Metaphysical foundations of legal theory

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The Metaphysical Beginnings of Legal Doctrine appeared in 1797 as an independent first part of the Metaphysics of Morals by the philosopher Immanuel Kant . Legal doctrine is a "system of the principles of law" in which Kant uses the Critique of Pure Reason (KrV) as well as the Basic Scriptures on Ethics, the Foundations of the Metaphysics of Morals (GMS) and the Critique of Practical Reason (KpV) applied principles to the field of law.

The doctrine of law “only concerns the formality of the arbitrariness to be restricted according to the laws of freedom in the external relationship;” Kant looked for general and necessary legal principles that arise a priori from pure reason and examined the extent to which these principles should be based on empirical legal practice. After deriving the general principles, Kant discussed their application in private and public law.

Contents overview

content
  • preface
  • Introduction to the Metaphysics of Morals
  • Introduction to legal theory
  • Private law
  • Public law

After a short preface in which Kant defended the principle of critical philosophy, in an “Introduction to the Metaphysics of Morals” he put it into the entire system of his philosophy. This introduction is part of the legal doctrine, because the second part of the Metaphysics of Morals - the doctrine of virtues - was published as a separate book in August 1797 about six months later. Accordingly, there is a second introduction to legal doctrine that deals specifically with the general principles of law. Here Kant discussed the concept of law, the general principle of law, the question of coercion, the relationship between law and the problem of equity, and the question of emergency law. Finally, he discussed possible divisions of the law according to legal obligations and systematically.

Only after the fundamental discussions of the introduction are there two detailed, strictly separate parts of considerations on private law and public law. The starting point of private law is the establishment of property, which is followed by considerations on property law, personal law and family law (personal law in a real way). The subject of public law in Kant are constitutional law, international law and global civil law.

Legal principles

The idea of ​​freedom as the starting point of law

Contrary to the doctrine of natural law that had prevailed until then , Kant wanted to develop a system of legal principles based solely on the principles of reason. In KrV he had shown that man cannot recognize any transcendent basis for his actions. In his ethics (GMS, KpV) he had established that human reason demands the acceptance of practical freedom. It is one of the incontrovertible experiences of man that he can set goals and realize them despite all inclinations. It follows from this that man is autonomous. The categorical imperative takes this fact into account when it calls for humanity to be treated never only as a means, but always as an end as well (human rights formula, GMS, AA IV, 429). Reason dictates always recognizing the human being as a person:

"Every person has a legitimate right to respect from his fellow men, and for this he is mutually connected to everyone else" (TL, VI, 462)

Since the world is finite and limited, there is necessarily a conflict between the freedom of the individual and the freedom of others. The resolution of such conflicts requires the law as rules laid down by those involved for reasons of reason. In this fact lies an inevitable antinomy for the law based on freedom . Freedom is on the one hand the “only, original right to which every human being is entitled by virtue of his humanity.” On the other hand, the existence of the right means a restriction of freedom in order to guarantee the freedom of others through this delimitation. According to Kant, this restriction of freedom by law is only determined negatively, namely only to the extent that the freedom of another is not restricted. Within the framework of the law, the person concerned also has unlimited leeway to follow his own arbitrariness.

Natural law and positive law

Kant used the conventional term “natural law” for his legal principles in order to strictly distinguish this right from positive law . The subject of legal theory is natural law. Positive law, on the other hand, is not primarily based on principles, but is contingent , set by a government, and therefore does not provide a criterion for what is right.

“A purely empirical doctrine of law is (like the wooden head in Phaedrus' fable) a head that may be beautiful, but a pity! that he has no brain. "(RL, VI, 230)

Rather, natural law is always the standard for the positive laws of a legislature. The Kantian natural law can only be recognized "a priori through reason" (RL, VI, 224) and is therefore also called the law of reason . Traditional standards of natural law such as a cosmological world order, divine commandments or the natural nature of man were just as little legal for Kant as positive law. Rather, legal principles are part of the moral principles of pure practical reason. However, they do not only focus on internal self-legislation, but are restricted to the external relationships between people.

