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Leslie Mulholland on Kant's Rechtslehre*

Published online by Cambridge University Press:  13 April 2010

Mary Gregor
Affiliation:
San Diego State University

Extract

Although legal positivism is still a position to be reckoned with, the fact that philosophers of law are again talking about “natural rights” indicates that positivism is no longer to be taken for granted. One result of this movement is an incipient interest, among English-speaking philosophers, in Kant's theory of rights as presented in The Doctrine of Right, Part I of The Metaphysics of Morals. For the past two decades German Kant scholars have been analyzing and commenting on The Doctrine of Right; but Mulholland's book is, to the best of my knowledge, the first systematic treatment of the theory in English. It is, on the whole, a helpful introduction to the subject, which should be of interest not only to Kant scholars but also to contemporary legal, political and social philosophers.

Type
Critical Notices/Études critiques
Copyright
Copyright © Canadian Philosophical Association 1994

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References

Notes

1 For reasons that will become apparent toward the end of this review I use the word “Right,” rather than “rights” in translating Rechtslehre. References to Mul holland's book are indicated by page number. References to Kant's Rechtslehre cite the volume and page number of the Berlin Academy (Ak.) edition of Kants gesammelte Schriften. Translations from Kant are taken from my translation, The Metaphysics of Morals (New York: Cambridge University Press, 1991)Google Scholar. In the course of this review I correct a significant misprint in my notes to the translation, which substituted “E” for “D” on p. 285, n.29, and on p. 291, n.87.

2 Relying on Kant's definition of “deed” in Ak. 6, p. 223: “An action is called a deed insofar as it comes under obligatory laws and hence insofar as the subject, in doing it, is considered in terms of his freedom of choice.”

3 Mulholland would, presumably, object to the use of “consent” in this context (p. 17).

4 In view of Kant's examples in the Groundwork, and of his treatment of rights as distinguished from virtues in The Metaphysics of Morals, Mulholland further explains that “man as a natural whole” can be taken at a non-controversial level, that man is, e.g., a spatio-temporal being, so that affecting his physical being also affects his moral being, and also at a more controversial level, that man is an organic whole with teleological implications regarding the “natural purpose” of his drives and capacities. In The Doctrine of Right, however, only the commonsense version of man as a “natural whole” is relevant. Mulholland stresses man's need to use land in order to live and so to exercise his freedom.

5 Mulholland puts great emphasis on this point, saying: “In the main argument of this work, I shall show that Kant cannot demonstrate that an understanding of law and freedom alone are sufficient to provide an adequate justification of rights. Rather, certain contingent features of man's nature such as the conditions for life and the need to use land, also are unavoidable considerations in Kant's treatment of rights” (p. 20). The question is whether Kant ever thought otherwise.

6 Analogous considerations apply to Kant's account of the judicial authority.

7 Der Begriff des Rechts, sofern er sich auf eine ihm correspondierende Verbindlichkeit bezieht, (d.i. der moralische Begriff desselben)… (Ak. 6, p. 230).

8 It is worth noting that, in the course of Paragraph C, Kant shifts from Allgemeines Princip des Rechts to allgemeine Rechtsgesetz (Ak. 6, pp. 230–31).