Law as a Rational Requirement

In a handful of passages in the Doctrine of Right, Kant refers to juridical laws as ‘categorical imperatives’. I take him to mean that juridical laws impose on us unconditional rational requirements to obey their commands. Yet, Kant also seems to insist that juridical laws can impose these duties on us independently of the moral law—the moral law has merely the derivative effect of making our already-existing legal duties ‘indirectly ethical’ as well. Kant thus presents us with a puzzle: how can juridical laws impose unconditional rational requirements to obey—in other words, how can they be categorical imperatives—before incorporating the ethical incentive of respect for law as such? This paper proposes that juridical laws can generate unconditional rational requirements to obey by threatening us with punishments that we could not choose for ourselves without violating our duty of rightful honour. Willaschek and others have correctly observed that our pathological aversion to the pain, discomfort, and shame brought on by criminal punishments cannot move us unconditionally. Rather, this paper argues that is the coercive nature of criminal punishment that we are unconditionally rationally required to avoid. Kant characterizes our duty of rightful honour as an “obligation from the right of humanity in our own person.” In the sphere of contract law, the duty of rightful honour limits the kinds of legally effective contracts a person can make to those that do not throw away her freedom by subjecting her to the coercive will of others. This limitation precludes contracts that would limit one party’s future physical autonomy, such as contracts for slavery or indentured servitude. By contrast, a person who commits a crime forfeits her rightful honour, and through punishment she is, in Kant’s words, “made a mere tool of another’s choice (either of the state or of another citizen). Whoever is another’s tool (which he can become only by a verdict and right) is a bondsman and is the property of another”. By threatening a punishment to which we could not legally bind ourselves by contract, a juridical law provides an external incentive that connects a juridical command with the universal determining ground of our external freedom. As Arthur Ripstein observed in a different context, “Kant cannot accept the idea that the criminal law is a series of [contractual] offers, because these are not offers that anyone could rightfully make.” Because our individual external freedom is a necessary end for us, a juridical law is a categorical imperative. It is our apprehension that a juridical law is a categorical imperative that inspires our respect for law as such, and I argue that this is the way in which all of our legal duties become ‘indirectly ethical’ as well.