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The Juridical Significance of Kant's ‘Supposed Right to Lie’

Published online by Cambridge University Press:  25 March 2011

Jacob Weinrib
Jacob Weinrib
Affiliation:
University of Toronto
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Extract

In his ‘On a Supposed Right to Lie from Philanthropy’ (SRL) Kant makes the astonishing claim that one is not entitled to lie even to save a friend from a murderer. This claim has been an embarrassment for Kant's defenders and an indication of Kant's excessive rigour for his detractors. Responses to SRL fall into three main groups. The first of these groups, that of Kant's critics, claim that SRL demonstrates that Kant's ethical views are so rigorous that they become abhorrent in practice. The second group, Kant's defenders, argues that Kant's conclusions in SRL do not follow from his own ethical principles. The third group, made up of scholars who are generally sympathetic to Kant's position, attempts to explain why a liar is responsible (but an honest person is not) for all the bad consequences that follow from his act by providing an account of Kant's theory of imputation.

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Articles
Information
Kantian Review , Volume 13 , Issue 1 , March 2008 , pp. 141 - 170
Copyright
Copyright © Kantian Review 2008

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References

Notes

1 I am grateful to Arthur Ripstein for his insightful comments on prior drafts.

References to Kant's works employ the following abbreviations:

DR ‘Doctrine of right’, in The Metaphysics of Morals, in Practica Philosophy, trans. Gregor, Mary J. (Cambridge: Cambridge University Press, 1996).Google Scholar

DV ‘Doctrine of virtue’, in The Metaphysics of Morals, in Practical Philosophy.

E On Education, trans. Annette, Churton (New York: Dover Publications, 2003).Google Scholar

LE Lectures on Ethics, trans. P., Heath (Cambridge: Cambridge University Press, 1997).Google Scholar

PP Toward Perpetual Peace, in Practical Philosophy.

SRL ‘On a supposed right to lie from philanthropy’, in Practical Philosophy.

TP ‘Theory and practice’, in Practical Philosophy.

Page references for Kant's work will be given in parenthetical citation and will refer to the Prussian Academy Pagination.

2 Plato, , Crito, in Complete Works, ed. Cooper, J. M. and Hutchinson, D. S., trans. G. M. A. Grube (Indianapolis: Hackett Publishing, 1997), p. 44.Google Scholar

3 This is the view held by Benjamin Constant and other opponents of Kant. See Holmes, Stephen, Benjamin Constant and the Making of Modern Liberalism (New Haven, CT: Yale University Press, 1984), pp. 107–9Google Scholar, and Wood, Allen W., Kant's Ethical Thought (Cambridge: Cambridge University Press, 1999), p. 385.Google Scholar

4 Such interpretations include those of Korsgaard, Herman, Matson, Paton, Hofmeister, Höffe and Neiman. See Korsgaard, Christine M., ‘The right to lie: Kant on dealing with evil’, in Creating the Kingdom of Ends (Cambridge: Cambridge University Press, 1996), pp. 133–58Google Scholar; Herman, Barbara, The Practice of Moral Judgment (Cambridge, MA: Harvard University Press, 1993), pp. 151–2Google Scholar; Matson, W. I., ‘Kant as casuist’, in A Collection of Critical Essays, ed. Wolff, R. P. (Notre Dame, IN: University of Notre Dame Press, 1968), pp. 331–6Google Scholar; Paton, H. J., ‘An alleged right to lie: A problem in Kantian ethics’, in Immanuel Kant: Critical Assessments (London: Routledge,1992), pp. 210–25;Google ScholarHofmeister, Heimo E. M., ‘Truth and truthfulness: A reply to Dr. Schwarz’, Ethics, 82 (1972), 262–7Google Scholar; Höffe, Otfried, Categorical Principles of Law (University Park: Pennsylvania State University Press, 2002), pp. 125–50Google Scholar; and Neiman, Susan, Evil in Modern Thought: An Alternative History of Philosophy (Princeton, NJ: Princeton University Press, 2002), pp. 73–4, 89 and 329–30.Google Scholar

