, clearly something
supererogatory, or something belonging to an intermediate realm.

13.5. How Far Does Discourse Theory Take Us?

Since his debate with Niklas Luhmann (Habermas and Luhmann 1971, 114 ff.)
and his contribution to the festschrift for Walter Schulz (1972), Habermas has
understood a discourse as a process of argumentation that assesses claims to truth
and validity independently of practical constraints and coercion. While discourse
theory is not very convincing as a theory of truth (see Hffe 1979a), it is illumi-
nating as a theory of political legitimation, albeit only given two presuppositions
not made by Habermas.
Regarding the first of these presuppositions, one cannot, despite Habermass
talk of a discursive or deliberative model (BFN 449), take discourse to be
simply a matter of reflexive deliberation. Rather, one must introduce in addition a
moment of binding that, though it is admittedly a self-binding, is not discursive in
nature. A system of authorizations to enforce is legitimate if it results from an
agreement on the part of all concerned that is disconnected from present or mo-
mentary constraints on action but nevertheless guides future conduct. The task of
regarding all of ones fellow human beings as equally entitled partners in dis-
course, recognized by philosophy since its beginnings, is evidently more modest
than the task of so treating ones peers in actual life, not to mention the task of so
treating them in all circumstances, including those in which one would have to
accept disadvantages to oneself. For this reason, the metaphor of a contract (and
it is not more than a metaphor) is well suited to capture an agreement to recognize
all as equally entitled, which applies not just in the context of discourse but gen-
erally. In a contract, agreement is not merely verbal: before the agreement one is
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284 Categorical Principles of Law

free, after it one is bound. The linguistic turn does nothing to change this state of
affairs, for which reason, pace Habermas (BFN 449), the discourse model cannot
replace the contract model, even if it may be able to enrich it.
The second presupposition that must be accepted by discourse theory as ap-
plied to political legitimation consists in those prejudices of discourse dis-
cussed above. Reciprocal recognition of fellow citizens as fellow citizens boils
down in the end to an acceptance of these prejudices, which in real-life discourse
can only be obtained under the presupposition that they are recognized in advance
as a condition of its possibility. Although this condition is emphatically granted
outside discourse theory, Habermas does not in his recent work on law and the
state take up the objection it poses to his view, although the point had been in
print for two years before the appearance of Between Facts and Norms.
In any case, Between Facts and Norms only allows the principle of discourse a
limited scope. Habermas sees juridical form, which is an indispensable element
as far as legitimation is concerned, and is from a systematic perspective the pri-
mary element, as underivable, since it cannot be justified either epistemically
or normatively (BFN 112). This view is rife with consequences. In place of the
demand of a reason-based right to abandon naturally evolved coexistence in favor
of coexistence in a juridical form, there enters a contingent resolution. The first
categorical imperative of law, Depart from the state of nature, is thereby,
against Habermass own aims, replaced by a decisionistic element. The ele-
mentary level of juridical legitimacy, reason as the definer and legitimation of law
and right, is therefore lost, as is an argument for an international juridical com-
munity: namely, the argument that nations coexist in a state of nature, which, for
good and rational reasons, ought to be overcome. And not least, one loses the
chance of supplementing the elementary, law-and-right-defining level of legiti-
mation with a distinct and more ambitious level at which one uses reason to give
normative shape to the law.
The modernization of law includes an element that jurists such as Kelsen and
social scientific theorists of the law such as Luhmann deal with clumsily. A uni-
versalistic ethics can avoid such clumsiness and finds in consequence nothing so
provocative and fruitful as the establishment of subtle distinctions. That there
are elementary or fundamental rights at all is uncontroversial within the family
of universal ethical views. The subtle distinctions, as well as a further criticism of
Habermas, do not emerge until we ask which rights are fundamental and how fun-
damental they are.
Habermass answer to the question of which rights are fundamental turns out to
be peculiarly bland. When he discusses rights to liberty and the rights that result
from consociation together with the actionability of these rights (BFN 122 ff.), he
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ensures nothing more than the uncontroversial ABCs of the democratic constitu-
tional state. The not so uncontroversial areas of social rights, cultural rights, and,
above all, possible ecological rights must be content with a hand-waving gesture
(BFN 123) from the books final chapter, entitled Paradigms of Law, in which
Habermas deals with the dysfunctional side effects of the social-welfare state but
does not make any progress with the justification of fundamental rights.
To the second question, how fundamental the fundamental rights are, Haber-
mas gives a modest answer. Though he does deal with human rights as well, what
he sets out to justify are not these but rather basic rights, which aspire to a lesser
degree of fundamentality. Understood as the rights citizens must confer on each
other if they want to legitimately regulate their interactions and life-contexts by
means of positive law (BFN 122), basic rights are valid only with reference to a
particular juridical community. Genuine human rights, which, despite the impres-
sion given by Habermas (BFN 453), include more than liberty rights, have a
higher legitimation-theoretical status than basic rights, a point one can acknowl-
edge without thereby committing oneself to a Platonic doubling of law into the
natural and the positive (BFN 450, 453) or manifesting a wish to evade a critique
of liberalism (BFN 453). Instead, human rights raise the question why coexistence
should be regulated by means of positive law and therefore by means of enforced
punishments, imposed conformity, and special powers at all. A theory of basic
rights takes this question to be already answered, and Habermas, since he does not
aim to justify juridical form, the form of positive law as such, sweeps it aside.
Kant, the theorist of reason, knew of the more fundamental meaning when he
placed human rights, of which, as is well known, he recognizes only one (there
is only one innate right, DR VI:237/63), before the reflections on the topic with
which the relevant chapter of Habermas begins, that of private and public auton-
omy (BFN 3.1). So too were the first declarations of human rights clear about
the more fundamental meaning. The Virginia Bill of Rights has a structure that
would be followed by the French Declaration of the Rights of Man and of the
Citizen: both texts begin with rights enjoyed by people, not only in virtue of
being citizens, but in virtue of being people.
In order to emphasize the conceptual difference between basic rights and
human rights, I described the latter as rights that are valid antecedent to the
state but that are not therefore operative; they are not actually given or denied
by the state, but instead guaranteed (1979b, 7, cf. PJ). Though Habermas sees
awkward formulations (1995, 310) here, their point is to accentuate the dou-
ble meaningnot the ambiguityof human rights. As rights of people as peo-
ple, they belong to us before and independently of any political grouping. But
since they do not assert or determine themselves on their own, they need to be
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286 Categorical Principles of Law

positivized, so to speak, by means of a juridico-political order. Because such

an order can, however, turn against its purpose (not its only purpose) of guaran-
teeing human rights, the liberal rights of protection against the state (for only in
the context of a state can this perversion of purpose occur) emerge out of indi-
vidual liberties that were at first reciprocally granted (BFN 457). Though
Habermas seems to think that the point is a new one, it had already been made
in my article Human Rights as Legitimation of Democratic Politics (1979b,
712). It needs as well to be made more precise in that the reciprocally granted
liberty rights are rights of protection on both levels: before there is a state, they
protect against possible incursions from peers, and once there is a state, they
protect against incursions from state power as well.
That Habermas does not really begin to deal with human rights may also have
to do with his desire to avoid the anthropological assumptions needed to justify
them. But not only are these assumptions few and hardly controversial, they also
are not, regardless of Habermass assumption to the contrary, meant to justify the
universal validity of human rights on their own. In addition, they will be needed
even for one who is content to take on basic rights only. The right to life and limb,
for example, does not follow simply from carrying out a discourse of ethical
self-understanding, but requires the additional supposition that the discourse is
conducted, not by pure intelligences such as angels, but by beings of flesh and
blood. One might, to defuse some of the notorious skepticism about anthropolog-
ical elements of the sort in question, recall Rawlss social-anthropological princi-
ple of primary social goods, without which he would be unable to establish his
principles of justice. And finally, Habermas himself, in his essay Morality and
Ethical Life, countenances anthropological points of view (Habermas 1990b,
199 ff.).
There is much talk in Between Facts and Norms of things radically democra-
tic, of fundamental democracy, and of the association of free and equal citi-
zens. These expressions seem more sharply defined and pointed than they appear
upon closer consideration. The modern state is radically democratic in the literal
sense, that is, democratic in its roots, in virtue of the principle of popular sover-
eignty, an element that has long been recognized, not only from a legitimation-
theoretical perspective, but also in the actual practices of political legitimation. It
is equally uncontroversial that all citizens must be permitted freely and with equal
rights to take part in political life, that such participation requires appropriate
mediating agencies, including a strong public sphere, political parties, and other
associations, and, above all, elected representatives. Controversy arises only
when it is asked whether such elements should be supplemented, for example, by
elements of direct democracy or activist-driven democracy, by citizens initia-
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tives, or even by mandated delegates, representatives elected with binding

mandates to vote in certain ways on certain issues.
The advantages of direct democracy are evident: immediate contribution to the
determination of policy and a greater degree of identification with the political
process. The disadvantages, though, are also familiar: the danger of negative ma-
jorities, of populism, and, in the case of activist-driven democracy, the danger of
a hidden aristocracywhich can arise whenever only small groups are repre-
sented in contrast to large popular parties. The relative balance of advantage over
disadvantage depends on the boundary conditions in place in a particular context,
and this raises the decisive question whether one can make quasi a priori judg-
ments here at all. Habermas is wisely cautious on the point, which means, how-
ever, that the idea of fundamental democracy loses some sharpness of defini-
tion. Habermas demands not much more than a strong public sphere (BFN 171 ff.
and chap. 3), the clear subordination of the executive to the democratic legislature
(BFN 18693), anda point on which I agree with hima limitation of the reach
of constitutional law vis vis the legislature (BFN chap. 6).
The fact that human rights and democracy are coeval raises yet another diffi-
culty for Habermass thesis. Human rights are, both conceptually and historically,
constraints that even a democratic sovereign can violate only on pain of losing
legitimacy. In order to retain the coeval thesis and yet place the entire burden
of legitimation on the democratic process (BFN 450), one has to introduce a two-
level concept of democracy, and both levels are marked by the reciprocal granting
of rights: in the natural democracy that antecedes the state, people grant each other
rights, which the political statedemocracy helps to make impartially effective.
Let us draw up the balance sheet. Between Facts and Norms is already impres-
sive for according law and the state their appropriate social-theoretical rank,
thereby opening critical theory to the philosophy of law and the state once and for
all. The nice-sounding but unpolitical ideal of freedom from Herrschaft that dom-
inated traditional critical theory is emphatically overcome in favor of the politi-
cal, and traditional, ideal of just rule. In 1970, Max Horkheimer was still saying
that although one cannot, according to critical theory, determine the right form
of society in advance, [one can certainly] say what is bad about the current soci-
ety (1970, 164). Insofar as he recognizes constitutional democracy as the basic
model of the right form of society, Habermas departs from Horkheimers view. At
the same time, he grants the point made by those critics of traditional theory who,
in supplementation of a chiefly emancipatory critique, demanded a more strongly
affirmative social theory, one capable of valuing achieved emancipation in a pos-
itive way. For Between Facts and Norms takes an essentially positive view of the
basic institutions of constitutional democracy.
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BIBLIOGRAPHY

