Categorical Principles of Law: A Counterpoint to Modernity

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C A T E G O R I C A L

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P R I N C I P L E S

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C AT E G O R I C A L .

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A Counterpoint to Modernity

O T F R I E D

T R A N S L AT E D

FOREWORD

BY

B Y

H Ö F F E

M A R K

M I G OT T I

K E N N E T H BAY N E S

THE PENNSYLVANIA STATE UNIVERSITY PRESS UNIVERSITY PARK, PENNSYLVANIA

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The German edition on which this translation is based is Kategorische Rechtsprinzipien: Ein Kontrapunkt der Moderne. ©Suhrkamp Verlag, Frankfurt am Main, 1990. This translation also incorporates the article “Eine Konversion der Kritischen Theorie” (Habermas), in Vernunft und Recht: Bausteine zu einem interkulturellen Rechtsdiskurs, pp. 146–59. ©Suhrkamp Verlag, Frankfurt am Main, 1996. Library of Congress Cataloging-in-Publication Data Höffe, Otfried. [Kategorische Rechtsprinzipien. English] Categorical principles of law : a counterpoint to modernity/Otfried Höffe ; translated by Mark Migotti. p. cm. Includes bibliographical references and index. ISBN 0-271-02158-6 (cloth : alk. paper) ISBN 0-271-02159-4 (pbk. : alk. paper) 1. Ethics. 2. Law—Philosophy. 3. Ethics, Modern—20th century. 4. Philosophy, Modern—20th century. I. Title. BJ55 .H5713 2001 340.1—dc21 2001021547 Copyright © 2002 The Pennsylvania State University All rights reserved Printed in the United States of America Published by The Pennsylvania State University Press, University Park, PA 16802-1003 The paper used in this publication is both acid-free and totally chlorinefree (TCF). It meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1992.

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CONTENTS

Foreword, by Kenneth Baynes Translator’s Preface Abbreviations 1

The Theory of Modernity in Dialogue with Kant

vii xxv xxix 1

PART ONE: COUNTERPOINT OR ANACHRONISM?

2 3 4 5

A Transcendental Critique of Society? In Search of the Lost Paradigm Practical Metaphysics and Anthropology The Categorical Imperative of Law in the Singular

17 31 59 85

PART TWO: EXAMPLES OF CATEGORICAL PRINCIPLES OF LAW

6 7 8 9

A Look at Utilitarianism The Prohibition Against False Promising Penal Law as Categorical Imperative “The Republic of Free, Confederated Peoples”

105 125 151 175

PART THREE: TIMELY ALTERNATIVES?

10 11 12 13

Freedom Without Herrschaft (Axelrod)? Is Rawls’s Theory of Justice Kantian? Kantian Doubts About Apel’s Discourse Ethics Habermas and the Conversion of Critical Theory

199 215 233 249

Bibliography Index

289 297

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FOREWORD Kenneth Baynes

Though Otfried Höffe’s work is only recently becoming known in the United States, he represents a distinctive voice in German social and political thought.1 In over three decades and more than a dozen books, he has developed an approach to political theory that resists easy categorization: he is at once a Kantian who draws frequently on Aristotle and the ancients, a liberal who profitably engages Hobbes and game theory, and a natural-rights theorist equally fluent in contemporary social theory, including Luhmann and Habermas. This extensive engagement with diverse traditions has afforded Höffe a perspective that is both original and illuminating. The present volume, as much as any of his other works, sets out this distinctive approach within the framework of his reception of Kant. Given the general familiarity of Kant and Kantianism in this country, due largely to the work of Rawls and his students, it also provides one of the best bridges for the reception of his views within the U.S. discussions. Contemporary political culture, according to Höffe, is deeply ambiguous or, in his term, “polyphonic.” On the one hand, there is a widespread distrust of universals and universalisms, reflected, for example, in the rise of “multiculturalism” and greater appreciation for the distinctiveness of cultures and traditions, in the renewed interest in a variety of empirical social sciences, and in the general suspicion of “grand theory.” On the other hand, there is also a growing, if fragile, Abbreviations used in the Foreword: KPW  Kant’s Political Writings, ed. H. Reiss (Cambridge: Cambridge University Press, 1970); BFN  Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, Mass.: MIT Press, 1996). 1. Three earlier works already appear in English translation: Immanuel Kant (Albany: State University of New York Press, 1994), Political Justice (Cambridge: Polity Press, 1995), and Aristotle (Albany: State University of New York Press, 2001).

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recognition of the value of basic human rights and commitment to their legal and political implementation. In Germany, this cultural ambiguity is reflected in the continuing tension between conservative critiques of liberal thought (ranging from Carl Schmitt to Odo Marquard) and the language of basic liberal rights invoked in the reunification of the two Germanys. In the United States, similar tensions can be found in the liberal-communitarian controversy of the past decade and in the continuing debates between liberalism and postmodernism. At one level, then, Höffe’s interpretation of contemporary culture is not new—in many respects it recalls Alasdair MacIntyre’s discussion of the moral malaise of modernity, in After Virtue, without its conservative undercurrent.2 What is distinctive about his contribution, however, is his attempt to rehabilitate Kant as a modern theorist (and theorist of modernity) whose views are still relevant particularly because of the way in which they both reflect and speak to this deep ambiguity. In fact, it would not be a distortion of his work to claim that its central theme is— pace MacIntyre—an attempt to demonstrate the continuing relevance of Kant. Kantianism and Kant studies have, of course, also seen a revival in this country due in large part to Rawls and his students. Höffe’s study can be viewed as a contribution to this revival—one of his earliest works was on Rawls—and in many ways, it seeks to develop and extend some of the Kantian elements in Rawls’s theory against Rawls or, to be more exact, against his political liberalism. Höffe’s work will then find a ready audience for those already familiar with this debate. For those less familiar, let me offer a brief overview: In a series of essays written in the late ’70s and ’80s, Rawls made more explicit the deeper Kantian intuitions that had guided the construction of his theory of justice, especially its more egalitarian components.3 A Theory of Justice (1971), Rawls now claimed, had not been an attempt to develop substantive normative principles from a purely neutral, game-theoretic model of rationality as many had supposed. On the contrary, the fundamental idea of a person endowed with two basic moral powers—what Rawls labeled the Rational and the Reasonable—constituted the deeper Kantian aspects of his theory. The selection of principles of justice and the design of the basic structure of society must reflect and secure equally for all these basic moral powers of the person. However, at least partly in response to communitarian critics, such as Michael Sandel, who argued that the Kantian conception of the person was abstract and disembodied—an “unencumbered subject of possession”— 2. After Virtue, 2d ed. (Notre Dame, Ind.: University of Notre Dame Press, 1984). 3. See especially “Kantian Constructivism in Moral Theory,” Journal of Philosophy 77 (1980): 515–72.

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Rawls, beginning in the mid-’80s, shifted the direction of his argument, relying more heavily on claims about ideas latent in our liberal political culture.4 The strategy was, so to speak, to outflank the communitarian objection by claiming that his theory did not depend on any “metaphysical” assumptions about the person or otherwise, but could be developed from the ideas shared by all liberals, whether they were Kantian individualists or not. To many, however, including many of those sympathetic with Rawls’s general project, Rawls was in danger of giving away too much. An adequate defense of liberalism could not so easily shun metaphysics without risking the alternative danger of a relativistic position in which a coherent defense of liberalism was ultimately undermined.5 In effect, in his latest writings, Rawls seems to want to have it both ways: the defense of liberalism should be “political, not metaphysical”; but, at the same time, it must also not be political, as he put it, “in the wrong way.” That is, the aim of “justice as fairness” should not be construed as a mere “modus vivendi”—the best that can be done given the realities of contemporary social life—nor should the fundamental idea of the person with its two moral powers be viewed simply as the content of a particular historical or cultural tradition.6 The difficulty of sustaining this position, however, is evident in the extremely mixed reaction his political liberalism has received—especially, though significantly, in its extension to the level of international relations.7 4. See here especially “Justice as Fairness: Political, Not Metaphysical,” Philosophy and Public Affairs 14 (1985): 227–51; for a more detailed discussion of this evolution in Rawls’s thought, see my The Normative Grounds of Social Criticism: Kant, Rawls, and Habermas (Albany: State University of New York Press, 1992). 5. For those otherwise sympathetic with Rawls but critical of his “political” turn, see especially Samuel Scheffler, “The Appeal of Political Liberalism,” Ethics 105 (1994): 4–22; Jean Hampton, “The Common Faith of Liberalism,” Pacific Philosophical Quarterly 75 (1994): 186–216; and Thomas Hill, “The Problem of Stability in Political Liberalism,” in Respect, Pluralism, and Justice (New York: Oxford University Press, 2000); for a relativist who embraces Rawls’s “political” turn, see Richard Rorty, “The Priority of Democracy to Philosophy,” in Objectivity, Relativism, and Truth (New York: Cambridge University Press, 1991), 175–96. 6. For some of Rawls’s remarks on this question, and especially the idea that a political conception must be stable “for the right reasons” and thus not “political in the wrong way,” see his introduction to the paperback edition of Political Liberalism (New York: Columbia University Press, 1996) and Justice as Fairness: A Restatement (Cambridge: Harvard University Press, 2001), 188. 7. In general, see, for example, Jürgen Habermas, “Reconciliation Through the Public Use of Reason,” Journal of Philosophy 92 (1995), and J. Raz, “Facing Diversity: The Case of Epistemic Abstinence,” Philosophy and Public Affairs 19 (1990): 3–46; for difficulties especially at the level of international relations, see Thomas Pogge, “An Egalitarian Law of Peoples,” Philosophy and Public Affairs 23 (1994): 195–224, and Thomas McCarthy, “On the Idea of a Reasonable Law of Peoples,” in Perpetual Peace, ed. James Bohman and Matthias Lutz-Bachmann (Cambridge, Mass.: MIT Press, 1997), 201–18.

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The present work can, I believe, be situated within these debates concerning the most suitable or appropriate interpretation and defense of liberal theory. As I suggested above, Höffe belongs among those who, broadly speaking, deploy Kantian arguments against Rawls in an effort to preserve Rawls’s deeper Kantian intuitions. However, that is just the first salvo in the exchange. Those, like Höffe, who hope to demonstrate the continuing relevance of Kant must address the same challenges that motivated Rawls’s own “political, not metaphysical,” turn—and this is where Höffe’s work offers its most original contributions to the discussion. Four challenges seem particularly relevant (and figure prominently in Höffe’s own work): (1) a plausible interpretation of Kant’s moral philosophy—and, in particular, the idea of a categorical imperative—that can avoid the twin charges of rigorism and empty formalism; (2) a convincing account of the relation between politics and morality (or “political rightness”) within Kant’s practical philosophy; (3) an outline of Kant’s cosmopolitanism; and (4) a sketch of the continuing relevance of Kant vis-à-vis some other contemporary political theorists. In the remainder of this foreword I will attempt to indicate the force of each of these challenges and the rough contours of Höffe’s own response. The more elaborate details can be found in the chapters of his book. (1) A central component of any attempt to rehabilitate Kant and his categorical imperative must surely be a demonstration that the categorical imperative can avoid excessive rigorism, on the one hand, and empty formalism, on the other— indeed, one could also show that this remains the central challenge of all neoKantian moral theory since Hegel, including that of Rawls and Habermas. For Kant, if the binding, or obligating, character of morality is to prove its worth, it must be shown that moral principles are wholly rational and do not depend on any empirical admixture.8 However, critics from Hegel to Bernard Williams have argued that precisely this condition ensures that Kant’s morality must succumb to one or the other—or, in Hegel’s case, even both—of these charges. A wholly a priori moral principle will either be insensitive to important contextual variations in a particular situation of action (consider Kant’s own treatment of the “supposed right to lie”) or will remain too abstract in its formulation to allow for the derivation of any determinate duties. Recent Kant interpreters—such as Henry Allison, Onora O’Neill, Barbara Herman, and Christine Korsgaard—have provided interpretations of the categorical imperative (especially in its first, or “universal law,” formulation) that attempt to rescue Kant from such criticisms. However, many 8. See, for example, Kant’s remarks in Grounding of the Metaphysics of Morals, trans. J. Ellington (Indianapolis: Hackett, 1993), 22 (GMS, 411).

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others continue to claim that these interpretations either stray quite far from some of Kant’s clear commitments, thus producing a quite un-Kantian account of morality, or still retain a great deal of indeterminacy with respect to specific moral duties and obligations. Thus, for example, in her important study The Sources of Normativity, Christine Korsgaard introduces the notion of a “practical identity” as an aspect of agency that is distinct from the agent’s “moral identity.”9 This enables her to gain some critical purchase (in response to the Humean challenge) on how agents might be obligated, or bound, by reasons, but it arguably threatens the purity Kant sought in his conception of moral agency. A similar claim can be made concerning Rawls’s earlier notion of a person’s individual life-plan. In both cases, empirical or not solely “rational” elements are introduced in order to generate more specific duties. Höffe’s alternative interpretation suggests that the contrast between the “rational” and the empirical or anthropological has been overdrawn, even by Kant himself (see especially Chapter 4). He argues that, even in his own writings, Kant’s sense of “moral anthropology” extends beyond a merely subsidiary status and plays an indispensable role in specifying some of the background assumptions required for any actual application of a categorical imperative. At the same time, however, the concept of moral obligation itself depends on practices of evaluation that, he maintains, transcend or outrun all empirical or anthropological features and thus constitutes a distinctively “metaphysical” (i.e., purely rational) dimension to Kant’s moral philosophy. In a highly original reconstruction of Kant’s example of false promise (see Chapter 7), Höffe proposes a two-step interpretation of the categorical imperative that distinguishes between the “logic” and “pragmatics” of an act-description—which, roughly, then allows him to distinguish between applications of the categorical imperative that test for “moral legality” and “moral worth” respectively. He also introduces the important idea of consequences of action that are “internal” to an act-description. The result is a reading of the categorical imperative that is well situated to resist many of the standard objections. There are certainly many specific details of this interpretation that still need to be worked out. However, one immediate virtue of Höffe’s reconstruction is that it may, so to speak, split the difference in the more recent controversy in Kant interpretation between “constructivists” like O’Neill and Allison and “teleological” interpretations, such as that recently defended by Allen Wood—that is, while retaining the “constructivist” insistence that moral obligations must be developed 9. The Sources of Normativity (New York: Cambridge University Press, 1996), 102.

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from the conceptions of autonomy and practical reason alone, Höffe is also able to show how the foreseeable consequences of actions figure into judgments concerning their moral status.10 (2) A second area of Kant interpretation to which Höffe’s work makes an important contribution concerns the relation between justice and politics in Kant’s practical philosophy. Though there are several aspects to this broad topic, the fundamental issue (to which I will return again in the last section, in connection with Habermas) concerns the way it which politics may properly be constrained by morality or justice. Is Kant’s conception of political legitimacy independent, or “freestanding,” of moral considerations (as, for example, a thoroughgoing positivist might hold), or does it rely irreducibly on a prior notion of moral rightness (as natural-law theorists maintain)?11 Interpretations of Kant on this matter have a long and disputed history, and Höffe, though more clearly aligned with one, attempts to clarify the issues in debate. One dominant interpretation of the relation between justice and morality might be called, following Wolfgang Kersting, the independence thesis.12 It asserts that Kant’s concept of justice, and the task of establishing a just political order in general, can be clarified without reference to the basic categories of Kant’s moral philosophy, and in particular without reference to the notion of autonomy (or “positive freedom”). The thesis is clearly expressed in the following quotation from Yirmiyahu Yovel’s Kant and the Philosophy of History: “Good citizenship is possible even in a kingdom of devils. It requires no ethical community (kingdom of ends) and presupposes none. It is something that can be imposed by coercion, while morality can be rooted only in the free or spontaneous will of individuals. Therefore, even to the best of states cannot be attributed a moral value per se, and it is not in any political organization that the end of history is to be placed.”13 This passage contains several assertions that need to be sorted out. Yovel is certainly correct in claiming that, according to Kant, a just society does not entail that its citizens act on the basis of moral incentives and 10. For a recent discussion of these issues, to which Höffe’s own discussion constitutes a further contribution, see Allen Wood, Kant’s Ethical Thought (New York: Cambridge University Press, 1999), and the critical review by Henry Allison, “Ethics, Evil, and Anthropology in Kant,” Ethics 111 (2001): 594–613. 11. For a recent treatment of this controversy, see Thomas Pogge, “Is the Rechtslehre Comprehensive?” Southern Journal of Philosophy, suppl. vol. 36:161–89; see also Otfried Höffe, “Königliche Völker”: Zu Kants kosmopolitischer Rechts- und Friedenstheorie (Frankfurt: Suhrkamp, 2001). 12. See Wolfgang Kersting, Wohlgeordnete Freiheit (Berlin: de Gruyter, 1983), 37–42, for other examples and a critique of the independence thesis. 13. Yirmiyahu Yovel, Kant and the Philosophy of History (Princeton: Princeton University Press, 1980), 189 (italics in original).

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thus does not require the existence of an ethical community. Similarly, it is true that for Kant the highest good and “end of history” is not a just political order. Neither of these observations, however, warrants the conclusion that no “moral value per se” can be attributed to a political order founded on principles of justice. Further, in contrast to Yovel’s interpretation, the “kingdom of devils” passage is difficult to read as suggesting that a just political order can be based on prudential considerations alone (which is what the independence thesis claims). Since this passage from Perpetual Peace is central to Yovel’s interpretation, I will cite it at length: As hard as it may sound, the problem of setting up a state can be solved even by a nation of devils (so long as they possess understanding). It may be stated as follows: “In order to organize a group of rational beings who together require universal laws for their survival, but of whom each separate individual is secretly inclined to exempt himself from them, the constitution must be so designed that, although the citizens are opposed to one another in their private attitudes, these opposing views may inhibit one another in such a way that the public conduct of the citizens will be the same as if they did not have such evil attitudes. (KPW 112–13) As Höffe also points out, this passage is admittedly difficult to reconcile with Kant’s position in the Rechtslehre and requires an interpretation of the relation between Kant’s philosophy of history and his systematic theory of justice. At this point I will only offer three considerations that weigh against Yovel’s interpretation (and in favor of Höffe’s). First, the claim that the problem of creating a just political order is merely a problem of “political technology” and can be solved on the basis of rational selfinterest (that is, on the basis of Verstand rather than Vernunft) conflicts with other claims made by Kant not only in other writings but even within Perpetual Peace: “A true system of politics cannot therefore take a single step without first paying tribute to morality. . . . For all politics must bend the knee before right, although politics may hope in return to arrive, however slowly, at a stage of lasting brilliance” (KPW 125). Second, as Yovel is also aware, the “kingdom of devils” passage is closely connected to Kant’s notion of a providentially guided nature, or what Yovel calls “the cunning of nature.” Thus it is not rational self-interest alone, but self-interest together with the providential guidance of nature, that is able to solve the problem of a just political order. If Kant’s assumptions about the “mechanisms of nature” are wrong, or at least if these mechanisms do not yield the consequences

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he predicts, then we cannot look to rational self-interest alone to produce a just political order. In other words, the “critical turn” that Yovel finds in Kant’s decision to restrict the “cunning of nature” to the production of a just state (and not the production of an ethical community) would have to be extended further. Third, two different readings of the “kingdom of devils” passage are possible, depending on what knowledge one wishes to attribute to the devils. If they know the moral law but choose not to act on it, in their rational calculations they may still devise a constitution that would be different from one in which their calculations were made without any knowledge of the moral law at all (that is, one that was based on rational self-interest alone). In light of these considerations, as Höffe also argues, priority must be given to Kant’s systematic presentation of the concept of justice as it is contained in the Rechtslehre, where, as in his moral philosophy in general, the concept of moral personality or autonomy is fundamental. Consequently, the most defensible interpretation of the independence thesis—and one that Höffe would also endorse—is the formulation offered by Mary Gregor in her Laws of Freedom: “Law is independent of ethics in the sense that it has no need of ethical obligation in determining its duties. But it cannot be independent of the supreme moral principle; for if its laws were not derived from the categorical imperative, then the constraint exercised in juridical legislation would not be legal obligation but mere arbitrary violence.”14 A second interpretation of the relationship between justice and morality, more prevalent in the secondary literature than the independence thesis, is the teleological interpretation. Patrick Riley’s Kant’s Political Philosophy offers one of the most sustained defenses of this position.15 I refer to this interpretation as teleological for two reasons. First, it is teleological in the sense that it is opposed to constructivist interpretations of Kant’s moral philosophy. Rather than view Kant’s moral theory as a construction developed in connection with a conception of the person as an autonomous moral agent, it maintains that Kant’s moral theory depends upon a rational intuition of “objective ends” given to us.16 Second, it is teleological in that it regards justice, and politics more generally, as something that exists “for the sake of” these objective ends. Thus, Riley writes, “public legal justice is instrumentally (purposively) related to morality in two ways: in a weaker sense, it creates legal conditions for the exercise of a good will—it limits 14. Mary Gregor, Laws of Freedom (Oxford: Blackwell, 1963), 31. 15. Patrick Riley, Kant’s Political Philosophy (Totowa, N.J.: Rowman & Littlefield, 1983). 16. Ibid., 16, 56–57, 67–68; for a criticism of this reading of objective ends, and a constructivist interpretation, see John Atwell, “Objective Ends in Kant’s Ethics,” Archiv für Geschichte der Philosophie 56 (1974): 156–71.

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occasions for sin and creates occasions for morality; in a stronger sense, it legally enforces part of what ought to be, even where a good will is absent.”17 Though I cannot pursue the matter further here (see below, “Aristotle or Kant?” section 4.3) the first sense of “teleological” must be dismissed, since it conflicts with Kant’s own commitment to an ethics of the will (or autonomy). It also runs counter to the basic principle of his critical philosophy, namely, that we cannot have knowledge beyond the bounds of sense experience. The second sense of “teleological” in this interpretation is more difficult to assess, since, like the independence thesis, it finds some support in Kant’s writings, especially Perpetual Peace and The Conflict of the Faculties. As before, the rule of interpretation must be to read these essays in light of Kant’s more systematic presentations, and that means the Rechtslehre must be given priority where Kant importantly distinguishes between a principle of judgment and a principle of execution and claims that, regarding the former, all laws (ethical and juridical) have the same status as moral laws.18 Thus, to describe justice as existing “for the sake of” morality is to diminish the intrinsic value of political rights and duties, just as the independence thesis denies them moral worth altogether. Political rights and obligations, according to Kant, are unconditional commands of pure practical reason, whether they produce a greater degree of internal morality or not (although Kant was, I think, ultimately of the opinion that they do). In this regard it is also important to note that while Kant considered legality inferior to morality when it refers to the incentives upon which people act, this does not mean that a just political order is somehow inferior to and merely instrumental for the moral kingdom of ends. Höffe’s very helpful distinction (in Chapter 5) between the categorical imperative in the singular (i.e., the moral law) and categorical imperatives in the plural (including the “universal principle of law” [Recht]) goes a long way toward clarifying what is misleading in this second, teleological interpretation of the relation between politics and morality. (3) Höffe’s discussion of Kant’s cosmopolitanism (Chapter 9) not only offers an important reading of Kant’s influential essay Perpetual Peace (1795) but also shows in an exemplary way Höffe’s attempt to demonstrate the contemporary relevance of Kant’s practical philosophy in general. On the commonly received interpretation, Kant envisioned a condition of international peace in which free and independent nation-states would voluntarily agree to a treaty in which each state announced an end not only to a specific war but, indeed, to all war. He accordingly dismissed what he described as the otherwise theoretically correct model of 17. Riley, Kant’s Political Philosophy, 4; see also 14, 98, and 135. 18. Metaphysik der Sitten (Hamburg: Meiner, 1966), 214 and 220.

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a unitary world-state, or world republic, as practically unattainable and a model that would most likely give rise to a “soulless despotism” in which citizens no longer felt bound to the laws of their state (KPW 113). Thus, contrary to some interpretations of Kant, Kant’s sketch of a world order that would secure perpetual peace did not include a world government, but only a very loosely conceived federation—a kind of “international society” of republican nation-states based on mutual respect for each other’s (internal and external) sovereignty. As a consequence, then, for Kant only a partial analogy can be drawn between the idea of the social contract and requirement that individuals quit the state of nature and the idea of an international state of nature that nation-states are morally required to abandon in pursuit of a cosmopolitan peace. In other words, Kant does not conclude that a cosmopolitan state, or world republic, is morally required. To be sure, the state is also a moral person entitled to freedom, or independence, but there is no corresponding obligation (as there is upon individuals) to secure this freedom through the creation of a world-state. Rather, only a voluntary agreement to an international rule of law in which states renounce war is consistent with the principle of sovereignty to which Kant adheres. In short, Kant seems to reject the idea of a world-state, or world republic, precisely because it would have to acquire the same powers of sovereignty that he believes rightly belong only to the nation-state as an independent moral-legal person. In a provocative reading of Kant’s essay—and one that interestingly parallels a recent reading by Habermas—Höffe argues that Kant’s arguments against a world republic are not convincing and thus that his shift to a loose confederation of nation-states (which Kant himself described as “second best”) lacks motivation.19 Höffe also persuasively argues that Kant’s conviction that the idea of a world republic is inherently “contradictory” was largely due to a concept of sovereignty that was too undifferentiated. Echoing some recent ideas of David Held and others, Höffe maintains that a concept of political sovereignty that is unlimited and indivisible is both factually obsolete (in a world of global interconnectedness) and normatively unattractive: “Sovereignty itself has to be conceived today as already divided among a number of agencies—national, regional, and international—and limited by the very nature of this plurality.”20 Following the earlier suggestion of Hedley Bull, Held describes the results of these trends toward globalization as a kind of “neo-medieval international order—a modern 19. See the interesting and parallel reading by Jürgen Habermas, “Kant’s Idea of Perpetual Peace, with the Benefit of Two Hundred Years of Hindsight,” in Perpetual Peace, ed. James Bohman and Matthias Lutz-Bachmann (Cambridge, Mass.: MIT Press, 1997), 113–54. 20. David Held, “Democracy and the Global System,” in Political Theory Today, ed. David Held (Stanford: Stanford University Press, 1991), 222.

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and secular counterpart to the kind of political organization that existed in Christian Europe in the Middle Ages, the essential characteristic of which was ‘a system of overlapping authority and multiple loyalty.” 21 Held—and Höffe—further suggest that this model of “overlapping authorities and criss-crossing loyalties” may continue to offer some normatively attractive features today.22 Of course, as Höffe also points out, these trends toward globalization have not made the nation–state irrelevant and are themselves highly ambivalent with regard to the values of global justice, peace, and—perhaps especially—democratic rule. Nonetheless, they indicate, at a normative level, the possibility for thinking creatively about global constitutionalism in ways freed from the unitary conception of external sovereignty assumed by Kant and by much of contemporary democratic theory. (4) In the final chapters of Categorical Principles of Law Höffe engages several contemporary political theorists (Axelrod, Rawls, Apel, and Habermas) from the perspective of the Kant interpretations he has carefully worked out in the earlier chapters. Put most broadly, his aim is to show that these more recent political theories either fail because they have neglected important distinctions in Kant (Axelrod and, more or less, Rawls) or mistakenly assume that they have moved beyond the limits of Kant’s paradigm (Apel and Habermas). The lesson to be learned is that one can ignore or move beyond Kant only at too great a price. I have, above, already briefly located Höffe with respect to current Rawls interpretation. In the last chapter, Höffe discusses at length Habermas’s theory of communicative action and his further attempt, in Between Facts and Norms, to develop from it a “discourse theory” of law and democracy. It is particularly in Habermas’s model of a deliberative democracy, freed from any connection with natural-rights theory, that Höffe locates the limits of his project—and his misguided attempt to go beyond Kant. The concerns Höffe raises touch upon some of the deepest normative issues within Habermas’s discourse-theoretic approach to politics and, I think, point to areas that, like his reception of Rawls, will require further clarification in view of Höffe’s queries. Within the context of discussions about deliberative democracy, Höffe identifies a central and difficult concern for normative political theory at least since Rousseau: the connection between democratic process (or popular sovereignty) and justice (or “political rightness”). Democracy means rule by the demos, or people, and this suggests citizens must be the authors, in some “nonfictively at21. Ibid, 223. 22. For Höffe’s related discussion of subsidiarity, see his Demokratie im Zeitalter der Globalisierung (Munich: Beck, 1999).

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tributable sense” (Frank Michelman), of the laws that constitute their polity. Yet it is far from clear precisely how political rightness and “rule by the people” are to be related, since most deliberativists—and indeed most democrats—do not regard the outcome of any given democratic procedure as just or right simply because it issues from that process. Moreover, even if one regards democracy as an imperfect procedure at best, it is still not clear how democratic process itself is a constitutive (and thus ineliminable) element in a conception of political rightness—rather than, say, the best available means to an end specified in a processindependent way. Yet it is just this claim regarding the constitutive role of democratic process in a conception of political rightness that is for Habermas the hallmark of deliberative democracy. Moreover, this problem is particularly acute for deliberative theorists, since populists of a more positivist bent tend simply to identify justice with the popular will, while more traditional liberal democrats (or “rights fundamentalists”) tend to downplay the importance of democratic process.23 The relation between liberal principles of right and democratic process thus appears to be largely contingent, and, as Höffe warns, at least the attraction of the benevolent (liberal) despot looms on the intellectual horizon. Neither of these options is available to deliberativists like Habermas, however, since they seem to insist upon both a deontological conception of political rightness (like liberals) and yet the indispensability of democratic process to that conception of political rightness. Deliberativists are, thus, faced with a unique “transcendental burden,” not found in other democratic conceptions, which motivates the following sorts of questions: How is this ideal of democratic polity even conceptually possible? How can political rightness, in some deep or constitutive sense, be “process bound” and yet, in another, be associated with a deontological notion of “right reason” that is process independent? Is political rightness process dependent or process independent? Höffe rightly points out that the conception of a procedural democracy and deliberative politics developed in Jürgen Habermas’s recent work Between Facts and Norms is decidedly “deliberativist” and thus gives rise to the sort of paradox just indicated.24 On the one hand, Habermas displays a commitment to the deontological strain in deliberativist thought in his claim that the ideal of a procedural democracy can be derived via reflection on the presuppositions of communicative 23. A similar criticism of this sort of (roughly) “rights-based” liberal theory articulated by Rawls, Dworkin, or, for that matter, Nozick can be found in Michael Walzer, “Philosophy or Democracy?” Political Theory 9 (1981): 379–99, as well as in the “strong democratic” theory of Benjamin Barber (see his “Reconstruction of Rights,” American Prospect [spring 1991]: 36–46). 24. For a reading of Rawls that also locates him squarely among the deliberativists, see my own “Constructivism and Practical Reason in Rawls,” Analyse und Kritik 14 (1992): 18–32.

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reason and action. On the other hand, Höffe correctly notes that Habermas also insists upon the indispensability of actual democratic process to ascertain and give content to the fundamentally “unsaturated” (BFN 125) scheme of rights derived in that manner. Habermas writes: “Individual private rights cannot even be adequately formulated, let alone politically implemented, if those affected have not first engaged in public discussions to clarify which features are relevant in treating typical cases as alike or different, and then mobilized communicative power for the consideration of their newly interpreted needs” (BFN 450). It seems, then, that Habermas’s desire to embrace both elements in the deliberativist position leads to what can be called the “regress problem”: Only the people in the collective exercise of their private and public autonomy can define what their legal rights are; yet, it would also seem that in order for the people to give expression to their will, a legitimate political order must already be presupposed.25 As Habermas puts it, “The idea of the rule of law sets in motion a spiraling selfapplication of law” (BFN 39). For his own part, Höffe questions how such a conception of deliberative politics is even possible, unless one explicitly takes up a more transcendental (Kantian) line of inquiry. This, in short, is the (unanswered) transcendental burden confronting deliberativists. I believe that Höffe points to a difficult and important issue at the heart of a secular (e.g., non-natural-rights-based) account of democracy. Moreover, as Höffe would no doubt agree, this is not a difficulty limited to deliberativists alone but one that confronts all modern, secular accounts of political legitimacy: How, for example, shall “rights fundamentalists” determine their preferred set of rights or the appropriate weighing or balancing of rights and majority rule? Thus, I suspect that the pivotal issue in dispute between Habermas and Höffe at this point will turn on what each hopes can be gained from an appeal to transcendental argument and, beyond that, what one understands by such an appeal. And here Höffe, more firmly in the Kantian tradition, is clearly more confident than Habermas about the eventual results. In Habermas, by contrast, though he too does not eschew transcendental argument altogether, greater attention is focused on the level of “middle-range” theorizing that attempts to spell out the institutional conditions for such a self-referential, self-limiting process of democratic law making. 26 25. For a similar “deconstructive” account of this paradox found in the act of constitution making, see Jacques Derrida, “Declarations of Independence,” New Political Science 15 (summer 1986): 7–15. The paradox, of course, has a much longer history and is expressed also in the tension Sieyes noted in the distinction between the pouvoir constitué and pouvoir constituant; see Hannah Arendt, On Revolution (New York: Viking Press, 1963), 160 f. 26. See, for example, the recent edited volume by Robert Goodin, The Theory of Institutional Design (New York: Cambridge University Press, 1996), especially 39 f.

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The primary task is to specify the institutional design—together with the reasons for it—most likely to realize the abstract ideals mirrored in an equally ideal set of procedures. Yet, I suspect Höffe would respond, is that really an adequate substitute for transcendental inquiry? What does Habermas hope to gain from his almost single-minded focus on procedures, and what, for that matter, does he understand by them? Does the appeal to procedure in Habermas not ultimately conceal the normative work that Höffe (and Kant) assign to transcendental inquiry? “Procedural” and “proceduralist” are among the most commonly used adjectives in Habermas’s Between Facts and Norms. He broadly contrasts his preferred “proceduralist legal paradigm” with the liberal and welfarist paradigms (BFN 409). He speaks of a “procedural understanding of the constitution” (BFN 246), a “proceduralist” view of constitutional adjudication, a proceduralist understanding of law (BFN 409), a proceduralist theory of politics (BFN 273), and a procedural interpretation of popular sovereignty (BFN app. I). He also describes his own conception of democracy as “proceduralist.” Within the context of German discussions, it is clear that Habermas seeks to distance himself from materialvalue—ethics interpretations of the law and political process, interpretations inspired by the work of Max Scheler and Nicolai Hartman (BFN 254). Habermas also uses the term “procedural” to distinguish his own conception of the democratic process from liberal and republican alternatives. This is, in part, to distance his own view from one that takes as fixed and given a “prepolitical” set of (natural) rights and from the view that the democratic process derives its legitimacy “from the prior agreement of a presupposed substantial-ethical community”— that is, from a prior agreement on a conception of the good. Thus, Habermas writes, “a consistent proceduralist understanding of the constitution bets on the intrinsically rational character of the procedural conditions grounding the supposition that the democratic process as a whole facilitates rational outcomes. In that case reason is embodied solely in the formal-pragmatic facilitating conditions for deliberative politics.” (BFN 285). However, within the wider context of legal and democratic theory, the term “procedural” is ambiguous, and many different conceptions that have been described as proceduralist differ importantly from Habermas’s own. For example, in his influential essay “Is Democracy Special?” Brian Barry describes his own conception as proceduralist, which he understands to mean dismissive of “the notion that one should build into ‘democracy’ any constraints on the content of the outcomes produced, such as substantive equality, respect for human rights, concern for the general welfare, personal liberty, or the rule of law. The only exceptions (and these are significant) are those required by democracy itself as a

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procedure.”27 While the question of what is “required by democracy itself as a procedure” is itself a matter of much debate, Habermas’s conception of democracy is not procedural in this sense. It clearly has more substantive normative content than Barry would grant. Further, even more normatively rich procedural conceptions, such as Peter Singer’s conception of democracy based on a notion of “fairness as compromise” or John Ely’s “process-oriented approach” to the constitution and constitutional review, fall short of Habermas’s conception.28 For these conceptions, the democratic process consists in a set of rules and procedures that are supposed to weight equally preferences whose formation is largely exogenous to the democratic process itself. Each person should be granted the opportunity to register his or her preference, and no person’s preference should count for more than another person’s. The conceptions thus operate with an ideal of political equality understood in terms of the equal opportunity to influence political outcomes. A procedure is “fair” if it captures this notion of equal power. The difficulty with such conceptions, however, is that they remain relatively indifferent to the initial preferences that enter into the procedure.29 A fuller and thus more adequate account would consider the formation and quality of preferences as well. To do this, the ideal of political equality must initially be conceived at a more abstract level and cannot be identified directly with the (procedural notion of the) equal opportunity to influence outcomes.30 Habermas’s conception of democracy thus presupposes a more abstract ideal of political equality, and this more abstract ideal in turn serves as a guide to indicate whether any proposed set of procedures is “fair.” “The concept of democratic procedure itself relies on a principle of justice in the sense of equal respect for all” (BFN 266 and 103). The ideal of political equality is then not identified solely with a set of procedures that secures an equal opportunity (for any given preference) to influence outcome. In this sense, Habermas’s procedural conception is perhaps closest to what Charles Beitz has called “complex proceduralism”: Like other forms of proceduralism, [complex proceduralism] holds that democratic procedures should treat persons as equals; but it will not 27. In Philosophy, Politics, and Society, ed. P. Laslett (Oxford: Blackwell, 1979), 155–56. 28. See Peter Singer, Democracy and Disobedience (New York: Oxford University Press, 1974), and John Hart Ely, Democracy and Distrust (Cambridge, Mass.: Harvard University Press, 1980). 29. See Charles Beitz, Political Equality (Princeton: Princeton University Press, 1989), 82. 30. See, for example, Habermas’s remark linking the notion of equal respect with the idea of reasons acceptable to all (BFN 103).

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follow that the appropriate criterion for assessing procedures is the simple principle of equal power over outcomes. Instead, complex proceduralism holds that the terms of democratic participation are fair when they are reasonably acceptable from each citizen’s point of view, or more precisely, when no citizen has good reason to refuse to accept them.”31 In Habermas’s conception, analogously, there are certain abstract ideals—in the last analysis an ideal of (public and private) autonomy or communicative freedom—that are identified prior to (and thus independent of) any proposed set of (ideal) procedures. It is these ideals that then confer a presumption of reasonableness or fairness on the proposed procedures.32 In sum, then, for Habermas, ideal procedures attempt to capture or express an ideal, or model–conception, of the citizen as free and equal, or, what amounts to the same thing, an ideal of practical reason. This accounts for the “deontological” aspect of his thought. But in what way is democratic process constitutive of political rightness? Political rightness is process dependent, I believe, in two senses: First, the specification of a set of (ideal) procedures represents an attempt to “mirror” an interpretation of the requirements of right reasoning, or, in other words, a model-conception of the citizen as free and equal. And the claim must be that this set of procedures captures these ideals better than a more determinate or substantive set of values is likely to do. Second, even the specification of these procedures remains nevertheless quite abstract, and the “rights” they are said to express remain fundamentally “unsaturated.” For Habermas, as Höffe points out, rights can acquire a concrete and determinate character only through the exercise of the citizens’ collective autonomy. Only the citizens can legitimately determine what their rights shall be. Yet, to restate the “regress problem,” how shall they do that unless they are already constituted as citizens? Of course, when the issue is stated in such an abstract form, it has the air of deep and insurmountable paradox: The people cannot make law unless they are already constituted as a people. But why is it necessary to end with the most paradoxical formulation? As Rawls points out in a related context, we are not beginning at “ground zero.” Rather, we have a history and tradition of constitution making, with its relative successes and failures, that can serve as a guide. Habermas’s position appears to be the same: “The system of rights does not exist in transcendental purity. But two hundred years of European constitutional law have 31. Beitz, Political Equality, 23. 32. See BFN 295, and Jürgen Habermas, “Three Models of Democracy,” Constellations 1 (1994): 6.

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provided us with a sufficient number of models. These can instruct a generalizing reconstruction of the intuitions that guide the intersubjective practice of selflegislation in the medium of positive law” (BFN 129). Further, in attempting to give more specific content to that to which citizens could reasonably assent, special attention should also be given to secure the conditions required for citizens to give (or contest) such agreement. Hence, the importance of the basic liberties (such as those contained in Rawls’s First Principle). Thus, while the paradox to which Höffe points cannot be altogether eliminated, its initially immobilizing effect can be mitigated by attending to the problems and dynamics associated with various forms of institutional design. Yet, again, Höffe need not disagree, and, in fact, his own interpretation of Kant suggests a similar “intertwining” of anthropological and transcendental considerations. Still the question can be posed: Is reflection on procedures, especially as Habermas now understands them, a substitute for transcendental inquiry or a continuation of that inquiry under a different name? Finally, as Höffe also points out, there may not be a definite or uncontestable answer to many questions concerning the indispensability of various social and economic guarantees, the regulation of speech, or the guarantee of various specific rights as preconditions for the democratic process. Yet it is not for that reason inconsistent or incoherent to regard these as basic matters of democratic debate while at the same time engaging in various critical efforts to convince the demos that the demos cannot, at this place and time, properly or genuinely exist without their recognition. Precisely such a strategy, it seems to me, is reflected in the best understanding of what Rawls calls “reflective equilibrium”: It is an attempt to convince “us”—that is, we citizens who are asked to regard ourselves as simultaneously authors and subjects of the laws and “constitutional essentials” in question—that certain matters are of such deep importance that they should be constitutionally secured from what Madison called the “mischiefs of factions.” It is also, it would seem, not antithetical to democracy but rather democracy, most broadly conceived, at work. What this virtual debate between Habermas and Höffe may finally reveal, however, is that, in a sense, both sides are right. On the one hand, transcendental philosophy, at least as traditionally conceived, cannot be counted on to yield sufficiently determinate answers to political questions in the absence of concrete reflection on institutional design and its foreseeable consequences; on the other hand, normative reflection on our political practices always involves, at the same time, distinctively philosophical inquiry about what is presupposed in our most fundamental attempts to understand ourselves as practical (i.e., free and accountable) agents. Here Höffe is surely right that this involves a level of transcendental inquiry—inquiry into the (nonempirical) conditions of possibility—that could

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never be replaced by the empirical sciences or, for that matter, by appeal to the ultimately contingent fact that this is just the way we do things here. Philosophy (now conceived as transcendental inquiry) and democracy, in any adequate analysis of either, share more than ancient Athens as their common origin: both are equally engaged in the projects of self-knowledge and self-realization. Höffe’s study, it seems to me, helps us to better understand why this is the case.

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T R A N S L ATO R ’ S P R E FAC E

Of the German words in this book that resist smooth rendition into English, two require commentary, the same two that were singled out for attention by Jeffrey Cohen, translator of Höffe’s Political Justice (1995). That work immediately preceded the present one in Germany and is thematically connected to it in numerous ways. The words in question are “Recht” and “Herrschaft.” I follow Cohen, and also Raymond Geuss in The Idea of a Critical Theory (1981), in leaving the latter untranslated. “Hegemony” is perhaps the best single-word English rendering of this term, but “hegemony” nevertheless designates a kind of Herrschaft, rather than Herrschaft as such. As a translation of the German “Vorherrschaft,” formed by prefixing “Herrschaft” with an intensifying “vor,” “hegemony” would be fine, but what Professor Höffe speaks of here is “Herrschaft,” not “Vorherrschaft.” “Domination” and “rule” each have their advantages and disadvantages, but in the end I have found the disadvantages to be grave enough to justify leaving “Herrschaft” in its original state. The other problem term is “Recht,” which occurs in the book’s title, in its first sentence, and on average at least once every page thereafter. “Recht” is one of two German words for law. The other, “Gesetz,” resembles its English counterpart in referring either to a descriptive law, the sort sought by natural and social science, or to a prescriptive law, the sort enacted by statute. In both these cases “Gesetz” is a count noun, which takes a plural. When “Recht” refers to law, it refers to the prescriptive variety only, and when it carries the meaning of “law” in this sense, it is not a count noun and does not take a plural. When “Recht” does function as a count noun and take a plural, it refers not to a law but to a right. “Human rights” in German is “Menschenrechte,” “basic rights” is “Grundrechte,” and so on. Naturally, when “Recht” is used in the singular to refer to the law, to that which makes lawyers both possible and necessary, it does not shed its

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affiliation with concepts such as “right,” “rights,” “right conduct,” and even “justice.” Clearly, “Recht” is no more translatable than is “Herrschaft.” But translated it must be. English readers can be asked to deal with only so many foreign words at one go. If one had to choose a single English word for “Recht” as it figures in these pages, “law” would be it. In the title of the book, I have adhered to that choice. The categorical principles Höffe there invokes are, in the original, principles of Recht. But I decided against inflexible adherence to “law” throughout, largely because Mary Gregor, in her edition of Kant’s Metaphysics of Morals, translated “Recht” as “right.” The first half of the Metaphysics of Morals, the Rechtslehre, or Doctrine of Right, in Gregor’s rendering,33 is never far from Professor Höffe’s mind in the present book. So it would have been awkward to change Gregor’s translations of “Recht” and its derived forms (for the reader who was sent to that work would not find there what he or she had been led to expect), and even worse not to change them, since the reader would thus be given the disastrous impression that Höffe and Kant were talking about two distinct things. My standard way out of this quandary has been the moderately cumbersome one of translating “Recht” with both “law” and “right.” So the reader will find in this book much discussion of, for example, the “ethics of law and right,” which is my attempt to get “Rechtsethik,” the ethics of Recht, ethics insofar as it pertains to Recht, into English. Rechtsethik, as Professor Höffe makes abundantly clear, is, for Kant, the complement and contrast to Tugendethik, ethics insofar as it pertains to virtue, which is the subject of the second half of the Metaphysics of Morals.34 More to the point, Rechtsethik is the subject of the book before you. I hope that what my solution lacks in elegance it makes up in fidelity to Professor Höffe’s text. When “Recht” appears in a form or context that demands translation with an adjective, I have generally employed the somewhat esoteric but, I hope, not objectionably recondite “juridical.” From my conjunctive solution to the problem of “Recht” as a noun, it would seem to follow that here I had to choose between “legal,” “rightful,” and “legal or rightful.” The third put too much strain on English prose for my liking and strikes me as philosophically problematic to boot, and either of the first two on its own would suffer from the same defect as “law” or “right” on its own for the nominal cases. Because of its rarity, “juridical” has fewer 33. A rendering that prompts an acid rebuke from fellow Rechtslehre translator John Ladd, in whose opinion “it is not only unintelligible, but also incorrect, to refer to [Kant’s Rechtslehre] as “The Doctrine of Right” (Ladd 1999, xxi). Ladd’s translation of the work in question bears the title Metaphysical Elements of Justice. 34. For reasons that I hope will be apparent to the reader at the appropriate time, I have left untranslated some half dozen or so occurrences of “Recht” in the third section of Chapter 11.

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distracting connotations than does “legal,” while yet being more firmly tied to institutions with the power and authority to enforce judgments than is “rightful.” Nevertheless, when I had available a well-established English expression using “legal,” as in the case of “legal positivism,” for example, I translated accordingly. For the rest, whenever translation has been difficult enough to leave me less than fully satisfied upon second, third, and umpty-umpth thought, I have put the relevant German word in brackets after the translation. I have been at this job for a long time, and have been helped and supported by many people. First and foremost, I would like to thank Irmgard Vasudevan, who read through a draft of the whole work, made hundreds of useful suggestions and queries, and then had to suffer daily phone calls to discuss the trickier problems yet again. Markus Fankhauser had earlier been through half of the manuscript to similarly salutary effect; my colleague Dennis McKerlie has listened patiently to dozens of requests for his preference between English expression a and English expression b as candidate translations for German expression c, which is meant to cover philosophical concept d; and Jörg Eselben was extremely helpful in the later stage. I thank all three of them, and also Richard Sanger and Rita Sirignano for moral support from beginning to end, Sanford Thatcher of the Pennsylvania State University Press for his cheerful patience and ever prompt and helpful replies to questions, Jean-Christoph Merle for the same, Keith Monley for his wonderful copyediting, and Ann Levey, Susan Haack, and Elizabeth Brake, for timely help with this preface.

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ABBREVIATIONS

References and citations are identified parenthetically in the text and for the most part use the author-date system or the abbreviations listed below. Full bibliographical information may be found at the end of the book. References to Aristotle use roman numerals for books and arabic numerals for chapters; Bekker pages follow convention. References to Kant use the abbreviations listed below, each, with the exception of the Critique of Pure Reason, followed by the relevant volume and page number from the Prussian Academy edition of Kant’s works (Kants Gesammelte Schriften, edited by the Royal Prussian Academy of Sciences [Berlin: G. Reimer, 1910–]) and then by the page number of the relevant English translation. For the Critique of Pure Reason, page references are made in the standard way to the A and B editions of 1781 and 1787 respectively. Kant’s Works ANTH C1 C2 C3 CF DR

DV

LE

Anthropology from a Pragmatic Point of View (1974) Critique of Pure Reason (1998) Critique of Practical Reason (1997) Critique of Judgement (1951) The Conflict of the Faculties (1992) “Metaphysical First Principles of the Doctrine of Right” (called here Doctrine of Right) ( first part of The Metaphysics of Morals [VI:203–372]) “Metaphysical First Principles of the Doctrine of Virtue” (called here Doctrine of Virtue) ( second part of The Metaphysics of Morals [VI:373–493]) Lectures on Ethics (1980)

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Abbreviations

G IUH ML1 MM OSL OTH PP R THD

TP

Grounding for the Metaphysics of Morals (1993) “Idea for a Universal History from a Cosmopolitan Point of View” (1963) “Metaphysik L1” (XXVIII/I:167–350) The Metaphysics of Morals (1991) “On a Supposed Right to Lie Because of Philanthropic Concerns” (1993) “What Is Orientation in Thinking?” (1991) Perpetual Peace (1963) Religion Within the Boundaries of Mere Reason (1998) “On the Miscarriage of All Philosophical Trails in Theodicy” (1791), trans. Allen Wood and George Di Giovanni, in Religion Within the Boundaries of Mere Reason, Cambridge: Cambridge University Press, 1998. (VIII:253–72) “On the Common Saying: ‘This May Be True in Theory, but It Does Not Apply in Practice’” (1991)

Other Works BFN NE PJ TCA TJ

Jürgen Habermas, Between Facts and Norms Aristotle, Nicomachean Ethics Otfried Höffe, Political Justice Jürgen Habermas, The Theory of Communicative Action John Rawls, A Theory of Justice

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1 THE THEORY OF MODERNITY IN DIALOGUE WITH KANT

In matters pertaining to the law, modern culture operates within a peculiar tension, almost a contradiction. Even as it is increasingly determined by an empirical and, moreover, pragmatic style of thought, it nevertheless recognizes moral principles such as human rights, which are distinguished by their being categorically binding and which precisely because of this do not bend in the face of empirical and pragmatic thinking. Human rights have the rank of categorical principles of law, and insofar form a counterpoint within modern legal culture. The importance of empirical thinking shows itself in the openness of legal scholarship to the social sciences. This openness is especially visible in the rapid growth of new disciplines such as legal sociology, criminology, legal ethnology—and in intensified research into facts of positive law. That this openness is needed is (almost) self-evident. By heightening awareness of the empirical presuppositions and consequences of the law, interaction between legal research and

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social science prompts ever anew a rethinking of the law’s fundamental premises and thereby diminishes the risk of its becoming too distant from reality. In the case of penal law, for example, the social sciences steer our attention toward the perpetrator of the punishable act and limit the scope of the concept of guilt by means of sociological and psychological insight. Cultural comparison, meanwhile, discovers radically other possibilities, and this gives society the opportunity to shape itself legally in new ways. Openness to the social sciences becomes questionable only when one voice, necessary though it is within legal discourse, lays claim to dominance—or even exclusivity—with respect to all others. Only then will we shift from an interrogation of the concept of guilt to its refusal; only then will we reject retributive theories of punishment altogether instead of merely relativizing them. In short, the social sciences, focused as they are, in their questions and methods, on what is, are skeptical of normative considerations. At most they are prepared to make judgments of social-pragmatic value, and they are thus open to orienting themselves toward personal and collective well-being. But the rights that someone has simply in virtue of being human cannot be legitimated in this social-pragmatic fashion. In order to secure their legitimation, we need categorical principles of law—not as an alternative to social pragmatism, but as a counterpoint. A further argument in favor of the counterpoint provided by categorical principles of law appeals to the fact that our communities are growing increasingly sensitive to the diversity of human thought and action. Earlier, one spoke of pluralism; today, in the face of a more encompassing and radical plurality, some claim to see the beginnings of a new epoch, the postmodern. Even those who remain skeptical about the idea of a change of epoch—and I shall be offering a series of arguments in favor of such skepticism—can certainly acknowledge the new sensibility. An expansion of emotional, social, and intellectual opportunities can be observed within their own society, a development that results in increased opportunities for self-realization (or, at the least, one that removes unjustified obstacles). Perhaps more important still, this new sensibility runs counter to the “victory march” of Western forms of life, which threatens cultural distinctiveness the world over and alienates those affected from their indigenous forms of economic and social life. To all of this are added the ecological problems that strike back at Western societies when, as is often the case, the only portion of their culture they export is its technical, economic thinking. But however justified the sensibility in question, its intellectual spokespersons are still far from developing an adequate conceptual understanding of it. Those who transfer Paul Feyerabend’s “anything goes” motto (1975) from the philosophy of science to the philosophy of society overlook the many kinds of resistance

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in the face of which lifestyles and forms of culture must assert themselves. Preconditions and frame conditions are necessary if difference is nevertheless to be realized. The most elementary among these are without alternative and therefore cannot themselves admit of pluralization. Neither can recognition ensue only with the qualification that the required conditions serve the (alleged) collective good. Categorical principles of law are needed to conceptualize just this task of making possible a legitimate diversity even in the face of resistance. Just as they do in the case of empirical-pragmatic thinking, so here categorical principles of law run counter to an exaggerated ambition. Once again they do not constitute an alternative to the new plurality, but a counterpoint. They do contradict a one-sided plea for diversity such as that of Lyotard (1988), who urges that we should finally give up the ambition for universal validity with which traditional philosophy and science has tyrannized humankind. Undoubtedly there is a concept of universality that is incompatible with a right to particularity and individuality, but categorical principles of law will raise objections against a concept of this sort as well. Here, the regularly criticized combination of rigorism and formality that is characteristic of the categorical imperative turns out to be advantageous: the unconditioned validity —that is, the moral rigorism—blocks a “recognition with reservations or qualifications,” while the high degree of formality makes possible an almost boundless wealth of determination regarding content. The social sciences had already begun to influence thinking about law and right in the early stages of the Enlightenment. Those who free themselves from a one-sided picture of this period will discover in it more than the mere beginnings of a diversity of confessions and religions, of values and social groups, and of forces determining economic and political policy. In a word: postmodernity begins in modernity. And we find as well in the earlier epoch the development of the counterpoint—human rights. Thus, in the tension between empirical-pragmatic thinking and categorical principles of law, two contrary tendencies of the European Enlightenment live on, and the same goes for the relationship between plurality and the conditions that make plurality possible. Whether they want to or not, our late- or postmodern societies remain, in the inter- and counterplay of different concepts of social rationality, bound to the heyday of modernity itself. Because of the essential connection between these disparate tendencies, we can no longer interpret the project of modernity homophonically. To be sure, the interests of recently repopularized attributions of culpability—found, for example, in Feyerabend’s notion of the “false trails of reason” (1987) or Lyotard’s of the wrong turn of modern philosophy—are well served by the simplifying strategy of recognizing a single voice as leading the melody. In that case, the dangers of modernity can easily be ascribed to the false leading melody. But how do

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things appear if there is no leading melody, if modernity consists of a polyphony? Modernity, on such a view, remains a project at risk, but the danger can now, in a more nuanced fashion, be seen to result from attempts, themselves quite changing, to pick one voice out of the many and allow it to dominate the others. Sometimes, indeed, a voice will “give itself the air of totality,” that is, completely overestimate its weight and claim for itself exclusivity. In any case, categorical principles of law urge an understanding of modernity as a polyphonous project. This plea is to be taken on three levels. The basic concept stands for a program of theory in which ethics, legal theory, and social philosophy form an integrated context and in which, precisely from this context, new light on modernity is shed. In the area of legal theory, categorical principles raise their oppositional voice against an exclusively empirical-pragmatic thinking. In the area of social theory, they constitute a counterweight to a theory of radical and exclusive plurality. And finally, with respect to the theory of modernity itself, they support, albeit indirectly, a polyphonous self-understanding. At the same time, the adoption of categorical principles goes hand in hand with a plea that questions of law and right (Rechtsfragen) be given greater weight. The legitimacy of the modern age, today once again under discussion, needs, in the areas of science, technology, and economics, to be judged differently from the way in which it should be judged in architecture, literature, music, and the visual arts; and in the area of law and the state, the situation is yet again different. In the latter area, the modern age is to be assessed entirely positively, presupposing that it remains open to the counterpoint, the categorical principles of law. In order to present a conceptual profile of this counterpoint and to examine its validity, this study is directed above all toward the overall conception and its justification. In its second part, by way of at least indicating the scope of the project, I investigate a number of examples that are not so uncontroversial as human rights. Finally, the counterpoint should prove itself in the arena of current discourse in moral philosophy. I. Because we owe the theory of categorical principles to Kant, it is appropriate that this work proceed in dialogue with him. Against this procedure, it might be objected that the categorical imperative has long been “discussed to death.” The objection overlooks the fact that even if, as may be the case, the categorical imperative has received sufficient attention in the field of general ethics, it has nevertheless received relatively little in the field of law. Even among professional moral philosophers, it is widely thought that the categorical imperative is directed exclusively to the individual, whereby it becomes irrelevant for the law, which is a social institution (Jonas 1984, 12).

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Under the slogan “categorical principles of law,” the categorical imperative is regarded here as a fundamental principle of law and right and is elucidated from two perspectives: systematically, as the counterpoint of modernity, and philosophically-historically, as a new perspective on a well-known fundamental concept. Beyond this, the reflections intend to transcend the particular “case” of the law: since most of the arguments in moral philosophy have already been made, the discourse can perhaps be revivified by an approach from the side, from the ethics of law and right. The revivification begins with a more finely grained conception of ethics and its fundamental concept from a Kantian perspective. Traditionally, two distinctions are made: On the one hand, the categorical imperative is regarded as the measure of morality, and Kant presents different formulations of it. Apart from the basic form, he recognizes three subformulations, whereby the basic form takes the supreme principle of morality to be that of general law (allgemeine Gesetz) as such (G IV:421/30), while the three subformulations take it to consist, respectively, in the idea of a general law of nature (G IV:421/30), in that of humanity as an end in itself (G IV:429/36), or in that of a harmonious “kingdom of ends as a kingdom of nature” (G IV:436/42). On the other hand, one distinguishes the categorical imperative in the singular, the supreme principle of morality, from categorical imperatives in the plural, the substantial principles of morality. Therein is contained the first element of the new perspective here proposed. With the idea of categorical principles of law, I propose to introduce an intermediate level between the categorical imperative in the singular and categorical imperatives in the plural. All told, in other words, I recognize three levels of categorically binding validity. In first moral philosophy, or fundamental ethics, we develop the categorical imperative. In itself it is singular, but it can be expressed either in the basic formulation or in any of the three subformulations. In the general branch of second moral philosophy, this single imperative is applied to the two fundamental aspects of human practice, that is, to personal practice or virtue and to institutional practice, and therein especially to the law. Finally, we find on a third level the special branch of second moral philosophy, that which covers the field of retributive justice, to which Kant ascribes a categorically binding validity, along with such particular principles as the prohibition against lying and suicide. The categorical imperative of law in the singular belongs, therefore, on the second level, while categorical imperatives of law in the plural, that is, categorical principles of law, belong on the third. But in the end, not even this threefold distinction is sufficient. Critics inspired by Hegel, such as Odo Marquard (1987a, 111), reject the categorical imperative

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as a “single-principle-ethics” (Ein-Satz-Ethik); but in truth Kant’s thought harbors a remarkably rich field of questions and suggested solutions, and it is not only in the Metaphysics of Morals that this richness is developed. To begin with, the problems involved cover a great deal of ground: the theory of rationality, technical as well as pragmatic and moral, and beyond this the doctrine of the fact of reason, of the autonomy of the will and the undermining of all eudaimonistic ethics. In addition, the categorical imperative is layered within itself. Beyond the distinctions already named, the fundamental ethical aspect of the imperative consists of two levels. At a level more basic than that of a moral principle, the categorical imperative in the first place defines what morality is insofar as it is “applied” to human beings, who do not always and by their nature recognize moral principles. Only in the second place does it represent a supreme criterion. There, in its semantic, or metaethical, sense the categorical imperative is nothing other than the concept of morality, the concept of validly binding claims that can perhaps be weighed against one another in the case of conflicts of obligation but that must not be relativized in the service of any other, allegedly higher kind of validly binding claim. Those who have grown attached to the oversimplified reading of the categorical imperative will no doubt hold that its actual meaning is unclear. Nevertheless, Kant had in mind something much more complicated than is allowed for by the usual reading allows for, and no ethics that seeks a just conception of the problems involved can escape complexity of this sort. We must begin with a concept of morality, then try to obtain a criterion from this concept, and then, in at least two stages, “apply” the criterion in a general and a special ethics, both of law and right and of virtue. These conceptual relationships are summarized in Table 1. However nice it sounds, the idea of a categorical imperative of law, whether we take it in the singular or in the plural, calls forth a divers array of worries additional to that of having been discussed to death. They are, for the most part, of an utterly fundamental nature, which is to say that they identify difficulties that confront any normative theory of law, any ethics of law and right whatsoever. Other, Kant-specific worries emerge as well, although some of the Kant-specific objections end up dovetailing with the systematic ones. The difficulties begin with the question whether the philosophy of law and right to which the imperative belongs can be critical, a question that has more than merely a Kant-immanent bearing. Subject to the powerful impression made by the Frankfurt School, we expect a critical theory to be above all else negative in tenor: we expect it to ferret out the injustices, contradictions, and prejudices that riddle its object, social conditions. Since Kant, in his philosophy of law and right, does not offer an incriminating or unmasking critique of this sort, it might be regarded

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Table 1. The Levels of the Categorical Imperative I. First Moral Philosophy (Fundamental Ethics)

General Categorical Imperative

1. Semantic Level

Concept of Morality

2. Normative Ethics Level

Criterion of Morality Basic Form Formal Subform Material Subform Complete Determination

Universal Law Universal Law of Nature Humanity as an End in Itself The Harmonious Kingdom of Ends as a Kingdom ofNature

II. Second Moral Philosophy 3. General Branch

Categorical Imperative of Law in the Singular

Categorical Imperative of Virtue in the Singular

4. Special Branch

Categorical Principles of Law (for example, the prohibition against false promising)

Categorical Principles of Virtue (for example, the injunction to help those in need)

as thoroughly uncritical. In fact, Kant uses in his theoretical philosophy a third notion of “critique,” one that both underlies the categorical principles of law and expands the possibilities available to a critical theory of society (Chapter 2). It is popular to write the history of modern law and society as a history of advancing neutrality. First, it is said, modernity became neutral (in the sense of “indifferent”) with respect to metaphysics, then with respect to religion, and finally with respect to morality. The very title “categorical principles of law” calls two of these alleged neutralizations into question and demonstrates thereby once again its significance for the theory of modernity. One issue is immediately obvious: adherence to categorical principles of law entails defense of the idea of morality and rejection of the corresponding neutralization theses, the assertions, partly socialhistorical and partly law-and-right-theoretical, that modern society has been “released from morality” (Behauptungen der Entmoralisierung). To oppose the thesis of a “release from morality” (Entmoralisierung) is, of course, to invite the charge of naïve moralizing. But the concept of morality that underlies categorical principles of law is far more complex and sensitive to the relevant issues than is the concept with which its opponents operate. In fact, it will be shown below that it is the proponents of a retreat from morality who argue with a very simplistic concept of what morality is. A finely nuanced conceptual

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grid is indeed not the least of the contributions that the idea of categorical principles of law can make to this debate. Within the network of concepts to be developed, the domain of law and right will be sharply distinguished from other areas of morality, but will nevertheless be held accountable to judgment from the moral point of view: the upshot being, so to speak, “a morality of law and right without moralizing” (Chapter 3). Categorical principles of law also place a question mark at the end of another of the three indifference theses just noted, that of the end of metaphysics. Since categorical principles have as such, according to Kant, an a priori status, so must categorical principles that concern the ethics of law and right ethics be valid a priori, that is, independently of experience. Thus, because claims that have content and yet do not depend upon experience for confirmation or disconfirmation belong to metaphysics, the theory of categorical principles of law becomes “an ethics of law and right as metaphysics.” Such a discipline appears impressive at first glance, but upon closer examination seems instead to be anachronistic. An ethics of law and right as metaphysics appears impressive because it trusts in pure philosophy to justify principles of the same in order to provide a simple and clear basic orientation for all juridical practice. Consequently, categorical principles of law are opposed to the new modesty in philosophy. When Marquard (1989) bids “farewell to matters of principle” and Habermas (1990b) restricts the legitimate claims of the philosopher to that of “an interpreter and place-holder,” we find, surprisingly, that both the right Hegelian (Marquard) and the left Hegelian (Habermas) concur in proclaiming a self-limitation that undercuts the orientation promised by categorical principles of law. That philosophy sees this orientation as obtainable only by means of a metaphysics renders questionable the ambition of providing it and with this the categorical imperative of law itself. In the two hundred years that separate us from Kant, metaphysics has been so repeatedly and fundamentally devalued that one can only be skeptical of a metaphysical ethics of law and right. Is it really true that the political innovation of modern times, the recognition of human rights, cannot be justified without metaphysics? Metaphysics finds in the idea of categorical principles of law a cautious rehabilitation. What is rehabilitated is not, or at least not immediately, the theoretical metaphysics with which we are familiar. It is not, in other words, the theory of knowledge or ontology or philosophical theology that is at issue. What is needed for the purpose of establishing categorical principles of law is an unfamiliar brand of metaphysics, a practical metaphysics particularly concerned with morality. The scope of this sort of metaphysics is significantly narrower than Kant thought it was. The philosopher of the categorical imperative falls victim to an “error of

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excess.” He gives too much to the realm of the a priori, whose validity as such is open to question, and he circumscribes the realm of the empirical far too narrowly. Against Kant, we must appraise anew, and significantly more modestly, the scope and limits of metaphysics. This more modest reappraisal will make it easier for critics to recognize the claims of metaphysical thinking. One essential facet of the reappraisal is this: the metaphysical moment in the categorical imperative is to be supplemented by an anthropology, and in particular a distinctively moral anthropology. Only with such anthropological help can the standpoint of morality find its way to substantial moral principles. Kant’s “error of excess” concerns the program of the ethics of law and right rather than its actual execution. For the above-mentioned empirical elements are not lacking in Kant’s thought. By no means does Kant take leave of reality, as Hegelians, following in the footsteps of the master, never tire of proclaiming. In the theory of retribution, the legitimation of private property, the justification of the state, and the common principle of freedom, we have four points of view from which the philosophical views of Kant and Hegel in the area of politics and the law are much closer to one another than is often thought to be the case. And because Kant lived before Hegel, the description of the latter as a Kantian is closer to the mark than is Marquard’s simplistic claim that Kant remains “entirely in the realm of the principled” (Marquard 1987a, 112), while Hegel is “ethically concrete” and fully open to reality. The notion that Kantian practical reason is divorced from real-life conditions and contents itself with the impotence of a mere “ought” is mythical (Chapter 4). The categorical imperative of law in the singular constitutes the systematic conclusion of the book’s first section. From the combination of the law-and-rightspecific anthropology with the metaphysically defined standpoint of morality there emerges for the law an ultimate criterion of evaluation, the significance of which transcends the juridical norms that happen to be in force (Chapter 5). II. In an effort to ward off a perceived self-endangering of modernity, so-called affirmative critics like to return to the ethics of Aristotle. Odo Marquard’s “defence of the commonplace and the everyday” (1991, 116 ff.), for example, acknowledges its Aristotelian roots proudly. In view of its many-layered texture, however, Aristotle’s ethics cannot legitimately be appropriated exclusively by the proponents of affirmative critique. In relation to Kant as well, Aristotle’s position is not so simple as to force negative critics into an exclusively oppositional stance, while permitting affirmative critics to call on it for support at all points. Some of the material needed for a more nuanced assessment will be gathered in the course of this study. For now, the viewpoint will simply be introduced.

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In order to locate categorical principles of law within philosophical ethics, I have distinguished between first and second moral philosophy. Kant himself does not speak of first and second moral philosophy, and neither does he, in the way suggested, distinguish within the latter a general from a special branch. In fact, though Kant follows just the line of thinking that my terms are meant to identify, his terminology points to a reversed order of priority. While first moral philosophy is called a Grounding, it is second moral philosophy that is called a Metaphysics of Morals, and within this normative moral philosophy, the first level, the general ethics of law and right, is assigned the weight only of an “Introduction to the Doctrine of Right.” With this reversal of priorities, Kant shows that, despite any further differences there may be between them, he agrees with Aristotle on one important point, the idea of a practical philosophy (Höffe 1971 and 1988b). With regard to essentials, the recently popularized alternative “Aristotle or Kant” is inexact. Although a fundamental ethics begins with a conception and a criterion of morality as such, and a fundamental ethics of law and right begins with a general principle of the same, the concern in each case is preliminary to the real task at hand, the provision of substantial moral principles. The grounds that support the priority of substantial principles over foundational reflection are not internal to philosophy; rather, the thought is the Aristotelian one that the point of studying ethics “is action, not knowledge” (NE I, 1095a). Kant and Aristotle would agree that philosophers such as the advocates of “discourse ethics,” who content themselves with the justification of an ultimate principle of morality, are not to be commended for their sensible modesty, but should rather be criticized for undervaluing the practical intention of moral philosophy. By the same token, philosophers who view fundamental reflection as superfluous undervalue moral philosophy’s philosophical intention. Sometimes, those who engage in fundamental reflection overlook the fact that this activity has no value in or for itself. Taken on their own, ultimate justifications of morality are philosophical five-finger exercises that belong to scholastic philosophy and the discourse of the academic seminar. But the situation is different with reference to the thesis of a release from morality, which calls into question the legitimacy of the moral perspective. Aristotle would agree with Kant that ethics must validate itself in response to the threat of ethical skepticism. Fundamental reflection occupies a much more prominent place in Kant’s ethical philosophy than in Aristotle’s because ethical skepticism has, so to speak, come of age in the modern era and because, in addition, standards of objective validity have become more stringent. Both thinkers, however, engage in fundamental reflection, and neither does so for its own sake. The second section of the present study reminds us that with a

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categorical imperative of law in the singular we have no more than an “introduction to the ethics of law and right.” By means of selected examples, this portion of the work introduces us to the substance of the ethics of law and right, that is, to the theory of categorical principles of law in the plural. The history of ethical philosophy and of Kant’s influence on it since he wrote has brought forth an abundance, and indeed an overabundance, of worries about Kant’s attempt to derive substantial moral principles from the application of the categorical imperative. The criticisms, which are directed toward virtually every element of Kant’s treatment of his examples, can be grouped under three headings. According to a first, moral objection, Kant’s justification of particular moral principles aspires to exceptionless validity in every case. If this is so, it is claimed, one is not permitted to make a false promise under any circumstances whatsoever, or, to take an even more troubling case, one must punish every murderer with the death penalty. It is objected that demands of this sort betray a rigorism that, at the very least, is incompatible with present-day moral consciousness. And neither is this criticism raised only from the empirical-pragmatic side. Professed Kantians such as Friedrich Schiller (in On Grace and Dignity) are put off by the “rigidity” of the moral law, and according to Nietzsche, one who adheres to the categorical imperative merely manifests thereby a “refined servility” (Gay Science I.5). According to a second, moral philosophical objection, Kant fails in his attempt to ratify substantial principles with the help of the categorical imperative. In Hegel’s view (1970b, 2:460), Kant’s principle of universal lawfulness is tautological and not at all suited to distinguish morally good from morally reprehensible maxims. Finally, according to a third, also moral philosophical objection, Kant manages to ratify substantial principles only at the cost of contradicting his own fundamental tenets, since his argumentation must appeal to empirical and pragmatic considerations. The examination of these three objections is an ongoing concern of the book’s second section. The examples discussed there all stem from Kant, and I shall reserve an investigation of principles of law and right not considered by Kant for a later study. Before delving into the examples, however, I will introduce a nonKantian ethical system into the picture, in order to heighten the plausibility of Kantian ethics by way of contrast and critique. Among the ethical theories that want to do without categorical principles, utilitarianism has been especially influential. Because its criterion for moral choice, the greatest good of the greatest number, requires reference to empirical conditions in order to be effective, utilitarianism finds a warm reception among social

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scientists and economists. The plausibility of the idea of categorical principles of law should increase as a result of its confronting the leading alternative to it in the modern age (Chapter 6). The first example of a categorical principle of law, the prohibition against false promises, is among the most prominent of the cases against which moral philosophers test the applicability of moral principles and ask whether the results of their application agree with our well-considered moral convictions. It is one of the four examples used by Kant in the Grounding to illustrate the application of the categorical imperative, and it is the only one whose legislation belongs to the theory of law and right rather than the theory of virtue (Chapter 7). While the first example has above all a moral-theoretical significance, the next example concerns an important matter of juridical policy. The retributive theory of criminal punishment demonstrates in an exemplary fashion Kant’s faithfulness to the Aristotelian idea of an emphatically practical and political philosophy, and his commitment to putting philosophical reflection to more than just theoretical ends. Admittedly, in the case of criminal punishment, Kant’s goal has long been viewed as questionable. If, under the influence of Kant and Hegel, the idea of retribution once held sway in the theory of penal law, we have in the meantime experienced a veritable paradigm shift. Nowadays, one speaks not of retribution but almost exclusively of deterrence and general prevention and of improvement or resocialization, and in the corresponding theories of penal law, one extols the virtues of empiricalpragmatic modes of justification. Since Kant defends retributive punishment as a categorical imperative, his views here are put to a difficult test. A thoroughgoing reinterpretation of Kant will question certain premises of the currently dominant readings of Kant, as well as some of Kant’s own inferences. It will in the end open up a new way to mediate between the idea of retribution and the standpoint of deterrence and improvement (Chapter 8). Kant’s Doctrine of Right essentially consists of a theory of the bourgeois, or republican, revolution, which legitimates the liberal rule of law. To the degree to which the liberal state has been realized, and even expanded in the direction of the social-welfare state, Kant’s philosophy of law and right, “progressive” in its time, becomes a conservative justification of the existing juridical order. A third example is intended to show that Kant’s approach is nevertheless still politically relevant, not least because it harbors within it something that today is widely missed, the power of a utopian vision. Although the justification of promising and criminal punishment is controversial, we have in both cases to do with a practice or a juridical institution whose origin reaches deep into the prehistory of human civilization. In the last example to be discussed, we are concerned with a problem

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that is relatively new to the history of humanity and is nowhere near being solved, the problem of a peaceful international order. Here, one of the slogans of postmodernism, that of “radical plurality,” is discussed in a global perspective: it is construed as the legally guaranteed coexistence of different cultures and forms of society (Chapter 9). III. With his plea for an international federation over an international state, Kant perhaps displays an impressive degree of political judgment. However, because an international federation lacks the character of a state, one must ask oneself whether the possibility defended by Kant on the international level, that of a peaceful coexistence of people without the force of a state, which to say, without hegemony or Herrschaft,1 is not equally available on the national level. Recently, Robert Axelrod has investigated strategies for achieving hegemony-free cooperation. The third section of this book is intended to prove the worth of the counterpoint of modernity, of categorical principles of law, in the context of present-day debate. The section begins by confronting strategies that try to achieve cooperation without hegemony or the use of state power (Chapter 10). Having dealt with both the release from morality theses and the leading alternative to Kantian ethics, utilitarianism, I discuss, at the close of the book, two positions that make reference to Kant but want to reject the provocative thesis of the metaphysical character of a moral principle: John Rawls’s theory of justice and the discourse ethics of Jürgen Habermas and Karl-Otto Apel. I will show that the divergences of these views from Kant’s do not always lie just where Rawls and the discourse theorists think that they do. Beyond this, both positions have difficulty meeting the demands they have placed on themselves. Rawls has difficulties reaching his goal of developing a Kantian ethical theory (Chapter 11), and discourse ethics has a hard time fulfilling its intention of moving beyond Kant (Chapters 12 and 13). The reflections on Rawls, Apel, and Habermas put the justification of the Kantian idea of a categorical imperative of law to the test in yet another way and bring into relief the difficulties facing fundamental ethics in the present age. In an earlier work, Political Justice: Foundations for a Critical Philosophy of Law and the State (1995), I undertook a systematic inquiry into categorical principles of law. In order to indicate the depth of this topic from the point of view of the history of philosophy and to highlight the distinctive profile of the political project of the modern age, I punctuated that book with digressions concerning the classical texts of political philosophy. Nevertheless, one of the great philosophers 1. See the Translator’s Preface.

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of law and the state, namely Kant, remained oddly in the background, although, with respect to the theme of the inquiry, he deserves an especially prominent billing. By way of supplementing the argument in Political Justice, the present work enters into dialogue with Kant on the theories of law and modernity and at the same time expands upon the concept of a categorical imperative of law already broached in the earlier book. The project began as a collection and reworking of a number of articles on Kant, but the overarching systematic purpose quickly rendered new chapters necessary, and in the end each of the previously published articles became a new text of its own. This English translation of Categorical Principles of Law is also an expanded edition, since its final chapter extends the critique of Habermas to include a discussion of Between Facts and Norms (published two years after the first edition of Categorical Principles).

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P A R T

COUNTERPOINT OR ANACHRONISM?

O N E

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2 A TRANSCENDENTAL CRITIQUE OF SOCIETY?

One who understands modernity as a polyphony must reckon with a fundamental diversity of meanings, even of such a thematically leading idea as that of “critique.” Kant’s concept of critique is unusual, or at least unfamiliar to us. It is not just that the subject of Kantian critique, reason, is at the same time its object, for reflexivity of this sort is a necessary feature of any critique that extends to ultimate fundamentals. What is truly remarkable is the fact that Kantian critique is content neither with the role of prosecutor nor that of defendant, fulfilling instead the offices of a judge—specifically, a civil rather than a criminal judge. It imposes no sanctions, but adjudicates a legal title, the claim of metaphysics to deserve the status of a science, and beyond this, it umpires the competing claims of different metaphysical approaches. Kant remains true to this conception of critique in the Critique of Practical Reason. Without explicitly recurring to the image of a tribunal, he now investigates the

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(legitimate) scope and limits of the faculty of desire (C2 V:12/9). Once again, the critique is neither incriminating nor apologetic, but judicative. Once could, polemically, interpret the modest role of negative critique even in Kant’s social philosophy, his ethics of law and the state, as a manifestation of fear on the part of a timid subject. But Kant was not timid. In the essay “What Is Enlightenment?” (VIII:37 ff./5 ff.), he calls for freedom of opinion and criticizes state sanctioned religious dogma; in “On the Common Saying: ‘This May Be True in Theory, but It Does Not Apply in Practice’” (VIII:290 ff.), he rejects all forms of despotism; in Perpetual Peace, he repudiates colonialism (VIII:357–60/102–5); and in the Doctrine of Right, he is at pains to oppose serfdom (VI:282/100) and aristocratic privilege (VI:329/138, 396 f./199 f.) In addition to all this, it is clear that a judicative concept of critique underlies the whole of Kant’s later philosophy; hence my reference to the first two Critiques. Today, however, philosophy’s claim to occupy the office of an arbiter “that sits in judgement on the lofty matters of science, morality, and art” has been disputed (Habermas 1990b, and below, Chapter 13). So we need more than a reference to Kant’s general concept of philosophy if we are to defend a philosophy of law that is critical in this judicative sense.

2.1. Beyond Affirmative and Negative Critique Long after 1968, “critique” was still being spelled according to the alphabet of the Frankfurt School, the alphabet that begins with “Adorno,” or “Advancing enlightenment,” continues with Communication, societal Contradictions, and Emancipation, freedom from Herrschaft, and then runs through knowledge-guiding Interests, Injustice, and the context of Occlusion (Verblendungszusammenhang). In the last few years, a second alphabet has emerged, one that does not explicitly style itself as critical, but nevertheless corresponds quite well to the concept of critique used by Hegel in the treatise “On the Establishment of a Critical Journal of Literature” (1819/20). This new alphabet of positive, affirmative critique begins with an “Adieu” to the realm of the principled,1 continues with Compensation, the Contingent, and the Commonplace, to which Marquard (1991, 109) devotes an apology, and ends with Disburdening and the nourishment of Sense. Both critical alphabets have to do with the conditions of modernity. Critique of the negative or emancipatory sort articulates the distinctively and characteristically modern interest in freedom and justice, as well as the “canonical morality of 1. An allusion to Odo Marquard’s work, translated into English as Farewell to Matters of Principle (1989).

