On the Kantian distinction between Ethics and Right:
Linearity and Mediation
Marianna Capasso·
Sant’Anna School of Advanced Studies, Italy
Alberto Pirni·
Sant’Anna School of Advanced Studies, Italy
Abstract
The aim of this paper is to provide an original
account of the distinction between the spheres of Sitten that goes
beyond the traditional one based on the nature of incentives, since this
underestimates some of their characteristics. First, the paper identifies in obligatio a common source between Ethics
and Right. Then, it explores how in the Metaphysics of Morals the connection
between law and incentive constitutes a more relevant criterion to
distinguish ethical lawgiving from juridical lawgiving. Specifically, it demonstrates
that such connection: (a) to be ethical should be linear, understood as
a necessary self-determined process of connecting law to incentive; (b) to be
juridical should be mediated, namely it comprises
an inclusive disjunction between two modalities of connecting law to incentive:
a non-necessary linear and a divergent one. It concludes by exploring the
implications of such perspective on the notions of internalisation and
externalisation associated to each lawgiving.
Key words
Ethics,
Right, obligation, incentive, lawgiving
Introduction
Much
has been discussed about the respective nature and relationship between Kantian
conception of right and his ethical theory. The main aim of this paper is to
show how and to what extent Kant gives a more detailed account of ethical and juridical
lawgiving and their respective duties, compared to the one that has been often
associated to them.
As
a matter of fact, the consideration of Sitten
has basically been subdivided into two distinct tracks. On the one hand, the
ethical lawgiving has been widely associated to a totally inner matter, whose
concern lies exclusively on formal features, rather than their content. On the
other hand, the juridical lawgiving has been often associated to a totally
outer matter, whose concern lies exclusively on the performance of external
acts.
However, Kant is neither focused exclusively on
external elements when he analyses the juridical lawgiving, nor he can endorse
an ethical lawgiving completely detached from a material and concrete side.
Therefore, this paper derives its arguments from a textual analysis, by giving
a more comprehensive account of the theoretical framework articulated by Kant.
Specifically, it provides an original account of the distinction between the
two normative processes that goes beyond the more traditional distinction based
on the nature of incentive, understood as internal in the case of ethical
lawgiving and as external in the case of juridical lawgiving.
The paper is divided as follows. First, we explore
Kant’s complex understanding of obligation (obligatio) as a common
source between the two spheres of Sitten. Second, we demonstrate that
the presence of the internal incentive does not constitute the only valid
criterion able to distinguish ethical lawgiving from juridical one. As a matter
of fact, we argue that a predominant focus on the
nature of incentives risks neglecting two other distinct features of
lawgivings: the possible agreement between them, and what we may call
their indirect sharing.
Then, we focus on the introduction of the Metaphysic
of Morals. This allows us to identify in the nature of the connection
between law and incentive a more relevant and meaningful criterion to
distinguish Kant’s conception of ethical lawgiving from that of juridical
lawgiving. Indeed, this paper claims that such peculiar discrimen
between ethical and juridical lawgiving requires for the former a linear
connection between law and incentive, understood as a necessary
self-determined process, while for the latter a mediated connection.
With the term “mediated” we imply that the juridical
lawgiving comprises an inclusive disjunction between two modalities of
connecting law to incentive: a non-necessary linear and a divergent one. We
conclude by raising some open issues and by exploring the implications of such
proposed perspective on the two notions of internalisation and externalisation
when referring to the normative spheres of Sitten.
1. Obligatio. A common source for ethical and
juridical lawgiving
To
discover the common root between Tugendpflichten
and Rechtspflichten it is necessary
to shift our attention to the work which was at the very basis of the Metaphysics of Morals. We are of course
alluding at Groundwork of the Metaphysics
of Morals (1785), which was intended as an exposition of the general
underlying principles of that work as a whole. To hark back to the definition
provided in the Architecture of Pure
Reason, the “metaphysics of morals” contains “the principles that
predetermine and necessitate deeds and
omissions [Tun und Lassen]”. It
is therefore “a purely isolated metaphysics of morals, mixed with no
anthropology [i.e., an empirical condition]” (KrV, B 869-870).[1]
In accordance with the author’s intentions, therefore, two main theses
should be derived from those preliminary statements. First, the Grundlegung should be regarded as a
metaethical work, namely as a “foundation” for the philosophical domain which
he considers the science of the «laws of liberty» (GMS, IV 387). Second, the Groundwork
constitutes a preliminary theoretical stage to the Metaphysics of Morals, a project which Kant would only manage to
complete in 1797 though the idea itself had originated in the mid-1760s and is
evidenced in many of Kant’s correspondences.[2]
Putting
aside the various reasons for this postponement[3], we shall focus on the theoretical links between the Groundwork of the Metaphysics of Morals
and the Metaphysics of Morals itself.
As we known, the Metaphysics of Morals
is composed of two parts dealing respectively with the Metaphysical principles of the doctrine of right and the Metaphysical principles of the doctrine of
virtue. Whilst the first part discusses the application/fulfilment of the
same “laws of freedom” in those institutions that govern the coexistence of
rational beings, the latter part deals with the application of the same
principles in the subject agent through the establishment of fundamental
behaviours and attitudes such as virtues.
Concerned
as it is to determine the structures in which reason manifests itself in
practice, the Groundwork moves beyond
the distinction between right and ethics that is so explicitly drawn up in
the Metaphysics of Morals,
concentrating instead on the definition and elaboration of those principles
that would apply in both spheres of pure practical reason.
By
highlighting the peculiarity of the 1785 work, we are not arguing that Kant had
not yet conceived of the distinction between morality and legality,
between “internal legislation” and “external legislation”, and ultimately
between ethics and right, which would lie at the heart of the Metaphysics of Morals.