“The concept of law, insofar as it relates to a corresponding obligation (ie the moral concept of the same) primarily only relates to the external and practical relationship of one person to another, provided that their actions as facts influence one another (directly or indirectly) can. "(RL, VI, 230)

The general principle of law

Kant formulated the supreme legal principle as a categorical imperative that relates to the external relationship between people.

"The right is therefore the epitome of the conditions under which the arbitrariness of the one can be combined with the arbitrariness of the other according to a general law of freedom." (RL, VI, 230)

A restriction of freedom is therefore only permissible to the extent that it enables agreement with the freedom of another. Any other restriction is wrong. This is the limit for the legitimacy of positive law. With this legal imperative, Kant also provided a justification for the liberal, bourgeois worldview of the Enlightenment of his time. The principle of right is a negative principle because everything is allowed that is not prohibited according to this. There is only one duty not to violate the prohibition.

Compulsory authorization

“The right is connected with the power to force” (RL, VI, 231). According to Kant, this principle results analytically from the general principle of law, so that violations that limit the freedom of others granted by this principle can be prevented by coercion. Coercion in this sense is a legitimate counter-violence against injustice. The legal constraint is the "prevention of an obstacle to freedom according to general laws" - and therefore itself "right" - and logically linked to this obstacle "according to the principle of contradiction" (RL, VI, 231).

Legal obligations

According to Kant, legal obligations are obligations the fulfillment of which can be externally enforced. They are the subject of possible external legislation. The difference between ethical duties or duties of virtue, on the one hand, and legal duties, on the other, is not primarily their content, but the mainspring that is linked to duty in the law . In the case of legal obligations, this can be an external driving force; in the case of ethical obligations, this must be an internal driving force.

With reference to Ulpian's classical principles, Kant named three legal obligations as a division of legal doctrine, namely:

  1. The internal legal obligation: "Be an honorable person" or "Don't let others make you a means, but be an end for them at the same time" (honeste vive)
  2. "Do not violate the rights of others" (neminem laede)
  3. "Enter a state in which the rights of all individuals can be secured." ( Suum cuique tribue )

"Inner" right

Kant also determines an “innate”, “inner” right that everyone as a person has. It is the “right of humanity in the person of everyone” or the human right , namely “freedom (independence from another's indispensable arbitrariness) insofar as it can coexist with every other freedom according to a general law”. Kant also calls the innate right “inner mine and yours”.

Private law

The establishment of ownership

The concept of property is fundamental to Kant's legal philosophy. It expresses how the personal freedom (inner mine and yours) of the one relates to that of the other in relation to external objects. The right to individual freedom of choice means that things are subject to arbitrariness. A rejection of this freedom of choice would be a violation of the general principle of law.

“It is possible to have an external object of my will as mine; di: a maxim according to which, if it became law, an object of arbitrariness in itself (objectively) would have to become ownerless (res nullius) [a matter of no one] is illegal. "(RL VI 246)

If there are legal relationships with regard to things, then there must also be an external mine and yours. According to Kant, this is the legal postulate of pure practical reason. Kant justified this view with a negative argument.

What is legally mine is characterized by the fact that it is withdrawn from the will of another. Using it without my consent would violate my freedom of choice.

"So it is a prerequisite a priori of practical reason to view and treat an object of my arbitrariness as objectively possible mine or yours." (RL VI 246)

This applies directly to all objects of physical possession. But this does not yet define the concept of property. Kant introduced the concept of intelligible , purely intellectual property.

“But something external would only be mine if I may assume that it is possible that I could nevertheless be damaged [injured] by the use that someone else makes of the thing I do not yet have . "(RL VI 245)

The legal possession remains, even if the object of the arbitrariness is temporarily in a different place than the owner. If this were not the case, the object no longer physically possessed would become ownerless. In the case of an objectively ownerless object, however, there would no longer be the possibility of arbitrary use. So one cannot make the abandonment of things a general rule; because this would contradict the general legal principle.

