In his article ‘Kant’s Legal Positivism’ Jeremy Waldron argues that Kant has to be considered as a legal positivist. I quote from Waldron:
We must therefore leave Kant in the classic, but honest, predicament of the true legal positivist. He has set out the advantages of positive law and given an indication of what we stand to lose if we abandon it. He does not deny that its contents may be judged wanting from the transcendental point of view of justice and right. (Waldron Reference Waldron1996: 1566)
Quoting further:
But in the transition from moral philosophy to political philosophy, Kant insists that we are to see the others not just as objects of moral concern and respect, but also as agents of moral thought that is coordinate and competitive with our own. When one thinks about justice, one must recognize that others are thinking about justice and that one’s confidence in the objective quality of one’s own conclusions is matched by others’ confidence in the objective quality of theirs. (Waldron Reference Waldron1996: 1566)
And then:
If, nevertheless, there are reasons for thinking that society needs just one view on some particular matter to which all its members are to defer, then there has got to be a way of identifying a community view and grounds for one’s allegiance to it that are not predicted on any judgment one would have to make concerning the view’s moral rectitude. That is the positivist position (Waldron Reference Waldron1996: 1566).
Martin Stone has objected that ‘this classification seems one-sided’ (Stone Reference Stone, Kisilevsky and Stone2017: 178). I quote:
Certainly, Kant shares the positivist’s thesis that the law won’t serve its purpose (of authoritatively determining morality) if legal content were sensitive to moral truth. But, unlike the positivist, Kant doesn’t suggest that this is the main thing to be said about law’s relation to morality; the main thing, for Kant, occurs in the antecedent stages, which present the a priori principles of Innate and Private Rights. (Stone Reference Stone, Kisilevsky and Stone2017: 178)
Stone, however, continues that ‘this same argumentative sequence also makes it difficult to regard Kant as a non-positivist, at least if this means … that independent moral truths do determine the content of the law’ (Stone Reference Stone, Kisilevsky and Stone2017: 178). This sounds as if Kant has to be considered as standing somehow between positivism and non-positivism or as being a positivist as well as a non-positivist. Waldron’s thesis about Kant and positivism can be called the positivist thesis, Stone’s thesis the positivist as well as non-positivist thesis. I will defend a third thesis: the non-positivist thesis. The non-positivist thesis says that Kant is a non-positivist, in spite of the fact that his legal philosophy includes very strong positivistic elements.
1. A Conceptual Framework
The truth of the thesis that Kant is a non-positivist depends on the concepts of positivism and non-positivism that are used; it depends, that is, on the conceptual framework presupposed. For this reason, I will present my conceptual framework before I take up the textual analysis.
Two or Three Elements of the Definition of Law?
The debate over positivism and non-positivism turns on the relations between and among three elements: first, authoritative issuance, second, social efficacy, and, third, moral correctness. In determining the concept or the nature of law, all positivistic theories are confined to the first two elements, that is, they are confined to authoritative issuance and social efficacy. Kant refers to these two elements when he says, in paragraph 44 of the Doctrine of Right, that the individual has to
subject itself to a public lawful external coercion, and so enter into a condition in which what is to be recognized as belonging to it is determined by law and is allocated to it by adequate power (not its own but an external power); that is, it ought above all else to enter a civil condition. (DR, 6: 312)Footnote 1
Kant’s determination by law corresponds to authoritative issuance and his allocation by adequate power to social efficacy. It is no surprise that Waldron has placed this reference to the two elements of positivity in paragraph 44 at the beginning of his article (Waldron Reference Waldron1996: 1535).
The third element, moral correctness, opens the door to non-positivism. In order to pass through this door, one must, however, connect it with the two positivistic elements in a specific way: the connection must be a necessary connection. This is to say that non-positivism claims that there exists a necessary connection between law and morality.Footnote 2 Positivism can reject this either by maintaining, as Joseph Raz does, that morality is necessarily excluded from the sources of law’s ‘contents and existence’ (Raz Reference Raz2009: 47), or by arguing, as Jules Coleman does, that morality is neither necessarily excluded nor necessarily included, that is, that the inclusion as well as the exclusion is merely contingent – is, in other words, dependent on positive law (Coleman Reference Coleman2001: 108). The first is a version of exclusive positivism, the second of inclusive positivism. But this issue shall not be further pursued here.