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change” (Baudrillard 1968, 139) that sees a crisis at every turn and therefore demands ever more change. Affirmative critique, by contrast, reminds us of the fundamental conditions that are already given in contexts of human action, and of the framework conditions that are better left alone in the course of effecting change, and finally it reminds us of the importance of “catching one’s breath,” without which the new could not be enjoyed, in which case change would become an end in itself and would lose its point. At the same time, it must be said that affirmative critique has deeper roots, or what might be called a “value added,” with respect to legitimation. To the “canonical morality of change” it opposes a “canonical morality of tradition,” holding with Marquard that “the modern world is . . . marked more by the absence than the presence of crisis, and is thereby absolutely worthy of affirmation” (Marquard, 1987b, 16). In the debate between these two critical alphabets, the struggle between left and right Hegelians is played out anew. The one side follows Marx’s eleventh thesis on Feuerbach and asserts that “the point is to change the world,” while the other side responds with the thought that “it is better to leave the world in peace.” That negative critique is justified in many areas goes (almost) without saying. But despite the manifest appropriateness of “outrage at injustice” and an “unyielding rejection of ideology” (Adorno 1965, on Horkheimer), and despite the importance of fighting for “the emancipation of humanity from conditions of slavery” (Horkheimer 1974, 58) and for the preservation of a more-than-merelyinstrumental form of reason, and despite the justice of so much of Adorno’s critique of culture and civilization—despite all this, we cannot be fully persuaded by a theory that, oriented as it is toward Marx’s critique of the economy, is in virtue of its very method, the uncovering of societal contradictions, intrinsically committed to a condemnation of the existing order. Such a theory is capable of grasping only the emancipation yet to be realized and cannot properly understand the emancipation already achieved. It is no accident that the older Frankfurt School has no systematic place for the positive results of modern social critique, that is, for the democratic legal and constitutional state and its descendent, the democrtic welfare state. Still more problematic than this bias toward the negative would be a form of social critique based upon Adorno’s notion of a critique that “dismisses all rapprochement” (Adorno 1965). Adorno coined this phrase to describe the convention-breaking music of Arnold Schönberg. As a model of interpretation and selfinterpretation the idea is not in fact all that new. Among artists, we find it applied to social norms from the Romantics onward; and understood as a radical distance from forms of thought handed down by tradition, it applies as well to the great philosophers. Viewed from a historically distant perspective, however, the

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absoluteness of the dismissal appears relativized in both cases, that of artists and that of philosophers. Even singular artists of genius are tied to their time, and even revolutionary thinkers that provoke paradigm shifts depend upon a particular historical line of development. Rapprochement can be dismissed partially, but not entirely. A “purely dissociative” critique, the launching of objections and contradictions to everything given to one, is not possible. Of some forms of negative critique, it is perhaps true, as Jean Starobinski remarked of Rousseau (1988, chap. 3), that critique invents a language of protest that is always right. With far-reaching consequences, this sort of critique totalizes the locus of criticism, splits it radically off from the world, and lends to critique the dazzle of a rigorous extraterritoriality. Starobinski sees the child at work in this way of thinking, and also the other face of a marked despondency. As a counterweight to a merely incriminating and unmasking critique, as a plea for diversity and individuality, for mature traditions, and for the naturally given conditions of life, critique in its affirmative form is justified. On its own, however, it is incapable of delivering a balanced judgment, and it gives its antagonist the same right to understand in turn its negative critique as a counterweight. Philosophically more illuminating is a critical alphabet that does not leave the issue of a balanced judgment up to the cunning of reason, but rather encourages such a judgment by helping to ensure that each side receives its (relative) due in the market of public discourse and that the whole is brought into balance. A critique that makes balanced judgment its theme and endorses both emancipation and affirmation according to need is systematically more convincing than either of its competitors. This sort of critique, which, being judicative in nature, is neutral as to content, intention, and method, is not, as Habermas fears, prey to overambition. In the role of a judge, philosophy pulls back from the simple alternative “emancipation or affirmation” and presents itself as a third option. Nonphilosophical discourse provides examples of the sort of critique envisaged. Scholarly text criticism is judicative, as are belles lettres and political commentary. Critics in this sense may well lay down challenges and write polemically, but they cease to function as critics when they resort to a simple condemnation of texts, performances, or political events. The critic is one who knows how to evaluate these things with respect to philological or aesthetic or political quality and significance. A glance at a number of central tasks of our age shows that it is not only outside philosophy that judicative critique has a well-established right of abode (Heimatrecht). Whether we look at scientific research and development, in particular biomedicine, or at the politics of commercial enterprises, at the world economic order, or at the media, we see that critique faces new challenges, those

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of applied ethics. Neither of the familiar critical alphabets are sufficient for the accomplishment of these tasks. Critical theory, long the dominant intellectual voice in this discussion, has indeed opened itself up to normative ethics in a notable shift of attention, and it has thereby abandoned the intention and method of a primarily negative social critique. The exemplary execution of “ethical-political discourses,” that is, of applied ethics, remains, however, in its formative stages. For their part, the proponents of affirmative critique have participated vigorously in the debates concerning the ethics of scientific research. To the degree to which they do not simply want to remove the burdens of ethics from the sphere of pure research—one thinks here of Marquard’s (1984) brief against overmoralization and in favor of “a license for curiosity”—the positions they take on various concrete issues show them turning away from a merely affirmative critique. What has hitherto been carried out by the Frankfurt School at the level of principles occurs here in exemplary fashion at the level of applications: in both cases critique is expanded by the addition of a judicative component. If the proponents of discourse ethics began not only to talk about concrete ethical discourses but actually to conduct them, and if the conservative philosophers inspired by Joachim Ritter began to show an interest in the justification of ethical norms (cf., recently, Spaemann 1989)—if, in short, both sides continued the expansion of their original forms of critique, then we would see two previously antagonistic patterns of thinking and speaking approach one another. Such an approaching toward one another would be conducted in the name of a form of critique that stood beyond the dichotomy of “negative versus affirmative.”

2.2. A Venerable Pedigree Those who are caught in the spell of the currently dominant alternatives might be surprised by the result, but it is familiar to historians of philosophy: the construal of philosophy as a judge is supported not only by arguments drawn from the theory of modernity but also by considerations from the history of concepts (cf. von Bormann 1976, Schalk and Weber 1976, Röttgers 1982, Tonelli 1978, and, for the Middle Ages, Michaud-Quantin 1970). The first consideration from the history of concepts that speaks for the historical roots of the connection between the idea of critique and that of juridical judgment might be called “the aristocratic argument.” The concept of juridical judgment has a venerable pedigree that reaches back long before the modern age. Etymologically, “critique” and its cognates belong to a group of words whose primary signification is juridical. Thus we find words meaning “prosecution” and

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judgment, and also the judge (krites), who delivers a verdict, and the standard (kriterion) he thereby uses. As Plato says in the Statesman (260c2), the critic is committed to neither side of the dispute, but conducts himself as an observer or spectator. Plato’s choice of metaphor for characterizing the critic as one determined by no commitment other than that to objectivity resembles the metaphor used by modern philosophers such as David Hume (A Treatise of Human Nature I.2); An Enquiry Concerning the Principles of Morals, sections 22 and following) and Adam Smith (The Theory of Moral Sentiments, III:1 and 6, VI, conclusion) to characterize moral objectivity. The critic as judge is related to the impartial or indifferent spectator. At the same time, there is this difference: whereas the impartiality of the observer is purely theoretical and simply contemplative, that of the judge who has to make decisions must be made practical. Compared to negative critique, which is able to awaken a range of strong passions, judicative critique labors under a rhetorical disadvantage. While seeking an objective judgment, however, it is still capable of pathos. The pathos of judicative critique is that passion for dispassionate judgment that even Nietzsche, the great critic of traditional morality, did not exclude from his own table of values: “the high, clear objectivity—that sees as deeply as it does generously—of the just eye, the judging eye” is, according to the Genealogy of Morals, “a piece of perfection and highest mastery on earth” (II, 11). In order to render a just decision, a judge needs more than the sheer good will to objectivity. For this reason, the adjective “kritike” must be supplemented by the noun “techne” (or sometimes “dunamis”). In addition to a readiness to arbitrate in an impartial manner, the judge needs to be well versed in the details of the field in question. Those able to write texts with literary merit and lawyerly incisiveness deserve a public; but critique does not consist in the ability to make brilliant but one-sided arguments. Only those who render (relatively) objective judgments as a result of their expert knowledge and their capacity for wise discernment count as genuine critics. Objective judgment does not count as philosophical per se. But the extra condition needed to make it so is found already in Socrates, Plato, and Aristotle. So, in addition to a venerable pedigree, philosophy as judicative critique is favored with advocates of paramount significance. Consequently, we must correct the view of Jean-Luc Nancy (1983, 36) that “philosophy becomes juridical with Kant.” The truth is that philosophy has exercised the role of a judge since ancient times. In Plato’s Theatetus (150b3) Socrates compares his work to that of a midwife and claims that his distinctive achievement is that of “distinguishing the true from the false.” Whereas the ordinary judge orients himself to existing law, the philosopher is committed to a criterion that transcends sheer positivity, the aspi-

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ration to truth immanent in all assertion as such. The often quoted idea that philosophy is born in wonder must, therefore, be supplemented and corrected. Mere wonder has not yet emerged from a certain naïveté that is abandoned by judicative critique. As doubt whether the allegedly true really is true insinuates itself into knowledge, humanity loses its innocence in the realm of the theoretical. Judicative critique, therefore, is one of the conditions of the origin of philosophy as such. Since theory loses its innocence long before the onset of modernity, it cannot be said that critique is a peculiarly modern watchword. We do not need to read Cartesian doubt into the concerns of ancient philosophers to see that critique, which of its nature reacts to doubt, constitutes an indispensable element of the conditio humana theoretica. Critique is called upon because of the copresence of competing claims, and it is necessary because one hopes to decide the conflict, not according to the power of those making the claims, but according to the force of the better logos. The essential criterion of the decision hoped for lies in that absolute impartiality that is called “truth” or “objective validity,” with its difficult task of translating the demand for an unbiased decision into operational criteria. The aspiration to a validity that transcends the merely positive, which is called “truth” in the theoretical realm, is called to dikaion, the just or the right, in the realm of social practice. It is Aristotle who provides us with the formula that expresses for practical judicative critique what Plato’s Theatetus formula expresses for theoretical judicative critique, “judgment that distinguishes what is just from what is unjust” (NE V.6, 1134a31 ff; cf. also VI.11, 1143a20, and Politics I.2, 1253a38 ff.).

2.3. Universalization, Radicalization, and Autonomy As long as we find judicative critique only in the ancient world, and perhaps still in the Middle Ages, it belongs, however venerable and prominent, to that portion of history with which our epoch contrasts itself. It appears that the modern age is distinctively lacking in just those qualities that are indispensable for judicious arbitration. In place of neutrality and serenity, modernity is marked by de-centering, by the fragmentation of views and a repeated, almost impatient, change of perspectives. Let us cast a last glance at the history of concepts in order to test this selfunderstanding, and let us take as our guiding thread a single passage that can be examined in the light of certain historical considerations. In a famous footnote to the preface of the Critique of Pure Reason, Kant diagnoses the Enlightenment: “Our age is the genuine age of [critique,] to which everything must submit. Religion

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through its holiness and legislation through its majesty commonly seek to exempt themselves from it. But in this way they excite a just suspicion against themselves, and cannot lay claim to that unfeigned respect that reason grants only to that which has been able to withstand its free and public examination” (C1 A xi). Kant implies here, indirectly, that there had already been critique before the Enlightenment. It is not until it engages in a thematic universalizing that the modern epoch becomes “truly the age of critique.” In the Age of Enlightenment, critique is directed everywhere and allows of no exceptions. What Kant seems to take for granted in this lapidary sentence took European thought many generations to work out. If one turns to the beginning, to the criticism of the humanists who set the waves of modernity in motion in the late Middle Ages and early modern period, one finds judicative critique once again. The species of judicative critique that is found among the humanists, philological text criticism and aesthetic criticism, is highly significant for the theory of modernity. The first point, as Kant emphasizes, is that before we get to religion and a legal order backed by the authorization to enforce its decrees, other objects must be subjected to critique. Neither do the humanists follow the lead of Plato and Aristotle and devote themselves to the critique of knowledge and action. Rather, they take over that systematic secondary critique of texts, “critique” in sense of the word that is in play when the Alexandrian philologians call themselves “kritikoi.” Connected to this is the second significance of the sort of criticism practiced by the early modern humanists. Skeptics about modernity emphasize, with justice, the natural and historical elements that live on in our era without having been posited by our era. This reminder is correct but must be supplemented, for among the conditions under which the modern era emerged is found a historical remembering, the turning of the humanists to the classics of Greek and Roman literature. Since the modern age, at least in the beginning, was not marked only by a cult of the novel but also by a creative remembering of the old, it is hasty to describe an architectural or literary style as “postmodern” just because it “quotes” classical elements. Naturally, the manner of quotation has changed; quotation is itself a quotation and is therefore done in secret or in a spirit of ironic, or even cynical, estrangement. We must not in any case picture modernity, including the Enlightenment itself, as homogeneous and unilinear. It is not only Descartes’s much cited remark that men are the “masters and possessors of nature” (Discourse on Method, pt. 6) that belongs to the Enlightenment, but also Bentham’s utilitarian critique of Descartes (An Introduction to the Principles of Morals and Legislation, §17.4), according to which animals, in virtue of their capacity to suffer and experience pain, deserve more than merely anthropocentric consideration. And let us not forget that

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Montesquieu’s Spirit of the Laws, that work of comparative political sociology that raises historical and cultural diversity to the status of a principle, belongs to the Enlightenment. The opposition between negative and affirmative critique is not equivalent to that between modernity or the Enlightenment and its critique. Modernity lives rather from a double “canonical morality.” The duty to innovate is conjoined with an esteem for tradition in a complex relationship of point and counterpoint. Kant would perhaps have recognized text and aesthetic criticism, along with another early modern form of critique, the organization, evaluation, and examination of arguments, critique as the logic of argumentation (cf. Ramus 1970 [1548], 8 ff.), as necessary preliminaries, but he does not include them in the genuine business of critique. Interested neither in a “critique of books” nor a critique of “systems” (C1 A xii), Kant insists on a primary critique of “the things themselves.” Kantian critique takes place in the context of a claim “made” by the object of critique itself, a claim that, immanent to the matter itself though it is, can certainly still be called a claim to “objectivity.” Kant speaks of an “undisguised respect” and means to refer thereby to that absolute claim that we call justice in the case of the state and sanctity in the case of religion but that we call truth in the case of statements. That one can not only make these claims to objectivity but can also make good on them—this possibility is called into question by a proud line of skeptics. On this issue, the critique of the Enlightenment extends far beyond that of the Renaissance humanists. Not only are different objects subjected to critique, and not only is judicative critique (initially) pushed aside by negative critique, but, in addition, a question mark is set beside the very possibility of justifiable claims to objective validity. Here the idea of an objective truth is placed in doubt (by David Hume, and by Simone Foucher, whose Critique of the Investigation of Truth, 1675, is directed against Malebranche’s Search After Truth, 1675); there the idea of an objective justice (legal positivism), or that of a legitimate religion (Feuerbach), or that of legitimate Herrschaft (Marx). In this way, critique is, in the literal sense of the word, radicalized, and in this radicalization lies, next to universalization, the second characteristic of Enlightenment critique. On the one hand, radical skepticism expands the “usual” negative critique by raising it to a second level, and on the other hand, radical critique of the negative sort provokes a renewed and now equally radical defense of ideas of objectivity. Kant acknowledges as a new problem the fact that rationalist positions thereby enter into competition with empiricist and skeptical ones. He sees that fundamental philosophy, having become a “battleground,” can no longer establish itself in a direct manner, by, for example, employing the method of radical doubt to lay

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down a secure foundation. Kant’s suggested solution to the new problem, transcendental critique, is well known. But in order to decide under what conditions a philosophy of law counts as critical in this sense, we need to keep four structural characteristics in mind. 1. The transcendental tribunal deals with two disputed issues that are in the first instance fundamentally different. The tribunal passes judgment, on the one hand, on the objectivity of scientific knowledge and, on the other, on the objectivity of philosophy. Kant claims that these two issues necessarily belong together. No objectively valid philosophy is possible without a connection to objective knowledge, and it is not possible to ground objective knowledge in the absence of an objectively valid philosophy. 2. Kant answers this twofold question of objectivity with an experienceindependent knowledge that contains the necessary conditions of possible experience. The corresponding argument has two parts. While the metaphysical elucidation (i.e., the metaphysical deduction) shows a certain sort of knowledge to be independent of experience, the transcendental elucidation (i.e., the transcendental deduction) shows that it is impossible to conceive of an objective experience without presupposing just this sort of knowledge. 3. The insight achieved through the transcendental juridical procedure does not increase the knowledge that we seek in everyday life or in the research of the individual sciences. Through reflection on the objects of scientific and everyday knowledge, one gains second-order knowledge that, Kant claims, enables us both to legitimate and to limit our ordinary knowledge. On the first level, transcendental adjudication ends with a comparison. 4. The second issue in dispute also ends with a comparison. Insofar as the skeptical and antiskeptical positions make claims to exclusivity, they are put in their place, but as soon as they content themselves with a nonexclusive selfunderstanding, their claims are acknowledged. Theoretical metaphysics is possible as a theory of experiential knowledge, but as soon as it attempts to settle its “essential concern” and tries to “surpass the boundary of possible experience,” it loses its legitimacy (C1 B xvii ff.). There are good grounds for supposing that with the transcendental “step back” philosophy reaches the highest possible level of critique, one that cannot in principle be surpassed. For at this level the competition among different fundamental philosophical positions becomes itself a philosophical problem. This does not, however, mean that a “post-Kantian philosophical critique” is not possible. As we know, such critiques abound and are often brilliant, passionate, and remarkably

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creative. One can, however, speak of a critique that remains at the level of reflection reached by Kant only where the presuppositions that are made by a critique of the second order are themselves subjected to critique. It is doubtful that post-Kantian critique has always set itself this task of “criticizing critique.” Critique has indeed been expanded to include areas, such as political economy or language, that are not treated by Kant; post-Kantian critique has without a doubt worked on the further universalization of critique. With respect to its radicalization, however, a not inconsiderable number of thinkers tend to remain in the grip of a merely negative radical critique and to reject all too hastily “Reason,” “Morality,” “Justice,” or “Rationality” and, in short, objective validity as a whole. As long as critique refrains from engaging in a transcendental juridical proceeding, there is a danger that it will overestimate its scope. In the case of negative critique, its judgment will as a rule be partial and too severe, as with that of a prosecutor (in particular, a public prosecutor) who lacks the counterweight of a lawyer for the defense, and in the case of merely affirmative critique, the judgment will be too mild, as with a defendant who faces no prosecuting attorney. I will leave the detailed examination and possible modification of this hypothesis for another study. As far as the “categorical principles of law” are concerned, the view will be applied only to a small, albeit often neglected, area of discussion, the sphere of law and right. Taking up the four structural characteristics in turn, we see that if there is to be a transcendental critique in the case of law and right, then, first, radical skepticism has to be taken seriously, and the objective validity of the law has to be regarded as putative only and shown to be real. Once again, the objectivity of two different things, the law and philosophy, must be investigated. In the case of the law, objectivity no longer goes by the name of “truth” but rather that of “justice,” and its philosophical theory consists of an ethics of law and right. The dual question of objectivity is to be answered, second, with judgments that are independent of experience. In the realm of the practical, Kant calls them categorical imperatives; in the realm of law, it would be categorical principles of law that make objectivity, that is, justice, possible. Once again, in the case of law and right, philosophy rests content with a transcendental modesty. It cannot expand our knowledge of the laws that happen to be deemed valid here and now. Nevertheless, philosophy must, third, seek to provide both a legitimation and a limitation of positive validity. Finally, the second controversy, that concerning an objective ethics of law and right, ends with a comparison between ethically skeptical and antiskeptical positions. One expects of the fundamental concept of a transcendental critique of law, that of categorical principles of law, that it will concern only a small part of the

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social world, namely the juridical world. But the authorizations of force that belong to any and every juridical world are in ordinary critiques of law rejected for certain areas of life and are rejected altogether by radical critique. Against the existence of socially accepted authorizations of force, radical critique counters with the idea of freedom from Herrschaft. In the face of this, the categorical imperative of law cannot claim transcendental status until it is able to show that it is ever permissible for human beings to use force against one another. If this demonstration succeeds, the world of law and right gains a new importance. It no longer constitutes a simple segment of the social world, but rather becomes the fundamental shape and universal form of human coexistence. Correspondingly expanded is the significance of the ethics of law and right construed as transcendental critique of the same. The latter becomes a transcendental critique of society and constitutes as such a fundamental task of social philosophy. But the legitimation of force within society goes together with its limitation. The only force that is legitimate, that is just, is that which is binding according to the categorical imperative(s) of law, in the singular and in the plural According to the quoted remark of Kant’s, Enlightenment critique distinguished itself, not only by its universality and radicality, but also by its commitment to a “free and public examination” (C1 A xi). Since Socrates had already laid claim to autonomy of thought as to something self-evident and had indeed paid for this with his life, it must be said that the valuation of autonomy that is often taken to be typically modern is not in fact quite so new. In place of the modern overestimation of itself, we should rather speak of a reemancipation or regaining of critique, along with a radicalizing of its autonomy. The critical freedom demanded by the Renaissance humanists required in the first place the breaking of a monopoly on judgment and decision and the coexistence of humanistic and ecclesial exegesis. But the freedom demanded by the humanists had a sting in the tail. It is already clear in their work that the ultimate critical authority is called “reason” and that this authority, as jealous as the God of monotheism, tolerates no alien authority beside it. According to Angelo Poliziano (1971 [1492], 460), the competence required for creditable exegetical judgment is had by “profane literary scholars,” philologists, and no one else. The long road to the self-legitimation and self-empowerment of scholars, a road traveled later by critics of literature and art, begins here. Critique that is autonomous in the sense that it acknowledges no authority alien to disciplinary competence has reached only a negative freedom, only the first stage of intellectual autonomy. For this sort of critique also has a corrective, the competence of other knowledgeable scholars. Because of this, critique takes

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place, as Kant says, not only freely but also openly, through confrontation with colleagues in the discipline and, beyond this, before the eyes of the general public. In this context, however, one must painfully acknowledge that the critics find themselves in dispute with one another; anarchy, the “lawless use of reason,” reigns (emphasis deleted; cf. OTH VIII:145/247). Disciplinary competence appears as a mere fiction in a way that is fatal to critique. Not until the fiction is superseded can there be positive critical freedom and inner, second-stage autonomy as well as the outer, first-stage variety. A first group of disputes can be dealt with by means of a “trivial resolution”: one shows that one party has made simple errors or hasty judgments. A second group of controversies can be met with an “enlightened resolution”: one “unmasks” certain statements or statement forms by accounting for them in a way that compromises their credibility. A third kind of controversy, concerning the question of the nature of disciplinary competence, can often be resolved through careful differentiation. By now, a colorful bouquet of disciplinary competencies has long been in existence, a pluralism of nonexclusive forms of critique that sometimes border upon one another and then supplement one another unproblematically, but sometimes pursue different knowledge interests and then remain in agonistic rivalry. Here as well, a “resolution through comparison” can often dissolve the rivalry. Even these deliberately maintained differences can show themselves to be necessary parts of a truly universal critique. The dispute over correct disciplinary competence assumes, however, that there is a discipline, either an existing one or one to be created, capable of delivering objective judgments. The varieties of skepticism mentioned above are directed against this presupposition and thus call the autonomy of critique into question in the sharpest way possible. It is a great merit of Kant’s to have drawn attention to this fourth sort of controversy, to have pointed out that human thought is committed to two different sorts of lawfulness, both of which can lay claim to legitimacy but are incompatible with one another. As a consequence, theoretical reason reveals itself to be self-contradictory. In order not to capitulate before this fourth, speculative kind of controversy and thus in the end be forced to abandon the autonomy of critique, Kant sketches a new speculative court of mediation. After the transcendental analytic has laid bare the conditions of objective knowledge, the transcendental dialectic seeks to resolve the fourth of the autonomy-threatening scientific, or scholarly, controversies. We know that the program of a transcendental dialectic is very ambitious. The idea of taking it up for the philosophy of law and right in the face of post-Kantian skepticism regarding transcendental thinking makes sense only where we find that fourth stage of controversy, that is, the two sorts of lawfulness that ground a

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juridical antimony. Now, the law aims not at truth, but at justice. If the attempt to achieve justice were to give rise to two competing forms of lawfulness and therefore to an antinomy, then the program of a transcendental dialectic would be more than just possible. To fulfill the office of a speculative tribunal would not be an overly ambitious goal of philosophy, but its genuine task.

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3 IN SEARCH OF THE LOST PARADIGM

In many areas the categorical imperative is the subject of lively controversy, but in the case of the law the situation is otherwise. The categorical imperative obliges the law to answer to morality and defines this obligation, in the ambitious Kantian sense, as one that is unconditionally binding. Our moral consciousness can, however, follow Kant without difficulty. Even if it broke through only in the modern era, the idea that the juridical order is subject to unconditionally binding moral principles, human rights, has since then been accepted as virtually self-evident. Nevertheless, a number of important legal and social theorists no longer agree with this consensus on the nature and status of human rights. Despite a diversity of aims, the arguments of these theorists, partly general in scope, partly directed at Kant in particular, are similar in form. In place of an obligation to morality, these theorists assert a release from morality (Entmoralisierung); they claim that the law should be released, partly or entirely, from the duty to answer to morality.

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The release from duties that we know in the academic world, that associated with the acquisition of the title “Professor Emeritus,” releases the so-titled from all duties, but allows him to retain most of his rights and privileges. The release from duty that is intended by the notion of “Entmoralisierung” is more radical. According to the social-theoretical interpretation, the moral perspective is no longer valid, and according to the legal-theoretical version of the thesis, it never was valid. It follows from these views a fortiori that a supposed categorical imperative of law has nothing to do with the actual institution of the law; the notion that the law is obliged to answer to morality is treated as a kind of irrelevant moralizing, alien to the nature of the subject matter. Since the idea of a categorical imperative of law agrees with our moral consciousness, one must speak of a “false consciousness” if the arguments in favor of the release-from-morality thesis are found to be convincing, and one must consequently suspect that the singular categorical imperative of law, and its plural, human rights, are merely ideological constructs. If, however, there were good grounds for adopting the moral perspective, suspicion would fall on the other side, and it would be the proponents of a concept of law that has been freed from morality who suffered from false consciousness. Kant affirms that the idea of an objective validity for the law expresses itself in morality, and the release-from-morality theses do not take issue with the idea of objective validity as such. What they dispute is the idea that objective validity must be understood in moral terms. It appears that the release-from-morality theses correspond to the skepticism whose justification is examined in a transcendental critique, in particular, since we are dealing with the concept of morality, in a transcendental-ethical critique. The possible results of such a critique are categorical morality of law and right or release from the morality of law and right. Critics of transcendentally grounded ethics such as Odo Marquard (1987a, 112) hold that “followers of Kant” today take leave of reality and wander about “entirely in the realm of the principled, in transcendental cloud cuckoo land.” Certainly, one who today is able to reply to questions such as Is in vitro fertilization legitimate? or Is scientific experimentation with animals subject to moral criteria? or Which are the principles that allow for a just economic world order? with nothing other than a transcendental legitimation is indeed unable to help with currently urgent ethical problems; an obsession with fundamental principles has rendered such a one incapable of ethical concreteness. Now, categorical imperatives of law do indeed allow for detailed discussion of concrete problems, albeit only with the aid of specialized knowledge and the power of judgment. For example, categorical imperatives of law determine rigorous

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criteria of justice concerning our interaction with nature (cf. Höffe 1989a, 71 ff.). Moreover, human reality is composed of more than the so-called concrete. In the face of radical release-from-morality theses, the sort of moral philosophy to which one is led is precisely the sort that Marquard (1987a) fears has forgotten how to walk due to infatuation with “transcendental force.” There are, to stay with the image, different means of locomotion. Just as, according to intention and topography, sometimes a leisurely stroll is called for, other times a busy walk, and other times a sure-footed and sure-handed clambering, so in the case of ethics Marquard’s theory of the habitual is sometimes appropriate. As soon, however, as one moves on to problems that are concrete but novel, such a theory offers little help. In the ethics of scientific research, for example, its vote against overmoralizing and in favor of a license for curiosity lacks specificity. And when it comes to doubts about the power of morality to found objectivity, what is required is just the sort of philosophical reflection on fundamental issues to which Marquard would like to bid farewell.

3.1. Release from Morality: An Overly Hasty Diagnosis In its “modern” form, the release-from-morality thesis appears as a theory of modernity. Niklas Luhmann (most recently, 1988) modifies Carl Schmitt’s neutralization thesis and claims that in the course of the modern era society undergoes changes that result in the diminution, or even elimination, of the role of morality in the achievement of social integration. Since social integration is to a great extent achieved by means of the law, Luhmann’s diagnosis, which is the work of one of our keenest social theorists, if accurate, entails that the law must get by without morality, and therefore also without its ambitious notion of the categorical imperative. The alleged counterpoint to modernity, whether or not it ever was valid, becomes anachronistic. Cultural critics like to reproach their times for an alleged moral decline. Luhmann agrees with the descriptive content of such a reproach. For him, modernity is the epoch of a progressive release from morality, and the present day bears witness to the fact that a full release has long been completed. But Luhmann is deaf to the moral undertone that accompanies the more familiar forms of such criticism. Cynical as this may seem on first glance, Luhmann sees the moral decline and holds it to be a good thing. Sociologists have in fact, openly or not, often been accused of cynicism, but Luhmann’s position is actually more radical than that of a cynic. A cynic holds that a revivification of morality is not necessary; Luhmann contends that it is no longer possible. Even if it suits him to occupy ground close

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to that of the cynic, his real intention is to promote that negative enlightenment that consists in desacralizing the heretofore sacred. But despite Luhmann’s diagnosis to the contrary, morality, instead of dying off, continues to enjoy a robust health. For all his brilliance Luhmann himself cannot discover any good reason for the renewed vigor of the moral perspective in, for example, the ethics of science and research, medical ethics, the ethics of nature, of economics, and in many other forms. In all of this Luhmann sees merely a trend, an “ethics wave” that he can only explain unscientifically: “With virtually astrological regularity,” he declared upon receipt of the Hegel Prize, “at least since the spread of printing, the eighties of each century has witnessed the appearance of an ethics wave of this sort” (Luhmann 1988, 1). The thing itself, the moral perspective, has, in his view, long since lost its power to provide objectivity. Alluding to Milton’s epic, Luhmann’s Hegel Prize lecture is entitled “Paradigm Lost.” Luhmann offers a number of reasons for the paradigm loss. I shall discuss later (at 3.3 below) his first reason, the ambivalence of morality—the fact that morality must allow that “reprehensible conduct can have good consequences” and, vice versa, that “the road to hell is paved with good intentions,” that the best of intentions can become responsible for much nastiness. His second reason, the polemical charge endemic to morality, is not convincing. Morality is indeed polemically charged, but this property is not specific to it. The normativity of science is also “responsible” for conflict, without our being, for this reason alone, inclined to give up the idea of truth. The conflict-generating character of truth and morality is in any case only a secondary phenomenon: in fact, the primary task of truth in science and morality in law is conflict resolution. Moral principles, such as the right to freedom, permit different individuals and groups to pursue highly divergent goals and interests and, despite this, to live with one another in peace. Neither can one disqualify the bona fides of morality by appeal to the dangers of its being misused. Luhmann’s complaint that “politicians of the governing and opposition parties use the language of morality merely in order to attack one another” (1988, 12) is fully justified, but speaks not so much against morality as against a political culture that ducks debate on factual issues. A third argument too lacks persuasiveness, since what appears to the sociologist Luhmann to be a double standard—that for ourselves we are ready to take risks but are averse to the risk-taking of others—has in fact good grounds for its existence. From the point of view of the morality of law and right, one is perfectly permitted to gamble with one’s own life and fortune, but one who gambles with the life and fortune of another moves very close to acts of thievery or homicide. The most plausible of the reasons offered by Luhmann for the paradigm shift is his fourth, one that relies upon the idea that modern societies are governed

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by a novel principle of differentiation. According to this argument, the stratified differentiation that once characterized society—that is, the division into hierarchically ordered strata—has been superseded by differentiation according to function, so that we now find relatively self-sufficient partial systems such as business, science, and law simply existing alongside one another. Luhmann supplements this claim with two others. On the one hand he maintains that each of these functional systems is subject to a normativity that is particular to it and function-specific, and on the other hand the normativity of morality is (allegedly) function-unspecific. From these three premises, Luhmann draws his conclusion that, despite all ethics waves to the contrary, morality has been put out of commission. According to Luhmann, “none of the functional systems,” and therefore also no legal order, can be “integrated into the social system” through morality. Being incapable of integrating either the parts or the whole of society, morality has lost its function altogether. It is true that each functional system is subject to its own “binary encoding,” but the absence of a function for morality does not follow from this. By way of exploiting the contemporary ethics wave, Luhmann urges that the tradition of textual commentary give way to a “cooperation between sociological theory and ethical reflection” (1988, 4). Philosophical ethics is happy to accept this invitation and to detach itself from Kant’s writings, all the more so as these do not in any case take up a position with respect to Luhmann’s theory-of-modernity variant of the release-from-morality thesis. At least three arguments independent of any tradition of textual commentary speak against Luhmann’s view. To begin with, there are objections to the socialhistorical diagnosis. The thesis in question has become a rhetorical commonplace, but still we must ask: is functional differentiation really so fundamentally new? Philosophy and science have long been relatively independent of politics. If one accepts public financing as a criterion of dependence, then philosophy and science have at various times, for example, that of Plato and Aristotle, been more independent of politics than they are today. Business too has enjoyed a relative independence for some time now. It did not have to wait for modern capitalism to acquire this independence. And neither, finally, are relatively independent courts an invention of the modern age. In all three cases—of business, science, and the judiciary—functional systems followed their own normative ideas long before stratified social divisions unraveled. Luhmann thinks in simple alternatives: stratified or functional differentiation. In fact we have here two principles of differentiation that are independent of one another. To be sure, the type of normativity that holds for the different functional systems has changed significantly in the course of time. Money, for example,

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meant something different in the Athenian market than it does today on Wall Street. But the fundamental structure of relative independence is found already in hierarchically ordered societies. Economic transactions follow one criterion of rationality, politics another, science a third, and all three are independent of one another. It follows that with regard to functional differentiation, the alleged “modernity” of the modern age is in large measure an ideology that manifests, if not a false consciousness, at least a limited one. Modern social theory fears, second, that philosophical ethics, “overrun” by the novelty and complexity of modern developments, has lost touch with today’s society. Philosophical theories of morality are, according to this diagnosis, far from real, practical reality and severely lacking in complexity. In response, it must be said that social theory can also paint a picture of society that is distant from reality. As we saw above, the oversimplification begins with the social-historical diagnosis and continues with the concept of morality. A reservation that can be set aside in the current context is this: in defining morality as “a special sort of communication that carries with it reference to respect or disdain” (1988, 4), Luhmann underestimates the crucial moral phenomenon of self-respect. More troubling is Luhmann’s connection of morality to man as “a whole person,” a connection that restricts morality to natural subjects exclusively. Philosophy, for its part, begins with a more formal concept of morality and then recognizes two “areas of application,” persons, on the one hand, and institutions and structures, on the other. Equally problematic is, once again, Luhmann’s predilection for simple alternatives. For him, a form of normativity must be either function-specific or functionunspecific. Philosophy, by contrast, has no difficulty in complicating the situation with regard to normativity and allowing, in addition to a function-specific codification, a function-unspecific one, namely morality. Nevertheless, philosophy can also put the unspecific codification of morality to use in a function-specific way. In this way, philosophy introduces a more complex ethical option, and from this perspective, Luhmann’s release-from-morality thesis is shown to be an overly hasty diagnosis. Some scientists do get tempted to cook the books in order to gain or hasten a reputation for their work, though the presence of critical colleagues ensures that few of them actually succumb. Still, one does find cases of invented or altered or, as in the case of the alleged achievement of cold fusion, prematurely interpreted data. Analogous attempts to “correct fortune” are found in politics, on the part of the opposition as well as that of the government. Because the pressure to succeed is greater, or at least more short-sighted, in this area, and because its memory for moral failings is weaker than in the field of science, and because, in addition, the

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checking mechanisms here are in the nature of the case not so public and less international—in short, as a result of structural factors, and not because of the notorious and convenient idea that politics and politicians are less moral than other professions and professionals, attempts to correct fortune, also called simply “corruption,” are encountered more often in politics than in science. Both of these examples concern the integrity of the person and therefore are moral matters in Luhmann’s sense. But they do not concern something that even Luhmann could simply shunt into the domain of the personal and private. Although the person as a whole is in question, the integrity that is at issue plays only a function-specific role in the relevant functional subsystem. In the case of scientists, what needs to be asked is nothing more, nothing less, than this: Regarding the research in question, are they simply trying to cheat, perhaps deceiving themselves in the bargain? Or, alternatively, are they proceeding somewhat irresponsibly? In the case of politicians, what is at issue is primarily, even if not exclusively, whether they are corrupt as politicians. In both contexts, it is immaterial whether the politician or scientist lacks honesty as a friend or spouse or private businessman. (Nevertheless, it is legitimate in an indirect way to inquire into the honesty of a politician in his private business affairs, since a politician who is dishonest in business might be for that reason more open to blackmail than otherwise. Also, since honesty in politics is often difficult to judge, one might legitimately fear that dishonesty in business would spill over into politics in ways that would be difficult to observe directly.) According to this more complex ethical option we have to do in these cases with a function-unspecific normativity that is called on only in function-specific contexts. In a “function-specific morality” the expectations of social systems remain, as Luhmann correctly notes, selective; they are directed exclusively at the roles and functions in question and set aside all other interests and concerns. But from this, one cannot conclude that the object of morality, the individual as a person, is lost. In a function-specific morality one considers the individual as a person, but in a particular respect. For some time now, the “old European subject” has been declared dead. The French variant of this thesis, influenced by Nietzsche and structuralism, goes back at least to Foucault. “One discovers,” Foucault writes in an interview with Paulo Caruso, “that what makes man possible is an ensemble of structures that he can think and describe, but of which he is not the subject or sovereign consciousness” (Foucault 1978, 16). In all essentials, this is no different from Luhmann’s division of man into a bundle of roles and functions no longer capable of being unified into a person. The release from morality in the social realm corresponds to a depersonalization on the part of the subject.

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The idea of morality applied in a function-specific way allows us to counter these and other modern or postmodern obituaries of the subject. On this view, the moral subject is still alive and well, at least in certain function-specific respects, and reflection upon the necessary conditions for the vitality of morality construed in a function-specific way is likely to lead to the insight that wherever functionunspecific morality is threatened, there too function-specific morality is fatally impaired. Function-specific morality is not, as Luhmann fears, a relic of a society long since surpassed, that of premodern Europe. What it signifies is rather a second, logically higher order of normativity, something that is particularly important for a society that is modern in Luhmann’s sense, that is, functionally differentiated. This second dimension of normativity is in fact a necessary condition of the functioning of the first dimension. Competition among scientists only contributes to genuine knowledge when scientists by and large (perfection is not required) neither falsify nor rashly interpret their data. Judge, prosecution, and defense can work together to produce just findings only if they do not, as they do in some dictatorships, allow the result to be rigged. Exactly what the point of the give-andtake between government and opposition is, is, for good reason, controversial. But whether one boldly holds that the goal is still justice and the common good, or claims, more cautiously, but also reductively, that it is the survival of the political system, is of secondary importance. For neither goal will be reached if either the government or the opposition is wholly corrupt. In the negative formulations “only if they do not falsify,” “neither goal will be reached if either side is corrupt,” a feature of morality comes to light that Luhmann’s release-from-morality thesis partially, but only partially, acknowledges. Without the function-specific integrity in each case, one can be neither a good scientist nor a good politician, but with it alone one is “a good sort” and nothing more. Function-specific morality has a kind of right of veto: someone who is corrupt disqualifies himself as a politician; someone who is not must still prove his political abilities. Or, to put the point in the “old European” language of the moral subject, personal responsibility has in the first instance only the negative significance of a precondition. According to the first, social-historical argument against Luhmann, modernity is not quite so modern as imagined. According to the second, ethical argument, modernity, for all its modern functional differentiation, cannot abandon the moral perspective. According to a third argument, it will be shown that even if one grants that modernity has freed itself from morality, it has done so only in one respect. Morality has another field of application from which modernity has obvi-

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ously not liberated itself, and this field is decisive for the morality of law and right in particular. Fraud and corruption have to do with personal morality, and even if there are stronger arguments against this side of morality than Luhmann provides, the concept of a morality of law and right does not thereby lose its function. In the form in which it will be defended here, as a counterpoint to modernity, such a morality does not concern the character or moral quality of judges, lawyers, ministers, and members of parliament as people, but deals rather with social structures, institutions, and systems. The categorical imperative of law asks, for example, why a polity should be democratic in form and what justifies us in rejecting undemocratic constitutions even when they function efficiently. Or: can a democratic polity, since it is legitimate, pass any law it pleases, or are there, on moral grounds, substantial constraints, principles such as basic rights and human rights or obligations of social welfare, that are indeed formulated by a democratic polity but are not actually granted or refused by the legitimate power of such a polity. Legitimation questions of this sort cast doubt neither on the idea of functional differentiation nor on the various particular codings. They can even accept Luhmann’s marginalization of personal morality, since they in any case accept his critique of the hollow moral posturing that characterizes much parliamentary debate. To inquire into the legitimacy of a political constitution or the limits of a purely formal democracy is to address a set of issues that are simply passed over by Luhmann. Because these questions—concerning the foundations of political legitimacy and more generally the foundations of the legitimacy of the individual functional systems—remain open, the dimension of morality, institutional morality, that is addressed in the categorical imperative of law escapes the doubt that Luhmann’s theory of modernity tries to cast on the very idea of morality. Luhmann’s theory has a blind spot; its release-from-morality thesis resembles a rash promise. Let us take stock with regard to the first, modernity-theoretical variant of the release from morality. Good grounds for a radical skepticism concerning a moral perspective on the law have not been found. On the contrary, the moral perspective remains plausible, and the suspicion of promulgating an ideology can be turned back on the critics of ideology. In the first place, the functional systems of a society cannot function without a certain personal morality, and in the second place, the functional systems lose the foundations of their legitimacy in the absence of an institutional morality. Milton’s title Paradise Lost is well known, but he also wrote a sequel, Paradise Regained. Against Luhmann’s thesis of a lost paradigm, the balance of argument allows us to oppose the counterthesis, “paradigm regained”: the moral of the story is the rediscovered paradigm.

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3.2. Critique of Juridical Empiricism The failure of the release-from-morality thesis does not yet pave the way to a transcendental critique of law and right. A normative ethics of law and right certainly begins with a “step back,” but what is needed at first is not a transcendental but a semantic step back. In the case of institutional morality, this means asking the question, How is a morality that concerns juridical structures, rather than people, to be defined? Before embarking on this task, however, a second form of skepticism about the ethics of law and right remains to be discussed. Whereas Luhmann holds morality to be functionless only in modern societies, strict legal positivism rejects entirely the relevance of morality to the law. This second, law-theoretical releasefrom-morality thesis is not in the first instance directed against Kant’s exigent conception of morality; it denies that morality is binding on the law in any way whatsoever. For strict legal positivists, any subjection of the law to moral norms entails the loss of the law’s distinctive capacity to retain its validity even when it fails to agree with the moral convictions of those affected. According to Hans Kelsen’s famously provocative formulation, “any arbitrary [including therefore any arbitrarily immoral] content can be law” (1970, 198). The positivistic “emancipation of the law from morality” has motivations both in legal theory and in legal practice. Each motivation testifies to a different standpoint and grounds a different sort of positivism. The positivism of legal theory withdraws the moral perspective from jurists; the positivism of legal practice withdraws it from citizens. In both forms the release-from-morality thesis carries a good deal of conviction, and there is no doubt that legal positivism is a philosophically serious position. For it is true, on the one hand, that jurists are responsible for interpreting and applying currently valid statutes, not for evaluating them from a moral point of view. On the other hand, a legal theory that is critical in the Kantian sense will indeed modify this thesis and will hold that lower-level principles can, and in fact must, be evaluated in the name of higher-level ones. But insofar as these higher-level principles—such as, by way of example, fundamental articles of the constitution—belong to the currently valid body of law, this sort of critical view is compatible with the positivism of legal theory. According to the positivism of legal practice, the suspension of obedience to valid legislation in the name of fundamental moral principles of law is illegitimate. This thesis can be understood very narrowly so that it rejects all civil disobedience. Since such a blanket rejection is controversial, the positivism of legal practice is plausible only within limits. If, however, one once again distinguishes higher-order from lower-order juridical rules, and if one in addition sees that the

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most important fundamental moral principles form, as higher-order rules, part of the currently valid body of law, then the positivism of legal practice can, under restrictive conditions to be sure, permit certain acts of civil disobedience. Insofar, it agrees with our ordinary sense of the point and purpose of the law. The persuasiveness of both forms of legal positivism can make it appear that any moral conception of the law amounts to a moralizing alien to the legal domain. Kant, however, provides a nice example of the surety with which a reflective ethics can oppose the release-from-morality thesis without binding morality to the law in a way that is alien to the nature of the latter. For this reason, it makes sense here to turn to a textual tradition. One often finds subtle models of thought in such traditions, as we do in this case, where we see Kant arguing for a position that mediates between a wholesale moralizing of the law and a wholesale release from morality—in short, a morality of law without moralizing. In the Doctrine of Right (VI:229–30/55), as also previously in the essay on perpetual peace and subsequently in the “Conflict of the Faculties” (in the section on the “Distinctive Features of the Faculty of Law”), Kant recognizes the positive conception of law both from the legal-theoretical and the practical perspectives. In Perpetual Peace he says that the professional responsibility of jurists is simply “to apply positive laws” (PP VIII:369/116). These laws are not to be sought in the reason (that is, the practical or moral reason) of the lawyer or judge, but in “the code of law that has been publicly promulgated.” Kant is equally uncompromising with respect to the citizens subject to the law. “To refuse to obey an external and supreme will on the grounds that it allegedly does not conform with reason would be absurd” (CF VII:25 ff./39 ff.). The legal-theoretical release-from-morality thesis concerns only the recognition of positive law from the point of view of legal theory. Here, Kant, without the benefit of later, often somewhat prolix justifications of an autonomous theory of the law (for example, Austin’s), has no difficulty acknowledging the validity of a positive viewpoint on the law or its theoretical integrity. He claims no exclusivity for the moral conception of “the law” in the sense of iustum, justice (in his language, this answers to the question, “what is right?”). Alongside this conception—in the double respect of legal dogmatics (for Kant, concerned with the question, “what do the laws . . . say?”) and legal history (concerned with the question, “what have the laws said?” (DR VI:229–30/55)—the positive conception of the law (the quid sit iuris) remains valid. And insofar as Kant does indeed claim a certain priority for the moral conception, he does not intend by this that a law that is in force should lose its validity upon being recognized as immoral. For Kant, only the claim to exclusivity on the part of the positive consideration of the law is questionable, and this questionability is of a piece with the project of

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a practical critique of reason. Just as the second Critique is directed against the claim to absoluteness on the part of empirically conditioned reason in general, so Kant’s ethics of law is directed against a special case, the claim to absoluteness on the part of empirically conditioned reason with respect to law and right (Rechstvernunft). The fundamental concept of Kant’s ethics of law and right, the categorical imperative of law, corresponds to pure reason with respect to law and right. One suspects that some Kantian views are determined not by the topic in question but by the internal dynamic of his “system” of philosophy. That Kant’s critique of exclusive juridical empiricism continues the program of the second Critique is not, however, a system-conditioned bias. It corresponds first and foremost to the social and scholarly historical situation. For jurisprudence, both in juridical communities and in universities, had by the late eighteenth century already established itself so successfully that anyone proposing to place a question mark after the doctrine of positive law was likely to be regarded as virtually blind to reality, whereas the moral consideration of the law was, by contrast, thoroughly questionable. Among Kant’s contemporaries, the Göttingen jurist Gustav Hugo contested the possibility of a law above and beyond the positive. The relevant work of his carries the provocative title A Textbook of Natural [i.e., moral] Law as a Philosophy of Positive Law. Kant himself makes a systematic argument, not a historical one. Against an exclusively positive consideration, a “merely empirical doctrine of law,” he brings into play first an open-question argument. To restrict attention to the statutes that are in force is to leave unanswered the question whether what is in force is also morally valid, just or unjust. This very question—the same, incidentally, that Luhmann leaves open for his “political system”—proves that two viewpoints on the law are possible and that they can coexist peacefully beside one another. On the one hand, we are concerned with what is valid de facto; on the other, with what ought to be valid. An ethics of law and right that submits itself to the demanding program of a transcendental critique might want to carry out the semantic task by constructing an antinomy and thereby acknowledging a contradiction between two equally warranted laws. Now, we can in fact say that since the law consists of enforceable rules, it deserves the consent of those affected by it (if it deserves consent at all) only if it agrees with moral obligations. Consequently, the “moralistic thesis,” the unity of morality and law, seems persuasive. But the “positivistic antithesis” supporting the separation of morality and the law is also persuasive. For a legal order consists of rules and instances of an exclusively positive sort, the validity of which does not therefore depend upon moral consent.

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In The Metaphysics of Morals, Kant speaks of an antinomy only once, and even then only in passing, in the Doctrine of Virtue, apropos the concept of a duty to oneself (VI:417/214). There is never any mention of a juridical antinomy. Kant, therefore, seems not fully to avail himself of the possibilities offered by a transcendental critique of the law. Since a transcendental dialectic presupposes that reason generates antinomies from its own nature, the relevant antinomy in this case would have to be internal to reason with respect to law and right. Reason with respect to law and right would itself have to give rise to two incompatible laws corresponding to the moral and the positive perspectives respectively. A speculative contradiction of this sort has yet to be found. Pure practical reason corresponds only to the moral perspective and treats the positive perspective as, in the first instance, external to it. So far, a transcendental dialectic of reason with respect to law and right is unnecessary. Whether or not one wants to speak of an antinomy, it is clear that the contradiction between the “moralistic” thesis and the positivistic antithesis obtains between two claims to exclusivity. The contradiction can be resolved by acknowledging both sides to be partially correct. In this way the conflict ends not polemically, with the victory of one side over the other, but irenically, with the peaceful coexistence of both sides. The solution lies in that prespeculative comparison that recognizes two kinds of cognitive interest to be different but compatible. Now, one might regard the second question about the validity of positive law, the one that asks after its moral underpinnings, as secondary or even superfluous. Kant has a second argument to answer such a criticism. “A merely empirical theory of law,” he writes in the Doctrine of Right, “is (like the wooden head in Phaedrus’s fable) a head that may be pretty enough, but unfortunately lacks a brain” (DR VI:230/my translation). With this remark, the ethics of law takes the offensive. Within the framework of coexistence, Kant accords priority to the moral perspective on the law. Through the coexistence the counterpoint to the modern is made possible; through the priority it, in this case the categorical imperative of law, shows itself to be indispensable. Kant prepares the polemical jab at juridical empiricism with a number of subarguments. First, he restricts the moral conception of the law to the realm of legislation, to that part of the legal order that determines the validity of law. Here, at the birthplace of positive validity, the positive, or empirical, consideration of the law loses its rights in any case, thus making possible a moral consideration that does not infringe upon the competence of the positive perspective on the law. Thereupon, Kant assigns to the moral conception of the law the task of bringing to light “the immutable principles of all positive legislation.” These principles correspond to the categorical principles of law.

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In the introduction to the Doctrine of Right, Kant formulates the categorical imperative of law in the singular: the principle of the toleration of freedom of action in accordance with strict universal laws. The categorical imperatives of law in the plural follow in the two main sections of the Doctrine of Right, in the section on “private right” and in that on “public right.” They are used to justify, among other things, the institution of property and the necessity of a public juridical order, that is, a state. In addition, Kant defends the penal authority of the state as a form of retribution (see Chapter 8 below). Finally, he considers the principles to be the “general criterion” for justice and injustice. The polemical jab follows only after all this. Put positively and applied to the moral conception of the law, the point of the polemical jab is to declare this conception to be the brains behind positive legislation. Brains are supposed to deliberate, make decisions, and govern action and omission by means of decision. The moral conception of the law is supposed to become active where the positive conception of law is out of commission, as it is in the enactment of legislation. It is intended to guide the decision-and-deliberation process and help the legislative body draft morally legitimate law. In short, it is supposed to give norms to legislation by means of categorical principles of law. Would Luhmann be convinced by this argumentation? He would begin with the word “legislation,” in place of which he would speak of the “political system,” which in turn he would regard from the point of view of systems theory and pedagogy, not morality. Mutatis mutandis, Kant’s argumentation applies to Luhmann’s perspective in a remarkably illuminating way, given that the political system has fundamental structural features. It is, as the case may be, democratically, rather than autocratically, constituted; its powers are divided; and decision making is not simply tied to certain procedures, but is bound by substantial principles of justice such as human rights. The question whether a system that meets these conditions is by and large to be regarded as legitimate, while one that refuses them is to be seen as illegitimate, is posed from a moral perspective. The question, therefore, must not be directed at each individual law, and nevertheless it remains present as a question put to the guiding constitutional principles. Indeed, in this fundamental form it is omnipresent. The moral question is also appropriate in the case of certain particular laws. A number of problems that are especially urgent today provide excellent cases in point. One can, for example, consider legislation concerning genetic research or animal experimentation from a purely system-immanent perspective and regard whatever law is finally passed as a compromise that is negotiated between the different groups and associations concerned and that in addition reflects their respective capacities for wielding power and making credible threats. But it is just

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as important to evaluate the kind of arguments that play a role in the decisionmaking process. A political system in which the first way of considering matters holds sway exclusively cannot complain of a loss of legitimacy. Although Kant rejects an exclusively positive consideration of the law, we find notable positivists among the legal theorists that were influenced by him. Hugo had already thought that his positivistic standpoint could be extracted from Kant’s philosophy, although not from his writings on the philosophy of law, which had not yet appeared when Hugo published his Textbook in 1789. But Kantians are found among the great legal positivists later as well, even in our own century. Once one understands this phenomenon, the Kantian program of a theory of law as an ethics of law and right acquires a sharper profile, as does the pertinent network of concepts organized around the theme “morality of law without moralism.” The most influential, at the same time the most rigorous, example of a theory of law that is inspired by Kant but nevertheless aspires to get by without a moral standpoint is Kelsen’s Pure Theory of Law (1970). Kelsen does not renounce the guiding theme of Kantian philosophy, the justification of objectivity. His model for objectivity, though, is taken not from the second Critique but from the first. Kelsen takes a transcendental theory of law to be a logic of the law, not an ethics of the law. He reads the Critique of Pure Reason as an attempt to lay the philosophical foundations of empirical science and wants to achieve for juridical science, which is not considered by Kant in this context, what Kant achieved for natural science. To this end, he first determines what objective validity means in the realm of the law and then looks for the conditions that are necessary for it to obtain. The characteristic property of legal norms is their enforceability. But the objectivity of the law cannot lie in mere enforceability, since brigands, for example, also exercise force. In order to distinguish the “objective” enforceability of legal norms from the “subjective” enforceability of brute force, Kelsen defines the law by means of four mutually complementary elements. Taken together they yield a conception of the law that is much truer to its reality than is the imperatival theory of classical legal positivism (cf. Höffe 1995, chaps. 5 and 6). Kelsen begins with the observation that (1) the law consists, not of commands, but of rules, or norms, and he sees also that (2) these norms owe their existence to the existence of an authority with the power to set the rules. Further, Kelsen observes that (3) the law consists of a hierarchy of authorizations, and he (4) takes a foundational norm to sit at the top of the hierarchy and function as the last instance of all legal authorization. This foundational norm, misunderstood in manifold ways, demands that

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we obey the highest legal authority, the relevant legislature, and, historically considered, the original constitution. Kelsen ascribes to this foundational norm the status of a transcendental presupposition of the logic of the law (1970, 201–5). He sees in it, therefore, something equivalent to Kant’s transcendental unity of apperception, that “highest point” to which objective validity is to be made fast. The fact that Kant himself does not recognize such a logical presupposition (in the transcendental sense) of the law is not, of course, a mark against Kelsen, but stands in his favor as a sign of his creative appropriation of Kant’s thought. What we have to ask is whether the foundational norm can accomplish the task required of it, that of making possible the objective validity of law. One can speak of a “constitution framer” to whom obedience is due only in the context of a legal order. But Kelsen had set out to identify what distinguishes a legal order from a mere structure of power relations. So his definition of the law turns out to be circular. If one tries to avoid this result by taking the expression “constitution framer” to be free of all juridical connotation, one must allow that any sufficiently powerful person or group thereby qualifies as a constitution framer. But Kelsen himself sees that criminal organizations can enjoy sheer superiority in power, in which case they can lay claim only to a subjective validity. In brief, the objective validity of legal obligations cannot be defined with Kelsen’s foundational norm alone. To be sure, Kelsen defines positive validity not as an is but as an ought. Despite this, he does not investigate this ought, that is, validity, as an ought; he considers legal norms not with respect to their being binding but simply as realities found in the world. The legal “ought” is thereby made into a quasi-nature, and the theory of law, in full agreement with Kelsen’s understanding of the Critique of Pure Reason, becomes a quasi-natural science. Regarded as a piece of quasi-nature, the enforceability of the law must appear to those affected by it as a matter of brute force. While the superior power of criminals is imposed upon its victims as a sort of natural phenomenon, the force of the law always presents itself with a claim to rightfulness. A consistent logic of the law becomes, for wholly immanent reasons, an ethics of the law. A minimum of morality in the form of a first level of justice is needed to define the sort of validity specific to the law. This law-defining level of justice requires that, at least in certain cases, those subject to the force of the law are also those that benefit by it. The prohibitions against killing and stealing that emanate from a legal order act in the service of the lives and property of the very individuals to whom the prohibitions are directed.

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The argument sketched here does not run contrary to the basic intention behind Kelsen’s theory of law by appealing to a genuine interest in morality. On the contrary, the argument is content to remain with Kelsen’s goal of defining the sort of validity that is particular to the law. The transition from a positive science of law to an ethics of law is necessary even if one is content to inquire into the merely positive, though still objective, validity of the law. So it is not merely for inquiry into the binding nature of the law that the idea of a distinctively moral objectivity proves to be indispensable. Even a theory of the more modest sort of objectivity characteristic of legality is forced to abandon any attempt to cut itself off from an ethics of law and to join in the search for a “highest point” beyond Kelsen’s foundational norm. In the course of continuing this search, we will see that the relative objectivity that is tied to a particular legal order, legality, opens to an absolute and universal objectivity valid for all legal orders, namely the objectivity characteristic of moral legitimacy. Juridical science has a complication that natural science does not, and Kant, who did not write a logic of juridical science, does not notice it. The law cannot be regarded exclusively on the model of the first Critique, for the practical or moral perspective belongs to the law alongside the theoretical, or positive, perspective. Because of this, there are two different ideas of objectivity involved in the institution of the law and corresponding to them two different sorts of objective juridical science. Beside the idea of positive objectivity, that of statutory validity, is the normative objectivity of a morality of the law that is treated in the ethics of law. Although fully compatible, these two ways of considering the law do not simply sit beside one another. Once again, the coexistence thesis is to be supplemented by a thesis of priority. Even a merely positively oriented theory of the law must acknowledge the priority of the moral perspective. For the distinctive claim to objectivity made by the law, its authority to exercise force on the basis of something other than sheer power, cannot be understood apart from this perspective. The resulting situation is somewhat paradoxical. The notion of positive law, which is uncontroversial within the ensemble of sciences, is, from a systematic viewpoint, tethered to a thoroughly controversial discipline, the discipline of ethics with respect to law and right. A moral conception of the law such as that embodied in the categorical imperative of law does more than simply give norms to the law for the purpose of distinguishing between just and unjust law. It is needed even for fixing the conceptual distinction between legal enforceability and criminal violence. Kant, however, did not pose the question in this way in his ethics of law, and because of this the answer to it escapes him as well: before the categorical imperative of law

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develops the capacity to give norms to the law, it already gives evidence of its importance as a counterpoint to modernity with regard to the problem of defining what positive law is. In the previous chapter we found for the categorical imperative of law a second task, that of constituting the law. Both tasks, that of constituting the law and that of defining it, indicate two aspects of the same issue. The morality of law and right that is indispensable for the definition of the law marks at the same time a piece of legitimation of the institution of the law. And the same goes for the moral point of view needed to constitute the law. It says that social relations maintained by force are legitimate only when the force is exercised not, as in criminal violence, for the benefit of others, but rather, as in the prohibition of murder, benefits the very people who are subject to the force.

3.3. The Emancipation of the Law from Disposition Kant’s moral theory places great importance on a distinction that plays only a small role in today’s ethical debates. He holds that moral duties can be recognized on grounds either of voluntary conviction or of something external to morality, such as the achievement of personal advantage or the avoidance of punishment. This difference between morality and legality (in a moral, not a juridical sense) is of course familiar to Kant interpreters. Because Kant holds in addition that genuinely moral action requires the fulfillment of duty entirely for its own sake, with no ulterior motive, because that is what morality in his sense requires, his position is taken to be an ethics of disposition (Gesinnungsethik).1 A third release-frommorality thesis is directed against this ethics of disposition. Since the two versions of the complete release-from-morality thesis are unconvincing, this third view demands only a partial neutralizing of morality. It leaves room for the moral perspective, though not often as clearly as one would like, but rejects an inappropriate moralizing, which, in H. Lübbe’s words, amounts to “the triumph of disposition over judgment” (Lübbe 1987, 37). As a rule, the criticism of moralizing is formulated in the context of politics, and since one of the most important of political tasks is legislation, the sense of the criticism applies also to the law. Lübbe (1987, 37 ff.) directs the objection directly at Kant. With the claim that conscience is infallible, Kant attributes to conscience a certainty of judgment that from the standpoint of a postconventional morality is 1. In other contexts, it has become customary to translate Gesinnungsethik as “ethics of conviction.”

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seen to have an ideological element and can only be explained by the rich fund of material norms that in Kant’s day still enjoyed an unquestioned cultural validity. Lübbe takes the appeal to an infallible conscience to be politically dangerous. The idea does indeed threaten a condition of democratic adversarial culture: the ability to compromise. In addition, politics is in many cases concerned only with efficiency, feasibility, and stability. In other cases, moral principles are in play, but what is debated is not so much the principles themselves as their application to particular situations. Someone who appeals in such cases to the last foundation of moral integrity, one’s conscience, can increase the weight of his own position. Such a maneuver can, therefore, be a piece of political rhetoric. Even when an appeal of this sort was honestly intended in a subjective sense, it would, objectively seen, be misplaced; it would be a case of irrelevant moralizing. This is not the place to reflect upon when exactly appeals to conscience in politics can be justified. What is at issue is simply whether the charge of moralizing is justly leveled at Kant and the categorical imperative of law. In the Doctrine of Virtue, which rejects the notion of a mistaken (irrende) conscience as “an absurdity” (VI:401/202 f.), Kant makes precisely the concession that his critics take to be absent. Far from claiming objective infallibility, Kant admits the opposite and insists that one can very well make mistakes in one’s objective judgment of material norms. It is in another respect alone that one is immune to error, in a subjective judgment concerning whether one has compared the deliverances of one’s conscience with the deliverances of one’s practical reason. According to Kant, one can very well be deceived in the opinion that “p is morally good (or bad),” but one cannot be deceived in the opinion that “[f]or my part, I am convinced that p is morally good (or bad).” In addition, Kant does not see moral disposition as an alternative to legality. He sees in disposition, rather, a strengthening of the conditions of legality. In adding a condition to legality, morality in the Kantian sense is a “legality plus,” an agreement with duty that occurs for the sake of this duty itself. Kant’s formulation in the Doctrine of Virtue—“act in conformity with duty from duty” (VI:391/194)—leaves no room for doubt: morality does not suspend legality; it surpasses it. Last but not least, Kant sets out to defend against precisely that which his critics also want to avoid. Instead of leaving morality to a criterionless inwardness, Kant places great emphasis on the need for an objective measure, for universalizable maxims. Kant puts the duty to subject one’s subjective convictions to an objective testing procedure ahead of the right to act according to one’s own convictions. As a consequence, Kant’s ethics of morality need not offer any irritation to either Lübbe the Hegelian or Lübbe the advocate of a democratic adversarial culture.

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The essential difference between Kant and Lübbe cuts across the latter’s alternatives. As was the case with Luhmann, here also a third theoretical possibility needs to be introduced, albeit in a different way. While Lübbe opposes “mere disposition” to “judgment,” Kant holds that both disposition and judgment are bound to universal principles. Insofar as Lübbe pays too little attention to this tie to morality—an issue that is uncontroversially open with respect to the tasks of judgment—his critique of an ethics centered on disposition comes close to a more-than-partial release from morality on the part of the law. Now, Kant is not satisfied with the mere recognition of universal principles; and his insistence that the concept of morality goes beyond that of moral legality could be the source of residual irritation. It is in fact true that to demand more than legality in the case of the law is to uphold a dubious disposition-based concept of law. Kant, however, emphasizes time and again and with unmistakable clarity that no disposition to obey the law is part of its definition; in particular, such a disposition plays no role in the moral definition of the law. The demand that one make “duty one’s motivation” is not made by the law and the right, but only by virtue (e.g., DR VI:218 ff. and 231/45 ff. and 67; and DV VI:389/193). Kant thus escapes even the residual objection of moralizing, and he succeeds thereby in freeing juridical morality from his own more rigorous concept of strict morality. The fact that Kant adheres to the emancipation of the law from disposition has been overlooked in discussions of ethics in general and even by interpreters of Kant. The emancipation in question does not remain at the merely programmatic level. It is implicated in Kant’s concept of the law as optimizing freedom of action by prohibiting its exercise in mutually incompatible ways, and it provides the grounds for justifying the authority of the law to use force (see also below, 5.2). The emancipation of the law from disposition is found also in the systematic portion of the Doctrine of Right. Kant’s argument for supplementing the morality of law and right that precedes the state, which he calls “private right,” with a public legal code depends upon precisely this point. The obligations of private right require public protection precisely because they demand no recognition that goes beyond sheer legality. Kant’s emancipation of the law from disposition does more than correct a prejudice in the history of philosophy, it has many consequences for systematic discussions of ethics as well. Every moral philosophy contains a piece of action theory or rational psychology in which the practical subject to which obligations are directed is defined. The side of morality that concerns the theory of action, which is to say, that concerns the freedom of the will, is hotly disputed. The ethics of law and right, however, enjoys a great advantage in that it dispenses with the freedom of the will

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and contents itself with the freedom of or responsibility for action. Because the issues involved in ethics are thus simplified in this respect, it is remarkable that the recent revivification of ethics does not concern itself more often with the ethics of law and right. Finally, above all else, the emancipation from disposition allows the concept of the categorical imperative of law to be made more precise. Within the culture of the law, the counterpoint to modernity is not tied to morality in Kant’s strict sense. The moral ambitions of the law are much more modest. If, therefore, one reads the release-from-morality thesis as making a relative, rather than an absolute, claim, if the point is not that one takes leave of morality altogether but simply that the significance of “morality” is diminished, then the thesis is thoroughly acceptable. Qua strict Kantian morality, morality drops out of the concept of the law. It is no accident that the emancipation of the law from disposition has played such a small role in the history of Kant interpretation and Kant-inspired philosophy. For the emancipation in question has a systematic range of which Kant himself was not sufficiently aware. The emancipation of the law from disposition brings with it a reevaluation of moral legality, of the relationship to duty that Kant, in the writings on the foundations of morality, treats only as a deficient mode. Formulated paradoxically, morality can manage without morality, at least as far as the morality of law and right is concerned; in that case the boosting of legality in the moral sense into morality in the strict Kantian sense is not required. It follows, however, that what we can call universal morality, the morality that is indifferent to the distinction between virtue and the law, cannot consist in acting out of duty. On the contrary, the agreement with duty that results exclusively from self-interest also has moral significance. The universal concept of morality that is treated in fundamental ethics must allow for that which Kant excludes from morality in the strict sense: a “coincidence of self-interest and morality.” Such a coincidence does not, however, have moral import for the entire domain of practical activity, but only for the realm of law and right. As far as personal morality is concerned, the turn away from the principle of self-interest obtains. In his essay on perpetual peace (PP VIII:366/112), Kant adheres to the coincidence thesis for the public rule of law. Even “a race of devils, if only they [were] intelligent”—and that means a race of enlightened egoists—would, he says there, need a state (cf. Höffe 1988a, 56 ff.). With this admission, he declares selfinterest, that is, the self-interest of each member of the polity, to belong to the foundations of the legitimation of the state. But Kant did not see that this thesis is valid not only for public codes of law but also for law and right as a whole. One can also try to legitimate the morality of the “private law” that precedes the state from the enlightened interest of those subject to it (see PJ chaps. 11 and 12).

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Wherever Kant and German idealism play a significant role, a thesis that is essential to the self-understanding of modernity is upheld: namely, that in the modern age morality acquires a radically new origin. In particular, in the work of Kant the moral subject discovers its autonomy. This discovery has not gone unchallenged. With Nietzsche, at the latest, begins a long line of philosophers for whom the morality of autonomy has become questionable. That Kant adhered to the morality of autonomy is, however, never doubted. But with respect to the realm of law and right, we have just seen that this is not the case; in this area, selfinterest, which is to say, the heteronomous subject, is sufficient for the achievement of moral legitimation. Nevertheless, Kant does not simply take back the notion of autonomy in his philosophy of law and right. On the contrary, it is entirely possible to speak of autonomy with respect to the law, but the bearer of autonomy in this case is not the will of a natural subject but the collective will of all who are subject to the law together, the volonté général. The criterion in the social realm, as on the personal level, is universalizability. And just as a natural person demonstrates his morality by suspending happiness as his guiding principle, so too does a legal community demonstrate its commitment to the (morally legitimate) rule of law. We know that Kant excluded the promotion of social welfare from the realm of morally mandated duties of the state, but to social-pragmatic arguments in favor of the welfare state he had no objection. We see now that Kant’s position signifies something philosophically deeper than a credo of political liberalism; the position springs from the fundamentals of his moral views on law and the state. Kant’s critique of eudaemonism on the personal level corresponds in the realm of law and right to his criticism of the welfare state (for some remarks critical of Kant on this point, see 5.1 and 5.3 below). Nevertheless, the concept of morality that Kant develops in his writings on the foundations of ethics does not, in fact, agree with rehabilitation of legality that issues from his ethics of law and right. According to the famous opening of the Grounding (IV:393/7), only a good will can be held to be morally good, that is “good without qualification.” This provocative thrust is not simply the rhetorical exaggeration of an introductory sentence; it is consistently upheld throughout the work. Already in the preface (IV:390/3) and then in greater detail in the first section, Kant says that acting according to the moral law is not sufficient for moral goodness; one must instead fulfill the law “out of duty” and “out of respect for the law” (IV:397 ff./9 ff.). Furthermore, the moral worth of an action lies precisely in that which is excluded by the emancipation of the morality of law and right from disposition, in the maxim that issued in the resolution to act (IV:399 ff./12 ff.). Beyond this, Kant enters into underlying motivation in his discussion of exam-

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ples, despite the fact that the law allows for a coincidence of self-interest and morality. Kant’s aim in the foundational writings is not to establish what in particular is morally required or forbidden; this he presupposes as self-evident and familiar. What Kant wants to show is what it means to fulfill one’s duty even when, as is often the case, doing so does not coincide with self-interest. Consequently, he constructs the examples so that the morally right action is threatened by a competing claim of self-interest. Only one who follows the prescriptions and prohibitions of morality also in situations of “duty against inclination” acts in a truly moral way (see 7.3 below). In truth, morality is not yet contained simply in the criterion of universalizability, to which the categorical imperative is all too often reduced. It appears only with the addition of two further elements. First, the categorical imperative begins with a demand: “Act . . . !” It is primarily a criterion of action, not of judgment. Second, universalizability is not demanded of just any rule of conduct, but only of maxims. A maxim for Kant is a certain determination of the will, a principle that the agent has set for himself. This is why the following of universalizable maxims is evidence of moral goodness on the part of the will itself. Now, the categorical imperative in the Grounding demands the universalizability of maxims, and it follows that this imperative cannot provide us with the criterion of universal morality. The truth is that the categorical imperative functions as the measure of something more special, it is the criterion for the morality of the faculty of desire. Because control of the faculty of desire corresponds to virtue, the categorical imperative with which we are all so familiar is an imperative of virtue, not of law or right; it is a measure of morality in the strict Kantian sense in which morality is opposed to legality. In the Grounding, the concept of legality is used only in opposition to that of morality in the strict sense in order to highlight, through contrast, the nature of the latter, of morally governed desire; legality in the moral sense does not acquire an importance of its own. The Critique of Practical Reason does not deviate from this concept of morality; it too delimits morality by means of its opposition to inclination, which is now called “the principle of self-love or one’s own happiness” (C2 V:22/19). Since the Doctrine of Virtue adheres to this concept of morality as well, we can conclude two things: first, that Kant uses the same concept of morality in the Doctrine of Right as he does in the writings on the foundations of ethics, and second, that these foundational writings do not accomplish what they set out to accomplish; they do not lay the grounding for the whole of the Metaphysics of Morals, but only for its second part, the Doctrine of Virtue. One must, however, make this conclusion more precise, and in doing so weaken it somewhat. Technically speaking, the Grounding does not begin with

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the normative-ethical thesis about the good will. What constitutes the systematic beginning is rather a metaethical definition that precedes fundamental ethics, the theory of the categorical imperative in general. This definition, which is in a sense the zero point of the argument and is neutral with regard to the difference between the theory of law and the theory of virtue, reads: “morally good” is equivalent to “good without qualification.” Kant himself, however, pays no special attention to this neutral, and consequently most universal, concept of morality, and his interpreters have followed him in this omission. The systematic first step of an ethical theory, the legitimation of the perspective “good without qualification,” is given short shrift by Kant and his successors. When Kant holds that the good will alone is good without qualification, he applies the universal concept of morality—the concept “good without qualification”—to the personal side of human activity. This application is undoubtedly legitimate—as is the inference that, in comparison to the good will, mere (moral) legality of action counts as a deficient mode. But it is not legitimate to apply the universal concept of morality exclusively to the faculty of desire. It is equally possible to apply it to social conditions, and when it is so applied, morality is emancipated from disposition. More precisely, one should say: there is no conceptual tie between morality and disposition that must upon reflection be loosened. As the morality of coexistence, morality is originally independent of disposition, and the same goes for the concepts of freedom and autonomy. As soon as these concepts are defined in a way that ties them to the concept of virtue, that is, as soon as they are defined by reference to the faculty of desire, they lose validity in relation to the law. Understood as pure self-legislation, and consequently understood independently of desire, they regain their legitimacy. We are left, therefore, with a pair of alternative applications. In the one case pure self-legislation concerns desire, whereupon it is equivalent to the autonomy of the will, while in the other case it has to do with the structure of social coexistence. In both cases freedom is construed as pure practical reason and constitutes the supreme principle of order for human activity: in the first case it orders the personal side of human action and practice; in the second it orders the social side. A corresponding point holds with regard to practical reason. Universal pure practical reason is neutral between the particular areas of application, between the faculty of desire and coexistence. It consists of nothing more than the idea of the unconditioned good, and its criterion is universal legislation as such, with no implication that the legislation must be self-given. The criterion of universal morality is universalizability tout court.

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3.4. A Morality of Law Without Moralizing This universal concept of morality that is neutral with respect to personal conduct is not found in Kant’s writings on the foundations of ethics. One might therefore think that Kant had not at this time taken clearly enough into account the law as an object of moral consideration or that he had not seen the difference between virtue on the one side and law and right on the other. Since, however, Kant had occupied himself with a moral theory of the law, a theory of natural law, long before the development of the critical philosophy and had never abandoned this interest, the first possibility can be ruled out. Because, further, he had also already in his precritical philosophy of law and right recognized that the law is distinguished by its authorization to enforce externally imposed legislation, the second possibility is excluded as well (cf. Ritter 1971, 168 ff.). Some interpreters of Kant have tried to understand the problematic relationship between the foundational writings and the Doctrine of Right from the perspective of personal morality, that is, the theory of virtue. Both neo-Kantians, such as Herman Cohen, and jurists tend to place the law in the service of morality and accord to it the function, for example, of protecting what we can call “ethical freedom,” the freedom to act from duty (see Kersting 1984, 52 ff., and Kühl 1984, 59 ff.). Karl Jaspers too thought that Kant tied the law to morality. According to him, the law “springs from the transformation of man into an ethical being” (1957, 135). In this morality-oriented interpretation of the law, the Grounding’s virtue-specific treatment of morality is indirectly confirmed but no longer seen as a weakness. This “ethical ennobling of the law” (Kersting 1984, 46), however, does justice neither to Kant nor to the systematic point at issue. The authorization to obligate others belongs to the nature of the law, while the call to bind oneself constitutes virtue. Since the binding of oneself to the demands of duty cannot, by definition, be arranged by an external force (cf. DV VI:381/186), ethical freedom is not in any case susceptible to legal protection. The more a “moralizing” of the law, a disposition-based theory of the law, allows itself incursions that are morally illegitimate, the less it can help the cause of ethical freedom. True, the law does have the function of protecting freedom, but the freedom it protects is not ethical freedom in the sense spelled out above, but rather freedom of action and choice. The relationship between ethics and the law can be construed neither as a subordination of the law to ethics nor as a simple divorce of the law from ethics. The only conception that does justice to the situation is that of a horizontal juxtaposition whereby the law and virtue (strict morality) are jointly subordinated to the idea of an unconditioned good. From this subordination follows, in the case of the faculty

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of desire, morality in the strict sense and, in the case of the law, the emancipation of morality (in the broad sense) from disposition. Against this interpretation of Kant’s views, one can object that, among the examples he discusses in his writings on the foundation of morality, we find construed as a duty of right the prohibition against making false promises or, as a variant, the case of a deposition. It seems to follow that the foundational writings cannot be regarded as devoted exclusively to matters of virtue. Since Kant does nevertheless emphasize morality in the strict sense, that is, virtue, in these writings, one might take them to be inconsistent; they might seem to include a morality of the law and still focus entirely on that virtuous disposition that is excluded from the concept of a morality of the law. The impression of inconsistency is dissolved when one observes Kant’s twofold definition of virtue. In a formal sense, what is at issue is the manner of obligation. Virtue consists in “self-constraint,” or “inner freedom” (DV VI:380 and 396/186 and 199); the law consists in the authorization to constrain others, which is a matter of “external freedom.” Materially, duties are divided into two categories, those of right and those of virtue. While the foundational writings restrict themselves to the Doctrine of Virtue with respect to form, they anticipate the entire Metaphysics of Morals as far as the material classes of virtue are concerned. In dealing with the duties of right, the foundational writings emphasize the formal features of morality in the strict sense, and in particular that juridical morality, or disposition to obey the law, whose “respect for the law” (DV VI:390/194) extends beyond what can be extracted by force. One who acts out of a disposition to obey the law will fulfill what is legally required independently of any fear of punishment; this person will observe the law even in those “border areas,” such as a deposition made without witnesses (C2 1/18), that are exempt from “the arm of the law.” In its essentials, Kant takes the double definition of virtue from the tradition, and this double definition still appears justified today. If there were to be a morality of law and right along with only one class of duties, the public legal order would have not merely the authorization, but the obligation, to see to the fulfillment of duty by means of the threat of punishment. If the state were responsible for the two guiding principles of the Doctrine of Virtue, for personal perfection and the happiness of others (DV VI:385 ff./190 ff.), it would run the risk of becoming totalitarian. Kant escapes this danger, that of moralizing the law in a material, rather than a formal, sense, by subjecting the morality of the law to two principles limiting its content. The morality that can be imposed by force when necessary, the morality of the law, includes first of all only duties to others; it leaves duties to oneself out of

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account. The prohibitions against suicide, against “voluptuous self-defilement” and “self-benumbing,” against lying, miserliness, and “groveling servility,” and the obligations to cultivate moral self-knowledge and develop one’s talents— Kant counts all of these obligations and prohibitions as part of morality and holds that they are nevertheless not legitimate topics for the law. For this reason he criticized contemporary jurists who wanted to make the preservation of one’s own body a duty of right (LE 196/117). In our century he would have argued against laws that declare simple homosexuality and premarital sex to be punishable offenses, and he would also demand a more fundamental and nuanced legitimation of the illegality of certain drugs: self-benumbing and neglect of one’s talents are not acceptable grounds for legal prohibition. In the sphere of duties to others, the second limiting condition requires a distinction between obligations whose recognition brings one credit and honor and those whose observation is owed. The morality of law and right is far from coextensive with the whole of social morality. Attitudes such as love of one’s neighbor or, more modestly, benevolence, sympathy, and solidarity may be morally required of individuals as such, but it is difficult to maintain that these are attitudes others can claim we owe them as a debt and that they therefore can be insisted upon by force. While the first limiting condition concerns above all else the classical tasks of the state, the second is important for the development of the legal state to the social-welfare state. Kantians cannot follow utilitarians in justifying the increase in governmental tasks that marks this transition by appeal to the welfare of all who are thereby affected; for Kant, the social-welfare state is morally legitimate only when it can appeal to duties that are owed to others. Since man is a being endowed with reason but also subject to temptation, the moral concept of the law confronts humanity as an imperative. The various aspects of the moral concept of the law that Kant discusses represent, therefore, so many building blocks of the categorical imperative of law. In emphasizing both conceptual connections and differences between morality and the law, these building blocks bring into relief the idea of a relationship that is at once a neat separation and a unity. In this way these multiple perspectives escape both a moralizing of the law and a releasing of it from any moral basis at all. We thus find in Kant a conceptual network that does remarkable justice to the phenomena. The counterpoint to a merely empirical-pragmatic legal culture is defined in a beneficially sober manner. 1. The moral character of the categorical imperative of law is, in the final analysis, to be sought in that feature of the critical philosophy’s conception of morality

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which the Grounding, albeit only in passing, defines as the unconditioned good and for which, not quite so fleetingly, it establishes universal legislation as the ultimate criterion. The standpoint of morality consists in the idea of the unqualified good, its measure lies in strict universalizability, and the standpoint and the measure together constitute the decisive commonality unifying personal and legal morality. In the former case it is the faculty of desire that is submitted to the concept and the criterion of morality, and in the latter case it is social conditions. 2. Whereas in the case of the faculty of desire the unqualified good is the good will, morality in the strict sense, unqualifiedly good social conditions are independent of this. The morality of the law gets by without the presence of a moral disposition. A disposition-based theory of the law that demands beyond legality an inner recognition of the obligation to obey the law is guilty of a formal moralizing of the law. 3. The class of moral obligations is divided into two groups, which traditionally are called the duties of virtue and those of right. The moral concept of the law restricts itself to the second group of duties, to those duties which, as owed to others, contain within them the authorization to enforce them. A legal order that wants morally to accomplish more than this in fact accomplishes less: it tries to extract by force that which is not fit to be extracted by force; it is guilty of moralizing the law in a material sense

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4 PRACTICAL METAPHYSICS AND ANTHROPOLOGY

In the form of human rights, modernity recognizes principles that cannot be relativized; in other words, it recognizes categorical imperatives. The legitimacy of such principles is, however, according to their discoverer, Kant, tied to metaphysics, a long-obsolete form of rationality. Insofar as Kant’s claim is plausible, modernity is once more shown to lack an adequate self-understanding. For if Kant is correct, modernity avails itself of principles whose justification is precluded by its dominant critique of metaphysics. If Kant was not mistaken and we really do need a metaphysics in order to legitimate human rights, an attempt to rehabilitate metaphysics will certainly be worthwhile. For the idea that a human being is a person endowed with certain rights simply “because he is a human being, not because he is a Jew, Catholic, Protestant, German, Italian, and so on,” is for the modern consciousness, as Hegel put it, “a thought of infinite importance” (Elements of the Philosophy of Right,

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§ 209). By the same token, a rehabilitation of metaphysics merits more than merely academic attention only when it is grounded in phenomena, such as human rights, that are relevant to life in the real world. For metaphysics, the onetime “queen of the sciences” (C1 A viii), has long been devalued in many quarters. Some see the demise of metaphysics beginning with Comte, others with Nietzsche, and still others with the logical positivists. For the learned among the disparagers, metaphysics has been undermined since the Stoics, or since the Renaissance, or even since the emergence of self-sufficient philosophical subdisciplines, that is, since Aristotle himself. True, the venerable title “metaphysics” still plays a positive role here and there. Ernst Tugendhat (1982), for example, claims that the role of metaphysics, that is, fundamental philosophy, needs to be handed over to formal semantics, and Apel argues that transcendental pragmatics should be given the part. The expression “metaphysics” has served as the title both of a philosophy colloquium (Oelmüller 1987) and, albeit followed by a question mark, of the 1988 Stuttgart Hegel Conference (Henrich and Horstmann 1988). This oscillation between critique and regeneration of metaphysics is characteristic of modernity and continues to the present day. On the whole, though, skepticism about metaphysics predominates. Not only has Patzig’s slogan “ethics without metaphysics” long been in circulation, but even the two major philosophers who have bestowed new importance on Kant’s ethics, Rawls and, differently, Habermas, remain reserved. Although Rawls interprets his theory of justice as Kantian (TJ 40), he calls it “political, not metaphysical” (Rawls 1985). And Habermas, having already distanced himself from Apel’s ambitions for fundamental philosophy, has lately spoken of a “post-metaphysical thinking” (1992). Someone intent on opposing these assembled skepticisms must make a weighty decision. The social practice that provided Kant with the model according to which he called his philosophy “critical,” that of administering justice, recognizes in such a situation the utility of a preliminary examination (Vorprüfung). In cases that are at once difficult and important a preliminary investigation is undertaken with the goal of determining whether the prospects of success are sufficiently promising as to justify the time and effort required to mount a full-scale inquiry (Hauptprüfung). Because no final judgment is to be rendered, the examination can aim at something more modest than a conclusive demonstration. In the sense of a preliminary examination of this sort, then, we ask whether their dependence on a metaphysics disqualifies categorical principles of law so unequivocally as to make it better to spare oneself the main investigation. Two questions are asked: First, what sort of metaphysics underlies categorical principles of law?

