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Kant’s Doctrine of Right

A Commentary

Published in 1797, the Doctrine of Right is Kant’s most significant

contribution to legal and political philosophy. As the first part
of the Metaphysics of Morals, it deals with the legal rights that per-
sons have or can acquire, and aims at providing the grounding
for lasting international peace through the idea of the juridical
state (Rechtsstaat).
This commentary analyzes Kant’s system of individual rights,
starting from the original innate right to external freedom, and
ending with the right to own property and to have contrac-
tual and family claims. Clear and to the point, it guides readers
through the most difficult passages of the Doctrine, explaining
Kant’s terminology, method and ideas in the light of his intel-
lectual environment. One of the very few commentaries on the
Doctrine of Right available in English, this book will be essential
for anyone with a strong interest in Kant’s moral and political
philosophy.

B . S H A R O N B Y R D is Professor at the School of Law, Friedrich

Schiller University, Jena. She is the author of Introduction to
Anglo-American Law I, 2nd edn (2001) and the co-editor, with
Joachim Hruschka, of Kant and Law (2006).
J O A C H I M H R U S C H K A is Professor at the School of Law, Uni-
versity of Erlangen. He is the author of Strafrecht nach logisch-
analytischer Methode (1988) and of a number of articles on Kant’s
philosophy of law.
 Kant’s
Doctrine of Right

A Commentary

B. SHARON BYRD AND

JOACHIM HRUSCHKA
CAMBRIDGE UNIVERSITY PRESS
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© B. Sharon Byrd and Joachim Hruschka 2010

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To the memory of
Mary Gregor
1928–1994
 Contents

Introduction and methods of

interpretation Page 1
1. Placement of the Doctrine of Right within the
Metaphysics of Morals 3
2. Overall structure of the Commentary 5
3. Kant’s geometric method 9
4. Kant’s comments in his works preceding the
Doctrine of Right of 1797 13
5. Achenwall’s natural law 15
6. Additional authors on topics discussed in the
Doctrine of Right 20

Chapter 1 The idea of the juridical state and

the postulate of public law 23
1. The juridical state (Rechtsstaat), the postulate of
public law, and the public nature of law and
rights 24
2. The three formal criteria of the juridical state 32
3. The substantive criterion of a juridical state 39

Chapter 2 The state of nature and

the three leges 44
1. The non-juridical state or the state of nature 45
2. The distinction between the lex iusti and the
lex iuridica 52
3. The contrasts among the lex iusti, the lex iuridica,
and the lex iustitiae 58
4. Kant’s interpretation of the Ulpian formulae 62
5. A return to public justice 67

vii
viii Contents

Appendix to Chapter 2 Iustitia tutatrix, iustitia

commutativa, and iustitia distributiva and their
differences 71
1. Kant’s development of Hobbes’ distinction
between commutative and distributive justice 71
2. From the two- to the three-part division of
public justice 74

Chapter 3 The right to freedom 77

1. The axiom of external freedom 77
2. The negative and positive aspects of internal
freedom 84
3. The negative and positive aspects
of external freedom 87
4. Closing comments on the positive aspect of
external freedom 90

Chapter 4 The permissive law in the Doctrine

of Right 94
1. Two concepts of a permissive law 95
2. The permissive law in the Doctrine of Right
as a power-conferring norm 100
3. The power the permissive law confers 103

Chapter 5 The external mine and thine 107

1. Kant’s concepts of possession 107
2. How is possession as mine possible? 111
3. Rights in rem to specific objects of choice 119

Chapter 6 Intelligible possession of land 122

1. How is original acquisition of a piece of land
possible? 123
2. The original right to a place on the earth 126
3. The original community of the land 129
4. The originally united will 132
5. The requirement to divide the land as a synthetic
principle of law a priori 135
6. The postulate of public law 138
 Contents ix

Chapter 7 The “state in the idea” 143

1. The state in the idea and the juridical state 143
2. The distinction of three state powers 146
3. Practical syllogisms of reason and the role
of the executive 149
4. Kant’s comparison of the three powers to the
propositions in a practical syllogism 157
5. The doctrine of the three state dignities 161
6. The separation of powers 163

Chapter 8 The state in reality 168

1. The original contract 169
2. The forms of state and the “representative system
of the people” 175
3. Revolution in the Doctrine of Right 181
4. Reforms in the Doctrine of Right 184

Chapter 9 International and cosmopolitan

law 188
1. The permission to coerce others to enter
a juridical nation state 189
2. The duty states have to enter a juridical state of
nation states 194
3. The nature of a juridical state of nation states 196
4. Cosmopolitan law 205
5. Security for the mine and thine in a state of peace 211

Chapter 10 The “idea of public law” and

its limits 215
1. Kant’s terminology on the distinction between
commutative and distributive justice 215
2. Kant’s treatment of the “four cases” in §§36–40
of the Doctrine of Right 219
3. On rights that have no judge 226

Chapter 11 Contract law I. Why must I keep

my promise? 232
1. The moral capacity to have a contractual claim 233
2. A contractual claim as a universal right 236
3. Acquiring a contractual claim in reality 239
x Contents

4. Freedom of contract and its limits 240

5. Why must I keep my promise? 243

Chapter 12 Contract law II. Kant’s table of

contracts 245
1. The three “pure” forms of contract 247
2. The twelve aspects highlighted in the table 249
3. The completeness of the table of contracts 258

Chapter 13 Criminal punishment 261

1. Achenwall’s theory of criminal punishment 262
2. Kant’s reasoning behind the criminal law 264
3. “The criminal law is a categorical imperative” 267
4. Punishment in the juridical state 270
5. The amount of punishment: the principle of
retribution 272
6. The death penalty and Kant’s position on
Beccaria 275

Chapter 14 The human being as a person 279

1. The homo phaenomenon 280
2. The homo noumenon 282
3. On the relationship between homo noumenon and
homo phaenomenon 285
4. Imputation of human actions 290

Appendix I to Chapter 14: On the logic of

“‘ought’ implies ‘can’” 294
1. “‘Ought’ implies ‘can’” in the prospective
application of a rule 294
2. “‘Ought’ implies ‘can’” in the retrospective
application of a rule 296