This
distinction, in fact, is already apparent in the notebook relating to the Course on natural law (Naturrecht
Feyeraben), which was held
by Kant in the summer term of 1784, that is at exactly the time when he was completing
the Groundwork (whose production
lasted from the autumn of 1783 to the summer of 1784). The same distinction is
also made in the 1775-1780 Course on
ethics, where Kant differentiates obligations
internae and obligations externae whilst
commenting on the idea of the obligatio
in relation to the Baumgarten manual (VE, 41; Collins, XXVII 272).[4]
Indeed,
such a distinction is present in the Groundwork
as well, where moral
actions intentionally undertaken for the sake of duty (aus Pflicht)
are distinguished from actions that conform to duty (Pflichtmäβig), which are actions undertaken only for the sake of
external conformity to the law and based either on a subject’s natural
inclination or fear of punishment (GMS,
IV 390, 397-398).
But
besides outlining the distinction between ethics and the law, the 1775-80 Course on ethics also explicitly
underscores their affinity:
The
difference between the law and ethics does not lie in the nature of the
obligation, but in the motives adopted for its accomplishment […] Ethics takes
into consideration all obligations as long as their motive is internal; it
considers them, in other words, on the basis of duty, […] paying no attention
to their coercive aspect. The law, on the other hand, considers the fulfilment
of an obligation not in terms of its dutiful motivation, but insofar as it
depends on coercion (VE,
40; Collins, XXVII 271-272; Kant
1997, p.63).
Ethics and Right differ in terms of the motivation
that underlies the same actions, be it pure intention or coercion. Nevertheless, the “nature of the obligation” remains
identical in the case of both juridical and virtuous duties.
Moreover, the idea of the obligation (Verpflichtung) makes an important reappearance in the Introduction to the Metaphysics of Morals. Here
Kant resumes and develops also the meta-ethical line of reasoning inaugurated
in the Groundwork. In Section IV of
the Introduction, whilst discussing those “concepts <that are> common to
both parts of the metaphysics of morals”, Kant defines an obligation as “the
necessity of a free action under the categorical imperative of reason” (MS,
VI 222).
It is worth highlighting
three considerations in this regard. First,
in his Introduction Kant reiterates
the point that the idea of the obligation is common to both ethical and
juridical spheres, to which the Metaphysics
of Morals devotes ample space. Secondly,
it must also be pointed out that Kant discusses obligations in terms of the
categorical imperative, which renders an otherwise free action – namely an
action that is the product of subjective choice – necessary and therefore
obligatory. As a third consideration,
we can assume that the categorical imperative, which is extensively treated in
the Groundwork and subsequently in
the Critique of Practical Reason,
justifies its application on both an ethical and juridical level.
Accordingly,
the categorical imperative, which is
the formal reshaping of the obligatio
in Kantian terms, is an unconditional obligation which transcends any distinction
between internal and external legislation. Just like ethics then, the law
“commands categorically” and does so in a way that is not “technical” or
“pragmatic”, although it differs from ethics insofar as it holds up the threat
of coercion. The duties that the law imposes on me as a man and citizen of the
state do not allow me to evaluate the usefulness of
obedience and to weigh up the advantages that I could gain from it. Rather,
they command in an absolute manner, for they are laws in the more common sense of the word.
It is worth drawing attention to Kant’s remarks concerning the syntactic
formulation of the imperative
in the Introduction to the doctrine of
right (that forms part of the
Metaphysics of Morals), and, in particular, to his definition of the
“universal law of right”: “Act externally in such a way that the free exercise
of thy will may be able to coexist with the liberty of all others according to
a universal law” (MS, VI 231).[5] It should also be stressed
that one can find at least three explicit references to the juridical role of
the categorical imperative in the 1797 work.[6]
By
focussing on the categorical imperative, the Groundwork for a Metaphysics of Morals furnishes Kantian thought
with a key idea, which the author himself would implement in both an ethical
and juridical context. This characterisation of the Groundwork and its important position within Kant’s moral system
remains a point of reference, even if the work deals almost exclusively with
the moral dimension and even if it appears to lose sight of its original
preliminary intention when read alongside the second Critique, which was written a mere three years later.
2. An indirect sharing: duties of Right
as indirectly ethical and duties of Virtue as indirectly juridical
The
concept of obligation in the foundational sphere of Morality allows to conceive
Ethics and Right as complementary parts, even if formally distinct. Then, one
way to describe the nature and the scope of the distinction between Ethics and
the Right is to focus on the different kind of motivation they imply in their
respective lawgiving. Indeed, as Kant states in the Metaphysics, both
ethical and juridical lawgiving (Gesetzgebung) comprises two elements: the objective element of law
(Gesetz), and the subjective and motivational element of incentive (Triebfeder). The former is defined by Kant as the representation of
dutifulness of an action, while the latter is described as a subjective element
that unites the ground of determining the choice of the agent with the representation
of the law (MS AA 6:218; Kant 1996, p. 19). The incentive is the motivational
part of each lawgiving, it is what enforces the law subjectively.
The term Triebfeder was already present in the Critique of
Practical Reason, as “the subjective determining ground of the will of a
being whose reason does not by its nature necessarily conform with the object
law” (KpV 5:72).[7]
Thus, the receptivity to duty, namely to an object law, requires for the human
will the presence of a subjective element as source of moral action: the
incentive.
Compared
to the text of Critique of Practical Reason, where the term Triebfeder
is often equivalent to ethical incentive, in the Metaphysics there is
the further distinction between Wille as practical reason and Willkür
as power of choice, and the term Triebfeder is declined in a twofold
sense: as an internal and ethical one, or as an external and juridical one.
In the Metaphysics, the ethical Triebfeder is the one that
implies a direct relation to practical reason as Wille and moral law,
and thus it is characterised as intrinsic because of the same nature of the
law. In fact, it derives its inner nature from the self-motivating force of
law: the unconditionality of the categorical imperative as Gesetz is
also the source of action in Ethics.[8] Ethical lawgiving requires
that duty constitutes the incentive.