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What, in other words, does “metaphysics” mean with regard to law and right? Second, what importance should this metaphysics be granted? How far does metaphysics extend in the case of law and right?

4.1. The Turn of Metaphysics to Practice Philosophy has arrogated to itself a long list of proud titles to describe at once the nature of its special task and its unique distinction. The slogan meta ta physica indicates in the first instance merely the confusion of an editor. But philosophers soon came to believe that the expression, as Kant said, “[did not] come from nowhere, since it fits the science itself so exactly” (ML1 XXVIII/I:174). Philosophy claims to go beyond ta physica, beyond experience, and nevertheless to remain within the domain of scientific and scholarly rationality, making no claim to be a special, esoteric sort of knowledge. Philosophy’s pride goes still further. Since all men, according to Aristotle, desire by nature to know, and since this desire is not completely fulfilled until we have achieved knowledge of reasons that are independent of experience (Metaphysics I.1 and Posterior Analytics II.19), the transcendence of experience acquires a human, even an existential, significance. For Aristotle, theoria, that is, metaphysical thinking, is the highest form of human existence (NE X.7). But critics of metaphysics take this pride to be sheer arrogance; they help the proverb come true and bring pride to a fall. If we want to avoid the fall, or at least avoid falling too far, a politics of modesty is advised. Kant is no stranger to such a politics of modesty. He does not in any way demand exclusivity for the metaphysics of the law, but restricts its tasks to a small region, that of “metaphysical first principles.” Nevertheless, metaphysics on this conception does not abandon either its traditional profile or its provocative pride entirely. In speaking of “first principles,” Kant fits himself into the tradition that begins with Aristotle and seeks ultimate grounds. But even this search for principles remains true to the politics of modesty. For this search is not concerned with knowledge of the world as a whole or with an unqualifiedly highest and at the same time individual being. Metaphysics remains fundamental philosophy, no longer in the singular but rather in the plural. There is metaphysics not only as a philosophy of nature (meta-physika) but also as a philosophy of practice (metapraktika), and within the realm of practice as a whole there is a primary metaphysics (as a Grounding) and a secondary metaphysics (as a Metaphysics of Morals), and this secondary metaphysics is further divided into a metaphysics of law and right and a metaphysics of virtue. To critics, this modesty is insufficient.

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They refer disparagingly to any kind of search for principles as a “fundamentalism,” about which they have misgivings that are partly political and partly theoretical. If the person who is good through and through distinguishes him or herself by four cardinal virtues, the bad philosopher, the fundamentalist, is marked by four cardinal vices. The first objection goes by the name of self-overestimation and is not specific to law or right. Critical rationalism teaches us that to reflect on principles is to seek an ultimate certainty and with this a kind of knowledge that is immune to error. Metaphysics is frequently mentioned in the same breath as religion. In the case of human rights, a second argument, one that is political and at the same time drawn from the theory of modernity, speaks against metaphysics. The argument is that principles of law whose legitimation depends upon religion threaten the neutrality of the modern legal and political order with respect to different worldviews. The third objection is also political—in particular, democratic—in nature. That which Habermas (1990b, 66 ff.) criticizes in the “material part” of Rawls’s (TJ) theory of justice is present even more clearly in a metaphysics of law and right. The philosopher, objects Habermas, feels that he is an expert on justice (and Habermas forgets that the critical theorist feels himself to be an expert on injustice). But insofar as he conceives himself to be an expert on justice, the philosopher shows that he has not fully freed himself from the aristocratic ideal of the philosopher king; he aspires to a privileged access to the truth and thereby runs counter to a democratic scientific culture. Finally, anyone who still sees hope for metaphysics despite these three arguments will doubtless bend in the face of the fourth argument. This argument underlies Marquard’s objection that in doing metaphysics one “repairs to the realm of the utterly principled, into transcendental cloud-cuckoo-land” (Marquard 1987a, 112), and also Blumenberg’s remark about the “sad simplemindedness of ultimate conceptions.” Reflection on principles is in any case in danger of being intellectually irrelevant and boring to boot. The metaphysics of law and right pleads not guilty to all four charges. It is not a fundamentalism in the criticized sense. With regard to the first objection, it must be said that the fact that metaphysics too participates in the epistemic finitude of man and is therefore threatened with the risk of error is, despite the pathos with which fallibilism presents itself, rather a trivial point. And metaphysics escapes the further difficulty posed by the trilemma of justification through the reflexivity that is peculiar to it. Moreover, although there are no doubt philosophers—such as Hans Jonas (1984, 11–12), to give a recent example—who grant that their moral principles “can perhaps not be justified at all without religion,” religious justifications are entirely foreign to Kant’s autonomous ethics and do not appear at all in the metaphysics of the law. The “religious” postulates of pure practical

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reason, the immortality of the soul and the existence of God, play no role in this part of Kant’s philosophy, and in the second Critique, where Kant sets out these postulates, he is concerned with a problem quite different from that of grounding morality (see 12.3 below). In addition, as long as metaphysics is defined exclusively as inquiry into principles, it offers no privileged answers, but rather asks somewhat more fundamental questions, something that in no way contradicts a democratic scientific culture. With respect to politics, Western philosophy is familiar with two models for approaching the fundamental question posed by metaphysics. Aristotle argues from natural social impulses and the idea of a successful life. Modern philosophy does not attack these arguments directly, but formulates an open question by means of which reflection on principles is sharpened. Aristotle underestimates the fact that the polis enforces its norms. It is the legitimation of this enforcement that is the primary task of reflection on political principles, and it is here that human rights have their place; they are inalienable rights, which are not fully realized without a public authorization to enforce them. For Aristotle, man was regarded as a political being by nature, and as a consequence fundamental reflection on social theory took place as political philosophy. In the modern age—and here Kant stands in the Hobbesian tradition—the ancient understanding is not rejected but modified. The political nature of man becomes a juridical nature, and because a public means of applying it is essential to the law as such, this juridical nature is supplemented by a state, or, more precisely, a “state-nature” (Staatsnatur). Fundamental reflection on social theory changes accordingly, from an undifferentiated political philosophy to a more precisely demarcated philosophy of law and the state. Finally, anyone who observes how Kant, in the Doctrine of Right, speaks not only of the concept of law and its authorization to enforce but also of equity and the right of necessity (Notrecht), of property, marriage, and family law—not to mention how he deals with the questions of what a book is and what money is, and how beyond this he treats various kinds of contracts, and also constitutional law, penal law, and the law concerning pardons and clemency, and even, finally, the law of nations and world-citizens—for anyone who takes account of all this, there can be no talk of a “sad simplemindedness of ultimate conceptions.” As these counterarguments show, the fundamentalism debate takes us only to the threshold of metaphysical discussion. This point holds when Kant calls his metaphysics of law and right a “systematic knowledge” (DR VI:229/55) and means by this a body of knowledge in which all parts hang together according to necessary laws (cf. C1 A 832/B 860; DR VI:218/45). To discuss only the systematic ambition of metaphysics is not yet to penetrate to the core of what “meta-

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physical” means with respect to categorical principles of law. What is essential is that the principles should not have their origin in experience. With this idea, Kant raises an ambition that is no longer quite so modest. While the first conception of metaphysics consists only in a question of reflection upon fundamentals, the second conception contains a thesis about the sort of answer that will be acceptable. The exact form of this answer is, however, controversial. When Rawls denies that his theory of justice is “metaphysical,” he wants to avoid ontological commitments to such things as an intelligible world, which have long fallen victim to Nietzsche’s mockery of the “otherworlders.” Now, it is true that he who is willing to search patiently will find assertions of this kind in Kant’s text. In Perpetual Peace (VIII:350/93) Kant claims that with the assumption of inalienable human rights, man represents himself “as a citizen of a supersensuous world.” In the conclusion of the Doctrine of Right he even says that “a perfectly rightful constitution among human beings is . . . the thing in itself” (DR VI:371/176, emphasis deleted). Assertions of this kind, however, have no legitimating but only an explicative significance. They do not justify the thesis that categorical principles are indispensable for a moral legal order; their function rather is only to elucidate the ontological status of these principles, which, it must be said, is no mean thing. Although the ontological interpretation of categorical principles of law is entirely worthy of discussion, it has only a secondary, explicative significance with respect to the principles themselves. This is why expressions corresponding to those cited above are found so seldom (and also not in central passages) in the Doctrine of Right. My preliminary examination will remain true to the politics of modesty and will, for the moment at least, dispense with the ontological interpretation of the categorical principles. Kant’s core thesis concerning the metaphysical character of the law consists of two other assertions. In opposition to skepticism about the ethics of law and right, he claims that the law rests upon moral principles, and in opposition to an empiricist ethics of law and right, he takes the origin of these principles to lie beyond the empirical realm. The legitimating ground of politics, qua the law and the state, lies outside political experience; politics begins as metapolitics. We tend to regard a nonempirical justification as an epistemological problem. An experience-independent justification of morality is naturally fascinating and provocative: fascinating because it attributes to pure reflection the capacity to discern moral principles of law and with them to give a clear orientation to all practical activity, and provocative because doubts about the possibility of doing this are well entrenched. Kant’s slogan for a form of knowledge that is purely rational is “synthetic a priori judgments.” An ambitious rehabilitation of metaphysics will

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defend this class of judgments; a more modest rehabilitation will consider the degree to which it requires them. For Kant, the categorical imperative is certainly “an a priori synthetic practical principle” (G IV:420/29); and in the Metaphysics of Morals he speaks of “a system of a priori cognition from concepts alone” (MM VI:216/44). In the first case, however, the point at issue is the connection of the will to an action (G IV:420/29), and in the second case it is a “universal law” that each person has “within himself” (MM VI:216/44). In both cases, therefore, Kant is concerned with a practical phenomenon, and it is only because the phenomenon in question excludes determination by experience with, once again, experience defined practically as an empirical ground of determination—“without presupposing any condition taken from some inclination” (G IV:420/29)—that the corresponding knowledge therefore must also dispense with experience. So what goes for metaphysical ontology goes also for the theory of rational knowledge: in ethics their significance is subsidiary. The ethics of law and right is metaphysical in an originary sense, neither because it purports to think about the whole world or its absolutely final ground, nor yet because it assumes an intelligible world or synthetic a priori judgments, and it is certainly not metaphysical in virtue of making theological assumptions. The ethics of law and right is metaphysical because its object—morality insofar as it concerns law and right (die Rechtsmoral)— transcends every empirical ground of determination. It is not the philosophy of morality that is metaphysical, but morality itself. Kant preserves the existential significance of metaphysics, but at the same time weakens the importance of philosophy. In so doing he creates an essential difference between him and Aristotle. Even if humanity’s natural urge to know does reach fulfillment and perfection in the knowledge of principles, and even if theoria is a superior form of human existence, all this plays an insignificant role in the realm of praxis. Practical metaphysics is not simply the theoretical metaphysics familiar to us but “applied” to human practices. Practical metaphysics is fundamentally different from theoretical metaphysics and is concerned with the practical, not the theoretical, logos. The perfected form of practical metaphysics is not theoria but moral judgment and moral action. The highest form of practical humanity lies in the practice of morality. In the case of the law it lies in a just legal and political order. Philosophy brings the phenomenon of morality to conceptual clarity and enlightens moral consciousness about its own nature, and it can also, by means of a criterion of morality, help avoid mistaken judgments and self-deceptions. All of this is nevertheless only a subsidiary achievement. The primary task falls not to the theory of morality but to human praxis. It is here that the democratization of the theory of justice that

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Habermas misses in Kant takes place. The chief expert on the metaphysics of the law is not the philosopher involved in the attempt to provide morality with ultimate foundations. Whether he argues semantically or pragmatically—and, in the latter case, whether in a universal or transcendental sense—in any case, the philosopher leaves the regal throne and becomes a mere adviser to the real monarch, he who judges the law from the standpoints of justice. The empirical side of the practical consists of drives, needs, and interests, and its transcendence consists in the negation of these as ultimate grounds of determination. If one now understands the empirical needs and interests as impulses of sensibility and assigns them to a phenomenal world, it then makes excellent sense to speak of a noumenal world where these impulses are negated. Kant’s ontological interpretation of morality remains, therefore, worthy of discussion, but it has only secondary significance for practical metaphysics. Insofar as the theory of categorical imperatives of law takes leave, for the time being at least, of theoretical metaphysics, it fits happily into a program of “ethics without metaphysics” or “postmetaphysical thinking.” Since the theory nevertheless includes another sort of metaphysics, it becomes, to speak paradoxically, a “metaphysics without metaphysics”: it becomes a practical metaphysics that renounces theoretical metaphysics. The idea of an “ethics without theoretical metaphysics” was not in any case invented by Kant; it is already found in the work of the thinker whose writings on fundamental philosophy were, belatedly, given the title Metaphysics. In the Nichomachean Ethics (I.4), Aristotle first criticizes Plato’s theory of the Forms on ontological grounds: he views it as a flimsy piece of theoretical metaphysics. After this he begins anew, grants Plato the theory of the Forms for the sake of argument, and inquires into its genuinely ethical significance. His conclusion is as brusque as it is radical: the Form of the Good is ethically irrelevant. Even if there were a Good that was one and predicated generally or that existed separately in and for itself, this would clearly not be the good for man that is investigated by ethics (NE I.4, 1096b32–35). Philosophical ethics allows that human beings relate to the world in multiple ways and concentrates on the practical relationship that is peculiar to its sphere of application. It claims that there is a nonempirical dimension to this practical relationship, and to begin with it affirms this nonempirical dimension only with respect to this particular way of relating to the world. We call the actual embodiment of the satisfaction of empirical grounds of determination “well-being,” and in the case of groups we call it “social welfare” or “collective well-being.” With this formulation we have finally found the topic of the preliminary examination proper and can move on to the second question: Is there for law and right a ground of determination that transcends collective interests, or social welfare?

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4.2. A Moral Anthropology In his systematic writings on ethics Kant deals with two clearly distinct tasks. On the one hand he investigates the concept and principle of all morality, the general categorical imperative. On the other hand he develops in a doctrine of right and a doctrine of virtue a “system” of substantial moral obligations. He believes that both tasks are to be solved metaphysically, that is, purely rationally. Since the second task follows upon the first, Kant recognizes, from a systematic viewpoint, a primary and a secondary metaphysics. The ethics of law and right belongs to the secondary metaphysics; its theory of categorical imperatives of law is built upon the foundation of the general categorical imperative. According to their prefaces, the first two of the three systematic works on ethics published by Kant, the Grounding and the Critique of Practical Reason, are concerned exclusively with primary metaphysics. It appears accordingly as if the ethics of law and right will be dealt with only in the corresponding portion of the Metaphysics of Morals, the Doctrine of Right. A closer investigation shows this division to be too simple. True, the Grounding proposes to occupy itself with nothing more than “seeking out and establishing the highest principle of morality” (G IV:392/5). Similarly, the second Critique seeks only to “find and determine” the a priori principles of the faculty of desire in order thereby securely to lay the ground for a systematic practical philosophy with the character of a science (C2 V:12/10). Despite these intentions, the foundational writings on ethics venture beyond primary metaphysics in one important respect. In the extensive examples of the Grounding and in the far briefer indications of the Critique of Practical Reason, Kant concerns himself already with the secondary metaphysics whose systematic treatment he had reserved for the later Metaphysics of Morals. It is the second example given in the foundational works, that of the false promise, that is relevant to the realm of law and right. In the Grounding, and also in the second Critique’s variation of the example, the deposition, Kant construes the false promise as a case of dishonesty to another, and, beyond this, a case of dishonesty that aims to take from another what is his. He anticipates in his discussion the legal institutions of contracts and property. In the example of the false promise, Kant not only anticipates the later Doctrine of Right, he also makes its program more precise. In principle, the ethics of law and right could restrict its metaphysical ambitions to the imperative of law in the singular. In this way, the provocation of the program would be reduced, but so also would its fascination, since it would be able to provide orientation only with respect to law and justice as such, leaving the shape of substantial juridical principles to empirical-pragmatic thinking. With the juridical example in the foundational writings, Kant hints at the more ambitious program of categorical imperatives of the law in the plural.

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Someone who thinks that a morality of law and right, because it is metaphysical, must renounce empirical elements root and branch can easily show two things: first, that Kant without doubt set out to fulfill the program of “a completely isolated metaphysics of morals, free of any admixture of anthropology” (G IV:410/my translation), and second, that he just as doubtlessly overextended himself in this enterprise. Already in the examples of the Grounding, elements appear that can in the end only be identified empirically. These elements are indeed of a general nature and beyond this are hardly controversial. All the same, they do fall under the rubric of that empirical anthropology Kant never tired of excluding from a metaphysical ethics (G IV:388/2). A twofold knowledge of this empirical sort is involved in the case of the false promise (see Chapter 7 below for more on this topic). It is not only the “story” Kant tells (of a man in dire straits who can be helped out of them by others like him) that depends upon empirical knowledge, but also the argument he develops; for the knowledge that he who promises thereby gives his word and can give his word insincerely is not of a purely rational kind. Because of these empirical elements Kant seems obviously to fail in his stated objective. Instead of an ethics “wholly cleared of everything which can only be empirical and can only belong to anthropology” (G IV:389/2), Kant’s ethics needs empirical anthropology to play an essential role; and it plays this role not only in the secondary but also in the primary metaphysics of morals. That the moral law constitutes for us a duty, that it confronts us as a categorical imperative, also presupposes a twofold experiential knowledge. It presupposes that there exist beings to whom one can ascribe a faculty of desire with that relationship to itself that is called “practical reason” or “will,” and that the will of these creatures stands under “certain subjective restrictions and hindrances” (G IV:397/9; cf. C1 A 15/B 29). According to this “anthropology from a fundamental ethical perspective,” man is a rational natural being that can be tempted by desires and inclinations. Moreover, he has the potential for evil; for Kant indeed he has a predisposition to it. Insofar as the Grounding anticipates the second level of moral philosophy, it supplements the anthropology from a fundamental ethical perspective with certain elementary situations that put practical reason to the test. These situation types are, in the case of the prohibition against suicide, weariness of life; in the case of the prohibition against false promising, one’s own distress; in the case of the duty to help others, the distress of another; and, in the case of the duty to cultivate one’s talents, sloth. That Kant fails to achieve a metaphysical ethics might be regarded by some critics as a merit. Such critics had feared that the philosopher of the categorical imperative was seeking, as Tugendhat puts it, “to free morality as a whole from

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all contamination with the empirical” (Tugendhat 1984, 87). Instead of this, they now find a colorful bouquet of empirical elements. Kant’s ethics, including the ethics of law and right, appears more plausible than expected, albeit less provocative. The allegedly pure moral philosophy is in fact shot through with anthropological assumptions. If one investigates Kant’s task more thoroughly, however, the contradiction is resolved. Although an appeal to anthropology is indispensable for Kant’s argument, it plays no role in the concept of moral obligation. Anthropology is used only to define the challenge without which the moral imperative has no function; it leaves the content of the imperative itself entirely open. That which the critics bemoan as a false trail and which Kant boasts of as a great merit, the “cleansing” of morality from everything empirical, restricts itself to the aspect of morality that is brought into relief by a practical metaphysics. Kant himself introduces the aspect as an argument; it is the “ground of obligation” (G IV:389/2). The question whether it makes sense to define man by practical reason is already, though not exclusively, an empirical question. But what experience decides is not what the concept of practical reason is, but with what right it can be ascribed to humanity. If we had no right to ascribe practical reason to man, it would follow, not that the concept had changed, but that it lacked application. We also need experience, and beyond this creative imagination, in order to discover the nature of the typical situations with which people must reckon and the possibilities for reaction that they offer. Empirical elements, therefore, are contained in categorical imperatives through and through. But which of the suggested and tentatively considered reactions is moral—that, Kant holds, is no longer empirically conditioned. In short, finding maxims requires experience; but in order to hit upon the moral choice among them, a moment that goes beyond all experience is needed. Because the anthropological elements define the conditions of the application of morality, one can take them to be part of a “moral anthropology.” Nevertheless, it will not correspond to the branch of research that Kant himself calls by that name, the anthropology he introduces as “the other member of the division of practical philosophy as a whole” and accepts as the “counterpart of a metaphysics of morals” (MM VI:217/44). For Kant, what is involved in a moral anthropology is a philosophically subordinate task that we might more aptly call “moral pedagogy.” Kant’s moral anthropology presupposes moral principles as already determined and investigates only the subjective conditions that impede or foster their execution. The new and anti-Kantian sense of “moral anthropology” that I am introducing here belongs to the indispensable stock of the metaphysics of morals itself. Not a counterpart to the metaphysics of morals, but a part of it, the moral

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anthropology in question is of primary, not secondary, significance. It is indeed an integral element even of fundamental ethics. With this concept of a moral anthropology that is essential to moral philosophy, we gain a first result for our second question. Even if Kant is correct to demand a metaphysics for ethics, he overestimates its scope. The program that he develops in the preface to the Grounding and confirms in the “Introduction to the Metaphysics of Morals” (MM VI:211–20/43–45) proves not to be formulated precisely enough, and the missing precision explains certain misunderstandings. Intensely concerned to protect the purity of morality from the stain of any foreign elements, Kant draws a sharp boundary line between the rational and the empirical realms, and this tactic may enable him to do justice to the origin of moral obligation. But he is deceived when he thinks that the entire philosophy of morality is purely rational; in truth, experience is required as well. Moving from the Grounding to a less demanding level of understanding, we would expect that the metaphysical portion of the Doctrine of Right would be correspondingly slighter than that of the foundational text. Granted, Kant here no longer speaks simply of “metaphysics,” but more modestly of “metaphysical first principles.” Only the principles of law qualify as metaphysical; their concretization is left to empirical legal practice. Even this assessment, however, overestimates the achievement of metaphysics and diminishes the importance of experience. Kant believes that “all propositions of law and right are a priori propositions, since they are laws of reason (dictamina rationis)” (DR VI:249/my translation). To be sure, ethics does fall back on “the particular nature of human beings, which is cognized only by experience,” but it does so only where “what can be inferred from universal moral principles” is at issue (DR VI:217/42). In fact, though, anthropological elements enter already into the principles themselves. Whether we consider the categorical principles of law in the singular or in the plural, it is their genuinely moral portion alone, that ground of obligation that transcends needs and interests as the ultimate ground of determination, that is independent of experience. A preliminary examination already confirms this expectation. We find in Kant a twofold counterpoint to the empirical and pragmatic considerations that dominate current thinking about law and right. In addition to the moral element (taken as a metaphysical element), the categorical principles contain once again the building blocks of a moral anthropology. To the degree to which the Doctrine of Right grounds them, human rights flow from the mediation of the idea of morality with just this anthropology. The moral anthropology of law has its systematic

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place behind the anthropology of fundamental ethics. In total, Kant’s ethics of law and right has three layers of anthropology. The first layer belongs to the general categorical imperative. The “fundamental ethical anthropology” preliminary to matters of law and right takes man to be a finite rational being subject to temptation through inclination. Joined to the idea of morality, this level yields the categorical imperative that is neutral with regard to the difference between virtue and the law. The second level has to do with Kant’s unconditional first principle of justice, the categorical principle of law in the singular. This, the anthropology of law in its general part, states the conditions under which the law is needed at all. In essence, it consists of a doctrine of what makes up the social nature of man. The general anthropology of law is nothing other than the most general social anthropology. And because the general ethics of law and right needs no further anthropological presuppositions, it acquires, as we shall see (5.3 below), the status of a fundamental social philosophy. The social anthropological fact presupposed by the imperative of law in the singular is as simple as it is uncontroversial: the natural rational beings in question appear multiply in the same external world. Although this assumption is empirical in nature, it does not call into question the categorical character of the imperative of law, for it has no legitimating force. In the absence of coexistence among natural rational beings, the categorical imperative of law would not give up its obligatoriness, but would instead lose its applicability and become a “moral fiction.” Nevertheless, the assumption is indispensable for the applicability of the imperative. For this reason, the categorical imperative of law contains a twofold claim to validity: in addition to the moral claim, there is the empirical claim: that natural rational beings must coexist. In the empirical portion of the categorical imperative of law lies, furthermore, the ultimate reason for which humans must live with the possibility of conflict. People share the same living space, and because this space is limited, every action has, in principle, consequences for others. The categorical imperative in the plural distinguishes itself from that in the singular through its further empirical claims to validity. The third level, the special anthropology of law, supplements the general anthropology of law. Viewed systematically, the special anthropology of law begins with an element that is given peculiarly short shrift in Kant’s Doctrine of Right: the fact that humans have bodies that are susceptible to injury at the hands of their peers. Only if this is presupposed does it make sense to talk of a human right to life and limb. Kant begins with mine and thine in the external sense, that is, with the institution of property. For the legitimation of property, he presupposes certain specifications

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of the bodily nature of man. The institution of property is intelligible only because man, as a corporeal being, needs a certain amount of space in which to live and also goods to satisfy his needs and interests. Kant’s theory of marriage law rests in turn on the fact of human sexuality, and his theory of family law on the fact that newborns are “nestlings” that require divers kinds of assistance for a prolonged period. His account of family law presupposes as well that no one has put himself into this state of helplessness. All of these elements are again empirical and in addition inalienable for the categorical principles of law. Nevertheless, they determine no more than the conditions of the application of these principles. Moral obligation itself is grounded in a meta-anthropological element, in the demand to shape the anthropological conditions in a moral fashion. It is for this reason alone that categorical principles of law acquire a metaphysical character. Because moral principles carry with them an “absolute necessity,” their obligatoriness must be sought, “a priori, solely in the concepts of pure reason” (G IV:389/2). As with the case of the general categorical imperative, here too it is only the ground of obligation that proves to be independent of experience. All else is “material,” with the methodological significance of empirical facts that receive their characteristic form through the idea of the unconditioned good. Beginning with those elements of the human condition that define the conditions of the application of morality, and continuing through the conditions that determine specific principles of law and right, ethics is determined by an ever richer body of empirical material. Skeptics will be satisfied to see that the categorical imperative does not require one to repair to the single place one feared it could be encountered, to “the realm of the utterly principled, to transcendental cloud-cuckoo-land” (Marquard). Not even the general categorical imperative is purely a priori, and a good deal more from the realm of experience enters into the categorical principles of law. The three levels of a metaphysical ethics oriented toward the law—fundamental ethics, the general and the special ethics of law—are not distinguished from each other by differing degrees of moral obligatoriness, which is the same in each case. From a conceptual or metaethical point of view, a highest level of obligation is at hand: what is demanded, viewed criteriologically or from the standpoint of normative ethics, is universalizability. A difference in moral rank ordering could, however, result from the differentiation, immanent to morality, of perfect and imperfect duties and of duties to oneself and duties to others. Since, however, duties of law and right in the moral sense all belong to the same class, that of the perfect duties owed to others, the possibility of constructing a hierarchy of levels of morality in this way does not obtain. Beyond this, moral obligation is metaphysically identified in the same way: through the thought experiment of universalizing.

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Without doubt, the ethics of law and right has divers ambitions. Assuming that the rigorous concept of morality, and therefore the component of it that is independent of experience, is recognized, the differences will not lie in the amount of independence of experience. It is rather within the moral anthropology that differences between more and less fundamental elements will be found. Because life and limb have priority over property, murder, an offense against life itself, can count as morally more serious than an offense against property; but the grounds of the greater seriousness are anthropological, not moral. At this point, the criticism of the self-ascribed philosophical modesty espoused by Habermas can be made more precise. With his turn to discourse ethics, Habermas wants, not to abandon the theoretically guided critique of society, but to expand its possibilities. Insofar, the “not a judge but an interpreter” thesis must be considered inconsistent with his fundamental aim. Now, one expects from an ethics intended to expand a critique of society that it will identify certain human rights or other substantial principles around which the critique of society can be oriented. The absence of such principles in Habermas is explained, not by his more rigorous abstention from all metaphysics—he still presupposes the idea of the morally good—but by his failure to include a complementary anthropology. In his “Notes on a Program of Justification” (1990b, 103), Habermas indeed comes close to arguing for a situationist ethics. He regards the desire “to conduct a practical discourse . . . without the horizon of the life-world of a particular social group and without practical conflicts in a particular situation” as “pointless.” In truth, there are fundamental practical discourses that precede the situationrelative discourses. These fundamental discourses are conducted exclusively within the horizon of the life-world of the group “Homo sapiens,” and they thematize only those conflicts of action that are given with the human condition. From these fundamental discourses flow the elementary principles of justice, human rights at the forefront. Those who, on the contrary, follow Habermas in erecting only one foundational norm and tying its “application,” the carrying out of practical discourses, to the social conditions that happen to hold sway are denied this possibility of a substantial orientation. Human rights, such as the right to life and limb, admit of various anthropological justifications. In a naturalistic anthropology such as Hobbes’s, life is a goal to which men give priority over all others; it is, as a matter of fact, a dominant desire. The actuality of religious and political martyrs, along with the Friesian motto lewwer duad as slaav (better dead than a slave) and a suicide out of weariness with life, speaks against this hypothesis. Rawls weakens Hobbes’s naturalism by taking life to be a condition of life plans, which is interpreted moreover simply as one condition among others. Rawls has not, however, explained the

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precise nature of this condition. As I have suggested elsewhere (Höffe 1988a, 63 ff., and PJ chap. 12), the explanation required should take the following form. Even one who is not especially attached to life has, consciously or unconsciously, an interest in it. He has this interest because without life he can neither desire anything nor strive to fulfill any desires he might have. Life is a presupposition of practically oriented desire, and therefore a condition of the capacity to act, independent of the content of that for which one strives or which one avoids. According to this argument, life is a higher-order interest; indeed it is a highestorder, no longer substitutable interest. As a condition of the possibility of man’s being a creature that can act at all, life has a transcendental significance, albeit a transcendental significance that is not theoretical but practical; what is made possible is not the knowing but the acting subject. In this sense, he who contemplates taking his own life wants to decide himself whether and when he is weary of life, and the religious or political martyr wants himself to decide the cause for which he sacrifices himself, a sacrifice he wants to make in order to remain true to his convictions, and not, for example, in order to be killed by robbers. In the special anthropology of the law, the point is not to give a naturalistic definition of the essence of humanity but to identify those elementary and at the same time not substitutable interests that have a transcendental significance relative to the capacity to act. One can, if one likes, somewhat ambitiously call this part of the metaphysics-supplementing anthropology a “transcendental anthropology.” By contrast, the fundamental anthropology of law rests on a contingent fact: humans must share the same external world with their peers.

4.3. Aristotle or Kant? Because Kant’s ethics of law and right cannot get by without an anthropology, there is a certain contradiction between the program of this ethics and its actual execution. This contradiction is, however, more subtle than that between metaphysics and the empirical. According to the program, a pure a priori must stand in the middle of ethics. A moment of this sort, independent of any anthropology, does indeed appear in Kant’s theory. It is the idea of a good “without qualification,” that is, an unconditioned good. Kant speaks, for example, of an “intrinsic unconditional worth” (G IV:394/7) and of a “good in itself” (IV:396/9), and he traces its profile by contrast as well. But he does not turn the idea into an object of investigation. Beginning with the famous opening sentence of the Grounding (IV:392/7), the idea is presupposed, but it is just as little thematized as the anthropological a posteriori.

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In Ethics and the Limits of Philosophy (1985), Bernard Williams develops an antifoundational and antireductionist ethics. He holds that there exists neither a group of moral categories that are foundational for all human activity nor a procedure for tracing back all moral thinking to a group of categories of that sort. Neither view is consonant with Kant’s outlook. In his work we find a concept that is foundational for all moral practice. This concept is, however, much more formal than one tends to expect such a concept to be, and it is seldom treated at this level of formality. With the pathos of Martin Heidegger, we might say that we are not yet thinking the origin of morality deeply enough; it lies not in the good will, but in the unconditioned good. Kant concerns himself exclusively with that relative a priori that results from the mediation of the unconditioned good with the moral anthropology. Kant’s ethical thought needs in this respect to be newly evaluated. The sharp contrast set forth in the program, the opposition between the a priori and the a posteriori, is superseded (aufgehoben) in the execution. To be sure, Kant himself had noted this in the first Critique. In a passage that remains in the second edition of the work, which appeared after the publication of the Grounding, he affirms that “the supreme principles of morality and their foundational concepts are known a priori,” while at the same time acknowledging that they “contain in themselves something empirical, [namely] the concepts of pleasure and displeasure, of desires and inclinations and so forth” (C1 A 14/ B29). But in the formulation of his program for ethics, Kant did not make allowance for this insight. The idea of a pure moral philosophy developed in the preface to the Grounding does not draw attention to the connection between the a priori and the a posteriori. This deficiency should not be overestimated, for it concerns only the formulation of the program. A more consequential deficiency is Kant’s failure to notice that ethics includes a moment that is wholly independent of anthropology and the empirical realm. This moment escapes his attention not only in the formulation but also in the execution. In the first Critique, Kant includes in transcendental philosophy exclusively “the worldly wisdom of pure, entirely speculative reason.” His reason for excluding practical reason from transcendental philosophy is its above-mentioned combination of the empirical and the a priori: for “everything practical” rests upon feelings, which “are empirical sources of knowledge” (C1 A 15/B 29). Ethics could, however, enter into that transcendental philosophy that deals with the absolutely pure a priori. The idea of the unconditioned good is not concerned with feelings, but is nevertheless concerned with the practical; the idea gives us the highest possible form of evaluating practice. Because the idea of the unconditioned good—and in the realm of the practical this idea alone—is purely a priori, there is indeed a practical transcendental

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philosophy, and it is coextensive with that part of ethics that is metaphysical in the strict sense. The idea of the unconditioned good forms the genuine first level of Kantian morality, not, as we assume as a rule, the general categorical imperative. Kant himself presses this level into service, but he manages at best a fragmentary justification of it. A thorough justification of this first level of morality would have to show why anyone who evaluates human practices thereby raises a question that reaches completion only in the idea of the unconditioned good. In accordance with the idea of a transcendental critique, the justification would proceed in two stages. The metaphysical argument in a narrow sense shows that to evaluate something as good in an unconditioned way surpasses all empirical grounds of determination; the transcendental argument establishes that the idea of the unconditioned good is a condition of practical objectivity. Kant did undertake the beginnings of such a justification, for he showed that the question of the rationality of action, although it begins with technical and pragmatic rationality, cannot be satisfactorily answered with these concepts alone. Furthermore, the third level of rationality that is needed—that of presuppositionless and therefore categorical obligation— is not in turn susceptible to being outstripped. Because an obligation of this sort transcends all empirical grounds of determination, it has on the one hand a preempirical, indeed metaphysical, character. On the other hand, what makes a preempirical ground of determination possible is that a practice is objective in a rigorous sense, that is, necessarily and without exception valid. In the “on the one hand,” the metaphysical argument is signaled, and in the “on the other hand,” the transcendental argument. Since this double argument lies beyond the bounds of the idea of a categorical imperative of the law, a closer examination of it does not come within the purview of this study. A brief reference to an important present-day Kantian, namely Rawls (see 11.2 below), will nevertheless not be out of place. Rawls takes his theory of justice to be both Kantian and nonmetaphysical. He derives his principles of justice from a rational choice, and therefore from self-interest. Since self-interest is nothing other than the epitome of empirical grounds of determination, these principles do appear to be nonmetaphysical. The choice, however, takes place under ideal conditions. The most important of these is a paucity of knowledge. In accordance with the veil of ignorance, one is to know neither one’s personal situation nor that of the society in which one is to live. As a result, the ground of determination lies in a self-interest that lacks all knowledge of self. What is left is a self-interest defined by the negation of the self, a self-interest without a self, or a general interest that as such is no longer empirical in nature. Against his own desire, Rawls’s theory of justice is metaphysical, albeit only in

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the practical sense. Whether this practical metaphysics can dispense with Kant’s doctrine of the two worlds, which is what concerns Rawls (cf. Rawls 1975), is, I have suggested, a question that can be left open. The customary thesis is that metaphysics is impossible, or at least has long been left behind. Kant, by contrast, holds that metaphysics is necessary. In the Prolegomena (IV:367/121) he goes so far as to compare its necessity with that of drawing breath. This comparison, which looks at first like a wild exaggeration in the case of ethics, appears now as at most a moderate hyperbole, a rhetorical intensification. The idea of the unconditioned good, which is indispensable for the strict concept of morality, belongs namely to practical metaphysics. At the same time nothing more than this idea belongs to practical metaphysics. By contrast, the moral philosophy worked out by Kant mediates the idea of the unconditioned good with a moral anthropology; it consists of a relative a priori and a relative metaphysics (cf. C1 B 3, where Kant distinguishes between a pure and an impure a priori). A comparison with Aristotle confirms the nonmetaphysical elements in Kant’s moral thought and shows at the same time where the real differences between ancient and modern ethics lie. The two epochs are not distinguished by the idea of the unconditioned good itself. Aristotle lays claim to it as well as Kant. In each epoch, however, the idea is connected with a different anthropology and theory of action. The unconditioned good takes on a different shape according to the structural model of action that underlies it. If, with Aristotle, one understands action as a spontaneous dash toward a goal, as a striving (orexis), then the idea of the unconditioned good will demand that orientation toward a goal be extrapolated to its complete fulfillment. The unconditioned good will become a goal that cannot be outstripped for reasons of principle; it will become happiness in the sense of a fulfillment of all striving as such. When Aristotle identifies happiness as telos teleiotaton (the most complete goal), he thinks of it as something analogous to what will later be called the ontological concept of God, as an absolutely highest. For Aristotle, however, happiness is not the highest in the sense of an object, it is not that “entity than which none greater can be thought,” but rather the highest of everything desired. In Aristotle’s formal determination, “happiness” is the concept, formed by way of increasing generality, of a goal beyond which no further goal can be thought (cf. NE I.5). Once again we have a metaphysical concept, but once again it is metaphysical only in the sense of a genuinely practical metaphysics, which corresponds to a preempirical ground of moral action. If one is to interpret human action as striving, one must presuppose certain goals, which are determined either by natural needs and passions or by lived

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morality and custom. In moral phenomena such as a protest in the name of human rights, preexisting goals become matters of choice rather than unreflective assumption. An occurrence of this sort issues from a distance between oneself and one’s striving and founds the modern concept of the will. For the law, the relevant concept is that of the general will. In a world that has freed itself from the cosmically centered thinking of the ancients, it is through the will that possible goals become actual ones and that some goals are accepted and others rejected. In this way the will is responsible for founding a political order, which, as the case may be, is morally legitimate or illegitimate. Supporters of “affirmative critique” have been trying lately to play common customs and habits (in other words, Aristotle) off against universal principles (in other words, Kant). Marquard’s defense of the commonplace and everyday (1991, 113–18) helps us to assess more precisely the difference between an ethics oriented around striving and an ethics oriented around the will. Insofar as a striving-oriented ethics is mediated by lived morality and custom, Marquard appeals to Aristotle with good reason. On the other hand, we found in Aristotle (2.2 above) a judicative critique in the form of the distinction between the just and the unjust. Viewed systematically, this distinction, which unfolds on various levels, begins in ethics with things already given, with habits or a “system” of habits, a form of life. Since he is not, as a philosopher, responsible for “positive” distinctions, Aristotle bypasses the details of such habits and forms of life. What interests him is the relatively suprapositive question, Which forms of life make a successful life possible, and which forms are condemned to failure for structural reasons? Since this distinction between successful and unsuccessful lives bridges the beginning of the Nichomachean Ethics (NE I.2) with its end (X.6–8), Marquard’s “either-or”—either common customs and habits, and then Aristotle, or universal principles, and then Kant—is shown to be too simple, not only from the point of view of systematic moral philosophy but also from the point of view of Aristotle’s text. Before he undertakes the enterprise to which he is supposed to lend his authority, that of defending a substantial morality—translated into today’s terms, before he sets himself against Kant and discourse ethics—Aristotle carries out a critique that is at once judicative (that is, concerned with judgment) and suprapositive. He rejects the life of pleasure and luxurious consumption, as well as the life of business, the “spirit of capitalism” as it might be called, but legitimates the moral-political and the theoretical forms of life. Now, Marquard’s concern is ultimately not the interpretation of a classical philosopher but the systematic discussion of ethics. In this context, his apology for the commonplace and everyday could either fit into an ethics oriented around

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the will or could free itself of such an ethics. In the first case, Marquard would acknowledge the modern concepts of the moral subject and political legitimation, but would argue that if moral principles are to be more than mere words, they must provide stability. For the people who hold them, moral principles must acquire the fixity of moral stance and attitude that used to be called virtue. With regard to the law and the state, Marquard supports institutional precautions, above all else a division of powers. But someone in search of this double stabilization need not make special appeal to Aristotle or set himself against Kant. For it is maxims, that is, rules of action that have become fundamental attitudes, that are tested for morality by Kant’s moral principle. And Kant, in his ethics of the state, is no less in favor of a division of powers than is Marquard. In addition, a defense of the commonplace and everyday must be supplemented by a defense of moral rightness. For the point is not that any arbitrary custom should be in place but, for example, that it should be usual and normal to be prepared to help others rather than to be indifferent to their plight. With regard to a juridical order, matters such as the permission or prohibition of slavery and the protection or suppression of freedom of opinion and expression are decisive. Marquard indeed lacks a criterion of morality altogether and thereby retreats not only behind Kant but also behind Aristotle. Indifferent to the question of morality, Marquard actually practices what Luhmann erroneously claims to be a mark of the modern: a clear release from morality. In Aristotle’s doctrine of virtue we find, to the contrary, a “moralizing” of the commonplace and everyday. With the distinction between moral and nonmoral fundamental attitudes, Aristotle engages in the critique of forms of life; and although in the Politics he does hold slavery to be legitimate, in the so-called doctrine of the forms of state he argues against a morally neutral state and on behalf of a constitution committed to the common good. In short, Marquard’s defense of the commonplace and everyday does not have the central property ascribed to it by admirers and detractors alike, for it simply is not Aristotelian, not even “neo-Aristotelian.” With categorical principles of law, Kant raises the moral standards required for political legitimacy. Beyond the principle valued by Marquard, the division of powers, he supports a second “normal custom,” human rights. The notion of human rights brings with it a more precise sense than Aristotle had of what in an elementary sense is to be understood by the idea of “the common good,” namely, a general good that is distributive, not collective, a good that benefits each individual. This distributively general good consists, for example, in rights that are valid for each human being simply in virtue of being human. By comparison with the political principle so highly esteemed by Marquard, that of the division of

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powers, human rights are to be ascribed a systematic priority. For states owe their legitimacy above all to their ability to guarantee human rights, while the division of powers has the important but subsidiary task of diminishing the danger of the abuse of state power. To return to the difference between Aristotelian and Kantian ethics, it does not lie in their “metaphysical” components. In both cases, for Aristotle as much as for Kant, metaphysics plays a role in ethics primarily in a practical, not a theoretical, sense. And both philosophers subscribe to the same modest metaphysical idea, that of an unconditioned good. The difference between the two outlooks, by contrast, lies in the realm of anthropology and the theory of action. Aristotle here represents the ancient conception of practice as oriented toward the absolutely highest goal, while Kant is on the side of the moderns who think of practice from the point of view of an absolutely first beginning. There are good reasons to try to rehabilitate Aristotle’s ethics; but because of the difference just noted, it can, as a premodern ethics of striving, be rehabilitated only at the cost of giving up the concept of the will. Not even the great neo-Aristotelian Hegel was prepared to pay this price. For Aristotle, as for Kant, it is only the ground of obligation, the idea of a highest level from which practice is judged, that is truly independent of experience. Everything else within Kant’s ethics is interwoven with experience. In no way does Kant take leave of reality. Experience in Kantian ethics begins with the concept of the will, is included in the concepts of duty and the categorical imperative, and leads finally to the substantial principles of law and virtue. In the categorical imperative—“Act according to universalizable maxims!”—the purely rational element, the ground of obligation, is restricted to the universalization. The two other elements, by contrast, the imperatival character itself (“Act according to . . . !”) and, more clearly still, the object of universalization (“according to . . . maxims”), depend upon a certain sort of experience. The experience in question is certainly of a very general character and permits philosophers, without laying claim to a privileged access to the truth, and within limits to be sure, to be “experts” on principles of justice.

4.4. The Integration of Experience Because it is connected to an anthropology, metaphysical ethics is able to defuse a number of objections. Even so, certain reservations remain, and they are directed precisely at the metaphysical side of the package. It is, for example, feared

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that an experience-free examination of maxims underestimates the complexity of human action and encourages that self-satisfied moralism that is open neither to one’s own experience of life nor to the arguments of one’s peers. Instead of taking in with one’s “natural thirst for knowledge” the colorful multiplicity of the world, one hurries too quickly to principles, and with the help of principles, one tends all too readily to play the judge, and that leads to hasty judgments and condemnations (cf. Lübbe). One part of this objection becomes untenable as soon as one distinguishes two levels of application of the categorical imperative. These two levels correspond to the two fundamentally different meanings given to the term “application” in the preface to the Grounding. On the first level, moral duties are justified with the help of universalization, for example, the injunction to help others (G IV:392/5). On the second level, duties are contextualized, so that, for example, the injunction to help others will be concretized in a manner appropriate to a particular situation (G IV:389/3). While Kant allows no empirical knowledge to enter into the first level, the thought experiment of universalizing one’s maxim, he demands for the second level of application “a power of judgement sharpened by experience” (G IV:389/3). It is precisely this demand that contradicts “self-satisfied moralism.” Because duties require contextualization, the categorical imperative’s orientation toward action is weakened, and metaphysical ethics is unable to free a moral conduct of life from uncertainty. One might find in the remaining uncertainty a diminished attractiveness. The categorical imperative, according to a popular criticism, is abstract and distant from life. In fact, it is distinguished by just the sort of “precision” that is appropriate to practical philosophy. The concept of this sort of precision stems from Aristotle; once again the widely accepted alternative “Kant or Aristotle” needs to be relativized. In the Nichomachean Ethics (I.1, 1094b), Aristotle mentions a particular form of knowledge, the draft-sketch or outline (tupo) knowledge that brings invariable normative elements into relief while at the same time putting into play historical and individual particularities, that is, the ever varying circumstances of life (cf. Höffe 1971, pt. 2; PJ 2.2). Because the job of the categorical imperative is simply to identify principles or maxims as moral, leaving to action itself the task of “translating” them into concrete practice, Kant also contents himself with an outline knowledge. With this outline knowledge Kant draws attention to a kernel shared by all moral practice and yet escapes the danger of understanding moral action exclusively as something universal. Because moral maxims give no more than an outline, they offer a pointed challenge to the other moment, the unmistakable individuality (and it is in this way that Kant escapes the Lyotardian critique of the concept of the universal).

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The connection to action is in any case tighter for the class of duties to which the categorical principles of law belong, the perfect duties, than it is for the imperfect duties. While the law prohibits individual actions, so that, for example, each and every false promise falls under the prohibition against false promising, imperfect duties only enjoin certain attitudes toward life, for example, the readiness to help others. Because of this difference, a different amount of experience is required in each of the two cases, from which it follows that earlier accounts of Kant’s concept of a maxim (Bittner 1974 and Höffe 1987, both having recourse to Höffe 1971) must be modified. In the case of perfect duties, the “power of judgement sharpened by experience” is needed for only two things, “partly in order to distinguish in what cases they are applicable, and partly to gain for them access to the human will” (G IV:389/3). In the case of the imperfect duties, by contrast, experience serves also to “contextualize” the duty. In Hegel’s essay on natural law, he rejected the categorical imperative as a “production of tautologies.” Max Scheler speaks of an “empty and barren formalism” (1973, xxiii), and both criticisms have often been repeated since in many variations. In order to escape this criticism and to ground a material ethics by Kantian means, one is naturally attracted to the formulation that Kant himself calls “material.” But however interesting this formulation, of man as an end in himself, is, it too is insufficient to ground a truly material ethics. This point holds both for the anticipations of the Metaphysics of Morals in the examples from the Grounding and for the Metaphysics of Morals itself: if duties of right and virtue are to be justified, the categorical imperative must be mediated by anthropological elements, and if one makes appeal to these anthropological elements, one will find a material ethics also with the aid of the formal formulation of the categorical imperative, the formulation of sheer universalization or natural law. The point can be formulated in terms closer to Hegel’s: in categorical principles of law is and ought are gathered in an original unity, and because the ethics of law and right has no object other than this unity, it must attend to both aspects, to the normative as to the anthropological. Since this new interpretation of Kant holds that the moral perspective is combined with an anthropology, it also fulfills the demands made on ethics by the theory of knowledge. In order to avoid the fallacy of inferring from an is to an ought, Kant argues from more than merely empirical premises, while he appeals to more than normative ethics in order to escape a “moralistic fallacy.” So the objection made by Ernst Tugendhat against Kant’s ethics in general, and by H. G. Deggau (1983, 109) against his ethics of law and right in particular, can be defused. A philosophy of the categorical imperative can quite well integrate experience into moral theory.

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We even find in Kant a fitting expression for the integration of experience into theory in this area, albeit one that is no less obsolete than the term “metaphysics,” namely the expression “natural law.” The term “natural law” is, moreover, just as ambiguous, and in a similar way, as the term “metaphysics” (cf. PJ chap. 4). In Kant’s work, however, it receives a sufficiently clear definition. He calls natural law that part of the law—independent of the will of the legislator—that rests on pure a priori principles (DR VI:229/55). Because its legitimating ground lies in practical reason, natural law is “rational law” and falls together with the ethics of law and right as critical metaphysics. It introduces no provocation beyond that present in such a metaphysics. The provisos that limit the metaphysical character of Kant’s theory of law apply also to his concept of natural law as rational law. It is not the princi-ples of natural law that are a priori or rational, but the grounds of their validity alone. If one understands by “nature” those elements that are beyond human control, then we find that Kant’s theory of categorical principles of law, like other serious theories of the sort, contains the notion of a kind of law that can be called “natural” in two senses. Human rights are in the first place “natural” in that normative sense in which they provide a moral yardstick against which positive law can be measured. While Kant remarks upon this legitimating side of the notion, he does not see that his ethics of law and right is also “natural” in a second, descriptive sense. The empirical component of the theory belongs to anthropology, and therefore to conditions of which we can acquire knowledge only through experience and over which, despite our knowledge, we lack control. Among the vicissitudes with which man must live, the conditio humana forms the foundational element. Anthropological conditions of human life are a contingency that lies before all human history. As Kant overestimates the metaphysical character of his ethics of law and right, so he underestimates the naturalism present in natural law, and the two mistaken evaluations share a common cause: they operate with an overly simple alternative. To say that philosophy is either “founded on experience” or else “sets forth its doctrines as founded entirely on a priori principles” (G IV:388/1) is to elide the anthropology of law as an intermediate link. Those who introduce the intermediate level, and therefore not so much correct Kant’s Doctrine of Right as weaken its self-understanding as metaphysics, can overcome a popular opposition. Many are inclined to label the natural law of the modern era “rationalistic” and are opposed to the anthropological natural law of the older tradition. While critics of modernity accuse modern natural law of a rationalistic reductionism, its defenders take its overcoming the naturalism of a merely anthropological natural law to be a mark in its favor. The facts of the matter are that rationalistic natural

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law and anthropological natural law form a unity in the modern era and that only out of the unity can human rights as categorical principles of law be justified. The expression “rational law” puts the emphasis only on the one side of a categorical theory of law, its a priori and genuinely moral character. Because the expression “natural law” can, by contrast, be taken in an anthropological as well as a moral sense, the principles that are indispensable for modern legal culture are more aptly designated by it. The philosopher of categorical principles of law lapidarily called the theory of such things, the ethics of law and right, metaphysical. In truth, it combines metaphysics and anthropology.

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5 THE CATEGORICAL IMPERATIVE OF LAW IN THE SINGULAR

Thematically, the notion of a categorical imperative of law fits smoothly into Kant’s practical philosophy; but the expression itself does not appear in the relevant texts. In the case of the Grounding and the other foundational writings, the absence of such a formulation might be explained by appeal to the exclusive concern of those texts with morality in the strict sense, together with the circumstance that the concept of law abstracts from morality in this sense. In addition, an imperative of law has characteristic conditions of application that cannot be developed until the subject of an ethics specifically of law and right has been broached. So it is astonishing to find the expression absent also from the general part of the ethics of law and right, the “Introduction to the Doctrine of Right.” The analogous “Introduction to the Doctrine of Virtue,” by contrast, identifies its supreme principle as the categorical imperative (DV VI:395/98).

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It would, however, be premature to speak of a clearly negative result. For aside from the imperatival mode, the categorical imperative is equivalent to the moral law, and Kant does not always scrupulously observe the terminological distinction between an imperative and a law. In the title of section 7 of the second Critique, Kant announces a discussion of “the fundamental law of pure practical reason,” which is to say, the moral law; in the text he formulates the categorical imperative (C2 V:30/28). Because of this, the imperative we are looking for might be hidden under a different label. In fact, the “Introduction to the Doctrine of Right” does contain a number of different moral determinations of the law, and in each of them morality has a categorical significance. The categorical imperative of law we are after is found in three forms: first, albeit formulated in the indicative mood, as the universal concept of law (B); second, as the universal principle of law (C; cf. the addendum to the DR VI:371/176); and finally, as the universal law of just legislation, this time in the imperative form. Even if we take all three forms together, the text in which they appear, sections B and C of the “Introduction to the Doctrine of Right,” is very short. Consequently, the extent of the discussion already precludes us from the expecting the high degree of clarity that emerges from a step-by-step elaboration of fundamental ideas and beyond this an exploration of certain branchings of the argument and a warding off of likely misunderstandings. But those who approach the compact text with systematic questions will find in various passages an awareness of the issues that is fully capable of being defended even today. Philosophy, unlike mathematics, cannot begin with definitions, but must develop its concepts from the subject matter itself. In the case of the moral concept of law and the categorical imperative of law, the subject matter has two “moments.” Formally, it is moral obligatoriness that is at issue, legitimacy rather than legality in a statutory sense. Now, the genuinely moral moment is familiar from the ethical prolegomena, and it is in addition called upon in the general section of the Metaphysics of Morals, in the introduction that precedes the special sections of that work, the Doctrine of Right and the Doctrine of Virtue. Kant is right, therefore, to begin with the determination of the material moment, with the conditions of application that correspond to the anthropology of law (DR VI:229–30/55–56).

5.1. The Anthropological Foundation The law’s conditions of application constitute a response to the question, For what is the law responsible? This question can mean different things. It can look toward matters for which it is permissible to assign responsibility to the law, or

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toward matters for which it is advisable so to assign responsibility, or, finally, toward matters for which such an assignment of responsibility is necessary. Working without distinctions of this sort, Kant presents the law’s conditions of application in the form of brief, highly compressed theses, without extensive discussion of problematic issues. A more detailed interpretation is required in order to understand the sense and importance of his definition and to discover the reasons that tell in its favor. The question, Is there a humanly unavoidable social relationship? is found to be an unspoken idée directrice of Kant’s argument. Kant himself speaks of “an unavoidable being beside one another” during his discussion of the transition from private to public law (DR VI:307/my translation). So what is at issue is something elementary, something for which the law must be responsible. Kant develops this idea in three steps. First, the moral conception of law concerns “only the external and practical relations of one person to another insofar as their actions, as deeds, can have (direct or indirect) influence on one another” (DR VI:230/56). Three moments of this complex determination need to be emphasized. A. The first moment is valid for ethics as a whole. Whether one is dealing with external legislation, as in matters of law and right, or with internal legislation, as in the Doctrine of Virtue, it makes sense to appeal to moral obligation only where persons, not things, are concerned. For Kant, persons are subjects to whom accountability, and therefore intentional action, can be ascribed (DR VI:223/56). That there are beings accountable for their actions and that humans, but not beasts, are among them can only be known from experience, and because of this, empirical knowledge enters into the conditions of the law’s application from the beginning. Despite the title, even the “first principles of the doctrine of right” are not purely metaphysical. Nevertheless, the experience to which Kant appeals is part of an invariant human condition. One could, therefore, supply the missing argument by saying that because humans are endowed with the capacity for speech and thought, we ascribe to them accountability for and freedom of action. One would, however, have to add an “in principle” clause, since there are a sufficient number of humans not yet accountable for their actions and even some who do not become so accountable for the length of their lives and yet again others who temporarily or enduringly enjoy only a diminished accountability. For the concept of law, it is equally important that Kant remain satisfied with accountability. While the freedom of the will is required for virtue, the law is content with a more modest conception of freedom, precisely the concept of “negative freedom”—the freedom to do what one wants and refrain from doing what one does not want—against which Kant, according to Isaiah Berlin’s famous criticism (1969, 37 ff.), is supposed to have been hostile. In consequence, the

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manifold criticisms of Kant’s idea of the freedom of the will and the partly argumentative, partly nonargumentative rejection of it could all be true and defensible without, contrary to the belief of the critics, affecting Kant’s ethics as a whole. In line with the “emancipation of the law from disposition” (see 3.3 above), the ethics of law and right dispenses with the supposition that those subject to the law act autonomously. B. One suitably competent subject alone does not make up a situation in which the law is required. Even if persons can suffer internal conflicts, problems of law and right arise only when several of them stand to one another in a relationship that is not exclusively aesthetic or theoretical and contemplative but, rather, practical. Such people live in the same external world and can therefore not avoid reciprocally influencing each other through their actions (cf. DR VI:307–11/121–23). C. That human coexistence is never merely an aesthetic or theoretical affair depends upon two further conditions, which, like the first pair, are empirical in nature. In the first place, the external world is bounded, and “the earth’s surface is not unlimited, but closed” (DR VI:311/123). Second, persons are not pure intelligences; they have bodies that already because of their extension lay claim to a part of the common world. In addition, corporeal beings have needs and interests, for the satisfaction of which they need goods, and in order to obtain them, people intervene in the common world in manifold ways. Taking the three component elements together, we arrive at the first condition of application as a whole. With this condition, the practical coexistence of subjects accountable for their actions, Kant brings what is decisive into relief with brilliant clarity and renders the discussion of additional questions superfluous. Kant separates from the moral conception of the law the whole quarrel— ignited in connection with Hobbes, and anthropological and also partly social and historical-philosophical in character—over the question why people influence each other, and beyond this whether the reciprocal influence is friendly or hostile and what the reasons are for potential hostility. But he does not simply set aside the whole of anthropology. He concentrates on that which the key word demands, on invariant conditions of human being. Within the framework of these conditions, he emphasizes an unavoidable social relationship. By arguing in this way, Kant undermines the sort of objection that has repeatedly been formulated, from the earliest reception through Borkenau to Macpherson, against Hobbes, the first great modern philosopher of law. Kant’s social anthropological assumptions do not depend upon the social and economic conditions of a bourgeois competitive society. Through its systematic simplicity, Kant’s argument achieves both greater persuasive power and philosophical elegance. This is overlooked by those who fol-

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low Schopenhauer (World as Will and Representation, I.4:62) in seeing in the Doctrine of Right a third-rate work, to be explained away as the product of the author’s enfeeblement from old age. To be sure, Kant’s ethics of law and right is found in a highly compressed and indeed arid text. But the elegance that is decisive to a philosopher is argumentative and conceptual, not stylistic, and the former sort of elegance is not foreign to the Doctrine of Right. For in that work Kant is successful in leading the argument to the core of the matter, whereby he not only simplifies things significantly but also renders untenable a second sort of criticism, that which proceeds from the assumption, very popular in the evaluation of philosophies of law and the state, of an anthropological relativism. According to this view, divers justifications of law depend upon divers images of man, among which argument can no longer decide. In the end we would be left with an anthropological relativism (with respect at least to the anthropology of law), and an objective justification of the law would, by contrast, not be possible. With respect to the first condition of the law’s application, the difference between Kant and other philosophers—among his contemporaries, between him and Mendelssohn, for example—does not lie in “the diversity of their images of man” (Altmann 1981, 43), but in the differing depths of their respective fundamental reflection. According to its second condition of application, the law is concerned, not with “the relationship of choice and the capacity for it (Willkür) to desire (and consequently to mere need) . . . , but exclusively with the relationship of one’s own choices to those of others” (DR VI:230/my translation). Kant’s emphasis on choice and voluntary agency, and therefore on the freedom to act rather than the freedom of the will required for autonomy, agrees with his taking accountability as a starting point for his theory. In addition, while one can desire something one is incapable of attaining, choice concerns itself only with that which one believes oneself capable of attaining through action. Since the law is directed toward actions as facts and toward their reciprocal influence, while mere desires remain inward, Kant does well to begin with the freedom to act. Different inner worlds, no matter how heterogeneous, can exist beside one another without problems. It is a shared external world that creates an unavoidable task for the law. Kant subsumes needs under the notion of desire he sets outside the scope of the law, and therefore also so subsumes, even if he does not say so explicitly, their fulfillment, happiness. According to Kant, the law is not responsible for caring for the well-being of fellow humans, for “actions of beneficence or callousness” (DR VI: 230/56). In the second part of “On the Common Saying: ‘This May Be True in Theory, but It Does Not Apply in Practice,’” Kant set himself against Hobbes and thereby clearly emphasized his own concept of the law, which excludes everything

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to do with “the aim of achieving happiness” (VIII:289/73). The difference between Hobbes and Kant is frequently located in their differing conceptions of morality. In truth, Hobbes, with the idea of reciprocity and equality, upholds in the second law of nature a moral principle very close to Kant’s criterion of universal legislation. There is, by contrast, a difference between the two philosophers on the descriptive side, with regard to the law’s conditions of application. Hobbes, however, does not fall so unambiguously into the group of positions to be criticized, as Kant makes it sound. For although Hobbes does begin with the natural desire for self-preservation and happiness, he speaks only of freedom in the decisive second part of the second law of nature (Leviathan, chap. 14). In substance, Kant opposes a utilitarian theory of law. In the utilitarian criterion of “the good of all concerned,” the conceptual difference between need and choice is elided. According to Kant, this elision blurs the difference between legitimate law and the duties of benevolence enjoined by virtue (cf. DR VI:230/56). Only the relationship to voluntary agency fulfills, moreover, the guiding condition of unavoidable coexistence. One can very well disregard the sheer needs of others, but in light of the same external world it is impossible in principle to remove oneself from all effects of the voluntary agency of others. Since Kant was scarcely aware of Bentham and his systematic exposition of utilitarianism, An Introduction to the Principles of Morals and Legislation (1789), his criticism, viewed historically, is directed against Wolff and Mendelssohn rather than against actual utilitarians. For in the works of these last two, a juridical and political order is very much responsible for the officia humana and therefore for the duties of brotherly love and solidarity. Kant’s implicit critique of utilitarianism has significance not only for legal theory but also for legal policy. It excludes the tasks of the social-welfare state from the moral concept of the law, thus turning Kant into an exponent of political liberalism. At best, the development of the welfare state would be legitimate for Kant in a pragmatic sense, “as a means of securing the rightful state,” both inwardly and outwardly, “against external enemies” (TP VIII:298/80, emphasis deleted). A Kantian argument in favor of the welfare state might also be sought in the command not to humiliate others. In virtue of this command, Kant concludes that acts of beneficence (Wohltätigkeit) must be conducted “as if our help is either merely what is due [to the recipient of aid] or but a slight service of love” (DV VI: 449/243). Kant, however, holds this command to be a duty of virtue only. Further considerations are important for a systematic evaluation of Kant’s concept of the law. To begin with, it might be objected that, in view of the fact that a significant proportion of our voluntary agency operates in the service of our needs,

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Kant draws too sharp a conceptual distinction between the power of arbitrary choice on the one hand and need on the other. To this objection, he would retort that when needs lead to particular actions, they are compatible with his concept of law, and when they remain inward, they do not, in the first instance, pose any problems of law or right. Matters are different with respect to a second objection, according to which freedom of action is, as Kant himself notes in his theory of property, tied to an “external mine and thine.” Those who call nothing their own, who, like certain among the severely handicapped, do not even have labor power to offer, will enjoy real freedom of action only when they are enabled to achieve the necessary level of social welfare. Finally, freedom of action is a comparative concept, and the degree to which it is real depends on economic power and intellectual capacity, not least on psychic stability, and sometimes even on a readiness to press one’s interests without reservation against the claims of others. Because considerations of this sort are absent from Kant’s critique of the social-welfare state, justified doubts can be raised about his own final position. But we will also see that the categorical imperative of law need not be interpreted in a sense that entails political liberalism. According to the third condition of application, it is the form, not the matter, of reciprocal transactions among voluntary agents that is significant for the ethics of law (DR VI:230/56). What Kant means by this easily misleading formula becomes clear from the example he gives to illustrate it. According to the example, the law does not ask of someone who has purchased a piece of merchandise whether it was to his advantage to do so. Here, voluntary agency is exercised in buying and selling, the reciprocal transaction is the exchange of money and merchandise, the material of choice is the aims pursued by the parties to the exchange, and the form of the reciprocal transaction consists in the fact that the exchange took place voluntarily (“freely”) and wittingly on both sides, without force or fraud. The exclusion of the matter of choice from the purview of law and right can be justified from the moral perspective, since for Kant the exclusion of matter and the concentration on form is constitutive of that perspective (cf. C2 V:21–28/19–26). The fact that exchanges can take place under duress and fraudulently and thus take on a nonmoral form speaks, however, against this conjecture. Kant in the first instance uses a different concept of form. The justification of his thesis is to be sought in the premoral element of the law. Since the categorical imperative of law concerns an unavoidable social relationship, it can leave interests out of consideration insofar as they do not influence the manner of action.

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5.2. The Principle of Human Rights To consider the coexistence of persons accountable for their actions from the standpoint of morality while acknowledging the Kantian criterion of morality, universal legislation, is to achieve the moral conception of law and right— in Kant’s much quoted formulation: “Right is therefore the sum of the conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom” (DR VI:230/56). In its lapidary brevity, this sentence can be misunderstood and demands further elaboration. To begin with, the previously stated qualification remains in force. Although Kant speaks of the law as it “is,” he is not defining positive law but rather is presenting its “moral concept” (DR VI:230/56). In regard to such a concept, one thinks of a criterion for distinguishing morally legitimate from morally illegitimate law. But a moral concept of law could also be a means of claiming that it is morally legitimate to regulate human coexistence according to law in the first place. In the first and more modest case, the concept has a normative significance for the law, while in the second case—either in addition or instead—the significance is constitutive of it. Since Kant himself does not introduce this distinction, we must later deduce which of the tasks he grants the moral concept of law. When Kant, in the formulation of the moral concept of law, speaks of a “law of freedom,” he appears to retract the emancipation of the law from disposition; for the “freedom” he means is the full-fledged freedom of the will, as a consequence of which he also means morality in the strict sense in which it includes the disposition to obey the law. Further on in his argumentation, however, in section C, Kant states explicitly that the adoption of the principle of law as a maxim is not required (DR VI:231/56). Those who recognize the principle of law from motives other than that of duty remain moral in the relevant sense. The further reaching demand for a disposition to obey the law is made only by ethics, that is, by the doctrine of virtue. With the addition of the word “freedom” to the formulation, Kant qualifies the law in question as a moral law that, in contrast to laws of nature, has no reality without freely chosen recognition. When Kant, further, speaks of a “universal” law, the adjective is not to be read explicatively, since the fact that laws formulated without proper names have a certain degree of universality is too obvious to need repeating (DR VI:230/56). With the property of universality, Kant calls to mind his general criterion of morality. The moral concept of law fits into Kant’s program of a universalistic ethics. The moment of practical metaphysics is present as well, since the moment of universality brings with it the supersession of personal and collective well-being as ultimate grounds of the determination of action. And the moral concept of law, which

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insists that the anthropology of law be shaped according to the criterion of universality, satisfies the Kantian pattern of legitimation: practical metaphysics plus anthropology.At the same time, metaphysics enters the picture only with respect to the genuinely moral element, the moment of universality. No further metaphysics, in particular no assumptions of theoretical metaphysics, makes an appearance. The metaphysics contained in the categorical imperative of law is unproblematic. According to its moral concept, rightful law requires the reciprocal compatibility of the freedom of action of persons. This concept has a negative side not explicitly mentioned by Kant, perhaps because it would have struck him as all too obvious: everyone’s freedom of action is to be restricted. The fact of this restriction precedes the legitimation of administrative law and, in addition, precedes the legitimation of private law and right. It flows from a concept of law that precedes the right to property and its public protection. Kant does not explain why freedom should be restricted at all, but the following argument might accomplish the task. Because persons live in the same external world, it is always possible that one will wish to settle where someone else already lives, or that one will desire something that another also desires. Where one or the other of these situations obtains, there is conflict, and freedom of action is thereby restricted in any case. According to this argument, in the form of a thought-experiment concerning a primary state of nature, the initial restriction on freedom of action is, systematically viewed, not a moral phenomenon but a contingency given by nature that emerges unavoidably with the sheer fact of coexistence (cf. PJ 10.4). As soon as several persons have the same external world, no one can claim living space for himself without thereby restricting the possible living space of all others. When we have one universe and several people, a reciprocal restriction of freedom of action is unavoidable. The restriction of freedom acquires moral significance through its taking on a particular form. Not every restriction is morally legitimate, but only that kind that is carried out according to a universal law, strictly identical for all parties. Kant himself emphasizes only the second, positive side of the matter, that the voluntary agency of one must be “capable of being united with that of others” (DR VI:230/my translation). A restriction of freedom carried out with strict equality is as such an assurance of freedom, and so the assurance of freedom for all concerned proceeds, according to its moral concept, in just this same way. The restriction and the assurance of freedom are two sides of the same coin; only where one limits freedom according to a universal law is freedom universally and equally protected. To the moral concept of law, Kant adds a moral principle of law (DR VI: 231/56–57). The concept and the principle formulate the same state of affairs,

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only the point of view is different. With regard to the concept of law, it is objective law that is at issue, while it is the corresponding subjective right, the totality of actions one is entitled to perform according to the objective law, that is defined by the principle of law (DL VI:230/55–56). The principle of law constitutes a moral criterion for subjective claims in the sense of legal entitlements. These claims exist before and independent of positive juridical activities; they are those pre- and suprapositive rights that we call innate or human rights. The moral principle of law fits hand in glove with the criterion of human rights. Kant himself puts it this way in the introduction to the Doctrine of Right, under the title “There Is Only One Innate Right”: “Freedom (independence from being constrained by another’s choice), insofar as it can coexist with the freedom of every other in accordance with a universal law, is the only original right belonging to every man by virtue of his humanity” (DR VI:237/63). The moral concept of law answers to the idea of justice, and we have, since Aristotle, distinguished different kinds of justice. Kant deals neither with distributive nor with corrective justice. Because of the reciprocity of the restrictions of freedom, I would assign the sort of justice discussed by Kant to the third Aristotelian category, justice in exchange. According to this interpretation, what is, from a systematic point of view, crucial for coexistence is not in the first instance the distribution of goods or services but rather a reciprocal exchange undertaken by persons who find themselves alongside each other. The primary units of exchange are not economic goods; with regard to the systematically primary human right, the protection of life and limb, it is abdications of freedom that are exchanged. Each gives up his right to kill his fellow man in case of conflict. The morally fundamental principle of law formulated by Kant is not addressed to a legislator or a constitution framer. It is aimed at those who “naturally share the same right,” people insofar as, independent of any relations owing to a state, they interact with (and act against) one another in manifold ways exclusively as a consequence of the shared external world. Relative to this “state of nature,” relations of law and right dependent upon the state are of secondary, though still indispensable, significance (DR VI:305–8/120–21). Kant rejects an overvaluation of the state, though he holds it to be necessary even if subsidiary. Kant then introduces a third variant for the morality of law, the universal (and once again moral) law of right (Rechtsgesetz). Because the material already treated by the concept and the principle of law is here formulated as an imperative, we have finally arrived at the categorical imperative of law in its precise form: “act in the external world in such a way that the free use of your voluntary agency is consistent with the freedom of all according to a universal law” (DR VI:231/my translation). But since the content of the imperative, mutually

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consistent freedom of action according to a universal law, is already addressed in the concept and in the principle of law, they too can count as formulations of the categorical imperative of law. To grant someone an entitlement of law or right is at once to maintain that all others are, as a matter of right, prohibited from interfering with action or refraining from action that corresponds to the entitlement in question. The same point holds for the special case of human rights. I have a right to life and limb, for example, only when others are, as a matter of right, prevented from assaulting me physically, when their doing so would be wrong. Positively formulated, all legal entitlements bring with them a second-order entitlement: that which is demanded or prohibited can be enforced. The moral concept of law would be incomplete if it did not deal with the legitimation of authorized force, a legitimation that is vigorously disputed. John Rawls, for example, explains the principles of justice as deriving from primary social goods. He gives no satisfactory answer to the question why these goods become rights and therefore claims whose satisfaction can be secured by force if need be. Robert Nozick, for his part, sees the deficiency of Rawls’s account but is equally unable to give a convincing answer. Kant sketches an argument that promises to remedy that lack of a satisfactory legitimation of force. Unlike Nozick (1974, 131 ff.), he does not claim that an enforcement-authorized obligation needs to be justified by a two-level account, but rather sees, in the authority to enforce, a definitional element of every moral obligation insofar as it belongs by nature to the sphere of law and right. Kant therefore carries out a onelevel legitimation. He declares that the authority to enforce is connected to the law “according to the principle of non-contradiction” (DR VI:231/57; cf. VI:232–33/57–58). By “law” here, Kant understands the subjective concept, a legitimate claim, but the thesis is valid also for the objective concept, for the framework of rules that formulate subjective claims. One might arrive at the legitimation by means of an antinomy between a rigorous legal positivism, on the one hand, and a rigorous anarchism, on the other. According to the positivistic thesis, the legal order would have carte blanche; its force would be everywhere legitimate. According to the anarchistic antithesis, all force would be reprehensible. The resolution of the antinomy would consist in a legitimation of force that limited its scope. The measure of both legitimation and limitation would lie in the Kantian criterion of morality, universalizability. The characteristic profile of the task of legitimation emerges better in an argument of this sort, which would also repeat a line of thought that already pertains to the application conditions of the law. Nevertheless, Kant did not spell out the

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argument in that context. The argumentation takes the form of a thought experiment in which one imagines a primary state of nature that brings out the internal inconsistency of both the thesis and the antithesis of the antinomy of law. With respect to the debate with anarchism, it is important to see that the thought experiment reveals a first level of force. Because a multitude of people must share the same external world, the introduction of force at a systematically primary level takes place behind our backs; no one, at any rate, can be held responsible for it. The reality principle introduced by Freud in opposition to a principle of sheer pleasure has its systematic origin here, in the emergence of force at the primary level. For this reason Freud is wrong to make culture responsible for the reality principle. In fact, it is not culture but sheer coexistence that demands an unavoidable exercise of social force, and herein lies hidden the “dark side” of the social nature of humanity. The arguments developed since Plato and Aristotle in favor of man’s social nature are in essence correct, but are one-sided, bringing into relief only its positive aspect. But one must not therefore fall into the contrary position and emphasize only the negative aspects of human sociality. Beyond a view that oscillates between the positive and the negative, we can, from a judicative-critical position, see that the social nature of humankind is not only a pleasure but also a burden. The thought experiment required for the argument from antinomy is to be carried out relative to the unavoidable level of social force. If, in agreement with strict legal positivism, a subjective right entails an arbitrary authority to enforce, the concept of a legal claim vanishes. Whether it is an entitlement to property or life and limb that is at issue, anything that I can claim for myself can just as easily be claimed by another. If, as the anarchistic antithesis would have it, there is no force at all, one is dependent on the benevolence of others for recognition of one’s rights, and life and property do not have the status of goods to which one has a legitimate subjective claim. The thought experiment just sketched corresponds to the two sides of the moral concept of law. It carries out in more detail what in the explication of the concept was merely asserted. The reciprocal assurance of freedom is only possible through an equally reciprocal limitation of freedom. Since the thought experiment itself is not found in Kant, he does not exhaust the possibilities offered by a critical ethics of law. One might want to explain the absence of a rigorous argument from antinomy in the “Introduction to the Doctrine of Right” historically, claiming that when Kant was working on his philosophy of law and right, near the end of the eighteenth century, neither the thesis nor the antithesis were seriously upheld. Certain passages from Hobbes’s Leviathan could, it is true, be put forward as evidence for the positivistic thesis-for example, the claim that the sovereign is not subject to

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civic law (Leviathan, chap. 26). According to the second part of “On the Common Saying,” which is devoted to a confrontation with Hobbes, Kant did not, however, read Hobbes in this way. As far as the antithesis is concerned, the tradition of influential anarchist thinkers does not begin until Proudhon, a half century after Kant’s Doctrine of Right. It is true that a passionate critique of all political authority did appear forty years before Kant’s treatise. Edmund Burke, in A Vindication of Natural Society (1756), does not, however, take aim at all force, but only at the use of force by the state. He does not defend the antithesis as such, but only a part of it, the antithesis with regard to public law. One would expect to find this topic discussed in the course of the transition from the natural law that precedes the state to the law as enacted by the state, but in the relevant sections of the Doctrine of Right (41, 42, and 44), Kant does not raise the issue. Anarchy, the antithesis of the antinomy of law, does appear in Kant’s writings—described as “law and freedom without power” (ANTH VII:330/191)—and is even defined in a neutral sense. The antithesis does not, however, appear in the Doctrine of Right, and elsewhere it appears only in systematically secondary contexts (cf. C1 A iv; TP VIII:302/84–85; CF VII:34/57). Kant’s justification of the authority to enforce is prepared in section C and elaborated in sections D and E of the introduction to the Doctrine of Right. His highly formal argumentation corresponds to his aim of demonstrating an authorization to enforce that is immanent to the concept of law. When one hears the word “force” in this context, one thinks first of physical violence. Besides this sort of force, however, there are a number of other forms, including not only direct force but the indirect constraint that results from social dependence or poverty. Since Kant does not introduce the wide spectrum of possible concepts of force, it is easy to ascribe to him a narrow construal that limits force to its physical expressions. In fact, it remains open whether force is exercised physically, psychically, or economically, whether it operates directly or indirectly, and whether it is easily observable or hidden. With respect to the question of fundamental legitimation, these questions are of secondary importance, and Kant is well advised not to broach them. The decisive question is whether force is morally permitted at all and, if it is, to what degree it is permissible to extend it. Kant’s answer to this question is as convincing as it is simple: an instance of force is morally legitimate when it constitutes a response to an illegitimate instance, that is, to an injustice. With this claim, Kant signals his opposition to the antithesis of the antinomy of law and tacitly rejects a strict anarchism. Kant declares that force is permitted, but insists that it is legitimate only under two restrictive conditions. These conditions contradict the positivistic thesis of the antinomy of law. To begin with, force is

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only permitted where it already exists, where someone else has infringed upon the sphere of my legitimate freedom. Legitimate force for Kant does not attack, it defends itself; it is not an aggressive force, but a defensive one, a counterforce. And within the context of a defensive force, the only legitimate force is that which is directed against injustice. Without this second restriction, a thief who tried to prevent his victim from reclaiming his property would be morally in the right, since he would be exercising a counterforce. The thief’s action is indeed defensive, but still illegitimate, since it does not consist in a defense against injustice. Defense against injustice, the only legitimately rightful use of force according to Kant, can take one of two forms: preventative and restitutive. If, for example, a robbery is in the offing, one is permitted to foil it, and if it has already taken place, one is permitted to recover the stolen goods. The argument allows counterforce only insofar as it restricts itself to defending against injustice. Someone who not only foils the robbery but deliberately injures the thief, or someone who takes back more than was stolen, himself commits an injustice. In order to legitimate force as defense against injustice, Kant employs the concepts of “the hindering of an effect” and of “resistance that counteracts the hindering of an effect” (cf. DR VI:231/57). Both concepts can be called “practical negations,” with a hindrance playing the role of a simple negation of an action and resistance the role of a double negation. When an action is legitimate according to the principle of law, the simple negation, a hindrance, defines a moral injustice (cf. DR VI:230/56), and injustice conversely consists in nothing other than the hindering of legitimate freedom of action (DR VI:231/57). Kant correctly maintains that he who negates the negation regains an affirmative position. When an injustice is resisted, whether preventatively or restitutively, the injustice is superseded and rightfulness is once again recognized: “If,” Kant writes, “a certain use of freedom is itself a hindrance to freedom in accordance with universal laws (i.e. [it is] wrong), coercion that is opposed to this (as the hindering of a hindrance to freedom) is consistent with freedom in accordance with universal laws, [which is to say that it is] right” (DR VI:231/57). Kant’s legitimation argument relies exclusively on the moral concepts of justice and injustice along with the logical law according to which a double negation returns one to the original affirmation. The authority to enforce can, therefore, be regarded as contained within the concept of the principle of law. Kant is right to call his legitimation analytic. “Consequently,” he writes, “an authority to constrain one who breaks the law is connected to the law itself according to the law of noncontradiction” (DR VI:231/my translation). Kant has indeed shown that the authority to enforce is part of the definition of the principle of law and that what is rightfully permitted includes within it the second-order permission to see to the

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upholding of first-order permissions by force: “the law and the authority to enforce signify, therefore, one and the same thing” (DR VI:231/my translation). Since the categorical imperative of law is the result of the application of a moral perspective to a fundamental empirical fact, the coexistence of accountable subjects, and since the authority to enforce is analytic in relation to the categorical imperative of law, it follows that the authority to enforce also fits into the program of a Kantian ethics of law and right. Relative to the fundamental empirical fact, the authority to enforce is justified on purely rational grounds. Like the categorical imperative of law itself, the law’s authority to enforce its dictates is valid a priori, even though the a priori status is relativized to the anthropology of law. The argument pattern “practical metaphysics plus anthropology” remains intact.

