An Apparent Paradox: To Establish a Legal State is a Loose Duty

In: Danish Yearbook of Philosophy
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  • 1 The Nordic Summer University

Taking our point of departure in Kant’s book Zum ewigen Frieden, we note a seeming paradox which we believe has a wider application to legal states as such: while a legal state is supposed to impose strict duties, we only appear to have a loose duty to establish such a state. In order to investigate this seeming paradox, we will recapitulate what Kant says about strict and loose duties and examine in which terms he describes the perpetual peace. We will thus argue that perpetual peace is a loose duty. We will consider Kant’s reasons for this and endeavour to show through his parallel between individuals and states that the duty states have to enter a legal state is the same duty individuals have to enter this state. Finally, we will consider in what ways the above-mentioned paradox is only apparent and what this means for Kant’s philosophical position.

Abstract

Taking our point of departure in Kant’s book Zum ewigen Frieden, we note a seeming paradox which we believe has a wider application to legal states as such: while a legal state is supposed to impose strict duties, we only appear to have a loose duty to establish such a state. In order to investigate this seeming paradox, we will recapitulate what Kant says about strict and loose duties and examine in which terms he describes the perpetual peace. We will thus argue that perpetual peace is a loose duty. We will consider Kant’s reasons for this and endeavour to show through his parallel between individuals and states that the duty states have to enter a legal state is the same duty individuals have to enter this state. Finally, we will consider in what ways the above-mentioned paradox is only apparent and what this means for Kant’s philosophical position.

Introduction1

Taking our point of departure in Kant’s book, Zum ewigen Frieden, we note a seeming paradox which we believe has a wider application to legal states as such: while a legal state is supposed to impose strict duties, we only appear to have a loose duty to establish such a state. To begin with, one would think that this would annul the strictness of the strict duties, since we can postpone the implementation of the strict duties, which is exactly what we were not supposed to be able to do with strict duties. We will, however, argue that Kant’s special view about the validity of strict duties in the natural state explains this paradox. In the natural state men have duties to each other, but as long as there is no third-party guarantee for their enforcement, one is not obliged to act rightly assuming others do so too, since this would make one vulnerable. Right action supposes a kind of reciprocity, which only exists in a legal state. In the natural state rights are only provisional. Since strict duties depend on collective action instituting a legal state, the duty of the individual depends on others doing the same. They should strive to establish such a state, but not being able to do this alone, they cannot have a strict duty to do so.

First, we will recapitulate what Kant says about strict and loose duties in Grundlegung der Metaphysik der Sitten, Metaphysik der Sitten and Zum ewigen Frieden (i.). Next, we will examine in which terms Kant describes the perpetual peace. Perpetual peace is among other things a duty, and we will argue that this duty is a loose duty. We will consider Kant’s reasons for this and endeavor to show through his parallel between individuals and states that the duty states have to enter a legal state is the same duty individuals have to enter such a state (ii.). Finally, we will consider in which ways the above-mentioned paradox is only apparent and what this means for Kant’s philosophical position (iii.).

I Kant on Strict and Loose Duties

In Grundlegung Kant explains strict and loose duties as two different ways to implement the categorical imperative. The categorical imperative is used as a kind of test telling the agent which contemplated actions converted into maxims (rules of action) are permitted, and he defines strict and loose duties in terms of how they are permitted. In general, we have to “… will that a maxim of our action should be a universal law.” [G 4:423.36–424.14]2 If the action is such that the corresponding maxim can neither be conceived nor willed as a universal law without contradiction, then pursuing this action in terms of this maxim would infringe a strict (rigorous, inflexible) duty. If the action and the corresponding maxim do not have this conceptual impossibility, but cannot be willed without contradiction, then the action and its maxim would only infringe a loose (meritorious) duty.

In fact, Kant uses two different distinctions, one between perfect and imperfect duties, and one between strict and loose duties [G 4:421.21–23, 31–38; G 4:423.36–424.14]. Korsgaard warns us that these two distinctions are not identical. A strict duty can be discharged, while loose (broad) duties concern ends, which cannot be completely achieved. Perfect duties require definite actions or omissions, while imperfect duties allow some room for inclination in determining the way and extent to which we have to carry them out.3 Though he does give slightly different definitions of the two distinctions in Grundlegung, he also seems to assume that the two distinctions are coextensive. Those duties allowing no exception for inclination are also duties, which are inflexible, while those allowing such an exception are also meritorious duties.

