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Kant's Indemonstrable Postulate of Right: A Response to Paul Guyer

Published online by Cambridge University Press:  25 March 2011

Katrin Flikschuh
Katrin Flikschuh
Affiliation:
London School of Economics
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Extract

The indispensability of the ‘postulate of practical reason with regard to Right’ to Kant's property argument in the Rechtslehre is now widely recognized. However, most commentators continue to focus their attention on the relation between the postulate and the deduction of the concept of intelligible possession. The nature of this relation remains a matter of dispute in part because the precise position of the postulate within chapter one of the Rechtslehre remains undecided. Given this, it is perhaps not surprising that the related question has been neglected, as to why Kant should characterize the postulate of Right as a postulate of practical reason. Yet the fact that he does so is of some significance – especially if one recalls the definition in the Critique of Practical Reason of postulates of practical reason as practically necessary but theoretically indemonstrable propositions. What is of interest about this definition is not just the fact that it designates postulates as practically necessary and as theoretically indemonstrable at the same time – even more intriguing is the intimated relation between practical necessity and theoretical indemonstrability. Kant does not think the postulates' theoretical indemonstrability morally insignificant. To the contrary, their moral significance for us appears to be a function, in part, of their theoretical indemonstrability.

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Articles
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Kantian Review , Volume 12 , Issue 1 , March 2007 , pp. 1 - 39
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Copyright © Kantian Review 2007

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References

Notes

1 Kant, Refl. Nr 71717=XIX 263, quoted in Wimmer, Reiner, Rants Kritische Religionsphilsophie (Berlin: de Gruyter, 1990), p.1CrossRefGoogle Scholar.

2 Rechtslehre (RL) 6: 246. The following translations of Kant's works have been used: The Metaphysics of Morals (Part I, The Metaphysical First Principles of Right (here referred to as Rechtslehre)), trans. Gregor, Mary (Cambridge: Cambridge University Press, 1991)Google Scholar; The Critique of Pure Reason (CPR), trans. Smith, Norman Kemp (London: Macmillan, 1933Google Scholar, second impression (1993 reprint); Groundwork of the Metaphysics of Morals (GW), trans. Paton, H. J. (New York: Harper Torchbooks, 1964)Google Scholar; The Critique of Practical Reason (CprR), trans. Beck, Lewis White (New York: Macmillan, 1956, 1993, reprint)Google Scholar; Towards Perpetual Peace (PP), in Kant's Political Writings, trans. Nisbet, H. B. (Cambridge: Cambridge University Press, 1970)Google Scholar. Volume and page references are to the Prussian Academy edition of Kant's collected works.

3 The ‘spoilt’ condition of the originally published edition of the Rechtslehre has been the subject of intense discussion. In 1929 Gerhard Buchda suggested the elimination of section 4–8 from §6 from the text, as their subject matter was irrelevant to the announced task of §6 of providing a deduction of the concept of intelligible possession. See Buchda, Gerhard, Das Privatrecht Kants. Ein Beitrag zur Geschichte und zum System des Naturrechts (Diss. Jena, 1929)Google Scholar. More recently, Bernd Ludwig has proposed more substantial revisions of the originally published text, including, most controversially, shifting the ‘postulate of practical reason with regard to Right’ from its original location in §2 to §6. See Kant, Immanuel, Metaphysische Anfangsgründe zur Rechtslehre, ed. Ludwig, Bernd (Hamburg: Felix Meiner Verlag, 1986)Google Scholar. For Ludwig's defence of these revisions, see Ludwig, Bernd, Kants Rechtslehre (Hamburg: Felix Meiner Verlag, 1988)Google Scholar. For a sharp criticism of Ludwig's proposal, see Tuschling, Burkhard, ‘Das rechtliche Postulat der praktischen Vernunft: seine Stellung und Bedeutung in Kant's Rechtslehre’, in Oberer, H. and Seel, G. (eds), Kant. Analysen - Probleme - Kritik (Konigshausen und Neumann, 1988), pp. 273–90Google Scholar. More generally, scholarly work on the postulate of Right is more advanced in Germany than it is in the English-speaking world. Apart from Ludwig's work, the most influential single recent publication on the postulate is Brandt's, Reinhard ‘Das Erlaubnisgesetz, oder: Vernunft und Geschichte in Kants Rechtslehre’, in Brandt, (ed.), Rechtsphilosophie der Aufklarung (Berlin: de Gruyter, 1982), pp. 233–85Google Scholar. See also Kersting, Wolfgang, Wohlgeordnete Freiheit (Frankfurt: Suhrkamp Verlag 1993) (original hardback edition published with de Gruyter, 1984) pp. 241–50Google Scholar. Amongst Anglo-American Kant scholars, the postulate is most extensively discussed by Mulholland, Leslie in his Kant's System of Rights (New York: University of Cornell, 1991), pp. 243–57Google Scholar. See also my own analysis and reconstruction of the postulate of Right in Flikschuh, Katrin, Kant and Modern Political Philosophy(Cambridge: Cambridge University Press, 2000), pp. 113–43Google Scholar.

