"The Right of a State" in Immanuel Kant's Doctrine of Right

"The Right of a State" in Immanuel Kant's Doctrineof Right BERND LUDWIG 1. KANT'S Doctrine of Right, ~published in 1797 as the first part of The Metaphysics of Morals, has been largely ignored not only by nineteenth- and twentiethcentury legal theorists but even by Kant scholars. As Morris R. Cohen stated in 1938, "in the consideration of Kant's philosophic system relatively little attention is nowadays paid to his theory of law."' And in 1963 Mary Gregor noted that this back of interest was especially evident in Anglo-Saxon countries. 3 But until quite recently even German Kant scholars tended to neglect the Doctrine of Right (as is evident from the fact that, apart from paraphrases of the work by Kant's contemporaries, such as Beck, Stang, and Tieftrunk, there has not been a single commentary on it for over 18o years). The general neglect of the Doctrine of Right can be accounted for by two independent considerations. First, this work offers no striking4 innovation which can be compared to the "revolution of thinking" in theoretical philosophy and in the foundation of practical philosophy which was generated by the ' There is no common English word that would translate Recht.To reduce terminological problems with the distinction between rechtand Recht, I shalladopt the convention used by Mary Gregor in her translation in The MetaphysicsofMorals(Cambridge: Cambridge University Press, x989) and use "Right" for Rechtand "right" for recht.This avoidsproblems that would arise by translating Rechtas "law"or '~justice."(For different solutions of these translation problems see Thomas Mantner's reviewofImmanuelKant:PerpetualPeaceandOtherEssays,tr. T. Humphrey, in Kant-Stndten80 [1988]:481-85.) " Morris R. Cohen, "A Critique of Kant's Philosophy of Law," in George T. Whitney and David C. Bowers, eds., The Heritageof Kant (Princeton: Princeton University Press, 1939), ~79. s Mary Gregor, LawsofFreedom(Oxford: BlackweU,1963),xi. 4 Nevertheless there are importantinnovations concerning, for example, the separation of Right and ethics and the conceptof a right as an intelligiblepossession. [403] 404 JOURNAL OF THE HISTORY OF PHILOSOPHY 28:3 JULY 1990 first two Critiques. Furthermore in contrast to the theories of Hobbes, Montesquieu , or Rousseau, Kant's Do~tr/ne of Right seems to contain relatively little in the way of new directives for organizing a state, but rather provides a new philosophical foundation for traditional institutions. Political issues, as Kant himself emphasizes towards the end of the introduction to his work, are not addressed. While this makes the lack of interest among scholars outside philosophy understandable, an additional factor limited interest in the Doctrine of Right for a long time) The extremely opaque text is considered to be a problematic product of Kant's later life, best read with the support of his other, earlier statements. 6 As Hannah Arendt, among others, points out, the impression that this is an inferior work is by no means new: "As far as the Doctrine of Right (or of Law) is concerned--which if you read it you will probably find rather boring and pedantic--it is difficult not to agree with Schopenhauer, who said about it, 'It is as if it were not the work of this great man, but the product of an ordinary common man'. ''7' The book is clearly below Kant's usual standards. One serious problem within the text is that paragraphs 8 4-8 of w6 of "Private Right" are false inserts. This was detected about sixty years ago by Gerhard Buchda, who coined the phrase "text corruption" for it. His discovery was repeated in t94 9 by Friedrich Tenbruckg---obviously unaware of Buchda's work--who brought the problem to the attention of Kant scholars. Both authors base their claim on the fact that paragraphs 4-8 of the above mentioned subsection do not fit thematically with the preceding and the following paragraphs. Their inclusion makes the transitions from the third to the fourth and the eighth to the ninth paragraph senseless. To my knowledge, this contention has not been rebutted, 5 Although there isevidenceof a renewed interest in Kant'spoliticalphilosophy, this interest has focused mainly on his shorter essaysfrom the early 179os.See, for example, Howard Williams , Kara's Political Philosophy (New York...