The problem with Kant’s explanation in Grundlegung is that a test can never designate a particular end. In Metaphysik der Sitten Kant speaks himself about the way maxims are tested by the categorical imperative, and he states that this test is only negative, specifying that the maxim does not contradict the law, and then he asks how there can be a law for the maxim itself. He then refers us to the notion of an end, which is at the same time a duty [mm 6:389.12–13]. One of these duties is the duty of self-perfection, and he argues for this duty saying that it is a particular quality of humanity, in contradistinction to animals, that men set for themselves all sorts of ends, and in order to execute such ends it is necessary to cultivate one’s talents and develop nature’s raw aptitudes [mm 6:392.1–9; cf. 6:386.18–6:387.23]. Concerning the duty to promote others’ happiness, he argues that our self-love cannot be separated from the need we have to be loved and in emergency situations to be helped by others, and for this reason we should adopt a universal law about promoting others’ happiness [mm 6:393.11–23; mm 6:387.25–6:388.30]. Both these arguments seem to rely on the biological constitution of the human race and its teleological destination.4 So we believe that Kant was aware of the problems mentioned above and partly for this reason the theory changed considerably in Metaphysik der Sitten.5

Kant now has two different principles, a principle of right and a principle of virtue [mm 6:230.29–31; mm 6:395.15–16] instead of one categorical imperative, from which we were supposed to deduce both kinds of duties. The categorical imperative is still there, and, as we have seen, he openly admits that this is only a negative test, so it is still difficult to see how he comes from the categorical imperative to a maxim of ends which could be a universal law for everyone. They could, however, be universal, if these ends were founded teleologically in human nature. They would then be ends that all humans would naturally seek to realize in order to execute all those ends they set for themselves and to satisfy their own social nature. In this way, we would have a two-tiered structure between the socially necessary prescriptions to regulate everyone’s freedom and the highest possible satisfaction of human needs.

In Zum ewigen Frieden which came out a year before Metaphysik der Sitten we have a similar distinction between leges strictae and leges latae. The preliminary articles to the perpetual peace nos. 1, 5 and 6 should be carried out immediately independently of the circumstances. These prohibitions are therefore of the stricter kind. Articles 2, 3 and 4 do not suffer any exceptions, but their implementation suffers delay due to the circumstances, though without losing sight of the end [pp 8:347.16–8:348.40]. The idea is that it is always possible to stop making secret reservations (no. 1) in peace treaties, but it is more difficult to abolish all standing armies (no. 2) in one stroke. The circumstances must be favorable and mutual trust between nations established. This needs some time and preparation, but one should not lose sight of the end. One should notice here that Kant speaks about ends when speaking about loose duty (leges latae), but not when he speaks about strict duties (leges strictae). This feature and the proximity of Zum ewigen Frieden to Metaphysik der Sitten would make us think that Kant is speaking about strict and loose duties in the same way as in Metaphysik der Sitten. In Zum ewigen Frieden the distinction is only developed explicitly in relation to the preliminary articles, but there is another end, namely perpetual peace, which seems to be within the range of this distinction.

II What is Eternal Peace?

Much research has focused on how Kant thought peace could be established; less has focused on peace itself and what kind of status peace has. In the text, it is alternately an idea, a state, a duty, a goal, a blessing, and something practicable and impracticable. Kant uses the term ‘idea’ about perpetual peace in Metaphysik der Sitten and at the end of Zum ewigen Frieden [mm 6:350.16–17; pp 8:386.27–33], but in the last mentioned work he also uses it about the original contract (ursprünglichen Vertrags), federality (Föderalität), international law (Völkerrecht), world republic (Weltrepublik), the authority of the law (Autorität des Gesetzes) and cosmopolitan law (Weltbürgerrecht) [pp 8:344.23; 8:356.15; 8:357.11–18; 8:360.4]. The last one, the cosmopolitan law, is also named an idea of reason (Vernunftidee) by Kant, and we might wonder whether perpetual peace is also such an idea.