5.3. The Counterpoint Postmodern philosophy espouses radical plurality. It is not concerned with strictly political pluralism, with the several groups that struggle for public recognition and parliamentary influence. Partially by means of a description of social reality, partially by means of challenges to that reality, the spokespeople for “postmodernity” fight for a rich diversity of lifestyles and cultural forms. While we do not need to rehearse the arguments in favor of diversity, we do want to ask how far the diversity extends; in particular, can it be as radical as the postmodernists would like, can it extend all the way to the roots? In order for a plurality of lifestyles and cultural forms actually to obtain, certain conditions must be met. First, there must exist different needs, interests, capacities, and convictions, since otherwise there is no call for the construction of different styles and forms. These differences must furthermore be accompanied by the social and personal capacity to translate them into distinctive forms of life and to maintain this distinctiveness even under difficult conditions. A juridical order exercises only an indirect influence on these two conditions, but it has a direct and essential bearing on a third condition: the right of different people and groups to live in their own particular ways. The categorical imperative of law constitutes precisely the measure of this right. According to it, each person and each group has a claim to what is distinctive and particular to them; indeed, they are entitled to be stubborn in the pursuit of their distinctiveness, provided that this claim is recognized reciprocally and with equal validity for all. The categorical imperative of law is the measure for all conditions without whose recognition a coexistence among free and equally entitled persons is impossible. With this point in focus, we can look again at Luhmann’s thesis that morality cannot

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serve to integrate society. In fact, the very opposite has now been shown to be true. Where sheer oppression is found, there can be no question of “integration,” the very word carries with it a connotation of equal entitlement on the part of those who find themselves living together in a society. Here, then, is the argument against Luhmann: societal integration is not possible without that minimum of equal entitlement expressed in the categorical imperative of law, without an elementary layer of juridically enforced morality. The categorical imperative of law is justified by the interplay of anthropological considerations with moral judgment that is metaphysical in a practical sense. Both the anthropological and the practical metaphysical sides express a unity and a universality. The philosophy of postmodernity, with its commitment to radical plurality, has in fact deprived itself of the chance to include a moment of this sort in its thinking. As a rule postmodernists fear that the anthropological and metaphysical elements will privilege certain forms of life above others and thereby stand in the way of the radical plurality whose growth and success is so characteristic of the world today. To be sure, one can find anthropological and metaphysical ideas that can very plausibly be read, critique-of-ideology-wise, as attempts to help raise particular life projects to the status and dignity of universally valid principles. But this criticism does not touch the anthropological and metaphysical elements that mediate the formulation and defense of the categorical imperative of law; these elements do not harbor any uniformizing tendencies. They state conditions that need to be recognized if the desired plurality is to have a chance of surviving. Postmodern philosophy wants to let one voice lead the melody in the concert of the present. But the vote for diversity overestimates its load-bearing capacity. The plurality for which postmodernity pleads may be more radical than any yet envisaged, but instead of being absolutely radical, it needs a contrapuntal unity. And by comparison with the voice of diversity, the categorical imperative of law is not merely the countervoice of unity; it has a methodologically more precise significance. As one of the conditions without which diversity is not possible, it has a transcendental importance and a systematic priority. At this point, we can return to the question of the scope of the categorical imperative of law. Does the imperative respond only to the relatively modest question of which norms and principles of law are legitimate and which illegitimate? Or does it also undertake to show why a society should have laws at all? What was said above concerning diversity holds also for individuality: the categorical imperative of law states the conditions without which a coexistence of agents enjoying freedom of action is not possible. This fact endows a Kantian ethics of law and right with a greater significance. While one usually expects that a moral prin-

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ciple will simply provide norms, the fundamental concept of Kant’s ethics of the law, the categorical imperative of law, undertakes in addition the task of constituting the law. The imperative demands that human coexistence be shaped according to law. At the same time, the importance of the transcendental ethics of the law is increased: it is more than a partial social ethics; it becomes rather a fundamental component of social theory. In the context of this fundamental level of social theory, a first, strictly metaphysical argument establishes the moral concept of law as a categorical imperative that is, with respect to its capacity to bind by obligation, a purely rational concept. The second, transcendental argument shows that the social world can only constitute itself as an objectively valid world on the basis of the categorical imperative of law. The objectivity in question here is not, nevertheless, the familiar theoretical sort but rather a practical objectivity; at issue is not the truth of a world of natural objects but the justice of a world that arises from human coexistence. In the metaphysical argument a counterpoint to the prevailing juridical culture is defined; in the transcendental argument the counterpoint acquires a constitutive significance. To institute legally sanctioned force among men is not only morally legitimate in principle, it is also morally demanded in order to make possible freedom of action for all. On the other hand, the categorical imperative of law states only one of many conditions for individuality, plurality, and freedom of action. It deals only with the social side of things and, within these boundaries, only with the standpoint of a rule of law having the power to enforce its edicts. In the terms of the theory of the state, the categorical imperative of law supports the juridical state (Rechtsstaat). Are social programs thereby excluded from the sphere of legitimate state activity? I have interpreted the categorical imperative of law as a principle of justice in exchange (PJ esp. 3.2). Now, it is uncontroversial that justice in exchange needs to be supplemented by corrective justice. One way or another, prior injustice must be redressed. With the help of this principle, one can already justify a good portion of the social-welfare state. Issues concerning the scope and detailed application of the principle of redress lie outside the boundaries of the present study’s discussion of problems of grounding the law. One question, however, should be broached here: that of the self-understanding of the categorical imperative of law. Is the imperative to be understood as a necessary condition or as a sufficient condition of a coexistence with the authority to use force? This question, which is not posed by Kant himself, is of cardinal importance for the philosophy of law and the state. Our answer to it will determine our position with regard to the following alternatives: if the imperative expresses a necessary condition, it follows the idea of a transcendental social

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science. It takes responsibility for stating the elementary principles of political legitimacy and formulates the responsibilities without whose recognition no legal order, and indeed no society, can be accounted morally legitimate, and it does this without excluding the possibility that a juridical order might accept responsibilities that are not necessary but advisable. If, by contrast, the imperative states a sufficient condition for political legitimacy, then it will not be satisfied with the role of grounding a transcendental social science and will become a political theory, or even a political program, a political liberalism that supports a minimal or night-watchman state and that, apart from a restrictive policy of compensation, rejects all forms of the social-welfare or culturally implicated state. We need not enter into the question how Kant himself would have responded to the alternative “necessary or sufficient condition.” Regarding the systematic issue, it is the more modest understanding of the categorical imperative of law that is to be upheld, the merely transcendental self-understanding of the counterpoint to modernity, not the political and specifically liberal interpretation. Further considerations are needed to negotiate the transition from the transcendental to the political interpretation. Some of these considerations have already been articulated in the course of the interpretation of the second application condition (5.1 above). Kant does not raise questions of this sort, and within the parameters of an exclusively transcendental ethics of law there is no need to do so.

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P A R T

EXAMPLES OF CATEGORICAL PRINCIPLES OF LAW

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6 A LOOK AT UTILITARIANISM

The radical changes in patterns of thought and social relations that have taken place in the course of the modern era have not left morality and its philosophical theory, ethics, unchallenged. Indeed, one sometimes gets the impression that in this area modernity’s power to corrode has been developed to a far greater extent than has its capacity to regenerate. Today we are threatened with a disparity between a great need for ethics and a dearth of argumentative potential for meeting this need. Utilitarianism is one of the few ethical positions that have successfully resisted the “destructive power” of modernity. In the German-speaking world this claim runs so counter to accepted opinion as to sound paradoxical. German intellectuals traditionally regard utilitarianism as an unsubtle morality of mere usefulness and connect it to self-interest and opportunism. Utilitarianism is said, “in its extreme form,” to be “pure value-nihilism” (Hartmann 1958, 139), and even a “crude and

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naked domination of the economic.” In truth, the utilitarian exhortation to further the happiness of all concerned is anything but egoistic or opportunistic. That it inspired a proud series of social and political reforms in late feudal and early capitalistic Great Britain is entirely consistent with its basic principles. And with regard to present-day issues such as the world economic order, ecological responsibility for future generations, or a nonanthropocentric protection of animals, utilitarianism has not yet exhausted its potential for progressive social critique. German antipathy for utilitarianism reaches far back into the nineteenth century. Although the two classical exponents of utilitarian ethics, Jeremy Bentham and John Stuart Mill, were soon translated into German, the intellectual spokespeople of the time vehemently rejected the utilitarian position. In the chapter of The German Ideology entitled “Morality, Commerce, and the Theory of Exploitation,” Marx and Engels accuse it of espousing “the exploitation of man by man.” Friedrich Nietzsche classifies it among the “foreground modes of thought and naïvetés which anyone conscious of creative powers and an artist’s conscience will look down on with derision, though not without pity” (Beyond Good and Evil, § 225); and he adds to this one of his “Maxims and Arrows” (no. 12) from Twilight of the Idols: “Man does not strive after happiness; only the Englishman does that.” With respect to the categorical principles of law, utilitarianism is the counterpoint to the counterpoint. It is the most effective present-day model of an empirical-pragmatic ethic. Before discussing examples of categorical principles of law, we will inquire into utilitarianism as the leading contrast to the Kantian position.

6.1. The Justice Objection The less sweeping critique to which utilitarianism has been subject since its formulation in the writings of Bentham and Mill has taken aim, now at the thought that human happiness can be calculated, now at the value-theoretical presupposition of such a calculation, the idea that “pleasure and freedom from pain are the only things desirable as ends” (Mill 1979 [1861], chap. 2).1 Not least, utilitarianism has been accused of not providing a satisfactory account of its fundamental moral principle: the happiness of all concerned. Among the objections to utilitarianism, however, it is a fourth one that has the greatest significance, the criticism raised in the name of justice. The conceptual apparatus for measuring happiness introduced by Bentham, the hedonic calculus, has since undergone many refinements. But the host of 1. Further references to Utilitarianism in this chapter will be by page number alone.

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clever suggestions should nevertheless not lead us to overlook the fact that the problems of intrapersonal- and interpersonal-utility comparisons are not yet anywhere close to being solved. The utilitarian could, nevertheless, weaken his ambition and dispense with the idea of a thoroughgoing calculability. Instead of taking the hedonic calculus literally, he could treat it as a regulative idea, namely, the demand that in order to make a well-reasoned choice, one seek out alternative courses of action and then evaluate their advantages and disadvantages in the light of their likely contribution to human well-being. The second group of objections raised against utilitarianism often turns out not to be as strong as might appear at first. The accusation that hedonism is a “pig philosophy worthy only of swine” (Carlyle) can be met by means of distinctions internal to utilitarianism, for example, by Mill’s qualitative hedonism. Moreover, even quantitative hedonism is not without defense against this reproach. For because humans differ from other animals in the nature of their capacities and interests, it follows that they cannot seek their happiness in the same way as animals seek theirs. In addition, utilitarianism demands that one take the happiness of others into account, for which reason one might, under certain circumstances, have to relinquish a good part of one’s own happiness. Mill, indeed, maintains, no doubt exaggeratedly, that one might even have to give up one’s own happiness entirely (16). And if willingness to relinquish personal happiness is otherwise absent, inner sanctions, such as pangs of conscience, and outer sanctions, such as social or legal punishments, are supposed to help out. Further reservations fall away when the happiness of those affected is regarded as only indirectly intended, whereby the utilitarian can accommodate Nietzsche’s point that man does not strive after happiness. Already in the case of private action, and even more so in the case of public action, what goes on as a rule is simply the elimination of certain barriers and obstacles to happiness and the creation of the presuppositions, the fields of action, and room for maneuver needed for a worthwhile life; happiness itself is not decided upon. The third standard criticism charges utilitarianism with facing a difficulty that it shares with other moral theories—that of demonstrating the truth of its fundamental moral principle; and there is in any case no consensus regarding what a satisfactory demonstration of a moral principle should look like. Beyond this, a valid proof might be forthcoming, even if Mill’s own attempt in the fourth chapter of Utilitarianism is not convincing. With regard to the debates just adumbrated, the development of the utilitarian position conforms to the pattern of “normal science.” Progress is made through the drawing of distinctions or the addition of postulates or the reduction of theoretical ambition. In the end, the view can be defended as a “critical”—or, better,

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“self-critical”—utilitarianism (cf. Höffe 1975, chap. 7). The objection raised in the name of justice can, by contrast, no longer be integrated into utilitarian theory, no matter how critically refined, and it is this that identifies it as a singularly important criticism. Within the framework of critiques of utilitarianism, the objection from the point of view of justice bursts the bonds of normal science and demands a veritable paradigm shift. Two theses underlie this demand: according to the difference thesis, utilitarianism and justice can lead to different results, and according to the priority thesis, it is justice that should take precedence in case of divergence between it and utilitarianism. The idea of human rights is one of the most important sources of principles of justice we have. It is part of the very concept of such rights that violations of them cannot be permitted even in the name of a greater collective good. Utilitarianism, by contrast, does not exclude the possibility that under certain marginal circumstances a slave or a feudal society, or even a police or military state, not only might be morally permitted but might be morally required, provided that the general welfare would thereby be increased. Upon closer examination, the opposition between utilitarianism and justice diminishes somewhat. Given certain empirical assumptions, in particular the law of decreasing marginal utility, utilitarianism indeed yields a prescription of strictly equal treatment. Nevertheless, it remains the case that utilitarianism allows the well-being of one to be weighed against the suffering of another without necessarily insisting on compensation for the victimized individual. While utilitarianism is free to introduce considerations of justice into decision making in a supplementary way, in cases of choice between alternatives that promise equal collective well-being and are thus welfare-indifferent, our moral consciousness takes the reverse to be true: only decisions that are on an equal footing from the point of view of justice can then be submitted to the supplementary test of maximal collective well-being. The difference between utilitarianism and justice stems from differing basic normative concepts. According to utilitarianism, “morally good” means “good for the totality of those affected.” In the case of justice, a notoriously ambiguous concept, there is at least one meaning according to which “morally good” means “good for each individual.” While utilitarianism defines good in a collective sense, the sense of good embodied in the concept of justice, or at least in one of its aspects, is distributive. In case of divergence, it is distributive welfare, justice, that claims priority. The definition of the morally good as collective welfare constitutes the innermost kernel of utilitarian ethics. I conjecture that this concept is logically independent of many other elements, so that it forms the nucleus of the kernel, or the

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primary kernel. I would accordingly classify the other elements of utilitarianism as belonging to an outer, or secondary, kernel. In order to bring this downgrading of much that has traditionally been thought central to utilitarianism, this “demotion in the service of a systematic end,” more sharply into relief, I will restrict the kernel of utilitarianism to the defintion given above and will consign all other elements to the periphery. Nevertheless, one can distinguish within the periphery an inner from an outer shell. I would, for example, place hedonism, insofar as it is not, as “logical hedonism,” already implied in the concept of collective welfare, in the inner shell, while I would locate the ideas of measuring welfare and making interpersonal comparisons in the outer shell. The idea of justice has always played a special role in discussions, both philosophical and prephilosophical, concerning the evaluation and condemnation of legal and political conditions. Because, as is evident from his title, Bentham, in An Introduction to the Principles of Morals and Legislation, promises to investigate the principles of legislation, we expect him to grapple at length with the idea of justice. But Bentham disappoints us in this expectation. He is far too convinced of the correctness of his utilitarian ethics to subject it to a fundamental and searching examination. He does not regard the objection from justice as worth more than a brief note, and we would seek with equal futility for a more subtle and differentiated discussion in the other relevant works, such as Of Laws in General or A Fragment of Government. Bentham nevertheless does succeed in putting forward the decisive utilitarian thesis. In chapter 10 of the Introduction, entitled “On Motives,” he first calls justice “a phantom,” “an imaginary person,” and an “imaginary instrument” (as so often, he writes without any self-doubt at all), only to press it into the service of his own ethics without further ado. “The dictates of justice,” he asserts, “are nothing more than a part of the dictates of benevolence.” Among the classical texts of utilitarianism, Mill’s eponymous essay is not only that which has had the greatest influence, it is also the most philosophically ambitious defense of the doctrine. In the fifth chapter, dedicated to an investigation of “the connection between justice and utility,” Mill remains true to Bentham’s subsumption thesis, the claim that justice is to be subsumed under the principle of happiness maximization. Appealing to an alleged consensus on the matter—“as is commonly acknowledged” (41), “as people are in general willing enough to allow” (42)—he claims that justice is coextensive with a part or branch of the general welfare. He must maintain this partial coincidence between justice and welfare on pain of abandoning the claim to exclusivity on the part of utility that he had made when introducing the theory. In contrast to Bentham’s selfconfident tone, however, Mill takes the objection from justice seriously. Somewhat

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overoptimistically, he takes it to be the only true difficulty facing utilitarianism (62) and devotes his longest chapter to it. The third classical utilitarian thinker, Sidgwick, has many subtle things to say about justice, but he finds no new arguments regarding its connection to utilitarianism. In fact, he rather underestimates the problem. He regards the idea of justice as a piece of intuitionism and sees so little problem combining it with utilitarianism that he forgoes any detailed discussion of the topic (Sidgwick 1967 [1874], 496–98). As far as the relationship between justice and utilitarianism is concerned, the following at least can be affirmed: in Utilitarianism, Mill undertakes the philosophically most ambitious defense of utilitarian ethics. He advances beyond Bentham in the very presentation of the objection from justice. He sees the two component objections and indeed rejects only one of these, the difference thesis. Mill subsumes justice under the general welfare and accords it normative priority over all other components of this welfare, writing that justice “is far more imperative in its demands” and “has a superior binding force” (43). In light of the largely successful paradigm shift inaugurated by John Rawls’s theory of justice, one might think it superfluous to discuss once again the relationship between justice and utilitarianism. The position that defends Kant in upholding a moral concept of law (DR VI:229–30/55–56) has now gained wide currency in circles in which one had hitherto argued less after the example of Kant than after those of Bentham and Mill, namely, in the ethical discourse of Englishspeaking thinkers. But the paradigm shift is not universally acknowledged, and R. Trapp (1988) has even recently tried to develop a “utilitarianism of justice.” Moreover, while Rawls’s critique of utilitarianism may perhaps convince on an intuitive level, his precise argumentation is not compelling. Because Rawls does not undertake a semantic investigation of the fundamental ethical concepts “morally good” and “just,” he cannot identify the precise point at which the difference between justice and utilitarianism begins. Also, Rawls presupposes a sense of justice, and thereby a fundamental normative attitude, and strictly speaking accomplishes no more than the explication of this sense. The utilitarian, however, does not recognize justice as a self-standing fundamental normative concept, but relies exclusively on, in Bentham’s words, “the most extensive and enlightened benevolence” (introduction, chap. 10), or the disposition to general benevolence (Smart 1973, 67). Because a fundamental critique must first legitimate the standpoint of justice, which Rawls fails to do, utilitarianism even today has a good chance of defending itself.

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6.2. The Secondary Topic: Punishment One might take the notorious ambiguity of the concept of justice as a reason for excluding it from rigorous philosophical discourse. But the ambiguity of its fundamental concepts has been known to philosophy since its beginning and is one of the reasons why one undertakes, in Hegel’s phrase, “the heavy labor of the concept” in the first place. So Mill does not dispose of the objection from justice by the overly simplistic means of setting it aside on the grounds that its central concept is not sufficiently determinate. In order to confront the justice objection at its deepest, Mill first confirms the ambiguity of the concept (42). Next, he searches for a common distinguishing character, but does not distill this out of the different meanings of “justice” that he has listed, and neither does he distinguish elementary from less elementary senses of the concept. Mill, rather, proceeds etymologically, seeking out a core idea (46). Finally, he proffers the promised utilitarian justification of the allegedly central meaning of justice. Mill brings an astonishing variety of aspects to light in the course of outlining the six senses of justice that he mentions. His reflections are expressed with great fluency, and even elegance. But if we look for a guiding thread or something even approaching completeness, we will be disappointed. In order to discern a systematic coherence, we can put together three pairs of concepts and find in them different themes of a global theory of justice. Mill begins, entirely plausibly, with justice as the recognition of legally guaranteed rights and then, with equal plausibility, relativizes this determination by noting that it is possible for laws themselves to be morally bad and unjust. In both cases there are subjective claims whose violation counts as unjust. Mill, then, identifies two levels of justice. In the case of legally guaranteed rights, we are concerned with the justice or injustice of the application of laws, while in the case of morally good or bad laws, we are concerned with the justice or injustice of legislation. So the first pair of concepts already shows that the ambiguity surrounding the notion of justice does not result merely from a simple equivocation or from vague thinking. It mirrors rather the complexity of the matter. With the word “justice” we intend to capture a moral standpoint with respect to social conditions, and since we recognize different levels and aspects of social conditions, one and the same standpoint of morality can be presented in different respects and at different levels. Since the standpoint of justice acknowledges different respects, it can have divers relations to utilitarianism. We are not, in consequence, bound to the exclusive alternatives: “difference or subsumption” and “priority or secondary consid-

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eration.” One might find a “partly-partly” relationship between utilitarianism and justice, a view according to which there are both utilitarianism-independent and utilitarianism-dependent principles of justice, both the difference thesis and the subsumption thesis. In such a case, a problem of priority would present itself in the form of the question, For which aspect of justice must utilitarianism defend its subsumption thesis? There are good grounds, as far as the standpoint of justice is concerned, for evaluating legislation first; for the application of a law naturally presupposes the law in question. In addition, Mill himself, with the recognition of the second meaning of justice, relativizes those claims of mere positive law, which owe their existence to their being subsumed under given laws. Bentham, moreover, had already recognized the priority of legislation over application in the title of An Introduction to the Principles of Morals and Legislation; his target is, namely, the principles of legislation, not the principles of application. In order to fix this priority conceptually, one can call the justice of rules primary justice and the justice of the application of rules secondary justice. In order to meet intuitively plausible objections to utilitarianism, it has been common since J. O. Urmson to distinguish an “extreme” act-utilitarianism from a “limited” rule-utilitarianism. Since Bentham tries to establish the principle of utility as the ground of legislation, he can doubtless be regarded as a precursor of the more sophisticated, rule-based form of utilitarianism. Urmson also sees Mill as espousing the more sophisticated form of the doctrine, but at least as far as the theory of justice is concerned, he cannot be followed in this opinion (with regard to the question whether Mill was a rule-utilitarian, see also Harrison, Mauro, Berger, and others in Cooper et al. 1979). Because Mill simply lists the different pairs of meanings, he misses with regard to the first such pair the opportunity to rid utilitarianism of the objection from justice by defending the subsumption thesis only for legislation and allowing independent principles to govern the application of laws, for example, the principles of equality and impartiality, mentioned by Mill himself in his third pair of meanings. One can find in Mill’s second pair of meanings of justice, in distribution according to desert and in injustice as the breaking of faith, substantial criteria of morally acceptable laws or, more generally, of just rules of action. As the full title of Bentham’s Introduction to the Principles of Morals and Legislation indicates, it is concerned not only with legislation but also with morals, by which is meant the rules of conventional morality. Mill too does not limit himself to the realm of judicially instituted law. The utilitarian enterprise is subdivided yet again through the second pair of meanings of justice. What emerges are two levels of rules and a relationship be-

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tween utilitarianism and justice that has three levels in total. In contrast to the rule-utilitarianism that is familiar to us, there can be an internally layered version of the theory. With this sort of theory, the utilitarian’s challenge is eased; the familiar rule-utilitarianism is in a sense divided in two. The subsumption thesis can, that is, be limited to the first level, the justification of the criteria of moral acceptability, the criteria governing distribution according to desert and the prohibition against the breaking of faith. The second and third levels, by contrast, the specification of desert or the breaking of faith and the application of the specified rules, could be defined independently of utilitarianism by appeal to the third pair of meanings, the principles of equality and impartiality, with the principle of equality having a bearing on the specification of rules and that of impartiality on the application of the specified rules in a way appropriate to particular cases. It is not only systematic reflections on the particularity and importance of the different meanings of justice that are missing in Mill’s text—the best he does in this regard is recognize the secondary rank of impartiality when he deems it an “instrumental duty” (44)—he also fails to mention a number of meanings. One misses, for example, the distinction between personal justice, justice as a virtue of character, and an institutional, and here namely political, justice. In addition, there is no mention of the three areas of application, of distributive and procedural justice, and of justice in exchange. That justice and utilitarianism might be related to each other in divers ways is especially likely in these three areas. Because the principles of procedural justice try to translate the idea of impartiality into usable rules, they belong to the sphere of secondary justice and are granted an independent status by the rule-utilitarian. Two spheres of application remain, however, and the utilitarian must defend the subsumption theses for them separately. It is possible that the thesis would hold for the principles of distributive justice but prove false for the principle of justice in exchange, the principle of the equivalent value of the goods or services exchanged. Mill perhaps takes the six meanings of justice to be too disparate to permit the discovery of a common denominator or a systematically primary meaning. His defense of the priority thesis and rejection of the difference thesis does not, in any case, directly follow this discussion. Rather, in a second train of thought, Mill looks for the linguistically original meaning of justice. He correctly points to the connection in European languages between words for “just” and words for “law,” but he narrows the connection when he limits the law to positive law. Both the Latin “iustum” and the Greek “dikaion” mean more than the sheer imposition of law. And what Mill sees but undervalues is the aspect of normative correctness that is etymologically present in the English “right,” the French “droit,” and the German “Recht.” These expressions hang together with the idea of the straight

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and the correct and also with the higher appraisal of the right side of the body and the long-standing higher value placed on right as opposed to left, as is manifest, for example, in the word “gauche.” “Recht” and “droit” originally mean not only positive law but also the correctness of that which is in force. The term “justice” can highlight either side of the unity of positive legal validity on the one hand and morally valid law on the other. While the term “justice” in English and French, along with the German borrowing “Justiz,” accentuates the secondary justice that consists in the enforcement of legally valid statutes, the German word “Gerechtigkeit” includes within its meaning the moral evaluation of legally valid statutes and highlights as well, therefore, the normatively primary level of justice. Although Mill, in the course of his first line of reasoning, as mentioned above, does recognize in passing this priority of primary justice, in his etymological remarks he sees the fundamental element of the concept of justice in mere agreement with existing law. Mill here tacitly reverses the justice-immanent priority that Bentham had recognized, de facto if not de jure, in placing legislation before application. Mill overvalues conformity to positive law and tends thereby to a positivism that runs counter to the normative and critical interest of utilitarianism. Above all, he evades the deepest thrust of the objection from justice, namely, that the justice of rules—and, in case of different orders of rules, the justice of the highest-order rules—to all appearances contradicts the utilitarian principle. Conformity to law does not yet provide Mill with the concept of justice for which he will defend the subsumption thesis. In a third line of reasoning, he brings into relief, against the background of the sentiment of justice, the notions of being deserving of punishment and of having the authority to enforce. Both of these formal elements could be located either in the sphere of primary justice or in that of secondary justice. Without explicitly formulating this alternative, Mill appears simply to leave the question open. So the criticism leveled above, that Mill concentrates on secondary, rather than primary, justice, might be weakened in the following way: although Mill does not limit himself to secondary justice, neither does he focus on primary justice. But the fact that the alternative remains undecided shows at least that Mill’s conception of the problem is lacking in depth and clarity. Mill’s statements concerning the role of the two formal elements of justice are not free of contradictions. At first, he accords an authority to enforce to all duties, saying of “duty in every one of its forms” that it has the character of being “a thing which may be exacted from a person” and which gives me a claim on others and others a claim on me (47). Later, though, he limits these properties to duties of justice (48–49). Since the second assertion fits better with the rest of what Mill

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says, the following interpretation of his position is suggested: with the notion of being deserving of punishment, Mill delimits the field of morality as such and distinguishes it from the rest of the domain of general welfare; with the authority to enforce or exact, he distinguishes within morality duties of justice from other duties such as those of generosity or benevolence. The demands of justice can be enforced; by contrast, although he who is not benevolent deserves punishment, for example, pangs of conscience or social disapprobation, he should not be forced to be benevolent. Mill also uses the traditional distinction between perfect and imperfect duties to elucidate the distinctiveness of justice. In both cases, he says, there is moral obligation. In the case of perfect duties, obligation is incurred to a definite person or group, while this is not the case with respect to imperfect duties. Because the authority to enforce and the obtaining of a definite claim of right belong to duties of justice, one can ascribe to these a stricter sort of obligation and acknowledge the priority thesis that constitutes the second objection from justice. Mill has not, however, provided a utilitarianism-specific reason for the normative priority of justice within the framework of morality. All he has done is find the precise point at which he will defend the subsumption thesis, that violations of definite claims of right deserve punishment, that, in other words, offenses against justice deserve punishment. Has he then found the right point at which to defend his thesis, albeit by a circuitous route? Mill is far removed from vulgar utilitarianism. Not only does he try to refine the hedonistic element of the doctrine, but he also, instead of wanting to measure each action directly against the utilitarian principle, recognizes that some utilities have moral significance while others do not. Within the domain of the morally relevant utilities, he distinguishes perfect from imperfect duties, so that justice as a perfect duty makes up only a small part of the sum of utilitarian obligations. Mill demonstrates an equally impressive capacity for making subtle distinctions with respect to justice. He sees that the rights whose recognition we owe to others can have either a positive or a moral character. He provides examples of criteria for moral rights and assigns a subordinate role to impartiality, understood as the duty to give everyone what is rightfully his (44). Finally, he deems violations of rights to be deserving of punishment and begins his defense of utilitarianism at just this point. However, the objection from justice, in whose name the paradigm shift away from utilitarianism took place, does not appeal to the notion of being deserving of punishment. The objection draws attention to claims of justice that every person has simply in virtue of his or her humanity, and it asserts that these human rights cannot be legitimated on utilitarian grounds. To defend himself, then, the utilitarian

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must either accept the first part of the opponent’s thesis, the idea that there are human rights, and reject the second part, by showing that human rights can perfectly well be justified on utilitarian grounds, or he must call the first part of the thesis, the idea of human rights, into question. The first line of defense entails a weaker, merely legitimation-theoretical difference from certain other theories of justice, while the second strategy leads to stronger, moral-practical differences. Mill pursues neither of these two strategies. In connecting desert of punishment not to human rights but to all violations of rights indiscriminately, he simply evades the objection based upon justice. Beyond this, the concept of human rights is concerned with the adjudication of justice, while the concept of punishment is concerned with its execution. Insofar as the question of enforcing justice presupposes the question of what justice requires, the issue of punishment represents a secondary problem. Only under the presuppositions, first, that human rights have been shown to be valid and, second, that one cannot count on their being recognized voluntarily does the question of how to help them function effectively in spite of failures of voluntary acknowledgment arise. The threat of punishment is a possible answer to this question, since, under the assumption of enlightened self-interest, the recognition of human rights can be expected if the penalties and the chances of apprehension in case of violation are high enough to make violation not worthwhile. Because Mill sees neither that in talking of punishment he has changed the subject as far as the fundamental question of justice is concerned, nor that the issue of punishment has only a secondary bearing on the issue of justice, he also does not see that he in fact evades, rather than meets, the objection from justice. Both the dearth of systematic reflection in Mill’s definition of justice and its incompleteness can be remedied by appropriate modifications and additions. But the incongruity between his aim of defending an ultimate moral criterion, and therefore of answering the question of how to establish what justice demands, and his shift from the leading task of a theory of justice to a subsidiary one cannot be so easily corrected. Beyond this, Mill’s answer to the question of how justice is to be enacted contributes nothing toward answering the question of how it is to be adjudicated, of how its requirements are to be established. Although there is an objection from justice on this topic as well, it is nevertheless entirely possible that utilitarianism could prove tenable as far as the secondary question, concerning violations of justice and deservedness of punishment, is concerned. According to the objection, there is justification for punishing someone because and only because the person in question deserves it, not because punishment contributes to the general welfare (see Chapter 8 below). If utilitarianism were able to escape this objection and justify deservedness of punishment

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on the basis of general welfare, its claim to exclusivity, though not yet defended, would be subject to a diminished set of misgivings.

6.3 An Unsuccessful Defense Mill interprets the felt need to punish as stemming from a natural instinct for selfdefense and thinks that it is linked to the equally natural feeling of sympathy, as a result of which one defends not only oneself but also all fellow humans and even all sentient beings against injustice. Added to this, as a third moment, would be the higher intelligence that allows one to see the way in which one’s own interests are connected to the interests of society. The utilitarian principle is to extract “whatever is moral” in this sympathy-enlarged and intelligence-supported instinct of defense. This task of identifying the moral element of the instinct to defend oneself is to be understood as a double one: on the one hand the felt need to punish is to be justified, while on the other hand it is to be limited, in that the only part of the felt need to punish that is justified is that which serves the general welfare. As plausible as the general argumentative strategy is—the legitimation of the urge to punish is to be linked to a limitation of the same—there are nevertheless problems with the individual arguments. A first misgiving is that while the interest in self-defense reacts indiscriminately to each and every attack, it is only the prevention of injustice that can count as legitimate. Now, Mill holds that the interest in self-defense is supposed to be united with sympathy and understanding, but this connection does not guarantee that one will defend oneself only against violations of one’s rights. One might, then, want to carry out the demarcation of legitimate from illegitimate defense with the help of the utilitarian principle. But Mill does not have an argument to show that it serves the general welfare to defend against each injustice and only against injustice. So here the utilitarian must deal with another objection from justice, since an appeal to the general welfare might explain why one should take action against injustice “as a rule” but not why one should take such action as a matter of principle. If Mill were a convinced rule-utilitarian, he might want to reply to this objection by appealing to impartiality as the secondary justice that the rule-utilitarian recognizes as a utilitarianism-independent principle. But this argument does not suffice to rebut the objection. For while a utilitarian who aims to legitimate the moral element of the need to punish might be permitted to determine the way in which claims of justice are enforced on grounds independent of utilitarianism, he must at least provide a definition of what it is to run counter to a legitimate claim of justice, that is, what it is to be an injustice, that does depend upon the utilitarian

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principle. Since Mill concentrates on the urge to punish and consequently on the enforcement of rights, he fails to provide a definition of the required sort. But the objection from justice is concerned with just such a definition. A second misgiving is this: that a defense is, in the nature of the case, prospective; its aim is to prevent oneself from becoming a victim and one’s aggressor from becoming an offender. A punishment, by contrast, is retrospective, it results from an injustice and is imposed because of the injustice. Because of this retrospective focus, punishment has the character of retaliation, albeit in a neutral sense. Punishment can secondarily acquire a prospective sense and seek to avert injustice by means either of a special or a general prevention. But the primary function of punishment is to respond to injustice, and its significance is therefore retrospective (see Chapter 8 below). With respect to the penal code, the theory of general prevention, or deterrence, is accounted utilitarian, while the retributive theory is regarded as Kantian. Mill, surprisingly, does not articulate these two possibilities, and indeed, he tends toward the anti-utilitarian retributive theory of punishment when he demands that evil be returned for evil (59). A further difficulty concerns the relationship between sympathy and intelligence. If, as Mill maintains, one’s understanding helps one to recognize a danger to society as a personal danger, then one has no more need of sympathy to prompt one to defensive action. That Mill does not spell out this objection shows that although he is aware of the difference between justice and benevolence, the full extent of the difference has not become clear to him. While benevolence restricts self-interest by means of sympathy, a good part of the demands of justice can be developed from self-interest enlightened by understanding. Pace Mill, sympathy and understanding are not so much two mutually complementary as two alternative elements. If it is understanding that expands the natural-defense instinct, then one will be concerned about threats to society only insofar as they threaten oneself as well, while if one is moved by sympathy, then one will make efforts to defend others even when one is not oneself at all affected. The possibility of justifying demands of justice on the grounds of enlightened self-interest is especially evident with respect to Mill’s own topic, the need for punishment, although a supplementary argument is needed to show this. The required argument begins with an open question: whether a danger affects one directly or indirectly by means of its threat to society, why should an institution such as that of punishment be required to motivate one to take defensive action? One would think that instinct or enlightened self-interest alone would present a sufficient motive. The answer to this question lies in a second-order danger, that of the free rider. Because any threat to society is also a threat to others, I can count on others’ defending themselves and thereby reap the benefits of having the danger

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warded off while not incurring the cost of making any effort to defend myself. It is smart to defend oneself, but it is even smarter to wait for others to do the defending, and smartest of all is to encourage others to defend society and to withhold any contribution of one’s own The danger of the free rider represents precisely the sort of secondary or subsidiary problem of justice that arises with respect to its implementation, rather than its definition, and that justifies the need to punish. Retrospectively, punishment is supposed to cancel the unfair advantage of free riding, and because punishment is to be expected, it can also function prospectively and deter one from getting mixed up in free riding. The dual function of punishment is thereby explained: it is primarily retaliation for an unfair advantage, and secondarily it is supposed to deter. When argumentation is flawed, the weaknesses and errors are seldom few. Here is a fourth argument against Mill’s position. If the moral justification of punishment lies in the principle of utility, then Mill cannot uphold his priority thesis. For in both cases the truly moral element is the same, so that the strictness of obligation will also have to be the same. Mill, therefore, defends a thesis that is convincing in itself, but he defends it with the faulty argument that justice imposes a stricter obligation than does benevolence. Now, one might try to substantiate this normative argument by appeal to the elementary character of the goods with which justice is concerned, that is, to the character of the goods with which punishment is concerned. According to Mill, punishment stems from the need for security, but in comparison with security, the need for food is still more elementary. With respect to the need for food, the distinction between justice and benevolence is conceptually indifferent. He who, like the Samaritan in the biblical parable, helps someone to whom he is under no legal obligation, or he who saves a total stranger from starvation, concerns himself with an elementary good, but nevertheless fulfills a duty of benevolence that is normatively secondary. One cannot rely upon the elementary character of the goods protected by justice to support the priority of justice over benevolence. As Mill himself saw, the mark that distinguishes justice from benevolence lies in the presence or absence of well-defined claims of right. Mill has not shown that this difference can, on utilitarian grounds, justify a normative hierarchy. The argumentative goal of providing a utilitarian justification of the priority of justice remains plausible, but it has not been reached. Mill in any case still owes us an adequate execution of the main task. In his expansive conceptual investigation of justice he does not put his finger on the semantic crux. He appeals to Bentham’s dictum that “everybody is to count for one, none for more than one” (60), and it is true both that a fundamental equality is

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recognized in this dictum and that Mill sees equality as one meaning of justice. He overlooks, however, the fact that utilitarianism recognizes equality only as the foundation for the calculation of the general welfare, not as a result of the calculation. Because of this, the individual becomes a mere means to the ends of others; in calculating collective welfare, the happiness of one can be traded off against the happiness of another. Marx and Engels are entirely justified in labeling this endorsement of trading off one against another “the exploitation of man by man.” The idea of justice is supposed to defend us from just this instrumentalization of the individual for the sake of the collective. The common moral consciousness of mankind has long taken it for granted that it is morally impermissible to instrumentalize people in this way. Kant brought this principle to conceptual clarity in his second subformulation of the categorical imperative, which states that “man is an end in himself” (G IV:428/36), but the point itself had been recognized long before. It is therefore astonishing that, in the English-speaking world, utilitarianism could for so long have established itself as the exclusive ultimate principle of morality and not have been relativized by the idea of justice far sooner. As far as Mill is concerned, the explanation cannot be that utilitarians refuse to acknowledge the demands of justice. He offers at least indirect support for human rights in Utilitarianism (62), calling the distinction between slaves and freemen just as unjust as that between nobles and serfs or patricians and plebeians. As well, he rejects aristocracies based upon skin color, race, or sex, and elsewhere, in his writings on freedom and the oppression of women, he inveighs against other injustices. The lateness of the paradigm shift in English-speaking circles cannot be explained by the absence of sufficiently clear and philosophically acute formulation of the opposing, nonutilitarian position. The practical philosophy Rawls appeals to today in his criticism of utilitarianism, the ethics of Kant (see Chapter 11 below), was worked out long before Mill’s time. Although Mill several times quotes Kant, he is not clear on the source of the difference between their positions. Mill has too vague a conception of the general welfare, and this vagueness prevents him from seeing the following open question: Is a collective benefit also a benefit to each in a distributive sense? or: Does the welfare of the group always coincide with the welfare of each individual? Mill’s insufficient conception of the problems involved manifests itself in a brief digression on Kant (4). Here Mill claims that, unbeknownst to Kant, the categorical imperative leads to utilitarianism. He argues that one who follows Kant’s moral principle must take into account “the interest of mankind collectively, or at least of mankind indiscriminately.” In order for Mill’s criticism to hold good, the phrase “or at least” cannot have a disjunctive meaning. Both the concept of general

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welfare that precedes the “or” and that which follows it must correspond to the utilitarian position. But this is not the case. Instead, Mill offers an alternative, one that corresponds exactly to the difference thesis contained in the objection from justice. For in the one disjunct, “mankind collectively,” lies the utilitarian standpoint, while in the other, “mankind indiscriminately,” lies that of justice. Because the collective interest of mankind is conceptually distinct from the distributive interests of men, Mill must decide which of the possibilities is supposed to correspond to Kant’s moral principle. The fact that Mill refrains from making this decision demonstrates the inadequacy of his conception of the problem, and this inadequacy is independent of his particular thesis about Kant; it results from the conceptual tool kit he uses in the justification of his thesis. Because moral legitimacy, which is to say, justice, means, at least in part, “good for each individual,” it cannot be wholly subsumed within utilitarian theory, not even if in certain cases collective welfare might happen to coincide with distributive welfare. Mill is certainly correct to say that justice and utilitarianism are not simply disparate; in both cases one is concerned with benefit. One who considers the benefit with which utilitarianism is concerned and that with which justice is concerned as forming a common genus might even speak of them as being “homogeneous.” The kind of benefit involved is nevertheless different. In the one case, collective benefit is at issue; in the other, distributive benefit. Because justice and the principle of utility constitute two different species of one and the same genus, the subsumption thesis, the Bentham-Mill variant of the homogeneity thesis, cannot be correct. Utilitarianism and the standpoint of justice do not stand to each other in the relation of superset to subset or whole to part. Leaving aside the possibility that they might in a secondary way stand to one another in a hierarchical relationship, the two standpoints are in the first instance horizontally, rather than vertically, related. To say that justice consists in distributive benefit is not yet to say anything about the nature of the benefit involved. The philosophical theory of justice leaves the determination of the content of the benefits conferred by justice to other, nonnormative considerations. For this reason, nonutilitarian theorists of justice can claim the same advantage that utilitarians often boast of (cf. Smart 1973, 73), and a favorite utilitarian argument correspondingly loses power. The standpoint of justice too is open to empirical considerations: it too is capable of reacting to changing marginal conditions of life in a flexible manner. Whether something is beneficial to someone depends to a great extent on the person himself, on his talent and history, on his needs and interests. For this reason, a subjective concept of benefit suggests itself; at best one can supplement it with certain objective pieces of advice about “what is truly advantageous.” One

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must, by the same token, consider very carefully Mill’s suggestion of a qualitative hedonism. For the demand that people develop their capacities for higher gratification contains paternalistic elements not so easily made compatible with the idea of justice. When it is not merely advice that is at issue, but enforceable duties, paternalism is permitted only when, as with a legitimation of rights pertaining to freedom, one can name goods that are distributively beneficial and of indispensable advantage (cf. PJ chap. 12). I maintained in the opening remarks of this chapter that even after Rawls’s Theory of Justice it was not out of place to investigate the relationship of utilitarianism to justice. In the case of the work that generally is taken to be the most ambitious defense of the utilitarian position, Mill’s Utilitarianism, this investigation lights upon several misgivings. So, at least in the case of the relationship to justice, either the status of Mill’s essay is undeserved, and there are philosophically more ambitious defenses of utilitarianism, or the status is deserved, and the position itself is weak. Mill’s Utilitarianism probably is the most ambitious defense, and it is without doubt the most influential. Compared to Bentham, Mill reads very well, but as far as the issues themselves are concerned, one comes away from a detailed examination with renewed sympathy for the sharp criticisms of Marx, Engels, and Nietzsche. With respect to the central problem of justice, utilitarianism cannot be called philosophically sophisticated.

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7.1. The Grounding’s Juridical Example (Rechtsbeispiel ) Examples in philosophy are usually meant to give vivid expression to abstract thoughts. In Kant’s Grounding, they are not limited to this function. Certainly, the categorical imperative is illustrated by putting it to work by way of example, but in seeing the imperative illustrated, we are able also to perceive a new philosophical task. As long as Kant develops the concept of the categorical imperative and investigates its validity, he holds fast to the intention of the preface and “nothing more than seeking out and establishing the supreme principle of morality” (G IV:392/5). In the very act of constructing and interpreting examples, Kant departs from this intention and, glancing momentarily beyond the project of a first philosophy of morals, or fundamental ethics, concerns himself with that second moral philosophy which, relative to fundamental ethics, can be called applied

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ethics but which, by comparison to the application of moral obligations in concrete praxis, is better named a theory of moral duties. This second moral philosophy is concerned with the categorical imperative in the plural and therefore with examples of unconditionally valid moral imperatives. While Kant reserves the systematic exploration of these duties for a future metaphysics of morals, in the Grounding he already anticipates such a metaphysics in the fragmentary form of examples. In fact, his procedure is not altogether fragmentary. For the examples he discusses twice in the second section (G IV:421–23 and 429 ff./30–32 and 36 ff.; cf. also 435/41) and introduces also in the first section, albeit without the third example (G IV:397–99 and 402 ff./9–12 and 14 ff.)— the examples, that is, of the prohibitions against suicide and false promising and the injunctions to develop one’s talents and to help others—constitute the four cornerstones of the later system of morality. Kant professes modesty on this point, reserving “the division of duties for a future metaphysics of morals” (G IV:421/30). Despite this disclaimer, we find in the second part of the Metaphysics of Morals, the Doctrine of Virtue, specifically in its “Elements of Ethics,” that the two viewpoints of the Grounding are employed: the “customary” division of duties into those toward oneself and those toward others, which is perhaps taken over from Mendelssohn (1983 [1783], 115 and 127), along with the distinction between perfect duties and imperfect duties, or duties that are owed and meritorious duties. The Doctrine of Virtue indeed grants a special weight to the examples from the Grounding and even introduces them in the same order; nevertheless, it discusses the second example from a perspective different from that of the Grounding. Since the topic of legislating perfect duties to others belongs to the Doctrine of Right, the prohibition against lying in the Doctrine of Virtue is treated as a perfect duty to oneself. The Doctrine of Virtue begins with “a human being’s perfect duties to himself as an animal being,” among which is included the prohibition against suicide, called there “killing oneself [die . . . Entleibung seiner selbst]” (DV VI:422–24/218–20). The prohibition against lying follows as a “a human being’s perfect duty to himself merely as a moral being” (DV VI:428–31/225), after which comes the injunction to develop and augment one’s talents as “a human being’s imperfect duty to himself” (DV VI:444–46/239–40). The “Elements of Ethics” concludes with duties of virtue, which is to say, imperfect duties, to others, at the head of which Kant once again places the example from the Grounding, the injunction to help others, or, as it is called here, the “duty of beneficence [Wohltätigkeit].” Not least of the grounds for the high philosophical rank of the Grounding is that its examples belie their unprepossessing appearance and turn out to signify

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much more than a mere illustration of the abstract points; they turn out in fact already to contain an anticipatory sketch of the future Metaphysics of Morals. When Kant says in a footnote that “the division of duties presented here stands as merely an arbitrary one” (G IV:421/30), he does not mean that the examples have been chosen haphazardly or at random. By “arbitrary” Kant means “not yet justified.” He thinks that the division of duties in the Grounding is apt and worthy of approval, but its rationale is made apparent only in the Metaphysics of Morals. From a historical perspective, Kant’s footnote was perhaps prompted by Johann Friedrich Zöllner’s (1784, 10–25) doubts about Mendelssohn’s division of duties, doubts into which Kant could not delve further in the Grounding, since the manuscript was already in press. The examples in the Grounding anticipate not only private morality but, with the example of false promising, also the philosophy of law and right. Looking to the future Metaphysics of Morals, the making of a false promise falls, on the one hand, under the prohibition against lying in general and so violates a duty of man to himself; insofar, the example is to be assigned to the Doctrine of Virtue, with the result that the examples in the Grounding anticipate precisely the divisions of that portion of the Metaphysics of Morals. On the other hand, although Kant does in the Grounding have in mind the prohibition against lying in general (G IV:403/15), he discusses a special case. Since the example emphasizes loss of credibility and therefore the reaction of a second party (G IV:403 and 422/15 and 31), it constitutes a lie that is unlike a false vow in that it does not affect only the liar himself. Kant’s choice of example concerns untruth to others. The Grounding’s discussion of the prohibition against lying has, therefore, to do not with the perspective of virtue but with the perspective of right. In addition, false promising is the only one of the Grounding’s examples that has to do with the ethics of right and law. For Kant takes duties to oneself to be just as much duties of virtue as are imperfect duties. To be sure, one should not overestimate the significance of the example in the Grounding for Kant’s philosophy of law and right. In examining false promising, Kant aims neither to present the categorical imperative of law, the fundamental principle of morally acceptable law that consists in the coexistence of individuals with freedom of action according to a universal law (DR VI:229–31/55–56), nor to deal with the first principle of private law, the postulate of practical reason with respect to law and right, which legitimates the institution of property (DR VI:274–76/94–95). Neither, finally, does the example concern the justification of public law and its fundamental institution, criminal punishment (DR VI:305–13/120–24). The fact that Kant deals in the Grounding with duties that are fundamental to the ethics of virtue but constitute secondary obligations from the point of view of

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the ethics of right and law can be explained by the intention of the work. Since the whole range of topics that form the primary focus of the Doctrine of Right have to do with legality, what was left for the Grounding, whose focus is morality, was but a single example with a relatively smaller importance for the ethics of right and law. At the same time, the credibility that is at stake in false promising is the basis for “all rights based on contracts” (OSL VIII:426/64). The false promise that Kant discusses in the Grounding is not only a lie to others, it is also a special case of untruth in two further respects. The lie he examines is not neutral with respect to advantage and disadvantage, but is a harmful lie; and in contradistinction to the case he debates with Benjamin Constant, it is not only “humanity in general” (OSL VIII:426/64) that is harmed by the lie, but the party lied to is himself deprived of a justified claim. With respect to these two additional features of the case, we must distinguish between the story that Kant sketches and the argument upon which he relies. Since he rests his criticism of false promising on the loss of credibility as such, independently of whether this loss harms anybody, he in fact discusses, and disqualifies, lies to others in general. As he says expressly in the debate with Constant, he rejects not only those harmful lies that are aimed at depriving some person or group of what is rightfully theirs. Insofar as “inner” lies can diminish one’s credibility before oneself, Kant discusses, as far as the core of his legitimation strategy is concerned, not only lies to others but all varieties of lying. If the following reflections concentrate on false promising, they do so deliberately, in the effort to seek out an example of a categorical imperative in the plural that is more easily legitimated than other examples, and this for two reasons. In the first place, the example does not come under the heading of a duty to oneself, a concept that is essentially foreign to the modern moral consciousness. Second, it belongs to the perfect duties, with regard to which the categorical imperative takes the more rigorous and easily understood form of claiming that actions that violate it are unthinkable, rather than unwillable. If the categorical imperative can prove itself valid here, it will have shown itself to be a moral principle capable of being applied. That it perhaps fails to function in the case of the other examples might be attributed to their “marginal conditions,” and in the case of some of the duties that Kant wants to validate morally, one might have justified doubts not only about the way he tries to do this but also about the very aim of the enterprise. The task of legitimating a perfect duty, such as the prohibition against false promising, is, however, made more difficult by the fact that the prohibition must, in contrast to imperfect duties, be shown to hold without exception. Because of this, the attempt to legitimate perfect duties can provoke the charge of, as it can be called, rigorism. So in the example of false promising it is not only the applica-

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bility of the categorical imperative that is brought under discussion, but also the question of ethical rigorism. In addition, as a third element, the example continues the debate over fundamentals between Kant and utilitarianism. Because of its concern for the consequences of action, and specifically the value of these consequences for human well-being, utilitarianism is called a teleological ethics in contradistinction to Kantianism, which is taken to represent the deontological position. This description of the two outlooks is often regarded as favorable to utilitarianism, since it treats reflection on the consequences of one’s actions as indispensable, whereas Kant excludes them entirely. What is true about this characterization of the opposing views is that utilitarianism generates moral duties from empirical-pragmatic considerations, whereas Kant’s rational, and in this sense metaphysical, ethics forbids such considerations. Now, the utilitarian maxim that enjoins one to further the well-being of all concerned has a (more narrowly construed) correlative in Kant’s duty to help others. In the case of this duty we must distinguish its application from its justification. It may be the logic of the argument itself that precludes Kant from appealing to empirical-pragmatic considerations for the purpose of justifying the duty to help, and this should be accepted by the utilitarian. For one cannot without circularity validate the duty to take into consideration the consequences of one’s actions for the well-being of one’s fellow men by arguing that the observance of this duty contributes to the well-being of one’s fellow men. But one who makes this duty his own, and does so on Kantian rather than utilitarian grounds, can fulfill it only by paying ever renewed attention to the consequences of his actions for the well-being of his fellow men. So the consideration of consequences does play a role in Kant’s ethics. To begin with, and perhaps trivially, Kant allows consequences to be considered when applying the fundamental principles of morality. One who takes the duty to help others seriously has to know which actions will result in the overcoming, or at least the attenuation, of a desperate situation. At least in the case of imperfect duties, one must inquire into consequences in a second way. Sensitive people perceive a great deal more distress than they are able to diminish or relieve. Such people are morally permitted, and indeed enjoined, to reflect on where they can intervene with the greatest likelihood of success. Similar considerations hold for the duty to develop one’s talents. Here too we frequently meet with many more possibilities than can be realized, and then reflections oriented toward consequences are certainly morally acceptable. In the dispute between Kant and utilitarianism over ethical fundamentals, the issues go beyond those mentioned above; they have to do not only with the application but with the justification of fundamental moral principles. Even here Kant allows the consideration of consequences, albeit in a strictly limited form. The

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example of false promising is well suited to showing the sort of considerations of consequences that are acceptable according to Kant, and it enables one to show, beyond this, that at least in the case of false promising the Kantian treatment of the role of consequences in moral deliberation is superior to its utilitarian counterpart.

7.2. Logic and Pragmatics Kant’s way with his examples has led many to interpret the categorical imperative as a “test for moral duties.” But the fact that Kant speaks of the fulfillment of duty in abstraction from considerations of why one is so motivated as “dutiful” (G IV:397/ 10) or, from the Critique of Practical Reason onward, as “legal,” not in the sense of conforming to positive law but instead “morally legal” (C2 V:71, 81, 118, 151/62, 69, 99, 125), speaks against this view. The supreme principle that the Grounding is supposed to seek out and establish is, however, the supreme principle of morality (G IV:392/5). If the categorical imperative is to fulfill its task as the highest principle of morality, then it must function as the criterion of morality, which is to say that it must be the criterion of purity of disposition. In the case of a duty of law such as the prohibition against false promising, this means that the categorical imperative must be the measure of the corresponding disposition to obey the law. By the same token, Kant holds that morality can only show itself on condition, first, that moral duty be observed and, second, that it be observed for no reason other than that it is there. Kantian moral worth is not neutral with respect to legality, but signifies a second level of morality, which presupposes the first (that is, legality). According to Kant at least, the test for motivational or formal correctness is built upon the assumption of material correctness, or correctness of content. Kantian moral worth does not represent an independent condition, but sharpens the demands of moral legality (see 3.3 above). Now, there could be two different criteria, one for moral legality and another for strict morality, or moral worth. It is further conceivable that only the second test—in the case of promising, the test for the disposition to obey the law—would be nonempirical in nature, while the former, the test for the prohibition against lying as such, would rely upon empirical-pragmatic considerations. This situation would relieve Kant of a certain amount of ambition and make his program of a rational ethics less provocative, and also less fascinating; for in that case the sought-for justification of morality, an experience-free, metaphysical justification, would be restricted to the formal side of moral action and would be empty as far as the material side is concerned, the system of substantial duties. By legitimating material duties both in the Metaphysics of Morals and in the examples that

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anticipate it in the Grounding, Kant shows that he does not follow this path of caution and modesty. Kant’s discussion of examples demonstrates in a particularly complicated way that he sees in the categorical imperative a criterion at once for morality and for legality. Kant does not test for universal legislation immediately. He sketches first, in a step of the argument connected to the question of moral worth, a clear decision situation in the manner of a Kierkegaardian “Either/Or.” Not until the second step of the argument, connected to the question of moral legality, does he carry out the purely rational method of universalization. In the absence of more apt designations, I will speak, in the case of the first step, of the pragmatics of the categorical imperative and, in the case of the second step, of its logic. While it is correct as far as its logic is concerned to regard the categorical imperative merely as a test for moral duties, it is wrong so to regard it with respect to its pragmatics. I shall elucidate the pragmatics of the categorical imperative only for the perfect duties. In the case of the prohibition against suicide, the “either” is to give oneself over to weariness of life and kill oneself; the “or” is to live on despite loss of hope. In the case of false promising, the “either” consists in borrowing money when that is possible only through dishonesty, and the “or” consists in remaining honest even if one thereby renounces the possibility of escaping severe distress. The either-or sketched by Kant consists in a dilemma. Both situations are regrettable, but from different perspectives. One who remains loyal to life despite loss of hope contravenes his self-interest, as does one who remains honest although his honesty consigns him to a desperate situation. And neither is the damage to self-interest of merely marginal importance. Being weary of life and being in severe distress are situations of existential weight. On the other hand, Kant postulates in the pragmatic part of the argument that one who kills himself out of weariness of life violates the command of duty, as does one who cheats another in order to free himself from his dire straits. In this way, Kant’s either-or consists in that dramatic alternative between duty and inclination of which the biblical verse holds: “He who is not for me is against me.” One who chooses duty in Kant’s hypothetical extreme situation must sacrifice inclination, and one who decides for inclination must eo ipso contradict duty. Kant finds himself forced to the construction of these dilemmas because either a natural or a reflected harmony often subsists between duty and inclination. People normally have a “natural” urge to live (G IV:397/10), and businessmen tend to be honest in order not to lose their customers, debtors, and creditworthiness (G IV:397 and 402/10 and 14–15). Because duty and inclination overlap for long stretches, one can identify purity of disposition, “action for the sake of duty,” only in situations that take the form of dilemmas. Only in a case of conflict between duty

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and inclination does one recognize that to choose duty is, precisely thereby, to renounce self-interest. Here, but only here, does the material correctness of an action at once put its morality to the test. In the examples in the Grounding, Kant does in fact test for more than mere legality. It is not, however, universalizability as such that is used to check for moral worth, but rather universalizability as applied in the exaggerated situation in which a decision must be made. Beyond this, the test for moral worth presupposes something that is not proved until the second step of the argument, the actual universalization procedure: in each case only one maxim is universalizable and therefore accords with duty. In this way, Kant gives to understand, through his treatment of the examples, that moral worth cannot be examined on its own, but only relative to a knowledge of moral legality. Since moral worth, as the second stage of morality, presupposes its first stage, moral legality, it assumes a knowledge of this legality without demonstrating it. One might regard this approach with suspicion. In truth, we will see that the approach chimes well with Kant’s primary interest, the rejection of moral laxity. With respect to the logic of the argument, the test for moral worth is hypothetical: whatever the moral law consists in, it is to be fulfilled even when there is no inclination to do so. With regard to the step of the argument that remains to be carried out, the step I have called the logic of the categorical imperative, it is disputed whether Kant’s criterion of morality, the categorical imperative, represents a measure only of prohibitions or of moral injunctions as well. The answer has to be the latter. Because prohibitions and injunctions are contraries from the point of view of modal logic, it might appear that a criterion for prohibitions can insofar function as a criterion for permissibility but not for injunctions. For this reason, the answer to the controversial question can seem paradoxical, but the paradox resolves itself when one takes the first step of the argument, the dilemma between duty and inclination, into account. To begin with, Kant does not run through the second step of the argument, the demonstration of a moral duty, in a positive way. True, he does in the promising example maintain that “the concept of the action itself contains a law for me” (G IV: 402/15), but he justifies the “law of honesty” only e contrario, by proving that false promising is not universalizable. Although Kant formulates the categorical imperative as a positive command—“Act only on a maxim such that . . .”—he applies it in the Grounding in its negative form only, as a measure of prohibitions. Moreover, this “negative application” holds good not only for the two perfect duties, the prohibitions against suicide and lying, but also for the imperfect duties.

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There too Kant discusses maxims that are contrary to duty, and claims that neither an unwillingness to hone one’s abilities nor an indifference to the distress of others could be willed as universal laws of nature. Thus, what is probably the dominant way of reading Kant appears confirmed, the reading according to which the categorical imperative is a measure of prohibitions alone. However, in the dilemmatic situation, the prohibited actions are not contrary to, but contradictory of, the corresponding positive achievements; thus suicide contradicts living on, a dishonest promise contradicts an honest one, the neglect of one’s talents contradicts their development, and indifference to the distress of others contradicts helpful action. In a strict dilemma between duty and inclination there is no third way, no chance of “washing one’s hands in innocence.” As Kant puts it in the essay on religion, “disposition with regard to the moral law [can never be] indifferent” (R VI:24/49). Because the dilemmatic situation does not allow an intermediate resolution of the conflict between self-interest and duty, the categorical imperative is not only a direct criterion for moral prohibitions and, because of the modal-logical equivalence of “not prohibited” and “permitted,” an indirect measure of permissibility; it represents as well, due to the exclusive disjunction of the alternative possibilities for action—either kill oneself or live on, either make a false promise or make an honest one—a direct criterion for moral injunctions. Depending upon the perspective adopted, therefore, it follows that not only the imperfect but also the perfect duties are “duties of commission,” and not only the perfect but also the imperfect duties are “duties of omission.” One who refrains from dishonesty “performs” an honest deed in virtue of this omission, and one who is not indifferent to the plight of others is thereby helpful.

7.3. Two Concepts of Rigorism According to the rigorism of which Kant is frequently accused, the categorical imperative is supposed to demand observance without exception, something that does not always agree with our moral intuitions. In the case of a collision of duties, namely, a case in which one duty can only be fulfilled at the expense of another, it is hard to uphold the view that duty is to be followed without exception. According to this criticism, Kant, who defends the exceptionless character of duty in spite of this difficulty, does not do justice to the difficulties of human decision making. Of course, not all collisions are collisions of duties. Conflicts between a person’s various interests do not qualify as such, and neither do conflicts between self-interest and moral duty. A first variety of conflict between duties holds

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between different ways or cases of applying the same duty. Using the injunction to help others as a case in point, one might, for example, ask whether one ought to remain with one’s ailing parents or join the Resistance. However such “conflicts of application” are decided, the validity of the injunction to help remains recognized. The question of rigorism arises only at the second level of collisions between duties, at the point at which one faces a conflict of priorities between different kinds of duty. The conflict of priorities most widely discussed in philosophical ethics is that which concerns the collision between the prohibition against lying and the injunction to help. The favorite passage cited in support of the claim that Kant espouses a counterintuitive rigorism is that in the essay “On a Supposed Right to Lie Because of Philanthropic Concerns,” in which Kant upholds the duty to the truth even “to a murderer” (OSL VIII:425/63). It is worth noting in passing that the example was invented neither by Kant nor by Constant, whom Kant criticizes. What is at issue is an old puzzle case that has received various answers in the course of history. While a permission, and indeed the requirement, to lie has been defended by certain Old Testament authors, by Xenephon, Ovid, Quintilian, and by Enlightenment philosophers of law such as Grotius, Pufendorf, Thomasius, and Christian Wolff, Kant stands in the tradition of Augustine and Thomas Aquinas, who defend an absolute prohibition against lying. This view, to be sure, remains disputed. Schopenhauer, in the seventeenth section of his second prize essay, On the Basis of Morality, offers respectable reasons for defending lies as “a necessary defence against force and cunning.” Respectable reasons are also conceivable for limiting openness in a way that strikes some as already dishonest but that others take to be part of civilized and generous human intercourse. (For the conceptual history of lying, see Müller 1962 and Bien 1980; for recent interpretations of Kant on the subject, see Geismann 1988 and Korsgaard 1986; and for older work on Kant, see Geismann and Oberer 1986.) In what follows I shall not be concerned with the whole of Kant’s “theory” of the prohibition against lying, but only with the reflections in the Grounding. In this text, Kant discusses neither a conflict of application nor one of priority, but only the competition between duty and inclination. The rigorism that he endorses in that context is directed against the moral laxity that looks for exceptions in the interest of self-love (G IV:422/30–31). A rigorism of moral worth, or of disposition, directed against laxity in this way needs to be distinguished from the legalistic rigorism that would forbid any exceptions to duty, including exceptions for the sake of other moral duties. In order to respond to the charge of rigorism in a differentiated way, we must first distinguish between the nature of an obligation and its scope and, with regard

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to scope, distinguish two concepts of validity without exception. Kant, though, does not do this, and thus provokes certain misunderstandings. With respect to the nature of obligation, he develops the contrast between hypothetical and categorical varieties and maintains with crystal clarity the view that the validity of moral duties is exclusively categorical and therefore independent of self-interest. But it does not follow from this that a moral duty must be valid absolutely without exception. An intolerance of exceptions that is relative to self-interest—in short, a relative intolerance of exceptions—is indeed quite different from an absolute intolerance of exceptions that holds across the board. The relative intolerance of exceptions, moral rigorism, forbids one from lying in order to gain some advantage thereby, or to escape an imposition such as a justified punishment. By contrast to lies of this sort, a lie that serves the justified interest of another or saves a life, for example, cannot eo ipso be accounted immoral. It is only legalistic rigorism that would hold such a view. Kant himself distinguishes between perfect duties that admit of no exceptions and imperfect duties that on occasion allow of exceptions. Whether we think now of the prohibition against homicide or theft or, in the case of the Grounding, of the prohibition against false promising, duties of right fall into the class of perfect duties, so that the difference between relative and absolute intolerance of exceptions might seem superfluous for our example. One gets the impression that, as far as the categorical imperative of law is concerned, it is legalistic rigorism alone that holds. Nevertheless: the Grounding can rest content with the first, weaker concept of rigorism, both in the case of the categorical imperative as a sort of obligation that is independent of self-interest and in the case of autonomy as legislation independent of self-interest. In order to preserve the categorical and not merely hypothetical character of morality, only exceptions to the benefit of inclination are to be rejected. It is in this rejection, and this rejection alone, that one who defends the unconditional character of moral obligation has to be uncompromising; such a person is satisfied with the relative intolerance of exceptions. The distinction between perfect and imperfect duties does not, therefore, coincide with that between the relative and the absolute intolerance of exceptions. Rather, the former distinction operates within the realm of the relative intolerance. The exceptions allowed by imperfect duties and not allowed by perfect duties are exceptions based upon inclination. That human life is such that different duties can often enough come into play in one and the same situation and that it may happen in such cases that one duty can be fulfilled only at the cost of another and that conflicts of priority can therefore occur is a topic whose significance for moral philosophy Kant underestimates. Insofar as what is at issue is solely the ground of moral obligation, as is the case in the ethical prolegomena, this topic can legitimately be set aside. For

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the existence of collisions of duties that take the form of conflicts of priority issues from the complexity of the situations in which people find themselves. In the situation sketched in Constant’s example, it is highly likely that an injustice can only be prevented by dishonesty. The reasons for complications of this sort lie in the theory of action; they define the conditions of applying the moral perspective, not the perspective itself. As soon as Kant develops a system of moral duties, as he does in the Doctrine of Virtue, he must nevertheless also discuss the scope of these duties. In order to escape the trap of his legalistic overvaluation of the categorical imperative, he would, in considering this issue, have to separate clearly the ground that determines a duty as a duty from the question whether its validity allows of certain exceptions. When several duties are in play at once and one of them cannot be fulfilled at all, or at least not completely, the demand for an absolute intolerance of exceptions makes little sense. The obtaining of such an absolute intolerance would in any case not count as evidence for or against the moral worth of a person. For that job, as noted above, the relative intolerance that forbids any exceptions for the benefit of satisfying inclination is sufficient. What is colloquially referred to as an ethics of disposition is often nothing other than an absolute prohibition against exceptions, that is, legalistic rigorism. Some do believe that certain moral duties should hold at all costs, even that of violating other moral duties. Someone who opposes an ethics of disposition to an ethics of responsibility wants, in the first instance, nothing more than engagement with the greater complexity of human action, especially moral action. When competing duties are in play, it is right and fair to demand that one not dogmatically rate one duty simply “more moral” per se than the others, but that one instead first simply notice the collision of duties and then resolve it by weighing the goods at stake. Since the deliberate refraining from action has itself the character of an action, the weighing of goods takes place in any case. One who refrains from hindering an injustice, especially such an elementary injustice as murder, does the wrong of omitting to help another. To try to avert the murder by lying is to do the wrong of dishonesty. In this dilemma one weighs the goods by searching for the lesser evil, and in this new context Adorno’s claim comes true: thrown into a dilemma by the potential murderer, one cannot, from “within falsity,” act with absolute rightness, one cannot act without doing wrong. We tend to read Kant’s famous debate with Constant as having to do with a conflict of priorities, and we then believe that Kant espouses an absolute intolerance of exceptions to the prohibition against lying. To most readers, the idea that one is

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not permitted to lie when one could save a life by doing so appears nothing short of grotesque. The “love of mankind” referred to in the title is, however, to be understood as an inclination, albeit an admirable one. So Kant does not in the first instance take himself to be discussing a collision of duties—prohibition against lying versus injunction to help—but once again the choice between duty and inclination. One could alter Kant’s story and consider a case of helping that is prompted not by mere inclination but by a feeling of duty. If the persecuted individual were the spouse of the person of whom information was requested, there would even be a positive duty of right to help involved. The case of a collision between the prohibition against lying and the injunction to help, which in the case just outlined is not merely an indeterminate but a well-defined duty, would, however, deviate from the case considered by Kant. In addition, even if Kant does come close to legalistic rigorism in some passages in his works on moral philosophy (for example, OSL VIII:430/67), that view is not found in the discussion of examples in the Grounding. Contrary to what one would expect, legalistic rigorism is not thoroughly discussed and rejected in the Doctrine of Virtue, although it is at least watered down. In one of the “casuistical questions,” Kant speaks of a collision of grounds of determining action and defends, albeit in the form of a question, a “law of moral-practical reason” that would grant leniency in the form of permitting something in itself impermissible, when it is done for the sake of preventing a still greater violation of the moral law (DV VI:426/221–22). The Doctrine of Right provides another example of weighing goods against one another. If, says Kant, there are too many accomplices to a murder, the sovereign is allowed to condemn the criminals to deportation rather than to their deserved deaths (DR VI:334/143). And last but not least, Kant has a place for the right of necessity, according to which certain actions that are in fact criminal, in that they violate the rights of others, are nevertheless not punishable (DR VI:235 ff./60 ff.). Although Kant mentions neither the “leniency” of moral-practical reason nor other points of view more than in passing, and although he in general deals too cursorily with the problem of collisions of duty, one finds in his work a number of arguments for the weighing up of goods. One who gathers together the dispersed arguments will perhaps discover that the Stoic distinction between rules of action that hold for the most part and those that hold in exceptional situations is not absolutely foreign to Kant (cf. Forschner 1983). In my view, it is a different aspect that is more important. The Stoic distinction presupposes that one knows what is morally required in a “normal case,” one in which no additional duties are in play. Insofar as the Grounding inquires into the

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ultimate determining grounds of morality and thereby rightly discusses the dilemma between duty and inclination, one looks to it only for a justification of the normal case of a duty and not for the exceptional situation of a conflict of priorities. To be sure, the problem of the Grounding would reappear in the case of a conflict of priorities. In order to be assured that the conflict is not being resolved according to the principle of self-love, the action must issue from a universalizable maxim. Viewed formally, the maxim in question would be more complex than the simple maxims with which we are familiar. If we call a simple maxim—of honesty or dishonesty, readiness to help or indifference—a basis maxim, then the maxim that resolves the priority of conflicts must, to begin with, consist of more than one basis maxim, and each basis maxim involved must already have passed the categorical-imperative test: honesty and the injunction to help will enter into the complex maxim, not dishonesty and indifference. The complex maxim must, second, contain a priority rule for the basis maxims. In contrast to the basis maxims, the priority rule would be formulated as follows: Under conditions A—say, the saving of a human life—a violation of honesty is allowed. Whatever these more complex maxims would say in the end, the minimal condition for their being morally worthy would lie in the universalizability of the priority rule. In short, I am suggesting that conflicts of priority would, in the framework of a Kantian ethics, be resolved by a two-level universalization procedure.

7.4. Nonempirical Universalization In the dilemma of duty and inclination constructed by Kant, there is but one determinate means of not sacrificing inclination, adhering namely to the “impudent demand of self-love” (die Zumutung der Selbstliebe; G IV:422/my translation), which has the status of a pragmatic imperative. When one is weary of life, this imperative counsels suicide; when one lacks money and means of repayment, it counsels a false promise; and so on. In the categorical-imperative thought experiment, one examines whether the relevant pragmatic imperative can function only as an ad hoc means or whether it can be established as a universal law of nature. A law of nature holds at all times and for all people; so with the universalization demanded by the categorical imperative, Kant rejects two different sorts of privilege. The first sort of rejected privilege—in which I imagine that the maxim I am following at the moment is one I follow throughout my life—presents a demand for a weaker sort of universalization. For duties to oneself, it is in fact this alone, the universalization of cases, that plays a role. In opposition to the privileging of

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the present moment, one is to universalize the singular, special case so that it becomes the model for all cases. Accordingly, one who wants to kill himself because of the unpleasant feelings constitutive of “weariness of life” must also want to kill himself when afflicted with any unpleasant feeling at all, for example, hunger, thirst, or fatigue. Kant claims, however, that such a situation is unthinkable for a being whose life processes are in large measure guided by unpleasant feelings. A living being of the sort envisaged would be very poorly designed. Instead of remedying the lack of energy signaled by hunger, thirst, or fatigue, thereby permitting life to continue, such a creature would cut off its life, would destroy it. The soundness of this example can be shown by asking two questions. First, in using pleasant and unpleasant feelings partially to define human life, does Kant not make dubious teleological assumptions? Although it is popular to put this question to Kantians, it is easier to answer than is insinuated by the skeptical undertone of those who ask it. By contrast, a different question, which is not raised, is much more difficult to answer: Is the absence of the first sort of universalization, universalization of cases, a sufficient argument to disqualify suicide as immoral, insofar as it is premeditated and deliberate? This question is philosophically more important, since answering it requires that one deal at the same time with the question whether there is any such thing as a duty to oneself. Current skepticism about a duty of that sort would in any case have to begin with the question of the moral status of suicide, as would a refutation of that skepticism. In opposition to the motto of all privilege and discrimination, “Quod licet Jovi, non licet bovi,”1 Kant holds that the maxims permissible to one person must also be permitted to every other person. The second, stronger universalization demands that the maxim that I now obey be followed by everyone. In virtue of this universalization with respect to persons, Kant’s categorical imperative contains the idea of justice. Because, however, the universalization of cases is also demanded, the categorical imperative cannot be reduced to the idea of justice. Kant does not, it should be noted as well, justify duties to others directly, with an argument from justice. He does not, for example, declare that one who promises falsely is a free rider with respect to the institution of promising. Kant indeed would not deny that one who promises falsely acts as a free rider, but he would not take this point to be a sufficient argument for the immorality of false promising. For the question why free riding is immoral remains open, and Kant answers it with universalization with respect to persons. The free rider’s maxim of promising falsely when it suits him is immoral only because it cannot be thought coherently as a natural law. 1. That which is allowed to Jove is not allowed to the ox.

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In the Grounding, Kant does not tire of asserting the failure of universalizability for each and every example of an immoral maxim. Of false promising, he says in the first section that “I can indeed will the lie but can not at all will a universal law to lie” (G IV:403/15). In the second section, he writes that the maxim that allows false promising “could never hold as a universal law of nature,” and that it “could never . . . be consistent with itself” and “must necessarily be selfcontradictory” (G IV:422/31). The test that Kant claims to carry out here is of a purely rational nature and is to be distinguished from two universalization procedures that have proponents in current discussions in philosophical ethics. First of all, it differs from the concept of universalization that derives exclusively from the logic of language. Someone such as Richard Hare (1965, chap. 2), who demands only a consistent use of language, does indeed set up a nonempirical criterion. All the same, he does not satisfy the demands Kant makes on a moral principle. From a systematic perspective, the universalization derived from the logic of language has neither a self-sufficient nor a primary significance. Hare can evaluate a maxim that commits one to a false promise only by confronting it with other maxims and then discovering that selfsame property called “morally good” or “morally bad.” According to Kant, by contrast, a maxim that commits one to a false promise is morally reprehensible as such and not only in comparison with other maxims, for example, that which counsels suicide from weariness of life. Because the universalization derived from the logic of language can check only the coherence of a moral language, it leaves open the question of which of various alternative moral languages is morally adequate. In order to escape a relativism of different internally consistent moral languages, Hare (1965, chap. 7) supplements his universalization procedure with a variant of utilitarian ethics; and because Hare’s systematically primary criterion of morality lies in this supplement, his ethics as a whole belongs to the utilitarian tradition. Hare’s principle of universalization merely extends or refines utilitarianism in a way that is almost self-evident. The demand for logico-linguistic consistency is also contained in Kant’s categorical imperative. When Kant claims that “the universality of a law [of false promising] . . . would make promising itself . . . quite impossible” (G IV:422/31), his argument differs also from an empirical-pragmatic interpretation of universalization. Someone who follows Marcus Singer (1961, chap. 4) in holding to be immoral actions that have undesired consequences if they are carried out by everyone upholds a rule-utilitarianism and appeals to considerations of purpose and consequence that go beyond the “concept of the action itself” (G IV:402/15). Considerations of consequences that belong to the “concept of an action in itself” and are also allowed by a rational test can be called action-internal and must

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be clearly distinguished from action-external considerations. Consequences that have nothing to do with the concept of the relevant action but can play a role in the decision whether to perform the action all the same are action-external. Kant holds that credibility is internal to the action of promising, while freeing oneself from distress by promising is external to it. In the case of the injunction to help, the action-external consequences lie in the expectation of a reward, either ideal (in the form of gratitude) or material (in the form of money, for example); the actioninternal consequences consist in actual success, eventually, at the end of a complicated chain of actions, in overcoming distress—for example, by pulling a drowning individual from the water in time—or in attenuating it, as when one helps someone contemplating suicide to take heart. Because one can never be sure how one is to bring about action-internal success of this sort, it is not possible even for an ethics as demanding as Kant’s to free people from all uncertainty regarding how to lead a morally adequate life. To return to conflicts of priority: Pace Kant in his debate with Constant, we must understand the action to be accomplished in these cases as structurally complex. Because of the situation with which one is presented in such a case, the decision space contains, in addition to the question of honesty versus dishonesty, the question of helping versus refusing to help. Internal to the complex action is the question of where it is that the greater injustice lies, in the refraining to help that preserves honesty or in the dishonesty that tries to help. External to the action would be the question of which solution is less risky; perhaps I am honest in order to avoid being caught out by my lie, thus provoking the rage of the murderer and endangering my own life. Also external to the action would be the question of which reaction is likely to be more lucrative; perhaps I decide to tell the lifesaving lie in the hopes of receiving a generous reward for doing so. To the idea that a rational and, in the Kantian sense, metaphysical universalization procedure allows only action-internal consideration of consequences, one might object that Kant himself does not adhere to it. In discussing the falsepromising example, namely, he says that “even the end [to be attained by the promise]” would be made impossible (G IV:422/my translation). Kant’s reference to an end would, however, run contrary to his rational objective only if the end were action-external. But this is not the case. Because Kant asserts the impossibility of the end to be attained in connection with the impossibility of the false promising itself, and because he moreover grounds the impossibility of the end by appeal to the absence of credibility, and because, finally, credibility belongs to the concept of promising, I understand Kant’s reference as explicative. Since promising itself would be impossible if there were no credibility, it follows a fortiori (and without further considerations of consequence) that any end to be attained by means of promising is impossible. The impossibility of the end is

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supposed to be logically implied by the impossibility of promising. As a result, Kant’s goal of a rational demonstration is not damaged, but neither has the demonstration yet begun. The frequency with which Kant repeats the claim that false promising is incoherent is matched by the brevity of his argument for the claim. The proof is actually indicated in only a half sentence: “inasmuch as no one would believe what was promised him but would merely laugh at all such utterances as being vain pretences” (the German “Vorgeben” [pretences] here has the sense of “idle feignings”) (G IV:422/31). Kant’s chariness with detail here has abetted many misunderstandings. Since the maxim is supposed to contradict itself when made into a universal law of nature, the contradiction needs to be sought in the maxim itself and not in any additional action-external consequences. And since the contradiction is not supposed to lie in the maxim of promising as such, but only in that of false promising, the contradiction must lie in the combination of “promising” with “false” (in the sense of “dishonest”). In an earlier attempt at an interpretation (Höffe 1987, 109–12), I sought the contradiction in the opposition between a promise as the acceptance of a commitment to oneself and dishonesty as a revoking of that commitment. The idea was that a promise that one makes knowingly, while fully intending not to keep it, is underpinned by the contradictory maxim that a commitment to oneself is at the same time no commitment to oneself. I still think that this interpretation is correct, but I now think that it needs supplementing. In order to reconstruct the example of the Grounding, two further parts need to be added to the argument. In the first place, the contradiction can be identified only by making essential use of the intermediate step concerning the loss of credibility, and it, second, must appear only when one attempts to universalize the maxim of false promising; it cannot be present already in the individual case of a false promise. Without the intermediate step, the argument does not yet touch upon the problem situation characteristic of the Grounding, namely, that someone else is lied to. As long as one abstracts from the issue of credibility, the contradiction between accepting and not accepting a commitment would obtain also in the case of a false oath. The contradiction identified in my earlier account is aimed at securing a stricter conclusion, one belonging to the ethics of virtue rather than only to the ethics of law and right; the duty violated is a duty to oneself, which is not discussed in the Grounding’s second example. The characteristic intermediate step can be taken into account if one, in a first semantic step of the argument, shows credibility to be a defining element of promising. The demonstration of this point has the status of a preliminary semantic step, and it can be unproblematically empirical.

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Once again the interplay between anthropology and metaphysics characteristic of Kant’s ethics comes to light (see 4.1–2 above). The human capacity to give one’s word, and to do so either honestly or dishonestly, has a number of anthropological and perhaps also social-historical presuppositions, and we know of this capacity only through experience. The fact, however, that if a human being is in a position to make a promise, then, in the face of the alternative “honest or dishonest,” morality forbids the second option—this and only this, claims Kant, is to be determined independently of experience, and insofar metaphysically. This independence of experience holds first and foremost of the determining ground of honest promises, secondarily of the prephilosophical knowledge of morality, the natural consciousness of duty, and thirdly of the confirmation that philosophical ethics offers after the fact. The other examples in the Grounding also contain a preliminary semantic argument. In the case of the prohibition against suicide, for example, the semantic element is found in the definition of human life through feelings of pleasure and pain. In the case of the prohibition against unwillingness to cultivate one’s talents and the injunction to help others, not only the assessment but also the very understanding of the semantic premise is disputed. I conjecture that Kant’s premise in the first case is that the cultivation of aptitudes and talents is part of the concept of the will, as the practical reason, of a natural rational being such as man. In the case of the injunction to help others, Kant will say that natural rational beings can end up in distress and that on the assumption of a plurality of such beings it is part of the concept of the will not to refuse help from one’s fellow human creatures as a matter of principle. The main legitimating argument from the loss of credibility follows the semantic preliminary argument. Now, the empirical-pragmatic interpretation of Kant’s argument also appeals to the loss of credibility. Since Kant, in the Grounding, operates exclusively with this argument from the loss of credibility, one might think that he deviates unwittingly from his rational account of moral legitimation. Whether this is actually the case and Kant slides from a rational to an empirical-pragmatic interpretation of his own point depends upon the nature of the argument offered. On the empirical-pragmatic interpretation of Kant, the loss of credibility represents an action-external consequence of false promising, while on the rational interpretation it represents an action-internal consequence. Whether a loss of credibility really is an action-internal consequence depends upon the nature of the linkage between the preliminary semantic argument and the main legitimating argument. To begin with, credibility must be ascribed to the concept of promising as such, so that it is even possible for the loss of credibility to have an

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action-internal significance. It must then be shown that if there were a law of nature necessitating false promising, the action-internal condition of promising would go missing, whereby it would follow that a law of false promising would be self-contradictory. So only when, first, credibility represents a defining element of promising and when, second, the loss of this defining element is inexorably posited with the idea of a law of false promising can Kant arrive at his dual goal—namely, that of proving in a purely rational way that the moral prohibition, in relation to inclination, holds with strict universal validity.