4 I am thinking of the influential interpretations offered of Kant's practical philosophy by former students of John Rawls, such as, for example, Korsgaard, Christine, Creating the Kingdom of Ends (Cambridge: Cambridge University Press, 1996)Google Scholar; Herman, Barbara, The Practice of Moral judgement (Cambridge, MA: Harvard University Press, 1993)Google Scholar; Hill, Thomas, Respect, Pluralism, and Justice: Kantian Perspectives (Oxford: Oxford University Press, 2000)Google Scholar.

5 See Marina, Jacqueline, ‘Making sense of Kant's highest good’, KantStudien, 91 (2000), 329–55Google Scholar; also Friedman, R. Z., ‘The importance and function of Kant's highest good’, Journal of the History of Philosophy, 22 (1984), 325–42Google Scholar. Both authors emphasize what John Silber has called the ‘transcendent conception’ of the Highest Good, though both attribute a meaning to this term which differs from Silber's use of it in ‘Kant's conception of the highest good as immanent and transcendent’, The Philosophical Review, 68 (1959), 460–92Google Scholar. For an influential reading that is unsympathetic both towards the postulates and towards the concept of transcendence more generally see Beck, L. W., A Commentary on Kant's Critique of Practical Reason (Chicago: University of Chicago Press, 1960), pp. 242–81Google Scholar.

6 My use of transcendence as ‘acknowledged unknowability’ is indebted to T. L. S. Sprigge's interpretation of speculative metaphysics in those terms. See his, ‘Has speculative metaphysics a future?’, The Monist, 81 (1998), 513–33CrossRefGoogle Scholar.

7 Guyer, Paul, ‘Kant's deductions of the principles of Right’, in Timmons, Mark (ed.), Kant's Metaphysics of Morals. Interpretative Essays (New York: Oxford University Press, 2002), pp. 23–64.Google Scholar

8 See, for example, , Guyer's papers on ‘Kantian foundations for liberalism’ and ‘Life, liberty, and property: Rawls and Kant’, in Guyer, , Kant on Freedom, Law, and Happiness (Cambridge: Cambridge University Press), 2000Google Scholar.

9 RL, 6:219.

10 Willascheck, Markus, ‘Why the Doctrine of Right does not belong in the Metaphysics of Morals’, Jahrbuch fur Recht und Ethik 5 (1997), 205–27 (223).Google Scholar

11 , Guyer, ‘Kant's deductions’, 33.Google Scholar

12 RL, 6: 230.

13 , Ludwig, Analytischer Kommentar, 92–101Google Scholar. See also Ludwig, Bernd, ‘Whence public right? The role of theoretical and practical reasoning in Kant's Doctrine of Right’, in Timmons, (ed.), Kant's Metaphysics of Morals, pp. 159–84Google Scholar. For an alternative argument regarding the relationship between the universal principle of Right and the categorical imperative, see Höffe, Otfried, ‘Kant's Principle of Justice as categorical imperative of law’, in Yovel, Y. (ed.), Kant's Practical Philosophy Reconsidered (Amsterdam: Kluwer Academic Publishers, 1989), pp. 149–67Google Scholar. See also Wolfgang Kersting, who speaks of a ‘dual legislation’ (‘doppelte Gesetzgebung’) in relation to the domains of law and ethics respectively in Wohlgeordnete Freiheit, 175-81.

