Kant’s Theory of Law: A Rational Approach to Legal Legitimacy
KANT:
Kant provides a rational theory of law, embodied in Kantian universalism. We cannot rely on an empirical definition of law, as this would simply reflect the legal profession’s practices. The definition cannot be derived from observing positive law, but only from the concept of right itself.
Logical elements forming Kant’s definition of Law (3 + 1):
- Intersubjectivity: The concept concerns the external relationship between means. Law’s intersubjective nature is key.
- Relationship between means: For Kant, the will has desires, goals, and awareness of its ability to achieve them. Law refers to this external relation between means.
- Shape of the relationship between means: Law only serves to shape this relationship. From a legal perspective, the intention behind actions is irrelevant; only the form matters.
- Law’s prescriptive nature: Kant argues that law doesn’t prescribe what should be done, but how actions should be performed. Law’s concern is lawful actions, not the subject’s intentions.
The law is the set of conditions under which the discretion of each can be harmonized with the will of others through a universal law of freedom.
This implies that an action is permissible when harmonizable with a universal law. This universal law operates externally, ensuring individual actions harmonize with the law for all. Kant introduces another key element: the coercive character of law as a condition for the coexistence of various freedoms. This external and coercive nature distinguishes law from morality. Legal action has an external basis, while morality concerns internal drives. Kant distinguishes moral law and legal legislation, following Tomasi’s approach but with nuances. The moral law, driven by categorical imperatives (ends in themselves), motivates action through reason.
Legal legislation, however, uses a different impetus—duty. It commands action regardless of the subject’s will, focusing solely on outward conformity. It consists of hypothetical imperatives, based on various reasons. Legal law addresses external actions and imposes external duties, unlike the moral law’s internal duties.
Kant’s theory underpins the legitimacy of public law.
Kant uses contract theory to justify a civil constitution, enabling the creation of a common entity. The social contract is an ideal or regulative idea of reason, not an empirical given. It requires the state to be founded on the consent of the governed. Every legislator must act as if their laws could have originated from the united will of the people. The social contract obligates the legislator, not the subjects.
This incorporates the idea of man as self-legislator. The social contract is essential for a civil constitution and the creation of a common entity. It must be understood rationally, but also has practical implications, requiring legislators and citizens to treat the law as if consented to.
The cornerstone of public law’s legitimacy in Kant’s view is this social contract with its practical vision.
Kant views the social contract’s subject as a rights-bearing subject. The state of nature is a state of society (not war), where citizens possess innate rights, though lacking coercive tutelage and perfect legality.
Freedom as autonomy is essential. The fundamental natural right is freedom. The social contract reinforces pre-social contract innate rights, making the transition to civil rule permanent. Public law duties differ from private law duties, but this doesn’t change the fundamental rights. Kant rejects empirical analysis of law, considering freedom the principle of all possible coexistence.