The Science of Right

Summary

The Science of Right is W. Hastie's name for the Metaphysical First Principles of the Doctrine of Right (Metaphysische Anfangsgründe der Rechtslehre, 1797), the first half of Kant's Metaphysics of Morals; the second half, the Doctrine of Virtue, followed later the same year. The library's text also includes Kant's general Introduction to the whole Metaphysics of Morals, which distinguishes juridical duties, enforceable by outward law, from ethical duties, which concern our inner ends and can be commanded only by ourselves. Right concerns only external actions and their effect on others' freedom. Its universal principle is that an action is right if it can coexist with everyone's freedom under a universal law, and because a wrong is a hindrance of freedom, coercion that hinders that hindrance is itself right. There is only one innate right, freedom, which includes innate equality and being one's own master. Part I, Private Right, asks how anything outside me can be rightfully mine. Kant postulates that practical reason must allow external objects of choice to be owned, and argues that such possession is merely provisional in the state of nature: it becomes conclusive only under a public authority that can secure it. He then analyses three kinds of acquired right: rights to things (beginning with the original acquisition of land), rights against persons (contract), and a novel category, rights to persons akin to rights to things, which governs marriage, parents and children, and the household. Children, brought into the world without their consent, may not be treated as their parents' property. Short episodes treat money, the unauthorized reprinting of books, inheritance and the right to a good name after death. Because right cannot be secure without a judge, Kant derives a postulate of public right: everyone ought to leave the state of nature and enter a civil condition. Part II, Public Right, describes the state as a union of people under laws, with legislative, executive and judicial powers, in which the legislative power belongs to the united will of the people. Kant denies any right of rebellion even against an abusive ruler, while allowing reform through the sovereign itself. He defends punishment as a categorical imperative governed by retribution (the jus talionis), including the death penalty for murder. The right of nations treats war as the means by which states, still lawless toward one another, prosecute their rights and calls for a congress of states; cosmopolitan right grants every person a right to visit, but not to settle, other lands. The book ends with reason's veto, 'There shall be no War', and names perpetual peace as the whole final purpose of right. A 1798 appendix answers a reviewer.

Plot or Argument

• Prolegomena: the Metaphysics of Morals as a system of duties

  Kant relates the faculties of desire and feeling to moral law, explains why morality needs a metaphysics rather than empirical anthropology, divides moral legislation into juridical (external, enforceable) and ethical (internal), and defines basic terms: obligation, imperative, person, thing, deed, maxim.

• Introduction to the Science of Right: what right is (§§ A-E)

  Right is the sum of conditions under which the choice of one can be united with the choice of another under a universal law of freedom. It is joined analytically with the authority to coerce, and strict right can be pictured as a law of reciprocal coercion consistent with everyone's freedom.

• Equivocal right and the division of rights

  Equity is a right without coercion and has no court; the 'right of necessity' (the shipwrecked man pushing another from a plank) is not a right but a case where punishment cannot deter. Rights are divided into natural and positive, innate and acquired; the only innate right is freedom.

• Part I, Private Right: the external mine and thine (§§ 1-9)

  The juridical postulate of practical reason requires that external objects can be mine. Possession is distinguished as sensible (physical holding) and intelligible (rightful having apart from holding). In the state of nature such possession is provisional; only a civil constitution makes it peremptory.

• Acquisition: things, contracts and persons akin to things (§§ 10-31)

  Original acquisition begins with land, by occupancy under the idea of an original common possession of the earth. Contract transfers another's choice to perform. Domestic right covers marriage (understood as a lifelong reciprocal contract, monogamous and equal), parents' duties to children, and the master's right in servants. A systematic table of contracts closes with remarks on money and on the publishing of books.

• Ideal acquisition and acquisition before a court (§§ 32-42)

  Usucapion, inheritance and a good name after death are rights grounded in reason rather than time. Kant contrasts how a matter appears in private right with how a public court must decide it (donation, loan, recovery of lost goods, oaths), and concludes with the postulate of public right: one ought to leave the state of nature.