Adorno, Theodor W. 1965. Offener Brief an Max Horkheimer. Die Zeit 12, no.2.
Altmann, Alexander. 1981. Prinzipien politischer Theorie bei Mendelssohn und Kant.
Trier.
Apel, Karl-Otto. 1963. Die Idee der Sprache in der Tradition des Humanismus von Dante
bis Vico. Bonn.
. 1976. Sprechakttheorie und transzendentale Sprachpragmatik zur Frageethis-
cher Normen. In Sprachpragmatik und Philosophie, edited by K. O. Apel,
10173. Frankfurt.
. 1980. The A Priori of the Communication Community and the Foundations of
Ethics. In Towards a Transformation of Philosophy, translated by Glyn Adey
and David Frisby, 225300. London: Routledge & Kegan Paul.
Apel, Karl-Otto, et al., eds. 1984. Funkkolleg Praktische Philosophie/Ethik, Studientexte.
Weinheim and Basel.
Aristotle. Metaphysics. Translated by W. D. Ross. In Barnes 1984.
. Politics. Translated by Benjamin Jowett. In Barnes 1984.
. Posterior Analytics. Translated by Jonathan Barnes. In Barnes 1984.
. Nicomachean Ethics. Translated by Terence Irwin. Indianapolis, Ind.: Hackett
Publishing, 1985.
Axelrod, Robert. 1984. The Evolution of Cooperation. New York: Basic Books.
Barnes, Jonathan, ed. 1984. The Complete Works of Aristotle. Princeton: Princeton
University Press.
Baudrillard, Jean. 1968. Modernit. In Encyclopaedia Universalis, 11:13941. Paris.
Beccaria, Cesare B. 1973 [1764]. Dei delitti e delle pene. Milan.
Bentham, Jeremy. 1970 [1789]. An Introduction to the Principles of Morals and Legisla-
tion. Edited by H. J. Burns and H. L. A. Hart. London: Athlone.
Berlin, Isaiah. 1969. Two Concepts of Liberty. In Four Essays on Liberty, 11872.
Oxford: Clarendon Press.
Berner, A. F. 1876. Lehrbuch des deutschen Strafrechts. Leipzig.
Bien, G. 1980. Lge. In Historisches Wrterbuch der Philosophie, edited by J. Ritter
and K. Grnder, 53344. Basel and Stuttgart.
Bittner, R. 1974. Maximen. In Akten des 4. Internationalen Kant-Kongresses, Mainz
1974, edited by G. Funke, pt. 2.2, 48598. Berlin and New York.

289
BIB_PSHoffe_117022 6/12/02 10:55 AM Page 290

290 Bibliography

Bloch, Ernst. 1986. The Principle of Hope. Translated by Neville Plaice, Stephen Plaice,
and Paul Knight. Oxford: Blackwell.
Burke, Edmund. 1982 [1756]. A Vindication of Natural Society. Edited by Frank N.
Pagano. Indianapolis, Ind.: Liberty Classics.
Burg, P. 1974. Kant und die Franzsische Revolution. Berlin.
Cooper, W. E., et al., eds. 1979. New Essays on John Stuart Mill and Utilitarianism.
Canadian Journal of Philosophy, supplementary vol. 5. Calgary: University of
Calgary Press.
Deggau, H. G. 1983. Die Aporien der Rechtslehre Kants. Stuttgart and Bad Cannstatt.
Descartes, Ren. 1980. Discourse on Method [1637] and Meditations on First Philosophy
[1641]. Translated by D. A. Cress. Indianapolis, Ind.: Hackett Publishing.
Drechsler H., W. Hilliger, and F. Neumann, eds. 1979. Lexikon der Politik. Baden-Baden.
Enderlein, W. 1985. Die Begrndung der Strafe bei Kant. Kant-Studien 76:30327.
Feuerbach, Paul Johann Anselm von. 1801. Lehrbuch des gemeinen in Deutschland
geltenden peinlichen Rechts. Giessen.
Feyerabend, Paul K. 1975. Against Method: Outline of an Anarchistic Theory of Knowl-
edge. London: Verso.
. 1987. Farewell to Reason. London: Verso.
Forschner, M. 1982. Kant versus Bentham: Vom vermeintlichen kategorischen Imperativ
des Strafgesetzes. In Rechtsphilosophie der Aufklrung: Symposium Wolfenbt-
tel 1981, edited by R. Brandt, 37698. Berlin and New York.
. 1983. Reine Morallehre und Anthropologie. Neue Hefte fr Philosophie 22
(Kants Ethik heute): 2544.
Foucault, Michel. 1978. Von der Subversion des Wissens. Frankfurt.
Foucher, Simone. 1969 [1675]. Critique de la recherche de la vrit. New York: Johnson
Reprint Corporation.
Geismann, Georg. 1983. Kants Rechtslehre vom Weltfrieden. Zeitschrift fr
philosophische Forschung 37, no. 3:36388.
. 1988. Versuch ber Kants rechtliches Verbot der Lge. In Kant: Analysen
ProblemeKritik, edited by H. Oberer and G. Seel, 293316. Wrzburg.
Geismann, Georg, and Hariolf Oberer, eds. 1986. Kant und das Recht der Lge.
Wrzburg.
Geuss, Raymond. 1981. The Idea of a Critical Theory. Cambridge: Cambridge University
Press.
Grimm, Jacob, and Wilhelm Grimm, eds. 1984. Deutsches Wrterbuch. 33 vols. Munich.
Gnther, L. 1966 [1889]. Die Idee der Wiedervergeltung in der Geschichte und Philoso-
phie des Strafrechts. 2 vols.
Habermas, Jrgen. 1975. Legitimation Crisis. Translated by Thomas McCarthy. Boston:
Beacon Press.
. 1978. Knowledge and Human Interests. Translated by Jeremy J. Shapiro.
Boston: Beacon Press.
. 1979. Kritische berlegungen zur Konsensustheorie der Wahrheit. In Hffe
1979b, 25152.
. 1984. The Theory of Communicative Action. Translated by Thomas McCarthy.
Boston: Beacon Press.
. 1989. Otfried Hffes politische Fundamentalphilosophie: Grenzen des vernun-
ftrechtlichen Normativismus. Politische Vierteljahresschrift 2:32027.
. 1990a. Justice and Solidarity. In Wren 1990, 22451.
BIB_PSHoffe_117022 6/12/02 10:55 AM Page 291

Bibliography 291

Habermas, Jrgen. 1990b. Moral Consciousness and Communicative Action. Translated

by Christian Lenhardt and Shierry Weber Nicholsen. Cambridge, Mass.: MIT
Press.
. 1991. The Structural Transformation of the Public Sphere. Translated by Thomas
Burger with the assistance of Frederick Lawrence. Cambridge, Mass.: MIT Press.
. 1992. Postmetaphysical Thinking. Translated by William Mark Hohengarten.
Cambridge, Mass: MIT Press.
. 1995. Kants Idee des ewigen Friedensaus dem historischen Abstand von 200
Jahren. Kritische Justiz 28:293319.
. 1996. Between Facts and Norms. Translated by William Rehg. Cambridge,
Mass.: MIT Press.
Habermas, Jrgen, and Niklas Luhmann. 1971. Theorie der Gesellschaft oder Sozialtech-
nologieWas leistet die Systemforschung? Frankfurt.
Hamilton, Edith, and Huntington Cairns, eds. 1961. Plato: The Collected Dialogues.
Princeton: Princeton University Press.
Hare, Richard M. 1965. Freedom and Reason. Oxford: Oxford University Press.
Hartmann, Nicolai. 1958. Ethics. Translated by Stanton Coit. London: Allen & Unwin.
Hassemer, W. 1981. Einfhrung in die Grundlagen des Strafrechts. Munich.
. 1983. Strafziele im sozialwissenschaftlich orientierten Strafrecht. In
Fortschritte im Strafrecht durch die Sozialwissenschaften? edited by W. Hassemer,
K. Lddersen, and W. Naucke, 3966. Heidelberg.
Hegel, G. W. F. 1970a. ber die Einrichtung einer kritischen Zeitschrift der Literatur.
In Hegel 1970b, 11:931.
. 1970b. Werke in zwanzig Bnden. Frankfurt: Suhrkamp.
. 1975. Natural Law: The Scientific Ways of Treating Natural Law, Its Place in
Moral Philosophy, and Its Relation to the Positive Sciences of Law. Translated by
T. M. Knox. Philadelphia: University of Pennsylvania Press.
. 1977. The Phenomenology of Spirit [1807]. Translated by A. V. Miller. Oxford:
Oxford University Press.
. 1991. Elements of the Philosophy of Right. Edited by A. W. Wood, translated by
H. B. Nisbet. Cambridge and New York: Cambridge University Press.
Henrich, D., and R. P. Horstmann, eds. 1988. Metaphysik nach Kant? Stuttgarter Hegel-
Kongre 1987. Stuttgart.
Hobbes, Thomas. 1991 [1651]. Leviathan. Edited by R. Tuck. Cambridge: Cambridge
University Press.
Hffe, Otfried. 1971. Praktische PhilosophieDas Modell des Aristoteles. Munich and
Salzburg.
. 1975. Strategien der Humanitt: Zur Ethik ffentlicher Entscheidungsprozesse.
Freiburg and Munich.
, ed. 1979a. Ethik und Politik: Grundmodelle und -probleme der praktischen
Philosophie. Frankfurt.
. 1979b. Die Menschenrechte als Legitimation demokratischer Politik.
Freiburger Zeitschrift fr Philosophie und Theologie 26:324.
. 1987. Kants kategorischer Imperativ als Kriterium des Sittlichen. In Ethik und
Politik, 3d ed., 84119. Frankfurt.
. 1988a. Den Staat braucht selbst ein Volk von Teufeln. Stuttgart.
. 1988b. Praktische Philosophie. In Staatslexikon der Grres-Gesellschaft,
4:52232. Freiburg.
BIB_PSHoffe_117022 6/12/02 10:55 AM Page 292

