Justice: Binary for Legislation, Scalar for States

Kant scholars whose work focuses on the Doctrine of Right often refer to “justice” as an attribute that both legislation and states themselves may exhibit or lack. But whilst legislation a kind of action, a state itself is a kind of agent. This paper will consider whether two such metaphysically distinct kinds of things can share a single attribute and, if so, how this is possible. It will also critically examine apparent claims that justice is a scalar, rather than binary attribute, and will argue for the view that justice is a binary attribute of legislation, but a scalar attribute of states. Kant’s standard for the justice of legislation asks whether the proposition represented by legislative language is logically compatible with the idea of the original contract. If the two concepts are logically incompatible, then universal freedom under law cannot possibly coexist with a moral obligation to obey the legislative command, and the legislation is unjust. Because this test compares two concepts, it can yield only binary results. Legislation cannot exhibit varying degrees of “justice”. Kant never discusses the justice of legislation in scalar terms, but he does offer scalar assessments of the extent to which a state “accords with right”. (MM 6:340; PP 8:373) There are at least two ways in which just legislation could potentially contribute positively to a scalar assessment of the overall justice of a state. First, we might think of the justice of a state as an attribute of the state’s set of legislative enactments considered as a whole. Some of these enactments will be just, whilst others will be unjust. In the context of Kant’s ethical theory, Ralf Bader has shown how the binary moral status (virtuous or not) of every maxim on which a particular person ever acts can, when aggregated, form an extensive magnitude that can coherently be considered a scalar attribute of a human person: the extent to she is virtuous. Analogously, we could think of the justice of a state as determined by the proportion of its legislative enactments that pass the modal consent test. On this account, any unjust enactment would marginally reduce the overall justice of the state rather than contributing to it. Alternatively, we might think of the justice of the state as a measure of the extent to which the state, considered as an empirical agent, qualitatively resembles “a pure Republic”. (MM 6:340) An idea, such as the idea of the original contract, is an abstract regulatory principle (a rule). By contrast, an “ideal” is an archetype: an “original image” of a perfect being against whom agents can measure their continual improvement. (CPR a569/b597) Just as Kant’s “sage” is an ideal human person, his “pure Republic” is an ideal individual state. Such archetypes exist only in our minds, yet they are indispensable to our pursuit of holistic holiness—or justice—as empirical agents. (CPR a569/b597) An empirical state that adopts unjust legislation would thereby reduce the extent to which that state conforms to this holistic ideal.