The ethical incentive is
intrinsically related to law, rather than stems from externally coercive
sources the law can make use of. The latter can be the case for juridical
incentives, that can be considered external and contingent rather than
intrinsic.[9]
To sum up, the constraint
expressed by law can be described as an internal one, where internal means
self-imposed; or, conversely, as coercively and externally grounded.[10] On the one hand, the ethical lawgiving
involves a self-constraint (Selbstzwang, MS 6:381), exercised upon one’s choice by one’s own will with the
idea of duty; on the other hand, the juridical
lawgiving involves an external-constraint or coercion (äußere Zwang,
MS 6:220). We can summarise this distinction in this way: ethical
norms require to be internally enforced by the incentive of duty, while
juridical norms admit to being externally enforced by coercion.
The
distinction between different incentives is without doubt a useful criterion
for differentiating ethical lawgiving from the juridical one, because it helps
to conceptualize them through the intension of their definitions.[11]
Indeed, such distinction encompasses one of the properties that constitute the definition of duties as ethical
or juridical and their respective lawgiving, namely the presence of internal or
external incentive.
However, the distinction
between incentives is not the only valid criterion able to define the two
normative processes. Such distinction grasps one of the differences between
them, but arguably does neglect two other distinct
features of ethical and juridical lawgiving: the possible agreement between
them, and what we may call their indirect sharing.
First, the fact
that ethical and juridical lawgiving can reach an agreement (übereinkommen)
is described by Kant in this way:
All lawgiving can therefore be
distinguished with respect to the incentive (even if it agrees with another
kind with respect to the action that it makes a duty [sie mag auch in Ansehung der Handlung, die, sie zur Pflicht macht, mit einer anderen übereinkommen], e.g., these actions might in all cases be
external)” (MS,
AA 6: 218-219; Kant, 1996, p. 20)”.
The
incentive is only the subjective element, but there is also an objective
element in lawgiving. The latter is law as Gesetz, that
provides a representation of “an action that is to be done as objectively
necessary” (MS, AA 6: 218;
Kant, 1996, p. 20).[12] Both ethical and juridical lawgiving can prescribe
to keep a promise, and thus the representation of an action to be done could
coincide.[13]
The dutifulness to “keep a
promise” can be the same, even it is enforced by an internal incentive, or
alternatively by an external incentive.
Second, in a more
fundamental way, a distinction based on incentives has the disadvantage of
neglecting another point, that we may call the indirect sharing between
lawgivings. Such term implies that Ethics and Right can share in certain cases
the same area of obligation. But what does it mean exactly? Such sharing is
often implicit in the Kantian text, but in a passage from the Metaphysics of
Morals Kant states that juridical lawgiving is not only external, but also internal, in full accordance with the
ethical lawgiving:
Ethical lawgiving (even if the duties might be
external) is that which cannot
be external; juridical lawgiving is that which can also be external [die
juridische (Gesetzgebung) ist, welche auch äußerlich sein kann] (MS, AA 6:220; Kant 1996, p.22).
This
statement makes the distinction between the two lawgivings more complex,
because the conditionality of the verb “sein
kann (äußerlich)” provides
a case in which the juridical lawgiving may turn out to be internal. A further signal to
reinforce this thesis is provided by the presence of the “also (auch)”
conjunction. Such internal side is then specified:
It is an external duty to keep a promise made in
a contract; but the command to do this merely because it is a duty, without
regard for any other incentive, belongs to internal lawgiving alone […] while there are many directly ethical duties, internal lawgiving makes the rest of
them, one and all, indirectly ethical (MS,
AA 6:220; Kant 1996, p. 22. Italics is ours).
To define a duty as a duty of right is irrelevant
the presence of an inner incentive [Triebfeder]. Even in
those cases in which the incentive is internal and based on the idea of duty
itself, this does not change the duty’s characterization, because it is the
fulfilment or omission of an action to constitute its juridical nature.
When the internal incentive is present, it is
considered irrelevant by juridical lawgiving because it has nothing to do with
the assessment of a good action, namely its conformity with right. Sharing a
feature – as the internal incentive based on the idea of duty itself – with
duties of virtue is not essential to the definition of duties of right.
However, the irrelevance of an inner incentive does not mean that this
inner incentive (innere Triebfeder) cannot exist in juridical lawgiving.
Thus, duties of right can be enforced by the inner incentive of duty and be
“indirectly ethical”, providing an example of indirect sharing between ethical
and juridical lawgiving that allows them to occupy the same area of obligation.
Moreover, one may wonder whether some duties of virtue can be conceived as
“indirectly juridical” as well.
Kant never mentions such term, but the further
distinction he draws between Moralität and Legalität can be useful here. These
two terms refer to different conformities of an action to a normative
standpoint or a law:
The mere conformity or nonconformity of an action with
law, irrespective of the incentive to it, is called its legality (lawfulness);
but that conformity in which the idea of duty arising from the law is also the
incentive to the action is called its morality (MS AA 6: 219; Kant 1996, p.
20).[14]
In indirectly ethical duties of right what is indirect is the Moralität, the fact that they show a
“conformity with ethical laws”, which requires that the law be also the
subjective ground of determination. In other words, these duties can be
compliant to Moralität.
Similarly, if we want to investigate the
possibility for “indirectly juridical” duties of virtue, the term indirect
can be referred to the possible Legalität of these duties. Possible candidates are meritorious duties (verdienstliche Pflichten), duties that
“goes beyond the law of duty for actions and makes the law itself also the
incentive”. These are duties of virtue that implies a respect for Right [Achtung für das Recht]. This kind of
duties goes beyond the concept of juridical duty and presupposes it[15],
or in Kant’s words “widens one’s concept of duty beyond the concept of what is due
(officium debiti)” (MS, AA 06: 391; Kant, 1996, p. 153).
