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The Intrinsic Normativity of Law in Light of Kant`S Doctrine of Right La Normatividad Intrínseca De La Ley a La Luz De La Doctrina Del Derecho De Kant

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The Intrinsic Normativity of Law in Light of Kant`S Doctrine of Right La Normatividad Intrínseca De La Ley a La Luz De La Doctrina Del Derecho De Kant CON-TEXTOS KANTIANOS. International Journal of Philosophy N.o 3, Junio 2016, pp. 161-187 ISSN: 2386-7655 Doi: 10.5281/zenodo.55112 The Intrinsic Normativity of Law in Light of Kant`s Doctrine of Right La normatividad intrínseca de la ley a la luz de la Doctrina del Derecho de Kant MEHMET RUHI DEMIRAY∗ Kocaeli University, Turkey Abstract This paper claims that a particular interpretation of Kant`s legal-political philosophy, as it is presented in his Doctrine of Right, provides us with the much needed resolution to the question of the normativity of law, precisely because it brings in a perspective that avoids both positivism and ethicism. This particular interpretation follows a strategy of argumentation that I call the “argument for the intrinsic normativity of law”, i.e., the argument that law is defined and justified on its own grounds, without any need to refer to ethics, or rational/enlightened self-interest. This argument highlights the concept of legal person with the innate right to freedom as the necessary presupposition of legal practices, and sets forth a fundamental sense of justice inherent to the concept of law that consists in the reciprocal recognition of legal personality. In the end, I come up with a distinctive conception of law that I formulate as a last resort of normativity in the face of a conflict wherein an ethical solution does not appeal to all parties. Keywords Legal philosophy; normativity; legal person; Kant; Ripstein Resumen Este artículo plantea que una interpretación particular de la filosofía jurídico-política de Kant, tal y como se presenta en su Doctrina del Derecho, ofrece la esperada solución de la cuestión de la normatividad de la ley, precisamente porque introduce una perspectiva que evita tanto el ∗ Faculty Member of the Department of Political Science and Public Administration at Kocaeli University (Turkey). E-mail for contact: [email protected] . [Recibido: 12 de marzo de 2016 161 Aceptado: 15 de abril de 2016] Mehmet Ruhi Demiray positivismo como el eticismo. Esta interpretación particular sigue una estrategia de argumentación que llamo “el argumento a favor de la normatividad intrínseca de la ley”, es decir, el argumento de que la ley es definida y justificada por sus propios fundamentos, sin necesidad de referir a la ética o a algún interés propio ilustrado/racional. Este argumento destaca el concepto de personalidad jurídica y el derecho innato a la libertad como la presuposición necesaria de prácticas jurídicas y expone un sentido fundamental de la justicia inherente al concepto de la ley que consiste en el reconocimiento recíproco de personalidad jurídica. Finalmente, propongo una concepción diferente de la ley que formulo como el último recurso de la normatividad frente a un conflicto donde una solución ética no atiende a todas las partes. Palabras Claves Filosofía jurídica; normatividad; personalidad jurídica; Kant; Ripstein 1. Introduction As far as the dominant approaches in contemporary legal philosophy, namely legal positivism and the natural law theory, are concerned, the question of the normativity of law, i.e., the question of what makes laws a binding set of rules, leads to a cul-de-sac. This is because both of these approaches have instrumentalist views of law. Legal-positivism sees law as an institution in the service of an aptly organised political power, while natural law tradition sees it as an institution in the service of a collective ethical ideal. Allow me to try and encapsulate this problem.1 On the one hand, legal positivism designates the family of approaches that deny a necessary conceptual link between the concept of law and some certain universal moral principles. Law is defined not with regard to its content, but with regard to the procedure through which it has been produced. Law is what authorised people say law is, in accordance with established procedures of producing, interpreting and applying laws. Hence, a legal order is in actuality an effective system of power with certain empirically investigable characteristics. As a result, legal positivism can well account for the (procedural or statutory) validity of particular legal norms in a particular legal-political order. However, it does not (and cannot) account for the normativity of legal order as a whole. That is, it cannot account for the question of what distinguishes a legal order from a brute organisation of power in the sense that the former solicits a duty to abide by its rules on the part of those subjected to them. On the other hand, natural law theory designates a group of approaches that ground the idea of law on some certain objective ethical good. Law is then conceived