♦ Immanuel Kant (1724-1804)

♦ The Philosphy of Law (1797)

♦ Basic Issues

♦ A priori and a posteriori knowledge

♦ A priori = things known independently of experience or sensual impressions. Must exist in order to account for a posteriori knowledge

♦ A posteriori = empirical knowledge which has its sources in experience or the senses

♦ Analytical Judgement and Synthetic Judgement

♦ Analytical judgement = things known a priori, or where the subject contains the predicate (A tall man is a man).

♦ Sythetic judgement = not analytic, things known a posteriori which can be tested or proved only through experience (This class is great) ;-)

♦ Noumenon and Phenomena

♦ Noumenon = a thing in itself. Similar to a priori knowledge in that it must exist in order to account for phenomena

♦ Phenomena = a thing as it appears (to the senses).

♦ Query: Does a Corporation Exist?

♦ III. The Division of a Metaphysic of Morals

♦ Legislation has two elements:

♦ Law represents the action which ought to happen as necessary objectively

♦ The motive connecting the principle determining the will to the action subjectively

♦ Thus duty is made the motive of the action.

♦ Laws which make an action a duty, and this duty a motive for that action, are ethical

♦ Laws which do not make the duty-motive connection are juridical

♦ Therefore:

♦ The agreement or non-agreement of an action with the law (without regard to the motive which resulted in the action) is a measure of the acts legality

♦ The character of the action where the legal duty at the same time forms the motive of the action is its morality

♦ IV. General Preliminary Conceptions

♦ Concept of Freedom is a conception of pure reason - transcendent - explainable only as a negative principle

♦ Pure Will exists in us as the source of all moral conceptions and moral law

♦ These conceptions/moral laws appear as imperatives commanding or prohibiting certain actions and are therefore categorical or unconditional imperatives

♦ Obligation flows from an imperative (a rule) which makes an action, otherwise contingent, necessary

♦ Duty is the designation given an action to which one is bound by obligation

♦ An action neither prohibited nor required is simply allowed, thus it is morally indifferent and we have a freedom to do or refrain from such actions

♦ Right or wrong simply denote action in accordance with, or contrary to, duty

♦ IV. General Preliminary Conceptions (Cont.)

♦ Obligatory Laws which can be recognized a priori (even in the absence of legislation) are natural laws

♦ Those Laws which are not obligatory absent legislation are called positive laws

♦ The ultimate categorical imperative is: “Act according to a maxim which can be adopted at the same time as a universal law.”

♦ Conformity of an action to duty constitutes its legality

♦ Conformity of the maxim of the action with the law constitutes its morality - thus the maxim is a subjective principal of action by which the individual decides how he, in fact, will act

♦ Freedom is known only by the negative property of not being required to act in a certain way, though man is capable of choosing to act with or against the law

♦ Results of Acts are imputed to the doer of the act

♦ Introduction to the Science of Right
What is Right?

♦ External legislation is the object of the Science of Right

♦ This question is embarrasing to the jurist (what is truth?)

♦ Sometimes easy to determine in particular cases

♦ Very difficult to decide

♦ Whether something in particular is right in the abstract, or

♦ What universal criteria can be used to gauge right & wrong, just & unjust

♦ Concept of Right (moral obligation)

♦ Matters only in external relations between people insofar as their actions impact or influence each other, directly or indirectly

♦ Is not concerned with the wishes of a party, but relate only to the freedom of action of the parties

♦ The matter of will cannot be accounted, but only the reciprocal relation of voluntary actions (not whether a profit is made, but rather whether the form of the transaction is proper)

♦ C. - E. Universal Principle(s) of Right

♦ Every action is right which, in itself (or in its maxim) is such that it can coexist along with the freedom of the will of each and all in action, according to a universal law

♦ This idea can be restated as: “Act externally in such a manner that the free exercise of thy will may be able to coexist with the freedom of all others, according to a universal law.”

♦ Taken as such, every right is accompanied with an implied authority to bring compulsion to bear on any one who may violate it in fact

♦ The conception of right, therefore, may be viewed as consisting immediately in the possibility of a universal reciprocal compulsion, in harmony with the freedom of all

♦ Right, and title to compel, indicate the same thing

♦ Equivocal Rights

♦ There are two sources of right which cannot always be joined with a right to compel:

♦ Equity

♦ Equity, objectively, does not constitute a claim upon the moral duties of another

♦ However, equity is founded upon a claim of a right to the same

♦ The dictum of equity is “The strictest right is the greatest wrong”

♦ Think of the story of the pound of flesh.

♦ Necessity

♦ The supposed right to injure (or kill) an innocent other to save my own life

♦ How do we allow violence against one who has used none against me?

♦ The assertion of this right has nothing to do with objective law, but only as to how sentence would be imposed by a court

♦ No punishment would be sufficient to compel obedience in its intended effect – for the threat of punishment in such cases is uncertain, while the fear of the immediate danger is certain

♦ The dictum of necessity is that “Necessity has no law,” yet their is no necessity that can make what is wrong lawful

♦ Necessity is therefore subjective, not objective

♦ General Division of the Duties of Right

♦ Live Rightly

♦ Do not make thyself a mere means for the use of others, but be to them likewise an end

♦ Do wrong to no one

♦ Do no wrong to any one, even if thou shouldst be under the necessity, in observing this duty, to cease from all connection with others and to avoid all society

♦ Assign to every one what is his own

♦ Enter, if wrong cannot be avoided, into a society with others in which every on may have secured to him what is his own

♦ Enter into a state in which every one can have what is his own secured against the action of every other

♦ These three formulae, represent a divion of juridical duties into:

♦ Internal Duties

♦ Exertnal Duties

♦ Connecting Duties

♦ The Universal Division of Rights

♦ Natural Right and Positive Right

♦ Natural rights rest upon the pure rational principles a priori

♦ Positive or Statutory Rights arise from the will of the legislator

♦ Innate Right and Acquired Right

♦ Innate Right is that right which belongs to every one in nature, independent of all juridical act of experience

♦ There is only one innate right - the birthright of freedom

♦ Acquired right is the right which is founded upon juridical (legislative or judicial) acts

♦ Freedom is independence from the compulsory will of another

♦ Natural Right v. Social Right v. Civil Right

♦ Natural Right denotes a private right

♦ Social Right is a misnomer, as society may exist between men in the state of nature even though no institution secures the mine and thine by public law

♦ Civil Society secures public rights (i.e. mine and thine) by public laws, and is thus the source of civil rights

♦ Query

♦ If we cannot prove the “right”, may the hypothesis be accepted:

♦ In order to explain a certain phenomenon

♦ To attain a certain end either

♦ Pragmatic - to develop certain ends

♦ Moral - to adopt a putpose and create corresponding duties

♦ Although there is no obligation to believe in a certain end, is it better to do so when that belief results in a result which is seen as good – even though its goodness cannot be demonstrated?

♦ If so, does that belief (arbitrarily adopted) create a duty incumbent upon us with regard to it – even if we do not personally believe it?