7.5. Suggestion for a Reconstruction Kant does not present the two-part argument in detail. His manifold assurance that the universalization of false promising runs into contradiction stands in a peculiar contrast to the absence of a precise demonstration of the point. I would like to suggest a way to provide the missing demonstration and at the same time claim that without such an attempt at reconstruction neither defense nor critique of Kant will be convincing. The Preliminary Semantic Step The reconstruction of the contradiction begins with the “concept of the action in itself” (G IV:402/14) with which the one in distress seeks to relieve his need of money. The question is whether promising falsely puts at risk an element of the meaning of the concept. An empirical-pragmatic legitimation also begins with the concept of promising. According to that style of legitimation, promising is accounted an institution in the sense of a socially binding rule of action (cf. Rawls 1955, 29 ff.; Wolff 1973, 166; and Hume 1984 [1740], 2.2.5). Institutions of that sort, it is further claimed, define advantages and duties. They coordinate one’s actions with those of others and offer thereby the chance of a reciprocally advantageous coexistence for all. The general advantage, to be sure, is obtained only if one agrees to make promises in the first place, and this in turn presupposes credibility; that is, it presupposes that one can expect promises to be kept. The empirical-pragmatic style of legitimation agrees with Kant’s in finding that credibility belongs to a promise. A difference between them might lie in the nature of the belonging. According to Kant, credibility is a defining element of the institution of promising, while, according to his opponents, it does not play a role until one asks the additional question why one should agree to participate in the institution. Another difference is more important: in the empirical-pragmatic

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legitimation, credibility as such is at issue, while in Kant’s purely rational legitimation, only an aspect of credibility is at issue, namely honesty. Dispute between the two positions begins already with the concept of promising and does not break out only over the nature of the universalization. The concept of promising can be reconstructed in the following way. According to the first, “generic” element, one who seeks to obtain money by means of making a promise wants not a gift but a loan. Kant does not discuss a fourth example, that of a possible duty to help on the part of a potential creditor. Readiness to repay the borrowed money at a later date belongs to the concept of a loan as a matter of pure conceptual analysis. Borrowing money is a reciprocal affair, an exchange. The mutual giving and taking can take place only when the creditor and the debtor are, each in his way, able to pay (from the objective viewpoint, so to speak) and willing to pay (from the subjective viewpoint). Now, there are various ways of borrowing money. According to the second, “specific” conceptual element in the example we are looking at, we are concerned, in a case in which one borrows by promising to repay, with a special case of exchange, one different, for example, from borrowing by providing collateral. In this special case, the reciprocity is displaced in time, though not exclusively so displaced. Even in the case of a loan without collateral, there is a simultaneous reciprocity as well, but it takes place on different levels. Instead of providing a material equivalent for the money as security, one gives simply one’s word as collateral. The exchange should nevertheless restore things to a single level in the end, since readiness to repay is a part of accepting a loan. Because, with respect to the guiding, material component of the exchange, it is in the first place the one party that gives and the other that receives, it is, once again as a conceptual matter, the first party that bears the risk. In this situation, the mere words that one utters, “I promise that . . . ,” aim to inspire credibility, and this in two respects. The content of one’s word is supposed to be credible, the “p” that one promises, and also the giving of one’s word, signaled by “I promise that. . . .” The first, “propositional” credibility ranges over the content of the promise and signifies a double creditworthiness: objectively, the expected capacity to pay, and subjectively, the expected readiness to pay on the agreed upon date. Credibility is not, however, decided by creditworthiness alone; a second, “language-pragmatic” credibility is also involved, that raised by the question whether the expression “I promise that . . .” is intended honestly and actually stands for the resolution to keep the promise. Of the two sides to credibility, the propositional creditworthiness and the language-pragmatic honesty, Kant singles out only the latter, a thematic limitation that is hard to understand from the empirical-pragmatic perspective. In order to

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coordinate one’s action with that of others both sides are needed, propositional as well as language-pragmatic credibility. For the empirical-pragmatic style of legitimation, but not for Kant, the reason for a loss of credibility is a matter of indifference. For the former type of legitimation, the question whether people might, for lack of intelligent foresight, generally underestimate future difficulties and fail to keep a number of promises for this reason, despite the best of intentions, is just as important as the other question, whether a good intention, that is, honesty, is absent or not. One could indeed regard the language-pragmatic credibility of the petitioner as objectively more fundamental and grant it priority within the empirical-pragmatic project of legitimation. For when a promise is not intended honestly, repayment will not be forthcoming despite creditworthiness. In some cases, though—for example, that of children—creditworthiness is more important. In addition, Kant is interested in honesty, not simply primarily but exclusively, and his approach to moral philosophy speaks in favor of this. An ethics such as Kant’s, which concentrates on that for which people can be fully responsible, directs itself toward the determination of the will. It is interested, not in future events as such, since these are in any case only partially under our control, but in that which is decided here and now; it is interested in the present resolve. Just this aspect of things is given thematic attention in the case of promising when one leaves propositional credibility to one side and deals only with language-pragmatic credibility. One who follows Kant and investigates neither the question whether a promise is fulfillable nor whether it has been made by a dependable or a forgetful person but rather asks only if the promise was given honestly or dishonestly is one who pays thematic attention to the single element of the concept of promising that is relevant from the point of view of an ethics of the will. The Main Rational Argument After it has been determined that honesty is the morally relevant conceptual element in promising, the contradiction can finally be reconstructed. The motivation for dishonesty is not hard to find. The needy individual wants to obtain money despite his knowledge that he will not be able to repay it. Against this—so goes the first attempt at reconstruction—speaks the fact that in this way a loan becomes transformed into a gift. The moneylender is, however, by the definition of lending, not prepared to give the money outright. The “transformation” occurs against the moneylender’s will and, in addition, deprives him of property; so the false promise ends up as theft.

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According to this attempt at a reconstruction, false promising does indeed appear as a violation of duty, but the argument meant to establish this makes no essential use of the concept of honesty and so misses Kant’s actual argument. A second reconstruction attempt observes first that in the world in which we live both options, honest and false promising, are really possibilities. Because the creditor cannot look into the heart of the debtor and establish his true intention, it remains uncertain in a particular case which of the two possibilities is actual. Now, one who shies away from risk will be deaf to mere words and will lend his money only against sufficient collateral. One who, by contrast, is prepared to take risks will let himself be rewarded by the corresponding interest, will hope for honesty, and will agree to a loan without collateral. In the real world, promises are not in any case unanimously false, and trusting people when they give their word is a “rational” option that is not in itself contradictory. Things would look different if a natural law ensuring that all promises were false were to obtain. In this hypothetical world, no one who promises anything would ever intend it honestly. The language-pragmatic credibility that is intended by a promise as a conceptual truth would be retracted through the law of dishonesty, not merely on occasion but on principle. And this is where the contradiction lies. The conceptually internal goal of promising, that is, the universal goal that lies in pragmatic credibility, would be impossible in principle as a result of dishonesty necessitated by law. I shall call this impossibility a pragmatic impossibility or a pragmatic contradiction. By implication, the petitioner cannot achieve his particular goal of freeing himself from distress by means of a promise. In a world governed by dishonesty there is no longer an alternative. The creditor knows that the expression “I promise” does not mean what it says. The hope of coming across an “honest rogue” is destroyed, and it would truly be the case that “no one would believe what was promised him, but would merely laugh at all such utterances as being vain pretenses [i.e., idle feignings]” (G IV:422/31). In a natural order that ties the speech act of promising to dishonesty, relying on a promise is no longer a rational option even for a creditor who is prepared to take risks. This, and not only additional empirical-pragmatic considerations, is the reason that it would be impossible to realize the general aim of finding a lender and a fortiori impossible to realize the particular aim of freeing oneself from distress. Whether the impossibility of borrowing money without collateral would eliminate many opportunities for generally advantageous cooperation and would therefore be regrettable is something that must be decided on the action-external grounds, considerations that are empirical-pragmatic relative to the concept of promising. Kant no longer needs to

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put them forward. Since the attempt at strict universalization fails, the target conclusion has been reached. The promise constitutes a violation of duty, and because the violation occurs in the name of one’s own welfare (“in order to escape from distress”), it is not only contrary to moral legality but is positively immoral. Empirical-pragmatic considerations are not only unnecessary for establishing whether false promises are morally permissible, they also do not even lead to a contradiction. A world in which promises are never trusted, because of disappointed expectations, might be exceedingly inconvenient, but it is not logically impossible. Even if one assumes the extreme case in which people no longer speak with one another, because of rampant dishonesty, and adds that humans cannot live without speech, even if a world of disappointed expectations would end up as a world without people, one would find nothing unthinkable about the situation. A society that does not recognize the institution of promising is merely foolish. By contrast, one who makes a false promise behaves immorally. The contradiction in false promising could also be unearthed in the form of an anti-free-rider argument. One would then say that the false promisor expects from his would-be lender the honesty that he himself is not prepared to adhere to. He is a free rider with respect to the institution of promising. The petitioner can escape from his plight only if he is treated honestly by the person he approaches; he will not reach his goal if his request receives an affirmative answer that is not meant seriously or an affirmative answer that is backed up by the provision of worthless, because counterfeit, money. The universal legislation of the absence of the other, propositional side of credibility appears to yield the same result. Lending without collateral would disappear as a rational option. In a hypothetical world in which creditors knew that promises, though honestly intended, would never be kept, due to inability to pay or sheer forgetfulness, all hope of repayment would indeed be destroyed. The relevant expectation is not, however, rendered otiose because a maxim raised to the level of a law is contradictory. Let us at the end of the suggested reconstruction cast a glance at the scope of the duties legitimated by Kant. With regard to this, we must remember the distinction between the story that Kant outlines and the argument that plays a role when he applies the categorical imperative. The fact that from the moral perspective, more narrowly from the perspective of an ethics of the will, it is not propositional but language-pragmatic credibility alone that matters has far-reaching consequences. The moral duty that Kant justifies in the example is not limited to the special case of the story in question, that of honesty when borrowing money; it extends to honesty as such. Beyond this, the injunction to be honest is valid for all beings capable of giving their word and thus of facing the alternative “to do so

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honestly or dishonestly.” In agreement with our moral intuitions, Kant writes that “the command ‘thou shalt not lie’ does not hold only for men, as if other rational beings had no need to abide by it” (G IV:389/2). Kant has two adversaries in his discussion of the permissibility of false promising. With the primary opponent he has a dispute on the object level, morality itself, while with the secondary opponent the conflict occurs at a metalevel, that of the theory of morality. Against his primary opponent, who out of selfinterest wants to grant himself exceptions from the moral law, Kant shows that the exception, dishonesty in emergency situations, is not morally admissible, since it cannot coherently be thought as a natural law. With his secondary opponents, such as Singer and other rule-utilitarians who defend an empirical-pragmatic universalization, Kant could perhaps reach an accord on the concept of promising: they could agree that to promise is to give one’s word as collateral. Kant could also agree that the general aim of promising lies in credibility and that dishonesty contradicts this aim. Kant parts from the rule-utilitarians over the question of what sort of knowledge it is that allows one to recognize the contradiction. For the rule-utilitarian, who asks, “What would it signify for the general welfare if everyone acted in that way?” it is empirical, social-pragmatic knowledge that lets us apprehend the contradiction; for Kant it is a preempirical kind of knowledge. One who wants to know how he can inspire trust in a moneylender, in particular how he can best garner an unmerited trust, needs cleverness and experience in the ways of the world. He also needs experience to know whether he can free himself from his plight with money. By contrast, experience is not required to know that a false promise harbors two conceptually internal and mutually incompatible aims. So although one who wants to see a false promise as illegitimate might want to take a detour through considerations of an empirical-pragmatic sort, the detour is nevertheless superfluous. Moreover, the detour misses the real point: that the false-promising maxim, when conceived as a natural law, is selfcontradictory. What kind of knowledge yields insight into the moral illegitimacy of a false promise is not exclusively a theoretical question, since it is decisive for the principle of moral obligation. General well-being cannot be regarded as the ultimate principle of morality, and the debate between Kantian and utilitarian ethics over ethical fundamentals must be decided in favor of Kant.

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8 PENAL LAW AS CATEGORICAL IMPERATIVE

Within Kant’s philosophy of law and right, the views on criminal punishment are among the few that still attract systematic attention. By contrast to those on transcendental philosophy, these views are generally cited only as a negative foil. In a debate about penal law that in the years of reform euphoria favored rehabilitation and resocialization, or at most deterrence and general prevention, as the only defensible aims of punishment, Kant’s thesis that “only the law of retribution (ius talionis) . . . can specify definitely the quality and the quantity of punishment” (332/141, emphasis deleted)1 simply forms the background against which the humanity of “modern theories of penal law” can stand out all the more clearly. 1. References to the Doctrine of Right are so frequent in this chapter that they will be made by page number alone.

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Because roughly the same goes for Hegel, the accepted maxim in the politics of punishment has long been “Farewell to Kant and Hegel” (Klug 1968). Kant’s thesis is made especially provocative by the uncompromising “only,” through which he claims exclusivity on behalf of the right of retribution. The provocation is increased by the moral status Kant accords penal law and the penal justice to which it gives expression; he calls it a categorical imperative (331/141 and 336/145); and it reaches its peak in the concrete applications he makes. While corporal punishment has long been banned in our legal culture, Kant demands that sexual criminals be punished with castration (363/168). And in the face of current efforts to outlaw the death penalty, the claim that one who murders must die, since there can be “no substitute that will satisfy justice” (333/142), sounds like bad metaphysics. The European Enlightenment saw the emergence of important impulses toward a humanizing of penal law. Cesare Beccaria, writing in Italy, had already demanded the abolition of the death penalty and the restriction of the aim of punishment to that of deterrence (1973 [1764], §§ XXVIII and XXII), and in this latter view he was seconded by the utilitarian Jeremy Bentham in England (1970 [1789], § XIV) and Paul Johann Anselm von Feuerbach in Germany (1801, I:2.84 and 3.133). So one who still wants to deal with Enlightenment positions in the theory of penal law would seem better advised to turn to Beccaria, Bentham, and Feuerbach than to Kant.

8.1. The Concept of Punishment as Reparation One who wants to evaluate Kant’s position soberly will begin by distinguishing between the broader reparation theory and the idea of retribution, the lex talionis, which constitutes a part or aspect of the broader position. In addition, such a one will uncover different meanings of retribution and will come to doubt that support for the idea of lex talionis entails endorsement of castration and the death penalty. It may even be that Kant’s examples contradict other, more fundamental elements of his philosophy of law and right, namely, his thesis that there is “an original right that belongs to everybody in virtue of his humanity” (237/63). And as an aside, it might be noted that the death penalty was defended three generations after Kant by so “humanitarian” a utilitarian as John Stuart Mill (1868). Concentrating on the plausible kernel of the idea of reparation, it is as true today as it was in the eighteenth century that the competitor ideas of deterrence and rehabilitation have fundamental weaknesses. These weaknesses become apparent if one either denies retributive punishment any role at all or tries to reduce

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its role to that of providing a merely secondary justification. One who endorses deterrence or rehabilitation—alone or together—as the exclusive or dominant aim of punishment must, for example, allow harsher punishments for more minor offenses than for graver ones. And should a murderer who is caught only many years after his crime and has in the meantime lived a lawful life because he is convinced that that is the right thing not go free? Furthermore, if the idea of reparation is abandoned, one cannot explain why innocents should under no circumstances be punished. Not least, we should remind ourselves that the effectiveness of the current penal system is doubtful when measured against the standard of deterrence and resocialization. For offenses such as drug dealing, it appears that even drastically increased sentences do not accomplish much, and it is not only in this area that recidivism is unfortunately high despite the entrenchment of humane punishment. The idea of reparation was long held to be the product of vengeful feeling, one that all who took themselves to be enlightened consequently rejected as irrational and immoral. Against this view stands the lesson of ethnology, that the talionis principle was regarded as entirely reasonable for thousands of years, both by socalled primitive cultures and so-called advanced ones. The core idea, that of reciprocity, is more easily discovered if one formulates it, not in the somewhat offensive vividness of the biblical image “an eye for an eye, a tooth for a tooth,” but rather more formally as “what you do to me, I do to you.” This principle today still forms an uncontentious maxim of social morality, that of commutative justice. If the idea of reparation conjures that of returning evil for evil alone, one is overlooking its primary, entirely neutral meaning. The expression “Vergeltung” (reparation or repayment) has the same root as “Geld” (money) and makes etymological reference to the fundamental form of human intercourse, namely exchange. “Reparation” in this broad sense means all action undertaken “in return” for services rendered, all repayment; in the case of positive service the repayment takes the form of “remuneration,” and only in the case of “disservice” does it consist in a retribution or punishment. Finally, modern game theory shows how much the concept of reparation can achieve (see Chapter 10 below). The attempt to “rediscover the wisdom of the absolute theory of punishment” (Hassemer 1981, 299) with reference to the example of Kant is made easier in virtue of a new openness to the concept of reparation. The retreat of reparation theories hangs together with the empirical turn in penal law and the social scientific turn in the theory of penal law. One who endorses prevention and resocialization simply because penal law thereby satisfies one of the conditions of modernity, its empirical orientation, understands the debate about penal law as a quarrel between the ancients and the moderns and casts

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his lot exclusively with modernity. A brief look at the relevant history will encourage skepticism with regard to this understanding of the matter and will once again render us more open to the concept of reparation. The concept of deterrence stems neither from our century nor even from the early phase of the Enlightenment. More than a hundred years before Beccaria, Bentham, and Feuerbach, Samuel Pufendorf, in his influential work De Jure Naturae et Gentium (8.3.23–24), urged that punishment be apportioned according to its “utility for the public interest” (utiiltas rei publicae). Contemporary critics wasted no time in presenting counterarguments. Both Thomasius, in his Institutiones (3.7.118 and 120), and Locke, in The Second Treatise of Government (2.8, in the context of the state of nature), speak out in favor of reparation. Later, Montesquieu, in order to limit the arbitrary power of absolute legislators, will argue in favor of a penal law that assesses the type and extent of punishment solely on the basis of the crime committed (On the Spirit of the Laws, 12.4). Someone who today cites Kant but not Mill as a defender of the death penalty and associates a retributive theory of punishment with Kant and Hegel but not Locke or Montesquieu, and who, finally, credits British utilitarianism but not Feuerbach and Pufendorf for supporting a prevention theory—such a person betrays, perhaps unwittingly, a peculiarly German line of interpretation in the theory of penal law. From this angle, one opposes the “sober Englishman,” with his empirical-pragmatic thinking and attendant openness to modern legal culture, to a German tradition that stands in the way of humane enlightenment. The history of the philosophy of penal law corrects a thus simplified picture. It finds in Kant a theory that was widely shared in the age of Enlightenment, defended even by Locke and Montesquieu, classical exponents of a more empirical style of thought. In addition, even after Bentham and Mill, the utilitarian approach to punishment corresponds in no way to the dominant doctrine of penal law in Great Britain. If one asks where Kant’s significance lies within the history of penal law, one can answer by pointing to the novel importance that he gives to the idea of reparation. This novel importance consists in thematic clarification, and perhaps extension, of the idea of reparation, in the enhancement of its moral status, and not least in a methodological clarification. From the thematic perspective, Kant does not restrict the idea of reparation to the severity of the punishment in the way that Montesquieu does. Although he speaks of penal law on only a few pages in the Doctrine of Right (331–37 and 362/140–45 and 167–68), Kant does succeed in dealing with two further fundamental questions. True, he uses the expression “right of retribution” (ius talionis) only apropos the third question, and he never speaks of Vergeltung on its own.

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In effect, however, he defends the idea of reparation in all three respects. For state-sanctioned criminal law he develops by way of introduction the concept of reparation; then, in answer to the question, Whom is one permitted to punish? he responds with general reparation; and finally, he puts forward special reparation, the retribution of the principle of lex talionis, as the criterion for the sort and severity of punishment. In the first respect, the definition of criminal punishment is at issue; in the second, its legitimation; and in the third, its proportion. Kant heightens the importance he gives to the idea of reparation by raising it to the status of a categorical imperative, and in doing this he intensifies its moral claim. As a rule we are content to show that punishment is a morally permitted legal institution. Kant, however, maintains that penal law, as a means of gaining reparation, is morally required, and further that penal law, like all moral requirements, has neither an empirical nor a pragmatic ground of obligation; his talk of a categorical imperative means nothing other than this. By contrast, a fourth question, why the state is justified in inflicting punishment at all—and is perhaps even obliged to do so—is not raised and therefore also not answered with the aid of the theory of reparation. In virtue of its very logic, a categorical imperative has a purely rational legitimation. So Kant’s notion of punishment as reparation returns discussion once again to the program of an “ethics of law and right as metaphysics.” A systematic doctrine of law and right would not be directly interested in this discussion. It might even find therein additional grounds for skepticism toward Kant’s project. But the situation changes as soon as one remembers the practical, nontheoretical character of the metaphysics in question and also recalls the relatively modest role that the metaphysics plays in the ethics of law. What is at issue is nothing more and nothing less than the ultimate grounds of legitimation. If Kant’s position is convincing and punishment as reparation really does have the status of a categorical imperative, then we once again find a counterpoint to a merely empirical juridical culture. The empirical turn in doctrines of penal law is sensible in many respects, in particular for the manner in which punishment is meted out and also for the procedures involved in deciding upon it. But against the idea that the empirical orientation can deliver an adequate legitimation of punishment, it must be pointed out, independently of the debate concerning penal law, that empirical facts on their own will never yield a legitimation of anything. Because Locke and Montesquieu had already espoused a retributive theory, while it was left to Kant, through the concept of the categorical imperative, to bring the preempirical significance of the theory to light, the retributive theory finds in his work, after the thematic clarification and the enhanced moral status, a

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methodological clarification. Punishment as reparation has, as a categorical imperative, a preempirical and insofar metaphysical ground of legitimation. Kant begins his elucidation with the concept of penal law. His definition, which in essentials remains convincing today, has a broadly empirical character. It does not say in which societies and times we will find the institution of criminal punishment, neither does it say anything about the different forms punishment might take in various times and places. It fixes, one level deeper, what one generally understands by the matter itself. Because of its empirical character, it might be objected that no penal law could have the status of a valid categorical imperative. But as was the case with the legitimation of the prohibition against false promising, so here the conceptual determination simply presents the object of the debate over legitimation and does not enter into the dispute itself. Kant adopts the standard meaning of punishment and with remarkable brevity and clarity specifies it in the context of the institution of law. If we examine the definition very closely, we find that it consists of a seven-place predicate. Penal law is held to be (1) the authorization (“right”) of (2) a public power (“commander”) to (3) inflict (4) pain upon (5) a citizen (“subject”) (6) because of (7) his or her crime (331/140). The series of elements that conceptually distinguishes penal law from revenge begins already with the second item on the list. While revenge, whether individual or collective (exacted by kinship groups, families, tribes, clans), represents a form of “self-help,” the authority to punish is the prerogative of a public office. To this is added a point that Kant omits as being too obvious to need mentioning, that punishment is pronounced on the basis of formal procedures, and the holders of the office authorized to conduct these procedures cannot be victims of the crime they are prosecuting. With the sixth element of the definition, a point that is seriously debatable in the theory of punishment comes to light. A punishment, in the first place, is meted out “because of” something, and this can mean two things: first, a weak claim to sheer succession, and second, a genuinely causal or explanatory “on account of.” Punishment differs from preventative actions, such as quarantine measures, in being a genuinely post and propter hoc reaction. Punishment also differs from the manipulative techniques of a “Brave New World,” from open or concealed forms of conditioning and propaganda, and not least from the sheer pacification of “asocial” individuals. Punishment does not intervene until a violation of right has actually occurred, and has therefore in a neutral sense the character of reparation. According to the principle “no punishment without a law”—which marks another difference between punishment and revenge—the law whose violation provokes punishment must be well defined and known in advance. It is for this reason that

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punishment, although its nature is retrospective, can also exert a prospective force; it can frighten off the potential lawbreaker. The retrospective character has, however, conceptual priority; deterrence is a side effect, albeit an unavoidable one. So long as penal law governs those intentional actions that are undertaken after and because of breaches of law, it can be reformed in manifold ways, but its fundamental character of reparation cannot be eliminated. In light of this, a good portion of the recent criticism of retributive theories proves to be exaggerated. Since the alleged alternatives, prevention and resocialization, also consist of post and propter hoc reactions to breaches of law, they too acknowledge the idea of reparation, even if against their own intention. The final element of the definition, the referent of the “because,” is equally important for the concept of penal law. According to Kant, and also according to the institution of criminal punishment as such, what is at issue is not just any violation of law but only serious forms of violation; penal law does not deal with mere bylaw infractions, but only with crimes and misdemeanors. Kant himself speaks of crimes, and the addition of the Latin “crimen” (331/140) shows clearly that he is concerned with the strict meaning that does not include misdemeanors. The distinction between felonies and misdemeanors is not, in any case, especially pertinent to the argument in favor of punishment as reparation. By a crime, Kant understands that “transgression of public law that makes someone who commits it unfit to be a citizen” (331/140). We can put to one side the question whether one truly loses the capacity for citizenship in virtue of breaking the law in certain ways. More cautiously formulated, the objective issue concerns the most elementary laws of justice. And looking to a formulation from the “Introduction to the Metaphysics of Morals,” it can be added that we are dealing subjectively with a witting violation of law (224/50); otherwise the action would count only as a “fault” (culpa), not a true crime. The state has resort to many things in the course of doing its job, and criminal punishment is the most intrusive of them. In tying punishment as reparation to crimes and not allowing the state to respond with such punishment to each and every transgression of law or right, and certainly not to every form of deviant behavior, Kant recognizes criminal punishment as the last resort, the ultima ratio, of public power. He thus maintains that criminal punishment is justified only when an ultima ratio is genuinely needed, when violations of law occur that damage the fundamental elements of law-abiding coexistence or the public protection of such coexistence. In the case of less serious offenses, it can be entirely sensible to endorse the current trend toward making them matters of civil, rather than criminal, liability. This approach can be defended on the grounds that civil proceedings do not stigmatize the accused as much as criminal ones, and that

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they are nevertheless more effective in achieving the goal of ensuring scrupulous observance of the rules. Whether one understands a crime in a technical, legal sense or in a wider sense according to which every blameworthy breach of law counts as a crime, the pronouncement of punishment on the reparation view requires a garnering of empirical information that some of Kant’s critics miss. At issue in the controversy over penal law is not the simple opposition between conceptually and empirically oriented thinking; rather, the dispute concerns, more subtly, the scope and limits of each sort of thinking. With regard to the empirical side of things, the reparation theory makes use of knowledge that is retrospective and internal to the offense in that it concerns the action and its motive, while prevention and resocialization theories require knowledge of a prospective and offense-external kind, knowledge of the deterrence and rehabilitation value of the punishment. Kant’s fourth definitional element, which states that punishment is painful and therefore noxious (cf. C2 V:37/34–35), is uncontroversial, as is the third element, which states that the pain of punishment is “inflicted” upon the recipient (331/140). While therapies, be they ever so painful, are at the end of the day undergone voluntarily, punishment is, if need be, forced upon one. Some euphoric reformers have believed that with the help of appropriate laws aimed at reintegrating offenders into society, the punitive character of the relevant measures might be eliminated. But so long as the measures in question are juridically ordained, they will be imposed upon the accused against his will if need be. Juridically sanctioned punishment remains something imposed by force even when it is conceived as a means of resocializing offenders.

8.2. A Merely Partial Legitimation of Punishment Expressly or tacitly, most Kant interpreters connect the categorical imperative of penal law to the establishment of state-imposed criminal punishment as if this were unproblematically evident. Some even assume that Kant “maintains categorically that there should be punishment” (Forschner 1982, 386). Now, Kant does actually say that there is “in the idea of our practical reason something further that accompanies the transgression of a moral law, namely its deserving punishment” (C2 V:37/34). The fact that someone deserves punishment, however, means that it is permissible to punish him, not that punishment is mandatory. Moreover, this argument does not appear in the Doctrine of Right, and neither does it appear in the rest of Kant’s published philosophy of law and right. We must take seriously the thought that perhaps the idea of deserving punishment

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from a moral point of view is to be located systematically in the sphere of inner morality, the problem domain of the Doctrine of Virtue and also of the philosophical theology that constitutes a “continuation” of that work (cf. THD VIII:257 and 260–62/19 and 21–23). The notion of morally deserved punishment might prove dispensable for the ethics of law, concerned with enforceable duties. On the other hand, it is true that in the second Critique Kant speaks as well of “crime” (C2 V:38/35) and therefore of legal punishment. Setting the idea of morally deserved punishment aside for the moment, there are other assertions that clearly cannot be ignored by a comprehensive legitimation of criminal punishment. These assertions all belong to the ethics of law and right and indeed are more central to it than one might at first expect. The point, moreover, holds mutatis mutandis for non-Kantian theories as well. A fundamental legitimation of criminal punishment is not an isolatable piece of philosophy, but is diversely bound up with a normative theory of law and the state. A comprehensive legitimation begins with the authority to enforce (231–33/ 57–58). Criminal punishment is something that is enforced and is therefore legitimate only under the supposition that the authority to enforce is already part of the concept of law. A second element of a theory of this sort is found in those categorically valid principles of law, such as the prohibition against killing or stealing, the deliberate violation of which constitutes a crime and the criterion for which is provided by the categorical imperative in the singular (see 5.2 above). A public rule of law, yet another element of the theory, is required in order to give these categorical principles a more than provisional reality. Kant in this context speaks of the “postulate of public law” (307–8/my translation). A fourth element is contained in the thesis that “the very idea of a political constitution among people carries with it the concept of a penal law that is the sole prerogative of the supreme power” (362/my translation). Kant here declares that the institution of criminal punishment is among the indispensable components of the state-backed guarantee of categorical principles of law. By speaking emphatically of “people,” Kant means to say that criminal punishment does not belong to the moral concept of the state as such, but is needed only when deliberate and culpable violations of law are to be reckoned with—something that is, Kant indicates, in fact the case as far as man, a rational being seducible in a variety of ways, is concerned. Two points are important for evaluating Kant’s reparation theory of punishment. In the first place, when he takes up the discussion of penal law in the Doctrine of Right, he takes the four theoretical elements listed above as having been dealt with in advance. (This is why he says, for example, in connection with the fourth element, “The only question is whether . . .” 362/168.) Section E of the “General Remarks” and section 5 of the appendix do not, contrary to the assumption of many

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Kant interpreters, contain Kant’s full theory of penal law. Kant believes himself already to have answered the question why the state introduces criminal punishment in the first place; in the passages we are looking at, he handles only certain supplementary questions. Second, and perhaps more important, the four elements in question do not include a moment of reparation. Both supportive and critical interpreters of Kant have missed this point. Because the idea of reparation sketched in the “General Remarks” deals only with one aspect of the legitimation of penal law, and because Kant does not elsewhere speak of reparation, it must be concluded that he maintains a reparation theory that, while indeed trenchant, is not exclusive. The idea of reparation remains important enough, to be sure: it defines penal law, legitimates the restriction of punishment to the guilty, and gives the criterion for the severity of punishment. But the fourth question, concerning the justification of establishing a juridical institution of criminal punishment in the first place, is no longer answered with the notion of reparation, but rather with the categorical imperative of law in the singular and with the idea of a political constitution among people (cf. Chapters 9 and 10 below). In order to label the competing approaches to legitimating penal law, one speaks today of “absolute” and “relative” theories of penal law. In the context of a debate with Kant’s theory, this way of speaking is misleading. Absolute theories are taken to include positions committed to theses such as that “punishment ought to be” or that “punishment has an immanent value” or that “punishment compensates for the disturbance of the social order occasioned by an offense.” Further, the expiation theory, the view that “punishment reconciles the offender with the society that has been hurt by the offense,” also falls into this class. Kant holds none of these positions; he holds only that, in virtue of its moral concept, punishment cannot be merely a means but must be also and primarily an end. Kant looks for the legitimating ground of state-sanctioned and -imposed criminal punishment in elements that are posited with the concept of punishment itself, and he criticizes theories that locate the legitimating ground in something outside the very concept of punishment, in deterrence or rehabilitation. In consequence, we need to take up the distinction between action-internal and action-external considerations (see 7.4 above) and to speak more precisely of the difference between a punishment-internal and a punishment-external legitimation. According to Kant, the punishment-internal reparation theory is the “moral” position; those punished are those who have perpetrated something. Punishment-external theories—Kant uses prevention theories as an example—offer a “pragmatic” position; one punishes out of prudence, in order to prevent crimes (363/169). AngloAmerican moral philosophers speak, in the former case, of a deontological style

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of theory and, in the latter, of a teleological or consequentialist style. Kant’s counterpoint to the empirical-pragmatic penal culture consists in this thesis: one who wants convincingly to legitimate state-sanctioned punishment needs moral arguments, which will, in turn, have to take a punishment-internal, not a punishmentexternal, form. The famous passage in which Kant sets himself against pragmatic theories of punishment and contrasts them with his own theory follows directly upon his definition of penal law. Because what Kant says here is, in its scope and content, subject to manifold misunderstanding, it is worth quoting extensively: “Punishment by a court [writes Kant] . . . can never be inflicted merely as a means to promoting another good, be that the good of the criminal himself or that of civil society, but must always be pronounced upon the criminal only because he has committed a crime. . . . The criminal must previously have been found punishable before one can think further of deriving benefit from this punishment for he himself or for his fellow citizens” (331/140–41). As mentioned above, it is important that Kant takes for granted that the question why the power of the state is authorized to punish at all has already been answered. He asks only upon whom the pronouncement of a sentence is permissible (331/140), and he rejects pragmatic theories as responses to this question. Pragmatic theories are not, though, rejected root and branch. Pragmatic theories of penal law are denied only a claim to provide the exclusive and dominant aim of punishment (“can never be inflicted merely,” 331/140, cited above [cf. 362/168: “only . . . or whether also”]; “[The criminal] must previously have been found punishable before any thought can be given to drawing from his punishment something of use for himself or his fellow citizens,” 331/141, also cited above). Kant concedes to the state the right to be concerned in penal matters with rehabilitation (“good for the criminal himself”) and with deterrence (“or for his fellow citizens”), but he ties this right to the condition that the state direct its attention only to the guilty party (“because he has committed a crime”). We can now demythologize Kant’s position. In connection with the concept of punishment as reparation, Kant defends—in substance, if not in name—the validity of general reparation and understands by that the strict prohibition against punishing the innocent. Every violation of this prohibition is unqualifiedly reprehensible. Although the moral consciousness of the present age has difficulty with exceptionless duties, it does not seem to have any problem acknowledging that a moral duty is unconditionally valid when it comes to the case of the prohibition against punishing the innocent. In this respect the prohibition against punishing the innocent contrasts sharply with the prohibition against lying, whose unconditional validity is today much disputed. The reason for this state of affairs cannot lie in

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the categoricity of obligation, since, in the first place, the prohibition against lying is just as categorical as that against punishing the innocent and, second, as we have seen, a relative intolerance of exceptions is sufficient to underwrite the concept of a categorical obligation. Neither can the reason lie in the perfection of duty, since here as well there is no difference between the prohibition against lying and that against punishing the innocent. Does the reason perhaps lie in the relative priority of the prohibitions? If this argument were sound, the priority of the prohibition against punishing the innocent would not only have to be greater than that of the prohibition against lying, it would, in order to justify an absolutely exceptionless validity, have to emerge victorious in every conceivable conflict of priorities. The prohibition against punishing the innocent would have to take priority over all other moral duties, including, for example, the duty to protect human life. But no argument in support of an absolutely dominant priority is in the offing. Is our moral consciousness then guilty of fallaciously inferring from moral to legal rigorism? Before putting forward this thesis, we must consider wherein exactly is found the moral rigorism in the case of state authorization to punish. The authorized subject is a collective, the state. So the exceptions in the interest of inclination, the ones already forbidden by moral rigorism, lie in the welfare of the state as a collective. This fact has far-reaching consequences: the social-pragmatic, utilitarian maxim enjoining the promotion of social welfare falls on the side of inclination and as such contradicts moral duty. To punish an innocent in the name of social welfare, or of raison d’état, is already illegitimate, and indeed unconditionally so, from the point of view of penal law as a categorical imperative even when, as in this work, one equates the categorical imperative with a moral, not a legalistic, rigorism. Formulated positively, only one who is guilty of a crime may be punished, and in that case the justification for punishment is based upon reparation and not upon the social-pragmatic ground of prevention (363/169). Pragmatic theorists of penal law could, however, insist that they recognize the concept of reparation as a matter of course and that they exclude the “punishment” of innocents for this very reason. Since one speaks of a punishment only when it occurs after and because of a breach of the rules, any unpleasantness inflicted by the state upon an innocent cannot, for purely semantic reasons, constitute a punishment. The argument is valid but insufficient. For when dealing with questions of legitimation, what is at issue is no longer simply the definition of criminal punishment; what is being asked is, rather, why the “punishment” of innocents represents an injustice. The injustice in question can be located on either of two levels, that of the judge or that of the legislator, and it can take place despite or for lack of knowing better.

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That injustice should not occur for lack of knowing better, that is, that there should not be errors in judicial proceedings or in legislative enactments, is so uncontroversial that Kant does not even discuss this kind of case. The need to avoid errors of this kind is not the least of the considerations in favor of a public penal authority. A formalized procedure that includes the right to defense and appeal can do a much better job of reducing the risk of errors than can any private form of justice. With regard to the chance that still remains, the law adheres to the principle: When in doubt, decide in favor of the accused.2 An analogous principle—In case of doubt, institute no punishment 3—must be respected by the legislator, who is allowed to declare punishable only those actions that represent a moral wrong beyond any doubt. The once popular appeal to moral feelings is hardly a sufficient argument. In response to the claim that social peace or human dignity is violated, one may be permitted to ask in return whether these notions are not as a rule too vague to justify so intrusive a measure as state-sponsored criminal punishment. Kant sees a legitimation issue only in the case of a second sort of “punishment” of the innocent, the case of punishment despite knowing better, the case of a perversion of justice. Kant discusses the first level of this sort of case, the perversion of justice by a judge, but his argument applies, mutatis mutandis, to the secondlevel case, the perversion of justice by a legislator. As an example of a judicial perversion of justice, Kant refers to the “pharisaical saying” according to which “it is better for one man to die than for an entire people to perish” (331–32/141). Kant does not discuss a legal-theoretical position directly, but discusses rather the practical legal maxim that permits exceptions to the prohibition against perverting the course of justice in the name of collective welfare or raison d’état. Since collective welfare is, as noted, a social-pragmatic principle, a principle of collective prudence, Kant does not discuss the conflict between two moral duties, but once again concerns himself with the alternative: duty or (in this case, collective) inclination. In rejecting all perversions of justice, Kant is condemning laxity in juridical morality and is committed only to moral, not to legal, rigorism. Although Kant sets himself directly against a maxim of legal practice alone, he holds also that pragmatic theories of law and punishment, insofar as they understand themselves as exclusive, will not be able to provide a justified rejection of the maxim in question. Just such an attempt has, nevertheless, recently been made. According to V. Vanberg (1982, 9), the “punishment” of innocents suspends the systematic connection between breaches of the rules and punishment, so that “the individual no longer sees any cause” to refrain from breaking the law because 2. In dubio pro reo. 3. In dubio contra delictum.

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of the threat of punishment. Perversions of justice are supposed therefore to contradict the aim of deterrence. The second step of Vanberg’s two-part argument is convincing. If “punishments” were no longer pronounced consequent upon and because of infractions but rather were dispensed arbitrarily, they could no longer exercise any power of deterrence, and the reason for this lies precisely in the arbitrariness of the punishment. The first step of the argument, however, is not convincing. The maxim of collective welfare does not enjoin arbitrary behavior; to accept it is only to deprive the “systematic connection between breaches of the rules and punishments” of its categorical character and, in order to allow occasional exceptions, to reduce it to a rule of thumb. As a rule, the prohibition against punishing the innocent serves the collective welfare and will be observed to a corresponding degree, being violated only in exceptional circumstances. If the exceptions remain sufficiently rare, the ability of punishment to deter will be as good as unchanged. If exceptions become more frequent, provisions will, within certain limits, be made to avoid coming into conflict with the welfare of the collective: people will take pains to adhere to an inconspicuous style of life. So the “punishment” of the innocent, without thereby diminishing “legitimate deterrence,” brings with it an extra deterrence; it creates pressure to conform. The one side of the prohibition against perverting the course of justice, that which prohibits punishing the innocent, is almost self-evident, but the other side, that which enjoins the punishment of all who are guilty of crimes, is not. An argument analogous to that supporting the prohibition against punishing the innocent can be mounted in support of the prohibition against letting the guilty go unpunished. Here too the general effectiveness of punishment as a deterrent would not disappear as long as the prohibition was violated only occasionally. The only significant result of such occasional violations would be the abetting of corruption. We have long known that corruption, as well as pressure to conform, are welcome to certain regimes, and a merely preventative theory of punishment cannot show that these things are nevertheless unconditionally, that is, morally, illegitimate. Attempts at legitimating punishment on the basis of resocialization run into difficulties similar to those we have identified for deterrence theories. From the resocialization perspective, the “punishment” of the innocent would consist in state-enforced attempts to improve those persons who, though they have committed no criminal offense, nevertheless behave in a provocatively conspicuous manner. In order to forbid the punishment of such individuals by reference to the aim of resocialization, it must be shown that such punishment is counterproductive with respect to that aim. Once again, there is no reason to think that force directed occasionally at those who have not committed crimes would substantially alter

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the success of force directed at those who have committed crimes; and the pressure to conform along with opportunities for corruption would also be fostered. Another argument against pragmatic legitimations of punishment is this: according to them, one should let typical one-time offenders go free. Someone who commits a crime under circumstances that are almost certain never to recur needs neither a deterrent nor improvement in order to ensure his living within the law in the future. Would it thus be just to let him go unpunished, while one by contrast prosecutes less harmful thefts and batteries with the force of penal law? Since pragmatic theories of penal law are unpersuasive, Kant’s reparationtheoretical argument is no longer obsolete. It is, on the contrary, welcome. We are familiar with Kant’s precise argument—that “a human being can never be treated merely as a means to the purposes of another” (331/141)—from the Grounding (for interpretation, see Ricken 1989). Since the Grounding’s argument is not specific to the law, it might be considered suspect in this context. But in the Doctrine of Right, Kant elaborates his position with the law-specific argument that a person can never be permitted “to be grouped together with the objects of property law” (331/my translation; cf. also 362/167–68). Apart from appealing to the prohibition against instrumentalizing persons, a negative argument, Kant also offers as a positive justification the “innate personality” of humanity (e.g., 331/141, which raises objections to Enderlein’s 1985 interpretation). Kant alludes to the unique human right that, as “freedom . . . insofar as it can exist along with the freedom of all others according to a universal law” (237/63), follows immediately from the universal principle of law, that is, from the categorical imperative of law. Kant, however, appeals to the categorical imperative of law in its universal form, whereas it would have been more elegant, from a legitimation-theoretical point of view, to argue from the categorical imperative of the state. Because the state’s authorization to enforce is morally legitimate only so far as it needs to use force to guarantee rights that are antecedently valid, it is permitted to use force only to counter a violation of one of these rights. State power is legitimately exercised only against those who have committed crimes, not against those who have merely made themselves conspicuous or annoying. Since Kant grounds reparation in general on inborn rights of all humans, he does not appeal to transcendental posits such as God, a divine law, or a cosmic order. Practical reason as it pertains to law and right is the unique and ultimate measuring stick of his theory of penal law. Today, the inborn rights of all humans form an integral part of our juridical order. For this reason we can justify the prohibition against perversions of justice in a positive way: someone who wittingly punishes an innocent not only, as it is popular vaguely to argue, offends human dignity, he also violates more particularly the freedom of the person or the right to

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property, according to whether the punishment consists of a deprivation of liberty or of goods. Although Kant does not avail himself of the formulation of natural law for the purpose of legitimating penal law, a legitimation strategy corresponding to that formulation might also be considered. As in the case of false promising, the legitimation begins with a semantic state of affairs, in this case the concept of criminal punishment as reparation. In the “punishment” of an innocent, the reparation that is a defining characteristic of penal law is, so to speak, contradicted. Such a contradiction is entirely conceivable if restricted to individual cases; they are encountered often enough in the actual world. But thought of as a natural law, punishing the innocent means punishing all who are not guilty of crimes. A law of this sort is inconceivable, since it is in conflict with the very concept of punishment. Let us recapitulate the results of this discussion of the theory of the legitimation of punishment. Pragmatic theories of penal law do not succeed in justifying the prohibition against perverting the course of justice, neither with the reparationtheoretical argument that they do acknowledge, that which employs a merely semantic reparation theory, nor with the aid of their own recognized goals of punishment, deterrence and rehabilitation. The principle that innocents should not be punished cannot be justified by appeal to the effects that the prohibition has in the world. Neither can it be justified by appeal to cognitive limitations, on the grounds that “one cannot know enough to legitimate penal law and punishment on the basis of their effects” (Hassemer 1981, 299). On the contrary, the prohibition limits both the effects that a state power is justified in seeking to bring about in the world and the effects about which the power of the state should be interested in acquiring information. Pragmatic theories miss the real reason for the categorical prohibition. Perversions of justice, each and every one, are not categorically forbidden because the deterrence or rehabilitation value of punishment would otherwise be put at risk; the prohibition is valid because the authorization to use force enjoyed by the state holds only with respect to guilty parties. Someone who has committed no crime ought not to be the victim of state power. The prohibition against perverting the course of justice ensures for citizens the right to live in as conspicuous or deviant a way as they like, provided they do not thereby make themselves guilty of criminal activity. The failure of pragmatic arguments to exclude the acceptability of perversions of justice, together with the plausibility of Kant’s argument, shows that penal law offers yet another example of the systematic superiority of nonteleological over teleological approaches to ethics. Only when, on the basis of a moral argument, the guilty alone are punished is it permissible to employ secondary considerations

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concerning consequences. Kant’s argument offers at the same time a critique of a juridical culture that understands itself in exclusively empirical-pragmatic terms. With regard to the complex task of legitimating state-sponsored criminal punishment, at least one question cannot be answered by empirical-pragmatic considerations, but only by genuinely moral ones.

8.3. Special Reparation Penal law has the character of a categorical imperative in a second respect as well, with respect to the severity of punishment. After Kant has argued against the punishment of the innocent and the nonpunishment of the guilty with the aid of the concept of reparation in general, he proceeds to argue against the arbitrary determination of sentences. “The snakelike sinuosity of the doctrine of happiness” that Kant rejects consists in this case in punishments determined, not on the basis of the crime, a basis internal to penal law, but on the basis of the consequences of the punishment for public or private welfare, that is, grounds external to penal law. Because the penal-law-internal determination of the severity of punishment is oriented toward the gravity of the crime, reparation plays a role once again— this time in its special, or narrower, sense, that which amounts to the genuine retribution of the jus talionis. Kant rejects “the proposal to preserve the life of a criminal sentenced to death if he agrees to let dangerous experiments be made on him and is lucky enough to survive them” (332/141). Were the suggestion made to an individual offender, he would in effect be offered a reduced sentence. Were one to treat all alike in order to avoid this injustice, the individual reduced sentence would become a specially reduced sentence for all crimes of a certain kind, and a new injustice would appear, this time on the level of legislation; those condemned to death would be favored over those who had committed other crimes. In either case, that of the rule itself or that of its individual applications, Kant believes that exceptions to the principle of just punishments would be made. But a categorical injunction such as that of the principle of just punishments admits of no exceptions. Even those good-hearted interpreters of Kant who do not immediately begin to speak of inhumanity and lack of enlightenment do express criticism of his theory of special reparation. Criticism is leveled from two sides, both in the systematic discussion and in the encounter with Kant. On the one hand, it is directed against certain applications or forms of application, for example, against the presupposition that the perpetrators of capital crimes can only “make reparation” with their own lives, “in order,” as Kant writes, “that each one experience in his own person

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the worth of his actions” (333/142). The more fundamental kind of criticism rejects special reparation itself. The first style of criticism assumes a literal employment of the jus talionis. In the Philosophy of Right (§ 101, Zusatz) Hegel observed that it is very easy “to portray the retributive aspect of punishment as an absurdity (theft as retribution for theft, robbery for robbery, an eye for an eye, and a tooth for a tooth, so that one can even imagine the miscreant as one-eyed or toothless)” (128). Hegel nevertheless correctly maintained that this objection is too superficial to do any real damage. If one does look about in the history of penal law (cf., for example, Günther 1966), one will certainly find examples of as literal an application of the principle of retribution as possible. Medieval law, for example, recognized burning at the stake as the punishment for arson. Besides this sort of example, there are analogical applications, such as the severing of a hand as the punishment for theft, present in medieval law and in Islamic law to this day, or the cutting out of a tongue as punishment for blasphemy and slander. A more adequate conception of special reparation will exclude not only a literal understanding of it but also each and every material understanding. Instead of aiming to “stamp the physiognomy of the crime itself on the punishment for it” (Berner 1876, 30), one defends a purely formal concept. Kant himself is not so clear about the matter and offers examples that accord with a superficial material understanding of retribution. His inability to conceive of a punishment for capital crimes other than the death penalty—“But if he has committed murder, he must die” (333/142)—reflects this lack of clarity, as does his demand that sexual crimes be punished by castration. And he demands that slander be punished with “a solitary confinement involving hardship; in addition to the discomfort he undergoes, the offender’s vanity would be painfully affected, so that through his shame like would be fittingly repaid with like” (332/141). Passages like these force one to agree with Nietzsche’s remark that “the categorical imperative smells of cruelty” (On the Genealogy of Morality, II.6). At the same time, Kant speaks of the ius talionis “by its form” (363/168) and himself grants that retribution is not always possible “in terms of the letter” (332/141). Above all else, he explains that retribution, as “the principle of equality (in the position of the needle on the scale of justice), [can] incline no more to one side than to the other” (332/141). The midpoint of the balance amounts indeed to a purely formal criterion, since it shows nothing more than the equilibrium of the two sides. What is on the left and right sides of the balance remains open. The idea of special reparation is to be understood in a correspondingly formal way, a way that makes it logically prior to the material issues of how to measure the nature and severity of crimes and how to determine the punishments appropriate to them. One who differs

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from Kant in refraining from any material use of special reparation will tie punishments to punishable actions and try to make sure that the punishment is neither too severe nor too mild. Such a person employs a purely formal criterion of correspondence. Special reparation can be defended with an uncontroversial principle of justice, the one called by Kant “the principle of equality.” Insofar as the state is permitted to punish criminals at all, it is, for reasons of justice, not permitted to punish the one and let the other go free, and it is just as impermissible to render in the one case a draconian judgment and in the other a mild and lenient one. Justified punishment, in opposition to “arbitrary punishment” (363/my translation), must rest all distinctions among punishments on distinctions in the nature of the crimes themselves. One must naturally warn against too thoughtless an application of the idea of reparation, since there are, after all, legitimate grounds for excuse or exoneration in certain cases in which the law has been broken. When sitting in judgment on a particular punishable action, one must consider whether the offender was responsible for his actions, not responsible, or responsible to a diminished degree, as well as whether the action was deliberate or negligent and whether a judicial error was committed. Such considerations are vital with regard to the question whether a crime has been committed at all, along with the further question how severely a particular incident or class of crime is to be judged. Beyond this it is permitted, and perhaps even enjoined, to take into account the social background of the offender, since this can be partially determinative of the quality of the action. Kant does, in his “General Remarks,” frequently incline to an “objectivistic” conception of a crime, according to which questions of this sort are irrelevant. But this conception of a crime is required neither by the notion of general nor by that of special reparation. A rigidly objectivistic conception indeed contradicts Kant’s own definition of a crime (224/50). Because not only deviations in the direction of greater severity but also those in the direction of clemency would be unjust, Kant is only being consistent when he expresses reservations about the right of sovereigns to grant clemency (337/146). Kant, however, pays too little attention to an alternative point of view. Philosophy cannot spare anyone the trouble and effort of establishing a just relation between punishable offense and punishment. Philosophy shows only that legitimation problems that can only be solved morally, not empirico-pragmatically, arise not only with respect to the prohibition against perverting the course of justice but also with respect to the determination of sentences. The standpoint of categorical morality receives at the same time a further rehabilitation vis à vis the standpoint of social pragmatism, and finally, a supplementary argument speaks in favor of deontological ethics over an exclusively teleological ethics.

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The injunction to punish more severe crimes more severely and less severe crimes less severely binds not only the judge deciding the individual case but also, and indeed first and foremost, the legislators that decide how different types of crime will be classified. The formal correspondence criterion that constitutes special reparation limits the arbitrary power not only of judges but also of legislators. For this reason, there was cause for concern, and indeed moral concern, if the maximum penalty for drug dealers under the 1982 narcotics law of the (former) Federal Republic of Germany was “raised from ten to fifteen years in the interests of general prevention, and [if] in the interests of special prevention for drug addicts susceptible to resocialization, ‘therapeutic’ rather than punitive measures were ordained” (Hassemer 1983, 43). If on the one hand punishment was increased merely on grounds of deterrence and on the other a “therapy reprieve” was supported by nothing other than arguments from rehabilitation, then the idea of penal justice would have been violated by these measures. The instrumental rationality of the measures can in any case be called into question. Instead of more effectively deterring drug dealers, the increase in punishment might simply lead to a rise in prices for drugs, thus bringing in its train as a secondary consequence an increase in the crimes against property committed by addicts. If this were so, the law would show itself to be self-contradictory. Perhaps the rise in the maximum sentence expresses something like the “powerless rage” of the legislators and the “enraged public”; the sentence is raised because one cannot control traffic in illegal drugs. In this case, the increase in the sentence, though not necessarily the sentence itself, would constitute a perversion of justice. Nevertheless, there is a third way of viewing the case. One need not justify the amendment of the narcotics law either on grounds of general or special prevention, or by a self-disqualifying appeal to “powerless rage.” One can also argue on the basis of special reparation. One can suggest that the maximum penalty for dealers has been raised because the severity of the crime they commit, trafficking in drugs, has been underestimated until now. In effect, the seller of drugs seduces his clients into destroying their lives (in installments, so to speak), or at least encourages their tendency to do so, and his motivation for doing this is base. That one ordains therapy instead of punishment for those addicted to drugs can in turn be explained as a reflection of the fact that one cannot sensibly ascribe to such individuals the capacity for carrying out premeditated action. Perhaps the amendment is informed by the deeper insight that the use of illegal drugs on its own constitutes an offense but not a crime; it does not violate the elementary rights or goods of another or of the legal community as a whole. If this point holds good, then the abolition of criminal punishment for drug use is not only morally permitted but morally enjoined, as indeed it is if one cannot credit drug addicts with premeditated actions.

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8.4. Sketch of a Unified Theory Let us, in conclusion, cast a glance back at the threefold function of the idea of reparation. The first, semantic aspect is seldom contested by critics of the idea, but also seldom emphasized. The points here are, first, that punishment has the character of reparation on purely conceptual grounds and, second, that statesponsored criminal punishment expresses reparation in the guise of an ultima ratio, an “instrument” that is directed against the most severe form of a violation of law, a crime. Restricted to the role of an ultima ratio, the reparation theory of penal law is relieved of some of its more implausible ambitions and consequences. The real dispute between reparation theorists and their opponents concerns the two remaining aspects of the concept. The debate is intensified by Kant’s talk of a categorical imperative. Kant does not, however, designate penal law as such, that is, the authority to punish at all, a categorical imperative, but rather what we might call the moral law of punishment, the essential norms of penal law that the state is morally permitted to decree within the confines of its authority to punish. This state of affairs implies a second relief from unwelcome ambitions and consequences. Reparation theories need not claim a comprehensive legitimation of punishment. Kant assumes that the important question, whether the state is permitted to punish at all, has already been answered. Under this assumption, his reparation theory sets out two conditions limiting the morally legitimate imposition of criminal punishment. The form of a norm of penal law is as follows: if one does x, one will be punished with y; for example, one who kills a man deliberately will be sentenced to not less than five years in prison. The categorically imperative status of the moral law of punishment, from which Kant wants to keep away “the snakelike sinuosity of the doctrine of happiness,” consists in the idea that norms of penal law of this sort are legitimate only if they eschew pragmatic considerations of consequence in two respects and instead commit themselves to the notion of reparation. Since this double commitment is not recognized as a matter of natural necessity, it has the character of an imperative. And since the imperative rests on moral grounds and moral grounds for Kant are unconditionally valid, the imperative has a categorical significance. Although we are in general skeptical about categorical imperatives, they can be given a surprisingly good defense in the case of the moral law of punishment. Far from being a system-conditioned eccentricity of Kant’s, the moral law of punishment is a good example of the systematic attention that Kant’s thought to this day continues to deserve. This thought gives pragmatic ethics its due, but insists that it play only a secondary role. Only when the categorical imperative of

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punishment has been fulfilled is it permissible to enter into considerations of consequences in the name of public and personal welfare. The first categorical obligation, general reparation, says that in a norm of penal law the consequent, “. . . one will be punished with y,” is justified only in virtue of its connection to the antecedent, “if one does x. . . .” The consequent is furthermore legitimate only under the condition that the antecedent contains not just any breach of the rules but the violation of an elementary rule of right. In short, state authority to inflict criminal punishment holds only with respect to a criminal. The second categorical obligation, special reparation, demands that legislators set the severity of the punishment contained in the consequent according to the severity of the crime stated in the antecedent. From judges, it demands that they orient themselves only to the severity of the breach of law. One is permitted to punish only according to the measure provided by the crime committed. The reparation that defines penal law as such exhibits, through the concepts of general and special reparation, a twofold criteriological significance. It determines both the single legitimate victim of state criminal punishment and the single legitimate criterion for the severity of a punishment. In opposition to Kant’s view, however, the approach just sketched sets out only a formal criterion and is silent as far as the actual sort of punishment is concerned. The categorical character of the two criteria consists in the fact that, relative to submoral interests or obligations, they are to be observed unconditionally and without exception. A morally legitimate scheme of punishment is not allowed to deviate from the twin demands (a) that only he who is guilty of a crime can be punished and (b) that the severity of the punishment must be guided exclusively by the severity of the crime. Neither collective welfare nor the interest of the punishable individual or group can outweigh these categorical prescriptions. Because both general reparation, the demand for a correspondence between deed and punishment, and special reparation, the demand for a correspondence between the severity of deed and extent of punishment, follow not from empirical considerations but from reflections on justice, the validity of reparation as the grounds for punishment is established independently of experience, and the relevant laws flowing from reparation can be said to be justified “a priori” (334/143). It is, to be sure, only the grounds of obligation of the two correspondences that are a priori in character; the considerations with whose help one determines the actual correspondences—correspondences between type of crime and guidelines for punishment, in the case of legislators, and between individual crimes and particular punishments, in the case of judges—these concrete deliberations are not of a purely rational nature.

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The threefold significance of the idea of reparation leads only to a partial, not a complete, rejection of pragmatic theories. Kant espouses the reparation theory only as a dominant, not as an exclusive, theory and remains therefore open to supplementation by pragmatic theories. One who interprets Kant’s arguments from a systematic perspective will even see that pragmatic supplementation is necessary. The punishment, which is to take place after the crime, assuming the situation has been clarified, is specified in advance, and because of the advance specification it also threatens before the fact. Advance specification, embodied in the maxim “no punishment without a law” is indeed a requirement of justice. In virtue of anticipatory threat of punishment, the moral law of punishment acquires an element of deterrence. Without being designated one of the goals of punishment, deterrence is a psychologically necessary concomitant of the moral law of punishment, a side effect that cannot be separated from the institution of punishment itself. A side effect can, as an unavoidable drawback, simply be accepted as inseparable from the rest of a particular package, or it can represent an additional advantage. Deterrence actually helps the state to fulfill its moral task of ensuring the rule of law, and it can insofar be accounted a welcome side effect. And to the extent that, in certain areas at least, the state cannot ensure the rule of law without deterrence, it even acquires the moral significance of an indispensable means to a morally required end. In light of the foregoing it is evident that a healthy proportion of anti-Kant polemic launched by prevention theorists, along with much of the criticism of prevention theory by Kantians, is superfluous. Does it follow that Kant’s critique of social-pragmatic, utilitarian theories of punishment dissolves into an exercise in vain posturing? No, for we do not call just any means-oriented legitimation “utilitarian,” but rather only the sort that takes the ultimate goal to lie in the collective welfare of all concerned. In the Kantian legitimation strategy just sketched, both punishment itself and its secondary benefit of deterrence serve not the collective welfare but the guarantee of rights, indeed moral rights, at the head of which stand those known as human rights. It is incumbent upon the state to guarantee these rights even when doing so diminishes collective welfare. Reparation, moreover, remains the dominant aim of punishment within this framework of rights as guarantees of justice. Prevention is legitimate only insofar as neither general nor special reparation is infringed upon, insofar as two morally mandated limits to state-administered punishment remain in place—the mandate that only the guilty may be punished and that severity of punishment be apportioned only

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according to the severity of the crime. In short, although it leaves room for prevention, the legitimation strategy here sketched remains Kantian all the same. Under the supposition that the more serious a criminal offense, the greater the possible gain for a potential criminal, it could even be that the severity of punishments established on the basis of reparation would coincide with that established on the basis of a prevention theory. For if one wants to achieve the desired deterrence, one must attach greater punishments to greater potential gains. It could be, then, that as far as the practice of sentencing law is concerned, the difference between a predominantly reparation theory and a predominantly prevention theory would not in the end amount to very much, either from the point of view of the legislator or from that of the judge. Nevertheless, only one of the theories can be successful as a theory of legitimation, and that is the one that allows considerations of prevention to enter in only for the institution of criminal punishment as such, and even there allows such considerations to play only a subsidiary role, while permitting only considerations of reparation to shape the precise form to be given to the institution in question. Deterrence is not, in any case, the only way to impede the infringement of elementary rules of law. Since deterrence presupposes a deliberate action, one needs a fundamentally different kind of security for rights when this condition is absent. When an offense is not premeditated, deterrence cannot, by definition, have any effect. This is where we find a legitimation-theoretical place for resocialization. Faced with those, such as drug addicts, who are to some degree no longer accountable for their actions, the state tries to devise means of restoring them to full accountability, and if needed it forces offenders of this sort to subject themselves to such measures. Faced with criminals who do act deliberately, one attempts, after deterrence has failed, the extremely difficult task of changing their attitudes. So the third of the currently popular theories of penal law can also be combined with the reparation theory, albeit only if one acknowledges the concept of reparation as primary. Alongside the principal goal of guaranteeing rights, both deterrence and resocialization are legitimate secondary goals.

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9 “THE REPUBLIC OF FREE, CONFEDERATED PEOPLES”

The exhaustion of utopian energies is not the least important complaint of our times. The weight of evidence for such a diagnosis is great, almost oppressive. Whether we think of the juridical-constitutional state or of the welfare state or of the idea of freedom from Herrschaft, we see, for different reasons, the same result: political ideals have lost their shine. Matters are no different with respect to technology; one expects from it a certain amount of help in the diminishment of hardship and toil, and one needs to promote it in order to maintain competitiveness, but it has long been drained of its power to promise a significantly better future overall. Neither are there signs of utopian impulses from literature and the arts. In vain do we seek a Gauguin capable of carrying us away to the South Seas and there leading us into the “mansion of joy”; equally in vain do we seek a Chagall capable of opening our eyes to the realm of spiritual salvation already available in this world.

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These divers observations combine to issue in a new spirit of the times. The mood of the general public is no longer captured by the liberating “Principle of Hope” espoused by Ernst Bloch; the times are exemplified instead by Hans Jonas’s “Principle of Responsibility,” an altogether more sober and burdensome slogan. Nevertheless, before we resign ourselves to living in a “postutopian age,” some small doubts might be permitted: perhaps it is not sources of energy themselves that have given up, but rather certain topics that have been exhausted. The juridical-constitutional state has (in principle) been realized; the welfare state and technology are, for different reasons, phenomena that provoke ambivalence rather than unalloyed enthusiasm; and the ideal whose validity goes without saying in philosophical discussion, that of freedom from Herrschaft, is, as a principle of society, tied to the juridical state (Rechtsstaat), which is to say, to public authority. If one wants to release new energies or, more modestly, new impulses, one must consider the conditions under which utopias thrive. The vague insight that every society needs a stock of hopes is not sufficient. Widespread problems, the importance of which is frightening, offer a good opportunity for kindling energy. It is crucial, furthermore, not to restrict ourselves to narrowly confined solutions; only a reasonably grand project can kindle energies of the required sort. Pragmatic skepticism is, finally, a serious opponent of utopian projects. Grand solutions in the utopian mold will succeed in overcoming such opposition only if they refrain from blithely ignoring difficulties and can plausibly claim for themselves the same advantages boasted by the pragmatist, a sober awareness of the scope and nature of the problems involved. Grand solutions are not fervid, fuzzy visions that, because they are fundamentally unrealizable, point to a perpetual “Nowhere and Never.” The goal, rather, is a realizable “Not Yet,” something more accurately called an ideal than a utopia.

9.1. A Monument to the Republican Revolution There is no shortage of pressing problems. We do indeed believe that our lands are free of poverty, social injustice, and violations of human rights, and we would prefer to feel neither directly nor indirectly responsible for the persistence of such horrors elsewhere. But we are clearly both victim and perpetrator of the dangers facing the environment. Not least of the vital problems facing humanity today is war; however abstract this possibility has become for us peace-pampered Europeans, it remains a painful reality for many others. The grand solution to this problem is simply that “men become fed up with war,” and the philosopher of this

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solution is Immanuel Kant. The relevant Kantian work here states its project in its title: “Toward Perpetual Peace.” Historically considered, Kant offers with this work a monument to the young French republic. The occasion for this intellectual homage was the Peace of Basel concluded by France and Prussia. The homage places itself in the tradition of the “Project of Perpetual Peace” of the abbé de Saint-Pierre and of remarks of Rousseau’s in The Social Contract, 3.15, and in the fifth book of Emile, in connection with “political institutions” (cf. IUH VIII:24/18; TP VIII:313/92). Though it is true that Kant contests the moral legitimacy of revolutions, this does not prevent him from harboring sympathy—that, in his own words, “borders on enthusiasm” (CF VII:85/153)—for “a powerful and enlightened people [that] can make itself into a republic” (PP VIII:356/100–101),1 that is, for revolutionary France. Kant’s affection for revolutionary France survived even the reign of terror under Robespierre, as well it should have. Just as an end, such as the founding of the Republic, can hardly justify such means as the Jacobin terror, so can a good end hardly be disqualified through unjustified means employed to achieve it. Those who know Kant’s ethics only from the Grounding or the second Critique are fond of accusing it not only of rigorism but also of a deficient power of practical judgment. If, however, one takes the trouble to assemble the remarks on the French Revolution that are strewn throughout his oeuvre (see Burg 1974), one will discover a remarkably nuanced assessment. Kant’s judgments do not simply reflect contingent political views, but are rather determined through and through by fundamental principles of the ethics of law and right. While Kant endorses the takeover of state power by the National Assembly (DR VI:339–42/147–49), he sharply criticizes the execution of Louis XVI (DR VI:320/132); while he holds that the secularization of church property is justified (DR VI:368/173), he regards Robespierre’s dictatorship as illegitimate (ANTH VII:259/164), but thinks that the constitution of the Directorate is legitimate, since it is dependent upon representatives of the people (CF VII:85/153). The first Article of Definition of Perpetual Peace constitutes the essay’s clearest “homage” to the republican revolution. Alluding to the new situation in France, Kant states in unequivocal and lapidary form: “the civil constitution should be republican”; and to make his attitude even more evident, he elaborates this demand by means of two principles of the Revolution: freedom and equality. 1. In this chapter, further references to Perpetual Peace will be made simply by page numbers to volume VIII of the Academy edition and to Lewis White Beck’s 1963 translation.

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The young Republic took notice of the monument erected to it. While German intellectuals such as Wilhelm von Humboldt visited Paris as no more (but also no less) than “tourists of the Revolution,” Kant’s presence was much more widely felt. The quickly translated essay on peace received an unusual amount of attention in intellectual and political circles. Even before the appearance of the French version of the essay—which, incidentally, occurred at the same time in Königsberg (published by Nicolovius) and in Paris (by Jansen and Perroneau)—one could read that “the celebrated Kant, this man who has in Germany effected a revolution in the minds of people, . . . has now lent his support to the cause of the republican constitution.” The author of this tract nonetheless sees very clearly that Kant erects a monument in the style of his craft, that is, in a philosophical manner; Perpetual Peace, it is said, develops “not the republicanism of France, but that of the whole world.” The perspective of particular nation-states is foreign to Kant; as a philosopher he transforms a particular ideal into a genuinely global one, the ideal of a world republic. The philosophical manner not only entails a universalization, both for republicanism and for the ideal of peace, it determines also the literary genre of the piece. Kant is no journalist, offering a simple commentary on a political event. All of the fundamental ideas are in fact already found four years before the Revolution in the small but richly significant essay “Idea for a Universal History from a Cosmopolitan Point of View.” In addition, Kant does not conform to a preexisting genre, but rather creates a new one, thereby once again documenting his intellectual rank. The novels that in the sixteenth and seventeenth centuries followed the example of More’s Utopia in dealing with issues of statehood and government were called “imaginary voyages.” In his proposal for perpetual peace, Kant does indeed allow philosophers to “dream this sweet dream” (343/85), but it is pure practical reason, not the power of political imagination, that makes a journey in this work. Because Kant defines morality by means of pure practical reason, he attains a standpoint beyond the choice between Bloch and Jonas. Perpetual peace is not simply something to be awaited from Providence; it is imposed upon humankind as a moral duty, and indeed a moral duty of right, not virtue. Not merely the object of an expectant hope but equally that of an engaged responsibility, perpetual peace has the character of a moral utopia, better yet, a political ideal. Since Kant defines morality as something categorically obligatory, the task of establishing perpetual peace acquires the status of a categorical imperative. Because peace, that for which we are responsible, must be established through a shared political will, the requirement to realize it is, in the Kantian sense, a requirement of law and right. In this way, the list of categorical imperatives is

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expanded to include an imperative of peace. Following the model of the peace treaties of his time, Kant develops this imperative in the shape of a formal treaty structure. Alluding with subtle irony to contemporary means of concluding peace, he even includes a “secret article.” The content of this article consists, however, in no more than the demand that a free and public discussion be permitted concerning “the general maxims of the conduct of war and the institution of peace.” This secret article contains also Kant’s transformation of the Platonic principle of the philosopher-king. Manifesting a twofold modesty, philosophers on the one hand renounce all public power, since the possession of such “unavoidably corrupts” their task and competence; and on the other hand, they demand neither special tasks nor special capacities. Philosophers, as Kant conceives them, accord to themselves nothing more than a universally human competence, that of exercising “the untrammeled judgement of reason” (369/116). Having become in this way democratic, philosophy is able to do that which is today widely denied it, to pass judgment upon human culture and to legislate the grounds of such judgments. Although Kant gives to the imperative of peace the form of a treaty, he does not offer a spelled-out legal text. He names preconditions (the Preliminary) and principal conditions (the Articles of Definition), but he introduces only the principles of perpetual peace. Further reflection on the matter, however, will discover in this “only” no defect but an advantage. The competence of philosophers for concrete political judgment is no greater than that of a well-informed reflective citizen. Kant does well to leave the task of establishing peace in concreto to citizens, the politicians that represent them, and the experts that advise them, namely jurists (cf. the Second Addendum). Kant for his part restricts himself to a kind of philosophical legislation. In so doing, he releases himself from any ties to a particular historical situation, and it is only because of this that he can remain a systematic partner in discussion through to the present day. That France has known republican government for two hundred years can well fill the land with a pride worthy of worldwide commemoration, but it can hardly awaken “utopian” impulses for the Western democracies of today. Not so with regard to the philosophical perspective that expands the republican idea to a “republicanism of the whole world.”

9.2. The Categorical Imperative of Peace In recent years debates about peace have given rise to passionate argument concerning the fundamental concept. If a consensus has in the end been extracted, it has been so only in a form that we know from politics to be regrettable; what has

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been achieved is merely a subterranean and moreover negative consensus: namely, that peace, a broad and equivocal goal, does not set free new energies in each and every definition of it. For Kant, the visionary, or utopian, element lies in the qualification “perpetual.” Kant’s concept is nevertheless far from woollyminded. The sobriety that complements its visionary character lies in the fact that Kant does not understand by “perpetual” (ewig) simply a temporal duration extrapolated without limit. What Kant understands by “perpetual” is instead a particular quality, something like that intended by someone who promises “perpetual” or “eternal” fidelity. No one can guarantee by giving his word today that he will in fact remain true tomorrow. What he can do is bind himself to a fidelity without reservation or condition. Kant begins his essay with a definition of “perpetual” in this sense of “without qualification or reservation”; he begins, in other words, with a qualitative, rather than a temporal, understanding of peace. According to the essay’s first precondition, “no peace treaty can count as such that is made with a tacit reservation of the material for future war.” Astonishing though this may be to those who know European history only after the French Revolution, the ideal of a perpetual peace has a long tradition in the West. It was alive before the writings of Erasmus and Sebastian Franck at the dawn of the modern era. In fact, Dante had sketched the blueprint of an international political order aimed at securing peace and the rule of law. Four hundred years later, after the Peace of Utrecht in 1713, the abbé de Saint-Pierre demanded a federation of perpetual peace for “the twenty-four states of Europe” and even added that the federation might eventually be joined by the “Mohammedan princes.” Against this background, Kant’s second visionary element can be brought to light: he aims, not for a peace that is content to limit itself to Europe, but rather for a genuinely global peace. Here too, though, Kant brings to the discussion elements of sobriety. In the first Western treatise on the state, the Republic, Plato had connected external peace with internal peace, with the peace of man with himself. Kant manages without such a far-reaching condition; he locates perpetual peace in the realm of law and right and, in virtue of its emancipation from disposition (cf. 3.3 above), defines the law independently of personal attitude. Similarly, Kant renounces the other element of Plato’s ideal of peace, an element that we find again in Rousseau’s First Discourse: the idyllic vision of eternal freedom from conflict. A conception of peace that presupposed this would contradict the fundamental anthropological determination that Kant had already outlined in his work on the philosophy of history and that he confirms in the First Addendum to the essay on peace. According to the concept in question, that of “unsociable sociability,” passions such as “vainglory, lust for power, and avarice” are “in themselves unami-

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able” (IUH VIII:21/15) but, as “opposition” to the “inclination to laziness,” nevertheless lead men “from barbarism to culture” (IUH VIII:21/15). A life in “vain harmony” is for Kant not only unrealistic, it is not even desirable, since “all culture [and] art . . . are fruits of unsociability” (IUH VIII:22/17). Kant is perfectly willing to admit conflict and defines peace negatively as the “end of all hostilities” (First Preliminary Article, 343/85). Enmity and hostility are not truly ended, rather than merely deferred, until all war is forbidden. Kant’s first conception of peace precludes war as a means of resolving conflicts. The end of war can certainly awaken hope wherever war is currently waged. More than this, as soon as the modest conception of peace was realized, humanity would be free from a fear that today hangs heavy over it, the fear of an atomic catastrophe. This hope, however, is not the truly great hope that can set free new energies for all humankind. For the threat of war, even that of a nuclear variety, would pass quickly by if one side gave in and accepted the conditions of the other. According to the famous Master and Slave chapter of Hegel’s Phenomenology of Spirit, the formation of human self-consciousness begins with a struggle for recognition. This struggle, carried out to the death, does indeed succeed in ending hostilities, but results nevertheless in a relationship that is hardly desirable, the extreme asymmetry between master and slave. There is, moreover, no unqualified peace, since hostilities are brought to an end only under the condition that one side gives into the fear of death and submits in time to save himself. Peace is obtained in only a qualified form, for as long as one side recognizes survival as a dominant good. As the confessional civil wars of the early modern period and the many more recent, not always religiously motivated civil wars show clearly enough, people are often prepared to fight until all energy is exhausted for goods such as religious freedom, political self-determination, and cultural identity, not to speak of less exalted goods. People fight, in other words, over goods that are taken to dominate the good of mere survival. The peace that results is not far from the peace of the grave. Another reason only a “peace with qualifications and reservations”—in Kant’s terms, an extended cease-fire—can exist between master and slave is that the slave can surmount his “servile consciousness” that takes survival to be a dominant goal and rebel against the master. Above all, though many may regard it as prudent to value survival above all else in the case of a conflict between goods, it is not morally required. A peace that is determined by the principle of survival is merely a pragmatic imperative. To be sure, this imperative can vary in scope. Up until now, wars have been regional in character, and the threat of a war that could jeopardize the entire species is quantitatively much greater than anything regional could be. Does it

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follow that the prevention of a war of the latter, nuclear sort becomes, as a “species-pragmatic” imperative, binding in a genuinely moral way? Remarkably, Kant, in ignorance of the nature of present-day weapons arsenals, takes a global war into consideration. He speaks of a “war of extermination” that “would permit perpetual peace only in the vast burial ground of the human race,” and holds that such a war is “absolutely forbidden” (347/90). Now, “absolutely forbidden” is equivalent to “forbidden without qualification, that is, categorically.” Does Kant therefore anticipate the position, currently defended in the debates about peace, that bringing about the demise of the human race is morally prohibited? In the case in which not merely a group but humanity as a whole is threatened with annihilation, does an imperative of peace founded on the value of survival then lose its merely pragmatic validity and become a categorical prohibition of the form “Humanity is not permitted to annihilate itself?” The annihilation of the species is something so horrifyingly conclusive that one is fully warranted in speaking of something qualitatively new. Whether the quality of the horror entails a categorical imperative to avert it depends, however, on the ground of the relevant obligation. In this case, the ground in question is that of survival. The imperative to avert the extermination of humanity contains an element of well-being and cannot, therefore, ground anything more than a pragmatic imperative. Nowhere in Kant’s essay on peace do we find an argument to the effect that war is not permitted, because it puts human life at risk, and that it is absolutely impermissible when it puts the whole species at risk. Such a train of thought cannot then help illuminate Kant’s thesis that a war of extermination is “absolutely prohibited.” In addition, there are wars that risk no human lives. In the History of Florence (5.102), Machiavelli boasts of a war conducted in such a way that neither side lost a single man. Today as well, one can perhaps imagine weapons systems and military strategies that would enable conflicts to be resolved without any killing, while still relying on force as the means of resolution. Would such wars be legitimate simply because they issued in no casualties? One whose only argument against war is the prohibition against the taking of life would have to answer this question in the affirmative. Kant answers the question above in the negative and constructs in support of this answer a second and more ambitious conception of peace, one that reflects the conditions that make a peace that is truly without qualification or reservation. One can reconstruct the conception by means of an argument e contrario. States of peace exist with qualification whenever conflicts are resolved only because one side, for whatever reason, submits to the force of the other. Force, in turn, gives rise to an asymmetry that in the extreme case takes the form of master and slave.

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Qualification and asymmetry fall away as soon as it is no longer force that decides, but law and right, the supersession of force. Since mere positive law can conceal brute force within it, at issue is instead morally acceptable law, just law. Where just law rules, parties to a conflict acquire a fundamental equality of right, and the asymmetry between them is dissolved. In his second, positive conception of peace, Kant emphasizes this equality of right. Although he does not develop it until the first Article of Definition, Kant makes use of this positive conception of peace already in the Preliminary Articles. In the Sixth Preliminary Article, that in which the war of extermination is mentioned, he twice alludes to a means of conflict resolution that results, not from force, but from just law (346–47/89–90). It is this moral argument, merely sketched to be sure, that gives Kant the right morally to condemn a war of extermination as “absolutely prohibited.” Recent discussion of peace has concentrated on the threat of nuclear war, a focus that is legitimate insofar as nuclear war conjures new dimensions of danger into existence. Nevertheless, this orientation diverts attention from the fact that it is not only nuclear war that is to be condemned. The many “little wars” that at the present time are not only possible but actual represent a striking moral injustice that should not be trivialized on the grounds that it does not threaten the continuation of humanity as a whole. Because, according to Kant’s second conception, the achievement of peace serves the achievement of the rule of just law, it acquires the status of an element of the morality of law and right. Since Kant defines the morality of law as a categorical imperative, he implicitly deems perpetual peace a categorical imperative of law. Though he does not actually use the expression “categorical imperative of law,” he does declare the state of peace to be “a direct duty” (356/100, and cf. 378/126). With regard to peace as a categorical imperative of law, the accent is not placed first on the element of categoricity; the juridical character of the imperative is equally important. The imperative of peace represents an obligation whose recognition human beings can demand of each other irrespective of their religious, political, or even moral attitudes. While a religious morality such as that embodied in the Sermon on the Mount is concerned with a meritorious “above and beyond the call,” the morality of law contents itself with that which people owe to one another. Structurally, the imperative of peace has two levels. First, just law must be defined, and only then can one try to see to its peaceful establishment. From the point of view of the ethics of law and right, one has a categorical imperative in the narrower sense to acknowledge morally grounded rights, such as human rights. In this case, by contrast, we are dealing with the demand to establish just law, not

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with private force, but with shared “public” force. When Kant speaks of public force, he has in mind a state. So the thematically second level of the categorical imperative of peace, subsidiary to the first imperative of law, coincides with the categorical imperative of the state—the demand together to form a state that sees to the establishment of moral rights—and it is this latter that is the genuine imperative of peace. (In substance, Kant espouses a categorical imperative of the state, for example, at 378/125–26 and 386/134–35.) Relative to moral rights, this imperative orders nonviolent conflict resolution. Political discussion is familiar with a controversy that plays a role in debates about peace: the dispute over which of the three principles liberty, justice, and peace merits priority. In the Doctrine of Right (VI:355/161), Kant states that peace is “the highest political good,” and appears thereby to side with the pacifists. According to the second principal section of the “Dialectic” of the Critique of Practical Reason (C2 V:110/92), the concept of “the highest” is ambiguous. It can mean either “the supreme” (supremum) or “the complete” (consummatum). According to the first meaning, peace, as the highest good, would be, in a meaning specific to Kant, a dominant political goal, for whose sake reductions or sacrifices of liberty or justice could be demanded. According to the second meaning, peace would be, once again in a specific sense, an inclusive political good, the achievement of which could require no loss of liberty or justice, since these would be realized together with peace itself. Because it consists in the nonviolent establishment of just law, which in turn consists in a liberty compatible with its possession by all, this second conception of peace functions as the highest political good in an inclusive, not a dominant, sense. One achieves this good in submitting oneself to the rule of just law and promoting the establishment of the latter by exclusively nonviolent means. Talk of a categorical imperative of peace needs then to be modified along the following lines. The establishment of perpetual peace remains categorically commanded. But despite the second Article of Definition’s declaration that the state of peace is a “direct” duty (356/100), Kant sees more precisely in the appendix that the duty in question can be directly applied only to the two stages adumbrated above. One is obliged to acknowledge the claims of just law—this is the categorical imperative of law in the narrower sense—and also to see to the organization of this acknowledgment by public, rather than private, means, which is the categorical imperative of the state. Perpetual peace, peace without qualification or reservation, is nothing other than that which results from the observance of this double imperative. Alternatively, as Kant expresses it with a New Testament allusion: “Seek ye first the kingdom of pure practical reason and its righteousness, and your end (the blessing of perpetual peace) will necessarily follow” (378/125).