292 Bibliography

Hffe, Otfried. 1989a. Die Ethik der Natur im Streit um die Moderne. Scheidewege
19:5774.
. 1989b. Grundlegung zur Metaphysik der Sitten: Ein kooperativer Kommentar,
ed. Otfried Hffe. Frankfurt.
. 1995. Political Justice: Foundations for a Critical Philosophy of Law and the
State. Cambridge, Mass.: Polity Press.
Horkheimer, Max. 1942. Autoritrer Staat. In Gesammelte Schriften, vol. 5. Frankfurt.
. 1970. Kritische Theorie gestern und heute. In Gesellschaft im bergang:
Aufstze, Reden und Vortrge 19421970, edited by W. Brede, 16275. Frankfurt.
. 1974. Critique of Instrumental Reason. Translated by Matthew J. OConnell et
al. New York: Seabury Press.
Hugo, Gustav. 1971 [1789]. Lehrbuch des Naturrechts als einer Philosophie des posi-
tiven Rechts, besonders des Privatrechts. Vaduz.
Hume, David. 1975. Enquiries Concerning Human Understanding [1748] and Concern-
ing the Principles of Morals [1751]. Edited by L. A. Selby-Bigge. Oxford:
Clarendon Press.
. 1984 [1740]. A Treatise of Human Nature. Edited by E. C. Mossner. London:
Penguin.
Jaspers, Karl. 1957. Kant: Zum ewigen Frieden. In Wesen und Wirklichkeit des Men-
schen: Festschrift H. Plessner, edited by K. Ziegler, 13152. Gttingen.
Johnson, Oliver A. 1974. The Kantian Interpretation. Ethics 85:5866.
Jonas, Hans. 1984. The Imperative of Responsibility: In Search of an Ethics for the
Technological Age. Chicago: University of Chicago Press.
Kant, Immanuel. 1951. Critique of Judgment [1790]. Translated by J. H. Bernard. New
York: Hafner Library of Classics. (Academy edition, V:165485.)
. 1963a. Idea for a Universal History from a Cosmopolitan Point of View
[1784]. Translated by Lewis White Beck. In Kant on History, ed. Lewis White
Beck. New York: Macmillan, Library of Liberal Arts. (Academy edition,
VIII:1532.)
. 1963b. Perpetual Peace [1795]. Translated by Lewis White Beck. In Kant on
History, ed. Lewis White Beck. New York: Macmillan, Library of Liberal Arts.
(Academy edition, VIII:34186.)
. 1963c. What Is Enlightenment? [1784]. Translated by Lewis White Beck. In
Kant on History, ed. Lewis White Beck. New York: Macmillan, Library of
Liberal Arts. (Academy edition, VIII:3342.)
. 1974. Anthropology from a Pragmatic Point of View [1798]. Translated by Mary
Gregor. The Hague: Martinus Nijhoff. (Academy edition, VII:117334.)
. 1980. Lectures on Ethics [177580]. Drawn from the lecture notes of Theodor
Friedrich Brauser, Gottlieb Kutzner, and Chr. Mrongovious by Paul Menzer in
1924, translated by Louis Infeld. Indianapolis, Ind.: Hackett Publishing.
. 1991a. The Metaphysics of Morals [1797]. Translated by Mary Gregor.
Cambridge and New York: Cambridge University Press. (Academy edition,
VI:203493.)
. 1991b. On the Common Saying: This May Be True in Theory, but It Does Not
Apply in Practice [1793]. Translated by H. B. Nisbet. In Kants Political
Writings, 2d enl. ed., edited by Hans Reiss. Cambridge: Cambridge University
Press. (Academy edition, VIII:273313.)
BIB_PSHoffe_117022 6/12/02 10:55 AM Page 293

Bibliography 293

Kant, Immanuel. 1991c. What Is Orientation in Thinking? [1786]. Translated by H. B.

Nesbit. In Kants Political Writings,2d enl. ed., edited by Hans Reiss. Cambridge:
Cambridge University Press. (Academy edition, VIII:13147.)
. 1992. The Conflict of the Faculties [1798]. Translated by Mary Gregor. New
York: Abaris Books, 1979. Reprint, Lincoln: University of Nebraska Press.
(Academy edition, VII:1116.)
. 1993a. Grounding for the Metaphysics of Morals [1785]. Translated by James W.
Ellington. 3d ed. Indianapolis, Ind.: Hackett Publishing. (Academy edition,
IV:385463.)
. 1993b. On a Supposed Right to Lie Because of Philanthropic Concerns
[1799]. Translated by James W. Ellington. In Kant 1993a.
. 1997a. Critique of Practical Reason [1788]. Translated by Mary Gregor. Cam-
bridge and New York: Cambridge University Press. (Academy edition, V:1163.)
. 1997b. Prolegomena to Any Future Metaphysics [1783], with Selections from the
Critique of Pure Reason. Translated by Gary Hatfield. Cambridge and New York:
Cambridge University Press. (Academy edition, IV:253384.)
. 1998a. Critique of Pure Reason [1st ed., 1781; 2d ed., 1787]. Translated by Paul
Guyer and Allen W. Wood. Cambridge and New York: Cambridge University
Press. (Academy edition, [A] IV:1252, [B] III:1552.)
. 1998b. On the Miscarriage of All Philosophical Trails in Theodicy [1791].
Translated by Allen Wood and George Di Giovanni. In Religion Within the
Boundaries of Mere Reason. Cambridge: Cambridge University Press. (Academy
edition, VIII:25372.)
. 1998c. Religion Within the Boundaries of Mere Reason [1793]. Translated by
Allen Wood and George Di Giovanni. Cambridge: Cambridge University Press.
(Academy edition, VI:1202.)
Kelsen, Hans. 1970. Pure Theory of Law. Translated by Max Knight. Berkeley and Los
Angeles: University of California Press.
Kersting, W. 1984. Wohlgeordnete Freiheit: Immanuel Kants Rechts- und Staatsphiloso-
phie. Berlin and New York.
. 1997. Herrschaftslegitimation, distributiver Vorteil und Tauschgerechtigkeit:
Eine kritische Einfhrung in das politische Denken Otfried Hffes. In
Gerechtigkeit als Tausch? Auseinandersetzungen mit der politischen Philosophie
Otfried Hffes, edited by W. Kersting. Frankfurt.
Klug, U. 1968. Abschied von Kant und Hegel. In Programm fr ein neues Strafgeset-
zbuch, edited by J. Baumann, 3641. Frankfurt.
Korsgaard, C. M. 1986. The Right to Lie: Kant on Dealing with Evil. Philosophy and
Public Affairs 15:32549.
Khl, K. 1984. Eigentumsordnung als Freiheitsordnung: Zur Aktualitt der Kantischen
Rechts- und Eigentumslehre. Freiburg and Munich.
Ladd, John. 1999. Introduction to Metaphysical Elements of Justice, by Immanuel Kant.
Indianapolis, Ind.: Hackett Publishing.
Locke, John. 1967 [1690]. Two Treatises of Government: A Critical Edition. Edited by
Peter Laslett. Cambridge: Cambridge University Press.
Lbbe, H. 1987. Politischer Moralismus: Der Triumph der Gesinnung ber die
Urteilskraft. Berlin.
Luhmann, Niklas. 1988. Paradigm Lost: Die ethische Reflexion der Moral. Stuttgart.
BIB_PSHoffe_117022 6/12/02 10:55 AM Page 294

294 Bibliography

Lyotard, Jean-Francois. 1983: Le differend. Paris.

Machiavelli, Niccolo. 1988. Florentine Histories [1525]. Translated by Laura F. Banfield.
Princeton: Princeton University Press.
Malebranche, Nicolas. 1997. The Search After Truth [1675]. Translated and edited by
Thomas M. Lennon. Cambridge: Cambridge University Press.
Marquard, Odo. 1984. Neugier als Wissenschaftsantrieb oder die Entlastung von der
Unfehlbarkeitspflicht. In Ethik der Wissenschaften? Philosophische Fragen,
edited by E. Strcker, 1526. Munich and Paderborn.
. 1987a. Drei Phasen der medizinethischen Debatte. In Anfang und Ende men-
schlichen Lebens: Medizinethische Probleme, edited by Odo Marquard and H.
Staudinger, 11115. Munich and Paderborn.
. 1987b. Von der Schnelligkeit der Welt und der Langsamkeit des klugen Men-
schen. Die Welt, 30 December, 16.
. 1989. Farewell to Matters of Principle: Philosophical Studies. Translated by
Robert M. Wallace. New York and Oxford: Oxford University Press.
. 1991. In Defense of the Accidental: Philosophical Studies. Translated by Robert
M. Wallace. New York and Oxford: Oxford University Press.
Marx, Karl, and Engels, Friedrich. 1970. The German Ideology: Part One, with Selec-
tions from Parts Two and Three [1846]. Edited by C. J. Arthur. New York: Inter-
national Publishers.
Mendelssohn, Moses. 1983 [1783]. Jerusalem oder ber religise Macht und Judentum.
Vol. 8 of Gesammelte Schriften. In cooperation with F. Bamberger et al. Stuttgart
and Bad Cannstatt.
Michaud-Quantin, P. 1970. Le vocabulaire du latin scholastique et la critique. Chap. 12
in tudes sur le vocabulaire philosophique du Moyen-ge. Rome.
Mill, John Stuart. 1978 [1868]. Speech in Favor of Capital Punishment. In Philosophy
of Law, edited by Joel Feinberg and Hyman Gross. Belmont, Calif.: Wadsworth
Publishing.
. 1979 [1861]. Utilitarianism. Edited by George Sher. Indianapolis, Ind.: Hackett
Publishing.
Montesquieu, Charles de. 1989. The Spirit of the Laws [1748]. Tranlated by Anne M.
Cohler, Basia C. Miller, and Harold Stone. Cambridge: Cambridge University
Press.
Mller, G. 1962. Die Wahrhaftigkeitspflicht und die Problematik der Lge. Freiburg.
Nancy, Jean-Luc. 1983. Limpratif catgorique. Paris.
Nietzsche, Friedrich. 1974. The Gay Science [1882]. Translated by Walter Kaufmann.
New York: Vintage Books.
. 1990a. Beyond Good and Evil: Prelude to a Philosophy of the Future [1886].
Translated by R. J. Hollingdale. London: Penguin.
. 1990b. Twilight of the Idols [1888]. Translated by R. J. Hollingdale. London:
Penguin.
. 1998b. On the Genealogy of Morality [1887]. Translated, with an introduction
and notes, by M. Clark and A. J. Swensen. Indianapolis, Ind.: Hackett Publishing.
Nozick, Robert. 1974. Anarchy, State, and Utopia. New York: Basic Books.
Oberer, H. 1982. ber einige Begrndungsaspekte der Kantischen Strafrechtslehre.
In Rechtsphilosophie der Aufklrung: Symposium Wolfenbttel 1981, edited by
R. Brandt, 399424. Berlin and New York.
Oelmller, W., ed. 1987. Metaphysik heute? Zurich and Paderborn.
BIB_PSHoffe_117022 6/12/02 10:55 AM Page 295