In Kritik der reinen Vernunft an idea is a concept of reason (Vernunftbegriff). This kind of concept is a notio or concept of the intellect (Verstandesbegriff) which exceeds the possibilities of experience [cpr A320/B377]. Concepts of reason are not wholly within the realm of experience, since the empirical is only a part of it. No real experience is sufficient to account for them. When they contain something unconditional, they concern something which all experiences belong to, but they can never themselves be the object of experience [cpr A310-11/B367]. Pure concepts of reason or transcendental ideas are a priori concepts, which should serve as regulative principles in order to direct the intellect towards a particular end. This end is the systematic unity of our knowledge. Kant speaks about three such ideas: the thinking subject, the world, and God [cpr A321/B378; A334/B394; A642 ff/B670 ff]. This very brief resume should make out that transcendental ideas should make sense of our scattered knowledge of particulars considering them as a piece in an all-comprehensive jigsaw. It is clear that we will never actually be able to observe the thinking subject, the world, or God.

The way Kant defines perpetual peace does not, however, correspond to this kind of idea. According to Kant, peace is the end to all hostilities, not only for a time but forever. To add ‘perpetual’ is in fact a pleonasm. It seems that the idea of peace contains already the notion of something durable. However, this does not prevent Kant from speaking about an enduring state of peace [pp 8:343.23–26; 8:367.17–20]. This does not appear to be something wholly impossible to observe. Such a state could come into being and is therefore observable. This also goes for the idea of cosmopolitan law, which Kant describes as a peaceful if not amicable community of all peoples on Earth without exception which could thus come into effective relations with each other [mm 6:352.6–9]. This seems in no way to exceed any possible experience in the way speculative transcendental ideas do.

In practical reason, transcendental ideas are also used, but this time constitutively in order to establish the possibility of the necessary object for pure practical reason which is the highest good. For this purpose, it is necessary to assume three theoretical concepts, namely freedom, immortality, and God [cp 5:134–135]. Among these ideas, freedom is a bit special, since we know that freedom is possible a priori being a condition for the moral law, which we also know in this way. The ideas about God and immortality are not conditions of the moral law, but only conditions of the necessary object of a will determined by this law. However, we can know neither the reality nor the possibility of these ideas and the same goes for the necessary end, that is the highest good, but for practical purposes we have to assume them [cp 5:4.7–20]. While freedom, immortality, and God seem to be difficult entities to actually observe and thus exceed the possibility of experience, the highest good does not strictly speaking possess this kind of impossibility.

The highest good is explained as a combination of virtue and happiness, where happiness is distributed proportionally to the morality of the person or his worthiness to be happy. This is the perfect good, but virtue in the general sense as moral behavior and attitude is the invariable condition of the supreme good, while happiness is not absolutely good, since it is conditioned by virtue [cp 5:110.31–111.5]. Virtue is thus worthiness to be happy [cp 5:110.18–19] and a morally legislative attitude. Happiness is defined as the condition of a being in the world endowed with reason, such that all goes according to its wishes and will during its entire existence [cp 5:124.21–23]. Kant emphasizes that these two elements are not analytically related as they were by the Stoics and the Epicureans. For the Stoics virtue was the highest good and happiness the consciousness of being virtuous, while happiness was the highest good for the Epicureans and virtue the means to be happy. In fact, these two elements are very different, and they can actually conflict with each other. The combination of the two elements therefore has the form of a synthesis [cp 5:112.7; 5:113.12].

As with perpetual peace and similar terms mentioned above, the highest good does not seem to exceed any possible experience in the way transcendental ideas do. Even if it is unlikely, it is not impossible to imagine that people were happy according to their moral merit, and if it was the case we could actually observe this. Kant says in Verkündigung des nahen Abschlusses eines Tractats zum ewigen Frieden in der Philosophie that the highest good as far as it is obtainable is also a duty, and when it is a duty it is also obtainable [tep 8:418.2–3]. Since we should assume that Kant thinks it is a duty, he also thinks it is obtainable and then observable in the world. So, if they do not exceed any possible experience, they do exceed actual experience and in this way, they can apparently have a function within moral philosophy. In his Anthropologie in pragmatischer Hinsicht Kant explains it somewhat ambiguously in this way:

Ideas are concepts of reason for which there cannot be given an adequate object in experience. They are neither intuitions (like space and time) nor feelings (like the doctrine of well-being looks after), which both of them belong to the sensual, but they are concepts about a perfection to which one can get closer all the time without ever fully reaching it.