Meritorious duties and
indirectly ethical duties of right are two sides of the same coin. While in the
case of indirectly ethical duties of right the law as incentive is present but
implicit (as Moralität), in meritorious duties the implicit element is
the action in conformity with law (as Legalität). Thus, meritorious
duties can be labelled under the term “indirectly juridical” in the sense that
they require duties of right as their precondition, even if those are not
considered a necessary aspect of their definition as ethical duties. “Ethical
lawgiving […] does take up duties which rest on another, namely an external,
lawgiving by making them, as duties, incentives in its lawgiving” (MS, AA 6: 219, Kant
1996, p. 20). In this sense, ethical
lawgiving can imply Legalität.[16]
Meritorious
duties and indirectly ethical duties of right are examples of the fact that juridical and ethical
lawgiving can develop a relation of indirect sharing, which occurs when
they occupy the same area of obligation. The distinction between incentives
proves to be unsatisfactory since it fails to grasp implicit but important
features of ethical and juridical lawgiving: their agreement and their indirect
sharing. Therefore, in the next sections this paper aims to provide a comprehensive
and more detailed account of the whole process that Kant calls lawgiving (Gesetzgebung)
and its specification in ethical or juridical.
3.
Linearity
and Mediation
In the introduction of the Metaphysics of Morals, Kant analyses
the main differences between the ethical and
juridical lawgiving:
That lawgiving which makes an action a duty and also makes this duty the
incentive is ethical [welche eine Handlung zur Pflicht und diese Pflicht
zugleich zur Triebfeder macht, ist ethisch]. But that lawgiving which does not include [nicht im Gesetze
mit einschließt] the incentive of duty in the law and so admits an
incentive other than the idea of duty itself [andere Triebfeder als die Idee der
Pflicht selbst zuläßt] is juridical
[juridisch]. It is clear that in the latter case this incentive which is
something other than the idea of duty must be drawn from pathological
determining grounds of choice, inclinations, and aversions, and among
these, from aversions; for it is a lawgiving, which constrains, not an
allurement, which invites (MS,
AA 06, 219; Kant, 1996, p. 20).
The
specific nature of each lawgiving is given not so much by the incentive, but
more specifically by the connection between law (Gesetz) and
incentive (Triebfeder). As Kant states in another passage: “The doctrine
of right and the doctrine of virtue are distinguished […] by the difference in
their lawgiving, which connects one incentive or the other with the law [Triebfeder mit dem Gesetze verbindet]” (MS, AA 06: 220, Kant 1996, p. 20).
In ethical lawgiving objective and subjective ground of determination
must have a necessary connection, which Kant describes in the shape of a
coincidence. The ethical incentive is characterised by the idea of duty as
subjective ground of determination of our choice. Duty requires a
self-motivating force and Kant defines “the cultivation of morality” [Cultur der
Moralität] as the ability “to
do his duty from duty (for the law to be not only the rule but also
the incentive [die Triebfeder] of his
actions)”.[17]
On the contrary, the description of juridical lawgiving seems to imply
that in its process there is no such necessary coincidence between duty as a
subjective incentive and objective law. Kant describes as a non-inclusion – Kant uses the verb nicht einschließt
– the connection between law and the
idea of duty as internal Triebfeder.
Indeed, as the passage above
states, juridical lawgiving admits (zuläßt)
different incentives, those
derived from pathological determining grounds. The verb “admits” regarding juridical
lawgiving implies the same possibility suggested by the verb “may be
(external)” regarding duties of right. The juridical lawgiving can have the
idea of duty as inner incentive, but it also implies a broader range of
incentives, that stem from a non-exhaustive list of sources, even inclinations
and aversions, whose common attribute is to be considered pathological.
In
summary, the ethical lawgiving is described as a linear process, which directly
unites duty to action. Duty becomes incentive, which is in turn the principle
upon which the agent chooses to act and whose linear effect is logically
represented by the action. We call this process ethical linearity. With
this term, we imply necessary coincidence, namely a direct and straight
connection, between the subjective principles of action in the agent and the
objective law.
Conversely,
the juridical lawgiving gives rise to an “inclusive disjunction”, as even
Baiasu (2016, p. 38) has pointed out recently. The disjunction implies two
alternatives: a linear process, that directly connect duty to incentive and
action, or a different and divergent process in the connection of Gesetz and incentive and action. However, it is inclusive:
the disjunction is true when either or both of its constituent modalities are
true.
Thus,
it involves a meta-enforcement process that we call juridical mediation,
which can consist in either or both of two different modalities of enforcement
for the law. It leads to the possibility of non-coincidence and dissimilarity
between the subjective principles of action in the agent and the objective law,
resulting in a divergent process between those two. When this happen, the representation of the law is
mediated and enforced by incentives that are a datum – they must be drawn
(hergenommen sein müsse) – for the agent, who receives them
from an external source. Fig. 1, below, shows the differences between the two
lawgivings:
Fig.1
The
element of law [Gesetz], as the objective element of representation of a
law, is present in both processes. Thus, we can find a connection between law –
represented in the concept of duty in the diagram above – and incentive also in
the process of juridical mediation. In this scenario, the distinction in
internal or external is applied to the incentive, to the subjective principle
in lawgiving. And the incentive is also the changing element between a linear
form and a divergent form.
However, the notions of mediation and linearity that we are proposing in
this paper have the advantage of individuating a peculiar difference between
ethical and juridical lawgiving. Such
difference lies in the fact that the ethical is a necessary self-determined and
direct modality of lawgiving (linearity), whereas the juridical can involve a
divergent modality. Namely, it is a partially self-determined modality of
lawgiving, in which external elements can be introduced to facilitate and
direct the process (mediation).