14 Cf. RL 6: 238: ‘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.’

15 Cf. Brandt, Reinhard, Eigentumstheorien von Grotius bis Kant (Stuttgart: Frommann-Holzboog Verlag, 1974), 167–76Google Scholar. At RL, 6: 268, 269 Kant comments that ‘the first working, enclosing, or, in general, transforming of a piece of piece of land can furnish no title of acquisition to it’. The view that it does, ‘which is so old and still so widespread’ is due to the ‘tacit prevalent deception of personifying things and of thinking of a right to things as being directly a right against them, as if someone could, by the work he expends upon them, put things under an obligation to serve him and no one else’. As Brandt points out, in ‘Comments on the observations on the beautiful and the sublime’, Kant himself defended a view according to which the right to external possessions can be derived from a person's power of control over their own body, including the work produced by that body.

16 RL, 6: 245, 246.

17 RL, 6: 246 ‘If it were not within my rightful power to make use of [an external object of my choice], then freedom would be depriving itself of the use of its choice with regard to an object of choice.’

18 This assumption is justified in so far as the moral authority of the universal principle of Right as it is stated in the introduction extends no further than that of the categorical imperative from which it is derived. Since the categorical imperative of the second Critique covers moral relations between subjects but not between subjects with regard to external objects, an additional justificatory argument is required, which extends the universal principle of Right to rightful property relations. This additional argument is supplied, as we shall see, by the postulate of Right.

19 RL, 6: 249.

20 RL, 6: 249.

21 RL, 6: 246.

22 See n. 3 for relevant references.

23 RL, 6: 247.

24 RL, 6: 255: ‘It is possible to have something external as one's own only in a rightful condition, under an authority giving laws publicly, that is, in a civil condition.’ Kant's claim should not be taken to mean that property rights are a matter of positive law, but should be interpreted in the light of Kant's view that rightful possession presupposes the conception of intelligible possession. The latter specifies a lawful relation between subjects with regard to objects, which can be realized only through entrance into civil society.

25 RL, 6: 247.

26 RL, 6: 252.

27 Beck, L. W., A Commentary, p. 251.Google Scholar

28 CprR, 5: 123.

29 CPR, A 72/ B97.

30 According to Mary Zeldin, since a postulate ‘does not express what ought to be, but what is or must be, it is a theoretical, not a practical proposition; but, because it is based on a given moral law, it is related to the employment of practical reason’. See , Zeldin, ‘Principles of reason, degrees of judgement, and Kant's argument for the existence of God’, The Monist, 54 (1979), 285–301, (294)Google Scholar.

31 Albrecht, Michael, Kants Antinomie der Praktischen Vernunft (Hildesheim: Georg Olms Verlag, 1978)Google Scholar. For Albrecht the postulates resolve the antinomy of practical reason, which arises from reason's search for the highest condition of everything that is conditioned. This interpretation of the postulates’ systematic function differs from that of Allen Wood, for whom the postulates are required to solve the absurdum practicum argument. See , Wood, Kant's Moral Religion (Ithaca, N.Y.: Cornell University Press, 1970)Google Scholar.

32 CPR, A 642-668/B 671-697. In fact, the discussion in the first Critique largely confines itself to discussing the legitimate because regulative employment of ideas of reason in theoretical inquiries. However, the Critique of Practical Reason offers an analogous defence of their employment in the practical domain. See CprR, 5: 135-46.

33 CprR, 5:132.

34 WOT, A317/318.

35 Religion, B206/207.

36 Wood, Allen, ‘Rational theology, moral faith, and religion’ in Guyer, Paul (ed.), The Cambridge Companion to Kant (Cambridge: Cambridge University Press, 1992), pp. 394–416 (401)CrossRefGoogle Scholar. Compare CPR, A 820-31/B 848-58.

37 , Zeldin, ‘Reason and judgement’, 285Google Scholar: ‘All knowledge, Kant argues, must be based on the forms of possible experience or deduced from premises known to be true: in th e case of the existence of God, however, the former is impossible because God transcends experience, and the latter is impossible because the premises themselves, to be known to be true, would have t o be grounded in possible experience, while, by the very nature of the question, possible experience has been excluded.’