Anth 7:199.33–200.4. My translation
Does “cannot be given” mean that this cannot be given in principle such that we can never reach it? Kant did probably not imagine that God could ever be observed in the world. Neither is freedom something which we will ever fall upon in the world, and immortality is for obvious reasons not observable in this world. However, they are not something we try to reach or approach, but something we assume in different ways either theoretically or practically. This indicates that Kant is not speaking about transcendental ideas here. We should think that there is no actual adequate object for them, but they are realizable though there are few chances that we will actually realize them. Kant is less ambiguous in his Über Pädagogik:

An idea is nothing else than the concept of a perfection which has not yet been met with in experience; as, for example, the idea of a perfect republic governed according to the laws of the righteousness. Is it for that reason impossible? Our idea must first be right, and then it is not at all impossible, even with all the hindrances which now stand in the way of its realization. If for instance, everyone should lie, would, merely for that reason, truthfulness be only vagary? And the idea of an education which is to develop all the natural qualities in man is certainly truthful.6

lp 9:444.32–9:445.2
In this text, it is clear that the concept has not yet been realized in the world. A perfect republic is not yet a reality, but it is not impossible. It could be realized if the hindrances were removed. What Kant is speaking about is more like what we would call an ideal: lines of sight which go beyond actual experience with the function of indicating what we should pursue. This seems to be the idea when he speaks about ideas in Das Ende aller Dinge:

Note. Here we have to do (or are playing) merely with ideas created by reason itself, whose objects (if they have any) lie wholly beyond our field of vision; although they are transcendent for speculative cognition, they are not to be taken as empty, but with a practical intent they are made available to us by law giving reason itself, yet not in order to brood over their objects as to what they are in themselves and in their nature, but rather how we have to think of them in behalf of moral principles directed towards the final end of all things (through which, though otherwise they would be entirely empty, acquire objective practical reality).7

eat 8:332.27–8:333.3
The ideas we are talking about here, that is, non-transcendental concepts of reason, are created by reason and more precisely made available by the law giving reason as moral principles directed towards the final end. The final end is the highest good, but it is not quite clear how this end relates to the end of perpetual peace. Perpetual peace is in several places referred to as an end [pp 8:365.20–21; 8:377.9–10; 8:378.6–7; mm 6:350.16–17]. If we pursue the realm of the pure practical reason and its justice, then the end consisting in the blessing of perpetual peace comes into being by itself [pp 8:378.5–7]. This end has to be deduced from the formal principle of the maxims regarding outward actions [pp 8:377.10–12], that is, the principle of right [mm 6:231.10–12]. As such, perpetual peace is the last end of international law [mm 6:350.16–18] since international law is the principle of right applied to peoples or states.

Perpetual peace is also something we should approach continuously and endeavor to realize in an unending process of progress [pp 8:360.7–8, 386.27–30]. He discusses the practicality of this idea in several places. He takes the establishment of the French Republic as a sign that perpetual peace is possible through the idea of federalism. Such a federal arrangement can grow around the newly established republic and thus extend itself to the entire world [pp 8:356.14–23]. This idea about perpetual peace cannot be proven theoretically, but for practical purposes it is sufficient that we should work towards this end, which is in no way chimerical [pp 8:368.15–20]. Perpetual peace is no empty idea, but something we little by little should come closer to [pp 8:386.27–33]. Even if a world state is not a practicable idea, closer ties between states continuously causing them to approach perpetual peace will make it a practicable idea [mm 6:350.17–22]. Since its theoretical impossibility has not been demonstrated, we can use it for practical purposes and act as though it could be realized [mm 6:354.12–19]. In respect to being an end we can approach as a moral entity, perpetual peace is a non-transcendental idea.