Morality
In our context it is of pivotal importance how the third element of the non-positivistic concept of law, morality, is to be understood. One might assume that the term ‘morality’ refers to ethics in the Kantian sense. This, however, would not fit into the system of Kant’s philosophy of law. In the Introduction to the Metaphysics of Morals Kant contrasts the ‘laws of nature’ with the ‘laws of freedom’, which he calls ‘moral laws’ (DR, 6: 214). In a further step he distinguishes two kinds of moral laws: juridical and ethical laws.
As directed merely to external actions and their conformity to law they are called juridical laws; but if they also require that they (the laws) themselves be the determining grounds of actions, they are ethical laws, and then one says that conformity with judicial laws is the legality of an action and its conformity with ethical laws is its morality. (DR, 6: 214)
Kant is concerned here only with the distinction between internal and external laws. In order to make the picture complete one has to add to this Kant’s distinction between two kinds of ‘lawgiving’ (Gesetzgebung). Lawgiving, independently of whether it concerns ‘internal or external actions’, can prescribe these actions either ‘by reason alone or by the choice of another’ (DR, 6: 218). The prescription by the choice of another is characterized by Kant as ‘external lawgiving’ (DR, 6: 219). The prescription by reason can be characterized as internal lawgiving.Footnote 3 Occasionally Kant uses the term natural and positive right to describe this difference: ‘rights are divided into natural right, which rests only on a priori principles, and positive (statutory) right, which proceeds from the will of a legislator’ (DR, 6: 237).
When non-positivism refers to morality it refers to external laws stemming from internal lawgiving, in the case of Kant, to law that rests on a priori principles or reason but concerns only external actions. That is not to say that the categorical imperative is completely out of play. But if it can come into play, it can do so only from a position behind the Universal Principle of Right. The analysis of what this means, however, is not our theme (Alexy Reference Alexy and Alexy2005: 100–5; Reference Alexy and Behrends2006: 203–8).
Two Kinds of Connections between Law and Morality: Classifying and Qualifying Connections
Raz has argued against the non-positivistic thesis of a necessary connection between law and morality that it is a ‘relatively trivial thesis’ which is of ‘little interest’ (Raz Reference Raz2003: 3). One of his examples is that ‘the law cannot be in love, and therefore cannot have the virtues of true love’ (Raz Reference Raz2003: 3).Footnote 4 It is, however, easy to reject this objection by giving the connection thesis a more precise form. This more precise version of the non-positivistic connection thesis says that there exists a necessary connection between legal validity or legal correctness on the one hand, and moral merits and demerits or moral correctness and incorrectness on the other. This is to say that the connection thesis refers to the legal effects of moral defects.
According to this version of the connection thesis one has to distinguish between two different effects of moral defects: first, the loss of legal validity and, second, legal incorrectness or defectiveness. The first effect is largely recognized as a distinctive difference between positivism and non-positivism. John Gardner, for instance, considers the following proposition as the distinctive mark of positivism:
(LP) In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits. (Gardner Reference Gardner2001: 199)
The loss of legal validity, or even of legal nature, constitutes a classifying connection between law and morality. Such a classifying connection has to be distinguished from a merely qualifying connection. The effect of a qualifying connection is legal defectiveness or incorrectness that does not, however, undermine legal validity (Alexy Reference Alexy, Paulson and Paulson2002: 26). The decisive point here is that the effect of moral defectiveness or incorrectness is legal defectiveness or incorrectness. That morally defective laws are morally defective is a trivial truth. A positivist has no problem in agreeing with this. But that these laws are, over and above this, also legally defective is not only not trivial but is, indeed, of the greatest significance for the relation between the real or positive dimension of law and its ideal or non-positive dimension, and this not only for theoretical reasons, but also for reasons practical in nature. If the defect were merely a moral one, it would be difficult to explain why a higher court – independently of what the positive law says – has legal power to set aside the unjust decision of a lower court in a case in which this unjust decision is every bit as compatible with positive law as a just decision would be (Alexy Reference Alexy, Duke and George2017: 327).
