Provisional and Private Legality in Kant

The status of private right in the Kantian state of nature should be reconsidered. Instead of conceiving of private right as pre-institutional innate and acquired rights, I suggest that it is constituted by a set of “unconditional hypothetical principles” of the following form: “If and only if (and once) we find ourselves in a rightful condition, then we should establish a regime incorporating ‘innate’ and acquired rights.” These principles, as opposed to the private rights that they refer to in the consequent, apply in the state of nature. Within a Kantian framework, however, these principles’ common antecedent expresses a practical necessity (the duty to enter a rightful condition). One objection to my proposal is that this necessity cannot be vindicated when all private rights (Kant’s innate right to external freedom included) disappear from the state of nature. Instead of seeking an alternative “Archimedean point” for establishing the presence of a rightful condition, my response reinterprets the antecedent’s necessity along the lines of Axel Honneth’s method of “normative reconstruction.” Ultimately, the normative authority of the hypothetical principles’ consequents (i.e., the specific private-right requirements) is anchored in the institutions and practices of citizens who are always already entangled in the process of realizing a rightful condition. In order to establish these claims the paper takes a stark contrast in contemporary Kant scholarship as its starting point. Byrd and Hruschka, on the one hand, and Allan Brudner, on the other, are occupying the opposing extreme ends of a spectrum of interpreting Kant’s notion of legality. The former categorize Byrd as almost a natural law theorist; Brudner regards Kant’s legal philosophy as getting very close to what in contemporary parlance is referred to as legal positivism. I suggest that in order to overcome this interpretive impasse, we should first consider where consistency leads us when we develop Brudner’s central thesis to its very end. Rendering acquired rights conclusive, in the course of completely unconstrained (by any prior normative constraints) omnilateral willing, spills over into rendering the supposed innate right equally conditional on the normative concept of a rightful condition. I follow Lea Ypi and William Edmundson who exploit Kantians’ underspecification of what innate right amounts to into that same direction. The argument suggests that Kant’s private rights (innate as well as acquired) are to be understood post-institutionally. These notions are constitutive elements of a theory of the legal subject and should not be read along the lines of traditional state of nature arguments. Even innate right is a heuristic device that is supposed to conceptualize the normative limits of state power under a Weberian monopoly of violence. In order to show that these claims are less radical and problematic than they might appear at first, I emphasize that Kant’s account of legal normativity and personhood stands besides his ethical edifice. My proposal would only be problematically threatening to agents’ interpersonal standing if it suggested that Kant’s legal philosophy must provide all the normative resources for structuring our other-regarding affairs.