Nonetheless, this does not imply that the juridical lawgiving excludes a
linear form between law and incentive. Indeed, such linear connection between
law and incentive can take place in the juridical lawgiving, but without being
characterised by the same necessary nature that is inherent in the ethical
lawgiving. The notions of linearity and mediation emphasize also that the
peculiar difference (die Verschiedenheit) between ethical and juridical
lawgiving is described as a connection (MS, AA 06:
220, Kant 1996, p.20), and does not merely rely on
the nature (internal or external) of the incentive.
From
a normative perspective, what we call “juridical mediation” is a term that
allows two modalities of enforcement that are not excluding to one another: a
linear form with an internal incentive or a divergent one with external
incentives. The strict linearity is necessary in the case of ethical lawgiving,
which requires the law to be coincident with the incentive. Instead, juridical
lawgiving can conform its process to either a linear or divergent form, or
both. The coincidence between law and incentive (i.e., linearity) is a
non-inclusive property in a strict juridical divergent form, but this does not
mean that it is an excluding property in juridical lawgiving as such.
One might be tempted, according to the distinction between internal or
external subjective principles or incentives, to conclude that the whole
process and the other elements in each lawgiving are thus characterised as
internal or external. Kant himself seems to admit that.[18] Such a distinction is just one of the available
perspectives to describe these two modalities, or these two forms of obligation
(Art der
Verpflichtung) as Kant calls them (MS, AA 06: 220; Kant 1996, p. 22). According to
such specific perspective, Kant is then authorized to distinguish between an internal
or external obligation.[19]
However, even if the
distinction between internal or external in relation to incentives does
constitute a valid criterion to understand the functioning of each lawgiving,
it risks neglecting some of their peculiar aspects. Kant’s
insistence on incentive has been often mistaken in the literature for a claim
that Right excludes inner elements per se, while Ethics excludes
external elements per se.
This relevance of the incentive is also one of the
core assumptions in the debates on the relation between the universal law of
Right and the categorical imperative. In fact, much has been discussed
on the possibility or impossibility of grounding coercive external incentives –
as the juridical ones – on the unconditionality and necessity of the
categorical imperative. The
most interesting positions are divided between pro-independence perspectives,
such as those of Willaschek (1997; 2002; 2009; 2012), Wood (2002) and others,
and pro-dependence perspectives, such as those sustained by Höffe (1989), Guyer
(2002), Baiasu (2016) and others. In the last part of the paper, we specify the
nature of this relation according to our perspective and clarify the complex
relation between juridical lawgiving and “internalisation” on the one side, and
ethical lawgiving and “externalisation” on the other.
4.
Internalisation
and Juridical Lawgiving
The
incentive in juridical lawgiving is mainly a pathological one, where choice can
be affected through stimulus,
sensible impulses.[20] However, with this statement Kant does not want to reduce
the juridical sphere to a mechanism, whose laws are similar with the laws of
nature. Juridical and ethical are both normative processes of freedom, they are both laws of freedom (Gesetze
der Freiheit).[21]
Instead,
the term “pathological” describes a modality through which the representation
of the law becomes mediated and
not considered a spontaneous activity of the agent. In other words, the
universal law of right, that is the norm governing the juridical sphere, admits
to being mediated: it may be enforced in its proper activity by instrumental
elements that are outside it, as pathologically determined incentives.
Nonetheless,
the coercive aspect in juridical lawgiving does not lead us to conceive the
juridical as dependent upon those instrumental and external elements. In fact,
the juridical lawgiving has its own inner objective validity, i.e., its
rightness, due to the presence of law, Gesetz. This latter in the
juridical sphere is the universal law of Right, that is in turn grounded on
obligation, on law that commands categorically before any distinction.
The
Gesetz does not provide mere rules of skills (Regeln) or counsels
of prudence (Ratschläge), but the unconditionality, necessity and
universality of the categorical imperative (GMS 4:416; Kant 1997, p. 27). Thus,
even if accompanied and enforced by external incentives, it provides to the
juridical sphere its inner and objective normative status. Both juridical and ethical spheres are
expressions of autonomy and pure practical reason, and the distinction between incentives is still only a subjective
distinction between two objective moral lawgiving.[22]
Moreover, the
specification of juridical lawgiving as a mediation
provides the possibility of alignment. In fact, this alignment is given in
all those cases in which the universal law of Right is not followed out of
external incentives, but for the sake of its own normative status. To put it in
concrete terms, from a juridical perspective, agents can conform their
incentives to duty, adopting the same linearity of ethical lawgiving. However,
in this way the juridical process is not simply turned into an ethical one.
This is the thesis sustained by Willascheck (1997, p. 86; 2009, p. 49), who
argues that the prescriptive and normative character of juridical lawgiving can
be considered only from an ethical perspective. There are two reasons for
rejecting such thesis.
First, as we have
seen in the case of indirectly ethical duties of right, the legal compliance is
still the most relevant aspect, even if the presence of the internal incentive
makes these duties a matter of indirect sharing between ethical and
juridical lawgiving.[23]
Thus, from a
perspective on action [Handlung], there is not an identification of
juridical linearity with ethical linearity tout court. Indeed, these
kind of duties does not lose what
Right is supposed to ensure in the first place: Legalität, the
conformity of external actions with law, irrespective of the incentive
(internal or external).
The Legalität remains
in indirectly ethical duties of right; beyond this, the perspective of the Moralität
is added. In the case of keeping a promise in a contract, “the command to do this merely because it is a duty,
without regard for any other incentive, belongs to internal
lawgiving alone”
(MS AA:220; Kant 1996, p. 22). Kant does not use the attribute ethical, but internal.
The element that allows an indirect
sharing between ethical and juridical lawgiving is the common ground they
have in common: Morality, in the shape of moral obligation. This latter is the
peculiar feature of an internal lawgiving as such. Thus, a second way to
criticise the thesis according to which the normative nature of juridical
lawgiving can be such only from an ethical perspective is to show how the
juridical lawgiving has its own prescriptive nature. The subjective modality of
enforcement of the categorical command admits to being mediated in the
juridical sphere, but this does not change the objective nature of the
juridical sphere.