• Part II, Public Right: the state and its powers (§§ 43-52)

  The original contract is the idea by which a people constitutes itself as a state. Legislative, executive and judicial powers are distinguished; citizens have freedom, equality and independence, with a distinction between active and passive citizenship. The General Remarks deny a right of resistance, treat land, taxation, poor relief and the church, offices and dignities, and the rights of punishing and pardoning. Kant classifies forms of the state and calls the pure republic the only lasting constitution.

• Right of nations and cosmopolitan right (§§ 53-62) and Conclusion

  States stand in a state of nature toward each other. Kant sets out rights to go to war, rights during and after war, the rights of neutrals and the unjust enemy, and proposes a permanent congress of states. Cosmopolitan right allows visitation and commerce but not settlement without consent. The Conclusion makes perpetual peace the final end of the whole doctrine.

• Supplementary Explanations (1798)

  Responding to a review in the Göttingen journal of February 1797, Kant defends the category of personal right of a real kind, adds to his account of punishment, inheritance, perpetual foundations (hospitals, churches, orders, entail), and restates the duty of submission to the existing sovereign.

Lessons

• Right is not virtue: what law may and may not command

  Kant draws a sharp line between the external law of right and the inner law of virtue. Law can require that I not interfere with another's freedom; it cannot require that I adopt that duty as my motive. 'Act externally', the universal law of right says, so that your freedom can coexist with everyone else's. This gives students a clear tool for civic questions: which goods can be enforced by courts, and which must be left to conscience, family and church? It also invites a classical Christian response. Scripture distinguishes the sword given to rulers (Romans 13) from the law written on the heart, but it does not treat virtue as merely private.

  • Kant says I may wish in my heart to infringe another's freedom and still be in the right, so long as I do not act. Is this a sound limit on law?
  • Name one moral duty that should never be enforced by law, and one that must be. What principle separates them?
  • Why does Kant think that coercion against a wrong is not an attack on freedom but a 'hindrance of a hindrance'?

• Mine and thine: why property needs a state

  Kant argues that we may take possession of things in the state of nature, but our claim is only provisional, because no one is bound by my unilateral will. Only under a public authority, which represents the united will of all, can rightful possession become secure. Hence his postulate of public right: everyone ought to leave the state of nature and enter a civil condition, and may compel others to enter it with him. Compared with Locke, who grounds property in labour before government, Kant makes the state a condition of rightful ownership rather than its mere protector. Students can test both accounts against a simple case of a disputed field.

  • Why does Kant think that my labour on a piece of land is not enough to make it mine?
  • What does it mean that possession is 'provisional' before the state and 'peremptory' after it?
  • Kant says we may compel neighbours to enter a civil condition with us. What limits would you place on that claim?

• Retribution, the island and the last murderer

  In Remark E, Kant insists that punishment may be imposed only because a person has committed a crime, never merely as a means to deterrence or reform. The law of punishment is a categorical imperative, measured by equality (the jus talionis). He imagines a people on an island deciding to disband: the last murderer in prison must be executed first, lest bloodguilt rest on them all. He calls the maxim that one man should die rather than the whole people perish 'Pharisaic', and refuses to let physicians use a condemned man for dangerous experiments in exchange for his life. Students should state the argument fairly, notice its biblical echoes (Genesis 9:6; John 11:50), and weigh it against the claims of mercy and the pardoning power that Kant himself limits.

  • Why does Kant say a criminal must not be punished merely as a means to the good of society? What does he think this protects?
  • Explain the island example. Is Kant right that justice has a claim even when no one would benefit from punishment?
  • Kant calls Caiaphas's counsel (John 11:50) a Pharisaic maxim. How does the Gospel context strengthen or complicate his use of it?

