Front Page Titles (by Subject) IV.: General preliminary Conceptions defined and explained. - The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right
Return to Title Page for The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
IV.: General preliminary Conceptions defined and explained. - Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right 
The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right, by Immanuel Kant, trans. W. Hastie (Edinburgh: Clark, 1887).
About Liberty Fund:
The text is in the public domain.
Fair use statement:
General preliminary Conceptions defined and explained.
(Philosophia practica universalis.)
Freedom.—The conception of Freedom is a conception of pure Reason. It is therefore transcendent in so far as regards Theoretical Philosophy; for it is a conception for which no corresponding instance or example can be found or supplied in any possible experience. Accordingly Freedom is not presented as an object of any theoretical knowledge that is possible for us. It is in no respect a constitutive, but only a regulative conception; and it can be accepted by the Speculative Reason as at most a merely negative Principle. In the practical sphere of Reason, however, the reality of Freedom may be demonstrated by certain Practical Principles which, as Laws, prove a causality of the Pure Reason in the process of determining the activity of the Will, that is independent of all empirical and sensible conditions. And thus there is established the fact of a pure Will existing in us as the source of all moral conceptions and laws.
Moral Laws and Categorical Imperatives. — On this positive conception of Freedom in the practical relation certain unconditional practical Laws are founded, and they specially constitute Moral Laws. In relation to us as human beings, with an activity of Will modified by sensible influences so as not to be conformable to the pure Will, but as often contrary to it, these Laws appear as Imperatives commanding or prohibiting certain actions; and as such they are Categorical or Unconditional Imperatives. Their categorical and unconditional character distinguishes them from the Technical Imperatives which express the prescriptions of Art, and which always command only conditionally. According to these Categorical Imperatives, certain actions are allowed or disallowed as being morally possible or impossible; and certain of them or their opposites are morally necessary and obligatory. Hence, in reference to such actions, there arises the conception of a Duty whose observance or transgression is accompanied with a Pleasure or Pain of a peculiar kind, known as Moral Feeling. We do not, however, take the Moral Feelings or Sentiments into account, in considering the practical Laws of Reason. For they do not form the foundation or principle of practical Laws of Reason, but only the subjective Effects that arise in the mind on the occasion of our voluntary activity being determined by these Laws. And while they neither add to nor take from the objective validity or influence of the moral Laws in the judgment of Reason, such Sentiments may vary according to the differences of the individuals who experience them.
The following Conceptions are common to Jurisprudence and Ethics as the two main Divisions of the Metaphysic of Morals.
Obligation. — Obligation is the Necessity of a free Action when viewed in relation to a Categorical Imperative of Reason.
The Allowable. — Every Action is allowed (licitum) which is not contrary to Obligation; and this Freedom not being limited by an opposing Imperative, constitutes a Moral Right as a warrant or title of action (facultas moralis). From this it is at once evident what actions are disallowed or illicit (illicita).
Duty. — Duty is the designation of any Action to which any one is bound by an obligation. It is therefore the subject-matter of all Obligation. Duty as regards the Action concerned, may be one and the same, and yet we may be bound to it in various ways.
Act; Agent.—An Action is called an Act—or moral Deed—in so far as it is subject to Laws of Obligation, and consequently in so far as the Subject of it is regarded with reference to the Freedom of his choice in the exercise of his Will. The Agent—as the actor or doer of the deed—is regarded as, through the act, the Author of its effect; and this effect, along with the action itself, may be imputed to him, if he previously knew the Law, in virtue of which an Obligation rested upon him.
Person; Imputation.—A Person is a Subject who is capable of having his actions imputed to him. Moral Personality is, therefore, nothing but the Freedom of a rational Being under Moral Laws; and it is to be distinguished from psychological Freedom as the mere faculty by which we become conscious of ourselves in different states of the Identity of our existence. Hence it follows that a Person is properly subject to no other Laws than those he lays down for himself, either alone or in conjunction with others.
Thing.—A Thing is what is incapable of being the subject of Imputation. Every object of the free activity of the Will, which is itself void of freedom, is therefore called a Thing (res corporealis).
Right and Wrong. — Right or Wrong applies, as a general quality, to an Act (rectum aut minus rectum), in so far as it is in accordance with Duty or contrary to Duty (factum licitum aut illicitum), no matter what may be the subject or origin of the Duty itself. An act that is contrary to Duty is called a Transgression (reatus).
Fault; Crime.—An unintentional Transgression of a Duty, which is, nevertheless, imputable to a Person, is called a mere Fault (culpa). An intentional Transgression—that is, an act accompanied with the consciousness that it is a Transgression—constitutes a Crime (dolus).
Just and Unjust.—Whatever is juridically in accordance with External Laws, is said to be Just (Jus, iustum); and whatever is not juridically in accordance with external Laws, is Unjust (unjustum).
Collision of Duties.—A Collision of Duties or Obligations (collisio officiorum s. obligationum) would be the result of such a relation between them that the one would annul the other, in whole or in part. Duty and Obligation, however, are conceptions which express the objective practical Necessity of certain actions, and two opposite Rules cannot be objective and necessary at the same time; for if it is a Duty to act according to one of them, it is not only no Duty to act according to an opposite Rule, but to do so would even be contrary to Duty. Hence a Collision of Duties and Obligations is entirely inconceivable (obligationes non colliduntur). There may, however, be two grounds of Obligation (rationes obligandi), connected with an individual under a Rule prescribed for himself, and yet neither the one nor the other may be sufficient to constitute an actual Obligation (rationes obligandi non obligantes); and in that case the one of them is not a Duty. If two such grounds of Obligation are actually in collision with each other, Practical Philosophy does not say that the stronger Obligation is to keep the upper hand (fortior obligatio vincit), but that the stronger ground of Obligation is to maintain its place (fortior obligandi ratio vincit).