My thesis is that Kant’s concept of law includes a classifying as well as a qualifying connection between law and morality. The classifying connection is rather rare and hidden. But it exists. The qualifying connection is nearly permanently present, but is expressed in so many different ways that it is often not easy to identify it. Behind these two connections stands what one might call a ‘justificatory line’, which starts with the categorical imperative, proceeds to the Universal Principle of Right (DR, 6: 230),Footnote 5 or, what amounts to the same, to the Definition of Right (DR, 6: 230) or the Universal Law of Right (DR, 6: 231), takes a next step to the Innate Right to Freedom (DR, 6: 237), goes from this point to the Postulate of Practical Reason with regard to Private Right (DR, 6: 246), in order to arrive finally at the Postulate of Public Right (DR, 6: 307), which one also might call the Postulate of Positivity.
On a first glance, this is a journey from the highest form of non-positivity to the highest form of positivity or, to say it in another way, a journey in which the preceding steps lose all their importance at one’s arrival at the final step. But this would be a completely false picture. Some aspects of the survival of the non-positivistic or ideal aspects during this travel shall be analysed here on the basis of the distinction between classifying and qualifying connections.
2. Kant’s Two Connections between Law and Morality
Three Forms of Non-Positivism
The distinction between the classifying and the qualifying connection implies that three kinds of non-positivism have to be distinguished: exclusive, super-inclusive, and inclusive non-positivism.Footnote 6
Exclusive Non-Positivism
Exclusive non-positivism is the most radical version of non-positivism. It claims that every injustice, every moral defect of a norm, precludes its being legally valid, its being law. A classical version of this view is expressed by Augustine’s statement that ‘a law that is not just would not seem to me to be a law’.Footnote 7 A recent example is Beyleveld and Brownsword’s thesis ‘that immoral rules are not legally valid’ (Beyleveld and Brownsword Reference Beyleveld and Brownsword2001: 76). There is no doubt that Kant is not an exclusive non-positivist.
Super-Inclusive Non-Positivism
Super-inclusive non-positivism is the radical counterpart of exclusive non-positivism. Super-inclusive non-positivism goes to the other extreme. It maintains that legal validity is in no way whatever affected by moral defects. At first glance this seems to be a version of positivism, not of non-positivism. This first impression, however, is mistaken. The main reason for this stems from the distinction between classifying and qualifying connections. Even if legal validity is in no case affected by moral incorrectness, that is, no classifying effect is assumed in any case of moral defectiveness, a qualifying effect can be assumed in all cases of moral incorrectness, namely legal defectiveness. Strong tendencies in this direction are to be found, for instance, in the work of Aquinas and Finnis (Alexy Reference Alexy2010: 176; Reference Alexy2012, 6) and strong textual evidence for this is also to be found in Kant. But the textual analysis cannot begin until inclusive non-positivism has been presented as an alternative.