In short, perpetual peace is the pure absence of war [pp 8:385.7–9; dpp 23:168.19–21] and as such something solely outwardly irrespective of any intention. It belongs in this respect to the realm of right and is as such a legal state. It is thus a state of peace wherein laws are operating [pp 8:366.23–29]. Such a state must be set up through a contract between the peoples. This contract should establish a peace league being a particular legal state leading to perpetual peace [pp 8:356.14–17]. The establishment of this state is no doubt what makes peace enduring, and if peace is such a legal state, then it is understandable that perpetual peace is a pleonasm, the legal state being itself something enduring according to Kant. To work towards this end is also conceived as an immediate duty by Kant [pp 8:356.3–4]. He calls perpetual peace a concept of duty [pp 8:362.9]. It is an end which human reason raises to a duty [pp 8:365.22]. Even though we cannot know it theoretically, it is made a duty to us for practical purposes [pp 8:368.15–20].

The question will then be what kind of duty is it? This quote from Zum ewigen Frieden assumes that perpetual peace is an end which is at the same time a duty:

Without doubt, the latter determining principle of action must stand first; for, as a principle of right, it carries unconditional necessity with it, whereas the former is obligatory only if we assume the empirical conditions of the end set before us – that is to say that it is an end capable of being practically realized. And if this end – as, for example the end of perpetual peace – should also be a duty, this same duty must necessarily have been deduced from the formal principle governing the maxims which guide external action.8

pp 8:377.6–12
In Metaphysik der Sitten, this is a definition of a loose duty. Characteristic of a loose duty is also the fact that it cannot be realized immediately, but we have to approach it little by little as circumstances permit. This is also the case with perpetual peace. What is odd here is that the state of peace is a legal state supposedly implementing strict duties following from the principle of right. Nonetheless, they cannot be implemented immediately, but have to be conceived as loose duties concerning ends that cannot be perfectly achieved and imperfect duties allowing some room for inclination in determining the way and extent to which we have to carry them out. Another odd thing is that this end should be deduced from the formal principle. Kant says that applying practical reason, and we assume this to be the categorical imperative, the end consisting in the blessing of perpetual peace will come into being by itself [pp 8:378.5–7]. In that case we are not actually pursuing this end. It is just a consequence of doing something else, namely applying the categorical imperative. So in what sense do we have a duty to pursue this end and not something else leading to it? It is supposed to be an end which is at the same time a duty. This seems somewhat paradoxical.

III The Apparent Paradox

This apparent paradox would apply not only to peoples and states, but to individuals in the state of nature as well. They also have a duty to leave the state of nature and establish a legal state [pp 8:355.33–36; 8:383.17–20]. This parallelism between individuals and states/peoples are also stated clearly in the Metaphysik der Sitten. Both individual persons and peoples are obliged to leave the state of nature and enter into a legal state [mm 6:350.6–8; 6:312.2–21]. This means that the apparent paradox does not only concern states and peoples but also individual persons living in the state of nature. We must assume that this duty to leave the state of nature must be a loose duty, since it is parallel to the one under which states have to leave the state of nature. This would hold even though the duty is not exactly the same. Individual persons in the state of nature have a duty to leave the state of nature and create a state. States, however, being already in their internal constitution legal states do not have a duty to create a world state, but only a league of states [pp 8:355.33–8:356.6]. The reason could be that states are already internally constituted as legal states.

In the preparatory works to Zum ewigen Frieden he states that the duty to consider other people as good is an imperfect duty [dpp 23:159.20–30]. Why we are not obliged strictly to consider other people as good should be understood in the light of Kant’s conception of the state of nature. Kant explains that in the state of nature you will never know whether you are in security. We are not obliged to trust other people in this state. We can ask that security be purveyed before we agree to trust them [dpp 23:159.20–30]. This idea is also developed in Zum ewigen Frieden. In the state of nature there is always a risk of hostilities breaking out. As long as there is no security, which can only be purveyed in a legal state, everybody (individual persons or states) can treat each other as enemies. Normally one should not act in a hostile manner towards others unless they have injured you, but in the state of nature they injure you by the very risk that they represent, and I can oblige him to enter the legal state or to go away [pp 8:348.3–8:349.6; 8:354.3–8].