What we define as “juridical
linearity” is not equivalent to “ethical linearity”, because within the former
it is normatively contained the character of contingency in relation to its
subjective modality of enforcement: its linearity is not necessary, because
there is always the possibility that incentives can be drawn from the outside
and its law can be mediated. However, this does not imply that the law loses
its own normative and prescriptive force.
By contrast, ethical linearity
implies a necessary subjective modality of enforcement, that does not contain
the character of mediation. What we call “strict juridical divergent form” is
what Kant defines as strict right, that requires only external grounds
for determining choice and is “not mingled with anything ethical” and “any
precepts of virtue” (MS, AA 6:232, Kant 1996, p. 25). Strict right depends upon
coercion, which seem at first incompatible with the categorical imperative and
its prescriptive nature.
This argument is often used to
ground a full independence of the universal law of Right from the categorical
imperative (Wood, 2002), or also a relative dependence (Ripstein 2009; Guyer
2002; Habermas 1996), which relies on the assumption that the categorical
imperative must be limited or extended in its scope in the case of juridical lawgiving,
due to the coercive and external nature of the latter. However, in those
theories on the relation between the two spheres of Sitten there is
often an undue identification between moral obligation and ethical obligation,
where the latter requires necessarily to be enforced by the inner incentive of
duty, i.e., the ethical incentive (Willascheck 1997).
Instead, in Kant “internal obligation” as
moral obligation is not an equivalent to “ethical obligation” tout court,
because the latter is just a sub-part of the former, that we have called ethical
linearity and requires that the internal obligation constitutes necessarily
also the internal incentive. Thus, from the necessary character of ethical
linearity does not stem an ethical account of obligation and its normativity.[24]
As a matter of fact, the juridical lawgiving remains an internal one, even if
it is accompanied and mediated by external incentives, because in Kant there is
an internalist account of obligation. The external obligation of the juridical
lawgiving is larger than internal, because it is at the same internal
(v-Mo/Collins, AA 27:271; Kant 1997, p. 62).[25]
The internal obligation for
each lawgiving is given by Gesetz, the objective law, that provides the representation of dutifulness of an action (MS, AA
6: 218; Kant 1996, p. 19). These laws are
respectively the universal law of Right and the ethical categorical imperative,
and both stem from moral obligation, whose formal reshaping is the categorical
imperative.[26]
The Universal law of Right and
the ethical categorical imperative involve the same constraint (Zwang)
of moral obligation, and they differ from each other regarding the different
subjective modalities of enforcement. The ethical categorical imperative
commands that the incentive is necessarily characterised as a Selbst-Zwang;
the universal law of Right commands that the incentive is an äußere Zwang. However, this does not exclude
the possibility of a Selbst-Zwang.[27]
When
this happen, the self-modality of constraint is considered contingent and
silent. Nonetheless, this is still an option on the table because juridical
lawgiving stems from the moral internal obligation. The inner character related
to Zwang is present in both modalities of enforcement for the universal
law of Right. Thus, the coercive
and external nature of the juridical lawgiving is not in contrast with moral
obligation, rather it is one of its possible modalities of enforcement.
5. Externalisation and Ethical
Lawgiving
Ethical
lawgiving is devoted to “laws for maxims
and not for actions”
(MS,
AA 06:389; Kant 1996, p. 152). Actions in ethical
lawgiving are internal, where internal means that they deal with the dynamics between will and choice, between law and maxims.
In ethical actions there is a
kind of Legalität, as a conformity with law, even if this
legality is not a conformity of external actions with law as in juridical
lawgiving. It is indeed a lawfulness that is related to one of the two aspects
of law: the letter of the law as legality, rather than to the spirit of
the law as morality.[28]
From a normative
perspective, the legality as
conformity (Gesetzmäßigkeit)
is a presupposition to morality (MS AA 6:219). The legality of ethical actions consists in “the
immediate representation of the law and the objectively necessary observance (Befolgung)
of it as duty” (KpV AA 5:151; Kant 2015, p. 121). An agent can act ethically
according to a law (Gesetz) that gives the representation of the
dutifulness of an internal or also of an external action, even if this
representation remains inner: “Ethical lawgiving, while it also makes internal actions duties, does not
exclude external actions, but applies to everything that is a duty in general” (MS, AA 06, p. 219; Kant, 1996, p. 20).[29]
The law represents an action as objectively necessary and it can be “a
possible determination of choice” (MS AA 6:218; Kant 1996, p. 19), as Kant
states in the introduction to the Metaphysics. As we already noted, in
ethical lawgiving this possibility must be turned into a necessity: objective
and subjective ground of determination must have a necessary connection, that
Kant describes in the shape of a coincidence.
Nonetheless, this does not
lead to endorse the objective necessity of the action and, thus, a normative
and consequentialist interpretation of the ethical process.[30] In Ethics laws are of
wide obligation and leaves a latitudo for the choice in observing and
fulfilling duties (MM 6: 390). Laws of wide obligation determine only the type
of obligation to the action, not its degree (Vigilantus, 27:536).
Exercising latitude in performing a duty does not exclude the normative
significance of ethical actions. [31]
We have rationally optional “good” actions that stems from the incentive
of duty, and whose representation is objectively necessary. However, the
ethical necessity does not rely on the output of the process but rather on the
form this process has. The distinction between the output and the form is also
the distinction between many Tugendpflichten as the material and
concrete side of the incentive based on duty, and the Tugendverpflichtung,
“as the subjective ground of determination for fulfilling all one’s duties” (MS, AA 06: 410). This latter must be
supported by a direct and straight connection between the representation of the
law in the will, and the adoption of duty as incentive in the maxims by the
power of choice.
