Kantian Equality as a Hohfeldian Immunity

This paper will explore a specific facet of a larger claim I want to make about the structure of innate right, understood in terms of Wesley Newcomb Hohfeld’s fundamental legal relations. I maintain that innate right is best understood as a sort of molecule of interdependent Hohfeldian claim rights, liberties, powers, and immunities, and that Kant’s claim that innate right ‘contains the following authorizations…’ (6:237) can best be understood as laying out these closely-related features. These three so-called ‘authorizations’ can in substance be summarised as 1) equality under law, 2) independence, and 3) association. But what kinds of legal incidents are these? I maintain that innate right itself, independence from constraint, is a true Hohfeldian claim right to bodily autonomy that comes complete with a correlative duty not to violate the bodily autonomy of others. The authorizations of independence and association, I maintain, are best understood as domains of Hohfeldian liberty: potential actions that do not wrong others, and are therefore shielded by our innate right. This paper will focus primarily on Kant’s first ‘authorization’, which I will refer to as equality under law: ‘independence from being bound by others to more than one can in turn bind them’. (6:237-8) I will argue that this is best understood as a Hohfeldian immunity, which is coupled with a correlative disability on the part of those who exercise lawmaking powers, disabling them from imposing legal obligations unequally. I will aim to demonstrate that this is the only understanding of Kantian equality that enables it to coexist with and complete the set of closely related legal incidents that together comprise Kant’s overall account of innate right, and I will also explore its practical implications for our legal obligations. In addition, I hope that thinking about equality under law as a Hohfeldian immunity will yield some guidance concerning the severability of unconstitutional provisions from statutes in the context of, for example, United States law, on the grounds that they violate the constitutional right to equal protection under law.