Bibliography 295

ONeill, Onora. 1990. Constructions of Reason: Explorations of Kants Practical Philos-

ophy. Cambridge. Cambridge University Press.
Patzig, G. 1971. Ethik ohne Metaphysik. Gttingen.
Plato. Republic. Translated by P. Shorey. In Hamilton and Cairns 1961.
. Statesman. Translated by F. M. Cornford. In Hamilton and Cairns 1961.
. Theaetetus. Translated by F. M. Cornford. In Hamilton and Cairns 1961.
Poliziano, Angelo. 1971 [1492]. Lamia: Praelectio in priora Aristotelis analytica. In
Opera omnia, edited by I. Maier, 1:45161. Turin.
Pufendorf, Samuel. 1964. On the Law of Nature and Nations [1688]. Translated by C. H.
Oldfather and W. A. Oldfather. New York: Oceana.
Ramus, Petrus. 1970 [1548]. Scholae in liberales artes. Hildesheim.
Rawls, John. 1955. Two Concepts of Rules. Philosophical Review 64:332. (Also in
Rawls 1999, 2046.)
. 1971. A Theory of Justice. Cambridge, Mass.: Harvard University Press.
. 1975. The Independence of Moral Theory. Proceedings and Addresses of the
American Philosophical Association 48:522. (Also in Rawls 1999, 286302.)
.1980. Kantian Constructivism in Moral Theory: The Dewey Lectures, 1980.
Journal of Philosophy 77:515572. (Also in Rawls 1999, 30358.)
. 1982. The Basic Liberties and Their Priority. In The Tanner Lectures on
Human Value, vol. 3, edited by S. M. McMurrin, 187. Salt Lake City: Univer-
sity of Utah Press.
. 1985. Justice as Fairness: Political Not Metaphysical. Philosophy and Public
Affairs 14:223251. (Also in Rawls 1999, 388414.)
. 1999. Collected Papers. Edited by Samuel Freeman. Cambridge, Mass.: Harvard
University Press.
Ricken, F. 1989. Homo noumenon und homo phaenomenon: Ableitung, Anwendbarkeit
und Begrndung der Formel von der Menschheit als Zweck an sich selbst. In
Hffe 1989b, 23452. Frankfurt.
Ritter, C. 1971. Der Rechtsgedanke Kants nach den frhen Quellen. Frankfurt.
Rorty, Richard. 1978. Epistemological Behaviorism and the De-Transcendentalization of
Analytical Philosophy. Neue Hefte fr Philosophie 14:11542.
Rttgers, K. 1982. Kritik. In Geschichtliche Grundbegriffe: Historisches Lexikon zur
politisch-sozialen Sprache in Deutschland, edited by O. Brunner, W. Conze, and
R. Koselleck, 3:651. Stuttgart.
Rousseau, Jean-Jacques. 1982. Emile [1762]. Translated by Barbara Foxley. London: Dent.
. 1993. The Social Contract [1762] and the Discourses. Translated by G. D. H.
Cole, revised and augmented by J. H. Brumfitt and John C. Hall. New York:
Knopf.
Schalk, F., and H. D. Weber. 1976. Kritik, Literaturkritik. In Historisches Wrterbuch
der Philosophie, edited by J. Ritter and K. Grnder, 4:128292. Stuttgart.
Scheler, Max. 1973. Formalism in Ethics and Non-Formal Ethics of Values. Translated
by Manfred S. Frings and Roger L. Funk. Evanston: Northwestern University
Press.
Schiller, Friedrich. n.d. On Grace and Dignity [1793]. In Aesthetic and Philosophical
Essays, vol. 3 of Schillers Works. New York: Publishers Plate Renting Com-
pany, Library Edition.
Schmitt, Carl. 1963. Das Zeitalter der Neutralisierungen und Entpolitisierungen. In Der
Begriff des Politischen, 7995. Berlin.
BIB_PSHoffe_117022 6/12/02 10:55 AM Page 296

296 Bibliography

Schndelbach, H. 1982. Bemerkungen ber Rationalitt und Sprache. In Kommunika-

tion und Reflexion, edited by W. Kuhlmann and D. Bhler, 34768. Frankfurt.
Schopenhauer, Arthur. 1969. The World as Will and Representation [1818/44]. Translated
by E. F. J. Payne. New York: Dover.
. 1995. On the Basis of Morality [1841]. Translated by E. F. J. Payne. Providence,
R.I.: Bergahn Books.
Schuppert, G. F. 1989. Zur Neubelebung der Staatsdiskussion: Entzauberung des Staates
oder Bringing the State Back? Der Staat 28:91104.
Sidgwick, Henry. 1967 [1874]. The Methods of Ethics. London.
Singer, Marcus G. 1961. Generalization in Ethics. New York.
Smart, J. J. C. 1973. An Outline of a System of Utilitarian Ethics. In Utilitarianism For
and Against, edited by B. Williams, 174. Cambridge: Cambridge University
Press.
Smith, Adam. 1976 [1759]. The Theory of Moral Sentiments. Edited by D. D. Raphael
and A. L. MacFie. Oxford: Clarendon Press.
Spaemann, Robert. 1989. Glck und Wohlwollen: Versuch ber Ethik. Stuttgart.
Starobinski, Jean. 1988. Jean-Jacques Rousseau: Transparency and Obstruction. Trans-
lated by Arthur Goldhammer. Chicago: University of Chicago Press.
Thomasius, Christian. 1963 [1688]. Institutiones jurisprudentiae divinae. Aalen.
Tonelli, G. 1978. Critique and Related Terms Prior to Kant: A Historical Survey.
Kant-Studien 69:11948.
Trapp, R. 1988. Nicht-klassischer Utilitarismus: Eine Theorie der Gerechtigkeit.
Frankfurt.
Tugendhat, Ernst. 1982. Traditional and Analytical Philosophy: Lectures on the Philoso-
phy of Language. Translated by P. A. Gorner. Cambridge: Cambridge University
Press.
. 1984. Drei Vorlesungen ber Probleme der Ethik. In Probleme der Ethik,
57131. Stuttgart.
Urmson, J. O. 1953. The Interpretation of the Moral Philosophy of J. S. Mill. Philo-
sophical Quarterly 3 (January): 3339.
Vanberg, V. 1982. Verbrechen, Strafe und Abschreckung: Die Theorie der General-
prvention im Lichte der neueren sozialwissenschaftlichen Diskussion. Tbingen.
von Bormann, C., et al. 1976. Kritik. In Historisches Wrterbuch der Philosophie,
edited by J. Ritter and K. Grnder, 4, 124962. Basel and Stuttgart.
Williams, Bernard. 1985. Ethics and the Limits of Philosophy. London: Penguin.
Willke, H. 1983. Entzauberung des Staates: berlegungen zu einer sozietalen
Steuerungstheorie. Knigstein.
Wolff, Robert P. 1973. The Autonomy of Reason: A Commentary on Kants Groundwork
of the Metaphysics of Morals. New York: Harper & Row.
Wren, Thomas E., ed. 1990. The Moral Domain. Cambridge, Mass.: MIT Press.
Zllner, Johann Friedrich. 1784. ber Moses Mendelssohns Jerusalem. Berlin.
Index_PS_Hoffe_117022 6/12/02 11:02 AM Page 297

INDEX

accountability, 87, 89 on transcendental pragmatism, 60, 234, 266

action-external considerations, 141, 143
action-internal considerations, 14041, 143
activist-driven democracy, 28687
act-utilitarianism, 112, 114
Adorno, Theodor, 19, 136, 252, 256, 264, 277
Alexy, Robert, 274
Allison, Henry, x, xi
altruism, genetic, 208
anarchism, 9598, 191, 272, 278
anthropology
and conditions of application of law, 8691
and diversity, 100
moral, xi, 9, 6774
and practical metaphysics, 5984
in Rawlss theory of justice, 217
social, 71, 88
antinomies, 4243
Apel, Karl-Otto, 23347
on analytic and Continental philosophy,
23334
on argumentation situation, 23738
on consensus, 234
on fact of reason doctrine, 23638
Habermas and, 252, 268
Hffe engaging from Kantian perspective,
xvii
Kant as criticized by, 23435
on paradigm shift from consciousness to
language, 23540
on postulates of practical reason, 24547
Practical Philosophy/Ethics, 234
and Rawlss veil of ignorance, 21920
as turning to Kant, 198
applied ethics, 21, 12526
Aquinas, Thomas, 134
Aristotle
on action, 239
on autonomous subsystems, 27273
in demise of metaphysics, 60
on generosity, 204
on happiness, 77
humanists contrasted with, 24
as independent of politics, 35
on justice, 94
Kant and ethics of, 911, 7780
on metaphysical thinking, 60
metaphysics in ethics of, 80
on natural social impulse, 200, 208
Nicomachean Ethics, 66, 78, 81
on outline knowledge, 81
philosophy as judicative critique in, 22, 23,
78
on political nature of man, 63
on unconditioned good, 77
artist nature, 19394
Augustine, Saint, 134
Austin, John, 41
authorized force
agreement required for, 283
in Kants Doctrine of Right, 281
legal positivism versus anarchism on, 9599
as limited to crimes, 165, 166
Mill on, 11516
radical critique on, 28
Index_PS_Hoffe_117022 6/12/02 11:02 AM Page 298

