Kant's Typo, and the Limits of the Law The Harvard community has made this article openly available. Please share how this access benefits you. Your story matters Citation Newhouse, Marie E. 2013. Kant's Typo, and the Limits of the Law. Doctoral dissertation, Harvard University. Citable link http://nrs.harvard.edu/urn-3:HUL.InstRepos:11158257 Terms of Use This article was downloaded from Harvard University’s DASH repository, and is made available under the terms and conditions applicable to Other Posted Material, as set forth at http:// nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of- use#LAA Kant’s Typo, and the Limits of the Law A dissertation presented by Marie E. Newhouse to The Committee on Higher Degrees in Public Policy in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the subject of Public Policy Harvard University Cambridge, Massachusetts April 2013 i © 2013 Marie E. Newhouse All rights reserved. ii Advisor: Professor Arthur Applbaum Marie E. Newhouse Kant’s Typo, and the Limits of the Law Abstract This dissertation develops a Kantian philosophical framework for understanding our individual obligations under public law. Because we have a right to do anything that is not wrong, the best interpretation of Immanuel Kant’s Universal Principle of Right tracks the two ways—material and formal—in which actions can be wrong. This interpretation yields surprising insights, most notably a novel formulation of Kant’s standard for formal wrongdoing. Because the wrong-making property of a formally wrong action does not depend on whether or not the action in question has been prohibited by statute, Kant’s legal philosophy is consistent with a natural law theory of public crime. Moreover, because the law can obligate us only by establishing a universal external incentive to obey its commands, statutes that impose only fines on nominal violators do not constrain our lawful options. Instead, if they are otherwise just, such statutes must be regarded as rightful permissive laws, according to which we may incur liabilities through our voluntary choices. iii TABLE OF CONTENTS INTRODUCTION.................................................................................1 CHAPTER 1: RIGHTS, FREEDOM, AND THE STATE..........................5 WHAT IS RIGHT?..................................................................................................... 6 A TAXONOMY OF INDIVIDUAL RIGHTS.....................................................................13 THE IMPOSSIBILITY OF RIGHTS IN A STATE OF NATURE........................................... 25 JUSTIFYING THE STATE.......................................................................................... 29 THE IDEA OF THE ORIGINAL CONTRACT................................................................. 33 CHAPTER 2: ACTING RIGHTLY ...................................................... 40 THE UNIVERSAL PRINCIPLE OF RIGHT ................................................................... 41 THE NATURE OF MATERIAL WRONGS .................................................................... 45 THE NATURE OF FORMAL WRONGS ....................................................................... 52 REMEDIES AND PUNISHMENTS .............................................................................. 62 KANT’S TYPO.........................................................................................................69 CHAPTER 3: THE LIMITS OF THE LAW ..........................................78 POSSIBLE LAWGIVING ........................................................................................... 79 AUTHORIZATION AND FORMAL DEFECTS................................................................ 85 THE LIMITS OF THE CRIMINAL LAW .......................................................................90 THE “HIGHEST LEGISLATION” ............................................................................. 100 CHAPTER 4: ACTING LAWFULLY .................................................106 LEGAL OBLIGATION REQUIRES A UNIVERSAL EXTERNAL INCENTIVE ..................... 108 MONETARY PENALTIES ARE NOT UNIVERSAL INCENTIVES.....................................114 FINES ESTABLISH ONLY PERMISSIVE LAWS ...........................................................118 ARE REGULATORY VIOLATIONS NECESSARILY MATERIAL WRONGS? ..................... 122 ARE REGULATORY VIOLATIONS NECESSARILY FORMAL WRONGS? .........................127 CONCLUSION................................................................................. 134 iv To my beloved husband, Sean Newhouse, who has earned it. v Introduction At first glance, Kant’s political thought can appear bafflingly inconsistent. On one hand, Kant holds that political authority is justified exclusively as a necessary precondition to our individual freedom. On the other hand, Kant seems at times to embrace a deeply repressive account of state power. He declares that the state’s laws are necessarily consistent with our freedom, and yet he insists that we must not resist even the most unbearable injustices perpetrated by despotic regimes. In the pages that follow, I will attempt to reconcile these seemingly conflicting aspects of Kant’s political thought. Part of the trick involves noticing that, for Kant, there is no difference between law and justified political power. Kant’s justification for political power is formal—and therefore legal—in nature. A formal account of political legitimacy entails a formal account of political obligation. This raises challenging questions about our specific obligations: if our obligations do not depend on anyone’s actual intentions or material interests, then how can we know definitively what the state has obligated us to do? I will show that our legal obligations are exactly those actions that we are rationally required to undertake or refrain from undertaking as a result of the state’s legitimate exercise of its coercive power. In Chapter 1, I relate Kant’s legal and political philosophy to his moral philosophy and describe the basic conceptual apparatus of Kant’s legal and political thought. I begin by offering Arthur Ripstein’s account of the nature of the relationship between the Categorical Imperative, Kant’s foundational 1 principle of ethics, and Kant’s Universal Principal of Right, in the context of Kant’s account of the relationship between freedom and the moral law in Critique of Practical Reason. I then describe Kant’s conception of external freedom— independence from constraint by the choice of another person—and explain why our freedom necessarily includes acquired rights of property, contract, and status. As Kant understands these rights, they are impossible in the state of nature. I then analyze Kant’s argument that freedom under law is possible because state coercion can be thought of as having been authorized by those subject to it. I describe “the idea of the original contract,” which for Kant is the regulative principle of the state, and the internal structure of the “three authorities” that together constitute it. In Chapter 2, I answer the question: how do we know which actions are right? I begin by offering my own interpretation of Kant’s Universal Principle of Right, according to which Kant establishes a dual test for the rightness of actions. I argue that my interpretation better accords with Kant’s language than do alternative readings, according to which Kant establishes a single standard. My interpretation has the further advantage of tracking the two distinct types of wrong actions that Kant describes elsewhere: formal wrongs and material wrongs. Because we have a right to do anything that is not wrong, formal and material wrongs should exhaust the category of conduct that Universal Principle of Right excludes. Material wrongs are actions that violate the innate or acquired rights of another human being. Formal wrongs are actions that violate “the right of human beings as such” to live in a rightful condition. I draw on Kant’s account of the difference between physical opposition and logical opposition in Critique 2 of Pure Reason to explain how material and formal wrongs give rise to different kinds of remedies. Finally, I explain how my analysis of wrongdoing supports my argument in favor of a two-standard interpretation of the Universal Principle of Right, and I suggest that the meaning of Kant’s principle might be obscured by a typographical error. In Chapter 3, I argue that the state’s legislative authority is limited to enactments that do not logically contradict the concept of a rightful condition. Because legislation is a conceptual act, I argue that this limitation affects lawmakers as a disability—statutes that contradict the concept of a rightful condition simply fail to be laws. If I am correct, my analysis suggests that the state’s criminal lawmaking authority is surprisingly limited—lawmakers can only criminalize conduct that is already formally wrong. Alternative, positivist interpretations of Kant’s legal philosophy are mistaken, because they fail to attend to the distinction between the state’s legislative authority and its executive authority. I reconcile my view with Kant’s famous opposition to resistance and revolution by showing that these activities are inconsistent with the idea of the original contract, while mere passive disobedience of unlawful statutes is not wrong. In Chapter 4, I distinguish permissive law from obligatory law, and I show that the state must establish an external incentive for us to comply with the terms