Until relatively recently, Kant’s Doctrine of Right, published in 1797 as the first part of the Metaphysics of Morals, has been widely regarded as a work of marginal significance, especially compared to Kant’s earlier writings. Schopenhauer, most prominently, who found an epiphany in Kantian transcendental idealism, famously criticized Kant’s legal theory, describing it as ‘a strange tangle of errors’ (Reference Schopenhauer1969/1818: 336) of an ageing scholar in decline. But while many of Kant’s contemporaries, and also latter-day interpreters such as Hannah Arendt, Patrick Riley and Onora O’Neill, have limited interest in the Doctrine of Right, new interpretations that started to emerge in the 1990s have contributed to a more positive view of Kant’s political philosophy. Sharon Byrd and Joachim Hruschka (Reference Byrd and Hruschka2010: 1) even go so far as to argue that this is ‘Kant’s masterpiece on legal and political philosophy’. Furthermore, Arthur Ripstein (Reference Ripstein2009) and Elisabeth Ellis (Reference Ellis2012) offer interpretations of the Doctrine of Right that make it highly relevant to contemporary legal and political theory.
Given the renewed interest in the Doctrine of Right’s contemporary relevance, this energizing and eclectic collection of essays offers a welcome and timely contribution. The book’s twelve chapters examine the Doctrine of Right, and closely related texts, from a twenty-first-century perspective, considering possible political applications. The contributors in this volume sometimes draw opposing conclusions, this being, as the editors note in the introduction, an important feature that has the potential to provoke substantive debate. The book is dedicated to Harry Lesser who conceived and planned it, but who sadly passed away shortly before the first draft of the manuscript was due for completion.
In this review, I will provide brief summaries and comments on the content of each contribution, while saying little about the related discussions and influences of writers such as Locke, Grotius, Hobbes, Gauthier and Rawls. This is because the authors, while being faithful to the text, and while exploring various political positions the text could potentially support, have focused on pursuing a unifying goal: to envisage what a political position grounded in the Doctrine of Right would look like in twenty-first-century terms.
In ‘The Originality of Kant’s Social Contract Theory’, Macarena Marey argues that the proper Kantian contribution to the social contract tradition is his concept of an a priori united will and that since Kant’s claim about the social contract derives solely from the juridical conceptions of political obligation, it has more contemporary relevance than other contemporary contract doctrines. Granted the originality of Kant’s social contract argument, it may not follow that it is more relevant to our contemporary reflection than the contractualism and contractarianism of Rawls and Gauthier. Nonetheless, even if unconvinced by Marey’s claim, one may acknowledge, with Marey, that Kant’s social contract theory uniquely informs our understanding of the regulative political ideal that should be reflected on when evaluating any existing political form (p. 24).
In ‘Private Property and the Possibility of Consent: Immanuel Kant and Social Contract Theory’, Alice Pinheiro Walla also highlights the importance of a united will for Kant’s social contract theory, although she takes a different perspective. Pinheiro Walla argues, persuasively, against Kenneth Westphal (Reference Westphal1997), that in addition to the permissive law authorizing the possibility of becoming owners we should consider the conception of common possession of the earth, and of a united will, in order to see Kant as a social contract theorist. This approach, she argues, helps us understand the role of consent in Kant’s legal and political theory, and the asymmetry between rights to external things and rights derived from the will of the parties. Pinheiro Walla’s instructive elaboration on the distinction between Kant’s engagement with ‘the idea of an original contract and possible consent as mere heuristic tools’ and ‘the genuine contractualist aspects in Kant’s legal theory’ (p. 42), connects well to the issue discussed in the next essay about whether the perspective of Kantian social contract, which considers a shared sense of political obligation, can ground a conception of human rights.
In ‘Judging Rights by their Duties: A Kantian Perspective on Human Rights’ Eric Boot suggests a ‘perspective of duties’ (p. 54), arguing that only where there is a duty of right can there also be a (human) right, and conversely, where a duty of right is absent, there can be no right. For example, unlike the duty to refrain from torturing, the duty to aid the global poor does not have correlative rights. Boot’s conclusion, that our duties to the poor are duties of virtue, and that subsistence rights are not genuine rights, is unlikely to sit comfortably with many. Neither will his contention that the anticipated disappointments are ‘based on an unfounded aversion to duties of virtue’ (p. 62). However, Boot’s claim, that the view that duties of virtue as understood by Kant are less important and binding can be traced to the tendency in contemporary liberal political philosophy to see rights as the fundamental category, does raise questions about rights-based approaches to welfare.
The next three contributions consider the issue of welfare more closely. In ‘The Proper Task of Kantian Politics: The Relationship between Politics and Happiness’, Masataka Oki attempts to uncover an affirmative relationship between politics and happiness in Kant. Kant was clear that happiness should not be the end for the sake of which the state exists. But as Oki points out, the relationship between politics and happiness lies in Kant’s conviction that human beings qua sensuous and rational beings can truly be happy only if they can see themselves as free (p. 69), and thus the state-authority ought to provide conditions in which the right of individuals to pursue their happiness in a peaceful way is guaranteed.