5 The work of several scholars with differing viewpoints could be included in this group. For juridical accounts of imputation see Hruschka, Joachim, ‘Imputation’, Brigham Young University Law Review (1986), 669–710Google Scholar, and Schwarz, Wolfgang, ‘Kant's refutation of charitable lies’, Ethics, 81 (1970), 62–7. Schwarz discusses juridical imputation in relation to SRL while Hruschka does not.Google Scholar

In their discussions of imputation, Reath and Hill both discuss SRL and acknowledge the distinction between juridical and ethical accounts of imputation. However, both choose to apply accounts of ethical imputation to SRL, particularly to Kant's example of the murderer at the door. Reath and Hill incorporate the ethical perspective of the second group but focus on imputation, the subject of the third group. See Reath, Andrews, ‘Kant's principles for the imputation of consequences’, Jahrbuch für Recht und Ethik, 2 (1994), 159–76Google Scholar, and Hill, Thomas E. Jr, ‘Kant on responsibility for consequences’, in Respect, Pluralism, Justice (Oxford: Clarendon Press, 2000), pp. 156–71.Google Scholar

6 For additional accounts of the distinction between right and ethics, see LE 27: 432 and DV 380–1 and 388–91.

7 Constant claims that an unconditional moral duty to tell the truth would make any society unfeasible (SRL 426). Those who provide an ethical explanation of an explicitly juridical duty attempt to reply to Constant without considering why Kant discusses truthfulness as a duty of right.

8 Matson, ‘Kant as casuist’, p. 336.

9 Paton, ‘Alleged right to lie’, pp. 215–17.

10 Ibid., p. 219.

11 Matson, ‘Kant as casuist’, p. 336.

12 Paton, ‘Alleged right to lie’, pp. 223 and 225.

13 Korsgaard, ‘The right to lie’, pp. 133–4.

14 Ibid., p. 134.

15 Ibid., p. 137.

16 Ibid., p. 136.

17 Ibid., p. 143.

18 Ibid., p. 144. Korsgaard bases this claim on a passage from LE, which I discuss below in section 3.1.

19 For a discussion of the architectonic grounds of Kant's distortion of Constant's thought, see Vuillemin, Jules, ‘On lying: Kant and Benjamin Constant’, Kant-Studien, 73 (1982), 413–24.CrossRefGoogle Scholar

20 Innate right is defined as ‘Freedom (independence from being constrained by another's choice), in so far as it can coexist with the freedom of every other in accordance with a universal law’ (DR 237). Innate right belongs to every person by virtue of his or her humanity.

21 Kant, Immanuel, Critique of Pure Reason, trans. Smith, N. K. (Hong Kong: Macmillan, 1985), A80/B106.Google Scholar

22 For additional instances in which Kant alludes to the right of human beings, see DR 320, 350, 363; PP 343, 353,355, 358, 360, 380–1; TP 289; DV 390, 394.

23 This distinction between the right of a plurality of persons and the right of a totality of persons is present in the political writings of Rousseau, upon which Kant draws heavily. In On the Social Contract Rousseau distinguishes between the will of all and the general will: ‘There is often a great deal of difference between the will of all and the general will. The latter considers only the general interest, whereas the former considers private interest and is merely the sum of private wills.’ Accordingly, Kant distinguishes between ‘everyone (omnes etsinguli) within a people’ and ‘a people considered as a state (universi)’ (DR 315–6). See Rousseau, Jean-Jacques, On the Social Contract, in The Basic Political Writings, trans. Cress, D. A. (Indianapolis: Hackett, 1987), p. 155; my emphasis.Google Scholar

24 Kant has obscured his twofold conception of rights from many interpreters by using a varied vocabulary to describe the conceptual structure of the chart at DR 240. Sections 2.1 and 2.2 will explain many of the terms that Kant employs, including formal wrongs, material wrongs, wrong in the highest degree, and right of human beings. My purpose is to use the conceptual structure that these terms express in order to elucidate Kant's argument in SRL, which uses much of the same terminology as DR.