After Kant had worked out intelligible property as a postulate of pure practical reason and based it on the general principle of law, he turned to the possible objects of external mine and yours. To this end, he distinguished three classes of arbitrary objects.

  1. Physical objects and things (original acquisition)
  2. the arbitrariness of another person (contractual acquisition)
  3. the condition of another person in relation to the acquiring subject (family and house rights)

By introducing different types of objects of law and then making distinctions between cases, the legal principles relate to empirical content. Nevertheless, the investigation remains on the level of reason because it is not based on any concrete empirical facts.

The original acquisition (property law)

The only original right is man's innate right to freedom. The right to a thing can therefore only arise through an original acquisition process. Kant did not regard this step as a historical development, but as an abstract process necessary for the establishment of property.

By taking possession of an object, the obligation is imposed on all others not to regard this object as free for their own arbitrariness. According to Kant, the original acquisition takes place through the appropriation of land. Any other acquisition is then a derivative (contractual) acquisition. This applies (at least in theory) even to taking possession of a shell on the beach or a stone in the field. However, nothing is achieved with a simple unilateral declaration, because "through unilateral will, an obligation cannot be imposed on others which they would otherwise not have." (RL VI 264)

The problem is that land and other goods are scarce on earth. If this were not the case, one would not restrict others with one's own arbitrariness. To overcome this dilemma , people have to rely on the idea of ​​a priori united arbitrariness. This implies that they have to accept the arbitrariness of others against themselves as well. This idea of ​​a general agreement is the basis for the fact that legal relationships with regard to external objects can exist at all. So that such an agreement can in turn be thought of at all, the idea of ​​an original ownership of all existing land by the human community is required. The land is not originally ownerless, otherwise the community would not have the right to consent to the acquisition.

According to Kant, the land is taken possession of by declaring it as external mine. The manner of empirical distribution is a question of positive law, which Kant does not deal with here. Like Locke , he rejected a constitution of property by contract, as it was represented in natural law, for example, by Grotius . Against Locke, however, he was of the opinion that work was not enough to identify property on an external thing. Like the physical occupation, this is only a sign of physical possession, not of legal possession.

Personal law (contract law)

In the second class of legal relationships with regard to the external mine and yours, duties arise from the act of making a promise by which something that is subject to one's own will is transferred to the realm of the will of another.

“But what is the exterior that I acquire by contract? Since it is only the causality of the arbitrariness of the other with regard to an achievement promised to me, I thereby directly acquire not an external thing, but an act of it, through which that thing is brought into my power. - So by contract I acquire someone else's promise (not what was promised). "(RL VI 273-274)

A promise and its acceptance are required for a contract to be effective. A contract is thus effectively concluded when the will of the parties involved is declared at the same time and in agreement. This common will is only intelligible, whereas in the empirical sequence there is a time gap between the two expressions of will. This can be shortened by external actions such as a handshake, but not canceled.

The fulfillment of a contract is independent of the contract itself. It can therefore be enforced. Through the promise, the acceptor has the right to the arbitrariness of another, namely that he also does what has been promised.

Rights acquired in rem to a person (landlord's right)

Man's innate right to freedom is inalienable. Accordingly, the individual person can neither own (and dispose of) himself, nor dispose of another person only as a means. Nevertheless, in private law there are legal relationships between persons in which these are used in a real way. It is the state of affairs “the possession of an external object as a thing and the use of the same as a person.” (RL VI 276) Kant divided this area of ​​domestic company law in the tradition of natural law teachers ( Pufendorf , Wolff , Achenwall ) into

  1. Marriage law,
  2. Parental rights,
  3. Rulership.

The acquisition of rights of this kind to persons happens through factual circumstances. So that the right to freedom is not violated, the unification of the arbitrariness of those involved in a common will must also be accepted in the landlord's law. It follows that the rights to use one person are also offset by obligations to protect the other.