Inclusive Non-Positivism
Inclusive non-positivism claims neither that moral defects always undermine legal validity nor that they never do. Following the Radbruch formula (Alexy Reference Alexy and Freeman2008a: 426–8; Reference Alexy, Paulson and Paulson2002: 40–62), inclusive non-positivism maintains that moral defects undermine legal validity if and only if the threshold of extreme injustice is transgressed. Injustice below this threshold is included in the concept of law as defective but valid law.Footnote 8
Classifying Connection
In an article of 2008, I characterized Kant as a super-inclusive non-positivist, that is, as a non-positivist who argues that no moral defect can ever have an effect on legal validity (Alexy Reference Alexy and Alexy2005: 105–9; Reference Alexy2008b: 288–9). This classification was based on the requirement of the Postulate of Public Right (DR, 6: 307), namely, to proceed from the state of nature to ‘a rightful’ (rechtlichen) (DR, 6: 307) or ‘civil condition’ (bürgerlichen Zustand) (DR, 6: 312), that is, to enter a condition governed by positivity. The strictness of positivity in the rightful condition is highlighted by Kant again and again, for instance, when he argues against any right to ‘resistance to the legislative head of a state’ (DR, 6: 320), or when he says that the prohibition of any insurrection and rebellion is ‘unconditional’ (TP, 8: 299), even in cases in which the legislator ‘has empowered the government to proceed quite violently (tyrannically)’ (TP, 8: 299), or when he speaks about the ‘[u]nconditional submission of the people’s will … to a sovereign will’ (DR, 6: 372).
In all of this Kant attaches a very high value to the real or positive dimension of law. But – and this is my thesis about whether Kant has included a classifying connection in his concept of law – this high value is not an absolute value. My thesis is backed by two arguments: the exemption-clause argument and the nullity argument. These two arguments are the reasons that serve to supersede my old thesis that Kant is a super-inclusive non-positivist, supplanted now by the thesis that he is an inclusive non-positivist.
The Exemption-Clause Argument
In the Appendix to the second edition to the Doctrine of Right from 1798 we find two versions of a sentence. One version sounds highly positivistic: ‘Obey the authority that has power over you’ (DR, 6: 372). Only one page earlier we find the following version: ‘Obey the authority that has power over you (in whatever does not conflict with inner morality) (DR, 6: 371). The emphasis in this sentence may well indicate that this version is the decisive one. The words in brackets are, without any doubt, the formulation of an exemption-clause. But what the exemption-clause refers to is highly unclear. What is ‘inner morality’? The sentence quoted gives us only one bit of information: Conflict with inner morality is the criterion for the revocation of the duty to obey. If one follows this line one finds in Kant’s ‘Reflections on Legal Philosophy’, which are a part of his ‘Hand-Written Remains’, two examples for a revocation of the duty to obey. Kant, first, writes there what he always writes: Force without a preceding legally binding decision, that is, before the exercise of power by the positive law, is ‘unlawful’ (unrechtmäßig) (Refl, 19: 594, note 8051). But then he continues, and this is unusual, that resistance is exceptionally possible ‘in those cases that cannot arise at all in the unionem civilem, for instance, religious coercion. Coercion directed to unnatural sins: treacherous assassination, etc. etc’.Footnote 9
This stands in a certain analogy to the Radbruch Formula. The Radbruch Formula consists of two parts, the intolerability formula (Unerträglichkeitsformel) and the disavowal formula (Verleugnungsformel) (Alexy Reference Alexy and Freeman2008a: 427). Here, only the intolerability formula shall be of interest. It runs as follows:
The positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree that the statute, as ‘flawed law’, must yield to justice. (Radbruch Reference Radbruch2006: 7)
This formula builds into law an outermost boarder. Its most concise expression is: ‘Extreme injustice is no law’ (Alexy Reference Alexy and Freeman2008a: 428). The justification of Kant’s exemption clause in the system of his legal philosophy and of Radbruch’s formula in Radbruch’s system, are, without doubt, quite different. But the structure of Kant’s clause and Radbruch’s formula are very similar. Legal validity or the obligation to obey the law is in both cases not annulled by each and every injustice or instance of immorality. It is not even rendered null by severe moral defects. The moral defect must be extreme, which Kant illustrates with his examples. Assassination is not enough. It must be ‘treacherous assassination’. One can assume that Kant’s ‘conflict with inner morality’ is a stronger threshold than Radbruch’s ‘intolerability’. The structure, however, is the same. This makes it possible to capture the similarities as well as the differences with an outermost border formula attributed to Kant that runs as follows:
Very extreme injustice is no law.