In Metaphysik der Sitten the same idea is developed, but in a slightly more radical version. In the state of nature one is not obliged to leave the property of others untouched as long as this person does not guarantee the security of my property. I am only obliged to respect his rights if he respects my rights. There is a principle of reciprocity at work and this principle is only effective within a legal state. If there is such a thing as mine and thine between us, I can oblige the other to enter into a legal state [mm 6:255.33–6:256.18]. Man is often violent and wicked. Therefore, individual persons, peoples or states are never secure against the violent acts of others [mm 6:350.6–8; 6:312.2–21]. The presentation of the state of nature in Metaphysik der Sitten is different because Kant allows preventive war in this work, something which he did not do in Zum ewigen Frieden. In this last work, we could just chase them away.9 For our purposes, it is sufficient to note that we are not obliged to respect other people’s rights in the state of nature.

It would then appear that to consider them good and thus respect their rights in a spirit of reciprocity is an imperfect duty both for individuals and states. The strictness of the strict duties is somehow suspended until a legal state is created. We cannot create this state all by ourselves; it necessitates the co-operation of others, and it would therefore be unreasonable to demand strict compliance, which might endanger such a person. Conditions have to be such that a legal state is possible and realizable, and individual persons and states should work towards this end. This end cannot then be anything else than a loose duty.10

How can we actually approach this end? It seems that we cannot go there gradually. Either we have a legal state or not. It seems more like a flip of a coin; in one instance, we are not there, while in the next everything has changed. We can, though, little by little create the condition which makes this flip possible. Can these steps, then, leading to a legal state be considered a strict duty? Kant seems to imply this when he states that the preliminary articles nos. 1, 5 and 6 should be carried out immediately. There are apparently some strict duties which are active in the state of nature. They are strict in the sense that they should be carried out immediately, but not being enforceable, since there is no legal state, they should normally not be applicable in the state of nature. However, they seem to be applicable as those duties creating the conditions for the establishment of a legal state, and as such they are oddities in Kant’s system. How are these duties derived? Would they also flow from the categorical imperative or would they be derived in a more pragmatic way considering how propitious conditions can be created in the real world? This last option would make them comparable to what human rights lawyers call “necessary steps” in order to fulfill economic, social, and cultural rights,11 but there is a significant difference, since the end Kant pursues here is not a particular economic state or perfection of the human being, but a legal state of peace.

Conclusion

Even though there are some unclear points in Kant’s exposition of how perpetual peace should be realized and the kind of duty we are speaking of, the overall structure seems clear enough. The state of nature is a hostile environment where right moral behavior can have fatal consequences. We cannot assume, as we do in legal states, that the large majority would reciprocate and act rightly. Only on this assumption can you ask anybody to observe his moral duties; otherwise you would ask people to pointlessly sacrifice themselves. The crucial point is then to establish such a legal state, but this is no easy thing to do. That is why Kant conceives it as a loose duty to be established little by little or when circumstances permit this. However, a loose duty is not purely optional, such that you can indulge in it if you feel like it. It is a duty which cannot be enforced, but it nonetheless obliges you to keep a steady eye on the end which you should endeavor to realize. This would dissolve our apparent paradox, since it becomes a loose duty to establish a legal state, and there cannot, evidently, be any public enforcement before such a state is established.

It appears nonetheless that Kant envisages that certain definite actions (stop making secret reservations) are immediately dischargeable and so necessary for establishing the conditions necessary for the realization of perpetual peace that they count as strict duties. This innovation creates some confusion in Kant’s conceptual scheme, but it also poses the question about how loose these loose duties are. Duties such as generosity are also loose duties because they demand that the agent perform them with a particular attitude, which in virtue of its very nature cannot be enforced. There is no such question about attitude when it comes to the realization of a legal state. The duties of self-perfection and helping others are duties you should realize as much as you can, but there is no question of creating the conditions for the establishment of a particular state.