• No right of rebellion: obedience, reform and the execution of kings

  Kant denies the people any right of sedition or rebellion, even against a sovereign who abuses his power, because a law permitting resistance would make the people judges in their own cause and dissolve the supreme authority. He reads 'All authority is from God' not as a claim about historical origins but as the principle that one must obey the existing legislative power. He writes that the formal execution of a monarch, as with Charles I and Louis XVI, horrifies a soul filled with ideas of right. Yet he also teaches that a defective constitution should be reformed by the sovereign itself, and that once a revolution has succeeded its new order must be obeyed. Written in 1797, after the Terror, the argument can be compared with Locke's right of resistance and with the Reformation debates over lesser magistrates.

  • Summarize Kant's reason why a constitution cannot contain a law permitting rebellion. Is the argument valid?
  • How does Kant interpret 'All authority is from God'? Does his reading fit Romans 13?
  • Is there any place in Kant's system for a Christian to refuse an unjust command, as the apostles did in Acts 5:29? What is the difference between disobedience and rebellion?

• A veto on war: peace as the end of right

  The book ends where Toward Perpetual Peace began. Between states there is still a state of nature, so war remains the way states pursue their claims, governed by rules for its conduct and its ending, including a ban on wars of punishment or extermination. Practical reason pronounces its veto: there shall be no war. Whether perpetual peace can be achieved is not the question; we have a duty to act as though it can, and to work toward it by gradual reform rather than violent overthrow. The lesson pairs well with the classical just-war tradition, which also treats peace as war's only lawful aim, while differing from Kant in its account of who has authority to wage war and why.

  • Why does Kant think we have a duty to work for perpetual peace even if it may never be realized?
  • Compare Kant's rules for conduct in war (§ 57) with Augustine's or Grotius's. What do they share?
  • Kant says cosmopolitan right allows visiting but not settling other peoples' lands without contract. What problem in his own century is he answering?

Context

Kant wrote the Doctrine of Right in his seventies, after the French Revolution, the execution of Louis XVI (1793) and the Terror, and in the Prussia of Frederick William II, whose censors had clashed with Kant over religion in 1794. Its natural-law vocabulary and many of its legal terms come from the textbooks of Gottfried Achenwall, on which Kant lectured for decades, and from Roman law. It also continues the arguments of his essays 'On the Common Saying: That may be correct in theory, but it is of no use in practice' (1793) and Toward Perpetual Peace (1795).

Composition

The Metaphysics of Morals had been planned since the 1760s and was announced repeatedly. The Rechtslehre appeared early in 1797 (Königsberg: Nicolovius) and the Tugendlehre later that year. A second edition in 1798 added the 'Supplementary Explanations' replying to a review in the Göttingische Anzeigen von gelehrten Sachen. The printed text has long been thought to contain displaced passages, and modern editors have proposed rearrangements. The library's text is W. Hastie's translation, The Philosophy of Law (Edinburgh: T. & T. Clark, 1887), from Wikisource, which also includes the general Introduction to the Metaphysics of Morals.

Reception

Early readers, Schopenhauer most famously, judged the work the product of Kant's old age. Fichte's Foundations of Natural Right (1796-97) and Hegel's Philosophy of Right (1820) both developed and opposed it. Its retributive theory of punishment became the standard foil for utilitarian penology. In the twentieth century renewed interest in Kantian liberalism, international law and human dignity brought the Doctrine of Right back to the centre of legal and political philosophy, though its views on rebellion, capital punishment and domestic right remain much argued over.

Comparisons

• Perpetual Peace

  Perpetual Peace (1795) sets out preliminary and definitive articles for peace in a popular, partly satirical form; the Doctrine of Right gives the same programme its systematic juridical basis in §§ 53-62 and the Conclusion.

• The Metaphysical Elements of Ethics

  The Doctrine of Virtue is the second half of the same Metaphysics of Morals; where the Science of Right deals with enforceable external duties, the ethics deals with ends that are also duties, such as one's own perfection and others' happiness.

• Groundwork of the Metaphysics of Morals

  The Groundwork's formula of humanity (never merely as a means) reappears in the theory of punishment, where Kant forbids using a criminal for another's good, and in the claim that parents cannot treat children as things.