In contrast, Nuria Sanchez Madrid argues in ‘Kant on Poverty and Welfare: Social Demands and Juridical Goals in the Doctrine of Right’ that the conditions of right and the safety of the state may, as a side effect, increase the happiness of the citizens and that although the state has a duty to provide conditions for their citizens to realize their freedom, it has no concern with social injustice. Sanchez Madrid denies the correspondence between our current notion of social welfare as a basic right and what Kant understood as an institutional charity that aims at avoiding major evils in the civil realm, doubting that Kant’s account of welfare can positively inform current social policies. Particularly interesting is Larry Krasnoff’s response to Sanchez Madrid’s scepticism. In ‘On the Supposed Distinction between Classical and Welfare Liberalism: Lessons from the Doctrine of Right’, Krasnoff argues that the interpretation of Kant as merely a classical liberal whose political philosophy has little connection to Rawls is mistaken much as the welfarist analyses of Kant’s theory are, and especially given Kant’s view that law and freedom are essentially connected (p. 102). Following Ripstein (Reference Ripstein2009), Krasnoff suggests that social welfare should be understood as expressing the idea of individual freedom and law and that ‘what matters in the political realm is the external freedom, which is unintelligible unless it is expressed in public law’ (p. 119). It could be objected that Krasnoff’s conception of social welfare suits his theoretical strategy, namely to deny the contrast between classical and welfare liberalism, but even so his conception of social welfare is highly engaging and relevant to the current state of discussion in contemporary political thought and practice.
The next contribution, by Wendy Brockie, offers a clear, although somewhat rigid, interpretation of the much-disputed view that Kant thought that civil disobedience is wrong in all circumstances. In ‘Resistance and Reform in Kant’s Doctrine of Right’, Brockie argues that, although regimes which abuse property rights and other freedoms do not meet Kant’s definition of what constitutes a civil condition, there is no evidence, at least in the Doctrine of Right, that Kant would allow for illegal action that would limit evil and suffering (p. 138). Those looking for a more positive interpretation will welcome Alyssa Bernstein’s response. In ‘Civil Disobedience: Toward a New Kantian Conception’ Bernstein argues that Kant prohibits rebelling against legitimate government (p. 141) and that despite his famous arguments against revolution, his political philosophy can accommodate a certain conception of justified civil disobedience. Even so, Bernstein’s suggestion that a Kantian conception of civil disobedience can incorporate and further develop Rawls’ conception of civil disobedience will make some question whether, and to what extent, this response can still count as ‘Kantian’.
The final four essays look for an application of Kant’s Doctrine of Right to international and interpersonal relations. In ‘Kantian Insights on the Moral Personality of the State’, Milla Vaha examines liberal arguments that rely on Kant’s political philosophy, observing that Kant’s political theory is often seen not only as the philosophical basis of ‘idealism’ in international relations, but also as the main source of practical guidelines to liberal democracies. Vaha is critical, rightly in my opinion, of those who think that Kant would guarantee liberal states comparatively higher moral status in international society. As she notes, since for Kant the state is a moral person, and since the category of the state is not limited to liberal states, although non-liberal states can act ‘aggressively’ against other states, ‘until this happens, their moral personality and respective standing in world politics remain intact’ (p. 175).
In ‘Kant’s Guarantee for Perpetual Peace: A Reinterpretation and Defence’, Sorin Baiasu clarifies Kant’s notion of a guarantee for perpetual peace, arguing that an interpretation of perpetual peace as the highest ethical good is misguided, proposing that perpetual peace is a juridical condition, which can be legitimately realized without any ethical motivation. Baiasu also helpfully illuminates the asymmetry between the highest political good in the Metaphysics of Morals where Kant does not appeal to the existence of God, and the highest ethical good in the first and second Critiques, as well as in Perpetual Peace where he invokes the postulate: ‘since perpetual peace represents for Kant the highest political good, it should be understood as the supreme good given by the universal principle of right, rather than simply by the Categorical Imperative’ (p. 188).
In ‘Forgiveness and Punishment in Kant’s Moral System’, Paula Satne addresses the tension between Kant’s identification of a duty to be forgiving in the Doctrine of Virtue, his view on culpability and punishment defended in the Doctrine of Right, and his views on moral guilt and culpability developed in the Religion within the Boundaries of Mere Reason. In reminding us that the revolution of heart plays a central role in Kant’s theory of moral improvement (p. 208), Satne successfully shows that Kant’s view of forgiveness is compatible with his account of punishment and culpability: while moral wrongs qua moral cannot be punished by either the state of the individual, the duty to cultivate a forgiving character and to overcome certain negative emotions does not imply that the wrongdoers (moral or legal), have the right to be forgiven and that forgiveness implies forgoing the punishment.
Finally, in ‘A Universal Estate: Kant on Marriage Equality’, Jordan Pascoe discusses how Kant’s writing on marriage has inspired contemporary writers looking for both a philosophical justification of marriage and tools for reforming marriage as a more just institution, drawing parallels between the debates about universal marriage in the 1790s and today. Pascoe suggests, perhaps to some readers’ disappointment, that although Kant offers a useful philosophical framework for the mainstream marriage equality movement, those interested in a marriage equality as a feature of justice should look beyond Kant. Pascoe’s cautionary notes are instructive, nonetheless; as she notes, ‘the debate about extending marriage should not be confused with the debate about marriage’s purpose within the state’ (p. 234).
While the essays in this volume generally presuppose knowledge of Kant’s writing and scholarship, offering novel, and in some cases highly contentious, interpretations of the Doctrine of Right, the authors’ collective effort to make sense of Kant’s political and legal theory and its contemporary relevance is outstanding. The Doctrine of Right, claim Byrd and Hruschka (Reference Byrd and Hruschka2010: 13), is the work of a genius. This new collection of essays is an authoritative and admirable exploration of the extent to which this enthusiasm is justified. Informed readers will be enriched by this highly accomplished collaborative work, which should be considered by all those interested in Kant’s political and legal philosophy and its practical application.