Appendix II to Chapter 14: The system of

rules of imputation 298
1. “Merit” and “moral culpability” 299
2. The consequences of my action 301
3. The degree of imputability to merit or to demerit 306

Bibliography 309
Index 321
 Introduction and methods
of interpretation

The Doctrine of Right is Kant’s masterpiece on legal and political philos-

ophy. The work is highly structured and meticulously formulated. In
it Kant makes a few simple assumptions he calls “axioms” and “postu-
lates” and from those assumptions the whole doctrine of right unfolds
systematically. It unfolds Kant’s most mature thoughts on the peace
project. As Kant indicates in the Conclusion to the Doctrine of Right, the
whole aim of that work is to ensure lasting peace.1 Peace is ensured in
Kant’s view by securing and protecting individual rights. Thus Kant’s
most significant contribution to legal and political philosophy is dedi-
cated to the peace project and is about rights and how those rights can
be ensured.
Rights can be ensured only in a “juridical state.” Kant fathered the
idea of a juridical state, which in German is called the Rechtsstaat, or in
English a state under “the rule of law,” a state guaranteeing “due pro-
cess of law.” Unlike authors before, during, or after Kant’s time,2 Kant
expands his inquiry beyond the juridical state of one nation to include
the juridical state of nation states and the cosmopolitan juridical state.
Kant’s ideas thus encompass international law to ensure rights globally
and cosmopolitan law to ensure world trading relations and permit
peoples to offer themselves freely for commerce with one another.
Kant indeed is the only author who provides one single model designed
to ensure peace on the national, international, and cosmopolitan
levels.

We would like to express our sincere gratitude to Arthur Laby for patiently reading and cri-
tiquing an earlier draft of this Commentary.
1
AA VI, Conclusion, p. 355, ll. 7–9.
2
Examples are Montesquieu, Rousseau, or Hamilton, Madison, and Jay. Authors, such as
Grotius, Pufendorf, and de Vattel, did discuss international law, but no one developed one
single system to ensure peace on the national, international, and cosmopolitan levels, as did
Kant.

1
2 Kant’s Doctrine of Right: A Commentary

This Commentary explains Kant’s system of individual rights, starting

from the original innate right to external freedom and ending with
the right to own property, to have contractual claims, and to have
claims from family relations. Kant takes extreme care in developing
his basic theory on private law on the external mine and thine. A
quick perusal of the Preparatory Work on the Doctrine of Right reveals that
Kant started again and again from square one,3 painstakingly trying
to write a coherent text on his theory of rights to objects of choice
external from ourselves – to physical things, to someone else’s choice
to perform an action, to family members. No one before or after Kant
formulated such radical questions about rights to external objects and
provided such fundamental answers. Unfortunately, Kant’s main con-
cern does not seem to lie in his readers’ ability to understand his often
laconic explanations but instead with satisfying himself that he had
the theory right and properly expressed. In this Commentary, we hope
to have unraveled many of the mysteries associated with Kant’s theory
of rights to external objects of choice.
The Commentary also penetrates Kant’s idea of the state which pro-
vides the apparatus for ensuring these rights. The ideal form of gov-
ernment for Kant is a republic in which the people, from whom all
power and sovereignty proceed, are represented. This representation
ensures that the state does not become despotic, violating individual
rights through wielding irresistible power. Representation is a surro-
gate for the united will of all of a people in one nation state. If the
people’s will is united and all lawgiving proceeds from that united will,
then the people have consented and thus can be done no wrong by
the laws the state adopts and applies. Furthermore, Kant understands
the principle of division and separation of powers. He sees all power as
flowing from the people, not only the legislative, but also the execu-
tive and judicial powers, and conceives of this power as dividing into a
trinity of the universally united will of all. The three powers comple-
ment one another, but each is subordinate to the other two. It is this
combination of coordinate and mutually subordinate powers that con-
stitutes Kant’s conception of checks and balances so crucial to a repub-
lican democracy. The Commentary then applies Kant’s ideas of the ideal
juridical state to the international level, claiming that Kant foresaw not
only one juridical state of nation states as the ideal model for peace-
ful international relations, but also one juridical state of all peoples

3
AA XXIII (Preparatory DoR), pp. 311–327.
 Introduction and methods of interpretation 3

engaged in commercial trade as the model for peaceful cosmopolitan

relations.

1. Placement of the Doctrine of Right within the

Metaphysics of Morals
We first pause to consider the placement of the Doctrine of Right within
the Metaphysics of Morals in general and the implications of that place-
ment. Kant’s Metaphysics of Morals contains (1) an “Introduction to the
Metaphysics of Morals,” (2) Metaphysical Principles of the Doctrine of Right,
and (3) Metaphysical Principles of the Doctrine of Virtue.4 Kant thus sees
law and ethics as two parts of moral philosophy. The introduction
is what in the German tradition would be called the “general part,”
which discusses issues that are relevant for both specific parts, namely
for law and for ethics. Freedom, imputation, personhood, and obliga-
tion are a few of these issues.
The Doctrine of Right is devoted to individual rights, whereby a right
is a moral, and thus a metaphysical concept. I have a right against
another person if I have a claim that the other person act or refrain
from acting in a specified way and if I can assert this claim against that
other person.5 Kant defines a right by saying that it is a “moral faculty
to obligate others.”6 By acquiring a physical thing as mine, I impose
an obligation on every person who might come into possession of the
thing that he return it to me on demand. Accordingly, I have a faculty
on the moral level and can assert a claim based on an obligation I
impose on others. I have a right to my possession of the thing. By virtue
of my faculty to obligate others, I can rightfully say to any possessor of
my property “Return it to me!” and the possessor is obligated to do so.
His duty is a legal duty and legal duties, as ethical duties, belong to the
moral or intelligible world.
“Moral” in Kant’s terminology means non-physical. This meaning
comes from Pufendorf’s distinction between entia physica and entia
moralia, physical and moral entities.7 “Moral” thus came to mean
non-physical and “physical” to mean non-moral. As Kant notes, what
4
The Doctrine of Right and the Doctrine of Virtue both have three parts. We discuss the tripartite
division of the Doctrine of Right, note 49. The three parts of the Doctrine of Virtue are: “Intro-
duction to the Doctrine of Virtue,” “Doctrine of the Elements of Ethics,” and “Doctrine of the
Methods of Ethics.” See AA VI (Virtue), p. 379, ll. 1–2, p. 415, and p. 475.
5
The decisive characteristic of a right is that “another can require me to act according to the
law as a matter of his right.” AA VI (Virtue), Introduction VII, p. 390, l. 35 – p. 391, l. 3.
6 7
AA VI, Division DoR B, p. 237, l. 18. Pufendorf, De Jure I/I/§§2–4/pp. 13–15.
4 Kant’s Doctrine of Right: A Commentary