25 Instances of wrong in the highest degree appear at DR 337, 344 and PP 382, 384.

26 Similarly at DR 344 Kant claims that states in a condition of war are in a non-rightful condition and do not wrong one another although the condition ‘is in itself still wrong in the highest degree.’

27 In PP Kant claims that a state at war cannot breach a surrender because such a hostile act lmake[s] mutual trust impossible during a future peace’ (346). Kant's claim is that ‘dishonorable stratagems’ (346) in warfare – such as assassination, breach of surrender, poisoning or incitement to treason - undermine the possibility of any future peace: ‘Right during a war would …. have to be the waging of war in accordance with principles that always leave open the possibility of leaving the state of nature among states (in external relation to one another) and entering a rightful condition’ (DR 347; cf. LE 27: 449). Dishonourable stratagems in warfare are consequently formally wrong.

28 Although every lie undermines the possibility of a united will, the destruction of the rightful condition need not follow. Kant is not making an empirical claim about the destructive consequences for publicright that result from a lie. Rather, his point is that a right to lie is inconsistent with the uniting of wills that is the foundation of the rightful condition.

29 Kants Naturrecht gelesen in Winterhalben Jahre 1784 (Feyerabend Lectures) 67–8, in Kants gesammelte Schriften, Band XXVII, Abteilung 4, Vorlesungen 4.2.2, 1352 (Berlin: de Gruyter, 1979) (unpublished translation by Lars Vinx); cf. LE 27: 4 3 4–5.

30 Kant's comment about counterfeiting recalls Rousseau's discussion of lying in Reveries of a Solitary Walker. Rousseau equates lying to an individual to whom one is not obligated to reveal the truth with giving counterfeit money to a man to whom one is not indebted. Rousseau claims that, because the giver is not indebted to the recipient, the giver is merely ‘a deceiver, but he is not a thief.’ See Rousseau, , Reveries of a Solitary Walker, trans. Peter, France (New York: Penguin Books, 1984), p. 65.Google ScholarPubMed

31 Again (see above n. 28), Kant is making not an empirical point about future consequences but a conceptual point about the inconsistency between distributing counterfeit money and the rightful condition.

32 With this excerpt of the Feyerabend Lectures in mind, I dismiss Schwarz's claim that humanity in general refers t o the distinctive character of man as human rather than animal. See Schwarz, ‘Charitable lies’, p. 64.

33 This warrants a reconsideration of criticisms that accuse Kant's conception of rights as being excessively atomistic and lacking a conception of community. In On the Jewish Question Marx criticizes liberal theories of rights that posit a monadic world in which agents infringe upon each other's liberty. Marx claims that such a conception of rights leads ‘everyman to see in other men, not the realization, but rather the limitation of his own liberty’. For Marx, the enlightenment conception of liberty presupposes egotistical human beings who conceive of their own interests as threatened by the interests of others. However, Kant escapes this criticism if individual rights are made possible through humanity in general, a communal conception of the source of right. See Engels, Frederick and Marx, Karl, On the Jewish Question, in The Marx-Engels Reader, ed. Tucker, R. C. (New York: W. W. Norton, 1972), p. 42.Google Scholar

34 The material aspects of public right are constituted by the empirical relations of persons within a state (PP 381).

35 Just as individual agents cannot have a right to lie or make exceptions, so too the legislator cannot lie because this would result in persons being unsure of their rights, which is contrary to the rightful condition in which legislation emerges.