If this is an adequate reconstruction, then Kant belongs to the camp of inclusive non-positivism. But objections are possible. Two shall be considered here.
Humanitarian morality and barbaric condition
Radbruch invented his formula as a reaction to Nazi law. The first part of it, the intolerability formula, refers directly to substantive moral criteria that Radbruch summarizes under the concept of an intolerable degree of injustice. In a very short article, published in 1945, he introduces ‘human and civil rights’ (Radbruch Reference Radbruch2006: 15) as the main criteria for this. Arthur Ripstein argues that a test according to which ‘all of “humanitarian morality” is a precondition of legality in each particular case’ implies that ‘a law that is in any way defective from a moral standpoint is not a law at all’ (Ripstein Reference Ripstein2009: 348). I agree with Ripstein that in ‘such a situation, the value of legality is lost’ (Ripstein Reference Ripstein2009: 348). But the Radbruch formula has little to do with this test. It refers not to laws that are ‘in any way’ defective, but to laws that are extremely defective. If the first test were the case, Radbruch would be an exclusive non-positivist, not an inclusive non-positivist. To be sure, the problem Kant tries to solve, in §44 of the Doctrine of Right, the problem that in the state of nature ‘each has its own right to do what seems right and good to it’ (DR, 6: 312), remains to a certain degree. But it is reduced in two important points. The first is epistemic. A consensus can be achieved more easily with respect to questions of extreme, or even of very extreme, defectiveness than in cases of mere defectiveness. The second point is institutional. From a practical point of view, the main application of the Radbruch formula is an application after the collapse of an unjust regime by officials, first and foremost judges, in a rightful condition (in einem rechtlichen Zustand). If the officials of a rightful condition can decide on what law is in contested cases turning on normal questions of justice, why should they not have the power to decide pivotal questions of justice?
Ripstein suggests a systemic solution. He qualifies the Nazi system as a barbaric system, following Kant’s distinction between despotism and barbarism, as exposed in his Anthropology from a Pragmatic Point of View (Anth, 7: 330–1). Despotism is there defined as ‘law and force without freedom’, and barbarism as ‘force without freedom and law’ (Anth, 7: 330–1), that is, as system of naked power, a version of the state of nature, or, as Ripstein puts it, ‘the “official” acts of a barbaric condition are without legal force’ (Ripstein Reference Ripstein2009: 343).
To be sure, we can construct in theory barbaric systems that are not legal systems at all (Alexy Reference Alexy, Paulson and Paulson2002: 32–5) and observe them in reality, for instance when we look at criminal organizations. But felonious states such as Nazi Germany are a more complex problem. I will confine myself to one example. It concerns a decision of the German Federal Constitutional Court of 23 January 1968 about the constitutionality of the Statute on Working Time in Bakeries and Confectioneries of 29 June 1936 in the version of 30 April 1938. This Statute, modifying earlier regulations, prohibits working as a baker’s helper during the night, from 9 p.m. until 4 a.m., in order to protect employees. The Statute remained valid in the Federal Republic of Germany. The Federal Constitutional Court declared it to be constitutional (BVerfGE, 23, 50). This seems to be as correct as the famous decision, following only some weeks later, on 14 February 1968, which declared Section 2 of the Eleventh Ordinance, 25 November 1941, issued pursuant to the Statute on Reich Citizenship of 15 September 1935, which stripped emigrant Jews of German Citizenship on grounds of race, as ‘null and void, that is, invalid from the outset’, because the conflict with justice had reached ‘an intolerable degree’ (BVerfGE, 23, 98 (106)). This is a clear application of Radbruch’s intolerability formula. The two decisions illustrate that one has to make distinctions. Radbruch’s formula seems to be an adequate tool for this. This is not to say that Ripstein’s barbarism argument becomes obsolete. It plays a role in determining the degree of injustice.