is moral does not belong to the sensible, but rather to the intelligi-
ble world. Legal and ethical duties are non-physical or extra-physical
entities, and they become cognizable only from the standpoint of the
intelligible world.8 Kant’s moral philosophy is thus necessarily a meta-
physics of morals because it deals with extra-physical rather than phys-
ical entities.
An ethnographer can determine the mores,9 or customs of a people
by observing physical phenomena. Such determination is the ethno-
grapher’s description of what goes on in the physical world. Kant,
in contrast, is concerned with a metaphysics of mores, that which
transcends actual mores or customs. The title of Kant’s book means
exactly that. “Morals” means mores or customs which are transcended
by metaphysics. “Morality” is part of this metaphysics and thus one
must differentiate between the mores or morals, on the one hand, and
morality (and the adjective “moral”), on the other hand. Everything
moral is thus part of metaphysics. A right is a moral category. Accord-
ingly, rights are first cognizable when we place ourselves on the terrain
of a metaphysics of morals.
Kant similarly distinguishes between laws of nature (scientific laws)
and laws of freedom.10 Laws of freedom, whether juridical or ethical,
are called “moral laws”11 because these laws have metaphysical char-
acter. Freedom as a topic of a metaphysics of morals, be it internal
freedom or a right to external freedom, is not a phenomenon in the
sensible world. An animal that is neither caged nor tied is externally
free. The homo phaenomenon who is neither caged nor tied is also exter-
nally free. External freedom can be perceived empirically, but internal
freedom and the right to external freedom can be comprehended only
within a metaphysics.
Freedom (internal freedom) gives itself laws, which are significantly
different from laws of nature. I as a free person (homo noumenon)12
give myself, alone or with others, laws of freedom to which I am
submitted.13 These laws of freedom are not limited to the Categorical

8
John Stuart Mill speaks of “moral sciences,” as opposed to “physical science,” to designate
what we today call the “humanities.” Mill, System of Logic, Bk. VI is entitled “On the Logic of
the Moral Sciences.” In 1863, Schiel translates “moral sciences” as Geisteswissenschaften thus
capturing the older meaning of the word “moral.”
9
Latin: mos, see AA VI (Virtue), §40, p. 464, ll. 16–20.
10
AA IV (Groundwork), p. 387, ll. 14–15. St. James speaks of “laws of freedom” (James 1:25)
long before Kant.
11
AA VI, Introduction MM I, p. 214, ll. 13–17.
12
On the distinction between homo phaenomenon and homo noumenon, see Chapter 14.
13
Cf. AA VI, Introduction MM IV, p. 223, ll. 29–31.
 Introduction and methods of interpretation 5

Imperative, the highest of all laws of freedom. Kant, particularly in the

Doctrine of Right, asks repeatedly what laws of freedom our reason dic-
tates. He determines, for example, that a law prohibiting the use of
external objects of our choice cannot be a law of freedom because then
freedom would rob itself of the use of these objects and the objects
would be destroyed in a practical sense.14 Kant also indicates that a
law of freedom can require a person to perform an act required by
contract only if the person has agreed to be bound by the contract.15
According to laws of freedom, the supreme authority of a state can be
“no other than the united will of the people itself.”16 As we can see
from these examples, Kant formulates laws of freedom to the extent
these laws can be cognized a priori by reason. They are then called
“natural (moral) laws.” Not only natural laws but also binding positive
laws are laws of freedom in a juridical state. The duty to drive on the
right side of the road, which cannot be derived from reason directly,
follows from a positive law of freedom called the “traffic code.” The
traffic code is a part of metaphysics because duties and rights follow
from the traffic code. The Doctrine of Right, which concerns our rights
and legal duties, is thus a part of the metaphysics of morals regardless
of whether these rights and duties follow from natural or from positive
law.

2. Overall structure of the Commentary

Chapter 1 begins with §41 of the Doctrine of Right. Section 41 contains
the culmination of Kant’s theory of private law and prepares for the
transition to public law with the postulate of public law in §42. Because
§41 represents the totality of Kant’s preceding ideas in the Doctrine of
Right and maps the chart for moving forward, it is especially difficult to
unravel but equally crucial to understand. In Chapter 1 we provide a
rough descriptive structure for understanding §41 and thus for under-
standing the basic system of rights Kant portrays. Section 41 tells us
what a juridical state (rechtlicher Zustand – status iuridicus) is, and con-
trasts the juridical state to the non-juridical state or the state of nature.
We thus first discuss what a juridical state is for Kant, giving its formal
and substantive criteria. Kant labels the formal criteria with the three
14
AA VI, §2; see Chapter 5, section 2.
15
AA VI, §18, p. 271, ll. 6–14. “The acquisition of a personal right can never be original and
single-handed.”
16
AA VI, §47, p. 315, ll. 27–28.
6 Kant’s Doctrine of Right: A Commentary