298 Index

autonomy Carlyle, Thomas, 107

Apel on, 234, 241, 24244 castration, 152, 168
in domains of virtue and right, 227 categorical imperative, 85102. See also
in ethics of law and right, 88 categorical principles of law
intellectual, 2829 anthropology and, 71, 72
Kant on morality of, 52 categorical principles of law and, 5
in Kerstings independence thesis, xii, xiv discourse ethics contrasted with, 24142
Nietzsche on, 52 in Doctrine of Right, 44
Rawls on, 21617, 225, 230, 231 and experiential knowledge, 68, 69, 80
and reciprocity, 243 Habermas on, 26768
and Rileys teleological interpretation, xv idea of justice contained in, 138
of the state, 192 and instrumentalization of the individual, 121
Axelrod, Robert, 199213 as layered within itself, 6, 7
computerized prisoners dilemma levels of categorically binding validity, 5
tournaments, 2036, 212 logic of, 131, 132
The Evolution of Cooperation, 200, 212 material formulation of, 7, 82
on genesis of cooperation, 207, 2089 Mill on, 12122
on hegemony-free cooperation, 13, 202, and objectivity, 27
20613 pragmatics of, 131
Hffe engaging from Kantian perspective, precision of, 81
xvii as receiving little attention in law, 4, 31
rigorism and formalism attributed to, xxii,
Barry, Brian, xxxxi 11, 82, 13338, 268
basis maxims, 138 seen as mono-principle ethics, 56
Bataille, Georges, 264 subformulations of, 5, 7
Baudrillard, Jean, 19 as synthetic a priori judgment, 65
Beccaria, Cesare, 152 as test for moral duties, 13031
Beitz, Charles, xxixxii two levels of application of, 81
benevolence, 57, 110, 119, 120 unconditioned good and, 76
Bentham, Jeremy and universalizability, 53
on Descartes, 24 as zero point of Kants argument, 54
on deterrence, 154 categorical principles of law
on everybody counting for one, 120 as categorical imperative in the plural, 5, 7,
hedonic calculus of, 106 44, 71
on justice, 109, 110 concept of morality underlying, 78
Kant as unaware of, 90 and concrete problems, 3233
on legislation and application, 112, 115 in constituting the law, 48, 101
translated into German, 106 as counterpoint within legal culture, 14
Berlin, Isaiah, 87 in defining positive law, 4748
Berner, A. F., 168 difficulties confronting, 69
Between Facts and Norms (Habermas), xvii, and diversity, 100
xviii, xx, 250, 27687 in Doctrine of Right, 44
Bloch, Ernst, 176, 178 examples of, 10396
Blumenberg, Hans, 62 human rights considered as, 1, 31, 5960
bodies as immutable principles of positive
categorical principles of law and, 7172 legislation, 4345
needs and interests of, 88 legitimacy questions raised by, 39
borrowing, 145 metaphysics in, 89, 5984
Bull, Hedley, xvi and natural law, 83
Burke, Edmund, 97 and neutralization thesis, 7
Index_PS_Hoffe_117022 6/12/02 11:02 AM
and objectivity, 27
ontological interpretation of, 64
peace as, 17884
in penal law, 15174
and polyphonic interpretation of modernity, 4
and questions of law and right, 4
Rawlss first principle of justice as, 224
retributive punishment seen as, 12, 44
scope of, 100101
self-understanding of, 1012
chess, 205
civil disobedience, 41, 216
civil wars, confessional, 181
clemency, 169
Cohen, Hermann, 55
collective welfare, 163, 164, 172, 173, 221, 222
commerce, 194
common good, 7980
communitarianism, viiiix
complex maxims, 138
Comte, Auguste, 60
confederation of nations, 18996
aporia of, 194
expansion of, 207
as negative surrogate, xvi, 192, 193, 195
as republic of free, confederated peoples, 189,
196
Conflict of the Faculties, The (Kant), xv, 41
conscience, infallibility of, 4849
consensus, 234, 241, 243, 267, 269, 273
Constant, Benjamin, 128, 134, 136, 141
constitutional democracy, 27879, 287
cooperation
versus free riding, 2012, 206
genesis of, 2079
without hegemony, 13, 202, 20613
individual impotence in, 206
long-term relationships in, 2067, 210
Plato on, 200
predisposition to, 206
and prisoners dilemma, 200, 2036
Rawls on, 229
corrective justice, 94, 101
corruption, 164
cosmopolitanism, xvxvii, 185
cost-benefit calculation, 260
credibility, loss of, 14346
crime. See also deterrence; prevention of crime;
punishment
authorized force as limited to, 165, 166
Page 299
Index 299
penal law as concerned with, 157
sexual crimes, 168, 281
critical theory, 24987
on emancipation from Herrschaft, 199, 202
Habermas on, 25153, 279
law and the state in, 27679
opening to normative ethics, 21
critique
beyond affirmative and negative, 1821
autonomy of, 2829
etymology of, 2122
and juridical judgment, 2123
Kantian, 67, 1718, 2527, 260
Marxist, 25, 250, 260
modernity and, 2325
post-Kantian, 2627
radicalization of, 25
transcendental critique of society, 1730
Critique of Judgment (Kant), 239
Critique of Practical Reason (Kant)
on crime and punishment, 159
on empirically conditioned reason, 42
on fact of moral judgment, 237
on inclination, 53
judicative critique in, 1718
on moral legality, 130
on peace as highest good, 184, 190
and philosophy of consciousness, 239
as primary metaphysics, 67
on soul, immortality, and God, 63
Critique of Pure Reason (Kant)
on a priori principles of morality, 75
communicative character of, 238
Kelsen on law and, 45, 47
on philosophy and the sciences, 266
on reason as republican, 239
200th anniversary of, 251, 264
Dante, 180
death penalty, 152, 168
decision theory, 21820, 223, 229
Declaration of the Rights of Man and of the
Citizen, 285
Deggau, H. G., 82
deliberative democracy, xviixx
democracy
activist-driven, 28687
constitutional, 27879, 287
deliberative, xviixx
direct, 28687
Index_PS_Hoffe_117022 6/12/02 11:02 AM
300 Index
democracy (cont.)
Habermas on, 28687
and human rights, 287
and infallibility of conscience, 49
and juridicalization, 260
legitimacy questions regarding, 39
and legitimation-theoretical individualism,
273
proceduralism, xxxxiii
secular accounts of, xix
deontological ethics, 129, 166, 169
Descartes, Ren, 24, 238, 252, 255, 256, 266
desire, 53, 54, 58, 68, 89
deterrence
in contemporary penal law, 12, 151
fundamental weaknesses in concept of,
15253
as outside concept of punishment, 160
perversions of justice and, 164
Pufendorf on, 154
punishing all the guilty and, 164
seen as utilitarian, 119
and severity of punishment, 174
as side-effect of punishment, 120, 157, 173
developing ones talents, 57, 126, 133, 143, 230
dialectic, transcendental, 2930, 43
direct democracy, 28687
disarmament talks, 207
disciplinary competence, 29
discourse ethics, 23347
circular justification of, 24142
competing positions compared with, 26873
expanding critique of, 21, 73
of Habermas, 250, 26668
Kantian criticism of, 10
Marquard on, 78
pragmatic contradiction employed by, 275
proponents of turning to Kant, 198
and Rawlss veil of ignorance, 219
and real-life argumentation, 27475
discourse theory. See also discourse ethics
for political legitimation, 28384
disposition, emancipation of law from, 4854
distributive justice, 113
diversity, 2, 3, 99100, 190, 194
divided utilitarianism, 113, 114
division of powers, 7980, 186, 277
Doctrine of Right (Metaphysics of Morals)
on authorized force, 9599
on autonomy of groups, 243
Page 300
on autonomy of the state, 192
on categorical imperative of law, 44
categorical imperative of law absent in, 85,
86
concept of morality in, 53
emancipation of law from disposition in, 50
on empirical theory of law, 43
on freedom and universal law, 94
and independence thesis, xiii, xiv, xv
metaphysics as overestimated in, 70, 83
on peace as highest political good, 184, 190
on penal law, 154, 158, 15960
on persons versus property, 165
on power of ought, 281
practical concerns of, 63
Rawls citing, 228
on rightful constitution as thing in itself, 64
Schopenhauer on, 89
as secondary metaphysics, 67
as theory of bourgeois revolution, 12
on universal monarchy, 188
on weighing goods against one another, 137
Doctrine of Virtue (Metaphysics of Morals)
on antinomy, 43
on autonomy and reciprocity, 243
categorical imperative of law absent in, 85
concept of morality in, 53
on deserving punishment, 159
on infallibility of conscience, 49
Kants foundational writings and, 56
and legal rigorism, 137
viewpoints of the Grounding in, 126
drugs, 57, 153, 170, 174
Durkheim, Emile, 253, 278
duties. See also imperfect duties; perfect duties
categorical imperative seen as test for,
13031
conflict of, 6, 13338
contextualization of, 81
Groundings division of, 12628
the law and, 5657
Mill on authority to enforce, 11516
to oneself and others, 5657, 126, 127, 128,
138
of right and of virtue, 56, 82
egoism. See also self-interest
in decision-theoretic concept of rationality,
218, 21920
enlightened, 204
Index_PS_Hoffe_117022 6/12/02 11:02 AM Page 301