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9.3. A Second Republican Revolution Since law needs to be established on three levels, Kant, in three Articles of Definition, formulates three aspects of the categorical imperative of peace. The three articles express with acute brevity an entire philosophy of public law. The first article treats of relations within states (the law of the land), the second article of relations between states (international law), and the third article investigates the relations between persons and foreign powers and contains the cosmopolitanism in whose name Kant sharply rejects every form of colonialism. At least in the Western democracies, the effective nonviolent implementation of legitimate law within national borders has in principle become accepted as a matter of course. If the present day still harbors hopes capable of awakening energy, they are more likely to be found at the level of the law of nations. In order to grasp more precisely what it is that should be valid between states, let us cast a brief glance at the domestic perspective. Kant’s lapidary demand that “the constitution should be republican” has a scope that is often underestimated, even by Kant interpreters. Indeed, those familiar only with today’s linguistic usage can even get the impression that Kant’s demand has little to do with political legitimacy, since, according to the definition offered by a recent Political Lexicon, “republic” is a “designation for all states that are not monarchies, and is therefore virtually meaningless in view of its lack of differentiation” (Drechsler et al. 1979, 479). In truth, we do today prefer to use expressions such as “human rights,” “democracy,” “juridical-constitutional state,” and “social-welfare state” as criteria of the legitimacy of national constitutions. Kant himself is partially responsible for his readers’ undervaluation of the scope of his demand. For he defines a republican constitution by means of five conditions, of which the fourth, the division of powers, is introduced separately. In addition, he discusses the conditions in such a way that it looks as if they should combine to form a complete conception of republicanism. In fact, for Kant, republicanism means much more than this. His conception includes most of the criteria of legitimacy upheld today. Kant’s first three conditions, liberty, dependence, and equality, are reminiscent of the revolutionary triad liberty, equality, fraternity. Kant, however, strikes the communitarian notion of fraternity and emphasizes in its stead—although the phrase “in addition” would perhaps be more accurate—the principle of “dependence upon the law.” The conditions named by Kant lead to the juridical-constitutional state. From the point of view of the ethics of law and right, Kant has good grounds for beginning, as he does, with “principles of . . . freedom” (350/94; cf. 373/120

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and 378/126). The systematically first task of a republic consists in the recognition of human rights (350/93) and thus coincides with the first level of the categorical imperative of peace. As we would put it today, a republic is a constitutional state. As long as human rights are merely postulated, they often enough remain merely “a pious wish.” To counter this danger of mere postulation, Kant formulates as a second condition the “dependence of all upon a single common legislation” (350/94). This means that a republic needs public powers, above all legislative powers; it needs, in accordance with the second level of the categorical imperative of peace, to become a state. With this second level, Kant rejects the ideal of freedom from Herrschaft as a principle of society. Public powers such as legislatures do not, however, prevent human rights from remaining merely a postulate. The state that drafted the first-ever declaration of human rights, Virginia, is one of the southern states of North America that condoned slavery for many more generations. A republic arms itself against this danger with the “law of . . . equality” (350/94); as a consequence of this supplement to the constitutional state, the latter becomes, in the third place, a juridical state, one that respects universal legal rights. Not until public powers treat all equally and in accordance with the principle of liberty, not, that is, until human rights are enforced, are slavery and other forms of discrimination and privilege abolished. The fourth Kantian element, the division of powers (which some philosophers take to be of itself sufficient to define a republic), is needed by a republic because—but only because—public powers are exercised by human beings who, being natural creatures subject to human passions, are capable of misusing their authority (352/96). To found a republic philosophically, a fifth element is needed as well. Kant interprets the principle of liberty as “the privilege to lend obedience to no external laws except those to which I could have given consent” (350/93). This condition gives republicanism a democratic depth and gives the categorical imperative of law an interpretation that points in a consensus-theoretical direction. At the same time, it shows that Kant’s ideal still harbors critical potential for the Western democracies. The fact that laws supported by a majority of particular interests are enacted in the course of party struggles does not suffice to render them legitimate. Laws, or at least the substantial principles underlying them, must also deserve the consent of all affected by them. According to Kant, “states can be judged as are individual people” (354/my translation). For this reason what is applicable to relations between individuals is applicable to relations between them: to begin with, the only morally legitimate sort of conflict resolution is that which depends exclusively upon the dictates of just law. Now, a war is won only by the side that is on the whole stronger; victory and defeat depend solely upon relative power. In view of this, “reason . . .

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absolutely condemns war as a legal recourse” (356/100). The idea of a just war, which contributes to the determination of European discourses on peace until well into the modern age, loses all legitimacy for Kant, with the single exception of sheer self-defense (345/87–88). Indeed, in the relevant passage from Perpetual Peace, Kant’s usually sober argumentative prose acquires a purple tinge: the condemnation of war, he writes, comes down from “the throne of the highest instance of moral legislation.” In order to get serious about outlawing war, the republican order defined by the five conditions mentioned above—the recognition of human rights (now the “human rights of states,” that is, the rights of nations), the effective establishment of these rights by public powers, equality before the law, the division of powers, and finally the capacity to gain universal consent—needs to be present on an international level. The two “utopian” aspects of Kant’s essay on peace, perpetual peace and a truly global republic, do not designate two distinct visions, but rather one and the same outlook: the ideal that the law as morally defined, and it alone, governs. In order fully to realize the principles of the French Revolution, republicanism needs to be acknowledged universally, and this in a double sense. First, each individual state must adopt a republican constitution; this is in principle, though not in actuality, trivial. Second, and no longer trivial even in principle, relations between states must in turn be constituted in a republican manner. This second step has the force of a renewed republican revolution. What heretofore has held only within states is made real also between states in a republic of republics, a world-republic. Epigrammatically: the republican revolution fulfills itself in a world-republic.

9.4. Ideal or Surrogate? Pragmatic skeptics, the opponents of ideals, will speak up against the aim of establishing a world-republic. As in the case of individuals, so in the case of states: the existence of a republic requires the ceding of sovereignty, and, says the skeptic, few indeed are the states prepared to do that. Though one might try to discredit this lack of readiness as a sort of stubborn cussedness, the experience our century has had of totalitarian regimes offers grounds enough for justified suspicion. So long as there is no shared consciousness regarding the morality of law and right on the global level, it will be force, not law, that governs. Further, the danger looms that today’s international conflicts, transformed into domestic conflicts as they would be in a world-state, would be decided by a majority in their own interests, with even less consideration for the rights of all. Indeed, this threat is accentuated from the global perspective. Since the Enlightenment, permission

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to emigrate has been accepted as a valid human right, and where this right is denied, one can at least attempt to flee. In the context of a world government, both of these, the right to emigrate and the possibility of escape, would effectively disappear, as would the chance of hoping that a dictatorship might be overthrown from outside. Against the background of this sort of worry, the depth of Kant’s awareness of the issues is once more made evident. He is entirely familiar with the most important arguments against a world-republic. He does not, however, in the essay of peace discuss the simple alternative: state of war or world-republic. Rather, he brings into view three alternatives to the practice of war, and to this day we have not developed substantially different options. The one extreme, a homogeneous world-state, Kant calls a universal monarchy. In order to establish this form of government, the antecedently existing individual states would have to renounce their sovereignty entirely; they would dissolve themselves. Kant opposes this option with two arguments that have lost none of their force today. In Perpetual Peace he raises the specter of what we would call a dictatorship; he fears, namely, that the world-state could degenerate into “a soulless despotism” (367/113) and a “burial ground of freedom” (367/114). Two years later, in the Doctrine of Right (VI:349–50/155–56), this argument no longer appears. Here, Kant points only to another worry, also one that we share with him: he holds that a global state of this sort would be ungovernable. Kant’s arguments are convincing (within limits) if they are understood as expressing pragmatic considerations. They issue from demands of political prudence, in particular the thought that with regard to the formation of an international state heightened caution is in order; but they do not amount to a fundamental moral objection. Neither danger, that of dictatorship nor that of ungovernability, is structurally different at the level of individual states, and both can be protected against with relatively reliable measures. Kant’s ideal republicanism is in any case concerned with a moral conception of the state, and this from the start excludes the danger of a “soulless despotism.” Nevertheless, despite the weaknesses of Kant’s arguments, assuring the rule of law and right on an international scale does not in fact require the establishment of a homogeneous world-state. Moreover, a more fundamental argument against this idea can be mounted, one entirely in line with Kantian philosophy of law and the state. Remarkably enough, the argument does not appear in Kant’s writings on these subjects. Global statehood is morally mandated only for a single, clearly circumscribed task: for the coexistence of already existing states to be made conformable to law. It is not the initial establishment and consequent enforcement of human rights for groups and individuals that is sought at this level. These are

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tasks incumbent upon individual states, which need only to be supplemented by a subsidiary global political order. Individual states remain primary, and the worldrepublic is at best a secondary state. It is not an individual state blown up to global proportions and certainly not a monolithic state; it is rather a state of states. And since Kant’s world-state is republican in character, what is aspired to is a republic of republics, a republic composed of individual states that Kant some years before the essay on peace had characterized as a “republic of free, confederated peoples” (R VI:34/my translation). Since the primary states are not alone on earth, conflicts between them can arise, conflicts that can threaten those rights—to the integrity of life and limb, to property, to freedom of religion and opinion, and so forth—that are “in principal” already assured at the primary state level. Cases can occur in which either the relevant rights of individuals or the right of primary states to the integrity of their territory and to political and cultural self-determination will be threatened. In the context of the universal requirement of peace, however, peace between nations amounts only to a small and residual responsibility. The tasks of the state familiar to us—such as those concerning civil and penal law, labor and social law, the right to language, religion, and culture—all these responsibilities of primary states are removed from the jurisdiction of the secondary state, the world-republic. A world organization that arrogated to itself more responsibilities than that of securing international peace would violate the human right to form states, the right to political and cultural self-determination. Kant takes this right to form and sustain states to be so basic that he formulates it in the Preliminary Articles. According to the second such article, “no existing state can be acquired by another state through inheritance, exchange, purchase, or gift,” and according to the fifth article, no state, and that means also no world-state, “can interfere in a violent manner in the constitution and government of another state.” If one adopts Kant’s argument, or an argument along his lines, there remain only two serious alternatives to the practice of war: either a state of nations, more precisely the state of states, or republic of states, which discharges the remaining task by means of a full-blooded state, or the possibility Kant himself espouses, a confederation of nations that manages to do without any renunciation of sovereignty. On this model, parties renounce war without reservation through bi- and multilateral treaties and declare themselves prepared to resolve all differences without recourse to violence. Should conflicts nevertheless arise, the confederation of nations envisages neither a common book of statutes (356/100) nor an authorized tribunal, much less the power to enforce the decrees of any such court. That a confederation of nations would have a juridical, rather than a statist, character would be welcome to the individual states that jealously protect their

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sovereignty. But it contradicts the fundamental thesis of Kant’s ethics of the state, that because in the sort of coexistence that precedes the political state, the state of nature, all rights are valid only provisionally (354/98; cf. DR VI:305–8/120–22), the state of nature is to be overcome in favor of the political state. Where the usual criticisms of an international state compare its advantages with its disadvantages, thus drawing up a cost-benefit analysis, Kant argues more fundamentally: he maintains that the idea of an international state is self-contradictory (354/98). On hearing the word “contradiction,” those well versed in Kant will be reminded of the antinomies of the first two Critiques. Since Kant calls perpetual peace “the highest political good” (DR VI:355/161) and articulates the concept of a highest good in the “Dialectic of Pure Practical Reason,” one might conjecture that the essay on peace will offer as a variant an antinomy of practical reason with respect to law and right. Worthwhile though it would be to work through this speculative problem, no hints of it are found in Perpetual Peace. The contradiction Kant claims to find in this work is not at all speculative, but derives from the two components that together make up the concept of an international state. According to Kant, the concept of a state contradicts that of a nation or people. This view, however, is not convincing. In Perpetual Peace, Kant runs together two concepts of a “nation” that are in fact independent of one another. Sometimes he takes a nation to be constituted by shared ancestry; at other times he understands it as a public juridical unity. Corresponding to each distinct concept are two ways of reading the supposed contradiction in the notion of an international state. On the first reading, the reason that an international state could encroach upon the distinctiveness of individual nations is that in the course of realizing themselves, organs of state institute extrajuridical commonalities. But if an international state were constructed with the foresight and circumspection demanded by the ethics of law and right, were constituted as a republic, and, above all, were restricted to the modest residual task of securing peace between nations, any tendency to homogenization would be extremely slight. If anything, the competition between languages and religions desired by Kant (367/13–14)—one could speak more generally of a right to social and cultural identity—would be protected rather than threatened. The “great tendencies to homogeneity” stem in any case from other factors, from economics and technology, from science, even from architecture, the plastic arts, and music, perhaps even from the international language of highways, airports, train stations and the like. If today there are indications of something like a really existing world-state, it is not a state in the legal sense of the word that is indicated; global hegemony is found rather in the predominantly Euro-American “civilization.”

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The state of peace is first and foremost a task for the law. So, on the second reading, Kant’s alleged contradiction is to be found in the concept of law itself. Now, this much is true: as soon as nations in the juridical sense of the word, as divers states, unite themselves into a superordinate state, they renounce a portion of their sovereignty. To see in this renunciation a contradiction consisting in the fact that the first element, the state of states, cancels out the second element, the state of individual states, is to think in terms of the overly simple alternatives: either full sovereignty or none. In fact, there are many intermediate stages, and the international state can designate one that is defined by an exceedingly slight renunciation of sovereignty, one that is not far from allowing individual full sovereignty. While the great majority of the tasks of state fall within the jurisdiction of the primary states, the world-republic is entitled only to prevent states from losing their rights through the aggressions of other states. There is no contradiction in the concept of an international state, only something that has long been familiar to us from the concept of a federal state: a layered understanding of sovereignty that in this case has another layer added. Kant has good grounds in the ethics of right and law for saying that “nations, as states, can be judged as are individual people” (354/my translation). This analogy leads to a surprising alternative: Either the renunciation of liberty that is indispensable to the constitution of a state is just as contradictory in the case of individuals as it supposedly is in the case of states, so that no state is morally permitted to govern relations between individuals and the advantage of securing peace must somehow come about without the disadvantage, the renunciation of sovereignty by those affected. Or there can be no assurance of the rule of law without a certain renunciation of sovereignty, in which case the idea of international statehood, so far from being self-contradictory, is a condition that makes possible the morally commanded state of international lawfulness. This alternative is just as overlooked by interpreters of Kant as it is in the systematic discussion of the relevant issues. If federations are alone legitimate forms of coexistence, then Kant, whom we have come to know as a critic of freedom from Herrschaft as a principle of society, turns into an advocate of this sort of unpolitical, even apolitical, utopia. While Kant elsewhere (373/120) holds that any state is better than none at all, since anarchy would mean the disappearance of any and every protection of rights, he would here offer us an argument for a state-free, and insofar Herrschaft-free, coexistence. So, can Kant, à contrecœur, reawaken for the ideal of freedom from Herrschaft those utopian energies that the juridical state and the social-welfare state are today no longer capable of inspiring? A federation, after all, would have the same advantage in the case of individuals as it

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does in the case of the primary states; it would amount to a guarantee of peace without renunciation of sovereignty. Kant himself sees the positive idea only in the statist world-republic and calls the confederation of nations by contrast “the negative surrogate” (357/101–2). To expect the assurance of peace from a confederation is to content oneself with a substitute, with something that does not in fact fully achieve the desired goal. Peace protected only by a confederation would remain always provisional, thus contradicting the freedom from reservation or qualification demanded by the concept of eternal peace as interpreted above. Some interpreters of Kant—including, recently, Geismann (1983, 366)—see a fundamental difference between the international and the intranational assurance of peace and think that because of it one can content oneself with a confederation at, and only at, the international level. The difference in question, however, is not to be found, and neither, given the analogy that exists between individuals and states, should it be expected. In the Doctrine of Right (VI:316–37/127–45) Kant ascribes autonomy to the state and understands by that the right “to form itself according to laws of freedom,” and in the essay on peace he demands that nations conserve their independence and diversity. These formulations are just as valid for individuals as for states. The right to autonomy and individuality is, to be sure, subject to the limiting condition of universal compatibility, but states are just as bound by this moral condition as are individuals. So the difference between international and intranational levels does not lie here. Whether one takes individuals to be physical persons or states, in both cases legal independence, that is, freedom of action, should be protected against threatening attacks, and in both cases protection cannot be provided until morally legitimate liberty is publicly and communally assured. Kant furthermore says explicitly that “[f]or states in their relation to each other, there cannot be any reasonable way out of the lawless condition which entails only war except that they, like individual men, should give up their savage (lawless) freedom, adjust themselves to the constraints of public law, and thus establish a . . . state . . . of . . . nations” (357/101). This solution deserves the title “moral” and so is once again categorically demanded. Kant says that the solution is that “dictated by reason,” and asserts moreover that an international state is the only moral solution to the problem of war (“there can . . . be no other way”). The real problem of securing international peace does not lie in a contradiction in the concept of an international state, but rather in a dilemma whose structure is found already in the case of individual states. A power strong enough to protect the rights of each small and weak minority is also strong enough to abuse its power and employ it in the oppression of those same minorities. Nevertheless, the

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normative idea of the state constituted as a republic is intended precisely to resolve this dilemma, the dilemma of state power as such. If Kant does not recognize this solution to the problem of the rights of nations, then the contradiction he alleges in the idea of an international state must lie elsewhere. Kant says of an international state that nations, “according to their idea of the rights of nations, will not want it at all.” I think that the accents in this statement are placed on “their” and on “will not want.” Kant is carrying out a rhetorical shift rich in consequences and is changing argumentative levels from the fundamental and moral to the historical-political. No longer does he speak of a morally best way, of a categorical ought to which the wills of all affected must submit. In order that all not be lost and open war be waged if states refuse to grant even the small diminishment of sovereignty required, Kant developed a “second-best path.” Instead of the positive idea of a world-republic as an international state, he proposes as a negative surrogate agreements in the form of treaties with no superior authority, a confederation of states. Doubtless, agreements are better than open warfare. But a mere confederation lacks the instruments requisite for securing that which is to be agreed upon, world peace. A peace without security is a peace with reservations and qualifications, in Kant’s terms a mere cease-fire. For this reason, the cost of accepting a confederation of states is a significant loss of visionary power for the ideal of world peace. In place of a project that awakens hope, we have a halfhearted solution. This interpretation of the confederation of nations as a second-best path departs from the usual reading of Kant and must contend with at least two counterarguments from the traditional perspective. One point, made by Kant himself, is correct: individual states “already have an internal juridical constitution.” But from this it does not follow that they have “outgrown compulsion from others to submit to a more extended lawful constitution according to their ideas of right” (355–56/100). In accordance with the right of self-determination, states are indeed exempt from the duty to change their constitution in view of the desires of other states. Desires of this sort, however, are not at issue in the case of a worldrepublic. At issue in that case is simply the protection of territorial integrity of the individual states—today including protection against threats to the environment that know no borders. Cultural identity too is to be protected; but the states are morally obliged to enter into treaties with their neighbors only for minimal tasks of this sort, tasks for the effectiveness of which a mere confederation is insufficient. According to a second misgiving, Kant himself introduces in the First Addendum a guarantee of peace that dispenses with the need for a state—namely, the “great artist nature,” that which, “contrary to their own wills, [allows] concord

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among men to arise out of their discords” (360/my translation). The appeal to “the artist nature” is an argument from the invisible hand, something much favored in the discourse of economics. Kant is thus offering a highly modern argument: the operation takes place behind our backs, with no need of a political will to conduct it. By “the artist nature,” Kant understands both anthropological and natural predispositions. He believes that people are driven by war to inhabit even the least hospitable corners of the earth; this is the anthropological predisposition. To this, as a sort of condition of nature itself, is added the fact that people can live virtually anywhere on earth. Finally, Kant thinks that it is precisely through war that people are forced “into more or less lawful relations” (363/108). Continuing to cleave to his threefold division of the theory of the state, Kant specifies the general thesis concerning “nature the artist” for each of the three levels of public rights. In the case of rights of states themselves, it is advantageous for each to place himself under enforceable laws and thus to form a state: dramatically, “even a race of devils, as long as they had intelligence, would need a state” (366/my translation). With regard to the rights of nations, Kant says that the diversity of languages and religions takes care to ensure that there exists a multiplicity of neighboring states independent of one another rather than a single homogeneous state (367/113). Finally, regarding the rights of world-citizens, Kant holds that “the spirit of commerce, which is incompatible with war, sooner or later gains the upper hand in every state” (368/114). According to the middle argument, the one that is essential for the rights of nations, “the artist nature” is supposed only to hinder a homogeneous world-state. It can guarantee neither that certain states join together in a confederation at all nor that such a confederation, as Kant hopes, will expand ever more widely (357/102). Above all, “the artist nature” is incapable of superseding the aporia of a confederation of nations. Either the confederation is supposed to enforce the peaceful resolution of disputes, in which case it needs a certain power and is more than a mere confederation; it has, even if only minimally so, the character of a state. Or it contents itself with a stateless confederation, whereby its goal, the effective securing of peace, remains “a hollow assurance.” A mere confederation remains, so to speak, a state of nature, lacking precisely that for whose sake it was brought into being. Without a “sword of justice” a mere confederation cannot guarantee the peaceful resolutions of conflict. Neither objection against the interpretation sketched here is, therefore, compelling. The fact that they nevertheless crop up in Kant’s text shows that he had not yet arrived at final clarity. Historically and politically, he may be right. In his own time, in any case, neither the larger nor the smaller powers were prepared to see their sovereignty diminished. Given this presupposition, a historical contin-

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gency, a confederation of nations is indeed a sensible surrogate, though still a surrogate in the pejorative sense of an incomplete substitute, since a confederation cannot guarantee that conflicts will be resolved according to law rather than force. The conjecture that Kant had not arrived at full clarity on this question is confirmed by his passing over the second of the three possibilities for overcoming the practice of warfare and his speaking only of the alternatives: homogeneous state or nonstatelike confederation. An example of this oversimplification is found in the second Article of Definition, where Kant says that “many nations in one state would . . . constitute only one nation,” and speaks of nations’ being “fused together into one state” (354/98). Since Hegel, Kant has been accused time and again of espousing an ethics of “a mere ought.” Is the situation in the ethics of peace in fact reversed? Is it Kant that renounces a mere ought with the idea of a confederation of nations, while those who—contrary to Kant—promote the idea of a world-republic are demanding something that political reality has long since (and mercilessly) left behind it. Perhaps the contrary is the case. Though the public has not yet clearly taken notice of this, the sheer juxtaposition and opposition of states has long since been transformed into a tightly knotted network of treaties, a large number of which correspond to Kant’s idea of a confederation of nations. The singular has become a plural, a regionally and thematically complex diversity. To be sure, nothing in all of this indicates a shared state power in the slightest. Nevertheless, I conjecture that some aspects of the treaties reach beyond the scope of a mere confederation. Wherever treaties have provisions for international inspection, a certain renunciation of sovereignty takes place, hardly noticeable to be sure, but nevertheless real. We find, therefore, in these cases a first element of multinational statehood. This element would be expanded if one were in addition to establish international courts or other means of arbitration. As soon as these means of arbitration were granted a certain power to enforce their decrees, the marks of statehood would be unmistakable. In short, a world-republic is not a woolly utopia that is fundamentally nowhere and never to be realized; it is a utopia of the not yet, an ideal toward the realization of which we are already underway. Whether one speaks of a second republican revolution or, in deference to France, of a completion of the French Revolution, the ideal of perpetual peace will not be achieved by a single juridical act. In order to arrive at the definitive solution to the danger of war, at a state of unconditional and global peace, the regulation of international conflicts must be transformed into the shape of enforceable law item by item, in many small steps. The republican order between states themselves constituted as republics is nothing other than the epitome of all

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these legal forms. The ethics of law and right leaves the concrete determination of these forms to practical discourses and political decisions. In order to seek these forms in the first place and to declare oneself ready to make the minimal concessions of sovereignty required to make them effective, a lot of patience and a corresponding will is required. Because the path is long and wearying, there is a great deal of room for the bad-faith disguising of lack of will, or for at best offering help only in the search for modest, piecemeal solutions. Against this danger, the political will of the relevant parties needs something of that enthusiasm that inspired the beginning of the republican revolution. Kant shows that the formation of such a political will is not only a demand of collective self-interest; the establishment of a “republic of free confederated peoples” is a moral requirement.

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P A R T

T I M E LY A LT E R N AT I V E S ?

T H R E E

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According to the collected objections of Hegel, Marx, and Nietzsche, to name only some of the more prominent critics, Kant’s ethics was dismissed as a rather antiquated affair; for many philosophers it was even taken to be obsolete. In the German discussion, which often enough read Kant through Hegelian lenses, Hegel’s criticism of the Kantian moral ought was repeated time and time again. Haughtily tossing the Metaphysics of Morals aside, philosophers pled for the recovery of substantial ethical life. French philosophy, more inspired by Nietzsche or by Heidegger, whose mind was notoriously closed to ethics, corroborated in a lapidary way: nothing is more alien to us than a categorical imperative. For some time now, however, a strong countercurrent has been in evidence. John Rawls, with his “Kantian interpretation of justice,” introduced, as is well known, a new trend into the English-speaking world. And after the Erlangen school, in the context of its systematic concerns, developed an interest in Kant’s ethics, proponents of discourse ethics, above all Karl-Otto Apel and Jürgen Habermas, have recently turned to Kant with systematic questions. Kant’s position shows itself today to be once again an approach to moral philosophy that needs to be taken seriously. The newer turns to Kant are conjoined with certain corrections to his views, something that is not astounding given the two hundred years separating him from us. At the same time, talk of progress in philosophy is justified only with a number of provisos, and it is therefore sensible to ask, first, whether the new Kant renaissance always grasps the philosophy of the categorical imperative at the level of its own problems and, second, whether its systematic intentions results in the development of timely alternatives. Before discussing Rawls, Apel, and Habermas, I will continue the debate about peace, asking the question whether recent research into the question of Herrschaftfree cooperation speaks in favor of the Kant who deals with guarantees of international law or for the Kant who investigates the law of sovereign states. In the first case, Kant rests content with a state-free coexistence, but in the latter, he holds statehood to be indispensable.

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10 FREEDOM WITHOUT HERRSCHAFT (AXELROD)

Game theory is known for attempting to legitimate public authorizations of force, which is to say, Herrschaft, by formalized means. Not so well known is the attempt, with the aid of game theory’s most famous device, the prisoner’s dilemma, to test the possibility of freedom from Herrschaft. This attempt calls into question the foundations of modern society, the fundamental form of its legal and governmental organization. In addition, it calls into question a familiar and popular antagonism in the realm of political theory and theoretical politics. From the point of view of the philosophy of science, game theory belongs to that empirical-analytic form of knowledge to which critical theory is fond of attributing an interest in the stabilization of authority and Herrschaft, and against which it sets its own interest in the emancipation from the same. While in the most recent works from the critical-theory tradition, for example, in Habermas’s Theory of Communicative Action, the idea of freedom from Herrschaft has more or less disappeared, new

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impulses in favor of this idea have emerged in game-theoretical investigations such as that of the American political scientist Robert Axelrod. A critical encounter with his much admired book, The Evolution of Cooperation (1984), will, therefore, serve to continue the discussion of Kant’s suggestion that an international state of peace be won by mere treaties and so without hegemonic control.

10.1. Social Philosophy in the Modern World Game theory stands in the tradition of social theories that undertake to explain or justify social relations from the “principle of self-interest.” Because this principle dominates the postmedieval world, it strikes us as distinctively modern. In truth, though, it has been familiar to Western social philosophy from its very beginnings. Plato, for example, when he conjectures that the polis develops out of the advantages of specialization and the division of labor (Republic II, 369b–376d), defends the thesis that cooperation serves the interests of cooperators. It follows that the principle of self-interest as such does not typify the modern age in particular. The principle becomes unmistakably modern through the addition of two further features: on the one hand, the universalization of the principle of selfinterest, and on the other, a complication of the task that is supposed to be accomplished by means of it. Each of these characteristically modern additions to the generic principle of self-interest can be traced back to the origins of the postmedieval world and attributed to new social-historical experiences as well as to new theoretical ambitions. The second distinctively modern feature leaves its mark on game theory in a quite general way in the form of the prisoner’s dilemma, while the first is present only in very ambitious varieties, for example, in Axelrod’s attempt to explain, by means of the prisoner’s dilemma, not only the entire evolution of social cooperation but also the presence of cooperation in nature. The first of the features constitutive of modernity eliminates from social theory those traditional elements, such as Aristotle’s presumption of a natural social impulse, that transcend the principle of self-interest by, for example, understanding the sexual relationship between man and woman as a consequence, not of the interests of individual men and women, but of the task of propagating the species, which is to say, the collective interest of species survival (Politics I.2, 1252a27 ff.). The theoretical consequences of the second distinctively modern feature are more serious still. The complication embodied in it consists in an expansion of the range of theoretical options. This expansion precludes postponement of the question of public authorization of force, that is, the question of

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Herrschaft, and it, but only it, provokes the idea of freedom from Herrschaft as a countermovement. Whereas the ancient and medieval worlds chiefly discussed the nature of just rulers and just rule, the legitimacy of rule as such takes center stage in the modern age. And in the wake of attempts at a fundamental legitimation of Herrschaft appear equally fundamental critiques of it. Although cooperation is advantageous, it occurs far less frequently than would be useful to those able to choose whether to engage in it. Sometimes the reasons for failure to engage in advantageous cooperation are trivial, but it is not at all trivial that in deciding to cooperate one runs the risk that others will seek out the benefits of cooperation without taking on its burdens. Given the second modern feature, therefore, one is faced not only with the choice between cooperating or not, a choice that was in any case already decided in favor of cooperation by the ancients, but also with a new question, Should one genuinely cooperate rather than become a free rider? The very question marks a loss of social and socialtheoretical naïveté. While the decision with regard to the first, “innocent” pair of options is clear—cooperation is more advantageous, or, formulated anthropologically, “man is a social being”—the second, “enlightened” question provokes an answer in the form of a dilemma. At first blush, free riding appears more beneficial than honesty. By its means, one enjoys the benefits of cooperation without paying the costs. Anthropologically, one could here call man an asocial being: in Hobbes’s phrase, homo homini lupus (man is a wolf to man). In this context, people are not represented as asocial beings because of some allegedly natural aggressiveness. It is instead enlightened self-interest, knowledge of the advantage of free riding, that sets people against each other. Still, the insight into the social nature of humanity remains valid: free riders can reap their benefits only if cooperation is actually practiced. Humans are at a first level social beings, but at a second level asocial beings; cooperation is good, free riding is better. The complication experienced by social theory in the modern age would not issue in a dilemma if the problem of cooperation were in fact solved in this unambiguous way. Because free riding would appear to promise the best result to each and everyone, cooperation would never get off the ground; it would be akin to a public transportation vehicle in which all are pleased to sit down but which never moves, because no one is prepared to pay for the fuel. Here now lies the dilemma, the dilemma of recognition. According to the “natural” principle of self-interest, acknowledged since the ancient world, certain social interactions turn out to be suboptimal, not contingently but out of necessity. Everyone knows that cooperation would be better than noncooperation. But since the free rider appears to be better off than honest cooperators, cooperation is decided against—with a heavy

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heart, no doubt, but decided against nonetheless—for fear of falling victim to the free riding of others. Accordingly, on the off chance that others are not so clever, one presents oneself as cooperative in order not to throw away the chance of free riding. Since the rational opponent calculates in exactly the same way, both find themselves neither in the absolutely best situation of free riding nor in the distributively optimal situation of cooperation, but rather in the second-worst situation of noncooperation. It appears that there is but one way out of the dilemma. A public power is established that lays down sanctions designed to ensure that free riding does not pay. Hobbes had already sketched the main outlines of this means of escape, and Kant, in the Doctrine of Right (VI:305–13/120–24) and in the essay on peace (VIII:354/98–99) and elsewhere, subscribes to the Hobbesian solution. From the point of view of the history of theory, this state of affairs has a consequence that is swept under the carpet by many social theories: namely, that a social philosophy that does not want to be naïve cannot dispense with a legitimation of law and the state. Contrary to those social theorists who call themselves “critical,” the second distinctive feature of modernity leads not to the freedom from Herrschaft but to its legitimation (see 13.4 below). As long as we oppose only certain legal or political formations and do not reject the form of public law and the state as such, we recognize, in a practicalpolitical way, the turn that social theory has taken with respect to the philosophy of law and the state. Axelrod, however, introduces a question mark. Although he works within the context of the dilemma of recognition, he investigates the conditions under which cooperation might, “without a central locus of authority,” come about “in a world of egoists.” More precisely, he should speak of a world without social or public authority to exercise force, since the issue of how force is exercised—whether by means of a central agency, as in a modern state, or in a radically federalist fashion, or even, in the form of effective taboos, “acephalously,” with no head, no personal source of authority—is of secondary significance from a systematic point of view. What is decisive is whether cooperation is generated “of its own accord” and manages to sustain and regulate itself in an equally spontaneous way. Insofar as Kant holds that the international legal order that is to ensure world peace should be established without public force, the rehabilitation of the goal of freedom from Herrschaft would constitute an argument in favor of Kant’s suggestion that we seek to establish a world-federation rather than a worldstate. The same argument, however, could also be used to support skepticism toward juridically authorized powers, that is, governments, at the national level of individual states.

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The topic of cooperation gives rise to a colorful bouquet of difficulties, not all of which are broached by the prisoner’s dilemma. In essence, the prisoner’s dilemma restricts itself to one problem, which, to be sure, it elaborates with impressive clarity and exactitude. The dilemma allows us to investigate how worthwhile cooperation can emerge, even where no external power promotes it, neither the head of a family nor a charismatic leader nor a legal or political order nor even effective taboos.

10.2. A Coincidence of Self-Interest and Justice The prisoner’s dilemma has been discussed in its precise, canonical form for only just over a generation. Nevertheless, a sufficient number of theoretical and experimental investigations have, in that time, been devoted to the topic, that one frankly does not expect anything genuinely new to come of yet another study. Axelrod’s originality does not in the first instance lie in his contribution to the question of authority, but rather in his presentation of a “computer tournament.” Research into the prisoner’s dilemma has established that, in a single game, noncooperation is the uniquely rational decision to make, but this result does not transfer to repeated, or “iterated,” games of the prisoner’s-dilemma form. In the iterated case, decisions to cooperate can also be advantageous. There exists, however, no rule that is optimal independently of the behavior of other players. Axelrod asked himself how one could play such an iterated game well. To answer the question, he invited a group of specialists—and later a group interspersed with nonspecialists—to send him appropriately formulated strategies. Both tournaments were won by the renowned expert Anatol Rapoport, who suggested a strategy that was already known to be strong and that in addition is the simplest of strategies: the approach known as “tit for tat.” One is tempted to add color to one’s description of the technical term “tit for tat” by appealing to the injunction “an eye for an eye, a tooth for a tooth.” Such a characterization has misleadingly pejorative connotations insofar as, from the point of view of European cultural history, the principle of retribution in question corresponds to the “old law” that is to be superseded by the “new law” of brotherly love. The principle of retribution, moreover, highlights only the negative side of tit for tat, the side turned toward reprisal, and ignores the fact that a positive side is equally important, since one responds to cooperative moves by one’s playing partner with further cooperation of one’s own. The winning strategy is in fact captured by the neutral principle “As you do unto me, so will I do unto you.” What we have here is a strategy of reciprocity that constitutes the core element of

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many moralities and is concisely expressed in the popular principle of the Golden Rule. The reciprocity in taking and giving that we take for granted both within and without the realm of commercial transactions proves to be rational: tit for tat expresses a principle of justice in exchange. Axelrod’s computer tournaments have the comforting result that justice pays. If you consistently follow the principle of reciprocity, you will at the end of the game not only be in a relatively good position, you will be in first place. We have here the rare case of a coincidence of justice and self-interest, and it obtains not because free riding, thanks to the threat of punishment, does not pay. In the computer tournament, there is no external source of penal sanction. The tournament shows, therefore, what manages to establish itself in a world of egoists that recognize no social authorizations of force, neither a formalized Herrschaft nor a “prehegemonically organized” social pressure that is often far from trifling. The winning strategy in prisoner’s-dilemma games is, however, underdetermined by justice in exchange. Tit for tat is distinguished from other strategies that conform to justice in exchange by a predisposition to cooperate. Knowing that cooperative work is advantageous, but knowing also that it can be exploited, tit for tat takes the risk of making the first move. It counsels one to be friendly and accommodating at first. This friendliness is motivated by self-interest and therefore requires no element of authority. One who with accommodating behavior signals his willingness to cooperate receives more chances to cooperate than one who always waits for others to take the initiative. From the same guiding precept of realizing as many cooperative opportunities as possible, one reacts to others’ refusals of cooperation not with a thirst for “eternal revenge” but rather with “forbearance”; one is ready to be reconciled and prepared to rekindle one’s willingness to cooperate in the wake of any return to cooperative ways on the part of erstwhile refusers. The forbearance of one who plays tit for tat is not, though, equivalent to a Christian commitment to forgiveness. To a refusal to cooperate, the tit-for-tat player responds with a return strike, or, to put it in less dramatic terms, with a suspension of cooperation on one’s own part. Such a suspension is not motivated by revenge; it is rather a signal that one will not let oneself be exploited. The winning strategy in repeated prisoner’s dilemmas combines accommodation with deterrence. The enlightened egoist freely offers the first cheek, but not the second. Like successful businessmen and politicians, he is friendly but not magnanimous. Generosity is not an attitude that entered the world only with the advent of Christianity. Aristotle had already introduced the concept into moral philosophy in various guises and from various standpoints: as megalopsuchia, greatness of soul, as eleutheriotes, liberality, and as megaloprepeia, magnificence. Even

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Thomas Hobbes, critical as he was of Aristotle, weighs in on the side of generosity and argues the point on the basis of self-interest: “riches joined with liberality is Power; because it procureth friends and servants: Without liberality, not so; because in this case they defend not; but expose men to Envy as Prey” (Hobbes 1991 [1651], chap. 10). Hobbes’s claim can be confirmed by any number of divers experiences in life. Superiority not paired with generosity encourages envy, the great “virtue” of democrats. That Axelrod’s computer tournament does not confirm this observation is a consequence of special boundary conditions that need further elaboration. Tit for tat does, in any case, contain a corresponding warning against envy. In addition to the three pragmatic imperatives to behave (1) amicably, (2) with forbearance, but (3) without magnanimity, it counsels one not to be envious. Envy may be natural, but it is not prudent. One who is envious measures himself against the success of others and attempts to “correct” any greater success enjoyed by those others in a downward direction. In a repeated prisoner’s dilemma, such a correction is possible only as a refusal to cooperate, which refusal therefore provokes a return strike and results in that long-term abandonment of cooperation that is universally counterproductive. Downward correction of an opponent in an advantaged position is only rational in interactions with the structure of a zero-sum game, and such a form of interaction is in fact implicitly or explicitly assumed wherever envy is widespread. Thinking along the lines of board games, such as chess, or the struggle between two or more candidates for an office, we tend in social theory to designate our societies as competitive and in practice to take the view that what one gains, the other must lose. But even in a game of chess, winning is not the only point of playing; one wants as well simply to play—to learn and to test one’s powers. And those who live with calm and security in their general superiority will think in the same way in the arena of politics and economics. Such fortunate ones will not play only to win, but will also pay heed to the sheer lust for life and to opportunities for self-realization. It is not only the computer tournament that speaks in favor of tit for tat, but also a virtually overwhelming amount of evidence from everyday life and from history. The merest glance at social and political life confirms the claim that we improve our situation through cooperation and worsen it through noncooperation, and that in the long run a rigorously held reciprocity joined to a predisposition to cooperate is a paying proposition. By way of supplementing these points, Axelrod refers to a rather unusual example, the positional warfare of the First World War. The system of live and let live that developed over the course of that war corresponded to a tacit cease-fire and followed the model of tit for tat. One can,

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moreover, transfer the example to the case of our pluralistic societies in which antagonisms are attenuated but also perpetuated in the form of struggles between the competing interests of different groups and associations. The fact that these groups do not confront each other in open hostility but live side by side in manifold forms of cooperation and symbiosis can be explained by the advantages that thereby accrue to all concerned.

10.3. Limits of the Freedom from Herrschaft The possibility of a Herrschaft-free coexistence in certain domains is not sufficient to establish the possibility of freedom from Herrschaft in general. After all, freedom from Herrschaft in the form of a market is something with which we have been familiar for a long time, and not only in the economic sphere, but equally in the areas of art and science, for example. We must therefore devote further thought to the questions of how attractive is freedom from Herrschaft and how great its scope. If the costs of achieving it are too high or the boundary conditions that make it feasible too restricted, an evolutionary social theory cannot be built on the basis of freedom from Herrschaft. Although Axelrod indicates some of the conditions under which freedom from Herrschaft can emerge and survive, the most important of its conditions for success can be discerned only through certain metareflections that are absent from his work. He does not do justice to the theoretical ramifications of the issue. In order to be successful, “friendly” strategies such as tit for tat must have more than one follower. This first precondition of success can be called the cooperative impotence of the individual. One who is alone in his willingness to cooperate will end up worse off than those unwilling to cooperate, and such an isolated cooperator will end up worse off than noncooperators even when playing against a strategy governed by mere chance. A predisposition to cooperate pays only because cooperators benefit each other and thereby, even if they are occasionally victimized by free riders, obtain greater advantages than those who are unwilling to cooperate. Being wary of free riders is good, but openness to cooperation is better. Long-term relations constitute a second condition for the success of friendly strategies. Stability, more than trust, is important for the securing of cooperation. This principle of the diminishment of risk through durable relations can, incidentally, be used to justify a certain degree of social nostalgia. Those who long for the relatively firm and readily graspable conditions of “old European society” are not merely retrograde dreamers; they are on to something insofar as previous ages allowed Herrschaft-free forms of cooperation to flourish more easily than do our anonymous and highly mobile mass societies. The way in which long-term rela-

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tions can reduce the danger of falling victim to deception can also help explain why international negotiations such as disarmament talks proceed so slowly. To infer from the prolongation of negotiations to a failure of political will would be to fall into a naïve moralism that retreats behind the second major feature of modernity, wariness of free riding. No doubt as a means of gaining time or calming the public, parties sometimes only pretend to be willing to negotiate. It can also be the case, however, that a strategy of risk diminishment is in play. Because disarmament and other international accords are not protected by a legal order with the authority to enforce its edicts, cheating on one’s bargains can be worthwhile. One way to counter the danger of cheating is to divide the accords into many small steps, thus reducing the amount to be gained by any given attempt to cheat. As a result, cheaters will deprive themselves of the benefits of cooperation in return for a very modest gain; they will exchange short-term profit for longterm loss. In light of the fact that friendly strategies are paying propositions neither for solitary individuals nor for short-term interactions, the genesis of cooperation is actually difficult to explain. Axelrod accordingly introduces a third condition of success, which I will call the law of the large power of small numbers. This law states that over the course of sufficiently many interactions even a relatively small group of cooperators have greater success than the majority of noncooperators, who shy away from making the first move for fear of free riders. We find here an argument for Kant’s optimism concerning an ever expanding confederation of peoples (PP VIII:357/101–2). As long as there is a core group of cooperators, one can reasonably await snowball effects, and there is a good chance that the core will continue to expand until all parties to potential conflicts are included in the confederation. All the same, Axelrod underestimates the difficulties posed by the genesis of cooperation, and the greatest among these difficulties speak against Kant as well. Because strategies hostile to cooperation are more successful than friendly strategies in the case of one-time interactions, the former must be seen as historically prior, both in the case of natural and of social evolution. This assumption not only confirms Hobbes’s view of the state of nature but extends it beyond the realm of the specifically human situation. Hobbes’s conclusion about life in the state of nature acquires a universal scope and turns out to be applicable to human and subhuman coexistence alike. What Axelrod describes as a pessimistic view (1984, 3) is in fact realistic and describes the beginnings of evolution. As long as strategies hostile to cooperation dominate, people must fear violent death, and human life is “solitary, poor, nasty, brutish, and short” (Hobbes 1991 [1651], chap. 13). Kant attributed to humankind a natural inclination to war (IUH VII:20–26/ 15–21; PP VIII:364/110). Construed as an empirical statement, this supposition is

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questionable. Counterexamples to it exist, and one does not, from a methodological perspective, know what a verification or falsification of it would look like. But if Kant intended his assertion to be a normative remark about the origin of social evolution, one could agree with him. Because one knows neither whether others are willing to cooperate nor whether opportunities to cooperate will be repeated, it is rational and prudent to prepare oneself for a single-case prisoner’s dilemma. Accordingly, for fear of being taken for a ride by someone and left unable to pay him back appropriately, one adopts an uncooperative posture. In order to establish his thesis and explain how it is that teamwork can gain a foothold in a world of egoists who are initially unwilling to cooperate, Axelrod appeals to the mechanisms of genetic kinship and the way in which willingness to cooperate emerges group by group. The first mechanism is widely propounded in the most recent theoretical work in biological evolution. According to that work, closely related players are prepared to sacrifice themselves as long as genes with better chances of survival are propagated. A “genetic altruism” of this sort is in fact widely observed in nature, but the theory of genetic kinship nevertheless propounds as an explanation something that is in fact only a description. The question why individuals interested only in their own advantage would voluntarily behave altruistically remains unanswered. Unbeknown to itself, this theory falls back on the assumption of a “natural social impulse” and thus retreats to an Aristotelianism that runs counter to the modern universalization of the principle of self-interest. Is it not the case that for Axelrod the beginnings of cooperation can be explained only by “the principle of chance” or by a quasi-Providence that takes the gene instead of the individual organism to be the subject of self-interest? From a scientific point of view, both these hypotheses amount to nothing more than the great unknown, the proverbial “X.” We simply do not know how cooperation got started; we cannot explain it. Axelrod’s second explanatory mechanism also succeeds only in pushing the problem back one step. The law of the great power of small numbers can explain how a small group of cooperators can establish themselves over the long term. But since an isolated willingness to cooperate ends up worse off than one that is unwilling to, it remains unexplained how the principle of self-interest leads to the formation of a group of cooperators in the first place. We can, at best, once again appeal to the great X, to the deus ex machina of the controversy, chance or Providence. Because neither of Axelrod’s explanatory models is convincing, he can be credited at most with having, within certain limits, made intelligible how cooperative enterprises, once they have a foothold, remain relatively stable and in addition will tend to find more and more joiners. He does not, however, achieve his

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more ambitious goal of explaining how “cooperation based on reciprocity can get off the ground in a predominantly uncooperative world” (Axelrod 1984, 90). Aristotle’s dictum that more than half the work lies at the beginning is perhaps applicable to the task of explaining the emergence of cooperation, and this work is not done by Axelrod; he simply bypasses the fundamental task that arises from a distinctively modern understanding of the principle of self-interest, one that understands this principle to be universal in scope. Cooperation based on reciprocity is a long-established feature of both the natural and the social worlds. Because these kinds of cooperation can be explained by Herrschaft-free, and indeed enforcement-free, strategies such as tit for tat, the following practical-political question is raised: Why do we still need a social order that recognizes the authority to enforce and within this framework includes the sort of second-order social institution that we call the law and the state? A first answer to this question is indicated by the activity of World War One raiding parties, to which Axelrod himself draws attention. Despite their relatively small size and number, such parties were able quite quickly to break down the tacit cooperation between the hostile camps that constituted the positional warfare that reigned for most of the Great War. An example such as this shows us that the law of the great power of small numbers has two variations: it not only, in its cooperation-friendly variant, explains how small groups of willing cooperators can be successful, but it explains equally, in its cooperation-hostile variant, how a small group of cooperation resistors can impose their will against even a majority of willing cooperators. With this counterexample, one argument for freedom from Herrschaft, and therefore for Kant’s peaceful international order free of world government, loses its force. Because even a small number of aggressive groups can, if they intervene in a carefully considered way, threaten the delicate balance of a pluralistic society, whether national or international in character, we find here a first argument in favor of a social order with the authority to enforce: such an order is justified as a framework for Herrschaft-free cooperation. Social institutions with the authority to enforce provide the environment required for cooperative work based solely on reciprocity; only in such an environment can freedom from Herrschaft and enforcement thrive. Given that society as a whole is structured according to Herrschaft, a great deal of freedom from Herrschaft is possible within it. Markets, for example, which are structurally free of coercive Herrschaft, are able to function (whether in the economy or science or art) only because even the worst of enemies are required to observe certain elementary boundary conditions. They are not, for example, allowed to encroach upon each other’s life, limb, or property

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(whether material, scientific, or artistic). In short, a freedom from Herrschaft that wants to be attractive will be tied to an overarching institution that exercises Herrschaft. An analogous argument can be extracted from the second condition for the success of friendly strategies. Cooperation is established over the long haul because stable relationships diminish the risks of a willingness to cooperate. It is, insofar, a disadvantage of stable institutional forms that they cannot emerge without a moment of enforcement. Often, however, they more than compensate for this, in spite of the principle of self-interest, with the advantage of allowing the proliferation of strategies more generous and serene than tit for tat. Whereas in the Herrschaft-free computer game only strategies that exact retribution immediately and punctiliously come out on top, institutionalization allows a longer view to be taken; it allows reciprocity to be deferred even to the point of allowing “exchanges” between generations. A third argument in favor of social coercion, including that exercised by the law and the state, is found by reflecting upon certain deeply entrenched features of actual life that are absent from the prisoner’s dilemma. The assumptions that one can never predict an opponent’s move and can never leave the game need to be mentioned in this context, for these presuppositions, especially the second, have farreaching consequences; the latter entails, for example, that no one can go broke or bankrupt, that no one can become unemployed or unable to work, and, finally, that none can be expelled from the group or threatened with loss of life and limb. The most important presupposition of the prisoner’s dilemma, though, is this: questions of power are not addressed. Although not directly bracketed, which would be too naïve, these questions are neutralized in a more subtle way: through the boundary conditions. Power in the prisoner’s dilemma consists in the ability to benefit or harm one’s fellow players. Not only does each and every player have this ability at his disposal, but each has it to exactly the same degree. Whoever one’s opponents are, mutual cooperation brings the same advantages, and mutual defection the same disadvantages, a predetermined number of “points.” So too, in the case of unilateral cooperation, everyone that takes suckers for a ride receives the same payoff, while the victims go away empty-handed. In short, contrary to the real game of life, the payoffs in the computer-simulated prisoner’s-dilemma situation are invariant. Because each participant possesses the same amount of power, its distribution in Axelrod’s computer tournament is strictly symmetrical, and this symmetry remains in place from the beginning of the game to its end. Neither coalitions nor treaties; neither oligopolies nor monopolies; neither threats, promises, nor the formation of capital that increases productivity or generates interest—none of this

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is present in the game. Each player can, it is true, gain a greater or a lesser benefit with a given move, but the benefits accumulated over time do exactly as little to increase one’s opportunities for cooperation as one’s poverty does to decrease them. A rigorous and stable symmetry of power of this sort amounts to nothing other than its effective neutralization. In its neutralization of power, the prisoner’s dilemma manifests a surprising affinity with certain quite differently focused recent ethical theories. In Axelrod’s prisoner’s-dilemma games, as in the ideal deliberation situation of the Erlangen school and the Apel-Habermas ideal communication or speech situation and the Rawlsian original position, the relative power of the participants, in sharp contrast to the situation in real life, plays no role. In philosophical ethics it is reasonable to tune out questions of power in order to define the standpoint of morality; but what is legitimate in that case is not so in Axelrod’s, since he appeals to selfinterest alone. We find in Axelrod’s counterfactual neutralization of power yet another condition for Herrschaft-free cooperation. In order for reciprocity to underpin cooperative work even without enforcement-authorized institutions, it is not merely necessary that a number of people be willing to cooperate and that in addition they can reasonably expect cooperation to persist over an adequate length of time; it is equally important that they be relatively equal in power. At this point, we can look back to the topic of generosity and realize why philosophers such as Hobbes spoke in favor of it, while in the prisoner’s dilemma it does not pay. Generosity does not pay in the artificial dilemma situation because what we have in that situation is a two-person game that therefore precludes the possibility of alliances or hostilities with third parties. Hobbes’s argument that superiority, or, as he puts it, wealth, is power only in conjunction with generosity, while, without it, envy is provoked and power diminished, is thereby deprived of force. It is not so much refuted as rendered inapplicable through a counterfactual assumption. As soon as one removes the fleshless abstraction governing the computer tournament, as soon as one operates with more than two players and allows alliances among them, tit for tat’s lack of generosity loses its advantage. In the real world, unlike the computer world, one is pragmatically required to make friends, and generosity is one of the best means of doing so. As long as an approximate balance of power obtains, reciprocity will be advantageous, but sufficiently large differences in power provoke the emergence of those one-sided relations that extend to homicide or, stopping short of that, remain content with mere oppression and exploitation, only on grounds of prudence. In North America, for example, the native populations were largely exterminated, while in Africa one put the local manpower to work as slaves rather than waste it

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through large-scale massacre. Significantly, The Evolution of Cooperation is silent on historical examples of this sort. As far as Europe itself is concerned, it is sufficient to recall the context in which the modern state was born. As long as heterodox believers were few enough in number and therefore weak, they were persecuted as heretics. Not until the opponents of Roman Catholic orthodoxy had become strong was any effort made to seek a means of coexistence, and European society paid for the acquisition of this insight in the bloody coin of the religious wars of the seventeenth century. The strategy for obtaining “cooperation” was, in the first place, “the religion of the ruler is the religion of the region”;1 only later was the present-day means of a religiously neutral state adopted. Strategies for freedom from Herrschaft can be readily used in the service of liberating utopian energies. But do they deserve these energies? Insofar as Herrschaft-free cooperation presupposes an equality of power, it cannot see to the accomplishment of two characteristically modern social tasks. It can secure the preservation and protection neither of human rights nor of the environment. And this failure obtains at both the national and the international levels. Herrschaft-free cooperation cannot guarantee the preservation of human rights, both because such rights are supposed to be had by all, not just by those roughly equal in power, and because they are supposed to be recognized under all circumstances, not just in the case of repeated interaction. Because Axelrod wants to set himself against Hobbes’s pessimism, it is advisable, with regard to the topic of human rights, to recall the existential problem that motivated Hobbes’s political philosophy, especially since it is conspicuously absent from Axelrod’s computer simulation. Modern political philosophy discusses the dilemma of recognition, not as such, but with an eye to the “critical case” (Ernstfall), that in which the life and limb of anyone is at risk of being taken by another, in which property is endangered, and in which culture, religion, and so forth are under constant threat. The establishment of a sovereign state power is supposed to solve the dilemma of recognition for this critical case above all. The precise dimensions of the critical case, how often and where it obtains, are another matter. What is clear is that a certain number of Axelrod’s examples—his discussion, for instance, of the question how often one should invite someone to dinner who never reciprocates with an invitation of his own—fall without doubt far short of the critical case. In other cases, the question whether to designate a situation as critical or serious may in part depend upon historical boundary conditions. In general, however, the insight that not every dilemma of recognition justifies socially authorized enforcement can be granted. 1. cuius regio eius religio.

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Herrschaft-free strategies fail also with regard to environmental protection. They fail here at least to the degree that the “game” is played across generations and national borders. Once again, the third success condition for Herrschaft-fee cooperation, a balance of power, is violated, since future generations and, often enough, neighboring states are relatively weak. The “ruling” generation, namely the present one, lives at the expense of future generations, and stronger states live at the expense of weaker ones. Since proposed solutions that simply bracket the question of power are naïve, it is necessary to think as imaginatively and creatively as possible about ways in which the interests of future generations and neighboring states can be weighed more heavily in the balance. As with the problem of human rights, game theory is at best of help in an indirect way in that it can show what is missing. In the case of human rights, the rule of law and the state is required to guarantee that such rights are upheld; in the case of environmental protection, further precautions are needed in order to strengthen the hand of future generations. In both cases, we see that Herrschaft-free communication is welcome only when it takes place inside a framework that is not for its part free of Herrschaft. To give due credit to the philosopher who saw the dilemma of recognition clearly for the first time, it must be said that however much certain details of Hobbes’s justification of law and the state deserve criticism, the truth of its essential point cannot be denied: the dilemma of recognition, the second addition to the general notion of self-interest that makes the principle of self-interest distinctively modern, cannot be resolved without institutionalized Herrschaft. The development of a social order with institutions authorized to enforce its norms is neither a step backward nor a wrong turn. On the contrary, such institutions represent social progress wherever the authority to enforce opens up new dimensions of reciprocally advantageous cooperative work. To conclude with a glance back at Kant’s theory of peace: no attempt at securing international peace will be able to escape the consequences of this Hobbesian insight.

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11 IS RAWLS’S THEORY OF JUSTICE KANTIAN?

With A Theory of Justice, John Rawls’s status as a political thinker has, within a relatively short period of time, risen to that of a veritable “classic.” His outline of a countermodel to utilitarianism is an important factor in the worldwide discussion of his theory. For utilitarianism, the dominant theory of morality and justice in the English-speaking world, contradicts our well-considered moral judgments on a crucial point, the idea of justice. In the wake of Mill’s failure to resolve this contradiction and “reconcile” utilitarianism with the notion of justice (see Chapter 6 above), another approach seems to be demanded. Since utilitarianism represents an empirical-pragmatic ethic, the most significant alternative model to it is to be found in Kant’s a priori and categorical morality, and it is therefore appropriate that Rawls should refer back to certain fundamental ideas of Kant’s and consider his own anti-utilitarian theory of justice to be Kantian (TJ 221–27; Rawls 1980).

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Three generations before Rawls, Henry Sidgwick had already drawn the attention of English-speaking philosophers to Kant’s importance for moral philosophy. He thought, however, that Kant’s ethical theory was compatible with that of utilitarianism (Sidgwick 1967 [1874], 3.5 and 4.3–4). Rawls has good grounds for dissenting from this view. For the principles of justice that Kant takes to be unconditionally valid are, for the utilitarian, subject to permissible limitations in the name of collective welfare. Alongside the fundamental agreement on human rights we find a host of controversial points separating Rawls from Kant. One has the impression, upon reviewing these controversies, that Rawls’s views are distinctly superior to Kant’s, so that A Theory of Justice turns out, fortunately, not to be all that Kantian after all. Kant, for example, denies any but a passive right to resist authority, while Rawls holds that civil disobedience is, under certain conditions, morally legitimate. Further, Kant denies active civil rights to “journeymen, servants, . . . all women and in general anyone unable to secure his existence (his food and shelter) through his own gainful employment” (DR VI:314/my translation), thereby contradicting Rawls’s first principle of justice, which demands the greatest amount of equal freedom, along with the first part of the second principle, which demands that offices be open to all. A further difference concerns the socialwelfare state, which Kant considers to be legitimate only as “a means of securing the rightful state, especially against external enemies of the people” (TP VIII:298/80), and which therefore is not on a par with conditions mandated by political justice itself. Rawls, by contrast, holds to be not only the liberal juridical state by means of his first principle of justice, but also the social welfare state, by means of his second. It is this double ambition, indeed, that no doubt accounts for a good deal of the attention his work has received. Finally, while Kant is frequently charged with formalism, A Theory of Justice is rich in consideration of substantial ethical and political matters. Since Rawls agrees with Kant in recognizing human rights but contradicts him on so many other points, his claim to promulgate a Kantian theory needs to be assessed in a subtle and delicate way. A theory of justice may be described as Kantian in three senses: in a weak sense insofar as it adopts Kant’s way of putting the question, in a stronger sense insofar as it recognizes as true fundamental elements in the answer that Kant gave, and in a comprehensive sense when it agrees with Kant’s views on a large number of details. The examples of sharply opposing views just given exclude the possibility of Rawls’s theory being Kantian in the third sense. But Rawls does not simply take up Kant’s question concerning a moral concept of law. He also builds upon Kant’s concept of autonomy, considers the principles of justice to be categorical imperatives in Kant’s sense, and sees in the “original position” a procedural interpretation of Kant’s concept of autonomy

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and the categorical imperative (TJ 221–27). Last but not least, Rawls appeals to that characteristic idea of early modern social and political philosophy, the notion of social contract. Although this construct no longer plays an essential role in Kant, it is nevertheless present there. It is true that we do not find a theory of justice as such in Kant’s writings, but Rawls’s theory of justice as the “first virtue of social institutions” (TJ 3) combines two conditions that can easily be identified in Kant’s writings and that justify Rawls’s construal of his theory of justice as Kantian in an ambitious sense. On the one hand, Rawls’s theory of justice does not allow any compromises whatever with other aims or purposes; justice is in his view not a relative but an absolutely first and therefore unequivocally highest and categorically valid principle. And since human beings do not always acknowledge the claims of justice of their own accord, it has the further status of an imperative. On the other hand, Rawls understands justice primarily as a principle of law and the state, rather than as a fundamental attitude manifested by a person; he is concerned with political justice, not personal justice. Rawls’s categorical imperative, therefore, turns out to be that imperative of right in which lies the fundamental task of a Kantian theory of law and the state. If one looks, however, at the way in which Rawls carries out his intention, significant reservations about his claim to develop a Kantian theory emerge. These reservations are not in the first instance directed at the perhaps secondary elements mentioned above, but concern rather the two principal features of Rawls’s theory of justice: its categorical character and its significance for the realm of law and right. According to Kant, moreover, a theory of categorical obligations has to satisfy a methodological condition that tends to provoke the empirical spirit of the modern age in general and the British philosophical tradition in particular: it has to be metaphysical. Rawls, meanwhile, expressly rejects metaphysics. Prima facie, Rawls turns Kant’s methodological program on its head. Kant had sought an ethics of law and right without anthropology but with metaphysics. Rawls seeks a theory of justice without metaphysics and with anthropology. Anthropology enters Rawls’s theory under the heading “elementary social goods,” by which he means goods that are indispensable to all people. Nevertheless, since I myself have modified Kant’s own self-understanding (Chapter 4), the gulf between Rawls and Kant here may be somewhat diminished.

11.1. Utilitarianism or Categorical Imperative In Rawls’s complex legitimation argument, the conjunction of two fundamental elements stands out. The first element, the primary social goods, comprises general

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conditions required in order to pursue the most divers strategies for happiness, or life-plans. These primary goods have more than an anthropological significance. They are, even if only indirectly, requirements for human well-being. Because of this connection to well-being, the interest that people have in these primary goods falls unequivocally into the domain of pragmatic, rather than categorical, imperatives. It does not, though, follow from this that the principles of justice have for their part only a pragmatic validity. The primary goods only define the object of principles of justice, not their morally obligatory status. Rawls’s intention of articulating a distinctively Kantian theory is endangered only with the second, normative, fundamental feature of his account. He determines his principles of justice by means of a rational choice made with an eye to prudential considerations, and he understands rationality in the sense given to it by decision theory. According to decision theory’s subjective concept of rationality, a decision is rational when the agent making it strives exclusively to pursue his own interests through a dispassionate process of information acquisition and calculation. To be sure, decision theory understands “self-interest” in an entirely formal way, and this in two senses. From decision theory in the narrow sense, through game and social-choice theory, it remains an open question whether the particular interest of the self in a given case should be described as egoistic, altruistic, or socially indifferent, as it remains open whether the self whose interests are calculated consists of an individual, a group, or a society. But even decisions bound to such a formal notion of self-interest are, according to Kant, excluded from the realm of the categorical. Such decisions are rationally binding in virtue of one’s interest in one’s own well-being and so are of an entirely pragmatic nature. Perhaps, though, Rawls’s appeal to decision theory is meant to be taken differently. Rawls, as is well known, seeks not only a Kantian interpretation of justice, he wants also, with the aid of up-to-date tools of thought and argument, to formulate anew the classical social-contract theory of the state. If these two aims could be isolated from one another, Rawls might limit the subjective conception of rationality to the social-contract side of his program. Social-contract theory includes two argumentative steps (see PJ 10.2). First, certain principles of morally legitimate law are justified by means of the thought experiment of a primary state of nature; and second, by means of the thought experiment of a secondary state of nature, a public source of enforcement—in a word, the state—is justified as a necessary means to the establishment of such principles. The first step corresponds to Rawls’s legitimation of principles of justice and so cannot be separated from the Kantian aspect of his program. Since the decision-theoretical approach calls categorical validity into question, Rawls would, in order to remain in harmony with the Kantian interpretation of this thought, have to restrict its use to the second

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step in the argument. At this point, the subjective concept of rationality would not serve to legitimate the principles of justice, but only to justify their establishment by the state. The principles of justice would retain their aspiration to categorical validity, while the merely pragmatic sphere would be that of their public efficacy. A “division of labor” of this sort between Kantian principles of justice and a decision-theoretical legitimation of the state is conceivable, but not to be found in Rawls. In his work, the justification of a public power to enforce law and order plays no essential role. Kant, moreover, puts both steps of the argument to the same legitimation-theoretical purpose. He takes to be morally, which is to say, categorically, required not only the principles of justice discussed in the “Introduction to the Doctrine of Right” and in the section on private right but also their public enforcement. Rawls might, though, put decision theory to yet a different purpose. According to him, there are various principles for the fundamental ordering of society, and among these conflicting principles we can find principles of egoism as well as those of utilitarianism and Rawls’s own principles of justice. Since these principles are in competition with one another, Rawls cannot posit an original interest in justice, on pain of begging the question by ruling out egoism in advance. Rather, he ascribes the choice of the principles of justice to persons who feel themselves bound only to their own interests. For him, therefore, ordinary feelings of justice have no power to provide foundations but are, on the contrary, that which is to be grounded. In order not to fall into a vicious circle in his criticism of egoistic principles of society—for example, the principle favored by a one-man dictatorship: “everyone must serve my interests”—Rawls appears to derive the principles of justice from an unambiguous cost-benefit calculation. But in virtue precisely of this calculation, the principles of justice become pragmatic imperatives, not categorical ones. This reading of the role of decision theory in a theory of justice comes closer to Rawls’s actual use of it, but is still not precise enough. Principles of justice are, namely, to be chosen from behind a veil of ignorance, in virtue of which it is not possible for the chooser to make his decision dependent upon the individual, social, or cultural conditions in which he lives. There is, therefore, a symmetrical relationship between all choosers in the original position. We could also speak of an ideal situation of choice, strictly free of Herrschaft relations of any sort. In such a situation, all those living in the past, present, or future are recognized as endowed with equal rights. The veil of ignorance therefore pursues the same intention as the two other presently dominant types of ethical theory, the discourse ethics of Apel and Habermas, with its “ideal conditions,” and the (rule)-utilitarian ethic, with its appeal to “all” in the principle of the welfare of all concerned. So, whether we are

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concerned, as Rawls is, with the choice of the principles of justice or, as Habermas and Apel are, with the ideal agreement of ethical norms or, as utilitarianism is, with rules of action—in each case privilege and discrimination of every kind are to be excluded from the outset, and every human being is to be recognized as endowed with equal rights. Consequently the principles of egoism are not excluded by the explicit choice of principles of justice; they have already been excluded by the very conditions under which that choice is made, namely the veil of ignorance. Rawls’s use of decision theory and the paradigm of a rational prudential choice in fact aids and abets a fundamental misunderstanding. It inclines one to think that Rawlsian justice is the result of an individual cost-benefit calculation, whereas in fact it is an a priori valid corrective to it. The choice of the principles of justice made in the original situation simply represents the explication of the fundamental restrictions imposed on the choosers in advance through the definition of the choice-situation. The “fairness” of the conclusions, the principles of justice, reproduces the fairness of the premises as the conditions from which we began. As soon as the veil of ignorance falls and individual, class, or status conditions become known, the subjective concept of rationality will no longer underwrite principles of justice but will instead mandate the choice of principles that favor the individual or class or status group in question. That such a choice in favor of particular interests is not made behind the veil of ignorance is a consequence of the lack of information stipulated in the thought experiment. The epistemic lack entailed by the veil of ignorance has priority over rational self-interest both from the point of view of the logic of Rawls’s argument and from the point of view of ethics. To choose in favor of justice is in the first instance to make a moral choice and only in a secondary respect to carry out a cost-benefit calculation. It is not rational choice itself that guarantees justice, but rather the determination of the conditions under which such choice is exercised. When we talk about rational prudential choice in a specific and particularly modern sense of the word, as opposed to the phronesis of ancient thought or the prudentia of medieval thought, then we presuppose the difference between the individual and the general will and assert that prudence is concerned with the individual good while morality is concerned with the general good. But with the help of the veil of ignorance Rawls has extinguished all individuality, or even particularity, and by means of this artifice he is able to posit in advance a universal subject of rational choice. By canceling the difference between the general and the individual will, a prudential choice in the specific sense of the word “prudential” becomes impossible. In the original position the rational decision makers are unable to maximize their own utilities because they do not represent subjects with any individual or group-specific utilities of their own. What they pursue is in fact

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general utility, the general good. The choice, therefore, can be carried out by a single subject, and this subject is indifferent with respect to all individual and particular determining grounds of will. This is therefore a universal subject, which cannot decide in any but an impartial way, and the principles such a subject chooses are moral in nature. Since the veil of ignorance is, moreover, a counterfactual supposition and is formulated in terms of a deliberately constructed cognitive lack, something we are called upon to bring about as a practical achievement, the moral result has also an imperatival character. With respect to the structure of their legitimation, Rawls’s principles of justice are nonpragmatic imperatives. It would appear that Rawls’s principles of justice, since they are not merely pragmatically valid, must be accorded a categorical status, but such an inference overlooks a complication. The general good that is pursued behind the veil of ignorance can be understood collectively or distributively. The first understanding corresponds to utilitarianism, a position that is pragmatic in a social, though not an individual, sense and that is moral in a wide sense, but not in Kant’s strict sense. Since the choice of principles of justice concerns a choice of rules, indeed higher-order rules, the position is, more exactly, a rule-utilitarianism. For such a view, equality of rights is restricted to the entry conditions for determining general welfare. The idea is that in determining general welfare, the welfare of any one is to count as much as that of any other; just as in a democratic election, the vote of any one equals that of any other. In the result of the determination, however, utilitarianism allows for the possibility that a majority can impose its will at the expense of a minority; its principles of society contain no guarantees against privileges and discrimination. Only the second, distributive interpretation of general welfare extends the equality of rights to the result of the determination and recognizes in each of the principles of justice themselves a subject of equal rights and dignities. The principles of justice put forward by Rawls come down on the side of the stronger, result-oriented version of equal rights, but they do not in this version follow directly from the legitimation formula “decision theory plus veil of ignorance.” The veil of ignorance makes the self that is maximizing its interests an arbitrary, interchangeable subject. This device marks the passage from individual to collective self-interest, along with a democratizing of the collective realm, within which there are none whose well-being matters more and none whose well-being matters less when calculating the welfare of the whole. Maximizing the interests of an arbitrary subject corresponds to the utilitarian position that it is average utility that is to be maximized. That maximum average utility will be found by following the result-oriented interpretation of equal rights cannot be determined a priori, but depends upon empirical boundary conditions. Categorical morality,

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by contrast, espouses a conception of equal rights that makes them independent of all empirical boundary conditions. According to the principle of maximum average utility, it is permissible that some people end up with less, even a lot less, than others as long as others end up with a still greater overall benefit. In bargaining of this sort, people are, from a Kantian perspective, degraded to the status of means; they are treated as means to the end of collective well-being, something that is prohibited by the categorical principles of law, at least for the case of human rights. At the end of the day, Rawls, with the aid of the principle of the greatest equal amount of freedom, holds the same position; and even with respect to economic goods, he allows for legitimate inequality of entitlement only under the two restrictive conditions of his second principle of justice. Nevertheless, he cannot achieve the desired result with the legitimation-theoretical means at his disposal. The veil of ignorance is neutral with respect to collective and distributive well-being and includes as a matter of necessity, therefore, only the weaker, collective construal of well-being. As long as rational choice takes place behind the veil of ignorance, it has not yet reached the Kantian standpoint of a categorical imperative. A more technical chain of reflections can also show that Rawls has not distinguished his position clearly enough from that of a rule-utilitarian. Pace Rawls himself, the choice of the principles of justice made behind the veil of ignorance is not made under uncertainty but under risk. When we make decisions under risk, we do not know the factors in the situation that are relevant to the decision, but we can ascribe certain probability values to them. With a decision made under uncertainty, on the other hand, this is not possible. But probability values are indeed given in Rawls’s choice of the principles of justice. For if we let M be the number of members of society, then the probability Pi of being in the position of any member of society i is:

Pi 

1 M

The criterion of rationality for decisions under risk is “Maximize expected utility.” Now, for the parties in the original position, the expected utility (Ui) of each is equal to the sum of the utilities of all, that is, the total social utility (Ut) multiplied by the probability (Pi) that one assumes the position of any given individual: U i  Ut  Pi. Since the probability Pi is one over the number of members in the society, the expected utility is equal to the total social utility divided by the number of members and coincides with average utility, independently of any considerations of distribution:

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Ui  Ut  Pi 

Ut M

Since the parties in the original position are rational egoists, and therefore choose the maximal expected utility, they decide for the maximal average utility. Thus they choose utilitarianism rather than Rawls’s principles of justice. Rawls’s own decision-theoretical approach actually legitimates the competitor position. Now, one could object that the veil of ignorance deprives one of knowledge of the generation in which one lives and that this further bit of ignorance renders the choice made in the original position one made under uncertainty, not simply risk. But an analogous reflection is applicable in relation to this second piece of ignorance. If Q is the number of generations, then the probability Pk of living in any generation k is:

Pk 

1 Q

The probability of being in the position of an arbitrarily chosen member of society living in any generation k is:

Pi,k  Pi  Pk 

1 1  M Q

Once again we have an objective probability value, and the case remains that of a decision under risk, with its criterion of rationality embodied in the command “Maximize expected utility.” The expected utility is equal to the total human utility, that is, the total social utility of all generations divided by the number of generations and the members of society in a generation. Once again, expected utility is maximal average utility. Rawls offers a number of supplementary arguments in order to avoid this result (TJ 130–68). Rights and freedoms, for example, are supposed to be of such incomparable importance to people that each would only be satisfied with their being distributed equally. In the case of income and welfare, by contrast, one is perfectly prepared to accept inequalities, though, because their importance is fundamental, albeit not incomparable, one would choose only the difference principle. We can set to one side the issue of how convincing Rawls’s supplementary arguments are, since it is only the kind of these arguments that needs to be established in order to evaluate the adequacy of the Kantian interpretation of Rawls’s

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theory. The supplementary arguments are not unequivocally anti-utilitarian. On the one hand, the accuracy of Rawls’s claim that most people have an absolute preference for liberty and a merely relative preference for economic well-being must in the end be decided by empirical means, and utilitarians are entirely open to such considerations. On the other hand, Rawls’s normative claims remain tied to a deliberation of collective utility; the rational choice carried out behind the veil of ignorance is that of a universal subject in a collective sense, and this corresponds to the utilitarian perspective that enjoins maximizing average expected utility. Nevertheless, if we look at the result of the choice of principles, at least one of them, the first principle of justice, corresponds to Kant’s categorical imperative of law. Drawing an interim balance, then, we find the following ambiguity in Rawls: The clarity that is missing from the logic of Rawls’s critique of utilitarianism is at least reached in the results that are legitimated, the principles of justice. But as far as the underlying logic of the legitimating argument is concerned, this result is not entirely free of the taint of mere assertion.

11.2. Without Metaphysics? According to Kant, categorical imperatives can be justified only by pure practical reason and are therefore metaphysical in nature. Rawls, by contrast, wishes to dispense with all “dubious” metaphysics, as the subtitle (“Not Metaphysical”) of a recent article indicates clearly enough. To this end, he abandons transcendental idealism, with its assumption of an intelligible world and a noumenal subject, and offers instead a procedural interpretation of the concepts of autonomy and the categorical imperative. In his rejection of metaphysics, Rawls agrees with the fundamentally empirical character of our scientific and legal culture. According to the line of reasoning just rehearsed, however, this agreement turns out to involve Rawls in a misunderstanding of his own project. Although he has not elaborated the logic of legitimation required to see the point clearly, the following is nevertheless true of his intention to delineate categorically valid principles of justice: the subject of the choice of principles of justice is precisely that subject that is universal in the strictest of senses, the subject that Kant speaks of as a pure rational being, assigned to the domain of metaphysics. Kant does not, however, assign the rational subject of morality to a metaphysical theory of objects, to ontology, or to a metaphysical theory of knowledge, an epistemology. The step beyond experience that constitutes morality as metaphysical does not, as it does in theoretical meta-

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physics, occur with respect to objects of nature; what is transcended in morality is personal interest as the last ground of the determination of social practice. In the 1975 article “The Independence of Moral Theory,” Rawls had contended that moral philosophy, including the theory of justice, is largely independent of other areas of philosophy, not only of metaphysics but also of the philosophy of mind, epistemology, and the theory of meaning. With the exception of metaphysics, the areas named by Rawls indeed do not belong to the core of a moral philosophy, and if Rawls restricts “metaphysics” to “theoretical metaphysics,” then he is right to say that moral philosophy is largely independent of it. But moral philosophy is not independent of a practical metaphysics. For without the reduction in information and the transcendence of personal interest afforded by the veil of ignorance, Rawls cannot exclude egoistic principles of society. And without a further element, not yet reached by Rawls, that enables one to transcend the standpoint of universal interests in a collective sense, Rawls does not overcome utilitarianism. With his procedural interpretation of autonomy and the categorical imperative, Rawls wanted to dispense with the metaphysical assumptions of Kant’s ethics. What he in fact did was give these assumptions a procedural interpretation that enables them still to carry conviction today. In an approximate way and without full clarity at the legitimation-theoretical level, Rawls’s veil of ignorance amounts to a formulation of Kant’s notion of a noumenal subject. As a consequence of this, Rawls’s theory of justice is Kantian in a stronger sense than its author thinks. Nevertheless, Rawls reformulates the noumenal subject, not for the realm of theory, but for that of practice, and even here, not for all of practice as such, but for the realm of right and law—more precisely, for the fundamental juridical constitution of a society. The individual juridical subject may not have the status of a moral subject that is also noumenal, but the subject that determines the fundamental principles of justice for the juridical order—the highest transpositive constitutional legislator—certainly does. Rawls’s self-understanding on this point needs to be reversed. His critique of Kant and agreement with the empirical legal and scientific culture of the modern world turns out to entail agreement with Kant and a contrapuntal relationship to the empirical-mindedness of modernity. In his methodological self-understanding, Rawls remains a prisoner of a merely empirical culture, but in his actual argumentation he transcends his captivity. His theory of justice is more convincing at an intuitive, than at a discursive, level. The veil of ignorance corresponds to that element in Kant which Rawls (TJ 221–27) thinks is frequently overemphasized by interpreters, universality. Kant himself, though, took universality to be an important element in his moral philosophy. Both the fundamental form of the categorical imperative and the first

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formulation of it, the natural-law formulation, are based precisely on the idea of universality. Rawls’s criticism of Kant’s interpreters is, therefore, in truth a criticism of Kant himself, and here too it becomes apparent that his criticism does not carry conviction and that he offers a theory that is significantly more Kantian than he had himself thought. The principles of justice chosen under conditions of reduced knowledge are not only categorical imperatives in the conceptual or metaethical sense that they represent unconditionally valid demands, they are also categorical imperatives in a criteriological or normative-ethical sense. In the transformation of a rational choice made on prudential grounds into a genuinely moral choice, a moment of strict universalization does the decisive work of legitimation. By appealing to his second model of legitimation, that of reflective equilibrium, Rawls might argue against an interpretation of his principles of justice as metaphysically grounded and endowed with strict universal validity. He might object that only principles established independently of experience are metaphysical and that only those valid for all possible worlds have strict universal validity. He himself, meanwhile, resting his case on the idea of reflective equilibrium, has the much more modest goal of reconstructing the conception of justice recognized in a particular time and place, in the highly developed political societies of the liberal democratic West. At first glance, Rawls’s modesty is welcome. It renounces an excessive universality and escapes the danger of that self-overestimation that takes the social and political morality of the Western democracies to be the only correct one. In reality, though, this restriction entails an ethical relativism that would be fatal to the discourse of international law and politics. For the violation of human rights would, on this view, count as unjust only in the states of the advanced West and might be perfectly legitimate outside the sphere of Western culture. No doubt all theories of justice fall short of transhistorical validity in certain respects. For one thing, sociohistorical boundary conditions determine whether a society comes to recognize the demands of political justice at all and also whether, once recognized, these demands are taken seriously, prompting the society in question gradually to alter its social conditions until it finally concedes to all men certain inalienable rights and freedoms. But the sociocultural conditions affect here the historical process of coming to recognize principles of justice; they do not bear upon their content. Rawls’s primary goal is to define the content of justice. Insofar as he introduces justice as a moral concept, along with the veil of ignorance as an operational interpretation of the claim of morality, he cannot argue for historically variable principles of justice. With his veil of ignorance Rawls has eliminated all social and cultural differences and as a result declared

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them irrelevant to the grounding of his theory. In this he has indeed adopted a Kantian standpoint that cannot be reconciled with ethical relativism. Principles of justice can be historically conditioned in a second sense as well: they might, namely, be applicable only to societies at a certain stage of development. The right to life and limb or to freedom of expression is tied only to the human condition as such and is therefore valid for all human cultures. Academic freedom, by contrast, and the right to privacy with regard to mail or telephone conversations only make sense in societies familiar with the relevant institutions. But here too that which is dependent upon history is not the fact that the rights to freedom in question are binding but rather the problem that raises the question of obligation, or bindingness, in a particular context. And problems of this sort can be posed only where the veil of ignorance is not thick enough to remove all social and cultural differences from view. Since Rawls himself appeals only to primary social goods and so has need only of universal, anthropological elements, this second possible dimension with regard to which principles of justice might be historically conditioned plays no role in the core part of his program. With these arguments in hand, we can answer the first part of our question— whether Rawls’s imperatives of justice are pragmatic or categorical—in favor of the Kantian, categorical interpretation (always keeping in mind the above-mentioned reservation concerning the clarity of Rawls’s understanding of his own normative theory). Decision making on the basis of a cost-benefit calculation, that is, rational choice on a prudential basis, really is transformed into moral decision making by means of the veil of ignorance. In the first instance, this transformation only reaches the level of rule-utilitarianism, but the addition of supplementary arguments enables Rawls to determine principles of justice that have the significance of categorical imperatives.

11.3. Principles of Recht or Principles of Virtue? Morality has two areas of application: the domain of virtue (or ethics proper) and that of law and right (Recht). According to Kant, the same principles (of universalization and autonomy) are valid in both domains, but are employed in fundamentally different ways in each case. In ethics proper, the motives and intentions of a person—more precisely, one’s self-given principles of will, one’s maxims— are autonomous and capable of being universalized in a strict sense. In the domain of law and right, by contrast, what is at issue in a material sense is the social coexistence of responsible subjects, and in a formal sense it is legality, rather than morality, that is the object of concern (see 3.3 above).