iustitiae, namely the iustitia tutatrix, the iustitia commutativa, and the iusti-
tia distributiva.
Chapter 2 gives our argumentation supporting the structure we have
sketched in Chapter 1. Chapter 2 focuses on the three leges, the lex iusti,
the lex iuridica, the lex iustitiae, as they are used in §41 and occasionally
elsewhere in the Doctrine of Right. In particular, Kant associates these
three leges with his versions of the three Ulpian formulae. Accordingly,
in Chapter 2 we discuss these three formulae, showing how they tie
into Kant’s idea of a juridical state and into the structure of the Doctrine
of Right we claim §41 reveals. A particularly significant set of concepts
for Kant’s system are “original” and “adventitious.” This set of concepts
will be examined in depth in Chapter 2 and they will reappear in our
discussion of land ownership. An Appendix to Chapter 2 delves some-
what deeper into one historical source of Kant’s ideas on the juridical
state. Chapters 1 and 2 and the Appendix to Chapter 2 should be seen
as one unit in the development of this Commentary. It is a unit that is
indispensable to understanding the rest of the Commentary.
Chapter 3 looks at the idea most central to Kant’s ethical and legal
philosophy, namely freedom. We first examine what Kant calls the
“axiom of external freedom,” the axiom from which the Doctrine of
Right unfolds. To better understand it, we consider internal freedom
in both its negative and positive aspects. Kant himself refers to these
two aspects of internal freedom as “negative” and “positive.” We then
claim that external freedom also has a negative and positive aspect, a
claim Kant does not expressly make. We argue that the positive aspect
of external freedom is the postulate of public law with its command to
move to a juridical state. It is dependence on laws governing external
freedom that makes us externally free in the positive sense.
Chapters 4, 5, and 6 explicate Kant’s ideas on property ownership.
Chapter 4 begins with the permissive law of practical reason, which
we claim is a power-conferring norm. It gives us the freedom to have
external objects of choice as our own and is the substance of the pos-
tulate in §2 of the Doctrine of Right. In Chapter 5 we move from the
permissive law to the central notion of possession for Kant. We also
examine possession as one’s own and the idea of a right in rem, or a
right to a physical thing one has against everyone else. In Chapter 6
we continue with the idea of intelligible possession, in particular of
land. We examine the original right to a place on the earth’s surface,
the original community of the land, and the originally united will of
this community, using the distinction between the concepts “original”
 Introduction and methods of interpretation 7

and “adventitious” we discuss in Chapter 2. We end Chapter 6 with

the postulate of public law. Chapters 4, 5, and 6 together thus form
another unit of this Commentary.
Chapter 7 moves to Kant’s theory of the state, examining first the
ideal state or the “state in the idea” as Kant calls it. The state in the idea
provides the norm for all state constitutions. In particular, Chapter 7
looks at the division of powers in an ideal state. The ideal state con-
stitution is what ensures individual rights and gives us the model for
the juridical state in reality. It is the state in reality that we discuss in
Chapter 8. Chapter 8 begins with the original contract and focuses on
the forms of government in a juridical state. It ends with an interpreta-
tion of Kant’s position on revolution. We claim that Kant prohibits rev-
olution only in a juridical state but certainly not in a despotic construct
that simply calls itself a “state.” Chapter 9 examines Kant’s theories of
international and cosmopolitan law. It builds on what Kant expresses
in his Preface to the Doctrine of Right, namely that the latter parts of
the book follow “easily” from the former.17 We attempt to take the
ideas developed in Chapters 1–8 and apply them to the international
and cosmopolitan arenas. We claim that Kant envisioned an interna-
tional juridical state, much like the individual state of one people. His
vision was the juridical state of nation states (Völkerstaat) organized
under one republican constitution valid for all of the individual nation
states in the world. In our discussion of cosmopolitan law we argue
that it does not govern the individual’s relation to nation states, as is
often claimed in the secondary literature. Instead cosmopolitan law
governs the right a whole people have to engage in commerce with
neighboring peoples. Cosmopolitan law for Kant is indeed the idea of
a perfect World Trade Organization. Chapter 9 ends with a discussion
of Kant’s peace project. We claim that the juridical state, where rights
are ensured, and the state of peace are identical.
Chapters 10–14 pick up some loose ends in Kant’s theory of the
juridical state, namely the idea of public law and its limits (Chapter
10), Kant’s theory of contract law (Chapters 11 and 12), of criminal
law (Chapter 13), and of the concepts of personhood and imputation
(Chapter 14). One might wonder why we do not discuss contract law
in connection with Chapters 4–6 on having an external object of choice
as one’s own. Kant follows his discussion of property ownership with
contract law in the Doctrine of Right. One might also wonder why such

17
AA VI, Preface, p. 209, ll. 8–11.
8 Kant’s Doctrine of Right: A Commentary

basic notions as personhood and imputation do not come at the begin-

ning of the Commentary. Kant discusses imputation in the “Introduction
to the Metaphysics of Morals” and not at the end. Finally one might
say that criminal law in one nation state belongs most naturally to the
discussion of the individual juridical state and not following interna-
tional and cosmopolitan law. We decided that any in-depth discussion
of these important areas of the Doctrine of Right would cut the main
thread running through Chapters 1–9, namely the idea of the juridical
state on the national, international, and cosmopolitan levels. For that
reason we have placed them at the end.
In writing this Commentary we have employed four approaches to
understanding the Doctrine of Right. We discuss those approaches in sec-
tions 3–6. The first is that Kant’s own reference to Euclid’s geometry
in connection with the Doctrine of Right should be taken most seriously
when interpreting that work. The second is that Kant’s work on the
peace project in the Doctrine of Right can be interpreted only to a very
limited extent by examining his previous work in Theory and Practice
and Perpetual Peace. Large discrepancies exist among these works and it
is the Doctrine of Right that is Kant’s final statement on law and rights.
Often the scholarly literature mixes arguments from all three of these
works, with perplexing results one does not attain if one assumes that
the Doctrine of Right is the more mature work and Kant, like others,
was capable of changing his mind and improving his theory. The third
is that the work of Gottfried Achenwall had an enormous influence
on the approach and the vocabulary Kant uses in the Doctrine of Right,
an influence which has been largely ignored until today. Our idea is
not to develop an historical account of the development of natural law
from Achenwall to Kant. Instead we examine Achenwall’s theories of
natural law to see the intellectual climate of the time within which
Kant was immersed. It is often focusing on Achenwall’s vocabulary
that enables one even to take note of some of the expressions Kant
repeatedly uses and the meaning he attaches to them. Finally, we con-
sider select authors writing between the early seventeenth to the mid-
dle of the eighteenth century, many of whom were more famous than
Gottfried Achenwall and with whose work Kant was familiar and who
provided some of the background for Kant’s own thoughts. What we
do not do is engage the contemporary secondary literature in this Com-
mentary. Doubtless much can be said about the many books and articles
on Kant’s philosophy in general and his legal philosophy in particular.
Any thorough treatment, however, would demand far more time and
 Introduction and methods of interpretation 9