The moral and the strict or pure concept of right
There remains a question. In the case of the Radbruch formula there is no doubt that it concerns the loss of legal validity or, when the disavowal formula applies, even the loss of legal character. Kant’s exemption clause refers to conflicts with ‘inner morality’ (DR, 6: 371). One must ask whether this means that the effect of a conflict with inner morality is only a loss of moral validity and not also a loss of legal validity. If an answer to this question is possible at all, then only on the basis of Kant’s distinction between a moral (DR, 6: 230) and a strict (or pure or narrow) (DR, 6: 232) concept of law on the one hand, and between ‘directly ethical duties’ and ‘indirectly ethical’ duties on the other hand (DR, 6: 221). The moral concept of law ‘is related to an obligation corresponding on it’ (DR, 6: 230). This obligation (Verbindlichkeit) is a moral obligation: ‘Obligation is the necessity of a free action under a categorical imperative of reason’ (DR, 6: 222). There is little doubt that Kant’s exemption clause refers to this moral obligation qua indirectly ethical duty. At exactly this point the main problem comes into play. It is the question of whether the destruction of the indirectly ethical duty destroys the strict, pure, or narrow right, too. The strict right is something ‘which is not mingled with anything ethical’ (DR, 6: 232). But this refers to the fact that it ‘requires only external grounds for determining choice’ (DR, 6: 232). The externality of motives is, indeed, in Kant’s legal philosophy, a crucial element of the distinction between law and ethics. But in his sentence: ‘Right and authorization to use coercion therefore mean one and the same thing’ (DR, 6: 232), Kant is using the concept of authorization, which is a normative concept. The question arises as to whether in cases of conflict with inner morality, or very extreme injustice, the authorization is destroyed, which is to say that the use of coercion is no longer a use in a rightful condition, but a use of naked force in a state of nature. This presupposes that an exclusive opposition between social situations as a whole as being either a state of nature or a rightful condition does not exhaust the range of possibilities. There might well be mixed systems. Mixed systems are social conditions that pertain when a society finds itself neither fully in a state of nature nor fully in a rightful condition.Footnote 10 In a mixed system the cancellation of the moral obligation in the moral concept of right in cases of very extreme injustice entails a cancellation of the authorization to use coercion in the strict concept of right. In such a mixed system, Kant’s exemption-clause qualifies him as an inclusive non-positivist, which refers not only to moral but also to legal validity.
The Nullity Argument
The nullity argument concerns, first and foremost, contracts that are null and void. In his article ‘What is Enlightenment?’ Kant addresses the question of a contract that prohibits enlightenment. His answer is clear:
Such a contract, concluded to keep all further enlightenment away from the human race forever, is absolutely null and void, even if it were ratified by the supreme power, by imperial diets and by most solemn peace treaties. (WIE, 8: 39)
The null and void clause is also to be found when Kant speaks about contracts of serfs and slaves:
a contract by which one party would completely renounce its freedom for the other’s advantage would be self-contradictory, that is, null and void, since by it the one party would cease to be a person and so would have no duty to keep the contract but would recognize only force. (DR, 6: 283)
This corresponds to Kant’s general rule: ‘No one can bind himself by a contract to such a kind of dependence, by which he ceases to be a person’ (DR, 6: 330; trans. amended). All of this is condensed in Kant’s Vacat with respect to the ‘relation in terms of rights of human beings toward beings that have only duties but no rights’ (DR, 6: 241).
It would be interesting to conduct a closer examination of the relation between Kant’s exemption-clause and his nullity argument. But this cannot be done here. For our purposes it is enough that these two arguments offer sufficient support for establishing that Kant’s concept of law includes a classifying connection between law and morality.
Qualifying Connection
The textual evidence for a classifying connection between law and morality in Kant’s work is rather limited. The case is different with the qualifying connection. Here, evidence is nearly always present. A qualifying connection exists when the effect of moral defectiveness or incorrectness is legal defectiveness or incorrectness that does not, however, cancel legal validity.
