Moral law and political law in Kant’s Philosophy:
The Concept of Law is central in Kant‘s Philosophy.
The difference between the moral law and political law is that the moral law is on self-control and assumes the reversibility / obey. I control myself. In the State, on the contrary, one who commands is not necessarily the one who obeys. Which order? This is the political issue. According to Kant, the State is what makes possible a life in common in accordance with reason. But the practical reason raises its requirements from the state of nature and the state of nature is not a state for reason.
The State is for Kant a moral being whose essential meaning is to give an ethical dimension to the various determinations of the activity and human relationships. The law is a legal and moral law, as such, it is necessary, universal, a priori. It controls the action to be performed unconditionally as a duty. It is an expression of practical reason in law. As to the form, the law expresses the sedan just and on the terms the law expresses what is legal, what goes into the reality of the law. The law also determines the sentence passed by courts, giving the sentence a character of necessity (it is the law that apply)
The law binds to the stress. There is need for legal compulsion. The law requires the state: that the law applies to all equally, the law must match for a power of coercion. If the state of nature everyone has the right to force (and therefore the opposite is contingent, without reference, allowed), it is necessary to substitute a constraint whose exercise is unified, rationally organized, which can only be done if the ability to coerce is entrusted to a will that can legislate universally united to the will of the people is to tell the state. The term which mediates stress is right and the state. The law can not assert that legal by the legal constraints of the state. But when the state law requires because it is a legal constraint. The form of the state must be determined by law legal, which means that the state must comply in its essence, the legal requirements of practical reason. The State must have a rational form consistent with the concept of law (this is called a rule of law)
The law thus comes at a time of reason but also the expression of one who commands the right. Or that controls the right? Where is the sovereign authority which gives the law? In the tradition of modern natural law, Kant thinks that the law has its origin in the will of the people considered to be sovereign. “The legislature shall enure to the unified will of the people” For Kant, this view was rationalized. We need a unified commitment is such that as long as it submits to the law it gives itself. It is thought the concept of general will in Rousseau. Kant, like Rousseau, the general will can not be unjust because it rules only on the universal and would be unfair to harm herself.
However, there are differences between Kant and Rousseau:
Kant builds his idea of sovereignty from the idea of his moral (related law / freedom) when Rousseau the general will is justified by its analogy with the natural order (good nature theme)
The rationality of the people is more radical in Kant’s thought than for Rousseau.
The constitution of the legislative will, the act based legally act that is as fundamental law, statute law, is the original contract. “We call the original contract, this fundamental law can only be born of the general will (United) the people.” As in the theory of modern natural law, the social contract is the operator of transition from the state of nature to civil status. It is the constitution of a people that is to say a unified will. It is what unifies the multiplicity and gives it an be common. It is the act which established the state.
Constitutrice union contract is not a means to another end. This union is the end itself. It is “an end in itself”, “duty first and unconditional.” Envelope when the contract itself its own legitimation. It makes the whole of freedom, eliminating any other public law principle determinant, especially happiness. Like Rousseau, Kant thinks that the contract turns freedom. For Rousseau, the contract metamorphosis natural liberty in civil liberty and should allow the man to pose as moral freedom. Kant, as the contract is the act by which freedom is subject to the law and thus becomes true liberty, as freedom law. The man in the state, does not sacrifice its freedom, “but he completely stripped the wild and lawless freedom to find intact in an outbuilding that is legitimate to say in a legal state, freedom in general since this dependence comes from its own legislative will. ”
This contract is not a fact but an idea of reason “which is to require any person to produce that legislates laws so that they can be born from the united will of a people” The contract is a Kantian sound legal principle of legitimation. It is not original but from. The origin of the state is force or violence.
The idea of a contract originally the idea of an envelope having unconditional. Enter a state law is a duty, a categorical imperative law. Therefore everyone should see themselves as contractor, as a member of the unified will of a people. This idea has far-reaching: the contract is certainly a rational ideal that is independent of experience, but for that reason, because the contract is an idea of reason and that reason should be imposed in unsocial sociability The contract is not opposed to the abstract ideal as existing State. Since it is a duty to want the agreement of freedoms, as authority, however imperfect, is the highest law-making that makes possible the agreement, it must submit to the State, even if it is very roughly consistent with the original contract: the existing state must be considered as an approximation of the Idea, as the “phenomenon” of law. Therefore rejected the right of resistance.