words than this Commentary can encompass. We do refer to the rele-

vant secondary literature in our footnotes to make readers aware of
what is available on the issues we do discuss.
This Commentary is not exhaustive. We do not attempt to interpret
any and every word of the Doctrine of Right. Still, we do attempt to
interpret everything we consider to be important in those of Kant’s
thoughts which run through the entire book. The main maxim which
guided our work was that Kant got it right. If his theory seemed
self-contradictory or nonsensical, impenetrable or simply confused,
we assumed it was our problem, and not Kant’s. We never criticize
Kant’s ideas in the Doctrine of Right, but instead attempt to explain
them within a unique and complete, logically consistent, whole.
Whether we have been successful must remain to the judgment of our
readers.

3. Kant’s geometric method

When selecting the methods for interpreting the Doctrine of Right it is
important to first consider the methods Kant himself uses. The Doctrine
of Right is not an omnium gatherum of aphorisms. Instead Kant speaks
a scholarly language, as he himself says in his Preface to that work. A
scholarly language stands in contrast to a popular language. Kant is not
interested in popular language, but instead insists “on Scholastic pre-
cision, even though that precision has been labeled embarrassing.”18
Kant compares his work in the Doctrine of Right to (Euclidean) geom-
etry on a number of occasions, the most detailed of which is in §E,19
but also, for example, in his discussion of contract law.20 Kant’s work
lies within a tradition which includes not only Spinoza with his major
work Ethica More Geometrico Demonstrata of 1677, but also Pufendorf
with his Elementa Jurisprudentiae Universalis of 1660. Even the name
of Pufendorf’s book reminds one of Euclid’s Elements. Pufendorf’s Ele-
menta consists of two books, the first of which contains twenty-one def-
initions and their corresponding explanations and the second of which
begins with two axioms and ends with five observations, again with
corresponding explanations. Pufendorf obviously had Euclid in mind
when developing the Elementa, regardless of how Pufendorf’s work
sizes up in comparison to Euclid’s.
18
AA VI, Preface, p. 206, ll. 24–26.
19
AA VI, Introduction DoR §E, p. 232, l. 30 – p. 233, l. 23.
20
AA VI, §19, p. 273, ll. 11–29.
10 Kant’s Doctrine of Right: A Commentary

In line with our comparison to Euclid’s Elements, Kant’s Metaphysi-

cal Principles of the Doctrine of Right contain axioms and postulates. Kant
speaks of an “axiom of law” or “axiom of right” (Axiom des Rechts)21 and
of an “axiom of external freedom.” Kant refers to the “axiom of law”
by this name once in the Doctrine of Right.22 There Kant points to an
example he had used23 of having an apple in one’s hand which some-
one else grabs and removes. The actor “with his maxim,” Kant writes,
“directly contradicts the axiom of law.” Kant refers to the “axiom of
external freedom” twice by that name in the Doctrine of Right.24 Kant
provides no examples, but without doubt, the “axiom of external free-
dom” refers to the assumption of an original right to freedom, which
Kant in the “Introduction to the Doctrine of Right” formulates as fol-
lows: “Freedom (independence from another’s necessitating choice) to
the extent it can coexist with everyone else’s freedom according to a
universal law is [the] only original right due every human being by
virtue of his humanity.”25 The right to freedom implies the “universal
law of right”: “Act externally so that the free use of your choice [can]
coexist with everyone’s freedom according to a universal law.”26 The
original right to freedom and the “universal law of right” correspond
to each other. With my assumption of my original right to freedom I
can require everyone else to act toward me according to the univer-
sal law of right. We need to understand the entire Doctrine of Right as
unfolding from this “axiom of external freedom” in conjunction with
the postulates in §§2 and 42 of the Doctrine of Right, just as Euclidean
geometry unfolds from a few axioms and postulates.
One might conclude that the expression “axiom of law” is just
another expression for the “axiom of external freedom.” Such an inter-
pretation is suggested particularly by the context within which Kant
discusses the axiom of law. If I am the “holder” of a thing, meaning I
am “physically connected” to the thing (I hold an apple in my hand)
and another person “affects” this thing without my consent (he grabs
the apple out of my hand) then he affects and abridges my freedom,
which is precisely what “directly contradicts the axiom of law.” Simi-
larly, the action Kant describes cannot be compatible with my right to
freedom (assuming the action is not justified), or stated differently, it
21
The word Recht in German means both “law” and “right” and thus can be translated either
way. We discuss this problem of meaning in Chapter 1, section 1B.
22 23
AA VI, §6, p. 250, ll. 1–7. AA VI, §4, p. 247, l. 28 – p. 248, l. 7.
24
AA VI, §16, p. 267, ll. 12–13; §17, p. 268, l. 25.
25
AA VI, Division DoR B, p. 237, ll. 29–32.
26
AA VI, Introduction DoR §C, p. 231, ll. 10–12.
 Introduction and methods of interpretation 11