as an institution for the protection and promotion of a truthful conception of the human good life 1 I elaborate on the problem of normativity of law in legal positivism and natural law theory in my recently published work (Demiray 2015). CON-TEXTOS KANTIANOS 162 International Journal of Philosophy o N. 3, Junio 2016, pp. 161-187 ISSN: 2386-7655 Doi: 10.5281/zenodo.55112 The Intrinsic Normativity of Right collectively adapted. There is yet a crucial problem, however, with which such a perspective cannot deal. Even though we take it for granted that there is some objective ethical good, and also agree on what this is, there is still the problem of the justification of external coercion, insofar as external coercion is inherent to the idea of law. This problem seems to be insoluble within the confines of natural law theory, because it explains the normative force of ethical good (or value) on the basis of the force of attraction the ethical good (or value) has, while legal norms necessarily involve the element of compulsion from without. Hence, as far as those who are not already convinced by the ethical good protected and promoted by laws are concerned, there is no justification of law. Laws are a medium for applying external coercion, as either a propaedeutic for those who are not familiar enough with the ethical good to follow it spontaneously, or as a means of excluding those who are assumed to be a threat to the conception of the ethical good collectively adapted. I think that Kant’s legal-political philosophy presented in his Metaphysical First Principles of the Doctrine of Right provides the much-needed perspective on the normativity of law in a way that goes beyond legal positivism and natural law tradition.2 In the initial steps of his legal-political philosophy, Kant distinguishes his programme from both the positivist and the ethicist approaches. In opposition to a merely positivistic understanding of law, he argues that “a merely empirical doctrine of right” would be like “the wooden head in Phaedrus`s fable… [i.e.,] a head that may be beautiful but unfortunately it has no brain” (6:230/23).3 This analogy suggests that like a head, law has a function to play (i.e., ergon), which is essential for its definition, as well as for explaining its normativity. As we will see, Kantian philosophy of right finds a practical end that is constitutive of the domain of law, i.e., the maintenance of the conditions for personal independence in the relational sense. Equally important, however, is Kant’s opposition to the ethicist programme. Kant provides a strict distinction between the domain of right and the domain of virtue, on the basis of a distinction between two forms of lawgiving, namely “juridical lawgiving” and “ethical lawgiving”: “That lawgiving which makes an action a duty and also makes this duty the incentive is ethical. But that lawgiving which does not include the incentive of duty in the law and so admits an incentive other than the idea of duty itself is juridical” (6:219/20). What follows from this definition is crucially important in delineating the nature of the task we are faced with, in the case of the normativity of legal rules: “It [i.e., 2 In what follows, all reference to Kant will first reference the Akademie Ausgabe page numbers, followed by the page numbers of the Cambridge translation of Kant’s works included in the bibliography. 3 In a different place in the same work, Kant also argues that “one can therefore conceive of external lawgiving which would contain only positive laws; but then a natural law would still have to precede it, which would establish the authority of the lawgiver (i.e., his authorisation to bind others by his mere choice)” (6:224/17). CON-TEXTOS KANTIANOS International Journal of PhilosophyC o N. 3, Junio 2016, pp. 161-187 163 ISSN: 2386-7655 Doi: 10.5281/zenodo.55112 Mehmet Ruhi Demiray juridical lawgiving] is a lawgiving, which constraints, not an allurement, which invites” (6:219/20).4 As we shall see, Kant thinks that, in contrast to moral rules, the authorisation of external coercion is inherent in legal rules, and the major concern for legal normativity is the question of how one can justify the external coercion of a person by another, for the sake of ensuring her compliance with certain rules of action. Hence, this paper aims to present a Kantian perspective on the normativity of law that goes beyond both the positivist and ethicist approaches. Since there are significantly different interpretations of Kant’s philosophy of law, it will be appropriate to situate my interpretation with regard to the existing literature on Kant’s philosophy of law in advance. On the basis of the presupposition that the debate turns basically over the relation between ethics and law(right), it might be simply suggested that Kant scholars are divided into two camps, namely those who defend the dependency thesis (i.e., the thesis that legal normativity is dependent upon ethics) and those who defend the independency thesis.
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