Thanks to the Contract, man becomes a citizen and gives true freedom in the form of the will, giving itself its own law, depends only on its own. Freedom amounts to be legal. This legal approach is based on three a priori principles: liberty, equality and independence.
The principle of freedom called the man. Freedom is the essence of law. The basic legal requirement rational must respect any company that is freedom. Freedom is the source of all law.
According to theory and practice, freedom is the principle that “no one can force me to be happy in his own way.” Everyone can find happiness in his own way as long as this research is consistent with the freedom of others. A government that acts for the happiness of his people acting like a father to his children. But the government is despotic father as milking topics of minor children. According to the doctrine of law, freedom is “to obey any law other than that to which everyone agreed”
The principle of equality expresses the necessity of submitting each equal to the law. Kant uses this principle to reject the legal legitimacy of an hereditary nobility holding offices, which would raise the priority over merit.
“This general equality of men in a state, as subjects of it, perfectly coexists with the greatest inequality in the size and the degree of what they have. “The state does not have to take into account the happiness of the citizens, hence a distinction between public and private, the political and the non-political (economic). This also leads to a separation of state from any church. The State shall guarantee freedom of worship, not to prescribe what everyone must believe and think. It has not to meddle in religious reform.
The state will be the same non-interventionist in economic matters.
The principle of citizenship (or independence). Members are citizens of the State so co-legislators. This is a problem there. According to Kant, “regarding the legislation itself, those who are free and equal under existing public laws, however, should not be regarded as equal in right to make these laws” means that all topics are not necessarily citizens, or rather it is necessary to distinguish between active citizens (co legislators) passive citizens (subject to laws they are not the original). The criterion is independence: if all men should enjoy the freedom and equality, yet they are not all independent and therefore suitable for legal status in its completion. Independence is based on natural qualities (being neither wife nor child), but also on positive qualities (being your own master).
He who makes the laws must be independent. The problem is that Kant expresses independence from economic conditions: one who is independent by itself provides to its maintenance, who is the owner, who does not alienate himself for a living . Empirical determination of law that is the problem when you want a metaphysical conception of law, rational.
Kant, the Form and the structure of the state
Any constitution should be republican. “The only constitution which results from the social pact, which must be based on good law of the people, is the republican constitution. Itself is established on principles compatible with 1 ° of freedom which is suitable for all members of society as men 2 ° with the submission of all to a common legislation, as subjects, and finally 3 ° to the right equality, they all have as members of the state. ”
The republican constitution is only compatible with the legal status because it articulates two principles:
- The principle of representation
- The principle of separation of powers.
The principle of representation. “Any true republic is and can be nothing but a representative system of the people, set to take his name, through the union of all citizens, careful of their rights, through the mediation of their delegates ( Deputies) “For Kant this principle allows one to think rationally unified will of the people in its legislative capacity. Rousseau Kant departs here for which the general will can not be represented and joined the Hobbesian conception. Hobbes is the unified representative. The sovereign is identical to the citizens as it acts on their behalf but also different subjects under its law. The sovereign is then compared to its subjects of rights and not duties. But for Kant (unlike Hobbes) the ruler can make mistakes and we have an opportunity “to make public its opinion on which of the steps taken by the sovereign (…) appears to be an injustice to the community”
Kant insists on the opposition Republic / despotism, leaving in the background the question of the types of government. Kant joined by Rousseau: “This is the only stable political constitution, the order by which the law itself and not dependent on any particular person” Kant opposes Republican government in accordance with reason and despotic government (where the determining principle is empirical : happiness)
The principle of separation of powers: if the state has a representative character, think the report of the sovereign and the multitude of subjects. While Rousseau thought indivisible sovereignty (the executive only Delegation), Kant takes the contrary, the theory of Montesquieu but giving it a rational aspect. The separation of powers is not division (which would destroy the unity of the sovereign power). “Each State contains in itself the three branches, namely the unified will reside in three persons.” The unit resides in that the authorities are coordinated, “Everyone [from] complement the other two to complete the constitution of the State” and subordinate it to say that there is an order to determine the legislative the executive and the judiciary. Legislative power is the most basic, the others being only his instruments.
- The legislature “may accrue as the unified will of the people”
- The regent of the State (rex, principis) is the person (or entity) who has the executive power.
- The judiciary. It must be independent of other powers. The executive branch appoints judges, but “it’s the people that it is to judge himself by freely elected representatives that for this purpose for each case, by juries”