36 Rousseau, On the Social Contract, p. 141.

37 This distinction between lies and force exposes the underlying difficulty with those who, like Korsgaard (see section 1.1 above), treat deceit as equivalent to other forms of coercion. The use of force is required by right or, if not rightful, is correctible through the institutions of the rightful condition. Accordingly, there can be reciprocal limits on the use of force. However, deceit is inconsistent with the rightful condition and the reciprocal relations that it entails.

38 If an unconditional duty of truthfulness prevents a right to lie, then there can be no obligation to lie. Thus, I agree with Schwarz that Kant answers both questions simultaneously by stating that the duty of truthfulness to others is the formal duty of man to everyone. I disagree with Paton, who believes that Kant answers the first question while ignoring the second. Paton does not attempt to explain how one could have an obligation to lie and an unconditional duty of truthfulness. See Schwarz, ‘Charitable lies’, p. 63, and Paton, ‘Alleged right to lie’, p. 215.

39 In a letter to Moses Mendelssohn, Kant writes: ‘Although I a m absolutely convinced of many things that I shall never have the courage to say, I shall never say anything that I d o not believe.’ See Kant, Immanuel, Philosophical Correspondence 1759–99, trans. A., Zweig (Chicago: Chicago University Press, 1967), p. 54.Google Scholar

40 When Kant found himself in trouble with the Prussian censors over his writings o n religion, Kant swore t o his sovereign ‘as Your Majesty's most loyal subject’ that he would cease his writings on religion. Kant's promise was truthful, although it only revealed a component of the truth. Kant obliged himself only as a subject of Frederick William II. Thus, when the sovereign died, Kant was no longer his obligated subject and subsequently released new writings o n religion. See Kant, Immanuel, The Conflict of the Faculties, trans, and ed. Gregor, Mary J. (New York: Abaris Books, 1979), pp. xxiv and 19.Google Scholar

41 The following comments on the LE draw on Wolfgang Schwarz, ‘Truth and truthfulness: A rejoinder’, Ethics, 83 (1973), 175.

42 Paton considers the passage from the Lectures on Ethics to indicate that Kant's ‘mature view’ allows exceptions to the duty of truthfulness, although his later more rigorous essay – resulting from ‘a bad temper in his old age’ – denies exceptions. Paton's claim that the Lectures on Ethics express Kant's mature view about lying rest on an ethical account of a juridical text. Such a treatment of SRL is inadequate for two reasons. First, it is inadequate because a juridical text requires a juridical interpretation. Second, it is inadequate because Kant's ethical views may have been mature in the mid-1780s, but his juridical views were still developing. See Paton, ‘An alleged right to lie’, pp. 222–3.

43 For an outline of the political climate in revolutionary France that prompted Constant's claim, see Holmes, Benjamin Constant, pp. 107–9.

44 The three stages in which Kant reconciles the principle of right with politics in SRL seem to be drawn from TP, which Kant published in 1793. In this text, within the section labelled ‘On the relation of theory to practice in the right of a state (against Hobbes)’ (289), Kant lists the three conditions on which the rightful condition is based. As in SRL, the first concerns ‘the freedom of every member of a society as a human being’ (290), the second concerns the ‘equality’ of each person within the rightful condition (290), and the third concerns the ‘independence … of a member of a state as a citizen, that is, as a colegislator’ (294, cf. 290). The section is an elaboration of these three principles.

45 ‘All practical principles of right must contain strict truth; and here socalled intermediary principles can contain only the closer determination of their application to cases that come up (in accordance with rules of politics), but never exceptions from those principles; for exceptions would nullify the account of which alone they are called principles’ (SRL 430; my emphasis; cf. TP 275).

46 As Kant's essay TP explains, the misapplication of a true principle cannot refute it. Although a legislator could ‘apply the first principle to a large society without adopting the intermediary one’ of a representative legislature and in so doing destroy the state, such an occurrence ‘would only testify to the ignorance or incompetence of the legislator [and] would prove nothing against the principle’ (SRL 428).