A special construction is the justification of marriage law. Kant claimed that when the sexual drive is satisfied one takes possession of the other and uses his person as a means. So that the right to freedom is not violated, a community of will must be formed in which both sexual partners mutually own each other. Marriage is the only way to ensure that both of them bear the possible consequences of sexual intercourse, such as the transmission of diseases or pregnancy, with their possible consequences, without harming the other's personality. From this mutual possession, Kant concluded at the same time that marriage is indissoluble and that the abandoned spouse can demand the return of the other as his property.

For Kant, the legal relationship between parent and child already arises through the act of procreation, "whereby we have put a person into the world without their consent and brought them into it without authorization." (RL VI 281). If the parents do not recognize the child as a person and do not fulfill their obligations to protect and bring up the child, they are violating their personal rights. Due to the real nature of the legal relationship, however, the parents have the right to refuse intervention by third parties. At the same time, they are entitled to the child's obedience in the educational process. The mutual dependency between parent and child automatically expires at the age of majority, through which the child comes of age and the duties of maintenance and upbringing as well as the duties of obedience no longer apply.

In the relationship between master and servant, the model of the feudal household, which Kant had based the legal relationship between persons, comes into play. The householder has authority over the servant and the right to use his person in a real way. On the other hand, he has the duty to protect and support the servant.

Public law

Constitutional law

Kant described public law as the "epitome of laws that require general notice in order to create a legal status." (RL VI 311). Such a system of laws provides the institutional framework under a united will "to partake of what is right."

Kant called an amalgamation of a people under a legal system "civil" condition and the resulting institution " state ". "A state (civitas) is the union of a multitude of people under legal laws." (RL VI 313) Reason, according to Kant, dictates the formation of such a state, not on the basis of empirical experience of violence or malice, but solely for reasons of reason in order to abolish the unregulated state of nature in which the free will of the individual necessarily comes into conflict with the equal will of others. In a legally void space there is no way of resolving conflicts, even if everyone involved is of goodwill. In contrast to Rousseau, in whom the individual is oriented towards the overall welfare of the state, Kant based his liberal conception of the state on the free citizen, who enters the state solely out of reason and otherwise follows his or her individual interests.

Public law in the sense of Kant is also private law based on reason, provided that it has become positive law. The difference to the - purely intellectual - state of nature is that positive law “specifies the conditions under which those [the laws in the state of nature] can exercise (distributive justice)” (RL VI 313).

Kant stated without further explanation that there are three powers in the state:

  • the ruling power (sovereignty) of the legislature
  • the executive power of the government
  • the judicial power of the judge (each his own according to the law)

"Legislative power can only come to the united will of the people." (RL VI 313) The state founded on reason is constituted republican . In it apply the principles of legal freedom, civil equality and civil independence. "Only the ability to vote is the qualification for a citizen;" (RL VI 314) Here, however, Kant weakened his theoretically clear concept and made concessions to the political and social conditions of his time. Although he admitted an actual contradiction, he was of the opinion that dependent persons ("anyone who is obliged to maintain his existence (food and protection) not according to his own business, but rather according to the disposition of others (except that of the state)" (RL VI 314)) should not have voting rights. As examples he named journeymen, servants, minors (naturaliter vel civiliter) and “all women”. At the same time, he emphasized that these persons also have the right to be treated according to the laws of natural freedom and equality.