contradicts the universal law of right, or stated yet differently again,

the maxim of the action “directly contradicts” the axiom of external
freedom. Kant’s argumentation with reference to the axiom of law
thus leads to the axiom of external freedom. His readers would not
miss anything in Kant’s argumentation if he had spoken of the “axiom
of external freedom” instead of the “axiom of law.” It would thus be
reasonable to conclude that the expressions “axiom of law” and “axiom
of external freedom” mean the same.
We believe, however, that Kant’s choice of words is not acciden-
tal and that the expression “axiom of law” means something differ-
ent from the expression “axiom of external freedom.” One can call
the “axiom of law” the requirement Kant connects to the first Ulpian
formula and states as “Be a juridical person!”27 One can also express
this requirement as “Take the viewpoint of the law!” (see Chapter 2,
section 4). How does one take the viewpoint of the law? Kant explains:
“Make yourself not a mere means for others, but instead be for them
at the same time an end.”28 I make myself an end for others when I
demand that they respect my right to freedom and my acquired rights.
Taking the viewpoint of the law toward others means that I myself ful-
fill the requirements of law. When I fulfill the requirements of the law
then I simultaneously take the viewpoint of the law toward others.
Consequently, I too have to respect everyone else’s right to freedom
and their acquired rights. That “another by virtue of his own right can
require me to act according to the law”29 is what distinguishes law from
ethics. If I take the viewpoint of the law in this way, then I assume
the right to freedom (the axiom of external freedom) and the other
essential legal principles and rules. Even with our interpretation of the
axiom of law, this axiom and the axiom of external freedom lead to
the same result. Nonetheless, the two axioms connote different points
of view. The axiom of external freedom is the only axiom within Kant’s
system of rights and law. The axiom of law or right, in contrast, lies on
a meta-level to Kant’s system, or outside that system, and requires one
to assume the system itself.
Let us also consider the postulates Kant assumes in the Doctrine of
Right. Kant uses the expression “postulate” occasionally to compare the
practical laws which follow from the Categorical Imperative to “math-
ematical postulates.”30 Elsewhere Kant calls the limitation of freedom,
27 28
AA VI, Division DoR A, p. 236, l. 24. AA VI, Division DoR A, p. 236, ll. 27–28.
29
AA VI (Virtue), Introduction VII, p. 390, l. 35 – p. 391, l. 3.
30
AA VI, Introduction MM IV, p. 225, ll. 14–31.
12 Kant’s Doctrine of Right: A Commentary

meaning that my freedom extends only so far as is compatible with

the freedom of all others according to a universal law, a “postulate”
“which is capable of no further proof.”31 Yet otherwise, the word
“postulate” is used only to designate the postulates in §§2 and 42 of
the Doctrine of Right. Section 2 is entitled “Juridical Postulate of Prac-
tical Reason.” For Kant the postulate itself is a “permissive law (lex
permissiva) of practical reason,” which extends itself a priori through its
postulate.32 Kant refers to this postulate, which he sometimes calls the
“postulate of the capacity”33 (through which my moral capacity to be
the owner of things, the promisee under a contract, etc. is postulated),
as a “postulate” on a number of occasions throughout his work and
uses it for the purpose of developing his arguments.34 Kant calls the
“postulate of public law” a “postulate” only once in the Doctrine of Right,
namely in §42.35 Its relevance can be felt throughout the entire book,
just as can the relevance of the postulate in §2. We discuss the synthetic
nature of the postulates in depth in Chapter 6, sections 5 and 6.
Because Kant employs techniques of Euclidean geometry he can
work with analytic precision. Accordingly, he distinguishes, with-
out pointing it out, between principles within his system and argu-
ments supporting his system, lying outside the system itself. We have
attempted to sort principles lying within the system from those lying
outside it to explain Kant’s ideas and clarify apparent, but non-
existent, contradictions within Kant’s work. One example is the seem-
ing contradiction between assuming people are good, or the presump-
tion of innocence, and assuming people are evil, or the presumption of
badness, both of which Kant makes in the Doctrine of Right.
One invaluable tool in attempting to penetrate the Doctrine of Right,
especially in light of Kant’s geometric approach, has been the Critique
of Pure Reason. Much of what Kant wrote on epistemology proves to
be relevant to his system of rights and law. One example is his use of
the comparative concepts: “external” and “internal,” “substance” and
“form,” to explain the three leges corresponding to Kant’s version of
the three Ulpian formulae. Another is Kant’s categories from the first
Critique. Kant expressly uses the categories of modality to explain the
three leges as well. Furthermore, we make a claim in Chapter 12 that
31
AA VI, Introduction DoR §C, p. 231, ll. 17–18.
32 33
AA VI, §2, p. 246, l. 4; p. 247, ll. 1–2; p. 247, ll. 7–8. AA VI, §17, p. 268, l. 25.
34
AA VI, §6, p. 252, ll. 11–13; §7, p. 254, ll. 11–12; §9, p. 257, ll. 34–36; §10, p. 258, ll. 23–25;
§13, p. 262, ll. 15–16; §14, p. 263, ll. 17–19; §15, p. 264, ll. 30–32; §17, p. 268, l. 25; §19,
p. 273, ll. 22–25; §33, p. 293, ll. 2–6.
35
AA VI, §42, p. 307, ll. 8–9.
 Introduction and methods of interpretation 13

Kant’s table of all conceivable types of contractual arrangements cor-

responds to the table of categories in the first Critique. Much, however,
remains to be done in this direction, because we are convinced that the
first Critique, probably more so than any other of Kant’s earlier work,
provides a key to opening the ideas in the Doctrine of Right.

4. Kant’s comments in his works preceding the

Doctrine of Right of 1797
Another method we pursue is to assume that the statements Kant
made on legal philosophy before he wrote the Doctrine of Right, namely
in his lectures in 1784, in Theory and Practice of 1793, in Perpetual Peace
of 1795, and in his short comments in many other works, are steps
toward the system of legal philosophy that unfolds in the Doctrine of
Right of 1797. They are steps toward this system, but they do not already
contain the system itself in a nutshell. That is obviously so if Kant envi-
sioned his Doctrine of Right as being analogous to Euclidean geometry
(see section 3). A system like Euclidean geometry is from one mold,
and anything previous to it is piecework. Consequently, Kant’s earlier
comments on legal philosophy are useful for interpreting the Doctrine
of Right of 1797 only to a limited extent. We use the earlier works,
taking possible contradictions into account, and make the necessary
exclusions.
Kant forges his way forward to his system over the course of time,
which is most obvious from comparing certain ideas in Perpetual Peace
to those in the Doctrine of Right. In Perpetual Peace, Kant has the defini-
tion of a “juridical state,”36 which will play a large role in the Doctrine
of Right. Still Kant uses it first at the end of Perpetual Peace and there
only in connection with international law. The concept is not yet on
center stage as it later will be in the Doctrine of Right. The three defini-
tive articles in Perpetual Peace37 correspond to the three juridical states
in the Doctrine of Right, but Kant does not yet conceptualize them as the
system of juridical states.
It is also conceivable that Kant makes mistakes while groping toward
the system he later develops to perfection. Mistakes he too would have
called mistakes from his later point of view. One glaring example lies
in Kant’s position on the question of whether preventive defense is
permitted against a neighboring state that is growing to dangerous
36 37
AA VIII (PP), p. 383, ll. 9–10. AA VIII (PP), pp. 348–360.
14 Kant’s Doctrine of Right: A Commentary

