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16 Kant: Permissive Law and Property In a path-breaking article published in 1982 Reinhold Brandt called attention to the significance of the concept of permissive natural law in Kant’s political philosophy; the author noted that Kant’s “permissive law of practical reason” was of fundamental importance for understanding the whole theory of the Rechtslehre (Doctrine of Right or Doctrine of Justice).1 Brandt complained that this aspect of Kant’s teaching had been virtually ignored in the earlier secondary literature. Since he wrote, however, others have taken up the issues he raised and a significant body of new writing on Kant’s doctrine has appeared.2 A consideration of the great philosopher’s teaching 1. Die Metaphysik der Sitten, in Kant’s Gesammelte Schriften (Königlich Preussischen Akademmie der Wissenschaften: Berlin, 1907), Pt. 2, vol. 6. The Doctrine of Right forms the first part of the Metaphysics of Morals. See Mary Gregor, trans., The Metaphysics of Morals (Cambridge: Cambridge University Press, 1991). I have generally followed Gregor’s excellent translation but occasionally departed from it. For instance , Gregor often translates Kant’s Gesetz as “principle” where it seems to me that the more obvious word “law” is preferable, especially since Kant sometimes added the Latin word lex in parentheses. I have also followed Gregor’s practice of capitalizing the word “Right” when it refers to justice generally but not when it refers to an individual right (though sometimes Kant’s text is ambiguous). In subsequent notes I give a page reference to Gregor’s translation and in parentheses a reference by volume and page to the original text in the Prussian Academy edition of Kant’s Gesammelte Werke. Italics in quotations from Kant are all in the original text. 2. R. Brandt, “Das Erlaubnisgesetz, oder: Vernunft und Geschichte in Kants 326 Kant: Permissive Law and Property  327 on permissive natural law will provide a fitting conclusion to our own study. Kant in Contexts Kant’s renown as an innovative thinker rests mainly on his two major works of critical philosophy, the Critique of Pure Reason and Critique of Practical Reason; but in his later years he applied the principles formulated in those works to practical problems concerning the right relationship between states, right order within a state, and the ties of justice subsisting between private individuals. Consideration of this last topic, a principal theme of Kant’s Rechtslehre, led the author to undertake a detailed discussion of the origin of individual ownership and of the metaphysical principles that could explain how an original acquisition of property could be possible and rightful.3 And it was in considering these questions that Kant presented his own version of a doctrine of permissive natural law. (For Kant laws that could Rechtslehre,” in Rechtsphilosophie der Aufklärung, edited by R. Brandt (Berlin: de Gruyter, 1982), 233–85. Brandt restated his argument in a later article, “Das Problem der Erlaubnisgesetze im Spätwerk Kants,” in Zum ewigen Frieden Immanual Kant, edited by O. Höffe (Berlin: Akademie Verlag, 1995), 69–86. See W. Kersting , “Freiheit und Intelligibiliter Besitz,” Allgemeine Zeitschrift für Philosophie 6 (1981): 31–51 and “Politics, Freedom, and Order: Kant’s Political Philosophy,” in The Cambridge Companion to Kant, edited by P. Guyer (Cambridge: Cambridge University Press, 1992), 342–66 (esp. 348–51). 3. The best general account of the Doctrine of Right is A. Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge, Mass.: Harvard University Press, 2009). Many particular aspects of the work are discussed in M. Timmons , ed., Kant’s Metaphysics of Morals: Interpretative Essays (Oxford: Oxford University Press, 2002). A detailed commentary on the text is provided by B. S. Byrd and J. Hruschka, Kant’s Doctrine of Right. A Commentary (Cambridge: Cambridge University Press, 2010), with bibliography. Articles that focus on the particular problems discussed below include K. Baynes, “Kant’s Property Rights and the Social Contract,” The Monist 72 (1989): 433–53; K. Flickschuh, “Freedom and Constraint in Kant’s Metaphysical Elements of Justice,” History of Political Thought 20 (1999): 250–71; J. Hruschka, “The Permissive Law of Practical Reason in Kant’s Metaphysics of Morals,” Law and Philosophy 23 (2004): 47–72; A. Szywolak, “Kant’s Permissive Law: Critical Rights, Sceptical Politics,” British Journal for the History of Philosophy 17 (2009): 567–600. For an earlier treatment of the problems discussed here see Tierney, “Permissive Natural Law and Property: Gratian to Kant,” Journal of the History of Ideas 62 (2001): 381...

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