In the
possible connection between incentive and law, agents have “no way to measure
the degree [Grad] of a strength [Stärke] except by the magnitude of the
obstacles [Größe der Hindernisse] it could overcome (in us, these are
inclinations) [in uns die Neigungen sind]”
(MS,
AA 06:396-397; Kant 1996, pp. 157-158). Agents cannot
measure the grade of their external actions but can experience the magnitude of
obstacles inside them. These obstacles are inclinations that stem from sensible
impulses, from pathologically and externally determined incentives. There may
be an opponent [Gegner] that is
experienced inside the dynamics of choice (Willkür) and that leads to a
conflict between two sources of determination: inclinations and reason (MS AA 06: 380; Kant, 1996, p. 45). The adoption of a Triebfeder requires in its a
priori process an external dimension inside
its own inner perspective.[32]
What we call ethical
linearity must be always informed by an
autonomous and self-determined choice from within, in every moment.[33] The possibility of deviating from ethical
linearity is an inner nemesis that can never be eliminated completely.
Therefore, with the term “externalisation” in relation to ethical lawgiving we
are referring to two different issues.
First, there
are external incentives that are experienced even inside the dynamics of human
will, in the connection of incentive to law. This is a negative perspective on
externalisation when we refer it to ethical lawgiving.
Second, there may
be a positive perspective on externalisation in ethical lawgiving. This implies
that the ethical lawgiving has a material and concrete side in its normative
process when the representation of the objective necessity of law – its
cognition and awareness – becomes self-imposed through its adoption as an inner
incentive. This self-imposition of the observance (Befolgung) of law is
decided within choice (Willkür), independently from any inclinations and
external incentives and determined by pure practical reason alone.[34]
Thus, the externalisation
of this observance does not refer to the nature of its source, but in the fact
that it requires a proper activity to carry out its content: the making
of duty also the incentive, and the formulation of maxims that are in
conformity with duty. As sustained in the paper, such activity constitutes the
process of ethical linearity.
Ethical linearity gives a normative
indication: the advance and progress of the ethical process is given and
conditioned by the form it has. If a deviation occurs, it happens because the
connection between law and incentive is not anymore self-imposed exclusively
within the agent’s own will but is instead a form that is accompanied in its
functioning by other sources outside the agent’s will.
Formally regarded, actions in the ethical lawgiving are the material and
concrete side of practical reason’s activity, whose direction is given and
established by the inner and straight relation between the agent’s will and
choice. Ethical lawgiving relies on the
possibility of “drawing a line”[35] and
on the capacity to autonomously exercise rational self-determination.
Conclusions
According to the analysis carried out, we
have seen how the distinction between ethical and juridical lawgiving can be
re-described, starting from a thorough analysis of the Kantian text. In
the first paragraph we showed how the ethical and the juridical lawgiving stem
from a common source identified in the concept of obligatio (§1).
Then we demonstrated how and to what extent the
distinction between the two lawgivings cannot be conceived as a distinction
based exclusively on the nature of their incentives, since in this way there is
the risk to neglect two of their fundamental characteristics: (a) lawgivings
can reach an agreement (übereinkommen) and, thus, the representation
of an action to be done could coincide in ethical and juridical lawgiving;
(b) lawgivings can have an indirect sharing, namely they can share the
same area of obligation, as happens in the cases of indirectly ethical duties
of right and meritorious duties (§2).
Subsequently, we
recognised the peculiar discrimen between ethical and juridical
lawgiving in the different connection they establish between law and incentive.
We described the form of ethical connection as linearity, understood as
a necessary self-determined process between law and
incentive. Conversely, we called mediation the
juridical form of connection, defining it as a partially self-determined process
between law and incentive (§3).
Indeed,
juridical lawgiving allows an inclusive disjunction between two possibilities
of enforcement: a non-necessary self-determined form between law and incentive
(juridical linearity) or a divergent form between law and incentive (strict
juridical divergent form). This led us to explore
whether and in which ways the juridical lawgiving comprises an element
of internalisation, understood as an own inner normative validity that does not
depend upon instrumental and external elements. Indeed, even if juridical lawgiving involves the possibility of being
enforced and mediated by external incentives, we showed how it still has its
own inner and normative force in the objective principle of law (Gesetz), in the shape of the universal law of
Right that derives its normativity from the inner moral obligation (§4).
Similarly, even if
the ethical lawgiving does not allow an external and pathological incentive, we
asked whether there was an element of externalisation in such lawgiving. We
identified such element in the self-imposition of the
observance (Befolgung) of law as incentive, that we understood as the
activity of the faculty of the will as a whole (§5).
In conclusion, we decided to describe the
distinction between the two normative processes as a distinction of forms of
moral obligation (Art der Verpflichtung,
MS 6:220) in the connection between law and incentive, and we individuated such
forms in the two notions of linearity and mediation. The
traditional distinction between the nature of
incentives is merely a subjective distinction between two objective moral
lawgivings, whose respective nature and peculiarities stand in need of a
thorough re-consideration starting from the moral obligation they share.
References
Bacin, S. (2016), “«Only one
obligation»: Kant on the Distinction and the Normative Continuity of Ethics and
Right”, Studi Kantiani, 29, no.1, pp. 77–90.
Baiasu, S. (2016), “Rights’ Complex Relation to Ethics
in Kant: The Limits of Independentism”, Kant-Studien, 107, no.1, pp. 2–33.
Beck, L. W., (1960), A Commentary
on Kant’s Critique of Practical Reason. University of Chicago Press, Chicago
and London.
Boot, E., (2017), “Kant and the In(ter)dependence of Right and Virtue”, Ethic@. An International Journal for Moral
Philosophy, 16, no. 3, pp. 395-422.
Cummiskey, D., (1990), “Kantian
consequentialism”, Ethics, 100, no. 3, pp. 586–615.
Goyard-Fabre, S., (2004), Philosophie
critique et raison juridique, PUF, Paris.