proportions (potentia tremenda). In Perpetual Peace, Kant applies his prin-

ciple of publicity, which although it does not tell us what is right, does
say what is wrong.38 Kant states:
When a neighboring state which is growing to tremendous proportions (poten-
tia tremenda) causes anxiety: Can one assume it will, because it can, also intend
to suppress, and does that give the weaker powers a right to unite and attack
even in the absence of any previous infringement? – A state which intended
to affirmatively announce its maxim would only bring about the evil more
certainly and quickly, because the larger power would preempt the smaller.
Moreover, the union of the smaller is a weak reed against one who knows
how to use divide et impera. – This maxim of state prudence, declared publicly
necessarily frustrates its own purpose and is thus wrong.39
In contrast, Kant not only drops the principle of publicity from the
Doctrine of Right (he no longer mentions it at all),40 but also entirely
changes his thesis on preventive defense, which he had based on this
principle:
In the state of nature among states, the right to wage war . . . is the permitted
way in which a state maintains its rights against another state . . . In addition
to active injury . . . there is the threat [of such injury]. Included here are either
a prior build up of armaments, on which the right of prevention (ius praeventio-
nis) is based, or also merely another state’s tremendous growth (through land
acquisition) of power (potentia tremenda). This growth constitutes an injury of
the weaker power merely through the situation and before the superpower has
committed any act, and in the state of nature this [preventive] attack is in
accordance with right.41
This passage shows not only that a preventive attack against a potentia
tremenda,42 which is prohibited in Perpetual Peace, is permitted in the
Doctrine of Right but also reveals a further deviation between the two
works. The passage verifies that states can have a “right to wage war,”
whereas in Perpetual Peace Kant states: “Conceptually in international
law the right to wage war is inconceivable (because it is supposed to be
a right to determine what is right, not according to universally valid
38 39
AA VIII (PP), p. 381, l. 24 – p. 382, l. 1. AA VIII (PP), p. 384, ll. 6–16.
40
It is always the weaker players whom the principle of publicity prohibits from taking action.
The stronger neighboring state can announce its plans to suppress the weaker states without
fear of frustrating its plans. The principle of publicity does not say the neighboring state’s
plans are right, because the principle is, as Kant says in Perpetual Peace, “negative.” Still the
stronger power can cynically declare that the principle of publicity does not tell it that its
intent to suppress is wrong. Such result leads to imbalance in the moral debate, which is
enough to justify sacrificing the principle altogether.
41
AA VI, §56, p. 346, ll. 9–22.
42
Kant is familiar with the concept of a potentia tremenda (literally: a power which makes one
tremble) from Achenwall, I.N.II, §265 (AA XIX, p. 436, ll. 18–25).
 Introduction and methods of interpretation 15

external laws limiting the freedom of each, but instead according to a

unilateral maxim through [exercising] force.”43 Thus in Perpetual Peace
there is no right to wage war, whereas Kant assumes precisely the
opposite in the Doctrine of Right.
A further discrepancy can be seen regarding the question whether a
state can coerce another state to enter together with it into a “juridical
state” of these two nation states. We discuss the concept of a “juridical
state” in great detail in Chapters 1 and 2. Here we would like simply to
point out the deviation between Perpetual Peace and the Doctrine of Right.
In Perpetual Peace, Kant denies any authority one state might have to
coerce another: “According to international law the same cannot be
true as is for individuals in a lawless state according to natural law,
‘to ought to leave this state’ (because as a state they already internally
have a juridical constitution and thus have outgrown the coercion of
others to bring them under an extended lawful constitution according
to their own [the other states’] concepts of law).”44 In the Doctrine of
Right, Kant instead speaks openly of an “original right to wage war for
free states among each other in the state of nature (in order for example
to establish a state approaching the juridical state).”45 Accordingly, in the
Doctrine of Right, establishing a juridical state of states is a permissible
reason to wage war, whereas in Perpetual Peace precisely the opposite is
true.
These deviations are well known.46 Less understood are the rea-
sons that led Kant to correct his earlier ideas. Two decisive reasons
are that Kant (1) has the fully developed idea of a juridical state in the
Doctrine of Right, which he (2) applies not only to individual persons,
but equally to states in their relations to each other. This idea and its
broader application are the reasons why the Doctrine of Right is different
from Perpetual Peace.

5. Achenwall’s natural law

A particularly helpful method of interpreting Kant’s legal philosophy
is to consult Gottfried Achenwall’s Prolegomena Iuris Naturalis and his
43
AA VIII (PP), p. 356, l. 35 – p. 357, l. 2 (emphasis added).
44
AA VIII (PP), p. 355, l. 33 – p. 356, l. 1.
45
AA VI, §55, p. 344, ll. 25–27 (emphasis added).
46
Gregor, for example, points to the different treatment of the potentia tremenda (our first
example of a deviation), Cambridge Edition, p. 349/p. 634 note 12 for Perpetual Peace and
p. 484/p. 638, note 34 for the Doctrine of Right. Kaufmann, “Theory of War,” p. 147, also
points to the discrepancy.
16 Kant’s Doctrine of Right: A Commentary