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Now, Rawls wants to depart from Kant by ascribing a certain priority to the social realm over the personal realm (1980, 552). This priority can be read in two ways: as a philosophical thesis and as a thematic restriction. As a philosophical thesis, it implies the systematic primacy of Recht over ethics. A primacy of this sort, however, could at best be justified on historical and social grounds. No philosophically principled reason in favor of it would appear to be forthcoming. Such a primacy would, moreover, contradict Kant’s view, and Rawls does not, in any case, offer any detailed defense of the thesis. According to the second reading, Rawls has chosen political justice as an object of investigation without thereby ascribing to it any thematic priority over the field of personal morality. On this interpretation, Rawls, contrary to his selfunderstanding, is wholly in line with Kant. Within the Metaphysics of Morals, the doctrine of right and the doctrine of virtue are two subdomains ranged alongside one another. But it remains to be determined whether Rawls sustains this conceptual distinction and really does develop a law-and-right-based theory of justice rather than one based upon virtue. Kant first develops the moral concept of the law and the state in smaller works, such as “Idea for a Universal History from a Cosmopolitan Point of View” (1784), “On the Common Saying: ‘This May Be True in Theory, but It Does Not Apply in Practice’” (1793), and Perpetual Peace (1795), and undertakes a comprehensive and systematic investigation in the Doctrine of Right: this fact speaks against the idea that Rawls’s theory of justice is a law-and-right-based theory in Kant’s sense. For the appropriate Kantian texts to cite in that case would be the ones just mentioned, especially the Doctrine of Right. Rawls, though he often appeals to the Grounding and sometimes to other of Kant’s ethical writings, refers very rarely to the political writings and the Doctrine of Right, and the references we do find (e.g., at TJ 115 n. 8) are of minor importance. This textual evidence can, nevertheless, provide nothing more than a secondary argument against the thesis in question. More important is the substantial question whether Rawls implicitly or explicitly takes up fundamental ideas of Kant’s philosophy of law and right. In keeping with Kant’s twofold difference between virtue and Recht, the second question concerning a Kantian interpretation of justice divides into two subquestions: a material question concerned with the object regulated by principles of justice (for Kant it is the social coexistence of responsible subjects), and a formal question concerning the relationship to justice of those who fall within its scope (according to Kant the legality of actions and institutions is here sufficient; full-blown morality is not required). With regard to the first question, we need to inquire into Rawls’s account of the conditions in which justice is applied, and with regard to the second, we need to inquire into the

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two “model-conceptions” (as he calls them) developed by Rawls, that of the moral person and that of the well-ordered society. 1. Since I have already dealt with the conditions in which justice is applied in my Political Justice (chaps. 10–12), I will content myself here with a brief reminder. Kant’s definition of the object of theories of justice, the social coexistence of responsible subjects, is entirely compatible with Rawls’s outlook. Kant’s definition fits well with Rawls’s decision-theoretical approach, with the Kantian notion of a responsible subject corresponding to decision theory’s subjective concept of rationality. Rawls, however, does not exploit decision theory in this fashion. When determining the conditions of the application of justice, he begins, emphatically, with the fact of cooperation. Naturally, he discovers moments of conflict and sees that conflict more than cooperation brings justice into play. Unlike Kant, though, Rawls does not see clearly enough that conflict alone makes law and justice necessary. While Kant consistently restricts himself to the provision of a moral solution to problems of right and law, Rawls mixes economic problems into his inquiry, and the reason for this is that he does not relate political justice only to the realm of the conflictual but relates it as well to the realm of mutually advantageous cooperation. Rawls’s first principle of justice, that of equal rights and freedoms, touches exactly the task that Kant assigns to the moral concept of law: that of assuring the compatibility of the freedom of action of all. By contrast, the first part of Rawls’s second principle of justice, the difference principle, is concerned with income and welfare and therefore with problems that are, in the first instance, economic, not juridical. One can, it must be admitted, interpret the difference principle in a way that construes it as responding to a task of law and right. On this account, the immediate task of a juridical order—that of securing the greatest possible equal freedom—cannot be entirely divorced from economic matters of income and welfare, because real freedom is impossible without material goods. Access to material goods such as income and welfare is therefore required if real freedom is to be had. According to this model of a legitimating argument, the social-welfare state brought into thematic focus by Rawls in the difference principle has no immediate bearing on justice, but does have a mediated bearing. The tasks of the socialwelfare state assumed by the societies of the industrial West in the course of the last several generations would, on this view, serve the realization of concrete freedom. Rawls does in some measure recognize that the rights to freedom and participation that characterize the juridico-constitutional state belong directly to the sphere of justice, while the social-welfare state belongs to it only indirectly. He shows his awareness of this thematically layered significance in granting

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an absolute priority to the first principle of justice, the principle of freedom, over the second principle (TJ 52–56). But Rawls fails to notice that from this absolute priority it follows that only the first principle has the status of a fundamental theorem of justice, while the difference principle has a bearing on justice, not on its own account, but only under the presupposition of the first principle. From a legitimation-theoretical perspective, therefore, it would be clearer to derive the difference principle, not directly from the original position, but from reflections on the realization of the first principle of justice. A layered argumentative structure of that sort would take up Kant’s definition of the conditions of applying justice and would in its first step investigate only the conditions of the possibility of the social coexistence of free subjects. In a second step, the question of the conditions of the realization of freedom would be raised, and in this context one could partially correct Kant’s misgivings about the social-welfare state. 2. Rawls’s account of the first of the two model-conceptions that he presents in his Dewey Lectures as the foundations of his theory of justice, the conception of the moral person, suggests that he understands it as an ethical-moral notion. This nonright-or-law based (nicht-rechtliche) interpretation is corroborated by Rawls’s ascribing to moral persons an effective sense of justice (1980, 521 and 525) and his holding them to be not heteronomous (533). But we also find claims that run in the opposite direction. The fact that Rawls regards moral persons not as fully autonomous but as autonomous only in a “rational” sense speaks in favor of a rightand-law based (rechtliche) understanding, since rational autonomy is supposed to get by without a moral attitude. Rationally autonomous subjects need not be guided by antecedent principles of justice (598). Rawls’s claim that the freedom of moral persons consists in their being “self-originating sources of claims [who] . . . are not required to justify the claims they wish to make” (548) also argues in favor of the right-and-law-based, rather than the ethical, understanding of the moral person. The accent in this determination is on the right-and-law-based concept of freedom of action, not on the virtue-based notion of moral freedom. At the same time, the moral person as understood by Rawls includes certain characteristics that are not to be found in Kant’s concept of responsibility or freedom of action. The most important of these characteristics is an interest in developing and exercising one’s own moral powers. To be sure, Kant also recognizes such an interest and even takes it to be a duty. But the duty “to cultivate (cultura) his natural powers (of mind, spirit, and body), which are the means to all sorts of possible ends,” is for Kant “a duty of a human being to himself” (DV VI:444–45/239–40), and it therefore belongs to the Doctrine of Virtue, not the Doctrine of Right.

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Canvasing the different elements involved, one misses in Rawls a clarity comparable to Kant’s. Rawls’s conception of a moral person includes some elements that belong to the more modest concept of a juridical subject and some that belong to the more ambitious concept of a subject of virtue. A further ambiguity lies in Rawls’s adoption as a premise of rationality the principle that all agents want to maximize their interests, in particular, that all have “a higher-order interest in protecting and advancing their conception of the good as best they can” (1980, 525). This higher-order interest belongs to economic theory, not the theory of law and right: it corresponds to the idea of Homo economicus. Once again, Rawls runs aground on the shoals of his bias for the economic. According to Rawls’s second moral ideal, that of the well-ordered society, society ought to be governed by a public conception of justice. This demand corresponds perhaps to Kant’s moral concept of public law, but Rawls counts full autonomy as part of a well-ordered society (TJ 533, and 1982, pt. 3). This contention would agree with Kant’s view if the concept of full autonomy applied only to the juridical order, not to individual juridical subjects. In a just society, it is not individual subjects who need to satisfy the demand of autonomy; it is rather the fundamental form of their lives together that cannot be heteronomous. Since Rawls does not introduce the relevant connection to a juridical order, he once again ignores the distinction between Recht and virtue. It is not ethical but only juridical autonomy that must be counted as a part of the well-ordered society, and juridical autonomy consists simply in the full realization of political justice. According to Kant, a community of right is distinguished by three elements not required by a community of virtue: (1) the power of coercion, which (2) the public juridical order, the state, exercises with the aid of (3) a criminal code. The fact that these elements play almost no role in Rawls’s idea of a well-ordered society corresponds to his failure to distinguish between ethics and law. Because of this, Rawls runs the danger of distorting the idea of the well-ordered society into an ethical, rather than a juridical-political, ideal. In Kant a community determined by the laws of virtue, rather than the laws of Recht, is called an “invisible church”— a concept that finds its systematic place in the philosophy of religion as the extension of ethics. One wonders whether Rawls is not, without noticing or intending it, importing an element from the philosophy of religion into the theory of justice. The fact that Rawls derives his principles of justice from a prudential choice, while failing to take up Kant’s essential distinction between Recht and virtue, suggests that his claim to have formatted a truly Kantian theory of justice cannot be sustained. Oliver Johnson (1974), for example, has drawn just this conclusion, objecting that Rawls’s theory of justice has no place for the concepts of autonomy, the categorical imperative, and pure practical reason. But this is too quick. Since Johnson takes as little account of the difference between Recht and virtue

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as does Rawls, he misses the distinction between (1) the universal and the specific meanings, and (2) the right-and-law-relevant meanings of autonomy and the categorical imperative, on the one hand, and the ethical meanings, on the other. Instead of this, he understands the concepts as if their sense were self-evidently the ethical one. But the fact that these concepts, understood in the ethical sense, are missing from Rawls’s theory speaks in favor of, not against, his claim to be developing a Kantian theory. On closer examination Rawls’s claim to a Kantian affiliation proves to be irritating rather than simply false, as Johnson thinks. While Rawls’s principles of justice do, with certain reservations, have the status of categorical imperatives, there is no clear distinction drawn in his work between the realm of Recht and the realm of virtue, or between the former realm and that of the economy. The philosophically more ambitious side of Kant’s philosophy of law and right, the categorical element, is recognized, at least on an intuitive level, but the other element, having to do with the conditions of applying justice, is not determined with the clarity already found in Kant.

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12 K A N T I A N D O U B T S A B O U T A P E L’ S D I S C O U R S E E T H I C S

The current status of transcendental thinking in philosophy—the fact that it is of more than historical significance and that its influence is felt not only in such subdomains of philosophy as the theory of argumentation, with its interest in transcendental arguments, and ethics—is due largely to the work of Karl Otto Apel. Apel’s attempt to negotiate fruitful contact between Anglo-American patterns of thought and those characteristic of the European continent was in itself important for the development of postwar philosophy in Germany. As work on the project progressed, what emerged was a virtually encyclopedic fresco of recent philosophy, and the philosophical importance of the project is in no way diminished by the fact that not every position represented in the fresco is rendered with minute accuracy. For Apel’s attempt to open up dialogue between the two traditions is undertaken with a systematic goal in view. Prepared by studies in the humanistic philosophy of language, he adopted from analytic philosophy the orientation

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toward language; influenced by American pragmatism, however, he interpreted the “linguistic turn” pragmatically, not semantically, and conjoined it with a Kantian interest in ultimate transcendental justification. Apel’s ambition for this philosophical constellation, for “transcendental pragmatism,” is nothing less than a fundamental philosophy for our time. Transcendental thinking acquires more than a regional significance within the framework of Apel’s newly fashioned first philosophy. Apel’s thinking, though, has not owed its greatest effect to his fundamental philosophy, but to one of the “second philosophies,” which, he is convinced, can be developed from the first philosophy without difficulty. It is Apel’s ethics that, as a transcendental ethics of communication, has, through the university radio broadcast “Practical Philosophy/ Ethics,” become familiar to many in the German-speaking world outside the confines of academic philosophy (see Apel et al. 1984 [and therein esp. Apel, 13–153 and 606–34; D. Böhler, 313–435, and W. Kuhlmann, 495–622]; cf. Apel 1976 and 1980). That Apel develops his philosophy in dialogue and confrontation with Kant is even more evidently true of his ethics than of his general transcendental pragmatics. At first blush, we find an impressive amount of agreement between Apel and Kant. Apel is just as convinced as Kant that there exist rationally justifiable practical obligations, the justifiability of which is not limited to considerations of technical or strategic rationality. Apel continues to follow Kant when he defines morality by way of autonomy, not by way of enlightened self-interest, as he does when he seeks to provide a criterion for autonomy and when he defines it in procedural terms. With regard to the criterion itself, Apel thinks he has to take leave of Kant, but he remains Kantian in spirit insofar as the new measure of autonomy, consensus, is at least anticipated by Kant (PP VIII:350/93). Apel’s criterion of autonomy is Kantian too in its universalism, and Apel shows his Kantian colors not least in his interest in providing a transcendental justification of the criterion. In light of such far-reaching agreement, one should not overestimate the differences that remain. Disputes between Apel and Kant, like those between Rawls and Kant, are a kind of family quarrel. The differences Apel claims between his views and Kant’s can be gathered under four points. The first is that Kant did not succeed in providing an ultimate foundation for morality and that what Kant only aspired to, the articulation of a genuinely transcendental ethics, Apel has actually accomplished. Apel attributes Kant’s failure to an inadequate paradigm. Since Thomas Kuhn, it has become customary in discussions of the history of science to use the term “paradigm shift” to designate what in political history would be called a revolution. In order to take his step beyond Kant, therefore, Apel thinks that nothing short of a radical

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reorientation is required. Kant’s consciousness-oriented transcendental philosophy is, in Apel’s hands, transformed into a linguistic-pragmatically oriented philosophy, thus making transcendental ethics into a subdiscipline of transcendental pragmatics. This is the second point of difference emphasized by Apel. Apel is not so immodest as to ascribe the accomplishment of this paradigm shift to himself alone. He has taken essential elements from currents in recent philosophical work and inserted them into his fresco: the humanistic idea of language, American pragmatism, Wittgenstein’s idea of a language game, perhaps also Heidegger’s analysis of Dasein, and not least John Searle’s theory of speech acts. In his third criticism, Apel gives a substantial formulation of the idea that Kant’s approach to transcendental legitimation suffers from a lack of attention to the pragmatics of discourse. Kant, he says, “still poses the ethical question from the point of view of the isolated individual,” whereas what is needed is the construction of a “genuine understanding of the claims people make of and against each other.” At this point the paradigm shift emphasized by Apel acquires a specifically ethical cast. Apel counters Kant’s “monological” criterion of autonomy with “the principle of dialogical morality”: the ideal community of communicators, or consensus achieved by means of discourse (Apel et al. 1984, 125). Ethics, in Apel’s hands, becomes a transcendental ethics of discourse. Finally, Apel takes credit for simplifying Kant’s views in essential respects, and he attributes the simplifications to the philosophical paradigm shift as it bears upon ethics in particular. According to Kant, the “isolated individual” has to see to it that “his will, that is, his inner disposition, could be judged good by a superhuman, omniscient judge” (Apel et al. 1984, 125). For this reason, Kant’s monological ethics is tied to the postulates of practical reason, in particular that of the existence of God. Dialogical morality, by contrast, can dispense with such onerous presuppositions. Doubts about Apel’s fourfold attempt to set himself off from Kant remain. Inspired by Kant, these doubts issue in what could be called a “Kantian skepticism.” Motivated as they are by considerations of philosophical substance, however, these doubts do not bear the stamp of a mere “orthodox Kantianism.”

12.1. Republican Reason Apel has few reservations about calling his ethics “transcendental”; and since he alludes to Kant in the course of developing his own views, he takes it for granted that Kant’s ethics is also transcendental in nature. Kant himself, however, restricted the transcendental program to the theory of knowledge and the theory of

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objecthood (C1 A 11/B 25) and precluded its expansion into the realm of the practical (C1 A 15/B 29). Now, as we have seen in Chapter 4, we can certainly translate the transcendental program into the terms of ethics and inquire into the preempirical conditions of the validity of action. In the process of such translation, however, the program undergoes consequential changes, one effect of which is to vitiate two of Apel’s arguments in favor of the post-Kantian paradigm shift. 1. According to Apel’s first argument, the paradigm shift from consciousness to language is required because Kant’s justification of ethics fails. Apel refers to Kant’s doctrine of the “fact of reason” as evidence of this: “Kant’s assertion that the moral law is known a priori as a ‘fact of reason,’” he writes, “must, in the light of current philosophy, appear either as a dogmatic break with any attempt at providing rational justification . . . or else as a violation of the principle that he himself acknowledges, that one cannot infer a norm from a fact” (Apel et al. 1984, 129). It is true that the doctrine of the fact of reason has not yet found a universally convincing interpretation (and Kant’s rather cursory treatment of the topic may be not the least of the reasons for this). It is true as well that the paradoxical situation of ethics as such is brought into sharp relief at just this point. As a reconstructive inquiry, ethics reflects upon that which is always already given, as moral consciousness or moral discourse. It concerns itself therefore with a fact, an is, but its ultimate aim is to arrive at a moral principle, the justification and measure of an ought. The appearance of paradox, however, dissipates as soon as we recognize the distinctive nature of the fact in question and its status within the theory of legitimation. A. On the one hand, what is at issue is not the “givenness” of something from the realm of nature but rather the effective presence of morality in human affairs. The effective presence of morality does not require reference to an ought as a matter of principle, but takes on that character only in the case of finite beings subject to the temptations of inclination. The fact of reason allows Kant to defuse a criticism of Hegel’s in advance of its having actually been raised. Although Kant does take morality to involve an ought, he does not, contrary to Hegel’s fears, degrade morality to the level of a mere ought. Morality as a fact remains, on the contrary, something astonishingly real. Hegel might reply that Kant still does not do justice to the idea of substantial ethical life, and to this Kant would respond by distinguishing different levels of moral reality. Substantial ethical life is fully present in Kant’s Metaphysics of Morals, and indeed in a twofold manner: not only as the morality of social life but also as that of personal character. For Kant, however, substantial ethical life is tied to a precondition. In order to give a moral shape to

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social relations or personal attitudes, these relations and attitudes must first (in the systematic-logical, not the historical-chronological, sense) be subjected to a moral evaluation. In the absence of this evaluation, the theory of substantial ethical life degenerates into a defense of customs and habits with no reference to morality at all. Hegel’s idea of a reality-saturated morality turns into Marquard’s vision of a morally impoverished reality. According to Kant, the fact of reason shows unmistakably that we always already recognize the need for such a prior evaluation and the standpoint of morality from which it is made. One can certainly question whether Kant himself offered conclusive evidence for the ever-present recognition of morality. In the sixth section of the Critique of Practical Reason, he contents himself with a reference to the judgment people make regarding their conduct’s conformity to law. He constructs an exemplary case of conflict between duty and inclination, turning on the question whether, under threat of immediate execution—which is to say, in the face of a crass threat to one’s inclination—one would be required to bear false witness against an honest person, or whether instead it is possible to overcome the inclination and refuse to present the false testimony. The answer, without a doubt, is that one can refuse to bear false witness, though whether one would is another story. According to Kant, a proper understanding of this answer requires us to appeal to a legislative instance higher than that of inclination and self-love. Since we really do make judgments such as this—the judgment that we could refuse to bear false witness and also that, if we decided nevertheless to do so because of the threat of death, we would still hold it to be an illegitimate course of action—shows that moral consciousness in the sense of a moral way of judging is real through and through. B. On the other hand, one should not mistake the role that Kant assigns to the fact of reason in legitimating morality. Kant does not in fact place any justificatory weight on the fact of reason. He appeals to it neither (1) to define morality as a categorical imperative nor (2) to support an inference to universalizability as the criterion of morality nor (3) to underwrite the concept of autonomy. All Kant wants the fact of reason to show—and herein lies the fourth element of his ethics—is that the three-part justification of morality is not the justification of a philosophical fiction. Because practical judgments are actually made whose determining ground transcends the welfare of the individual who passes judgment—because, therefore, genuinely moral judgments exist—moral philosophy loses the character of a mere intellectual glass-bead game and becomes instead the search for enlightenment about human existence. Apel, it should be noted in passing, takes advantage of something analogous to the fact of reason in his own work. The “argumentation situation” to which he appeals may be unavoidable, may in addition anticipate an ideal communication

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community, and may finally, as a real or ideal community, entail certain ethical obligations in an entirely convincing way: but even when all of these theses have been granted, the argumentation situation does not lose the status of something given. One should notice, too, that to demonstrate that the argumentation situation is unavoidable is not yet to arrive at a transcendental justification of morality. If the concept of the transcendental is not to lose its characteristic profile, a concept will be shown to be transcendental only when two demonstrations are forthcoming: on the one hand the concept must be shown to be valid before any experience, and on the other it must be a condition of the possibility of some sort of objectivity (in the theoretical sphere, the objectivity of knowledge; in the practical sphere, the objectivity of action). Apel needs to provide more details about both of these steps in his legitimating argument. 2. A second argument for the thesis that philosophy has undergone a paradigm shift from a focus on consciousness to a focus on language is taken to be so obviously sound that as a rule it is simply stated that Kant’s thinking belongs to the superseded, incriminated paradigm, and no justification of this claim is thought necessary. For all that this claim has become philosophical “common knowledge” and has therefore acquired a de facto exemption from critical scrutiny, it is vulnerable to important objections. An initial, historical misgiving is this: that the philosopher who introduced the paradigm of consciousness into early modern thought, Descartes, is the target of numerous criticisms in the Critique of Pure Reason. It is not only in the chapter on the paralogism that objections to Descartes are found. Onora O’Neill (1990, chap. 1) has shown that Kant’s distance from Descartes reaches farther than this, and in the second edition of the first Critique this distancing begins with the motto from Bacon. A more important objection is that the Critique of Pure Reason is, from the ground up and not just in occasional declarations, a communicative and discursive undertaking in exactly Apel’s sense. The communicative character of the work begins with the stimulus to the critique itself, with dispute among philosophers. It is present also in the concept of science to which, according to Kant, philosophers too must subject themselves and by comparison with which philosophical debate appears merely irritating: scientists, according to this concept, pursue a “common goal” and seek, entirely in accord with Apel, “unanimity among themselves.” Neither is Kant’s critique monological, since it seeks to resolve disputes among philosophers not by means of a superior brand of dogmatic knowledge but through a discursive juridical procedure. The juridical procedure is moreover public, and no one is reduced to the condition of a mere spectator. What is required for participation is reason alone, that jurisdiction in which all people have authority, even if only in an obscure fashion.

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Jürgen Habermas, the other leading defender of discourse ethics, invokes G. H. Mead in the course of calling for an ideal exchange of roles. Kant had not only answered this call long before Mead but had also put forward the idea in the distinctive form of an exchange of roles with a genuinely universal significance. And this idea first appears, not where one might most naturally expect it, in Kant’s ethical works, but rather in the Critique of Pure Reason. Because the first Critique recognizes no esoteric philosophical knowledge but allows universal human reason alone to count, any and everyone can be party to the juridical proceedings concerning theoretical reason, as prosecutor, defender, and (not least) judge. Kant is clear enough on this point in the “Discipline of Pure Reason” when he declares that “the very existence of reason . . . is never anything more than the agreement of free citizens, each of whom must be able to express his reservations, indeed even his veto, without holding back” (C1 A 738–39/B 766–67). Reason, we might say today, is democratic from the ground up. In order to ward off the mistaken thought that this dictum entails that the voice of reason can be determined by a majority decision, Kant prefers to say that reason is republican in nature (cf. Chapter 9 above). The Critique of Judgment confirms that the idea of an ideal exchange of roles recalled to our attention by Habermas is not at all foreign to Kant. In order to grasp the peculiarity of aesthetic judgment (“judgment of taste”)—namely, that although not objective, it nevertheless “requires the agreement of everyone” (C3 V:237/74)—Kant posits a common sense, the fundamental principles of which he articulates through three maxims of ordinary human understanding. The second of these maxims demands that we “put ourselves in thought in the place of everyone else,” and its rationale lies in the fact that a universal standpoint that disregards “the subjective, private conditions of [a person’s] own judgment” can “[be determined] only by his placing himself at the standpoint of others” (C3 V:293— 96/135—38). It follows from these references that we can no longer assimilate Kant’s philosophy to the paradigm of a monological consciousness in an unproblematic way. Apel and Habermas could of course weaken their claims and speak instead of a certain residue of precommunicative thinking to be found in Kant’s work. Such a weakening would, however, have significant consequences for the selfunderstanding of discourse ethics. Kant could no longer be taken as a principal source of the old paradigm, but would stand rather for the onset of emancipation from just this paradigm. An unbiased rereading of Kant could, in fact, discover far more than the timid beginnings of emancipation. For Apel, Kant’s (theoretically central) doctrine of transcendental selfconsciousness counts as one of the items that still belong to the philosophy of

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consciousness as opposed to that of discourse. Where Apel places the accent on “consciousness,” I would place it more on “transcendental” and “self”: what Kant is concerned with is a reflexivity that is at once constitutive for knowledge as such and preempirically valid. I do not mean these remarks to suggest that Kant should be declared the first transcendental pragmatist, but I do want to place a question mark after Apel’s history of modern philosophy. For present purposes, that is all that needs to be said on this score, since, as far as ethics is concerned, the paradigm shift alleged by Apel is to be sought in Kant’s practical philosophy, not his theoretical philosophy. But in neither the Grounding nor the second Critique nor the Metaphysics of Morals does the incriminated paradigm, the philosophy of consciousness, play a significant role. The fundamental concept of the practical philosophy is not consciousness but will. An ethically relevant paradigm shift, therefore, might be found in the theory of action, or rational psychology. The ancients, notably Aristotle, understood action as a movement that took place for the sake of a pregiven goal or objective; the fundamental concept for the theory of action was that of striving (orexis). Kant, for his part, gives particularly clear expression to the modern sharpening of action-theoretical reflection and, inquiring into the origin of the pregiven, traces the goal or objective back to a recognition or positing on the part of the agent and so speaks of the will as the ultimate source of conduct. Apel does not himself engage in any significant reflection about the theory of action and therefore underestimates the ethics-specific paradigm shift. He remains a Kantian nevertheless and recognizes the will as if it were something selfevident on two distinct levels. On the one hand, discourse on his conception is concerned not with mere talking at or with one another but with the achievement of a practical consensus, which is to say, a “common will.” On the other hand (and on a logically more fundamental plane), in order for situations of conflict to prompt a search for consensus in the first place, a will to consensus is needed, or, in Apel’s cognitivist synecdoche, a will to argumentation (1980).

12.2. The Categorical Imperative as Original Given With regard to the paradigm of practical philosophy oriented by the concept “will,” a transcendental ethics inquires into the preempirical conditions of a determination of the will that has absolutely objective validity. The theory program thus designated is frequently oversimplified, but we know (“in principle” anyway) that Kant divides the question into three. Even if his answers are controversial, a fundamental ethics, and all the more so one that takes itself to be transcendental, cannot evade any of the three questions.

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The concept of unconditional obligation, that is, the categorical imperative in the semantic sense, is offered by Kant as an answer to the metaethical question, What does objective validity mean in the case of willing? In a normative-ethical context, Kant seeks the preempirically valid determination of the will and finds it in the notion of autonomy. The idea of universalization, to which Kantian ethics is all too often reduced, is an answer only to the last of the three questions alluded to above. Like the second question, this one is normative-ethical in character and it concerns the provision of a criterion for both unconditional obligation and autonomy. For Kant, the cooperative criterion of both these things lies in the procedure of universalization. 1. Apel might explain why he accords the metaethical question no significance in his ethics by treating it as a mere propaedeutic. In fact, the question is much more important than this and is inescapable for an ethics of discourse as well as for Kant. Apel endows the fundamental concepts of discourse ethics—communication, discourse, consensus—with moral significance, and this raises the threat of his project’s suffering from a circular justification. Knowing, on the one hand, that an actual consensus can be hindered by time constraints or fundamental differences of opinion and, on the other hand, that its legitimacy can be undermined by intellectual, emotional, or other inequalities among the parties to it, Apel recognizes only a qualified form of consensus as a moral principle. Only a discourse that takes place under ideal conditions has a chance to underwrite morality, and the application of moral principles is required for the determination of certain conditions of discourse as ideal. Expressed in the language of morality, the point that Apel develops by means of speech-pragmatics amounts to this: the participants in an ideal discourse are not permitted to use on one another force of any sort (neither physical nor emotional nor rhetorical, for example), and neither are they permitted more subtly to lie, cheat, or deceive. Expressed in positive terms, the participants must acknowledge each other as endowed with an equal right to full and unimpaired participation. A threat of circularity looms, in that the principles for which a legitimating criterion was sought enter into the definition of the proposed criterion, albeit in a disguised fashion. Moral principles, in a word, are already contained in the conditions that establish a discourse as ideal. Apel has defended himself against the charge of circularity by distinguishing different levels of legitimation (Apel et al. 1984, 620 ff.). The ideal consensus is to be engaged at a second level, and it is here that concrete moral principles are to be reached. The systematic ground floor, however, is constituted by a reflection of the argumentative discourse on itself, and this reflection shows two things: first, the unavoidability of argumentation tied to language, and second, the tacit recognition of certain norms (precisely, I would add, those that are morally fundamental).

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Unfortunately, this answer only pushes the problem back a step. Having escaped— perhaps—from the danger of the vicious circle, Apel finds himself confronting a new difficulty. The semantic discussion neglected by transcendental pragmatics can no longer be put off, and whenever such a discussion is absent, the justificatory value of the discourse is weakened in a manner rife with consequences. At the same time, reflection on this issue lets us see why a transcendental pragmatics cannot proceed with so little ado from a first philosophy to ethics as a second philosophy. One who does not answer the metaethical question beforehand cannot defend the claim that the self-reflection of the argumentative discourse has anything to do with ethics. So long as one merely draws attention to norms implicit in discourse of any kind, one provides no more than a discourse-theoretical insight. The point gains ethical significance only if a prior task of identification has been accomplished; the ideal discourse, namely, must be shown to be a case, even an exemplary case, of morality. In order justifiably to make such an identification, one has to know what “morality” means, and discourse ethics, which presupposes such an understanding without arguing for it, weakens significantly its ability to achieve a transcendental justification of ethical norms. 2. With regard to Kant’s first normative-ethical view, Apel is divided. He wants to acknowledge the autonomy of the will but dispense with the concept of a pure will (1980). Chariness toward the idea of a pure will is understandable insofar as one understands by that idea something free of any connection with human needs, interests, sympathies, antipathies, or social conflicts. But the idea involves nothing so foreign to reality as this. Kant takes all of the factors named above fully into account and asks simply how one ought to react to them and, above all, where the ultimate ground of determination with respect to a given way of reacting lies. His “either-or” obtains only for this latter question. Those who react strategically or pragmatically (in the normative sense) thereby follow grounds of determination that Kant groups together under the concepts inclination and heteronomy; only those who free themselves from such grounds of determination and in this sense follow the negation of a heteronomous will—which is to say, a pure will—act autonomously. Someone who nevertheless finds the concept of a pure will misleading is well advised to follow Rawls and look for a new procedural definition of the concept. The concept itself, though, can be given up only at a price that Apel is unwilling to pay, the price, namely, of dispensing with the idea of autonomy. In lieu of doing without autonomy, I would suggest to advocates of discourse ethics that they no longer take Kant to be merely an outmoded harbinger of their

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ideas—someone who was caught in an inadequate paradigm from which we needed to be liberated—but rather that they take their ideas to be a renewal of Kant’s, formulated in terms of the pragmatics of speech. Consensus as such, with no further qualification, corresponds to a shared or general will; but as soon as one imposes on consensus certain ideal and, indeed, moral preconditions, one has, by eschewing strategic, pragmatic, and the external grounds of determination, transformed a merely actual consensus into an ideal one. Or, in Kant’s language, a factually shared or general will has become a pure will, a transformation that is manifested by the reciprocal recognition of persons as equally entitled participants in the discourse. This new way of reading the relationship between Apel and Kant refrains from ascribing to Kant a solipsistic concept of autonomy. Apel fears indeed that Kant “takes explicit account of the reciprocity of intersubjective relationships only on the plane of law” (Apel et al. 1984, 125). In fact, Kant sees in the relationship between reciprocity and autonomy a great deal more complexity than does Apel. On the one hand, Kant would have had difficulty with Apel’s disjunction between subjectivity and intersubjectivity. For Kant, these two phenomena—in Apel’s terms, “monologue” and “dialogue”—stand to each other not as an exclusive “either-or” but as an inclusive “both-and.” The Doctrine of Right develops the autonomy of groups, while the Doctrine of Virtue develops that of natural persons. Personal autonomy, on the other hand, encompasses recognition of all moral duties, including those that are also legal duties. In addition to a reciprocity that is legally instituted and binding as a matter of a morally justified legal practice, the Doctrine of Virtue introduces a reciprocity that is not legally binding in this sense but is nevertheless morally commanded. Concerning one or other of the principles of virtue—for example, the duties of benevolence, gratitude, sympathetic identification, mutual respect—one might prefer a different description to that offered by Kant, or even have substantial modifications to suggest: the topic as such, however, is anything but outdated. A further element in Kant’s “theory” of autonomy runs into skepticism time and again: the distinction between legality and morality. Ironically enough, the need for such a distinction is made all the more evident by Apel’s attempt to overcome Kant’s alleged solipsism. One can in fact satisfy Apel’s demand and internalize the obligations of a dialogical morality entirely on strategic grounds or with an eye to social conformity. But someone who is concerned simply to remain inconspicuous and to be taken for a reputable fellow citizen is someone who, though he may meet the requirements for legality in the moral sense, is far from the possession of moral autonomy. In order for the principle of autonomy to be

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something more than an empty assurance, discourse ethics too must introduce a full-fledged morality whose demands surpass those of legality in the moral sense. 3. If discourse ethics wants to set itself off from Kant in more than a secondary sense, it might still criticize the categorical imperative in its criteriological sense. Once again, though, with respect to Apel’s demand that a monological criterion be abandoned in favor of a dialogical principle, “Kantian skepticism” prevails. The most serious reservation about Apel’s proposal derives from the logical priority of Kant’s criterion to Apel’s alternative. Apel’s ideal discourse is itself subject to Kant’s criterion of universality, since in order for an ideal discourse to function as a moral principle, it must be binding without limitation or exception, and this in a double sense (see 7.4 above). Universalizing with respect to cases, the ideal discourse must be valid for every situation, and universalizing with respect to persons, it must be valid for everyone. Kant’s categorical imperative, therefore, enjoys a twofold precedence over Apel’s concept of an ideal discourse: the categorical imperative has priority on both the metaethical and the normativeethical planes. What Apel, for his part, takes to count against Kant, the fact that Kant’s thought experiment can be carried out alone, “in a solitary decision of conscience,” does not in fact represent an objection. True, the fallibility of each of us might speak against the wisdom of carrying out the categorical imperative test “all on one’s own,” and the danger of error would be reduced by cross-checking with others, but it would not disappear entirely. Moreover, cross-checks introduce no genuinely communicative or discursive element into play; they simply offer a repetition of what is structurally the same sort of deliberation: an inner discourse that each carries on with himself. According to a second argument, what speaks against “doing it all on your own” is the danger of partiality. With regard, for example, to the question whether a lying promise—say, to pay back a loan—could be universalized, one person might overvalue the perspective of the potential debtor, another that of the potential creditor. For Kant, the idea that one should engage in an ideal exchange of roles, the idea by means of which George Herbert Mead and Jürgen Habermas seek to surmount the danger of partiality, is so obvious as to be taken for granted. In fact, the Kantian universalization test accomplishes more than the MeadHabermas ideal exchange of roles; it answers the question that Mead leaves open: the question what to do when one becomes cognizant of the perspectives of everyone. According to Kant, one has first to weigh alternative reactions to a situation, next to generalize these reactions into principles or maxims, and finally to ask of the generalized principles whether they can consistently be universalized.

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Any principle that passes this severe test will eo ipso fulfill Habermas’s condition of “recognition from the point of view of all affected” (Habermas 1983, 75, my translation).

12.3. A Danger of Hubris The overall quality of a philosophical position is a function not only of the precision of its concepts and the strength of its arguments but also of its intellectual elegance. Apel claims for his position superiority over Kant’s on just this score when he deliberately leaves out of communication ethics the presuppositions that Kant had formulated in the “Postulates of Practical Reason.” An example, in Apel’s words, is “the presupposition that an omniscient God exists, one who judges the inner dispositions of men and women, who created the world as an ethical proving ground of humanity, and who consequently retains, as the true governor of world history, ultimate responsibility for what happens. Instead of this, human beings themselves, communities made up of interacting and intercommunicating people, would take on a sense of responsibility imbued with solidarity for caring about, and therefore recognizing duties arising from, possible consequences of human activities” (Apel et al. 1984, 126). Even well-meaning Kant interpreters take the quoted postulates to be vestiges of dogmatic metaphysics best passed over in discrete silence. Rawls (TJ 221–27), for example, regards them as not worthy of mention in his “Kantian interpretation” of justice. A tendency to regard metaphysical postulates as religious in character makes it appear all the more urgent to reject them on the grounds that they have no place in the ethics of industrial societies committed to neutrality with respect to comprehensive worldviews. But before Apel can take credit for a position that is more elegant, because simpler, than Kant’s, it is worth asking what task Kant assigns to the doctrine of the postulates and whether this task can be taken over by the ideal communication community or has, in the time between Kant and ourselves, become otiose. With the doctrine of the postulates, Kant sought to resolve “the dialectic of pure reason in the determination of the concept of the highest good.” We are not here, pace Apel, dealing with a “presupposition of morality”—quite the contrary in fact, since Kant sees in a theological foundation for morality a material ground of determination and therefore heteronomy. With the postulates of practical reason, Kant responds to a quite different question, that of ultimate meaning as the highest good, and he sees in the immortality of the soul and the existence of God necessary presuppositions of such a good.

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What is at stake here is the correspondence of actual happiness—understood as the complete good, an inclusive goal that encompasses all others in it—with worthiness of happiness, that is, with morality and virtue. For this goal to be fulfilled is for each to be happy exactly insofar as he has lived well and justly. Communication ethics cannot foreclose the possibility that happiness is not always distributed in a way precisely proportional to worthiness of it; it cannot preclude there being in the real world scoundrels who do well and just people, Job, for example, who do very badly. So the problem raised by Kant remains. Even if the communication community did want to take on “responsibility in solidarity” for all possible consequences of its activities, it could not obviate the fact that action takes place in a field of natural and social forces over which agents do not have full control, cannot, indeed, even fully survey. In addition, the consequences and side effects of actions develop dynamics of their own that cannot always be foreseen. One should not underestimate the role of happenstance in human life, the fact that we are delivered up to an external destiny. Those who are incurably ill or permanently injured, those who lose best friends and life partners, those, numbering in the tens of millions in our century, who lose their possessions and their homeland to boot—such people may, out of moral conviction, remain immune to despair; their level of well-being will nevertheless suffer considerably. To be sure, if the communication community truly were always to act out of responsibility in solidarity, many such blows of fate could be averted. But the communication community is neither omniscient, and therefore capable of foreseeing all occurrences of suffering, nor omnipotent, and therefore capable of banning suffering from the world entirely or distributing it according to moral desert. The communication community can use legal and social sanctions to punish the evil and reward the good, and in this way a certain degree of compensation and balance might be achieved. Nevertheless, it is not punishment from one’s fellows alone that provokes human suffering, and human well-being is derived only in part from any social rewards one receives for good deeds. In short, without hyperbolically attributing omniscience and omnipotence to the communication community, one cannot believe that a proportionality of happiness to moral worth is guaranteed. Worse yet, we do not live our lives under the conditions of an ideal society, but among people who, like ourselves, often enough lack a sense of responsibility in solidarity. It is because of this that morality presents itself to us as making demands, a point that adherents of communication ethics do not deny. Although we are called to solidarity, we often enough follow our own interest instead, and in consequence we fall short of achieving even that measure of proportionality between being happy and being worthy of being happy that would be brought about by a communication community that never

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failed to act in solidarity with its members. As a result, skepticism concerning any advancement of discourse ethics beyond Kant increases. With the best will in the world, it remains impossible for the communication community to fulfill the task that Kant formulates under the heading “the dialectic of pure practical reason.” Whether Kant’s solution is convincing—which is to say, whether the doctrine of the postulates of pure practical reason is sound—is another matter, but Kant at least notices a problem that Apel, along with most contemporary moral philosophers, ignores. Perhaps it is wise not to raise the problem, since we seem to lack the conceptual and argumentative resources for a plausible solution. But it could also be that moral philosophy should self-critically seek new resources precisely because it otherwise leaves this kind of difficulty unresolved. It is not only in the sciences that language and communication are today experiencing something of a boom. The self-evidence accorded, at least “in principle,” to democracy as a political structure is surely one of the many reasons for this. Yet it is also a fact that things are sometimes vehemently defended only when their existence is threatened. This point holds good for entities such as language and communication as well, and we should not minimize the dangers of impoverished language or indeed of utter speechlessness. Today, the capacity truly to speak, to enter into intensive personal relationships and simply to conduct conversations whose aim is not entirely functional, is threatened by a number of phenomena that accompany the culture of industrial societies, for example, by the rampant proliferation of simplifying, image-centered media such as television, advertising, and cartoons, by the penetration of technical and “wannabe”-technical jargon, and by the superabundance of stimuli, of self-imposed obligations and functional imperatives. In this situation, it makes sense to join Apel in drawing attention to the fundamental, encompassing meaning of language and communication. It is also correct to argue against an individualistic conception of freedom in favor of a communicative one, since genuine freedom manifests itself in the recognition of others as free and equally entitled persons. Because people have such divers needs and interests, a communicative conception of freedom cannot get by without a willingness to respect one’s fellow humans in their otherness. Concrete norms of action are not the result of a monological and ahistorical process of subsumption, still less that of pure power and sheer decision; they arise, rather, out of historical processes of communication. Not the smallest task of a juridical order, for example, is to make discursive formations of will institutionally possible. Nevertheless, a vote for language, communication, and argumentation does not amount to a sound argument for grounding a philosophical ethics exclusively on the foundation of a transcendental pragmatics of speech.

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13 HABERMAS AND THE CONVERSION OF CRITICAL THEORY

What sort of contribution can and should be made by a critical theory of society, one that recognizes itself as the philosophical heir of Hegel and even more of Marx but that nonetheless has, under the influence of subsequent developments in science, philosophy, and society, called much of their philosophies into question? Jürgen Habermas, long the most influential and creative representative of the Frankfurt School, combines critical theory with the ambitious goal of, as it might be called, renovating modernity. Though he too sees many pathologies in the modern world, he does not align himself with those radical critics who wish definitively to part ways with the project of modernity. The program appears paradoxical only at first glance. What Habermas wants to do is defend modernity against itself. Four aspects of Habermas’s expansive project deserve particular attention. First, he seeks in The Theory of Communicative Action to articulate the fundamental

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theoretical concepts and normative criteria needed for a theory of modern society. Second, he abandons traditional critical theory’s aspiration to an absolute standpoint, together with its often hermetic and self-assured language, submitting himself instead (in the article “Philosophy as Placeholder and Interpreter”) to the dictates of a more modest concept of philosophy and science. If Hegel and Marx had hitherto stood in the foreground as “master thinkers,” along with Freud from more recent intellectual developments, Kant now becomes a greater presence. Someone interested in exaggerating the new tendency might speak of a “Kantian turn,” the most important evidence of which is a new attitude toward moral philosophy in general and the categorical imperative in particular. In the tradition of Hegel, the older critical theory had closed the file on both, but in Habermas’s newer critical theory—and herein lies the third viewpoint to be highlighted—misgivings about the viability of moral philosophy and the categorical imperative are overcome. As “discourse ethics,” the former undergoes a remarkable rehabilitation in the 1983 work Moral Consciousness and Communicative Action, and within its framework the latter plays a special role as a bridge principle. Finally, in Between Facts and Norms Habermas develops in detail a theory of law and the state, which rectifies the older critical theory’s neglect of these topics and corrects as well that tradition’s untenably negative attitude toward the basic principles of modern constitutional democracy. In a more modest sense, a “Kantian turn” signifies that critical theory’s alternately critical and affirmative reflections on the philosophical tradition no longer privilege Hegel and Marx but include Kant as well. In a more ambitious sense, it means that certain elements characteristic of Hegel and above all of Marx are, in consequence of the role played by Kantian points of reference, abandoned, or at least watered down. Marx’s outlook can be characterized— oversimplistically, to be sure—by three elements: (1) a search for contradictions, mandated by a guiding concept of critique—examples of this would include unmasking a consciousness as “false” or social relations as unjust; where Marxist critique is negative, Kantian critique is not so much affirmative as judicative (see Chapter 2 above)—(2) a replacement of ethics as an allegedly “mere ought” by a theory of society, within which (3) the primacy of the economic sphere is taken to be well established. To the neglect of the realms of law and the state, Marxist social critique is above all else critique of political economy. To get a clearer view of the new profile, let us consider Habermas’s updated form of critical theory with reference to Kant and against the background of these three elements.

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13.1. The Theory of Communicative Action (a) An “Ecumenical Theory” After more than a decade of preliminary works and promissory notes that had attracted much intellectual attention and sparked a vigorous discussion among philosophers, sociologists, and students of language, we have been able, since 1981, the 200th anniversary of the publication of the Critique of Pure Reason, to study the full-dress version of Habermas’s theory of communication. The 1,200page magnum opus presents itself as a major piece of work, even by the measure of sheer size. The first of the treatise’s two volumes carries the subtitle “Rational Action and Social Rationalization,” while the second is called “Towards a Critique of Functional Reason,” a choice that could remind one of Kant’s first Critique, but the content of which lies nearer to that of Horkheimer’s “Critique of Instrumental Reason.” On the basis of the more narrowly academic preoccupations of the preliminary papers in which he addressed such topics as the theory of truth, the justification of morality, and communicative competence, it might have been thought that Habermas had forsaken, or at least set aside, the business of social criticism. The Theory of Communicative Action shows this to be a misunderstanding. The author of this book moves critical social theory forward, though not in the manner of an orthodox spokesperson. Habermas has always been an independent mind who never lets himself be tied down to a particular party line. In an unwavering critique, including a dose of self-critique, he seeks here both to ascertain the limits of neo-Marxist social theory and to develop that theory further, taking into account both new concepts in social science and changed circumstances within society. In the most important innovations found in the The Theory of Communicative Action, Habermas proposes to counter the overvaluation of economics and work in Marx and the imprisonment of older critical theorists in the consciousness-oriented philosophical tradition of Kant and Hegel with the suggestion that communicative action and rationality should function as the foundational concepts of critical social theory. Like Marx and the older Frankfurt School before him, Habermas understands critical theory in a twofold sense. It is supposed to be critical both of establishment theory in the social sciences and of social reality itself. In the new book, however, it is the critical reappraisal of recent social science that is clearly preponderant. Even granted its presence in other chapters here and there, the only place in which sustained explicit criticism of social reality is found is the third

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and last section of the “Closing Remarks,” in which Habermas seeks to shed light on dangers specific to the contemporary world and experience with the aid of his new fundamental concepts. As in his earlier work Knowledge and Human Interests, Habermas elaborates his theory in the course of a critical appropriation of landmarks in the history of social scientific research. His chief landmark, though, is not Karl Marx but Max Weber and his theories of disenchantment and rationalization. For, as he writes, “[a]mong the classical figures of sociology, Max Weber is the only one who broke with both the premisses of the philosophy of history and the basic assumptions of evolutionism, and who nonetheless wanted to conceive of the modernization of old European society as the result of a universal historical process of rationalization”; and further: “the theory of rationalization does not belong to that speculative inheritance from which sociology as a science should free itself” (TCA I:143). Habermas nevertheless sees in Weber a peculiar duality. On the one hand he succeeds in grasping the process of societal rationalization in its full complexity, but on the other his theory of action is essentially determined by the limited concept of instrumental, means-ends rationality. In opposition to this second feature of Weber’s thought, Habermas calls for a paradigm shift: from instrumental to communicative rationality. From Lukacs and Horkheimer to Adorno, old-style critical theory had already launched passionate objections to the limitation of social practice and its theory to the domain and vocabulary of instrumental rationality. Habermas follows his predecessors in this critique, but since his 1965 inaugural lecture, “Knowledge and Human Interests,” he has regarded the normative foundations of the old-style critique as problematic. In close contact with Apel, he has for some time sought to ground critique in the realm of language. In the second chapter, on the history of social theory, Habermas takes up the critique of old-style critical theory, reworking the critique of instrumental reason in the form of a critique of functionalist reason in order to create space for his views. According to Habermas, Horkheimer and Adorno had indeed appealed to an expanded concept of reason in the course of their work, and such an appeal is indispensable to the success of critical theory as such; but due to their insufficient conceptual means, they managed only to “circle around it by means of a negative dialectic” (TCA II:1), rather than really develop a positive account. The chief deficiency of older critical theory is held to lie in the fundamental idea of a philosophy of consciousness that underlies philosophical thinking from Descartes through Kant to Hegel. Like Weber’s notion of means-ends rationality, this idea needs to be philosophically transcended. Habermas’s new fundamental concept of communicative rationality is enlisted, therefore, not only against Weber’s concept

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of means-ends rationality but also against the critique of this concept from the side of the first generation of the Frankfurt School. Habermas holds fast to the ideas of reconciliation and freedom and believes that they can be elaborated only with the help of his new concept of communicative rationality. Habermas carries out this doubly necessary paradigm shift in a third theoryhistorical step, in which he parts company with the German tradition and turns to the sociologists George Herbert Mead and Emile Durkheim. Both of these thinkers, he writes, “developed basic concepts in which Weber’s theory of rationalization may be taken up again and freed from the aporias of the philosophy of consciousness: Mead with his communication-theoretic foundation of sociology, Durkheim with a theory of social solidarity connecting social integration to system integration” (TCA II:1). Nevertheless, Habermas is aware that a theory of society cannot be reduced to a theory of communication. In order to escape the limitations of such a reduction, he conceives society as simultaneously system and life-world. Durkheim’s anticipations notwithstanding, credit for bringing the concept of a system into social theory belongs to Talcott Parsons. In a fourth chapter, on the history of social theory, Habermas confronts Parsons’s work. Arguing against the “hermeneutic idealism” of an entirely communication-theoretical foundation, he integrates the concept of a system into social theory. In spite of the wide-ranging theory-historical discussion, Habermas’s work is aimed at a systematic, rather than a historical, goal. Compared to that in Knowledge and Human Interests, this systematic discussion receives greater, though still insufficient, weight. The book’s “Closing Remarks” in particular are still overburdened with theory-historical considerations. According to them, the path that leads “from Parsons back to Marx via Weber” is supposed to “provide a view of the currently conspicuous aporias of societal modernization” (TCA II:302). To open up a view is to enable something new to be seen or something familiar to be seen anew. Habermas, though, spends more time describing the view than he does actually training it on society and teaching us how to see this in a new way. Yes, he formulates the “tasks of a critical social theory” inspired not only by the “spirit of Western Marxism” but also by Weber’s theory of social rationalization and Durkheim’s and Mead’s concept of communicative reason; but the questions of what new things or aspects of society someone so inspired sees, and of what new evaluations are invited, are answered only in a very preliminary way. In his foreword, Habermas announces a critical social theory that builds on the foundational concept of communicative action and opens up “access to three intertwined topic complexes” (TCA I:xl). The first two of these—a “concept of

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communicative rationality that is sufficiently skeptical in its development but is nevertheless resistant to cognitive-instrumental abridgements of reason” and “a two-level concept of society that connects the ‘life-world’ and ‘system’ paradigms in more than a rhetorical fashion”—receives a much more detailed treatment in the two-volume work than does the last, a “theory of modernity” that explains “the type of social pathologies that are becoming ever more visible in today’s world.” Habermas sees two social pathologies emerging in the wake of capitalist modernization: the petrifaction and reification of everyday life and practice, together with their cultural impoverishment and stultification. Both tendencies could correspond to the loss of freedom and meaning noted by Weber. But while Weber regarded these losses as the unavoidable result of the process of Western rationalization, Habermas accounts for them by appeal to (1) the uncoupling of social subsystems, especially that of the economy and the state from the communicative life-world, and (2) the penetration of system imperatives into areas, such as school and the family, that are not at all suited to them. Habermas expects that wherever this trend toward uncoupling is reversed and the corresponding institutions freed from system imperatives, the two social pathologies will also largely be reversed and a greater measure of freedom and meaning will be repossessed. So much for outlining a general orientation to the topic, the guiding interest and the plan of Habermas’s book. Although the plethora of historical and systematic materials might at first intimidate some readers, the underlying thought informing the work is clear and indeed becomes ever more readily discernible through the course of its progressive systematic and theory-historical development. Habermas wrote his book “for those with a professional interest in the foundations of social theory” (TCA I:xiii). Scholars and scientists today, though, live in a world of increasing specialization, a trend that Habermas here contradicts in an altogether provocative manner. Because of this, the professional sociologist will feel inclined to regard him as a philosopher, while the professional philosopher will tend to address him as a social scientist. In either case, Habermas becomes an outsider from the point of view of the specialist. In fact, he is a border figure— better, an intermediary—challenging social scientists and philosophers to work together. Philosophy is to regain its practical significance, and the social sciences are expected to engage in philosophical reflection. Beyond this, by means precisely of the method of the book, the reconstruction of the history of social theory, Habermas protects systematic thinking from a loss of history and historical reflection from a retreat to the archive. Last but not least, he makes it difficult for either the historian or the systematic thinker to cocoon himself into a narrowly

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circumscribed field of study. For the imposing wealth of material worked through here, coming as it does from various traditions of thought and different areas of inquiry, demands of all mere specialists that they look beyond the confines of their narrow areas of specialization and take note of the overarching context. What Habermas says of Parsons applies equally to himself: he has the “ecumenical style of an all-incorporating” theorist (TCA II:200). Confrontation with such a thinker naturally calls forth skepticism. Can one manage all of that? And even if one can, should one? Habermas shows brilliantly that one can operate on such a grand scale, and he proves also that one can be within one’s rights to do so. But whether an undertaking of this sort is necessary in order to provide critical theory with a new foundation remains an open question. The structure of Habermas’s book bespeaks an encyclopedic interest reminiscent of Hegel and Max Weber. Literally, an “encyclopedia” is a “circle of learning,” specifically, the knowledge that every young Greek in ancient times, or more generally any cultivated person, should acquire. To an encyclopedia, therefore, belongs a didactic moment, and in Habermas’s case an additional element of autodidacticism. By his own admission, the systematic assimilation of the history of social theory helped Habermas “to find the level of integration on which philosophical intentions unfolded from Kant to Marx can be made scientifically fruitful today” (TCA I:xl). By the same token, though, the work’s encyclopedic structure leaves too little room for analytic work on the scale of fine-grained detail rather than that of the broad brushstroke. Had he paid more attention to smallscale details, he would have been able to follow out more thoroughly the ramifications of the main argument and to engage misunderstandings and objections that naturally arise, many of which had already been formulated in the discussion surrounding the “preparatory works.” Social scientists will likely think this a “typically philosophical” work, while Anglo-American philosophers will think it a “typically German” one; and those skeptical of one aspect or another of the project will, despite admiration for Jürgen Habermas’s intellectual capacity, remain less than fully convinced. The one skeptic’s reservations might pertain to one or another theory-historical front, the other’s to the categorial framework, and yet a third’s to the social critique present only in an adumbrated form. (b) A Theory-Historical Battlefront From the large theory-historical picture, I will emphasize only a small detail, albeit one that points beyond itself. Habermas charges earlier critical theorists with remaining tied to the “philosophy of consciousness” that runs from Descartes through Kant to Hegel. Their paradigm, in consequence, is still that of “the subject

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that represents objects and toils with them” (TCA I:390) According to Habermas, the Lukacs-Horkheimer-Adorno critique of “instrumental reason” as a vehicle by which social relations and relations between man and nature become reified could show only that something was being destroyed. Not until the advent of the new paradigm of communicative action could it be spelled out exactly wherein the destruction consists, namely, in the fact that relationships based on mutual understanding become uncoupled from the kind of agreement in understanding proper to them and thus are destroyed in their very “essence.” In this context Habermas does not (yet) take the Kantian turn of which I spoke in the Introduction, but instead adopts an explicitly hostile position with regard to Kant’s thought. He does open up a connection to Kant’s concept of action, seeing in the philosophy of consciousness an account of action as “toiling with objects.” In any case, the alleged “philosophy of consciousness” tradition extending from Descartes and Kant to Hegel and Marx is too heterogeneous to permit one (or me, at least) to identify a unified paradigm of practical rationality common to it. Following the line of interpretation suggested by the “Kantian turn,” I will take up Kant alone, whom, we have already seen, one may subsume under the incriminating paradigm of “consciousness” only with caution. At issue in any case, as far as a social philosophy is concerned, is not the “philosophy of consciousness” as such but rather the question whether it leads one to adopt the criticized concept of rationality. And it is not easy to find Kant conceiving of rationality as “action that toils with objects.” Even his first level of rationality, technical, success-oriented rationality, must be understood more formally than this. And when it comes to the second and third levels, to pragmatic, happiness-oriented rationality and moral rationality, it is still clearer that one cannot speak of action simply in terms of working on objects. One might regard Habermas’s historical oversimplifications as a matter of mere detail that does not affect his basic systematic interest. In fact, the worry goes deeper than this and points to a fundamental ambivalence in The Theory of Communicative Action. On the one hand, Habermas wants to reinvigorate certain essential intentions of philosophy from Kant to Marx and, beyond this, to bring philosophy and the social sciences into conversation with one another. On the other hand, whenever he wants to derive positive impulses from the history of theoretical inquiry, he restricts himself, the older critical theory excepted, to classical figures in sociology. Apropos of these thinkers, he can indeed reconstruct the paradigm shift from instrumental rationality to communicative action and also make plausible the integration of life-world and social systems in “an ecumenical social theory.” But certain important elements of the theory are subject to the same criticism leveled by Habermas at the older critical theory: the idea of free-

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dom and a “moment of unconditionality” (TCA II:399) are necessarily appealed to but not, owing to insufficient conceptual means, adequately developed, much less justified. It is advisable in light of this to supplement the return to Marx and Weber with a strengthened turn to Kant. In addition to distinguishing three levels of practical rationality, Kant distinguishes within the third level personal morality from juridical—which is to say, social and political—morality, and this distinction can be of use to the theory of communicative action. The concept of personal morality contains a “warning against the overvaluation of social actions and projects vis à vis personal ones,” while Habermas in fact remains bound to the corresponding Marxist tendency: his history of theoretical inquiry treats amply of sociology but not at all of a complementary normative psychology. A creative development of Kant’s thought could deal thematically with both personality and communication and try as well to “sustain dialectically” a certain tension that exists between the two. The concept of a juridical “morality of right” calls, moreover, for reflection on whether we still have subjects responsible for “society.” Not content merely to diagnose social pathologies, Habermas has therapy to suggest as well. Who, though, is to undertake the task of freeing institutions from the system imperatives alien to them? Can it be the government, which is itself complicit in the formation of the pathology in question, the penetration of system imperatives into the life-world? The apparatus of government has lately undergone transformations labeled rashly by H. Willke (1983) as “the disenchantment of the state,” more cautiously by others as the emergence of a “new statehood,” and more forthrightly and modestly as the introduction of an “altered statehood” (cf. Schuppert 1989). Of these developments, however, neither the preference for talking of “the political system” rather than of “the state” and for demoting the political system to one subsystem alongside others, nor the fact that the state, despite an abundance of new tasks, operates less and less with the tools of traditional sovereignty, nor the conjunction of increased tasks and expectations with decreased capacities for taxation, nor the weakening of state sovereignty by supranational organizations, by the integration of world markets, and by the growth of regionalism—none yet speaks against an interest on the part of society in the existence of subjectanalogous elements that play as strong a role as possible in social processes. By a “subject-analogous” agency or instance, I mean an agency or instance to which one can ascribe something like responsibility, albeit in an altered form. One does not have to think that the state ought to be strengthened, much less mystified, to hold that the traditional branches of government—the legislature, executive, and judiciary—remain worthy of discussion as candidates for fulfilling this interest in subject-analogous institutions, and neither does this view commit one to

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excluding other possibilities or to disputing the permeability of the borders between the state and the media, science, and so on. Another argument in favor of a strengthened “turn to Kant” is this: mutual agreement in understanding (which is the goal of communicative action) depends de facto on the boundary conditions set by the intellectual and emotional capacities of the participants as well as on their social and cultural backgrounds. Dependencies of these sorts can favor some and disadvantage others, from which one may conclude that the mutual understanding aimed at, the agreement of all participants, would not in fact serve the interests of all participants. Because his ultimate end cannot lie in a consensus of a distorted kind, Habermas imposes a condition of “unforcedness” on the agreement sought. What is aimed at, he maintains, is a reciprocal conviction, a “valid agreement” (TCA I:392). The normative burden of proof carried by these concepts of unforced mutual understanding and valid agreement can be reconstructed only by recourse to the classical figures of philosophy, not those of sociology. Without doubt, Habermas’s theory of communicative action would be well supplemented by an “ethics of discourse” that made appropriate reference to Kant. (c) An Inner Colonization? Habermas is right to regard modernity as an internally endangered project. Like many others before him, he takes note of threatening developments; what is new is his diagnosis of the source of the pathologies, his explaining them as the result of an encroachment of system imperatives into the communicative lifeworld. As examples, he offers the “juridicalization” (Verrechtlichung) of family and school, the increasing degree to which these institutions are enmeshed in complex juridical and regulatory networks. The process itself he calls an “inner colonization.” Thanks to legislation enacted in recent decades, bureaucracies and courts, in particular administrative courts, have indeed made their way with numerous system imperatives into various communicative life-worlds, sharing diligently in the governing not only of school and the family but also of higher education and research, technology, labor, and the economy. But for all the impressive evidence Habermas can point to on his side—the more detailed a picture we get of his diagnosis, the less convincing it ultimately becomes. Doubts begin with the theory’s fundamental concepts. To carve the social world into an exclusive disjunction of “system” and “communicative life-world” is greatly to oversimplify its wealth of forms. On the one hand, with respect to those areas interpreted as belonging to the everyday communicative world, the very real constraints that exist even in the most successful examples of family,

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school, or university are papered over and hidden from view. On the other hand, with respect to the system side of things, influential theories in the social sciences talk of subjectless networks of relations and processes in the conduct of politics, the economy, management, and so on. It is, in any case, in Habermas’s own interest to look for alternative interpretations. In order to acquire or regain as much communicative rationality as possible, it is worth delving further into the instances of subjective and intersubjective responsibility that already exist in society. What is needed is first to notice their existence, next to develop for them an adequate conceptual articulation, and finally to consider means and forms by which they can develop further. The reference above to the subject-analogous responsibilities of governmental agencies belongs in this context. A new conceptual articulation would, for example, depart from Habermas by including a comparative element according to which “system” and “communicative life-world” no longer form two halves of a social whole but constitute two idealized extremes of a spectrum rich in intermediate forms of social existence. Moments of subjectivity and communication appear within this spectrum with waxing and waning importance. This comparative conceptual framework explains much better how it could be that system imperatives could begin to penetrate family, school, and so forth, for it allows us to say that such imperatives were always there to a limited degree and that what is under discussion now is simply the scope and manner of their presence. A comparative conceptual framework makes it possible as well to acknowledge that politics, the economy, and the law each operate to a great degree as social systems, but to insist nevertheless that in the case of public institutions shaped by law, there is still present that which is largely absent from “system thinking,” political will on the one hand and collective social responsibility on the other. In the wake of these misgivings about Habermas’s conceptual scheme come doubts about the thesis of an inner colonization. The connection here is not systematically tight, but still, if Habermas’s picture is accurate, then system imperatives must intrude into communicative life-worlds like foreign colonial masters into tribal societies, and they must set out to enrich themselves at the expense of these life-worlds. In the case of juridicalization, however, we are victims of our own actions; we, the members of the tribe, not foreign colonial masters, descend upon ourselves via parliamentary intermediaries. Furthermore, there have long been a certain number of laws, and therefore system imperatives, governing family and school, and to assume a communication world free of system imperatives is to fall into the grip of a backward-looking utopia. Finally, as Habermas well knows, the recent extensive, and perhaps overextensive, proliferation of laws governing life in these areas can be defended with good arguments from the

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points of view of the social-welfare state and of democratic and egalitarian theory. And when disadvantaged groups are aided and, to put it dramatically, living conditions worthy of human beings are secured for all citizens, one cannot speak of colonization and the exploitation of others, “increasing sociopsychological and cultural costs” (TCA I:xii) notwithstanding. Our dissatisfaction with what has been achieved in this area has, I conjecture, at least three sources. Some stems from overly high expectations. This sort of structural overoptimism is found, for example, when it is thought that the social-welfare state is in the business of directly furthering the welfare of groups and individuals; in fact it can never do more than improve the preconditions and framework conditions within which people live. A second source is an overestimation of the state’s capacities, for taxation and so forth. A third reason for dissatisfaction is that the measures taken to achieve certain ends are not always optimal. Something well intended—for example, making a certain sort of claim actionable—can, beyond a certain thoroughness, show itself to be the continuation of an authoritarian state paternalism by other means. The social-welfare state is, in the end, in spite of the best of measures, an ambivalent “instrument” that cannot achieve its goal of helping all to realize freedom without making incursions into precisely this freedom. Since the system imperatives that are supposed to have colonized the communicative life-worlds have little to do with the first two reasons for dissatisfaction, Habermas’s diagnosis explains the pathologies only partially. By contrast, Habermas’s diagnosis might well be helpful in elaborating the third reason, the ambivalence of the social-welfare state. Instead of interpreting the intrusive system imperatives as colonization, however, it would be preferable to use the neutral concept of a cost-benefit calculation. This concept reminds one that the socialwelfare state exists to serve, not itself, but those affected by it, and it allows one to appraise better-grounded system imperatives (i.e., more cost-effective ones) positively and inefficient or overabundant ones negatively. It goes without saying that neither the costs nor the benefits are exclusively financial in nature, not even in the first instance. Cost-benefit thinking relativizes the negative critique that dominates Marx’s thought, and rehabilitates Kant’s paradigm of a judicative critique, though not, of course, on a transcendental level. A broadened diagnosis of contemporary pathologies will also take into account still other factors, for example, the modern aspirations to subjectivity and self-realization, through which a communicative life-world such as the family can be stretched to, or even beyond, the limits of its capacities. And not the least part of the pathologies in question results from the fundamental alienation that holds sway in the modern world between the family as the place of intimacy and the life of work and occupation as the place of functional necessity, competition,

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and career. The family is thus subject to the demands of a “double morality”: an “internal morality,” committed to communication, and an “external morality,” characterized by economic, technical, and strategic obligations. Neither can the model guiding family morality be restricted to the principles of a communicative internal morality. For the family must be nourished, and its children need not only to acquire trust in themselves and the world and to grow up in freedom, responsible only to themselves and subject only to communication free of constraint, they need also today to learn how to earn their daily bread for themselves tomorrow; so the family must open itself to the functional, competition-oriented morality of the outside world. In the nature of the case, the task of mediating between two such moralities pulling in different directions is extraordinarily difficult. Since this tension between the inner law of love and the outer law of occupational survival originated long before the recent tendencies to the juridicalization of society, these latter can at most have exacerbated the problem, and changing them for the better will not remove the pathologies altogether. Reference to the “double morality” of the family leads to a still more fundamental source of doubt about the adequacy of Habermas’s diagnosis. In an earlier piece, “Work and Interaction,” Habermas still regarded work as a fundamental category. The Theory of Communicative Action, by contrast, not only opposes Marxist overvaluations of work, which might well be sensible, but abandons the category entirely, retaining for it at best a restricted place within the encompassing concept of communication. To be sure, any attempt in social philosophy to restore to work the major importance it was once routinely granted can all too easily appear to amount to the adoption of a research perspective long surpassed by the history of society and theory. Having taken to heart the lessons of rising levels of welfare, Western societies have transformed themselves from “worker societies” into “consumer and leisure-time societies.” All the same, work retains an essential function. Despite the fact that an ever smaller proportion of the population works the land and is therefore responsible for the actual sustaining of life, and despite the fact that not only is the workweek ever shorter but longer periods of training and longer life expectancy have combined to lengthen the amount of their lives that people spend before and after their careers, it is still implausible to think that a society as a whole could ever dispense with work. This truism holds all the more obviously for the countries of the second and third worlds. In addition, it is clear to anyone free of a certain narrowness of perspective that “work” enjoys a thriving reputation, which finds expression, inter alia, in a profusion of verbal forms: in talk of “working on a relationship” or “working toward consensus” or the “work” of memory, grief, or even sleep! Positions with high prestige in the economy, politics, and

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science are linked to high-quality work and lots of it, and the composition of a magnum opus requires a resolutely traditional work ethic. Work deserves special attention for categorial reasons, as well as for its enduring significance. It belongs to the class of “intermediary phenomena” that cannot casually be placed on one side or the other of the divide between “strategic action” and “communicative action.” Work offers the prospect of unifying diverse aspects of rationality and practice into a “human unity”: a unity within a person and a unity that promotes the development of personality. Habermas of course knows from Hegel that in work human beings “give form” in three different ways: they give form to (a) nature, (b) themselves, and (c) their relations with fellow human beings. Present both in the etymology of the word and various derivative senses is the idea that work is an activity conducted in the face of resistance and therefore requires effort. In work, one’s effort changes something, and in changing it appropriates it, though not always in a possessive fashion—think here of how something past can be appropriated by work that takes place in the present—and at the same time one’s efforts effect changes in oneself. Finally, this structurally complex process occurs often enough, directly or indirectly, in cooperation and competition with others. Work is not merely an instrumental conduct aimed at sustenance or welfare. As a medium of self-evaluation, it contributes to self-awareness, and as a medium of evaluation by and of others, it is decisive for one’s career and social recognition. Because it involves divers forms of both cooperative and conflictual interaction, work also opens up possibilities for self-realization and sometimes even for a kind of self-presentation or performance that is not limited to the realm of the arts. Far from wanting to rejuvenate the Protestant work ethic, I mean with these remarks to help us break out of a dichotomy that governs so much of our social life: that between the Protestant work ethic and the hedonistic consumer and leisuretime society. Work, with its potential for developing into forms that enhance liberty and sensuous experience, could function as a counterforce to the social pathologies of our world, its reification and cultural desolation. Granted, work would be no more than one of many in a spectrum of counterforces, and in order to play this role successfully, work would have to be improved in the various ways that we vaguely summarize under the heading “the humanization of the work-world.” The reduction in the proportion of work needed to secure basic subsistence ought to facilitate the accomplishment of this task. In short, whereas I maintain that a sustained turn to Kant is helpful in other regions of social philosophy that unfold in historically informed ways, I would urge a timely reformulation of thoughts from Hegel and Marx with respect to the category of work.

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I close this line of criticism of The Theory of Communicative Action by reiterating how clear it has become that, accurate though it is in certain respects, Habermas’s diagnosis of the dangers threatening modern society is on the whole insufficiently complex. Behind grand social theories with global ambitions, there remains a fundamental question mark, even in the case of the theory of communicative action. But work in science and philosophy derives its significance not only from the plausibility of its proposed solutions. The manner in which it enhances awareness of problems, and the perspectives for research that it develops and reveals, are also relevant. To Habermas we owe, among other things, new ways of reading the history of recent social theory as well as a certain discomfort with narrow disciplinary boundaries felt by social scientists and philosophers alike. The Theory of Communicative Action is a significant work of social theory at the intersection of philosophy and social science.

13.2. Stand-In or Judge? With regard to the second aspect of his transformed critical theory, the “new modesty,” Habermas urges a cooperative division of labor between philosophy and the human sciences. The presently far more influential natural sciences go curiously unmentioned. Even if current scientific practice encourages mutual isolation of research areas in numerous ways, a simple recommendation in favor of cooperation between disciplines will be endorsed universally. What matters, therefore, are the details of Habermas’s concept of cooperation. In the words Habermas uses for the title of the first chapter of Moral Consciousness and Communicative Action (1990), he conceives of philosophy as a “Stand-In and Interpreter.” He means the phrase to indicate his opposition to the more ambitious claim of philosophy to be, not a mere stand-in and placeholder,1 but a “placeassigner” and judge. However pleasant it may be to look forward to and follow, with a more affirmative or a more critical reaction, the program of a transformed critical theory, one cannot believe that a philosopher who rejects completely the more ambitious tasks will still be capable of social critique. A “more modest modesty” is more plausible. One rids oneself of Hegelian and Marxist absolutist ambitions, abandons the sometimes apodictic and prophetic style of the older Frankfurt School, 1. Following Lenhardt and Weber Nicholson’s translation of Habermas 1990b, “stand-in” here translates “Platzhalter”—more literally: “placeholder.” Hence the wordplay involved in contrasting a placeholder with a place-assigner (Platzanweiser, literally an usher).

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and, not least, approaches the task with caution; but one cannot refuse entirely the office of place-assigner and judge. Habermas first presented the “modest program” at the Stuttgart Hegel Congress in 1981. In honor of the 200th anniversary of the publication of the first edition of the Critique of Pure Reason, the congress was devoted to the relationship between Kant and Hegel. These two thinkers, in whose shadow or on whose shoulders so much of philosophy after them stands, represent two different styles of justification. With the brevity required of a conference presentation, Habermas discussed both Kantian transcendental thinking and Hegelian dialectical thinking. Habermas answered the Congress’s central question, Kant or Hegel? with “neither-nor.” Kant, in his transcendental deduction of the categories, had laid claim to a kind of justification, or rational grounding, that granted to philosophy the role of assigning to the sciences their appropriate place. But this Kantian ambition is, according to Habermas, just as exaggerated as that of Hegel’s speculative dialectic, and for this reason philosophy since Kant and Hegel has ever more contented itself with more modest functions, eventually reaching the point of wanting entirely to liquidate its pretensions to being a rational enterprise. This last stage takes a therapeutic form in Wittgenstein, a heroic form in Georges Bataille and Heidegger, and a soterial form, examples of which are found in the significant interpretive accomplishments of a hermeneutically accented neo-Aristotelianism. Habermas recounts the unfolding of recent philosophy with a concision that captivates at first glance but appears somewhat oversimplified upon closer inspection. Post-Hegelian philosophy should not be read as a linear development of increasing modesty alone. Through Husserl’s phenomenology and Heidegger’s analyses of Dasein, through the philosophy of science and analytic philosophy, and not least through those thinkers in whose tradition Habermas stands, Horkheimer and Adorno—through these and other figures, philosophy has in fact gained a new importance over the relevant time span. In spite of these objections, though, one can by and large agree with the nub of Habermas’s account. To a point, Habermas follows Rorty, though the two part company when the question is whether philosophy has played itself out entirely. Although Habermas agrees with Rorty that philosophy cannot fulfill the role contemplated for it by Kant and Hegel, he is not willing to follow him in abandoning the role of a “guardian of rationality.” In opposition to this abandonment and to the present tendency to take leave of the subject, Habermas grants to philosophy two important, albeit vestigial, functions. No longer serving to lay an ultimate foundation for science and culture, philosophy on this conception contents itself with the roles of an interpreter and a stand-in that can perform useful work on behalf of “empirical theories with strongly universalistic ambitions” (Habermas 1990b, 15).

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A stand-in performs a temporary service; he stands in for another, the real performer upon the appearance of whom the duties of the stand-in come to an end. According to Habermas, philosophy prepares the way for pathbreaking theorists, who “insert a genuinely philosophical idea like a detonator into a particular context of research” (1990b, 15). As examples, he offers Freud and psychoanalysis, Max Weber and the rationalization of the modern world, and Jean Piaget and the theory of cognitive development. The comparison to a stand-in, however, both underdetermines and undervalues the function of philosophy. On the one hand, a scientist of genius can find that new research perspectives are opened up by religious, artistic, or political ideas as well as philosophical ones. So the role of a forerunner does not define philosophy in particular. On the other hand, as Habermas himself allows, philosophy clarifies the rational foundations of knowledge, action, and speech. This task, specific to philosophy, is more ambitious than that appropriate for a stand-in. It cannot, indeed, be carried out in isolation, but demands rather that there be cooperation between philosophy and not only the human sciences but also, as Habermas does not mention, the natural sciences and nonscientific areas of culture. In this multilateral cooperation, however, philosophy is a full and equal partner. The notion of reciprocal cooperation among philosophy, the sciences, and other cultural domains is not only truer to the particular nature of philosophy and its relations to its respective partners, it is better suited to promote successful collaboration. And it is better suited to Habermas’s own guiding intention of formulating a critical theory of society. Finally, the notion corresponds to what Habermas actually does in the two most extensive pieces in Moral Consciousness and Communicative Action, the first essay of which articulates the new modesty. Habermas understands himself as a “pathbreaking theorist” who introduces a philosophical idea, that of communicative reason, into the discussion surrounding Lawrence Kohlberg’s psychological theory of moral development. With respect to the concept of reason, Habermas claims for himself the office of a judge: he rejects ethical skepticism and argues for an ultimate moral principle. And when he discusses Kohlberg’s work, he does so as an equal partner, able to use discourse ethics to clarify the theoretical core of Kohlberg’s developmental schema and to make well-grounded suggestions for improvement. The relationship of philosophy to great theorists in other disciplines yields a still more exalted assessment of the former subject. For if, as Habermas supposes, the great empirical theorists find their way prepared for them by philosophy, then it is the philosophers who deserve credit for the “pathbreaking” that Habermas ascribes to the empirical theorists alone. In all, we find a three-level relationship: the great philosophers “blaze a trail”; the great empirical theorists work it up into

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a concept of empirical science; and the normal scientists turn it into a well-paved thoroughfare. Since this image, like Habermas’s, oversimplifies matters even as it displays them more vividly, one’s preference for one or the other is not that important. A more appropriate medium for the task at hand is that of philosophy itself, the medium of concepts, not images. And here we must agree entirely with Habermas: philosophy clarifies the rational foundations of the various regions of human culture. Just this, though, is, more or less, Kant’s view. It is not at all clear that what Habermas portrays as a heroic renunciation, philosophy’s retreat from the aspiration to hegemony vis à vis the rest of science and culture, is even necessary for Kant. Habermas’s image of a placeholder varies the old image of philosophy as an ancilla, a handmaid. Once, philosophy was the handmaid of theology; now it is supposed to serve the special sciences. In neither case has philosophy laid claim to a hegemony that needs now, finally, to be renounced. The Critique of Pure Reason, after all, takes the long-established scientific character of mathematics and natural science as a given, in virtue of which these enterprises can serve as a model for philosophy. To the degree to which the first Critique “grounds” or “justifies” the special sciences, it investigates only the question whether—and, if so, why—the sciences are justified in sustaining a certain selfunderstanding, one according to which they achieve rigorous objective validity. Since, from a Kantian perspective at least, there is no need for philosophy to renounce a hegemony to which it never aspired, it can instead raise the more precise question whether it must trail behind the special sciences, today’s occupant of the hegemonic role, or rather carry the torch in front of them. Does philosophy merely hold a place open for a future occupant, or does it, by opening new theoretical perspectives, accomplish the essential preparatory work, without which certain new orientations in science and scholarship would be inexplicable. In the beginning of his discourse ethics, Habermas clarifies the phenomenon: the object of ethics, he says, is the validity of norms. Next, he shows that a philosophy that takes itself to be a “guardian of rationality” has something to say on this subject: it has something to say because practical questions are susceptible to true and false answers, albeit in not the same way as are theoretical questions. Third, he proposes an ultimate criterion for moral norms, a moral principle that, in the Kantian tradition, takes the form of a universalizability requirement. He takes this principle to be a rule governing moral argumentation and discussion, not a veiled principle of participation. In a fourth step, Habermas supports the principle of universalizability with a cautious formulation of Apel’s transcendental pragmatic justification. This argument varies Descartes’s classic “I doubt, therefore I think, therefore I am.” In its first part, it claims that anyone who disputes the principle of universalizability is thereby engaged in argumentation,

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which means that argumentation is unavoidable, and in the second part it claims that the principle of universalizability is always already presupposed by any argumentation whatsoever. In consequence, Habermas does more than merely propose a moral principle; he seeks to justify it as unavoidable and without alternative. So this program of philosophical ethics turns out to involve anything but a farewell to classical, and in particular transcendental, justificatory ambitions. What Habermas in fact does is rehabilitate the aim of transcendental justification, manifesting thereby once more the imprint of Immanuel Kant. In a fifth step, discourse ethics is boiled down to the “thin principle” that “only those norms can claim to be valid that meet (or could meet) with the approval of all affected in their capacity as participants in a practical discourse” (Habermas 1990b, 66). Habermas concludes “with a few brief remarks [on] Hegel’s critique of Kantian morality, in order to provide a simple interpretation of the primacy of ethical life (Sittlichkeit) over morality” (44). As a whole, Habermas’s sketch of a philosophical ethics is pedagogically and philosophically impressive. Still, there is a crucial objection, even apart from the contradiction embodied in the rejuvenation of an aspiration to fundamental justification, the contradiction between Habermas’s program, according to which philosophy is merely a stand-in, and his practice, according to which it is a judge. The objection can be expressed by means of the question, Is the ethics on offer here really a discourse ethics? Habermas would reply in the affirmative on the basis of his “thin principle,” according to which norms are moral only if they are agreed to by all to whom they pertain. But the only norms that could be agreed to by all interested parties are those that are strictly universalizable. So the criterion of the moral lies not in discourse but in the rule of argumentation that Habermas himself recognizes as a moral principle, albeit only in the sense of a bridge principle: the principle, namely, of universalizability. The logic of the legitimating argument shows the priority of universalizability over discourse, a priority that is, once again, Kantian in character. Habermas’s frequent references to the principle of universalizability as a “consensus-enabling bridge principle” bring him close to this insight, since, if universalizability makes consensus possible, it has primacy over any actual agreement. But universalizability, as the condition that makes possible agreement by all, is not a bridge that leads to something else, the real principle; it is rather the pillar on which the whole of morality rests. For all the use Habermas makes of concepts and logical structures derived from recent work in English- and German-speaking philosophy, his ethics is ultimately a rehabilitation of Kant’s ethics. Although Habermas in essence reconstructs Kant, he is in one respect more modest than his “mentor.” According to Kant, the categorical imperative is able to certify as moral certain rules of conduct, “maxims” as he calls them—for example,

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rules enjoining honesty, the provision of help to those in need, or the securing of the elementary conditions of effective agency—and disqualify as immoral certain others, such as those permitting cheating, indifference to urgent need, or disdain for the lives of others. Habermas’s discourse-theoretical turn entails that only an actual discussion can identify particular norms as ethical or not. But not only is the alleged formalism of Kant’s theory thereby magnified, but the whole idea is counterproductive for discourse ethics itself. If discourse is to be capable of functioning as the arena in which moral norms are examined and assessed, then the participants in such a discussion cannot be permitted to lie to each other, trick each other, or kill each other. Discourse, therefore, presupposes the recognition of just such principles as these, which can be established as morally required with the help of Kant’s categorical imperative and which, as principles that are not merely meritorious, have the status of kategorische Rechtsprinzipien, categorical principles of law and right conduct. And if one’s principle of morality is not able to justify such elementary political principles as those embodied in human rights, a critical theory of society would also be made impossible. Apel, to whom Habermas dedicates his volume “with thanks for three decades of instruction,” is open to the idea of explications of moral norms that are independent of actual discourses, and seems in this respect closer both to Kant and the truth.

13.3. Prejudices of Discourse: A Reply The fundamental thesis of discourse ethics—that social matters are not external to ethics, that in fact the whole moral world is ultimately to be conceived as nothing other than claims to reciprocity that have their origin in the communicative community of rational beings—is developed with diverse arguments and from ever new perspectives. It is especially provocative—and quite reasonably contested— in the area of personal morality, that is, with regard to the very concept and criterion, and not merely the formation, of a moral character, to questions and decisions of personal conscience, and, if they exist, to obligations people have to themselves. Discourse ethics faces fewer difficulties, but also offers less provocative claims, where the object of morality is already social in nature, in an ethics of law and the state. The differences between discourse ethics and other, competing positions are as a rule rather subtle. At first glance, a condition such as “the permission of each to articulate his needs” appears to belong to discourse ethics, but in fact even utilitarianism fulfills it. For the condition can be interpreted as a procedure opened up by the demand that the needs and interests of all concerned be given equal

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consideration. Those who aim to satisfy the utilitarian principle of achieving the greatest possible collective well-being will begin with an opening move that is thoroughly democratic in character, and this opening move is as good as identical in any and all ethical views. Like that of Rawls in A Theory of Justice and that of discourse ethics, my own position, articulated in Political Justice, distinguishes itself from utilitarianism only in the further continuation of the procedure noted above. All three of these positions belong to those universalistic ethics whose “progenitor” is Kant, not Bentham. As it did apropos Rawls and Apel, the detailed discussion bears, accordingly, the marks of a family quarrel. Controversy begins with the very description of the respective positions. In a review article published in 1989, Habermas represents the project of Political Justice with sympathetic understanding, leavened by candid skepticism. Habermas’s interpretation of Political Justice as “utilitarian” can be left to one side, since its definition of “justice as distributive advantage” (PJ 37) is developed out of a critique of utilitarianism (PJ 39–40). Habermas’s more important worry amounts to the charge of insufficient attention to intersubjectivity. He criticizes the individualistic presuppositions of Political Justice (Habermas 1989, 325), complains of a “deficiency of democratic theory” (327), misses the perspective of a hierarchically layered intersubjectivity (322), and takes it to be a virtue of his own discourse-ethical position that it does not prejudice the yes/no statements of those participating in the discourse. Because no well-developed ethics of the law and the state had yet been developed from a discourse-ethical perspective, Political Justice dealt with Apel and Habermas mainly in passing. The book does, however, deal explicitly with the discourse-ethical principle of the capacity to elicit universal consensus (PJ 46), and it also, in the context of “strategies of political justice” (300 ff.), calls for “moralpolitical discourses” (315 ff.). From Habermas’s critique, I take away, among other things, a request to determine more precisely the relationship between my views and those of discourse ethics. I will suggest in response an understanding of the situation that diverges somewhat from Habermas’s. In the first place, Political Justice does contain a hierarchically layered intersubjectivity, albeit one developed in a manner alien both to traditional and to speech-pragmatic theories. This new strategy of legitimation—intersubjectivity as transcendental exchange—is, second, motivated by considerations specific to an ethics of law and the state. It also sheds a different light on the individualistic presuppositions of the view that understands these presuppositions not in a substantial but only in a legitimationtheoretical way. The principles of justice legitimated by the theory of transcendental exchange have, finally, for juridical-practical discourse the status of prejudices.