Goyard-Fabre, S., (1996), La
philosophie du droit de Kant, Vrin, Paris.
Guyer, P., (2002), “Kant’s Deductions of the Principles of Right” In: M.
Timmons (ed.), Kant’s Metaphysics of Morals. Interpretative Essays.
Cambridge University Press, Cambridge, pp. 23–64.
Habermas, J., (1996), Between Facts and Norms. Contributions to a
Discourse Theory of Law and Democracy. Cambridge University Press,
Cambridge.
Höffe, O., (2001), »Königliche Völker« -
Zu Kants kosmopolitischer Rechts- und Friedenstheorie, Suhrkamp,
Frankfurt a.M.
Höffe, O., (1990), Kategorische Rechtsprinzipien. Ein Kontrapunkt der
Moderne, Suhrkamp, Frankfurt a.M.
Höffe, O., (1989), “Kant’s Principle of Justice as Categorical
Imperative of Law”. In: Y. Yirmiyahu (ed.), Kant’s Practical Philosophy
Reconsidered. Papers Presented at the Seventh Jerusalem
Philosophical Encounter, Kluwer Academic Publishers, Dordrecht, pp. 149–167.
Höffe, O., (1983), Immanuel Kant, Beck, München.
Kant, I., (2015), Critique of Practical Reason.
Translated and edited by M. J. Gregor. Revisited edition. Cambridge University
Press, Cambridge.
Kant, I., (1998a), Groundwork for The
Metaphysics of Morals. Translated and edited by M. J. Gregor. Cambridge
University Press, Cambridge.
Kant, I., (1998b), Critique of Pure Reason.
Translated and edited by P. Guyer and A. W. Wood. Cambridge University Press,
Cambridge.
Kant, I., (1997), Lectures on Ethics.
Translated and edited by P. Heath, J. B. Schneewind. Cambridge University Press,
Cambridge.
Kant, I., (1996), The Metaphysics of Morals.
Translated and edited by M. J. Gregor. Cambridge University Press, Cambridge.
Ludwig, B., (2002), “Whence Public Right? The Role of Theoretical and
Practical Reason in Kant’s Doctrine of Right”, In: M. Timmons (ed.), Kant’s
Metaphysics of Morals. Interpretative Essays. Cambridge University Press, Cambridge,
pp. 159–184.
Ludwig, B., (19982) (1986), “Einleitung”, in B. Ludwig (ed.), Immanuel Kant: Metaphysische Anfangsgründe der Rechtslehre.
Metaphysik der Sitten. Erster Teil., Felix Meiner Verlag, Hamburg,
pp. xiii–xxxvi.
Moran, K., (2017), “Demandingness,
Indebtedness, and Charity: Kant on Imperfect Duties to Others”, In M. C. Altman
(ed.), The Palgrave Kant Handbook, Palgrave, London, pp. 307–329.
Munzel, G. F., (1999), Kant’s
Conception of Moral Character. The “Critical” Link of Morality, Anthropology
and reflective Judgement, University of Chicago Press, Chicago and London.
Lockhart, J. R., (2017), “Kant on the Motive of (imperfect) Duties”, Inquiry, 60, no. 6, pp. 1–41.
Pauer Studer, H., (2016), “A community of rational beings: Kant's Realm of
Ends and the Dinstinction between Internal and External Freedom”, Kant
Studien, 107, no. 1, pp. 125–159.
Pirni, A., (2020), “Le perenni ‘forzi
motrici’ della filosofia pratica kantiana. Discutendo di un recente contributo
di Otfried Höffe”, Studi Kantiani, 33, no. 1, pp. 163–171.
Pirni, A., (2006), Kant filosofo
della comunità. ETS, Pisa.
Pirni, A., (2005), Filosofia
pratica e sfera pubblica: percorsi a confronto. Höffe, Geertz, O’Neill,
Gadamer, Taylor, Diabasis, Reggio Emilia.
Ponchio, A., (2011),
Etica e diritto in Kant. Un’interpretazione complessiva della morale kantiana,
ETS, Pisa.
Potter, N. (2002), “Duties to onelself, Motivational Internalism, and
Self-deception in Kant’s Ethics”, In M. Timmons (ed.), Kant’s
Metaphysics of Morals: Interpretative Essays. Oxford University Press, Oxford, pp. 371–389.
Ripstein, A. (2009), Force and Freedom. Kant’s Legal and Political
Philosophy. Harvard University Press, Cambridge, MA.
Willascheck, M., (2012), “The Non-Derivability of Kantian Right from the
Categorical Imperative: A Response to Nance”, International Journal of Philosophical
Studies, 20, pp. 557–564.
Willascheck, M., (2009), “Right and Coercion: Can Kant’s Conception of
Right be Derived from his Moral Theory?”, International Journal of
Philosophical Studies, 17, pp. 49–70.
Willascheck, M., (2002), “Which imperatives for Right? On the Non-Prescriptive
Character of Juridical Laws in Kant’s Metaphysics of Morals”, In M. Timmons (ed.),
Kant’s Metaphysics of Morals:
Interpretative Essays. Oxford University Press, Oxford, pp. 65-88.
Willascheck, M., (1997), “Why the Doctrine of Right does not belong in the
Metaphysics of Morals”, Jahrbuch für Recht und Ethik, 5, pp.
205–227.
Wolff, C., (1976) [1720]. “Vernüfftige Gedancken von der
Menschen Thun und Lassen, zu Beförderung ihrer Glückseligkeit”, In: C. Wolff, Gesammelte Werke, hg. von J. École, J.E.
Hoffmann, M. Thomann, H.V. Arndt. Hildesheim, Olms, New York, Vol. IV, I.
Wood, A., (2002), “The Final Form of Kant’s Practical
Philosophy”. In M. Timmons (ed.), Kant’s Metaphysics of Morals:
Interpretative Essays, Oxford University Press, Oxford, pp. 1–22.