"The act by which the people constitute themselves into a state, but actually only the idea of ​​the same, according to which the legitimacy of the same can be thought alone, is the original contract, after all (omnes et singuli) in the people give up their external freedom, in order to immediately resume them as members of a common being, that is to say of the people as a state (universi). "(RL VI 315)

Only by giving up lawless freedom can one actually realize one's freedom in the rule of law. For Kant, the idea of ​​the state treaty was a theoretical construct, a thought experiment that serves to establish legal relationships in a bourgeois state based on the principles of reason.

international law

The necessity of international law arises from the fact that “before a public legal situation has been established, isolated people, peoples and states can never be safe from violence against one another.” (RL VI 312) Kant viewed the relationship between states in analogy to the relationship between individuals Individuals among each other. Without international law, a state of nature also exists between states. From this Kant derived the obligation for the states to enter into a legal situation among themselves through a League of Nations . The safeguarding of the freedom rights of the individual state must be guaranteed by the following principles:

  • no interference in the internal affairs of any other state
  • Right to defense against attacks by an external enemy

There is no government and no legislature in the League of Nations. The League of Nations is therefore not a world state for Kant.

World Citizenship

In world citizenship law (ius cosmopoliticum), the concept of which can already be found in the text On Eternal Peace (1795), Kant dealt with a general aliens law, that is, the relationship of a state to the citizens of other states. From the general freedom right it follows that every (peaceful) person is allowed to stay anywhere in the world. He enjoys the right to hospitality (visitation right) as long as this is done without violence and abuse (RL VI 353). Nobody may raise territorial claims against other states, even if one justifies "that such violence is for the best in the world". This even applies to nomads and pastoralists, for example in Africa or America. Here Kant criticized the colonization policy of his time. A right of settlement for a stranger only exists on the basis of a contract. In the Friedensschrift, Kant differentiated between the hospitality law and the hospitality law. A state can refuse the latter to a visitor and expel him as long as it is not associated with his downfall (Peace, AA VIII 358). This restriction already refers to the debate on modern asylum law .

criticism

Kant's concept of a “personal right in a material way” was already viewed critically by his contemporaries. This means marriage, landlord or family law. In marriage, according to Kant, the spouses own each other and do so “in a real way”. This means, for example, that they can force each other to remain in the state of community.

literature

Primary text
  • Bernd Ludwig (Hrsg.): Metaphysical beginnings of legal theory. Meiner, Hamburg 1986.
Secondary literature
  • Rainer Friedrich: Property and the founding of the state in Kant's metaphysics of morals. de Gruyter, Berlin 2004, ISBN 3-11-018166-5 .
  • Georg Geismann: Kant and no end 02: Studies on the philosophy of law. Königshausen & Neumann, Würzburg 2009, ISBN 978-3-8260-4194-5 .
  • Otfried Höffe (Ed.): Immanuel Kant, Metaphysical Beginnings of Legal Doctrine. (= Classical interpretation. Volume 19) Akademie-Verlag, Berlin 1999, ISBN 3-05-003025-9 .
  • Dieter Hüning, Burkhard Tuschling (ed.): Law, State and International Law with Immanuel Kant. Duncker & Humblot, Berlin 1998, ISBN 3-428-09602-9 .
  • Fiete Kalscheuer: Autonomy as the basis and limit of law. The relationship between the categorical imperative and Kant's general law of law. de Gruyter, Berlin / Boston 2014, ISBN 978-3-11-037007-2 .
  • Wolfgang Kersting : Well-ordered freedom. Immanuel Kant's legal and state philosophy. Mentis, Paderborn 2007, ISBN 978-3-89785-587-8 .
  • Diethelm Klesczewski, Frank Neuhaus, Steffi Müller (eds.): Kant's doctrine of correct law. Enlightenment of the human questions of contemporary jurisprudence? Mentis, Paderborn 2006, ISBN 3-89785-481-3 .
  • Burkhard Kühnemund: Property and Freedom - A critical comparison of Kant's legal theory with the principles of his moral philosophy. kassel university press, Kassel 2008, ISBN 978-3-89958-433-2 .
  • Bernd Ludwig: Kant's legal theory. Meiner, Hamburg 2005, ISBN 3-7873-0728-1 .

Web links

Primary texts
Secondary literature

Individual evidence

  1. ^ Jean Paul Müller: Das Weltbürgerrecht (§ 62) and decision, in: Otfried Höffe (Hrsg.): Metaphysical beginnings of legal theory. Academy, Berlin 1999, 257-258