Index 301

Ely, John, xxi and imperative of self-love, 138

Engels, Friedrich, 106, 121
Enlightenment, the, 3, 2325, 154
environmental protection, 213
envy, 205, 211
equality
as condition of republican state, 185, 186
and juridicalization, 260
political, xxi
principle of, 169
in Rawlss theory of justice, 216, 22122
of right, 183
Erasmus, 180
Erlangen school, 198, 211
ethical freedom, 55
ethics. See also discourse ethics; morality
applied, 21, 12526
deontological, 129, 166, 169
first and second moral philosophy, 5, 7, 10,
12526
Habermas on object of, 266
integrating experience into, 8084
paradoxical situation of, 236
Rawls on independence of, 225
rigorism, x, 12829, 13338, 162
Scottish moral philosophy, 277, 278
situationist, 73
skepticism in, 10, 27
teleological, 129, 16667, 169
eudaemonism, 52
evil, 68
Evolution of Cooperation, The (Axelrod), 200,
212
exchange
and false promising, 145
ideal exchange of roles, 239, 244, 27071
justice in, 94, 101, 113
markets, 206, 209, 257
and reparation theory of punishment, 153
transcendental, 26976
voluntary agency in, 91
experience
categorical imperative and, 68, 69, 80
integrating into moral theory, 8084
expiation theory of punishment, 160
false promises
free riding in, 139, 148
the Grounding on, 67, 12530
and ideal exchange of roles, 244
Kants analysis of, 67, 68, 82, 12549
as not universalizable, 132, 14049
rigorism of Kants doctrine on, 11, 128, 135
for testing moral principles, 12, 130
false witness, 237
family, 254, 258, 26061
family law, 72, 281, 282
Ferguson, Adam, 277
Feuerbach, Ludwig, 25, 154
Feyerabend, Paul, 2, 3
force. See also authorized force; Herrschaft
asymmetry arising from, 18283
punishment as imposed by, 158, 159, 166
Forschner, M., 158
Foucault, Michel, 37
Foucher, Simon, 25
Franck, Sebastian, 180
Frankfurt School
on critique, 6, 18, 19, 21
Habermas and, 249, 251, 253, 263
freedom (liberty)
of action, 87, 89, 91, 93, 100, 101, 230
as condition of republican state, 18586
ethical, 55
negative, 8788
priority with peace and justice, 184
in Rawlss theory of justice, 216, 224, 229,
230
of the will, 5051, 87, 89, 92
free riders, 11920, 139, 148, 2012, 206, 207
French Revolution, 17778, 195
Freud, Sigmund, 96, 250, 265
functional systems, 3536, 39
game theory, 199, 200, 213, 218
Geismann, Georg, 192
general will, 52, 78, 220, 243
generosity, 2045, 211
genetic altruism, 208
globalization, xvixvii
God, 63, 245
Golden Rule, 204
good
common good, 7980
peace as, 184, 190
primary social goods, 21718, 227, 286
unconditioned, 52, 54, 7477, 80
utilitarianism on moral, 1089
good will, 5254, 75
Index_PS_Hoffe_117022 6/12/02 11:02 AM
302 Index
Gregor, Mary, xiv
Grounding (Kant)
the categorical imperative in, 5354
categorical imperative of law absent in,
85
empirical elements in, 68
on false promises, 67, 12530, 135, 14043
imprecision in formulation of program of, 70,
75
and legal rigorism, 13738
and philosophy of consciousness, 239
as primary metaphysics, 61, 67
Rawls citing, 228
two meanings of application in, 81
on unconditioned good, 52, 74
virtue-specific treatment of morality of, 55
Habermas, Jrgen, 24987
on basic rights and human rights, 28586
Between Facts and Norms, xvii, xviii, xx,
250, 27687
on communicative action, 25163
on critical theory, 25153, 279
on democracy, xviixx, 28687
discourse ethics of, 250, 26668
on discourse theory for political legitimation,
28384
on fundamental rights, 28485
on Hegel, 255, 256, 264
Hffe engaging from Kantian perspective,
xvii
on Hffes Political Justice, 26976
on ideal exchange of roles, 239, 244, 27071
on inner colonization, 25863
as intermediary, 254
on juridicalization, 258, 259
Justice and Solidarity, 283
and Kant, 198, 250, 255, 256, 257, 258, 262,
264, 267, 28081
Knowledge and Human Interests, 252, 253
Legitimation Crisis, 277
on limitations on philosophy, 8, 73, 26366
Moral Consciousness and Communicative
Action, 250, 263, 265
Morality and Ethical Life, 286
Notes on a Program of Justification, 73
Philosophy as Placeholder and Interpreter,
250
on philosophy of consciousness, 25557
on post-metaphysical thinking, 60, 66
Page 302
proceduralism of, xviii, xxxxiii
project of, 24950
Rawls criticized by, 62, 279, 28081
and Rawlss veil of ignorance, 21920
on real-life argumentation, 27475
on reason-based morality, 28182
Structural Transformation of the Public
Sphere, 277
Theory of Communicative Action, 199,
24963, 277
and transcendental argument, xixxx, xxiii
Work and Interaction, 261
Hammurabi, codex of, 281
happenstance, 246
happiness
in Aristotelian ethics, 77
correspondence with virtue, 246
Kant distinguishing morality from, 52, 90
in utilitarianism, 106, 107, 109
Hare, Richard, 140
Hartmann, Nicolai, xx, 105
Hassemer, W., 170
hedonic calculus, 1067
Hegel, Georg Wilhelm Friedrich
and Aristotelian ethics, 80
on categorical imperative, 82, 198
on critique, 18
Habermas on, 255, 256, 264
on human rights, 59
on justice, 111
Kant compared with, 9
on Kantian morality as mere ought, 23637
law and the state acknowledged by, 278
on master/slave relationship, 181
on reason-based conceptions of law, 281
on retributive punishment, 12, 152, 168
rigorism and formalism as challenges to, x
on work, 262
Heidegger, Martin, 75, 198, 235, 264
Held, David, xvixvii
helping others, 81, 126, 129, 133, 143, 145
Herman, Barbara, x
Herrschaft, 199213
arguments for necessity of, 20913
and exhaustion of utopian energies, 175,
176
game theory for legitimating, 199
Kant on freedom from, 186, 191
limits to freedom from, 20613
in modern social philosophy, 200203
Index_PS_Hoffe_117022 6/12/02 11:02 AM
radical critique on freedom from, 28
in theory of democracy, 27879
Hobbes, Thomas
on authorized force, 9697
and dilemma of recognition, 212, 213
on generosity, 205, 211
Kantian concept of law contrasted with, 88,
8990
on life as first priority, 73
on man as wolf to man, 201
on political nature of man, 63
on public power to stop free riding, 202
on state of nature, 207
Hffe, Otfried
on categorical imperative, xixii
diverse traditions engaged by, vii
on Habermass deliberative democracy,
xviixx
Human Rights as Legitimation of
Democratic Politics, 286
on justice versus politics in Kant, xiixv
on Kants continuing relevance, viii, x
on Kants cosmopolitanism, xvxvii
Political Justice, 1314, 26976
and Rawls, viii, ix
on regress problem in Habermas, xix, xxii,
xxiii
on transcendental inquiry, xxiiixxiv
homosexuality, 57
honesty, 143, 14547, 201
Horkheimer, Max
deficient treatment of the state of, 277
and Habermass theory of communicative
action, 251
on instrumental rationality, 252, 256
negative critique of, 19, 287
in post-Hegelian philosophy, 264
Hugo, Victor, 42, 45
humanists, 24, 28
human rights
anthropological justifications of, 7374
as categorical principles, 1, 31, 5960
and common good, 7980
and democracy, 287
and ethical relativism, 226
growing recognition of, viii
guarantees required for, 213
Habermas on basic rights and, 28586
Kant on, 64, 285
and moral anthropology, 70
Page 303
Index 303
as natural, 83
political system as bound by, 44
principle of, 9299
in proceduralist conception of democracy, xx
recognition as first task of republics, 186
reparation as based on, 165, 173
right to form states, 189
social-scientific thinking and, 2
and utilitarianism, 108, 117
Human Rights as Legitimation of Democratic
Politics (Hffe), 286
Humboldt, Wilhelm von, 178
Hume, David, 22, 25
Husserl, Edmund, 264
Idea for a Universal History from a
Cosmopolitan Point of View (Kant), 178,
228
ideal discourse, 24142, 244
immortality of the soul, 63, 245
imperfect duties
and action, 82
and consequences, 129
as duties of virtue, 126, 127
exceptions allowed for, 135
in Groundings division of duties, 126
legitimating, 128
in Mills analysis of justice, 116
negative application of categorical imperative
to, 132
inclination
moral obligation contrasted with, 53, 68,
13133, 137, 13844, 237
social welfare promotion as, 162
Independence of Moral Theory, The (Rawls),
225
independence thesis, xiixiv
individual, instrumentalization of the, 121, 165
individualism, legitimation-theoretical, 27374
individuality, 100
injunctions, 132
innocent, punishment of the, 16166
instrumentalization of the individual, 121, 165
intellectual autonomy, 2829
interests. See also self-interest
categorical principles of law ignoring, 91
conflict of, 133
corporeal beings having, 88
stranscendental, 271, 275
intersubjectivity, 243, 26973
Index_PS_Hoffe_117022 6/12/02 11:02 AM
304 Index
Jaspers, Karl, 55
Johnson, Oliver, 23132
Jonas, Hans, 4, 62, 176, 178
juridicalization, 258, 259
jus talionis
Hegel on, 168
Kant on, 151, 154, 155
reciprocity as core idea of, 153
reparation theory contrasted with, 152
and severity of punishment, 167
justice. See also retributive justice
categorical imperative containing idea of, 138
conflict resolution and just law, 183
corrective, 94, 101
and democratic procedure, xxi
in exchange, 94, 101, 113
force for defending, 9798
and function-specific morality, 38
in Habermass Between Facts and Norms, 282
as historically conditioned, 22627
just wars, 187
Kantian theories of, 216
law-defining level of, 46
Mill on, 10923
moral concept of law and, 94
natural, 272, 274, 275
as objectivity, 27
perversions of, 16366
versus politics in Kant, xiixv
priority with peace and liberty, 184
procedural, 113
Rawlss theory of, 21532
and self-interest, xiiixiv, 119, 2036
special reparation based on, 169
utilitarianism criticized in name of, 10610,
215
Justice and Solidarity (Habermas), 283
Kant, Immanuel. See also Critique of Practical
Reason; Critique of Pure Reason;
Grounding; Metaphysics of Morals;
Perpetual Peace
on anthropology and ethics, 6774
and Apels discourse ethics, 23347
Aristotle compared with, 911, 7780
on artist nature, 19394
on authorized force, 9599
The Conflict of the Faculties, xv, 41
constructivist versus teleological
interpretations of, xixii
Page 304
contemporary political theorists and, xvii
continuing relevance of, viii, x
cosmopolitanism of, xvxvii, 185
criticisms of ethical theory of, 11
on critique, 67, 1718, 2527, 260
Critique of Judgment, 239
deontological position of, 129
and Descartes, 238
on emancipation of law from disposition,
4855
fact of reason doctrine in, 23638
first and second moral philosophy in, 7, 10
on French Revolution, 17778
Habermas and, 198, 250, 255, 256, 257, 258,
262, 264, 267, 28081
Hegel compared with, 9
Hobbes contrasted with, 8990
on human rights, 64, 285
Idea for a Universal History from a
Cosmopolitan Point of View, 178, 228
on invisible church, 231
justice versus politics in, xiixv
and legal positivism, 40, 4142, 43, 45
and legitimation-theoretical individualism,
274
as liberal, 90
on metaphysics and categorical principles, 59,
61
on metaphysics as necessary, 77
and modernity, 114
on morality and law, 5558
morality distinguished from legality by,
4854, 130, 24344
on natural inclination to war, 2078
on natural law, 55, 83
On a Supposed Right to Lie Because of
Philanthropic Concerns, 134
On the Common Saying: This May Be True
in Theory, but It Does Not Apply in
Practice, 18, 8990, 97, 228
on persons, 87
philosophys importance weakened by, 6566
on political nature of man, 63
on postulates of practical reason, 6263,
24547
Prolegomena to Any Future Metaphysics,
77
on public power to stop free riding, 202
on radical skepticism, 2526
Rawls and, viiix, 13, 198, 21532
Index_PS_Hoffe_117022 6/12/02 11:02 AM
rehabilitation of, viii, 198
on retributive punishment, 12, 15174
on synthetic a priori judgments, 6465
theory of categorical principles originating
with, 4
on transcendental dialectic, 2930
transcendental program restricted to the
theoretical by, 75, 23536
twofold task of ethical writings of, 67
on unconditioned good, 7477
utilitarianism opposed by, 90
on welfare state, 52, 57, 90, 216
What Is Enlightenment?, 18
on a world-republic, xvi, 18796, 202
Kelsen, Hans, 40, 4547, 284
Kersting, Wolfgang, xii, 55
Knowledge and Human Interests (Habermas),
252, 253
Kohlberg, Lawrence, 265
Korsgaard, Christine, x, xi
Kuhn, Thomas, 234
large power of small numbers, law of, 207, 208,
209
law. See also categorical principles of law; legal
positivism; legislation; natural law; penal
law
ambiguity in, 12
categorical imperative as receiving little
attention in, 4, 31
conditions of application of, 8691
critical theory ignoring, 27679
emancipation from disposition, 4854
empirical thinking in, 12
force of, 46
as fundamental form of human coexistence,
28
Kant on morality and, 5558
objectivity of, 45, 47
in premodern contexts, 28182
release-from-morality thesis, 7, 3142
rule of law, xx, 12, 51, 52, 277
science contrasted with, 47
legal positivism
on authorized force, 9598
Kant influencing, 45
Kelsens pure theory of law, 4547
of Mill, 115
on morality in law, 4042
as radical critique, 25
Page 305
Index 305
legislation