• Second Treatise of Government

  Locke grounds property in labour before government and allows the people to resist a ruler who breaks his trust; Kant makes property conclusive only in the civil state and denies any right of rebellion.

• Philosophy of Right

  Hegel's Philosophy of Right keeps Kant's sequence of abstract right, contract and wrong, but criticizes the contractual view of marriage and the state and places right within ethical life (Sittlichkeit).

• On Crimes and Punishments

  Beccaria argued from social utility that capital punishment is neither useful nor necessary; Kant's Remark E rejects the utilitarian 'serpent-windings' and grounds the death penalty for murder in retributive equality.

• Leviathan

  Hobbes and Kant both describe a state of nature that we are obliged to leave and deny subjects a right to resist the sovereign, but Hobbes argues from fear and self-preservation while Kant argues from the conditions of rightful freedom.

• The Rights of War and Peace (Book I)

  Kant's treatment of the right of nations engages the tradition Grotius founded; elsewhere he called Grotius, Pufendorf and Vattel 'sorry comforters', and here he makes perpetual peace, not regulated war, the goal.

Quotes

Medical Lens

A treatise on law with a few passages of interest to the history of medical ethics and of institutional care. In the theory of punishment Kant takes up a proposal, apparently current in his day, that a condemned criminal might be spared on condition of surviving dangerous experiments useful to physicians, and rejects it as a corruption of justice: an early and explicit refusal to trade a prisoner's life for medical knowledge, grounded in his principle that no one may be used merely as a means. In the General Remarks on public right and the 1798 Supplementary Explanations he treats the state's duty toward the poor, foundlings and the sick, preferring money relief and boarding with relatives to costly institutions such as Greenwich Hospital, but making lunatic asylums an exception. These are policy judgements of a philosopher, not clinical observations.

• Part II, § 49, General Remark E. I. The Right of Punishing

  Kant rejects keeping a condemned criminal alive in exchange for submitting to dangerous experiments proposed by the medical faculty for the public good.

  Medical Ethics
• Part II, § 49, General Remark C. Relief of the Poor, Foundling Hospitals, The Church

  The sovereign may tax for poor relief and foundling asylums; Kant weighs current contributions against permanent endowments and asks whether foundling hospitals are the right means of preserving exposed children.

  Public Health Sanitation
• Supplementary Explanations, VIII. A. Hospitals

  State hospitals for the poor, invalids and the sick may be reformed: money relief and boarding with relatives may serve better and more cheaply than great institutions like Greenwich Hospital, with lunatic asylums excepted.

  Asylum Institution Public Health Sanitation
• Part I, § 28

  Generation brings a person into the world without his consent, which grounds parents' duty of care and forbids treating a child as a product or property.

  Medical Ethics

Creative Prompts

• Dialogue

  Write a debate between Kant and Beccaria in a Königsberg lecture hall on the island example and the death penalty, each using his own book's reasons.

• Essay

  Kant says the right of necessity makes the shipwrecked man's act unpunishable but not lawful. Is that distinction sound? Test it against one other emergency case.

• Classroom

  Divide a list of twenty duties (paying debts, gratitude, honesty, charity, keeping contracts, worship) into Kant's columns of juridical and ethical duties, then defend the hardest placements.

• Fiction

  Tell the story of the island people of Remark E on the night before they disperse, as they decide what to do with the last prisoner.

Further Reading

• The Metaphysics of Morals (Cambridge Texts in the History of Philosophy), Immanuel Kant, trans. Mary Gregor

  The standard modern translation of both the Doctrine of Right and the Doctrine of Virtue.

• Toward Perpetual Peace, Immanuel Kant

• Foundations of Natural Right, J. G. Fichte

  A contemporary rival theory of right from Kant's most important early follower.

• Force and Freedom: Kant's Legal and Political Philosophy, Arthur Ripstein

• Kant's Political Writings, ed. Hans Reiss

  Includes extracts from the Doctrine of Right with the political essays.