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1. Intersubjectivity as Transcendental Exchange Intersubjectivity in general is as intuitively plausible as it is difficult to cash out argumentatively, especially insofar as it pertains specifically to law and right. Discourse ethics itself confirms the difficulty through an open question. When Habermas insists that “a contested practice is valid only when it can be agreed to by all those affected themselves” (Habermas 1989, 322), he articulates a criterion common to the whole family of Kantian ethical theories. Kant himself speaks of the “the privilege to lend obedience to no external laws except those to which I could have given consent” (PP VIII:350/93). Unanimity is part and parcel of Rawls’s metacriterion of justice (TJ 105-9), and, as noted above, Political Justice appeals to the criterion of capacity to elicit universal consensus and agreement (PJ 85). The individual family members of the Kantian fold do not distinguish themselves one from another until the question is posed, What form of argumentation is capable of resolving disputes over the validity of practices? At first glance, discourse ethics appears to evade the question, but the truth is that it believes itself capable of reformulating it. Instead of identifying particular arguments, discourse ethics states the conditions that must be fulfilled by the mere argumentation situation. In particular, these conditions require that “all participants take up the perspective of each of the others” (Habermas 1989, 322). This demand, borrowed from G. H. Mead, transforms the multiplicity of perspectives from one external to the individual participants in the discourse to one that is internal to each. A social “public discourse” is, surprisingly enough, turned into an inner “personal discourse.” But does a dialogue that each engages in with himself count as monological, or private, or as communicative, as an anticipation of a social dialogue. I conjecture, in any case, that the inner dialogue is supposed to unearth suggestions for resolving disputes about practices, on the basis of which a social dialogue would, in a second phase, deliver a consensus decision. But if the suggestions for resolution are the same for each party to an inner dialogue, the genuinely social dialogue would become nothing more than an acclamation of the inner one. This suggested reconstruction conveys a doubt about the self-understanding of discourse ethics. According to Habermas, the ideal-hypothetical adoption of roles, which can in principle be accomplished on one’s own, is to be transformed into a public institution. It is more convincing, though, to understand the public discourse neither as a transformation nor a substitute, but as an addition. Personal and social dialogue supplement each other reciprocally. We need not choose between them as between dichotomous alternatives. In the interplay between these two dialogues, the inner one seems, moreover, to bear the greater weight, since the social dialogue is perhaps left with the function only of confirmation. This

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evaluation of the relative importance of the two forms of dialogue is, however, not essential to the argument from the open question. For the point of that argument is to note that both sides or phases of Habermas’s process, the social and the personal, leave ineluctably open the question of what kind of argument has the power to resolve the relevant disputes and the competence to decide the relevant issues. At issue in the case of the object of discourse in question, contested practices, is, in the end, needs and interests. Political Justice tries to resolve one part of the dispute by discovering, in a first legitimating step, needs or interests that meet a singular condition: that of being particular and yet universally valid. The only needs that can fulfill the condition are higher-level needs; strictly speaking it is only those highest-level needs that constitute the condition of the possibility of lower-level needs and thus are indispensable for their fulfillment. In relation to human interests and capacities for action, they are transcendental interests, and they are essential elements in the constitution of a practical subject. Transcendental interests, though, do not on their own justify society’s declaring itself accountable and intervening juridically in the lives of its citizens, which intervention is always accompanied by the authorization to use force. In order validly to claim that they are capable of supporting a conflict-resolving argument in a fundamental discourse about the law, these interests must meet an additional condition that would be welcome to proponents of discourse ethics. Thus, in a second legitimating step, it is affirmed that these interests are distinguished by their inherently social character. The transcendental interests that bear on juridical-practical discourse are those that can be realized only in and from reciprocity. The model of a reciprocal giving and taking is an exchange, for which reason the immanent mutuality based on transcendental interests can for short be called a “transcendental exchange.” It should go without saying that a number of associations conjured up by the notion of an exchange in the ordinary world must be overcome.An exchange at the transcendental level must not be understood too narrowly, as merely an economic process, nor too narrow-mindedly, as a process involving the trading of equivalents for equivalents, nor too shortsightedly, as exclusively an immediate giving and taking. Indeed, to regard the concept of a transcendental exchange from the point of view of the history of its development is to discover affinities with what Hegel calls the “education of consciousness.” In his most fundamental self-interest, man discovers his dependence on the interests of others. That which other language games call “reciprocity” or “exchange,” Habermas calls “intersubjectivity.” At issue with respect to the object of a transcendental exchange, transcendental interests, is the constitution of practical subjectivity. In the language of discourse ethics, therefore, transcendental exchange amounts to nothing other than this: the constitution of practical subjectivity is, exclusively or

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essentially, tied to a transcendental reciprocity, a transcendental intersubjectivity. Because of this, I do not, as Habermas makes it sound, hold “natural justice” to be “the neutral business of a third person” (Habermas 1989, 322). Transcendental exchange fulfills Habermas’s intersubjectivity condition; it requires a first-person-plural perspective. Habermas fears that my view encourages the disappearance of the enabling conditions of justice behind its constraining conditions (1989, 325), but the truth is that what in Political Justice are developed under the slogan “natural justice” (PJ 248) are, if only by way of example, the fundamental enabling conditions. These are the conditions that can only be realized in social form, and so, in agreement with Habermas, subjects are “from the first socially constituted” (Habermas 1989, 325). Social-enforcement mechanisms take on the task of providing security in order to prevent the intersubjective constitution of the practical subject from being rendered either impossible or overly threatened. Social enforcement is justified because and only because this security benefits everyone, and indeed relates to interests that are indispensable to the constitution of the practical subject as such. We might here have a difference between Habermas and me that pertains not only to the kind of argumentation employed but to the conclusions reached. For Habermas, subjects “have already constituted themselves socially [before] socialenforcement mechanisms recoil upon them” (Habermas 1989, 325). According to Political Justice, by contrast, social-enforcement mechanisms neither precede nor follow the transcendental exchange; one simply buys the advantage of socialization and its enablement of practical subjects at the price of constraining conditions. In this price, I find an argument against a radical anarchism. As far as the more detailed determination of the constraining conditions is concerned, the “State of justice”2 (PJ 281 ff.), I believe neither that it makes the “political system” into “the center of the consciousness of society as a whole and the self-programming agent of justice,” nor that it is the prisoner of the naturallaw model of the whole and its parts (Habermas 1989, 327). The merely secondary and subsidiary legitimation of the state undertaken in Political Justice is in fact a plea for greater modesty on its part. I hold in any case that the so-called disenchantment of the state, the functional differentiation that renders the political system a subsystem alongside other, relatively autonomous systems of justice, is not an invention of our epoch. Differentiation among subsystems might be more pronounced today than it was earlier, but a recognition of the independent importance of, for example, the economy is much older. Aristotle, moreover, had 2. The uppercase initial letter in “State” is meant to indicate that what is intended here is the state in the sense of a political institution, not in the sense of a general condition, as in a “state of affairs.” In Political Justice itself, Cohen translated this phrase as “just state.”

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already, under the title of the theoretical life, claimed for philosophy and science an independence from the life of the polis; in fact he argued for a priority of the former over the latter. The presence in the legendary Hippocratic oath of a preponderance of professional regulations in addition to moral principles licenses here as well an inference to the existence of a self-conscious independence. In short, the historical dimension, examined in sufficient depth, calls into question the self-overestimation and dramatization of the present (see 3.1 above). Neither, finally, should we, under the spell of the disenchantment thesis, underestimate either the functions of the state that it continues to exercise or the diversity of new tasks that it faces. The means by which governments exercise power might indeed change over time, and the state today perhaps makes much less use of direct, executive force, but state legislation today still sets important framework conditions for the various relatively autonomous subsystems, such as the spheres of economic life, labor, the family, education, and scientific and scholarly research. 2. On Legitimation-Theoretical Individualism Since the legitimation of the state offered in Political Justice is oriented to the advantage of each and everyone, it can certainly qualify as “individualistic” (Habermas 1989, 325). In the first instance, though, what is individualistic is only the legitimation perspective, and this, at least within the framework of the ethics of law and the state here under discussion, counts in its favor. Because the force of law affects each member of the group, a collective advantage is not sufficient for its legitimation. In order to avoid countenancing what utilitarianism in principle countenances, fundamental privileges together with complementary discrimination, the advantages conferred by the presence of law must redound not to all collectively but to each distributively. Discourse ethics too, for good reason, grants the value of this distinction. For when it demands the agreement of all affected, it naturally understands the expression “all” (or, alternatively, “universal”) in a distributive, not a collective, sense. Consequently, in order to answer the open question of which kind of argumentation deserves the endorsement of each and everyone, discourse ethics also must identify some kind of advantage for each affected party. Habermas finds in Political Justice a deficiency with respect to democratic theory (Habermas 1989, 327). On the contrary, the legitimation-theoretical individualism corresponds to the distributively universal consensus and therefore amounts to something fundamentally democratic: juridico-political relations can in the end be legitimated only by the agreement of all concerned.

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One could, as long as one was considering legitimation only up to but not including transcendental interests, regard the individualism of Political Justice as substantial as well as legitimation-theoretical (Habermas 1989, 327). Transcendental interests, however, are shown to have an immanent reciprocity, which means that the legitimation-theoretical individualism is genuinely open with respect to discussion of intersubjectivity. If one were so inclined, one could put the liberal intellectual mold of legitimation-theoretical individualism to use in justifying a nonliberal (or, at any rate, not simply liberal) theory of the state. The concept of a transcendental exchange not only takes my view beyond a “possessive individualism” (Habermas 1989, 325), it also takes it beyond Kant as a “source of inspiration” (327). According to Kant, law makes possible subjects able to act in a field of social conflict; according to Political Justice, the fundamental layer of law consists of those conditions of practical subjectivity that are in themselves intersubjective. Political Justice’s move beyond Kant includes also its openness, in spite of fundamental objections from Kant himself, to the tasks of the social-welfare state. Matters are otherwise as far as Kant’s concept of a categorical imperative of law and right is concerned. In my view, this basic concept defines the fundamental task of any ethics of law and right, and for this reason Political Justice avails itself of it (PJ 40–43). 3. Transcendental Exchange as Prejudice Transcendental exchange designates the minimal conditions of legitimate law. The principles developed (albeit only in a preliminary manner) under he heading “natural justice” do amount to prejudices in the sense that they are decisions already made vis à vis any particular legal order. The catalogue of rules that Habermas, following Robert Alexy, draws up for discourse ethics has, it should be noted, the same legitimation-theoretical significance. The logical-semantic and the procedure- and process-related rules involved are presuppositions, which, while they can be made the theme of a discussion, are not open to discussion in the sense of being optional features of discourse. In contradistinction to what he finds in Political Justice, Habermas calls for real-life argumentation relevant to actual conditions. But for discourse-ethics itself, this demand is of diminished importance with respect to the self-reflection needed to establish the presuppositions of argumentation as such, and the same applies to the explication of both transcendental and social interests. The demand for the sort of argumentation called for by Habermas is, to be sure, entirely legitimate; and at the present time, for example, non-Western cultures have the right to secure for themselves those principles of justice whose recognition is necessary for the moral legitimation of a juridical order. Structurally speaking, though, this

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real-life argumentation is simply a repetition of the legitimation strategy that responds to the open question of which kind of argumentation deserves the endorsement of each and everyone. Two fundamentally different levels are to be distinguished within juridicopractical discourse. At the first, fundamental level, elementary, minimal conditions of a legitimation of law and the state are designated. As transcendental interests that are at the same time social interests, these are preconditions for the process of mutual agreement and unification among subjects capable of speech and action. They are no longer dependent upon any actual agreement, and therein lies a second element of democratic theory in Political Justice. The principles arrived at in accordance with the first element, democracy qua fundamental principle of legitimation, are formulated as inalienable preconditions or prejudices of a second element of the theory, democracy qua constitutional principle. These second-tier principles have the same significance for the juridicopractical discourse. Here, another group of prejudices is added to the presuppositions arrived at by Habermas (1990b, chap. 3) via an argumentation-theoretical route, with the result that discussion whether to acknowledge the transcendentalcum-social interests of natural justice is no longer a morally live option. Habermas’s discourse ethics has not, as yet, pronounced upon the nature and status of the form of existence appropriate to the acknowledgment of such interests. Because they are indispensable for the constitution of practical subjects, which subjects nevertheless themselves pose a threat to their recognition, these transcendentalsocial interests deserve the protection of a juridical order capable of enforcing its dictates. In order to identify certain presuppositions as indispensable, discourse ethics argues by appeal to the notion of a pragmatic contradiction, understanding by that the sort of incoherence that results from arguing against presuppositions that are in fact required by one’s own argumentation. Now, although one can certainly interpret the role of the prejudices just discussed in terms of an argument from pragmatic self-contradiction, the contradiction exposed must be located at a deeper level than that to which discourse ethics assigns it. It is not just those who argue who presuppose the prejudices in question, and it is not simply in virtue of argumentation that they are presupposed. The prejudices are both more elementary than those discussed by discourse-ethics and also specific to ethics; they are conditions of the possibility not merely of argumentation but of the practical subject as such, of the capacity to act at all. Certainly, for human beings as linguistically competent creatures, the conditions of argumentation are at the same time conditions of the capacity to act. On the one hand, though, the conditions of practical subjectivity as such include more than the conditions of argumentation, and on the other, as far as practical, rather than theoretical, subjectivity is concerned, it is

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not argumentation as such but its significance for the capacity to act that is relevant, Turning now to the second of the two levels of discourse distinguished above, the level of real-life processes of understanding and unification, matters are quite different. The task that Habermas finds missing in Political Justice is, appropriately enough for a foundational study, only handled prospectively. Habermas’s questions—(1) “how, under changing historical challenges, does one manage to distinguish specific fundamental rights?” and (2) by what procedure “can one satisfy a concrete need for regulation in a way that [grants to the corresponding] laws the presumption of legitimacy?” (Habermas 1989, 326)—are answered with “Strategies of Political Justice” (PJ 300 ff.). Indispensable for these strategies are those “moral-political discourses” (PJ 315 ff.) that consist of real processes of mutual understanding and unification operating against the background of the elementary principles of justice. In Political Justice, these processes represent a third aspect of democratic theory.

13.4. Between Facts and Norms Between Facts and Norms builds on Habermas’s familiar fundamental concepts of communicative action and discourse. Despite this continuity, the book introduces as well a noteworthy change of orientation. From the point of view of firstgeneration critical theory, the work marks a decisive break, and from Habermas’s own point of view, it amounts at least to a shift of accent. Heretofore, critical theory had concerned itself with social theory and the philosophy of history, with the critique of knowledge, science, and technology, as well as with literature and music. Law and the state do not figure prominently on the roster of themes, and when they do receive attention, it is in the disfigured shape of the authoritarian state (Horkheimer 1942), not in the basically successful form of constitutional democracy. It is symptomatic of this neglect that Franz Neumann’s study The Governance of the Rule of Law (1936, rev. 1980) Has no place in the mainstream of critical theory, and this neglect is not remedied in Between Facts and Norms, which does not mention Neumann’s book, although it is one of the few works published that contributes significantly to a theory of juridically organized Herrschaft. Once one pays attention to the Marxist roots of critical theory, one finds understandable its deficiency with respect to the theory of law and the state; but the deficiency is nonetheless astonishing, since a theory of modernity must surely make theoretical room for the form of social self-organization that has conclu-

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sively established itself in the modern age, the form embodied in law and the state. Today, a social theory must also make clear why, in spite of Marx’s prognosis, the state has not turned out to have been condemned to wither away but on the contrary enjoys an overwhelming consensus in its favor. Both goals are achieved when socialization in the form of the juridical state combines with the moralpolitical aspirations of modernity, thus bringing forth the democratic constitutional state. Even if the precise tasks of such a state are still disputed, there is virtually uncontroversial unanimity with regard to such basic elements as the rule of law, the protection of liberty rights, democracy and the division of powers, and, within limits, the social-welfare state and responsibility for the environment. Astonishment at the older critical theory’s deficient treatment of the theory of law and the state is provoked as well by reflection on the backgrounds of its chief architects. Adorno, Horkheimer, and Marcuse had to flee a state that violated its most elementary responsibilities with regard to the rule of rightful law. They obtained right of abode in a society that on the one hand exhibited very clearly the pathologies they had diagnosed, a capitalist economy and a flagrant inequality of opportunity, but on the other hand guaranteed something that, had it been granted in Germany, would have made exile unnecessary: life, limb, and the right to cultural individuality. With Between Facts and Norms, this thematic deficiency has been conclusively overcome. A theme that, though absent from the Legitimation Crisis (1973/1975),3 had already begun to appear in the earlier Structural Transformation of the Public Sphere (1962/1991) and that was more clearly present in The Theory of Communicative Action has now become a guiding thread. With the help of discourse theory, Habermas reconstructs the normative content of the freedom-fostering institutions of states under the democratic rule of law (BFN xl). Habermas appeals to a theory-historical line of development in his attempt to explain how a theory that understood itself as part of the intellectual avant-garde could neglect this topic. Beginning with the “society-as-nature doctrine of the Scottish moral philosophers” Adam Fergusen and John Millar, and progressing through Adam Smith’s articulation of political economy and up to Marx’s critique of political economy, so the story goes, the role of the law within social theory diminished apace. At the end of this process of “the disenchantment of the law by means of social science” (and I note that Neumann, in part 2 of the work cited above, had already employed a similarly Weberian turn of phrase), the erstwhile 3. The first date indicates the year of the original publication in German, the second the year of the English translation found in the bibliography.

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key category of social analysis had sunk to the level of an epiphenomenon of anonymous nomological forces (BFN 2.1). This development did indeed take place, but its causes need to be explored in more precise detail. For in part, as in the case of Adam Smith, we are talking only about a thematic differentiation and specialization; and there is moreover in the basic concept of Scottish moral philosophy, that of “moral sentiment,” the suggestion of a shift in emphasis from the institutional to the personal realm. Above all else, though, it remains true that the disenchantment, the scholarlyphilosophical emasculation of law and the state, did not go uncontradicted. Hegel, while he is prompted by the insights of political economy to modify Kant’s doctrine of law and right, sees no reason to give up on the philosophy of law and the state as such. For his part, Marx’s contemporary John Stuart Mill finds nothing standing in the way of developing ideas both about political economy and about law and the state. Last but not least, we find that the thinkers appealed to by Habermas, namely Durkheim, Max Weber, and Talcott Parsons, combine their social-scientific outlook with an openness to the achievements of law and the state. Traditional critical theory’s deficiency with respect to the theory of law and the state has causes other than those proffered by Habermas. Pre-Habermasian critical theory lacked the appreciation of the democratic constitutional state from which could have emerged what Durkheim had already undertaken to provide at the turn of the twentieth century, a social theory of democracy. Two elements are necessary for such a theory, and traditional critical theory closes itself off from both of them. The elements in question are connected in that the one, pertaining to the fundamental concepts of a social theory, leaves its mark on the other, the sort of knowledge sought by the theory. On the one hand, a neither exclusively nor primarily negative concept of social Herrschaft is required. Since Herrschaft pertains to any sort of government by law and the state at all and not just to predemocratic communities, a concept that entails a negative view of Herrschaft as such must inevitably lead to a socialtheoretical ideal of freedom from Herrschaft as such, and that leaves no room for the political ideal approached by constitutional democracy. Where there is no neutral concept of Herrschaft, a genuinely political utopia of just rule is necessarily, on internal grounds, displaced by the unpolitical utopia of anarchy, the literal meaning of which is simply freedom from Herrschaft. If the hunch that constitutional democracy approaches the ideal of just rule is true, then, to turn to the second element noted above, the theory of this form of state will, vis à vis traditional critical theory, exhibit an expanded (and even new) sense of the sort of knowledge sought. The theory of constitutional democracy will require a greater

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degree of affirmation of what actually exists than is conceded by a critique interested chiefly in the emancipation still to be realized. Habermas now frees critical theory from the earlier fixation with a primarily negative concept of Herrschaft and a primarily negative critique of society. But before developing his own position, he takes up a second line of development, the “return of natural law [Vernunftrecht] and the impotence of ought” (BFN 2.2). What Habermas has in mind here is John Rawls’s theory of justice together with the international discussion it has provoked. Habermas’s view that this development manifests a “surprising reaction [to the] sociological undermining of the normativism of modern natural-law theories” (BFN 56) allows him to craft a dramatic presentation reminiscent of Hegel’s dialectic. He composes his work as a synthesis that eliminates the weaknesses of two theory-historical developments while joining their strengths. From the one line of development, Habermas wants to take over the social scientific appreciation of the institutional dimension, albeit without an emasculation of the concept of what is right and lawful. From the other line of development, he picks up the acknowledgment of the standpoint of morality—or, more precisely, of justice—but without a deficiency with respect to the institutional dimension. From the unity of these two viewpoints comes the dual perspective announced by the work’s title. Following Max Weber and Talcott Parsons, Habermas develops a theoretical possibility according to which one can both “take the legal system seriously by internally reconstructing its normative content, and describe it externally as a component of social reality” (BFN 43 [the task is carried out in 2.2]). The “Facts” part of the title, then, refers to the law qua component of social reality, and the “Norms” part to the expectation of legitimacy. In the first case, regarding the establishment and enforcement of law, the philosopher adopts the stance of an observer; in the second case, with respect to the law’s normative content, he acts as a participant in the juridico-political order. As the argument unfolds, however, it becomes apparent that Habermas intends more than this. The space “between” facts and norms is a place of tension that manifests itself in three dimensions: in the dimension of juridical validity, it is the tension between the positivity and the legitimacy of law; within the system of rights, it is the tension between private and public autonomy; and with respect, finally, to political Herrschaft, it expresses itself as the tension between “a threat of sanctions backed by instruments of force held in reserve [and the fact that] this force is authorized by legitimate law” (BFN 136). Habermas’s diagnosis of a threefold tension can be fully endorsed, but matters are not so clear with respect to the reconstruction of the history of social theory that serves as the springboard to his own theoretical project. However much, as a

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philosopher, one values dramatic presentation in Hegelian style, one must, in the current case, remain skeptical about the view that the dual perspective under discussion is generated by deficiencies in each of the theory traditions noted above. In fact, it is other theoretical projects that are pursued in those traditions. Kant, for example, never doubts that the law can be described as a component of social reality, but neither is he interested in that fact. Perhaps Habermas would retort that Kant has to be interested in this, since “without the view of law as an empirical action system, philosophical concepts [of law and justice] remain empty” (BFN 66). But, referring as they do to something that is at the same time empirical and yet more fundamental than anything envisaged by Habermas, namely, to the anthropologically relevant fact that numerous agents with the capacity to act share with each other a spatially limited territory, the relevant Kantian concepts are not empty. In addition, Mill’s work shows us that the epistemic interest appropriate to political economy and social science is fully compatible with a theory of law and the state, whereas Rawls’s extraordinary impact is owed, not to the overcoming of a prior deficiency with respect to the normative theory of law as such, but rather to three other factors. 1. If the overcoming of a deficiency in normative theory were decisive for Rawls, he would have to provide a critique of legal positivism, whereas he instead criticizes another normative position, utilitarianism, arguing that it is normatively inadequate. 2. If Rawls’s theory were marked by an impoverishment with respect to economic and social scientific perspectives, its interdisciplinary significance in just these areas would be scarcely understandable. In fact, the theory can be discussed with particular intensity in economics and related sciences because it speaks their language, that of decision theory and game theory. Moreover, the claims about primary social goods offer at the very least a promising point of departure for an empirically rich social theory. And even in the case of Kant, it is not true that an attention to Vernunftrecht4 blocks the social scientific dimension from view. Kant refrains from asserting an “either-or” and holds instead that both perspectives, that of reason and that of the empirical realm, are equally justified. Competition arises only when the partisans of one of the perspectives overrates it and tries, for example, using empirical concepts to discern the rational ambitions of the law or, using concepts of rea4. Translated “natural law” by William Rehg, it would be rendered by me as “reason-based law and right.”

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son alone, to understand the social function and historical organization of the law. Kant does neither; he commits no naturalistic fallacy of inferring an ought from an is, and no normativistic fallacy of inferring an is from an ought. 3. Not least of the reasons for the attention paid to Rawls’s work is the fact that within American debates about the state, he opposes a constricting liberalism and argues instead for the social-welfare state. Skepticism about Habermas’s reconstruction of the history of the relevant theory is also called for when he rehearses the charge, familiar since Hegel, that a reason-based conception of law and right falls victim to “the impotence of ought.” Kant’s Doctrine of Right deals precisely with the power of ought, both with the authorization to enforce that belongs conceptually to the law as such and with its public protection, which is to say, its enforcement by means of a state. “Oughts,” however, are only entitled to these authorizations for use within a wellbounded domain: that of seeing that people receive what, from the point of view of reason, they are owed. The authorization to enlist force on its side, in other words, obtains only with respect to the realm of reason-based law and does not extend to that of the rationality or morality of meritorious supererogation. According to Habermas, modern law “steps in to fill the functional gaps in social orders whose integrative capacities are overtaxed”; it provides “insurance against the damage wrought by the failure to achieve social integration by other ways and in other places” (BFN 42). Reason-based morality (Vernunftmoral) is responsible for the excessive demands on traditional institutions and the consequent failure of social integration because it contributes to the dilapidation of those organically organized institutions, leaving only the moral subject as such, which is not able on its own to achieve any reliable integration. Two objections to this functional determination raise their heads at once. First of all, Habermas fails to consider where the law operates in premodern contexts. In fact, the phenomena regulated by law prove to have been remarkably constant for a very long time. For over three and a half millennia, written laws (chiseled, for example, into a block of black rock) have regulated most of the areas of life that are so regulated today. In the codex of Hammurabi, we find determinations of marriage and family law, contract law, property law, and even the protection of animals. If we focus on criminal law, we find the now familiar classes of offense—against life and property, against honor and sexuality, against arson and falsification of weights and measures—to be common to virtually all cultures and civilizations. And if we think of prohibitions against the poisoning of wells, we will see that even the idea of an offense against the environment is not entirely new. We can generalize and assert that even if the need for legal regula-

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tion has increased in the modern age and has taken on new tasks, especially in the areas of economic and social law, including labor law, it remains true that in the many areas of life noted above, the law has been active since time immemorial; in civil law as in criminal, and even in constitutional law, there are a host of domains that never cease to be regulated by law. Second, Habermas, as indicated by the concept of an “excessive demand,” thinks that the law insinuates itself in cases marked by the destabilization of once stable social orders. But marriage and family law, and contract and commercial law, are found even in solidly constructed societies with stable marriage and family relations, along with equally stable institutions of exchange; and protection of life and property is not needed only where institutions have become dilapidated. The concept of an “excessive demand” is, however, fitting if it is understood, not as Habermas does, in the context of social history, but rather anthropologically. However it is understood, whether as instinct-binding or as openness to the world or as the capacity for speech (the relevant controversies are here of secondary importance), the human condition exposes individuals to a wealth of options that, as individuals, they are not always able to handle. A tendency to suffer from excessive demands is not something that emerges only with the modern subject; it belongs to man as man. So it is the human condition itself, and not only the problems of organizing and governing complex societies, that prompts the introduction of civil and criminal law. Criticism of reason-based morality is to be countered with the observation that such a morality, far from destabilizing “naturally grown” institutions, can even contribute to their stabilization. It can do this, as it does in the case of Kant’s model example of a morality of law and right, by providing moral legitimation for such fundamental institutions as marriage, the family, property, and the state in general, and beyond this for an international juridical community. As far as the law is concerned, Between Facts and Norms recognizes two sorts of moral resource: social solidarity (7–8, 36–37) and justice. The relationship between these two resources is not made fully clear. According to the book’s preface, the task of “imposing social and ecological constraints on capitalism” (BFN 13) falls to social solidarity. That this task deserves top priority on the agendas of both domestic and international policy is intuitively clear. It is questionable, however, whether the principle of solidarity, the gender-neutral expression for fraternity, is up to the job. It is not just that there is a danger of confusing an intuition with a fully elaborated argument; there is also a conceptual difference blurred by the intuition itself. Something demanded by solidarity might belong to the realm of supererogation, as does the provision of aid with no context of reciprocity, and in that case it is not something for which a public body authorized to

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use force is responsible. Or demands of solidarity might be akin to the provision of aid in the context of a reciprocity that is partially simultaneous and partially delayed and executed in stages over time, and in that case it belongs to the realm of what is owed, and the corresponding tasks are better ascribed to reason-based right or justice. Or perhaps the principle of solidarity falls under a third modality and into the domain of the juridically permitted, which is neither clearly something owed nor clearly something merely supererogatory. Habermas’s choice among these options is not made clear, not even in the essay “Justice and Solidarity.” The task there assigned to solidarity, that of seeing to “the welfare of consociates who are intimately linked in an intersubjectively shared form of life” (Habermas 1990a, 244), is, namely, compatible with each of the three modalities: it could be clearly something owed, clearly something supererogatory, or something belonging to an intermediate realm.

13.5. How Far Does Discourse Theory Take Us? Since his debate with Niklas Luhmann (Habermas and Luhmann 1971, 114 ff.) and his contribution to the festschrift for Walter Schulz (1972), Habermas has understood a discourse as a process of argumentation that assesses claims to truth and validity independently of practical constraints and coercion. While discourse theory is not very convincing as a theory of truth (see Höffe 1979a), it is illuminating as a theory of political legitimation, albeit only given two presuppositions not made by Habermas. Regarding the first of these presuppositions, one cannot, despite Habermas’s talk of a “discursive or deliberative model” (BFN 449), take “discourse” to be simply a matter of reflexive deliberation. Rather, one must introduce in addition a moment of binding that, though it is admittedly a self-binding, is not discursive in nature. A system of authorizations to enforce is legitimate if it results from an agreement on the part of all concerned that is disconnected from present or momentary constraints on action but nevertheless guides future conduct. The task of regarding all of one’s fellow human beings as equally entitled partners in discourse, recognized by philosophy since its beginnings, is evidently more modest than the task of so treating one’s peers in actual life, not to mention the task of so treating them in all circumstances, including those in which one would have to accept disadvantages to oneself. For this reason, the metaphor of a contract (and it is not more than a metaphor) is well suited to capture an agreement to recognize all as equally entitled, which applies not just in the context of discourse but generally. In a contract, agreement is not merely verbal: before the agreement one is

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free, after it one is bound. The linguistic turn does nothing to change this state of affairs, for which reason, pace Habermas (BFN 449), the discourse model cannot replace the contract model, even if it may be able to enrich it. The second presupposition that must be accepted by discourse theory as applied to political legitimation consists in those “prejudices of discourse” discussed above. Reciprocal recognition of fellow citizens as fellow citizens boils down in the end to an acceptance of these prejudices, which in real-life discourse can only be obtained under the presupposition that they are recognized in advance as a condition of its possibility. Although this condition is emphatically granted outside discourse theory, Habermas does not in his recent work on law and the state take up the objection it poses to his view, although the point had been in print for two years before the appearance of Between Facts and Norms. In any case, Between Facts and Norms only allows the principle of discourse a limited scope. Habermas sees juridical form, which is an indispensable element as far as legitimation is concerned, and is from a systematic perspective the primary element, as underivable, since it cannot be “‘justified’ either epistemically or normatively” (BFN 112). This view is rife with consequences. In place of the demand of a reason-based right to abandon naturally evolved coexistence in favor of coexistence in a juridical form, there enters a contingent resolution. The first categorical imperative of law, “Depart from the state of nature,” is thereby, against Habermas’s own aims, replaced by a “decisionistic” element. The elementary level of juridical legitimacy, reason as the definer and legitimation of law and right, is therefore lost, as is an argument for an international juridical community: namely, the argument that nations coexist in a state of nature, which, for good and rational reasons, ought to be overcome. And not least, one loses the chance of supplementing the elementary, law-and-right-defining level of legitimation with a distinct and more ambitious level at which one uses reason to give normative shape to the law. The modernization of law includes an element that jurists such as Kelsen and social scientific theorists of the law such as Luhmann deal with clumsily. A universalistic ethics can avoid such clumsiness and finds in consequence nothing so provocative and fruitful as the establishment of subtle distinctions. That there are elementary or fundamental rights at all is uncontroversial within the family of universal ethical views. The subtle distinctions, as well as a further criticism of Habermas, do not emerge until we ask which rights are fundamental and how fundamental they are. Habermas’s answer to the question of which rights are fundamental turns out to be peculiarly bland. When he discusses rights to liberty and the rights that result from consociation together with the actionability of these rights (BFN 122 ff.), he

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ensures nothing more than the uncontroversial ABCs of the democratic constitutional state. The not so uncontroversial areas of social rights, cultural rights, and, above all, possible ecological rights must be content with a hand-waving gesture (BFN 123) from the book’s final chapter, entitled “Paradigms of Law,” in which Habermas deals with the dysfunctional side effects of the social-welfare state but does not make any progress with the justification of fundamental rights. To the second question, how fundamental the fundamental rights are, Habermas gives a modest answer. Though he does deal with human rights as well, what he sets out to justify are not these but rather basic rights, which aspire to a lesser degree of fundamentality. Understood as “the rights citizens must confer on each other if they want to legitimately regulate their interactions and life-contexts by means of positive law” (BFN 122), basic rights are valid only with reference to a particular juridical community. Genuine human rights, which, despite the impression given by Habermas (BFN 453), include more than liberty rights, have a higher legitimation-theoretical status than basic rights, a point one can acknowledge without thereby committing oneself to a Platonic doubling of law into the natural and the positive (BFN 450, 453) or manifesting a wish to evade a critique of liberalism (BFN 453). Instead, human rights raise the question why coexistence should be regulated by means of positive law and therefore by means of enforced punishments, imposed conformity, and special powers at all. A theory of basic rights takes this question to be already answered, and Habermas, since he does not aim to justify juridical form, the form of positive law as such, sweeps it aside. Kant, the theorist of reason, knew of the more fundamental meaning when he placed human rights, of which, as is well known, he recognizes only one (“there is only one innate right,” DR VI:237/63), before the reflections on the topic with which the relevant chapter of Habermas begins, that of “private and public autonomy” (BFN 3.1). So too were the first declarations of human rights clear about the more fundamental meaning. The Virginia Bill of Rights has a structure that would be followed by the French Declaration of the Rights of Man and of the Citizen: both texts begin with rights enjoyed by people, not only in virtue of being citizens, but in virtue of being people. In order to emphasize the conceptual difference between basic rights and human rights, I described the latter as “rights that are valid antecedent to the state but that are not therefore operative; they are not actually given or denied by the state, but instead guaranteed” (1979b, 7, cf. PJ). Though Habermas sees “awkward formulations” (1995, 310) here, their point is to accentuate the double meaning—not the ambiguity—of human rights. As rights of people as people, they belong to us before and independently of any political grouping. But since they do not assert or determine themselves on their own, they need to be

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“positivized,” so to speak, by means of a juridico-political order. Because such an order can, however, turn against its purpose (not its only purpose) of guaranteeing human rights, the liberal rights of protection against the state (for only in the context of a state can this perversion of purpose occur) emerge out of “individual liberties that were at first reciprocally granted” (BFN 457). Though Habermas seems to think that the point is a new one, it had already been made in my article “Human Rights as Legitimation of Democratic Politics” (1979b, 7–12). It needs as well to be made more precise in that the reciprocally granted liberty rights are rights of protection on both levels: before there is a state, they protect against possible incursions from peers, and once there is a state, they protect against incursions from state power as well. That Habermas does not really begin to deal with human rights may also have to do with his desire to avoid the anthropological assumptions needed to justify them. But not only are these assumptions few and hardly controversial, they also are not, regardless of Habermas’s assumption to the contrary, meant to justify the universal validity of human rights on their own. In addition, they will be needed even for one who is content to take on basic rights only. The right to life and limb, for example, does not follow simply from carrying out “a discourse of ethical self-understanding,” but requires the additional supposition that the discourse is conducted, not by pure intelligences such as angels, but by beings of flesh and blood. One might, to defuse some of the notorious skepticism about anthropological elements of the sort in question, recall Rawls’s social-anthropological principle of primary social goods, without which he would be unable to establish his principles of justice. And finally, Habermas himself, in his essay “Morality and Ethical Life,” countenances anthropological points of view (Habermas 1990b, 199 ff.). There is much talk in Between Facts and Norms of things “radically democratic,” of “fundamental democracy,” and of “the association of free and equal citizens.” These expressions seem more sharply defined and pointed than they appear upon closer consideration. The modern state is radically democratic in the literal sense, that is, democratic in its roots, in virtue of the principle of popular sovereignty, an element that has long been recognized, not only from a legitimationtheoretical perspective, but also in the actual practices of political legitimation. It is equally uncontroversial that all citizens must be permitted freely and with equal rights to take part in political life, that such participation requires appropriate mediating agencies, including a strong public sphere, political parties, and other associations, and, above all, elected representatives. Controversy arises only when it is asked whether such elements should be supplemented, for example, by elements of direct democracy or activist-driven democracy, by citizen’s initia-

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tives, or even by “mandated delegates,” representatives elected with binding mandates to vote in certain ways on certain issues. The advantages of direct democracy are evident: immediate contribution to the determination of policy and a greater degree of identification with the political process. The disadvantages, though, are also familiar: the danger of negative majorities, of populism, and, in the case of activist-driven democracy, the danger of a hidden aristocracy—which can arise whenever only small groups are represented in contrast to large popular parties. The relative balance of advantage over disadvantage depends on the boundary conditions in place in a particular context, and this raises the decisive question whether one can make quasi a priori judgments here at all. Habermas is wisely cautious on the point, which means, however, that the idea of “fundamental democracy” loses some sharpness of definition. Habermas demands not much more than a strong public sphere (BFN 171 ff. and chap. 3), the clear subordination of the executive to the democratic legislature (BFN 186–93), and—a point on which I agree with him—a limitation of the reach of constitutional law vis à vis the legislature (BFN chap. 6). The fact that human rights and democracy are coeval raises yet another difficulty for Habermas’s thesis. Human rights are, both conceptually and historically, constraints that even a democratic sovereign can violate only on pain of losing legitimacy. In order to retain the “coeval thesis” and yet place the entire burden of legitimation on the democratic process (BFN 450), one has to introduce a twolevel concept of democracy, and both levels are marked by the reciprocal granting of rights: in the natural democracy that antecedes the state, people grant each other rights, which the political state—democracy helps to make impartially effective. Let us draw up the balance sheet. Between Facts and Norms is already impressive for according law and the state their appropriate social-theoretical rank, thereby opening critical theory to the philosophy of law and the state once and for all. The nice-sounding but unpolitical ideal of freedom from Herrschaft that dominated traditional critical theory is emphatically overcome in favor of the political, and traditional, ideal of just rule. In 1970, Max Horkheimer was still saying that although one cannot, according to critical theory, “determine the right form of society in advance, [one can certainly] say what is bad about the current society” (1970, 164). Insofar as he recognizes constitutional democracy as the basic model of the right form of society, Habermas departs from Horkheimer’s view. At the same time, he grants the point made by those critics of traditional theory who, in supplementation of a chiefly emancipatory critique, demanded a more strongly affirmative social theory, one capable of valuing achieved emancipation in a positive way. For Between Facts and Norms takes an essentially positive view of the basic institutions of constitutional democracy.

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accountability, 87, 89 action-external considerations, 141, 143 action-internal considerations, 140–41, 143 activist-driven democracy, 286–87 act-utilitarianism, 112, 114 Adorno, Theodor, 19, 136, 252, 256, 264, 277 Alexy, Robert, 274 Allison, Henry, x, xi altruism, genetic, 208 anarchism, 95–98, 191, 272, 278 anthropology and conditions of application of law, 86–91 and diversity, 100 moral, xi, 9, 67–74 and practical metaphysics, 59–84 in Rawls’s theory of justice, 217 social, 71, 88 antinomies, 42–43 Apel, Karl-Otto, 233–47 on analytic and Continental philosophy, 233–34 on argumentation situation, 237–38 on consensus, 234 on fact of reason doctrine, 236–38 Habermas and, 252, 268 Höffe engaging from Kantian perspective, xvii Kant as criticized by, 234–35 on paradigm shift from consciousness to language, 235–40 on postulates of practical reason, 245–47 “Practical Philosophy/Ethics,” 234 and Rawls’s veil of ignorance, 219–20

on transcendental pragmatism, 60, 234, 266 as turning to Kant, 198 applied ethics, 21, 125–26 Aquinas, Thomas, 134 Aristotle on action, 239 on autonomous subsystems, 272–73 in demise of metaphysics, 60 on generosity, 204 on happiness, 77 humanists contrasted with, 24 as independent of politics, 35 on justice, 94 Kant and ethics of, 9–11, 77–80 on metaphysical thinking, 60 metaphysics in ethics of, 80 on natural social impulse, 200, 208 Nicomachean Ethics, 66, 78, 81 on outline knowledge, 81 philosophy as judicative critique in, 22, 23, 78 on political nature of man, 63 on unconditioned good, 77 “artist nature,” 193–94 Augustine, Saint, 134 Austin, John, 41 authorized force agreement required for, 283 in Kant’s Doctrine of Right, 281 legal positivism versus anarchism on, 95–99 as limited to crimes, 165, 166 Mill on, 115–16 radical critique on, 28

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autonomy Apel on, 234, 241, 242–44 in domains of virtue and right, 227 in ethics of law and right, 88 intellectual, 28–29 Kant on morality of, 52 in Kersting’s independence thesis, xii, xiv Nietzsche on, 52 Rawls on, 216–17, 225, 230, 231 and reciprocity, 243 and Riley’s teleological interpretation, xv of the state, 192 Axelrod, Robert, 199–213 computerized prisoner’s dilemma tournaments, 203–6, 212 The Evolution of Cooperation, 200, 212 on genesis of cooperation, 207, 208–9 on hegemony-free cooperation, 13, 202, 206–13 Höffe engaging from Kantian perspective, xvii Barry, Brian, xx–xxi basis maxims, 138 Bataille, Georges, 264 Baudrillard, Jean, 19 Beccaria, Cesare, 152 Beitz, Charles, xxi–xxii benevolence, 57, 110, 119, 120 Bentham, Jeremy on Descartes, 24 on deterrence, 154 on everybody counting for one, 120 hedonic calculus of, 106 on justice, 109, 110 Kant as unaware of, 90 on legislation and application, 112, 115 translated into German, 106 Berlin, Isaiah, 87 Berner, A. F., 168 Between Facts and Norms (Habermas), xvii, xviii, xx, 250, 276–87 Bloch, Ernst, 176, 178 Blumenberg, Hans, 62 bodies categorical principles of law and, 71–72 needs and interests of, 88 borrowing, 145 Bull, Hedley, xvi Burke, Edmund, 97

Carlyle, Thomas, 107 castration, 152, 168 categorical imperative, 85–102. See also categorical principles of law anthropology and, 71, 72 categorical principles of law and, 5 discourse ethics contrasted with, 241–42 in Doctrine of Right, 44 and experiential knowledge, 68, 69, 80 Habermas on, 267–68 idea of justice contained in, 138 and instrumentalization of the individual, 121 as layered within itself, 6, 7 levels of categorically binding validity, 5 logic of, 131, 132 material formulation of, 7, 82 Mill on, 121–22 and objectivity, 27 pragmatics of, 131 precision of, 81 as receiving little attention in law, 4, 31 rigorism and formalism attributed to, x–xii, 11, 82, 133–38, 268 seen as mono-principle ethics, 5–6 subformulations of, 5, 7 as synthetic a priori judgment, 65 as test for moral duties, 130–31 two levels of application of, 81 unconditioned good and, 76 and universalizability, 53 as zero point of Kant’s argument, 54 categorical principles of law as categorical imperative in the plural, 5, 7, 44, 71 concept of morality underlying, 7–8 and concrete problems, 32–33 in constituting the law, 48, 101 as counterpoint within legal culture, 1–4 in defining positive law, 47–48 difficulties confronting, 6–9 and diversity, 100 in Doctrine of Right, 44 examples of, 103–96 human rights considered as, 1, 31, 59–60 as immutable principles of positive legislation, 43–45 legitimacy questions raised by, 39 metaphysics in, 8–9, 59–84 and natural law, 83 and neutralization thesis, 7

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and objectivity, 27 ontological interpretation of, 64 peace as, 178–84 in penal law, 151–74 and polyphonic interpretation of modernity, 4 and questions of law and right, 4 Rawls’s first principle of justice as, 224 retributive punishment seen as, 12, 44 scope of, 100–101 self-understanding of, 101–2 chess, 205 civil disobedience, 41, 216 civil wars, confessional, 181 clemency, 169 Cohen, Hermann, 55 collective welfare, 163, 164, 172, 173, 221, 222 commerce, 194 common good, 79–80 communitarianism, viii–ix complex maxims, 138 Comte, Auguste, 60 confederation of nations, 189–96 aporia of, 194 expansion of, 207 as negative surrogate, xvi, 192, 193, 195 as republic of free, confederated peoples, 189, 196 Conflict of the Faculties, The (Kant), xv, 41 conscience, infallibility of, 48–49 consensus, 234, 241, 243, 267, 269, 273 Constant, Benjamin, 128, 134, 136, 141 constitutional democracy, 278–79, 287 cooperation versus free riding, 201–2, 206 genesis of, 207–9 without hegemony, 13, 202, 206–13 individual impotence in, 206 long-term relationships in, 206–7, 210 Plato on, 200 predisposition to, 206 and prisoner’s dilemma, 200, 203–6 Rawls on, 229 corrective justice, 94, 101 corruption, 164 cosmopolitanism, xv–xvii, 185 cost-benefit calculation, 260 credibility, loss of, 143–46 crime. See also deterrence; prevention of crime; punishment authorized force as limited to, 165, 166

penal law as concerned with, 157 sexual crimes, 168, 281 critical theory, 249–87 on emancipation from Herrschaft, 199, 202 Habermas on, 251–53, 279 law and the state in, 276–79 opening to normative ethics, 21 critique beyond affirmative and negative, 18–21 autonomy of, 28–29 etymology of, 21–22 and juridical judgment, 21–23 Kantian, 6–7, 17–18, 25–27, 260 Marxist, 25, 250, 260 modernity and, 23–25 post-Kantian, 26–27 radicalization of, 25 transcendental critique of society, 17–30 Critique of Judgment (Kant), 239 Critique of Practical Reason (Kant) on crime and punishment, 159 on empirically conditioned reason, 42 on fact of moral judgment, 237 on inclination, 53 judicative critique in, 17–18 on moral legality, 130 on peace as highest good, 184, 190 and philosophy of consciousness, 239 as primary metaphysics, 67 on soul, immortality, and God, 63 Critique of Pure Reason (Kant) on a priori principles of morality, 75 communicative character of, 238 Kelsen on law and, 45, 47 on philosophy and the sciences, 266 on reason as republican, 239 200th anniversary of, 251, 264 Dante, 180 death penalty, 152, 168 decision theory, 218–20, 223, 229 Declaration of the Rights of Man and of the Citizen, 285 Deggau, H. G., 82 deliberative democracy, xvii–xx democracy activist-driven, 286–87 constitutional, 278–79, 287 deliberative, xvii–xx direct, 286–87

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democracy (cont.) Habermas on, 286–87 and human rights, 287 and infallibility of conscience, 49 and juridicalization, 260 legitimacy questions regarding, 39 and legitimation-theoretical individualism, 273 proceduralism, xx–xxiii secular accounts of, xix deontological ethics, 129, 166, 169 Descartes, René, 24, 238, 252, 255, 256, 266 desire, 53, 54, 58, 68, 89 deterrence in contemporary penal law, 12, 151 fundamental weaknesses in concept of, 152–53 as outside concept of punishment, 160 perversions of justice and, 164 Pufendorf on, 154 punishing all the guilty and, 164 seen as utilitarian, 119 and severity of punishment, 174 as side-effect of punishment, 120, 157, 173 developing one’s talents, 57, 126, 133, 143, 230 dialectic, transcendental, 29–30, 43 direct democracy, 286–87 disarmament talks, 207 disciplinary competence, 29 discourse ethics, 233–47 circular justification of, 241–42 competing positions compared with, 268–73 expanding critique of, 21, 73 of Habermas, 250, 266–68 Kantian criticism of, 10 Marquard on, 78 pragmatic contradiction employed by, 275 proponents of turning to Kant, 198 and Rawls’s veil of ignorance, 219 and real-life argumentation, 274–75 discourse theory. See also discourse ethics for political legitimation, 283–84 disposition, emancipation of law from, 48–54 distributive justice, 113 diversity, 2, 3, 99–100, 190, 194 divided utilitarianism, 113, 114 division of powers, 79–80, 186, 277 Doctrine of Right (Metaphysics of Morals) on authorized force, 95–99 on autonomy of groups, 243

on autonomy of the state, 192 on categorical imperative of law, 44 “categorical imperative of law” absent in, 85, 86 concept of morality in, 53 emancipation of law from disposition in, 50 on empirical theory of law, 43 on freedom and universal law, 94 and independence thesis, xiii, xiv, xv metaphysics as overestimated in, 70, 83 on peace as highest political good, 184, 190 on penal law, 154, 158, 159–60 on persons versus property, 165 on power of ought, 281 practical concerns of, 63 Rawls citing, 228 on rightful constitution as thing in itself, 64 Schopenhauer on, 89 as secondary metaphysics, 67 as theory of bourgeois revolution, 12 on universal monarchy, 188 on weighing goods against one another, 137 Doctrine of Virtue (Metaphysics of Morals) on antinomy, 43 on autonomy and reciprocity, 243 “categorical imperative of law” absent in, 85 concept of morality in, 53 on deserving punishment, 159 on infallibility of conscience, 49 Kant’s foundational writings and, 56 and legal rigorism, 137 viewpoints of the Grounding in, 126 drugs, 57, 153, 170, 174 Durkheim, Emile, 253, 278 duties. See also imperfect duties; perfect duties categorical imperative seen as test for, 130–31 conflict of, 6, 133–38 contextualization of, 81 Grounding’s division of, 126–28 the law and, 56–57 Mill on authority to enforce, 115–16 to oneself and others, 56–57, 126, 127, 128, 138 of right and of virtue, 56, 82 egoism. See also self-interest in decision-theoretic concept of rationality, 218, 219–20 enlightened, 204

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Ely, John, xxi Engels, Friedrich, 106, 121 Enlightenment, the, 3, 23–25, 154 environmental protection, 213 envy, 205, 211 equality as condition of republican state, 185, 186 and juridicalization, 260 political, xxi principle of, 169 in Rawls’s theory of justice, 216, 221–22 of right, 183 Erasmus, 180 Erlangen school, 198, 211 ethical freedom, 55 ethics. See also discourse ethics; morality applied, 21, 125–26 deontological, 129, 166, 169 first and second moral philosophy, 5, 7, 10, 125–26 Habermas on object of, 266 integrating experience into, 80–84 paradoxical situation of, 236 Rawls on independence of, 225 rigorism, x, 128–29, 133–38, 162 Scottish moral philosophy, 277, 278 situationist, 73 skepticism in, 10, 27 teleological, 129, 166–67, 169 eudaemonism, 52 evil, 68 Evolution of Cooperation, The (Axelrod), 200, 212 exchange and false promising, 145 ideal exchange of roles, 239, 244, 270–71 justice in, 94, 101, 113 markets, 206, 209, 257 and reparation theory of punishment, 153 transcendental, 269–76 voluntary agency in, 91 experience categorical imperative and, 68, 69, 80 integrating into moral theory, 80–84 expiation theory of punishment, 160 false promises free riding in, 139, 148 the Grounding on, 67, 125–30 and ideal exchange of roles, 244

and imperative of self-love, 138 Kant’s analysis of, 67, 68, 82, 125–49 as not universalizable, 132, 140–49 rigorism of Kant’s doctrine on, 11, 128, 135 for testing moral principles, 12, 130 false witness, 237 family, 254, 258, 260–61 family law, 72, 281, 282 Ferguson, Adam, 277 Feuerbach, Ludwig, 25, 154 Feyerabend, Paul, 2, 3 force. See also authorized force; Herrschaft asymmetry arising from, 182–83 punishment as imposed by, 158, 159, 166 Forschner, M., 158 Foucault, Michel, 37 Foucher, Simon, 25 Franck, Sebastian, 180 Frankfurt School on critique, 6, 18, 19, 21 Habermas and, 249, 251, 253, 263 freedom (liberty) of action, 87, 89, 91, 93, 100, 101, 230 as condition of republican state, 185–86 ethical, 55 negative, 87–88 priority with peace and justice, 184 in Rawls’s theory of justice, 216, 224, 229, 230 of the will, 50–51, 87, 89, 92 free riders, 119–20, 139, 148, 201–2, 206, 207 French Revolution, 177–78, 195 Freud, Sigmund, 96, 250, 265 functional systems, 35–36, 39 game theory, 199, 200, 213, 218 Geismann, Georg, 192 general will, 52, 78, 220, 243 generosity, 204–5, 211 genetic altruism, 208 globalization, xvi–xvii God, 63, 245 Golden Rule, 204 good common good, 79–80 peace as, 184, 190 primary social goods, 217–18, 227, 286 unconditioned, 52, 54, 74–77, 80 utilitarianism on moral, 108–9 good will, 52–54, 75

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Gregor, Mary, xiv Grounding (Kant) the categorical imperative in, 53–54 “categorical imperative of law” absent in, 85 empirical elements in, 68 on false promises, 67, 125–30, 135, 140–43 imprecision in formulation of program of, 70, 75 and legal rigorism, 137–38 and philosophy of consciousness, 239 as primary metaphysics, 61, 67 Rawls citing, 228 two meanings of “application” in, 81 on unconditioned good, 52, 74 virtue-specific treatment of morality of, 55 Habermas, Jürgen, 249–87 on basic rights and human rights, 285–86 Between Facts and Norms, xvii, xviii, xx, 250, 276–87 on communicative action, 251–63 on critical theory, 251–53, 279 on democracy, xvii–xx, 286–87 discourse ethics of, 250, 266–68 on discourse theory for political legitimation, 283–84 on fundamental rights, 284–85 on Hegel, 255, 256, 264 Höffe engaging from Kantian perspective, xvii on Höffe’s Political Justice, 269–76 on ideal exchange of roles, 239, 244, 270–71 on inner colonization, 258–63 as intermediary, 254 on juridicalization, 258, 259 “Justice and Solidarity,” 283 and Kant, 198, 250, 255, 256, 257, 258, 262, 264, 267, 280–81 Knowledge and Human Interests, 252, 253 Legitimation Crisis, 277 on limitations on philosophy, 8, 73, 263–66 Moral Consciousness and Communicative Action, 250, 263, 265 “Morality and Ethical Life,” 286 “Notes on a Program of Justification,” 73 “Philosophy as Placeholder and Interpreter,” 250 on philosophy of consciousness, 255–57 on post-metaphysical thinking, 60, 66

proceduralism of, xviii, xx–xxiii project of, 249–50 Rawls criticized by, 62, 279, 280–81 and Rawls’s veil of ignorance, 219–20 on real-life argumentation, 274–75 on reason-based morality, 281–82 Structural Transformation of the Public Sphere, 277 Theory of Communicative Action, 199, 249–63, 277 and transcendental argument, xix–xx, xxiii “Work and Interaction,” 261 Hammurabi, codex of, 281 happenstance, 246 happiness in Aristotelian ethics, 77 correspondence with virtue, 246 Kant distinguishing morality from, 52, 90 in utilitarianism, 106, 107, 109 Hare, Richard, 140 Hartmann, Nicolai, xx, 105 Hassemer, W., 170 hedonic calculus, 106–7 Hegel, Georg Wilhelm Friedrich and Aristotelian ethics, 80 on categorical imperative, 82, 198 on critique, 18 Habermas on, 255, 256, 264 on human rights, 59 on justice, 111 Kant compared with, 9 on Kantian morality as mere ought, 236–37 law and the state acknowledged by, 278 on master/slave relationship, 181 on reason-based conceptions of law, 281 on retributive punishment, 12, 152, 168 rigorism and formalism as challenges to, x on work, 262 Heidegger, Martin, 75, 198, 235, 264 Held, David, xvi–xvii helping others, 81, 126, 129, 133, 143, 145 Herman, Barbara, x Herrschaft, 199–213 arguments for necessity of, 209–13 and exhaustion of utopian energies, 175, 176 game theory for legitimating, 199 Kant on freedom from, 186, 191 limits to freedom from, 206–13 in modern social philosophy, 200–203

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radical critique on freedom from, 28 in theory of democracy, 278–79 Hobbes, Thomas on authorized force, 96–97 and dilemma of recognition, 212, 213 on generosity, 205, 211 Kantian concept of law contrasted with, 88, 89–90 on life as first priority, 73 on man as wolf to man, 201 on political nature of man, 63 on public power to stop free riding, 202 on state of nature, 207 Höffe, Otfried on categorical imperative, xi–xii diverse traditions engaged by, vii on Habermas’s deliberative democracy, xvii–xx “Human Rights as Legitimation of Democratic Politics,” 286 on justice versus politics in Kant, xii–xv on Kant’s continuing relevance, viii, x on Kant’s cosmopolitanism, xv–xvii Political Justice, 13–14, 269–76 and Rawls, viii, ix on regress problem in Habermas, xix, xxii, xxiii on transcendental inquiry, xxiii–xxiv homosexuality, 57 honesty, 143, 145–47, 201 Horkheimer, Max deficient treatment of the state of, 277 and Habermas’s theory of communicative action, 251 on instrumental rationality, 252, 256 negative critique of, 19, 287 in post-Hegelian philosophy, 264 Hugo, Victor, 42, 45 humanists, 24, 28 human rights anthropological justifications of, 73–74 as categorical principles, 1, 31, 59–60 and common good, 79–80 and democracy, 287 and ethical relativism, 226 growing recognition of, viii guarantees required for, 213 Habermas on basic rights and, 285–86 Kant on, 64, 285 and moral anthropology, 70

as natural, 83 political system as bound by, 44 principle of, 92–99 in proceduralist conception of democracy, xx recognition as first task of republics, 186 reparation as based on, 165, 173 right to form states, 189 social-scientific thinking and, 2 and utilitarianism, 108, 117 “Human Rights as Legitimation of Democratic Politics” (Höffe), 286 Humboldt, Wilhelm von, 178 Hume, David, 22, 25 Husserl, Edmund, 264 “Idea for a Universal History from a Cosmopolitan Point of View” (Kant), 178, 228 ideal discourse, 241–42, 244 immortality of the soul, 63, 245 imperfect duties and action, 82 and consequences, 129 as duties of virtue, 126, 127 exceptions allowed for, 135 in Grounding’s division of duties, 126 legitimating, 128 in Mill’s analysis of justice, 116 negative application of categorical imperative to, 132 inclination moral obligation contrasted with, 53, 68, 131–33, 137, 138–44, 237 social welfare promotion as, 162 “Independence of Moral Theory, The” (Rawls), 225 independence thesis, xii–xiv individual, instrumentalization of the, 121, 165 individualism, legitimation-theoretical, 273–74 individuality, 100 injunctions, 132 innocent, punishment of the, 161–66 instrumentalization of the individual, 121, 165 intellectual autonomy, 28–29 interests. See also self-interest categorical principles of law ignoring, 91 conflict of, 133 corporeal beings having, 88 stranscendental, 271, 275 intersubjectivity, 243, 269–73

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Jaspers, Karl, 55 Johnson, Oliver, 231–32 Jonas, Hans, 4, 62, 176, 178 juridicalization, 258, 259 jus talionis Hegel on, 168 Kant on, 151, 154, 155 reciprocity as core idea of, 153 reparation theory contrasted with, 152 and severity of punishment, 167 justice. See also retributive justice categorical imperative containing idea of, 138 conflict resolution and just law, 183 corrective, 94, 101 and democratic procedure, xxi in exchange, 94, 101, 113 force for defending, 97–98 and function-specific morality, 38 in Habermas’s Between Facts and Norms, 282 as historically conditioned, 226–27 just wars, 187 Kantian theories of, 216 law-defining level of, 46 Mill on, 109–23 moral concept of law and, 94 natural, 272, 274, 275 as objectivity, 27 perversions of, 163–66 versus politics in Kant, xii–xv priority with peace and liberty, 184 procedural, 113 Rawls’s theory of, 215–32 and self-interest, xiii–xiv, 119, 203–6 special reparation based on, 169 utilitarianism criticized in name of, 106–10, 215 “Justice and Solidarity” (Habermas), 283 Kant, Immanuel. See also Critique of Practical Reason; Critique of Pure Reason; Grounding; Metaphysics of Morals; Perpetual Peace on anthropology and ethics, 67–74 and Apel’s discourse ethics, 233–47 Aristotle compared with, 9–11, 77–80 on “artist nature,” 193–94 on authorized force, 95–99 The Conflict of the Faculties, xv, 41 constructivist versus teleological interpretations of, xi–xii

contemporary political theorists and, xvii continuing relevance of, viii, x cosmopolitanism of, xv–xvii, 185 criticisms of ethical theory of, 11 on critique, 6–7, 17–18, 25–27, 260 Critique of Judgment, 239 deontological position of, 129 and Descartes, 238 on emancipation of law from disposition, 48–55 fact of reason doctrine in, 236–38 first and second moral philosophy in, 7, 10 on French Revolution, 177–78 Habermas and, 198, 250, 255, 256, 257, 258, 262, 264, 267, 280–81 Hegel compared with, 9 Hobbes contrasted with, 89–90 on human rights, 64, 285 “Idea for a Universal History from a Cosmopolitan Point of View,” 178, 228 on invisible church, 231 justice versus politics in, xii–xv and legal positivism, 40, 41–42, 43, 45 and legitimation-theoretical individualism, 274 as liberal, 90 on metaphysics and categorical principles, 59, 61 on metaphysics as necessary, 77 and modernity, 1–14 on morality and law, 55–58 morality distinguished from legality by, 48–54, 130, 243–44 on natural inclination to war, 207–8 on natural law, 55, 83 “On a Supposed Right to Lie Because of Philanthropic Concerns,” 134 “On the Common Saying: ‘This May Be True in Theory, but It Does Not Apply in Practice’,” 18, 89–90, 97, 228 on persons, 87 philosophy’s importance weakened by, 65–66 on political nature of man, 63 on postulates of practical reason, 62–63, 245–47 Prolegomena to Any Future Metaphysics, 77 on public power to stop free riding, 202 on radical skepticism, 25–26 Rawls and, viii–x, 13, 198, 215–32

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rehabilitation of, viii, 198 on retributive punishment, 12, 151–74 on synthetic a priori judgments, 64–65 theory of categorical principles originating with, 4 on transcendental dialectic, 29–30 transcendental program restricted to the theoretical by, 75, 235–36 twofold task of ethical writings of, 67 on unconditioned good, 74–77 utilitarianism opposed by, 90 on welfare state, 52, 57, 90, 216 “What Is Enlightenment?,” 18 on a world-republic, xvi, 187–96, 202 Kelsen, Hans, 40, 45–47, 284 Kersting, Wolfgang, xii, 55 Knowledge and Human Interests (Habermas), 252, 253 Kohlberg, Lawrence, 265 Korsgaard, Christine, x, xi Kuhn, Thomas, 234 large power of small numbers, law of, 207, 208, 209 law. See also categorical principles of law; legal positivism; legislation; natural law; penal law ambiguity in, 1–2 categorical imperative as receiving little attention in, 4, 31 conditions of application of, 86–91 critical theory ignoring, 276–79 emancipation from disposition, 48–54 empirical thinking in, 1–2 force of, 46 as fundamental form of human coexistence, 28 Kant on morality and, 55–58 objectivity of, 45, 47 in premodern contexts, 281–82 release-from-morality thesis, 7, 31–42 rule of law, xx, 12, 51, 52, 277 science contrasted with, 47 legal positivism on authorized force, 95–98 Kant influencing, 45 Kelsen’s pure theory of law, 45–47 of Mill, 115 on morality in law, 40–42 as radical critique, 25

legislation categorical principles of law giving norms to, 43–45 errors in, 163 as framework conditions, 273 Mill on application and, 111, 112, 115 Legitimation Crisis (Habermas), 277 lex talionis. See jus talionis liberalism ambiguity regarding, viii Kant as exponent of, 90 Kant’s doctrine of right legitimating, 12 Rawls’s defense of, ix rights fundamentalists, xviii, xix liberty. See freedom life. See also suicide legal protection of, 281, 282 natural urge to live, 131 right to, 73–74, 95, 227, 277, 286 Locke, John, 154, 155 logical positivism, 60 Lübbe, H., 48–50 Luhmann, Niklas Habermas and, 283, 284 Kantian argument compared with, 44, 50 release-from-morality thesis of, 33–42, 79, 99–100 Lukacs, Gyorgy, 252, 256 lying. See also false promises false witness, 237 prohibition against, 5, 126, 127, 132, 134–38, 161–62 Lyotard, Jean-François, 3, 81 Machiavelli, Niccolò, 182 MacIntyre, Alasdair, viii Madison, James, xxiii Marcuse, Herbert, 277 markets, 206, 209, 257 Marquard, Odo on affirmation, 19 categorical imperative rejected by, 5–6 on the commonplace, 9, 18, 78–79 conservative critique of liberalism of, viii Kant and Hegel contrasted by, 9 on license for curiosity, 21 on limitations of philosophy, 8 on transcendentally grounded ethics, 32, 33, 62, 72 marriage law, 72, 281, 282

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Marx, Karl critical theory as heir to, 249, 250 on critique, 25, 250, 260 Habermas on paradigm of consciousness of, 256 Kantian ethics dismissed by, 198 on utilitarianism, 106, 121 on work, 251, 261, 262 maxims, 53, 69, 138, 227, 267 Mead, George Herbert, 239, 244, 253, 270 media, the, 247 Mendelssohn, Moses, 89, 90, 126 metaphysics in Aristotle’s ethics, 80 in categorical principles of law, 8–9, 59–84 demise of, 60 and diversity, 100 etymology of, 61 human rights as dependent on, 59–60 Kant as overestimating, 70, 83 Kantian critique of, 17 Kant on necessity of, 77 modernity’s neutrality regarding, 7 Rawls rejecting, 60, 64, 76–77, 217, 224–27 religion associated with, 62–63 turn to practice in, 61–66 Metaphysics of Morals (Kant). See also Doctrine of Right; Doctrine of Virtue on antinomy, 43 domains of right and virtue in, 228 Kant’s foundational writings anticipating, 56 and philosophy of consciousness, 239 as secondary metaphysics, 61, 67 on substantial ethical life, 236 on system of a priori cognition, 65 Michelman, Frank, xviii Mill, John Stuart on being deserving of punishment, 115–20 on categorical imperative and utilitarianism, 121–22 on death penalty, 152, 154 on justice, 109–23 law and the state acknowledged by, 278, 280 qualitative hedonism of, 107, 123 as rule-utilitarian, 112, 118 translated into German, 106 Utilitarianism, 110, 121, 123 Millar, John, 277

modernity and critique, 23–25 destructive power of, 105 Habermas’s renovation of, 249 Kant in dialogue with theory of, 1–14 morality acquiring new origin in, 52 neutrality of, 7, 33, 79 polyphonic interpretation of, 3–4, 17 postmodernity as beginning in, 3 Montesquieu, Charles de, 25, 154, 155 Moral Consciousness and Communicative Action (Habermas), 250, 263, 265 morality. See also ethics; good; justice; moral obligation; rights; virtue acquiring new origin in modernity, 52 ambivalence of, 34 Apel’s definition of, 234 categorical imperative defining, 6, 7 concept underlying categorical principles of law, 7–8 as conflict-generating, 34 emancipation of law from disposition, 48–54 ethics waves, 34 experience-independent justification of, 64 as fact of reason, 236–38 function-specific, 36–38 fundamental reflection on, 10–11 Kant on law and, 55–58 legality distinguished from, 48–54, 130, 243–44 legal positivism on, 40–42 metaphysics and, 8–9 modernity’s neutrality regarding, 7, 33, 79 moral anthropology, xi, 9, 67–74 prudence contrasted with, 220 reason-based, 281–82 release-from-morality thesis, 7, 31–42 and self-interest, 53, 225 theological foundation for, 245 “Morality and Ethical Life” (Habermas), 286 moral obligation. See also duties as applying to persons not things, 87 and categorical imperative of law, 86 inclination contrasted with, 53, 68, 131–33, 137, 138–44, 237 as metaphysical, xi, 72, 76, 80 moral pedagogy, 69 moral philosophy. See ethics moral sentiment, 278 multiculturalism, vii

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Nancy, Jean-Luc, 22 natural law anthropological and rationalistic, 83 Habermas on, 279 Kant on, 55, 83–84 and legitimation of penal law, 166 “nature, artist,” 193–94 negative freedom, 87–88 Neumann, Franz, 276, 277 Nicomachean Ethics (Aristotle), 66, 78, 81 Nietzsche, Friedrich and death of the subject, 37 in demise of metaphysics, 60 on judicative critique, 22 Kantian ethics rejected by, 198 on morality of autonomy, 52 on otherworlders, 64 on utilitarianism, 106, 107 “Notes on a Program of Justification” (Habermas), 73 Nozick, Robert, 95 nuclear war, 182, 183 objectivity categorical imperative of law and, 101 of the critic, 22, 23 of the law, 45, 47 post-Kantian critique rejecting, 27 transcendental critique on, 25–26 unconditioned good and practical, 76 obligation, moral. See moral obligation “On a Supposed Right to Lie Because of Philanthropic Concerns” (Kant), 134 O’Neill, Onora, x, xi, 238 one-time offenders, 165 “On the Common Saying: ‘This May Be True in Theory, but It Does Not Apply in Practice’” (Kant), 18, 89–90, 97, 228 Parsons, Talcott, 253, 255, 278, 279 Patzig, G., 60 peace, 175–96 as categorical imperative of law, 178–84 as direct duty, 183 and freedom from conflict, 180–81 perpetual, 180, 184 priority with liberty and justice, 184 survival taken as basis for, 181–82 penal law, 151–74. See also punishment absolute and relative theories of, 160

crime as concern of, 157 form of norm of, 171 Kant’s definition of, 156–58 revenge distinguished from, 156 perfect duties and action, 82 exceptions not allowed for, 135 in Grounding’s division of duties, 126 legitimating, 128 in Mill’s analysis of justice, 116 negative application of categorical imperative to, 132 Perpetual Peace (Kant), 177–96 Articles of Definition of, 179, 185 on human rights and supersensuous world, 64 on nation of devils, xiii, 51 negative critique in, 18 positive conception of law in, 41 the teleological in, xv two concepts of nation in, 190 on universal monarchy, 188 utopian aspects of, 187 on world-republic, 187–96 persons, 87, 88, 230–31 philosophy. See also ethics; metaphysics Habermas as intermediary between social science and, 254 Habermas on limitations on, 8, 73, 263–66 as handmaid, 266 as judicative critique, 21, 22 Kant comparing science with, 238 Kant on philosophers’ role, 179 Kant weakening importance of, 65–66 modern social, 200–203 “Philosophy as Placeholder and Interpreter” (Habermas), 250 Piaget, Jean, 265 Plato Aristotelian criticism of the Forms, 66 on critique, 22, 24 as independent of politics, 35 on peace, 180 on philosopher-kings, 179 Republic, 180, 200 on self-interest in cooperation, 200 pluralism, 2, 99 Political Justice: Foundations for a Critical Philosophy of Law and the State (Höffe), 13–14, 269–76

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politics. See also democracy; republics and function-specific morality, 36, 37 versus justice in Kant, xii–xv legitimacy questions regarding, 39, 63, 64, 79–80, 102, 283–84 moralizing in, 48–49 political equality, xxi revolutions, 177 rightness versus process, xvii–xviii, xxii Poliziano, Angelo, 28 popular sovereignty, 286 positivism. See also legal positivism logical, 60 postmodernity, 2, 3, 24, 99–100 power cooperation presupposing equality of, 210–13 division of powers, 79–80, 186, 277 “Practical Philosophy/Ethics” (Apel), 234 practical reason ascribing to humanity, 68, 69 fundamental law of, 86 Kant on postulates of, 62–63, 245–47 natural law as grounded in, 83 as neutral between areas of application, 54 penal law legitimated by, 165 and real life, 9 transcendental philosophy excluding, 75, 235–36 pragmatism, 234 premeditation, 174 prevention of crime as consequence of punishment, 119 in contemporary penal law, 12, 151 German drug law and, 170 reparation theory leaving room for, 157, 173–74 utilitarianism associated with, 119, 154 primary social goods, 217–18, 227, 286 priorities, conflict of, 134, 135, 136, 138, 141 prisoner’s dilemma, 199, 200, 203–6, 210–11 proceduralism, xviii, xx–xxiii procedural justice, 113 prohibitions, 132 Prolegomena to Any Future Metaphysics (Kant), 77 promising. See also false promises credibility in, 143–46 property, 71–72, 91, 281, 282 prudence, 220, 226, 227, 231 Pufendorf, Samuel, 134, 154

punishment, 151–74 of all the guilty, 164 as categorical imperative, 12, 155–56, 171–72 dual function of, 120 expiation theory of, 160 as imposed by force, 158, 159 of the innocent, 161–66 as last resort, 157, 171 legitimations of, 158–67 as meted out because of something, 156–57 Mill on being deserving of, 115–20 prospective force of, 120, 157, 173 as reparation, 152–58 as retrospective by nature, 119, 157, 173 revenge distinguished from, 153, 156 severity of, 167–71, 172, 174 unified theory of, 171–74 Pure Theory of Law (Kelsen), 45 qualitative hedonism, 107, 123 Rapoport, Anatol, 203 rationality. See reason rationalization, 252, 253, 254, 265 Rawls, John, 215–32 on authorized force, 95 decision-theoretical concept of rationality of, 218–20, 223, 229 economic bias of, 229, 231 first principle of justice of, 216, 229–30 Habermas’s criticism of, 62, 279, 280–81 Höffe engaging from Kantian perspective, xvii “The Independence of Moral Theory,” 225 on individual life-plan, xi, 73–74 and Kant, vii, viii–x, 13, 198 on moral person, 230–31 as nonmetaphysical, 60, 64, 76–77, 217, 224–27 political justice as focus of, 217, 228 and postulates of practical reason, 245 on primary social goods, 217–18, 227, 286 on reflective equilibrium, xxiii and the regress problem, xxii right versus virtue in, 227–32 rule-utilitarianism in, 219, 221, 223–24, 227 second principle of justice of, 216, 229–30 social given priority over personal in, 228 A Theory of Justice, viii, 215, 216, 269 on unanimity, 270

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on utilitarianism, 110, 215–24 on veil of ignorance, 219–22, 223, 224, 225, 226–27 on welfare state, 216, 229, 281 on well-ordered society, 231 reality principle, 96 reason. See also practical reason antinomies generated by, 43 categorical imperative of law corresponding to, 42 in Habermas’s theory of communicative action, 251, 252–54, 256, 257 instrumental, 251, 252, 256 morality based on, 281–82 Rawls’s decision-theoretical concept of, 218–20, 223, 229 as republican for Kant, 239 as ultimate critical authority, 28 Weber on rationalization, 252, 253, 254, 265 Rechtslehre (Metaphysics of Morals). See Doctrine of Right reciprocity cooperation based on, 209, 210, 211 in discourse ethics, 243 Golden Rule, 204 in reparation theory of punishment, 153 and social solidarity, 283 in “tit for tat” strategy, 203–4 recognition, dilemma of, 212–13 regress problem, xix, xxiii rehabilitation, 151, 152–53, 160, 170 relativism anthropological, 89 in Rawls, 226, 227 reparation, 152–74 as categorical imperative, 155–56 and empirical turn in penal law, 153–54 general, 161, 172 human rights as basis of, 165, 173 in legitimation of punishment, 160–67 punishment as, 152–58 reciprocity as core idea of, 153 special, 167–71, 172 in unified theory of punishment, 171–74 Republic (Plato), 180, 200 republics. See also world-republic Kant calling for, 179, 185 Kant on French, 177 Kant’s conditions for, 185–87 reason as republican for Kant, 239

resocialization, 12, 151, 157, 164–65, 170, 174 retributive justice. See also reparation as categorical imperative for Kant, 12, 44 Golden Rule, 204 Mill on, 119 modern penal theories contrasted with, 151–52 and social sciences, 2 and special branch of second moral philosophy, 5 and “tit for tat” strategy, 203 revenge, 153, 156 revolutions, 177 rights. See also human rights basic, 285–86 duties of right, 56, 82 equality of right, 183 Habermas on fundamental, 284–85 Kant distinguishing virtue and right, 227, 231 and layering of categorical imperative, 6 regress problem, xix, xxiii rights fundamentalists, xviii, xix rigorism, ethical, x, 128–29, 133–38, 162 Riley, Patrick, xiv–xv Ritter, Joachim, 21 Robespierre, Maximilien, 177 Rorty, Richard, 264 Rousseau, Jean-Jacques, 177, 180 rule of law, xx, 12, 51, 52, 277 rule-utilitarianism characteristics of, 112, 113, 114, 118 and false promising, 140, 149 in Rawls, 219, 221, 223–24, 227 Saint-Pierre, Charles Irénée Castel, abbé de, 177, 180 Sandel, Michael, viii Scheler, Max, xx, 82 Schiller, Friedrich, 11 Schmitt, Carl, viii, 33 Schopenhauer, Arthur, 89, 134 science and function-specific morality, 36, 37, 38 Habermas on philosophy and, 263–66 Kant comparing philosophy with, 238 law contrasted with, 47 Scottish moral philosophy, 277, 278 Searle, John, 235 self-defense, 118

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self-interest in decision theory, 218 and dilemma of recognition, 213 versus duty, 131 in game theory, 200 versus genetic altruism, 208 human rights based on, 117 and justice, xiii–xiv, 119, 203–6 and morality, 53, 225 punishment justified by, 118 in Rawls’s theory, 76 rule of law based on, 51, 52 utilitarianism associated with, 105 self-respect, 36 sentiment, moral, 278 sexual crimes, 168, 281 Sidgwick, Henry, 110, 216 Singer, Marcus, 140, 149 Singer, Peter, xxi situationist ethics, 73 skepticism ethical, 10, 27 radical, 25 and release-from-morality thesis, 32, 39 slander, 168 small numbers, law of large power of, 207, 208, 209 Smith, Adam, 22, 277, 278 snowball effects, 207 social anthropology, 71, 88 social-choice theory, 218 social contract, xvi, 217, 218, 283–84 social goods, primary, 217–18, 227, 286 social nature of humankind, 96 social philosophy, modern, 200–203 social programs, 101 social solidarity, 282–83 social welfare. See also welfare state defined, 66 and juridicalization, 260 Socrates, 22, 28 solidarity, social, 282–83 soul, immortality of the, 63, 245 sovereignty, xvi–xvii, 191, 195, 257, 286 specialization, 254 Spirit of the Laws (Montesquieu), 25, 154 Starobinski, Jean, 20 state, the. See also welfare state autonomy for, 192 critical theory ignoring, 276–79

disenchantment of, 257, 272–73 human rights guaranteed by, 213 Kant rejecting overvaluation of, 94 social contract theory of, xvi, 217, 218, 283–84 social programs, 101 as subject-analogous agency, 257–58 state of nations, 189 state of nature, xvi, 96, 190, 207, 284 Stoicism, 60, 137 Structural Transformation of the Public Sphere (Habermas), 277 Stuttgart Hegel Congress (1981), 264 subject-analogous agencies, 257 subjectivity, 243 suffering, 246 suicide duty versus inclination in, 131, 138 in the Grounding, 126 the law and, 57 and life seen as highest priority, 73, 74 negative application of categorical imperative to, 132, 133 practical reason tested by, 68 semantic element in argument against, 143 sympathy, 118 talents, developing one’s, 57, 126, 133, 143, 230 technology, 175 teleological ethics, 129, 166–67, 169 teleological interpretation, xiv–xv Theory of Communicative Action (Habermas), 199, 249–63, 277 Theory of Justice, A (Rawls), viii, 215, 216, 269 Thomas Aquinas, 134 Thomasius, Christian, 134, 154 “tit for tat” strategy, 203–6 transcendental dialectic, 29–30, 43 Trapp, R., 110 Tugendhat, Ernst, 60, 68–69, 82 Tugendlehre (Metaphysics of Morals). See Doctrine of Virtue universalizability and autonomy, 52 categorical imperative on, 53, 80 as criterion of universal morality, 54, 72, 81, 131, 132 discourse ethics and, 241, 244 in domains of virtue and right, 227

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false promising as not universalizable, 132, 140–49 Habermas on, 266–67 nonempirical universalization, 138–44 and Rawls’s veil of ignorance, 225–26 universal monarchy, 188 universals contemporary distrust of, vii Kant on universal law, 92–94 Lyotard on, 3, 81 Urmson, J. O., 112 utilitarianism, 105–23. See also ruleutilitarianism act-utilitarianism, 112, 114 categorical principles rejected in, 11–12 discourse ethics compared with, 268–69 divided, 113, 114 German antipathy for, 105–6 justice objection to, 106–10, 215 Kant opposing, 90 and prevention theory, 154 Rawls opposing, 110, 215–24 as teleological, 129 Utilitarianism (Mill), 110, 121, 123 utopias, 175–76 Vanberg, V., 163–64 veil of ignorance, 219–22, 223, 224, 225, 226–27 Virginia Bill of Rights, 285 virtue as control of desire, 53 duties of, 56, 82, 126, 127 Kant distinguishing right from, 227, 231 and layering of categorical imperative, 6, 7 twofold definition of, 56 virtue-specific treatment of morality, 55 war confessional civil wars, 181 of extermination, 182, 183 just wars, 187 Kant on forbidding, xv, xvi, 181, 187 Kant on natural inclination to, 207–8 little wars, 183 nuclear, 182, 183 as reality for much of the world, 176

Weber, Max Habermas influenced by, 252, 253, 255, 257, 279 law and the state acknowledged by, 278, 279 on rationalization, 252, 253, 254, 265 welfare. See also social welfare collective, 163, 164, 172, 173, 221, 222 welfare state categorical principles of law for justifying, 101 consensus favoring, 277 dissatisfaction with, 175, 260 Frankfurt School on, 19 and juridicalization, 260 Kant on, 52, 57, 90, 216 Rawls on, 216, 229, 281 “What Is Enlightenment?” (Kant), 18 will freedom of the, 50–51, 87, 89, 92 as fundamental concept of practical philosophy, 80, 239 general will, 52, 78, 220, 243 good will, 52–54, 75 maxim as determination of, 53 moral law presupposing, 68 Williams, Bernard, x, 75 Willke, H., 257 Wittgenstein, Ludwig, 235, 264 Wolff, Christian, 90, 134 Wood, Allen, xi work, 251, 261–62 “Work and Interaction” (Habermas), 261 work ethic, 262 world-republic, 187–96. See also confederation of nations as mere ought, 195 as morally mandated for single task, 188–89 as secondary state, 189 as self-contradictory, xvi, 190 skepticism regarding, xvi, 187–88 World War One positional warfare, 205, 209 Yovel, Yirmiyahu, xii–xiv zero-sum games, 205

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