categorical principles of law giving norms to,
4345
errors in, 163
as framework conditions, 273
Mill on application and, 111, 112, 115
Legitimation Crisis (Habermas), 277
lex talionis. See jus talionis
liberalism
ambiguity regarding, viii
Kant as exponent of, 90
Kants doctrine of right legitimating, 12
Rawlss defense of, ix
rights fundamentalists, xviii, xix
liberty. See freedom
life. See also suicide
legal protection of, 281, 282
natural urge to live, 131
right to, 7374, 95, 227, 277, 286
Locke, John, 154, 155
logical positivism, 60
Lbbe, H., 4850
Luhmann, Niklas
Habermas and, 283, 284
Kantian argument compared with, 44, 50
release-from-morality thesis of, 3342, 79,
99100
Lukacs, Gyorgy, 252, 256
lying. See also false promises
false witness, 237
prohibition against, 5, 126, 127, 132, 13438,
16162
Lyotard, Jean-Franois, 3, 81
Machiavelli, Niccol, 182
MacIntyre, Alasdair, viii
Madison, James, xxiii
Marcuse, Herbert, 277
markets, 206, 209, 257
Marquard, Odo
on affirmation, 19
categorical imperative rejected by, 56
on the commonplace, 9, 18, 7879
conservative critique of liberalism of, viii
Kant and Hegel contrasted by, 9
on license for curiosity, 21
on limitations of philosophy, 8
on transcendentally grounded ethics, 32, 33,
62, 72
marriage law, 72, 281, 282
Index_PS_Hoffe_117022 6/12/02 11:02 AM
306 Index
Marx, Karl
critical theory as heir to, 249, 250
on critique, 25, 250, 260
Habermas on paradigm of consciousness of,
256
Kantian ethics dismissed by, 198
on utilitarianism, 106, 121
on work, 251, 261, 262
maxims, 53, 69, 138, 227, 267
Mead, George Herbert, 239, 244, 253, 270
media, the, 247
Mendelssohn, Moses, 89, 90, 126
metaphysics
in Aristotles ethics, 80
in categorical principles of law, 89,
5984
demise of, 60
and diversity, 100
etymology of, 61
human rights as dependent on, 5960
Kant as overestimating, 70, 83
Kantian critique of, 17
Kant on necessity of, 77
modernitys neutrality regarding, 7
Rawls rejecting, 60, 64, 7677, 217,
22427
religion associated with, 6263
turn to practice in, 6166
Metaphysics of Morals (Kant). See also
Doctrine of Right; Doctrine of Virtue
on antinomy, 43
domains of right and virtue in, 228
Kants foundational writings anticipating, 56
and philosophy of consciousness, 239
as secondary metaphysics, 61, 67
on substantial ethical life, 236
on system of a priori cognition, 65
Michelman, Frank, xviii
Mill, John Stuart
on being deserving of punishment, 11520
on categorical imperative and utilitarianism,
12122
on death penalty, 152, 154
on justice, 10923
law and the state acknowledged by, 278, 280
qualitative hedonism of, 107, 123
as rule-utilitarian, 112, 118
translated into German, 106
Utilitarianism, 110, 121, 123
Millar, John, 277
Page 306
modernity
and critique, 2325
destructive power of, 105
Habermass renovation of, 249
Kant in dialogue with theory of, 114
morality acquiring new origin in, 52
neutrality of, 7, 33, 79
polyphonic interpretation of, 34, 17
postmodernity as beginning in, 3
Montesquieu, Charles de, 25, 154, 155
Moral Consciousness and Communicative
Action (Habermas), 250, 263, 265
morality. See also ethics; good; justice; moral
obligation; rights; virtue
acquiring new origin in modernity, 52
ambivalence of, 34
Apels definition of, 234
categorical imperative defining, 6, 7
concept underlying categorical principles of
law, 78
as conflict-generating, 34
emancipation of law from disposition, 4854
ethics waves, 34
experience-independent justification of, 64
as fact of reason, 23638
function-specific, 3638
fundamental reflection on, 1011
Kant on law and, 5558
legality distinguished from, 4854, 130,
24344
legal positivism on, 4042
metaphysics and, 89
modernitys neutrality regarding, 7, 33, 79
moral anthropology, xi, 9, 6774
prudence contrasted with, 220
reason-based, 28182
release-from-morality thesis, 7, 3142
and self-interest, 53, 225
theological foundation for, 245
Morality and Ethical Life (Habermas), 286
moral obligation. See also duties
as applying to persons not things, 87
and categorical imperative of law, 86
inclination contrasted with, 53, 68, 13133,
137, 13844, 237
as metaphysical, xi, 72, 76, 80
moral pedagogy, 69
moral philosophy. See ethics
moral sentiment, 278
multiculturalism, vii
Index_PS_Hoffe_117022 6/12/02 11:02 AM
Nancy, Jean-Luc, 22
natural law
anthropological and rationalistic, 83
Habermas on, 279
Kant on, 55, 8384
and legitimation of penal law, 166
nature, artist, 19394
negative freedom, 8788
Neumann, Franz, 276, 277
Nicomachean Ethics (Aristotle), 66, 78, 81
Nietzsche, Friedrich
and death of the subject, 37
in demise of metaphysics, 60
on judicative critique, 22
Kantian ethics rejected by, 198
on morality of autonomy, 52
on otherworlders, 64
on utilitarianism, 106, 107
Notes on a Program of Justification
(Habermas), 73
Nozick, Robert, 95
nuclear war, 182, 183
objectivity
categorical imperative of law and, 101
of the critic, 22, 23
of the law, 45, 47
post-Kantian critique rejecting, 27
transcendental critique on, 2526
unconditioned good and practical, 76
obligation, moral. See moral obligation
On a Supposed Right to Lie Because of
Philanthropic Concerns (Kant), 134
ONeill, Onora, x, xi, 238
one-time offenders, 165
On the Common Saying: This May Be True in
Theory, but It Does Not Apply in Practice
(Kant), 18, 8990, 97, 228
Parsons, Talcott, 253, 255, 278, 279
Patzig, G., 60
peace, 17596
as categorical imperative of law, 17884
as direct duty, 183
and freedom from conflict, 18081
perpetual, 180, 184
priority with liberty and justice, 184
survival taken as basis for, 18182
penal law, 15174. See also punishment
absolute and relative theories of, 160
Page 307
Index 307
crime as concern of, 157
form of norm of, 171
Kants definition of, 15658
revenge distinguished from, 156
perfect duties
and action, 82
exceptions not allowed for, 135
in Groundings division of duties, 126
legitimating, 128
in Mills analysis of justice, 116
negative application of categorical imperative
to, 132
Perpetual Peace (Kant), 17796
Articles of Definition of, 179, 185
on human rights and supersensuous
world, 64
on nation of devils, xiii, 51
negative critique in, 18
positive conception of law in, 41
the teleological in, xv
two concepts of nation in, 190
on universal monarchy, 188
utopian aspects of, 187
on world-republic, 18796
persons, 87, 88, 23031
philosophy. See also ethics; metaphysics
Habermas as intermediary between social
science and, 254
Habermas on limitations on, 8, 73, 26366
as handmaid, 266
as judicative critique, 21, 22
Kant comparing science with, 238
Kant on philosophers role, 179
Kant weakening importance of, 6566
modern social, 200203
Philosophy as Placeholder and Interpreter
(Habermas), 250
Piaget, Jean, 265
Plato
Aristotelian criticism of the Forms, 66
on critique, 22, 24
as independent of politics, 35
on peace, 180
on philosopher-kings, 179
Republic, 180, 200
on self-interest in cooperation, 200
pluralism, 2, 99
Political Justice: Foundations for a Critical
Philosophy of Law and the State (Hffe),
1314, 26976
Index_PS_Hoffe_117022 6/12/02 11:02 AM
308 Index
politics. See also democracy; republics
and function-specific morality, 36, 37
versus justice in Kant, xiixv
legitimacy questions regarding, 39, 63, 64,
7980, 102, 28384
moralizing in, 4849
political equality, xxi
revolutions, 177
rightness versus process, xviixviii, xxii
Poliziano, Angelo, 28
popular sovereignty, 286
positivism. See also legal positivism
logical, 60
postmodernity, 2, 3, 24, 99100
power
cooperation presupposing equality of, 21013
division of powers, 7980, 186, 277
Practical Philosophy/Ethics (Apel), 234
practical reason
ascribing to humanity, 68, 69
fundamental law of, 86
Kant on postulates of, 6263, 24547
natural law as grounded in, 83
as neutral between areas of application, 54
penal law legitimated by, 165
and real life, 9
transcendental philosophy excluding, 75,
23536
pragmatism, 234
premeditation, 174
prevention of crime
as consequence of punishment, 119
in contemporary penal law, 12, 151
German drug law and, 170
reparation theory leaving room for, 157,
17374
utilitarianism associated with, 119, 154
primary social goods, 21718, 227, 286
priorities, conflict of, 134, 135, 136, 138, 141
prisoners dilemma, 199, 200, 2036, 21011
proceduralism, xviii, xxxxiii
procedural justice, 113
prohibitions, 132
Prolegomena to Any Future Metaphysics (Kant),
77
promising. See also false promises
credibility in, 14346
property, 7172, 91, 281, 282
prudence, 220, 226, 227, 231
Pufendorf, Samuel, 134, 154
Page 308
punishment, 15174
of all the guilty, 164
as categorical imperative, 12, 15556, 17172
dual function of, 120
expiation theory of, 160
as imposed by force, 158, 159
of the innocent, 16166
as last resort, 157, 171
legitimations of, 15867
as meted out because of something, 15657
Mill on being deserving of, 11520
prospective force of, 120, 157, 173
as reparation, 15258
as retrospective by nature, 119, 157, 173
revenge distinguished from, 153, 156
severity of, 16771, 172, 174
unified theory of, 17174
Pure Theory of Law (Kelsen), 45
qualitative hedonism, 107, 123
Rapoport, Anatol, 203
rationality. See reason
rationalization, 252, 253, 254, 265
Rawls, John, 21532
on authorized force, 95
decision-theoretical concept of rationality of,
21820, 223, 229
economic bias of, 229, 231
first principle of justice of, 216, 22930
Habermass criticism of, 62, 279, 28081
Hffe engaging from Kantian perspective,
xvii
The Independence of Moral Theory, 225
on individual life-plan, xi, 7374
and Kant, vii, viiix, 13, 198
on moral person, 23031
as nonmetaphysical, 60, 64, 7677, 217,
22427
political justice as focus of, 217, 228
and postulates of practical reason, 245
on primary social goods, 21718, 227, 286
on reflective equilibrium, xxiii
and the regress problem, xxii
right versus virtue in, 22732
rule-utilitarianism in, 219, 221, 22324, 227
second principle of justice of, 216, 22930
social given priority over personal in, 228
A Theory of Justice, viii, 215, 216, 269
on unanimity, 270
Index_PS_Hoffe_117022 6/12/02 11:02 AM
on utilitarianism, 110, 21524
on veil of ignorance, 21922, 223, 224, 225,
22627
on welfare state, 216, 229, 281
on well-ordered society, 231
reality principle, 96
reason. See also practical reason
antinomies generated by, 43
categorical imperative of law corresponding
to, 42
in Habermass theory of communicative
action, 251, 25254, 256, 257
instrumental, 251, 252, 256
morality based on, 28182
Rawlss decision-theoretical concept of,
21820, 223, 229
as republican for Kant, 239
as ultimate critical authority, 28
Weber on rationalization, 252, 253, 254, 265
Rechtslehre (Metaphysics of Morals). See
Doctrine of Right
reciprocity
cooperation based on, 209, 210, 211
in discourse ethics, 243
Golden Rule, 204
in reparation theory of punishment, 153
and social solidarity, 283
in tit for tat strategy, 2034
recognition, dilemma of, 21213
regress problem, xix, xxiii
rehabilitation, 151, 15253, 160, 170
relativism
anthropological, 89
in Rawls, 226, 227
reparation, 15274
as categorical imperative, 15556
and empirical turn in penal law, 15354
general, 161, 172
human rights as basis of, 165, 173
in legitimation of punishment, 16067
punishment as, 15258
reciprocity as core idea of, 153
special, 16771, 172
in unified theory of punishment, 17174
Republic (Plato), 180, 200
republics. See also world-republic
Kant calling for, 179, 185
Kant on French, 177
Kants conditions for, 18587
reason as republican for Kant, 239
Page 309
Index 309
resocialization, 12, 151, 157, 16465, 170, 174
retributive justice. See also reparation
as categorical imperative for Kant, 12, 44
Golden Rule, 204
Mill on, 119
modern penal theories contrasted with,
15152
and social sciences, 2
and special branch of second moral
philosophy, 5
and tit for tat strategy, 203
revenge, 153, 156
revolutions, 177
rights. See also human rights
basic, 28586
duties of right, 56, 82
equality of right, 183
Habermas on fundamental, 28485
Kant distinguishing virtue and right, 227,
231
and layering of categorical imperative, 6
regress problem, xix, xxiii
rights fundamentalists, xviii, xix
rigorism, ethical, x, 12829, 13338, 162
Riley, Patrick, xivxv
Ritter, Joachim, 21
Robespierre, Maximilien, 177
Rorty, Richard, 264
Rousseau, Jean-Jacques, 177, 180
rule of law, xx, 12, 51, 52, 277
rule-utilitarianism
characteristics of, 112, 113, 114, 118
and false promising, 140, 149
in Rawls, 219, 221, 22324, 227
Saint-Pierre, Charles Irne Castel, abb de,
177, 180
Sandel, Michael, viii
Scheler, Max, xx, 82
Schiller, Friedrich, 11
Schmitt, Carl, viii, 33
Schopenhauer, Arthur, 89, 134
science
and function-specific morality, 36, 37, 38
Habermas on philosophy and, 26366
Kant comparing philosophy with, 238
law contrasted with, 47
Scottish moral philosophy, 277, 278
Searle, John, 235
self-defense, 118
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310 Index