Natural and Positive Laws. — Obligatory Laws for which an external Legislation is possible, are called generally External Laws. Those External Laws, the obligatoriness of which can be recognised by Reason à priori even without an external Legislation, are called Natural Laws. Those Laws, again, which are not obligatory without actual External Legislation, are called Positive Laws. An External Legislation, containing pure Natural Laws, is therefore conceivable; but in that case a previous Natural Law must be presupposed to establish the authority of the Lawgiver by the Right to subject others to Obligation through his own act of Will.
Maxims. — The Principle which makes a certain action a Duty, is a Practical Law. The Rule of the Agent or Actor, which he forms as a Principle for himself on subjective grounds, is called his Maxim. Hence, even when the Law is one and invariable, the Maxims of the Agent may yet be very different.
The Categorical Imperative.—The Categorical Imperative only expresses generally what constitutes Obligation. It may be rendered by the following Formula: ‘Act according to a Maxim which can be adopted at the same time as a Universal Law.’ Actions must therefore be considered, in the first place, according to their subjective Principle; but whether this principle is also valid objectively, can only be known by the criterion of the Categorical Imperative. For Reason brings the principle or maxim of any action to the test, by calling upon the Agent to think of himself in connection with it as at the same time laying down a Universal Law, and to consider whether his action is so qualified as to be fit for entering into such a Universal Legislation.
The simplicity of this Law, in comparison with the great and manifold Consequences which may be drawn from it, as well as its commanding authority and supremacy without the accompaniment of any visible motive or sanction, must certainly at first appear very surprising. And we may well wonder at the power of our Reason to determine the activity of the Will by the mere idea of the qualification of a Maxim for the universality of a practical Law, especially when we are taught thereby that this practical Moral Law first reveals a property of the Will which the Speculative Reason would never have come upon either by Principles à priori, or from any experience whatever; and even if it had ascertained the fact, it could never have theoretically established its possibility. This practical Law, however, not only discovers the fact of that property of the Will, which is Freedom, but irrefutably establishes it. Hence it will be less surprising to find that the Moral Laws are undemonstrable, and yet apodictic, like the mathematical Postulates; and that they, at the same time, open up before us a whole field of practical knowledge, from which Reason, on its theoretical side, must find itself entirely excluded with its speculative idea of Freedom and all such ideas of the Supersensible generally.
The conformity of an Action to the Law of Duty constitutes its Legality; the conformity of the Maxim of the Action with the Law constitutes its Morality. A Maxim is thus a subjective Principle of Action, which the individual makes a Rule for himself as to how in fact he will act.
On the other hand, the Principle of Duty is what Reason absolutely, and therefore objectively and universally, lays down in the form of a Command to the individual, as to how he ought to act.
The Supreme Principle of the Science of Morals accordingly is this: ‘Act according to a Maxim which can likewise be valid as a Universal Law.’ — Every Maxim which is not qualified according to this condition, is contrary to Morality.
Law; Legislator.—A morally practical Law is a proposition which contains a Categorical Imperative or Command. He who commands by a Law (imperans) is the Lawgiver or Legislator. He is the Author of the Obligation that accompanies the Law, but he is not always the Author of the Law itself. In the latter case, the Law would be positive, contingent, and arbitrary. The Law which is imposed upon us à priori and unconditionally by our own Reason, may also be expressed as proceeding from the Will of a Supreme Lawgiver or the Divine Will. Such a Will as Supreme can consequently have only Rights and not Duties; and it only indicates the idea of a moral Being whose Will is Law for all, without conceiving of Him as the Author of that Will.
Imputation; Judgment; Judge.—Imputation, in the moral sense, is the Judgment by which any one is declared to be the Author or free Cause of an action which is then regarded as his moral fact or deed, and is subjected to Law. When the Judgment likewise lays down the juridical consequences of the Deed, it is judicial or valid (imputatio judiciaria s. valida); otherwise it would be only adjudicative or declaratory (imputatio dijudicatoria).—That Person—individual or collective—who is invested with the Right to impute actions judicially, is called a Judge or a Court (judex s. forum).
Merit and Demerit.—When any one does, in conformity with Duty, more than he can be compelled to do by the Law, it is said to be meritorious (meritum). What is done only in exact conformity with the Law, is what is due (debitum). And when less is done than can be demanded to be done by the Law, the result is moral Demerit (demeritum) or Culpability.
Punishment; Reward.—The juridical Effect or Consequence of a culpable act of Demerit is Punishment (poena); that of a meritorious act is Reward (præmium), assuming that this Reward was promised in the Law and that it formed the motive of the action. The coincidence or exact conformity of conduct to what is due, has no juridical effect.—Benevolent Remuneration (remuneratio s. repensio benefica) has no place in juridical Relations.
INTRODUCTION to THE SCIENCE OF RIGHT.
GENERAL DEFINITIONS AND DIVISIONS.