Has Kant invented a new kind of loose duty implementing a continuum between the more “strict” loose duties and those which are very loose? For these duties seem to be strict duties according to the conception found in Grundlegung, since they are definite and dischargeable, but it seems difficult to consider them as enforceable as one should according to the conception found in Metaphysik der Sitten. As we consider some ideal goal which as such is difficult to establish, you can always envisage many small things which would lead to this goal, and which are not difficult to do (they are definite and dischargeable), and these small things would come with a stronger obligation, even though they might not be enforceable. To deduce this from the couple of instances in the preliminary articles of Zum ewigen Frieden might seem adventurous, but the question is nonetheless puzzling.

1

I thank the participants at the research seminar, "Toward Perpetual Peace – Politics, Culture and Education," held at the University of Aarhus, Danish School of Education, November 20, 2015, for pertinent criticism and in particular Brian Milstein and Peter Niesen.

2

Trans. Kant, Immanuel. Groundwork of the Metaphysics of Morals. Radford va: Wilder Publications, 2008, 41.

3

Korsgaard then tries to match these distinctions with the one between duties of justice and duties of virtue in Metaphysik der Sitten, but we believe that we should consider the theory of Grundlegung and that of Metaphysik der Sitten separately. Christine M. Korsgaard, Creating the Kingdom of Ends (Cambridge: Cambridge University Press, 1996), 20, 83–84.

4

Allen W. Wood, Kant’s Ethical Thought (Cambridge: Cambridge University Press, 1999), 309.

5

Mogens Chrom Jacobsen, “Über das Verhältnis zwischen Immanuel Kants Rechts- und Moralphilosophie,” Danish Yearbook of Philosophy 27 (1992): 72–92.

6

Immanuel Kant, Kant’s Educational theory (Philadelphia: J.B. Lippincott Company, 1904), 109–110.

7

Immanuel Kant, Religion and Rational Theology (Cambridge: Cambridge University Press, 2001), 225–226.

8

Immanuel Kant, Perpetual Peace. A Philosophical Essay (London: George Allen and Unwin Ltd, 1917) 175–176.

9

For the reasons for this change see B. Sharon Byrd and Joachim Hruschka, “From the State of Nature to the Juridical State of States,” Law and Philosophy 27 (2008): 600 ff.

10

To this one could object that Kant actually speaks about nötigen others into a legal state, taking nötigen to mean “forcing” [mm 6:343.20–23; 6:256.14–18; 6:256.30–35; 6:260.16–19; 6:343.20–24]. If we could actually force people into this state it would be a strict duty, but the term has two different meanings in German, where one is related to force, while the other concerns an insistent advice, invitation, or urging of someone (see Duden online lexicon: http://www.duden.de/). In this last sense, the term nötigen is often used about duty generally. In Grundlegung he uses the term to indicate the obliging force of the categorical imperative in general [G 4:413.9–11]. In Metaphysik der Sitten at the very beginning of the Rechtslehre he speaks about nötigen, with general reference to the notion of duty, in contradistinction to that which is attractive or tempting [mm 6:219.2–11]. In other places, he explains the same idea about entering a legal state using the term sollen which would designate duties generally [mm 6:307.8–13]. This would invite us to understand nötigen in the same sense. He does say that each drives with force (mit Gewalt antreiben) others to enter the legal state [mm 6:312.22–28], but clearly Gewalt is seen as opposite to right [mm 6:307.8–13]. The brute force exercised in the natural state drives us causally to enter the legal state. There is no enforcement of any strict duty. The term is also used in Tugendlehre where it clearly has a general sense as an obliging force, where it can even be obliging in regard to myself and he actually speaks about nötigende putting verpflichtende in an explaining parenthesis [mm 6:406.19–24; 6:418.1–3; 6:442.8–18]. Some other uses are more ambiguous [mm 6:326.7–14; 6:360.13–17] and could be read as using force, but we would propose to understand nötigen generally as a duty such that we have a duty to enter the legal state. From the very term we cannot conclude which kind of duty it is, but we have argued it is a loose duty indicating an end.

11

un. cescr General Comment No. 3: The Nature of States Parties’ Obligations, u.n. Doc. E/1991/23, annex iii, 1991.

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