self-interest disenchantment of, 257, 27273

in decision theory, 218
and dilemma of recognition, 213
versus duty, 131
in game theory, 200
versus genetic altruism, 208
human rights based on, 117
and justice, xiiixiv, 119, 2036
and morality, 53, 225
punishment justified by, 118
in Rawlss theory, 76
rule of law based on, 51, 52
utilitarianism associated with, 105
self-respect, 36
sentiment, moral, 278
sexual crimes, 168, 281
Sidgwick, Henry, 110, 216
Singer, Marcus, 140, 149
Singer, Peter, xxi
situationist ethics, 73
skepticism
ethical, 10, 27
radical, 25
and release-from-morality thesis, 32, 39
slander, 168
small numbers, law of large power of, 207, 208,
209
Smith, Adam, 22, 277, 278
snowball effects, 207
social anthropology, 71, 88
social-choice theory, 218
social contract, xvi, 217, 218, 28384
social goods, primary, 21718, 227, 286
social nature of humankind, 96
social philosophy, modern, 200203
social programs, 101
social solidarity, 28283
social welfare. See also welfare state
defined, 66
and juridicalization, 260
Socrates, 22, 28
solidarity, social, 28283
soul, immortality of the, 63, 245
sovereignty, xvixvii, 191, 195, 257, 286
specialization, 254
Spirit of the Laws (Montesquieu), 25, 154
Starobinski, Jean, 20
state, the. See also welfare state
autonomy for, 192
critical theory ignoring, 27679
human rights guaranteed by, 213
Kant rejecting overvaluation of, 94
social contract theory of, xvi, 217, 218,
28384
social programs, 101
as subject-analogous agency, 25758
state of nations, 189
state of nature, xvi, 96, 190, 207, 284
Stoicism, 60, 137
Structural Transformation of the Public Sphere
(Habermas), 277
Stuttgart Hegel Congress (1981), 264
subject-analogous agencies, 257
subjectivity, 243
suffering, 246
suicide
duty versus inclination in, 131, 138
in the Grounding, 126
the law and, 57
and life seen as highest priority, 73, 74
negative application of categorical imperative
to, 132, 133
practical reason tested by, 68
semantic element in argument against, 143
sympathy, 118
talents, developing ones, 57, 126, 133, 143, 230
technology, 175
teleological ethics, 129, 16667, 169
teleological interpretation, xivxv
Theory of Communicative Action (Habermas),
199, 24963, 277
Theory of Justice, A (Rawls), viii, 215, 216, 269
Thomas Aquinas, 134
Thomasius, Christian, 134, 154
tit for tat strategy, 2036
transcendental dialectic, 2930, 43
Trapp, R., 110
Tugendhat, Ernst, 60, 6869, 82
Tugendlehre (Metaphysics of Morals). See
Doctrine of Virtue
universalizability
and autonomy, 52
categorical imperative on, 53, 80
as criterion of universal morality, 54, 72, 81,
131, 132
discourse ethics and, 241, 244
in domains of virtue and right, 227
Index_PS_Hoffe_117022 6/12/02 11:02 AM
false promising as not universalizable, 132,
14049
Habermas on, 26667
nonempirical universalization, 13844
and Rawlss veil of ignorance, 22526
universal monarchy, 188
universals
contemporary distrust of, vii
Kant on universal law, 9294
Lyotard on, 3, 81
Urmson, J. O., 112
utilitarianism, 10523. See also rule-
utilitarianism
act-utilitarianism, 112, 114
categorical principles rejected in, 1112
discourse ethics compared with, 26869
divided, 113, 114
German antipathy for, 1056
justice objection to, 10610, 215
Kant opposing, 90
and prevention theory, 154
Rawls opposing, 110, 21524
as teleological, 129
Utilitarianism (Mill), 110, 121, 123
utopias, 17576
Vanberg, V., 16364
veil of ignorance, 21922, 223, 224, 225, 22627
Virginia Bill of Rights, 285
virtue
as control of desire, 53
duties of, 56, 82, 126, 127
Kant distinguishing right from, 227, 231
and layering of categorical imperative, 6, 7
twofold definition of, 56
virtue-specific treatment of morality, 55
war
confessional civil wars, 181
of extermination, 182, 183
just wars, 187
Kant on forbidding, xv, xvi, 181, 187
Kant on natural inclination to, 2078
little wars, 183
nuclear, 182, 183
as reality for much of the world, 176
Page 311
Index 311
Weber, Max
Habermas influenced by, 252, 253, 255, 257,
279
law and the state acknowledged by, 278,
279
on rationalization, 252, 253, 254, 265
welfare. See also social welfare
collective, 163, 164, 172, 173, 221, 222
welfare state
categorical principles of law for justifying,
101
consensus favoring, 277
dissatisfaction with, 175, 260
Frankfurt School on, 19
and juridicalization, 260
Kant on, 52, 57, 90, 216
Rawls on, 216, 229, 281
What Is Enlightenment? (Kant), 18
will
freedom of the, 5051, 87, 89, 92
as fundamental concept of practical
philosophy, 80, 239
general will, 52, 78, 220, 243
good will, 5254, 75
maxim as determination of, 53
moral law presupposing, 68
Williams, Bernard, x, 75
Willke, H., 257
Wittgenstein, Ludwig, 235, 264
Wolff, Christian, 90, 134
Wood, Allen, xi
work, 251, 26162
Work and Interaction (Habermas), 261
work ethic, 262
world-republic, 18796. See also confederation
of nations
as mere ought, 195
as morally mandated for single task, 18889
as secondary state, 189
as self-contradictory, xvi, 190
skepticism regarding, xvi, 18788
World War One positional warfare, 205, 209
Yovel, Yirmiyahu, xiixiv
zero-sum games, 205
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