38 CPR, A825/B853.

39 , Guyer, ‘Kant's deductions’, p. 33.Google Scholar

40 Ibid., p. 36.

41 Ibid., p. 37.

42 Although we have the necessary moral motivation to bring about the Highest Good, we lack ‘the power to create the ideal conditions for its realisation’. Hence we cannot ourselves ensure the conduciveness of the sensible world to the practical realization of the Highest Good. Only God can do this. See Guyer, Paul, ‘From a practical point of view: Kant's conception of a postulate of pure practical reason’, in Guyer, , Kant on Law, Freedom, and Happiness (Cambridge: Cambridge University Press, 2000), pp. 333–72, at 345CrossRefGoogle Scholar.

43 , Guyer, ‘Kant's deductions’, p. 39Google Scholar. This reading seems to me to risk compromising Kant's philosophy of practical hope.

44 , Guyer, ‘Practical point of view’, p. 336.Google Scholar

45 RL, 6: 246.

46 RL, 6: 246.

47 The example is Kant's own. Cf. RL, 6: 248.

48 RL, 6: 246.

49 RL, 6: 247.

50 , Guyer, ‘Kant's deductions’, p. 60.Google Scholar

51 RL, 6: 246.

52 , Guyer, ‘Kant's deductions’, p. 54.Google Scholar

53 Ibid.

54 Ibid., pp. 58-9.

55 RL, 6:256.

56 , Guyer, ‘Kant's deductions, p. 61.Google Scholar

57 Ibid.

58 RL, 6: 258, emphasis added.

59 RL, 6: 262.

60 , Guyer, ‘Kant's deductions’, pp. 60–1.Google Scholar

61 Ibid., p. 63.

62 Ludwig, Bernd, ‘Der Platz des rechtlichen Postulats der praktischen Vernunft innerhalb der Paragraphen 1-6 der Kantischen Rechtslehre’, in Brandt, (ed.), Rechtsphilosophie der Aufkldrung, pp. 218–232, at 218.Google Scholar

63 , Guyer, ‘Kant's deductions’, p. 37.Google Scholar

64 Wolfgang Kersting advances this objection against interpreting the postulate of Right as a postulate of pure practical reason. See Wohlgeordnete Freiheit, 247, n. 32. I respond to this objection in ‘1st das rechtliche Postulat ein Postulat der reinen praktischen Vernunft? Zum Endzweck der Rechtslehre Kants’, Jahrbuch fur Recht und Ethik, 12 (2004), 299–330.Google Scholar

65 RL, 6: 252.

66 RL, 6: 254-5.

67 RL 6: 246.

68 In §7, at RL 6: 255, Kant sketches such an antinomy of Right, when he says that ‘rightfully practical reason is forced into a critique of itself in the concept of something external that is mine or yours, and this by an antinomy of propositions concerning the possibility of such a concept … The thesis says: it is possible to have something external as mine, even though I am not in possession of it. The antithesis says: it is not possible to have something external as mine unless I am in possession of it. Solution: both propositions are true, the first if I understand, by the word possession, empirical possession (possessio phaenomenon), the second if I understand by it purely intelligible possession (possessio noumenort).’ If Kant's statement of the antinomy of Right has received little attention in the literature, this may be because he does not actually mention it until after the deduction of the concept of merely intelligible possession - the key to the ‘solution’ - in §6. The statement of the antinomy in §7 thus has a ‘retrospective’ flavour to it. Nonetheless, the preliminary notes to the Rechtslehre show that the antinomy of Right preoccupied Kant for a considerable length of time, remaining unre-solved until the introduction of the postulate of Right in the published text itself. For a detailed analysis of Kant's earlier notes on the antinomy, see Kersting, Wolfgang, ‘Freiheit und intelligibler Besitz: Kants Lehre vom Synthetischen Rechtssatz a priori’, Zeitschrift fur Philosophie, 6 (1981), 31–51Google Scholar.