The Ideal Dimension of Law
The transition from the natural condition to the rightful condition, as required by the Postulate of Public Right (DR, 6: 307), is an attempt to connect practical reason with reality. This connection of an ideal dimension with a real dimension is the central point of the qualifying connection.
This connection between idea and reality is already to be found in the Critique of Pure Reason:
A constitution providing for the greatest human freedom according to laws that permit the freedom of each to exist together with that of others … is at least a necessary idea, which one must make the ground not merely of the primary plan of a state’s constitution but of all the laws too. (A316/B373)
This comes very close to the Definition of Right and the corresponding Principle of Rights and Universal Law of Right (DR, 6: 230–1), the starting points of Kant’s system of right. Here, only two points are of interest. The first is that the idea is a ‘necessary idea’. That is important in our context, because the connection of non-positivism between law and morality must be a necessary connection. The second point is that the idea is not only an idea present when framing a constitution, but an idea permanently present at all levels of law. With this, law and morality are necessarily and completely connected.
Legal Defectiveness or Incorrectness
The main criteria for legal defectiveness or incorrectness in positive law are the Innate Right to Freedom (DR, 6: 237) connected with the Private Right (DR, 6: 246–7), on the one hand, and the United Will of the People, on the other. The first are substantive criteria, the second is a formal criterion. It requires:
Therefore only the concurring and united will of all, insofar as each decides the same thing for all and all for each, and so only the general united will of the people, can be legislative. (DR, 6: 313–14)
The connections between these criteria will not be analysed here. In our context only one point is of interest, namely, that Kant treats them as criteria of legal defects. He does so when he says that it is not allowed for a constitution to be resisted actively even if it is affected with ‘great defects and gross mistakes’ (DR, 6: 372; trans. amended), or when he qualifies ‘hereditary privileges contrary to right’, under direct reference to the criteria of the united will, as a ‘mistake’ (DR, 6: 329). In both cases the positive law is legally defective, for it violates a necessary non-positive and, in this sense, moral criterion of legal correctness.
Approximation and Claim to Correctness
The necessary connection between positivity and moral correctness or the real and the ideal sides of law leads to a postulate that one might call the ‘postulate of approximation’. In his ‘Idea for a Universal History with a Cosmopolitan Purpose’ Kant speaks about a ‘perfectively just civil constitution’ ‘in which freedom under external laws would be combined to the greatest possible extent with irresistible force’ (Reference Kant, Nisbet and Reiss1991: 45–6). Then he says that such a ‘perfect solution is impossible’, and he connects this with the famous sentence: ‘Nothing straight can be constructed from such warped wood as that which man is made of’ (p. 46). After this, the decisive step follows: ‘Nature only requires of us that we should approximate to this idea’ (pp. 46–7). This is the approximation postulate. The approximation postulate appears in quite different forms in Kant’s writings. In the Critique of Pure Reason he says that ‘the idea of this maximum is nevertheless wholly correct when it is set forth as an archetype, in order to bring the legislative constitution of human beings ever nearer to a possible greatest perfection’ (A317/B373–4). At another point Kant speaks of ‘the form of a state as such, that is, of the state in idea, as it ought to be in accordance with pure principles of right. This idea serves as a guideline (norma) for every actual union into a commonwealth’ (DR, 6: 313; trans. changed). And, to give a third example, sometimes he simply requires that ‘the highest authority has to be just’ (Reference Kant, Nisbet and Reiss1991: 46).
All this seems to be more than enough textual evidence for the postulate of approximation. Still, the question as to how to understand this postulate remains. My final thesis is that it is to be understood as an expression of the claim to correctness necessarily raised by law (Alexy Reference Alexy, Paulson and Paulson2002: 35–9). Ripstein argues ‘that a rightful condition does not lose its claim to be rightful simply because it passes unjust or even oppressive laws’ (Reference Ripstein2009: 335). I think the claim to be rightful can here be understood as a claim to correctness, comprising the real dimension as well as the ideal dimension.
Now we can complete the argument. If it is sound, Kant is an inclusive legal non-positivist.Footnote 11