69 RL, 6: 246.

70 RL, 6: 247.

71 , Brandt, ‘Das Erlaubnisgesetz’, p. 244Google Scholar: ‘Der systematische Or t des naturrechtlichen Erlaubnisgesetzes ergibt sich in einer Vermittlung von Gebot und Verbot: Es wird etwas “an sich” Verbotenes provisorisch erlaubt und damit geboten, den Rechtsanspruch der Verhinderung nicht wirksam werden zu lassen.’ Brandt makes much of Kant's distinction between ‘provisional Right’ an d ‘peremptory Right’ - a distinction also invoked in Perpetual Peace in connection with a discussion of the legal category of permissive laws as used in natural law theory. According to Kant it is sometimes permissible for a sovereign to refrain from implementing requisite legal reforms an d to abide by existing positive laws that are strictly speaking unjust (contrary to natural law). Postponement of legal reform may be justified under conditions of political instability, or when the expected risks outweigh the benefits of implementing reforms at that point in time. Existing unjust positive laws then count as ‘provisionally just’ so long as it is the sovereign's firm intention to implement the necessary reforms at the earliest possible opportunity. This notion of the ‘provisional’ authorization of a law that is unjust but permissible clearly informs Brandt's analysis of the lex permissiva in the Rechtslehre, where the necessary commission of an injustice is justified with reference to the required inauguration of relations of peremptory Right made possible through that act of necessary injustice.

72 Cf. Kant and Modern Political Philosophy, chapters 5 and 6.

73 See, for example, Hruschka, Joachim, ‘The permissive law of Practical Reason in Kant's Metaphysics of Morals’, Law and Philosophy, 23 (2004), 45–72Google Scholar. See also Hespe, Franz, ‘Wohl dem, der im Besitze ist. Zur Eigentumsbegriindung in Kants Rechtslehre’ in Hiining, D., Stiening, G., Vogel, U. (eds), Societas Rationis. Festschrift fur Burkhard Tuschling zum 65. Geburtstag (Berlin: Duncker & Humblot Verlag, 2002)Google Scholar.

74 RL, 6: 252.

75 RL, 6: 252.

76 I develop this line of thought in more detail in ‘1st das rechtliche Postulat ein Postulat der reinen praktischen Vernunft?’, see n. 64.

77 CPR, A548/B576.

78 GW, 4: 463.

79 CprR, 5: 44.

80 See, for example, Korsgaard, Christine, ‘Morality as freedom’, in Korsgaard, , Kingdom of Ends, pp. 158–87Google Scholar. See also Reath, Andrews, ‘Legislating for a realm of ends: the social dimension of autonomy’, in Reath, A.. Herman, B. and Korsgaard, C. (eds), Reclaiming the History of Ethics. Essays for John Rawls (Cambridge: Cambridge University Press, 1997), pp. 214–40Google Scholar.

81 Grondin, Jean, ‘Zur Phanomenologie des moralischen “Gesetzes”. Das kontemplative Motiv der Erhebung in Kants praktischer Metaphysik’, Kant-Studien, 91 (2000), 385–94.Google Scholar

82 CprR, 5: 162.

83 Guyer, Paul, ‘Freedom as the inner value of the world’, in Guyer, , Freedom, Law, Happiness, pp. 96–128.Google Scholar

84 Ibid., p. 110.

85 Ibid., p. 111.

86 Ibid., p. 113.

87 Guyer, Paul, ‘Kantian liberalism’, in Guyer, , Freedom, Law, Happiness, p. 239.Google Scholar

88 Guyer, Paul, ‘Life, liberty, and property’, in Guyer, , Freedom, Law, Happiness, p. 266, emphasis added.Google Scholar

89 RL, 6: 311. There is nothing in the Rechtslehre that approximates Guyer's account of the ends of Right. As Ludwig emphasizes, the text makes ‘no reference to human desires, needs, or interests… no refer-ence to any rational pursuit of life or the constitution of a person as a source of individuality… no reference to human nature in the sense of being prone to war’ - and no reference, we may add, to the pursuit of human happiness. Cf. , Ludwig, ‘Whence public right?’, in Timmons, M. (ed.), The Metaphysics of Morals, pp. 159–83, at 171Google Scholar.

90 CprR, 5: 44.

91 This paper was originally written for a conference on ‘Kant's philosophy of value’, held at the University of Hertfordshire in March 2003. Different drafts of the paper were given at seminars at the University of Sheffield and at Manchester Metropolitan University. I would like to thank organizers and participants of all these events for their helpful comments and suggestions. My particular thanks to Sorin Baiasu, David Bell, Paul Guyer, Peter Niessen, Onora O'Neill, Jane Singleton and Robert Stern. Finally, I would like to thank the anonymous referees for the Kantian Review for their comments and suggestions for preparing the final version of this paper.