Ius Naturae. Kant was strongly influenced by Achenwall and often

uses Achenwall’s terminology. To be more precise, Kant uses Ger-
man expressions that are translations of Achenwall’s Latin terms, often
adding the original Latin expressions to his own German translations of
them. Undoubtedly, these terms were ingrained in legal-philosophical
thought at Kant’s time. Kant wrote his legal philosophy shortly after
the turning point in the scholarly language from Latin to the vul-
gate. Most likely Kant added the Latin expressions to his German
translations to ensure that readers familiar with the terms would rec-
ognize them when expressed in German. When taking Achenwall’s
terminology, Kant also takes the concepts behind it without indi-
cating each time that they are Achenwall’s concepts. One example
concerns the words “permitted” (erlaubt), to which Kant adds Achen-
wall’s licitum, and “merely permitted” (bloß erlaubt), to which Kant adds
Achenwall’s indifferens.47 Kant also sometimes takes Achenwall’s con-
cepts without adding Achenwall’s terminology to them. One exam-
ple is the pair of concepts “original” (ursprünglich) and “adventitious”
(zufällig), which correspond directly to Achenwall’s originarium and
adventitium respectively.48 Furthermore, Achenwall often influences
the topics Kant discusses in the Doctrine of Right. Kant quite commonly
begins with one of Achenwall’s theories, usually without indicating
that the theory is Achenwall’s, and then criticizes it while develop-
ing his own theory.49 Kant does actually refer to Achenwall by name
twice in the Doctrine of Right,50 and also mentions him in Theory and
Practice.51
Achenwall’s influence on Kant’s legal philosophy is easy to explain.
Kant held lectures on Achenwall’s Prolegomena Iuris Naturalis and Ius
Naturae over the course of more than twenty years.52 That Kant
47 48
See Chapter 4, section 1. See Chapter 2, particularly sections 1 and 2.
49
Indeed, Kant structures the Doctrine of Right in reliance on Achenwall’s books on natural
law. The “Introduction DoR,” which Kant himself also calls “Prolegomena” (AA VI, Divi-
sion DoR B, p. 238, l. 24), corresponds to Achenwall’s Prolegomena. The “Doctrine of Right
Part I” discusses the law in the state of nature; the “Doctrine of Right Part II” discusses
the law in the non-state of nature. This differentiation corresponds to Achenwall’s in the
two volumes of Ius Naturae. Kant’s distinction between “private law” and “public law,”
which is closely connected to the distinction between the two parts, extends far beyond
Achenwall’s.
50
AA VI, §31 Annex I “What is money?,” p. 286, l. 28; §41, p. 306, l. 19.
51
AA VIII (T&P), p. 301, ll. 4, 12.
52
According to Lehmann, “Einleitung,” AA XXVII.2,2, p. 1053, Kant began lecturing on
Achenwall “around 1767.” From the summer semester of 1771 to the winter semester
of 1789/90 inclusively, Kant announced his lecture entitled Ius Naturae secundum Achenwall
(or similar) fourteen times. See, Oberhausen and Pozzo, Vorlesungsverzeichnisse, pp. 318,
340, 374, 388, 402, 416, 430, 444, 466, 473, 500, 524, 547, 566.
 Introduction and methods of interpretation 17

regarded Achenwall highly is apparent from a comment Kant makes

in Theory and Practice. There Kant refers to Achenwall as “a careful,
precise and modest” author “in his doctrines on natural law.”53 Kant
also made extensive explanatory and critical comments in his copies
of Achenwall’s works over the years, most likely in preparation for his
lectures on Achenwall’s natural law.54 It is thus easy to imagine that
Achenwall left an impression on Kant’s thoughts after such intensive
treatment of Achenwall’s work.55
Achenwall’s three books and Kant’s own Reflections on Ius Naturae II
provide valuable insights for interpretation of the Doctrine of Right and
Achenwall’s influence on it. In addition we also have a student’s notes
of the lectures Kant gave on Achenwall’s natural law during the sum-
mer semester of 1784.56 Of course Kant did not write these notes him-
self and thus they are not a part of his works in the narrower sense. Still
they have proved to be reliable and the only source of Kant’s thoughts
on certain topics.
Achenwall’s books on natural law have a history of their own, which
we sketch here because of much confusion that has arisen regarding
them in recent attempts to incorporate Achenwall’s ideas into Kant
interpretations. Gottfried Achenwall (1719–1772) was a professor at
the University of Göttingen as of 1748. Also teaching at the Univer-
sity of Göttingen at the time was Achenwall’s friend, Johann Stephan
Pütter (1725–1807). In 1750, Achenwall and Pütter published the
Elementa Iuris Naturae together. Because of his higher rank at the uni-
versity, Pütter’s name was listed first on the title page of this book.
A second edition of this book appeared in 1753. Two years later,
53
AA VIII (T&P), p. 301, ll. 3–5.
54
AA XIX, pp. 321–613. Volume XIX contains only Kant’s copy of Achenwall’s Ius Naturae
II with Kant’s handwritten Reflections, because it was the only copy later available in the
library in Königsberg. Presumably Kant also had his own copies of Achenwall’s Ius Naturae
I and Prolegomena Iuris Naturalis, and made notes in these two books as well. As we show,
the influence of these three books on Kant’s legal philosophy is most obvious.
55
Kant was not alone in his high regard for Achenwall’s natural law. Achenwall was widely
read at German universities between 1770 and 1790, Schröder and Pielemeier, “Natur-
recht,” pp. 255–269, 261.
56
These lecture notes are published in AA XXVII.2,2, pp. 1317–1394. The title page indicates
the lectures were given in the winter semester 1784/85. The editor of these notes, Gerhard
Lehmann, comments that the title page includes a misprint, namely that the semester is
reported to be the winter rather than the summer semester, “Einleitung,” AA XXVII.2,2,
p. 1053. As can be seen from the catalogue of classes offered, Kant indeed did announce a
lecture Ius Naturae ad Achenwallium for the summer semester 1784. In the winter semester
1784/85 a lecture is announced under the same name but Kant did not offer it. Instead it
was Christian Jakob Kraus who taught the course in the winter semester. Apparently either
the author of the notes, or another person who had the notes, confused the two lectures
when preparing the title page.
18 Kant’s Doctrine of Right: A Commentary

Achenwall published his own book entitled Ius Naturae without any
co-authorship by Pütter, and one year after that, in 1756, Achenwall
published his Iuris Naturalis pars posterior. Achenwall considered his
own books to be an improved new edition of the Elementa. They then
became regarded as the third edition.57 To what he called the “fourth
edition” of Ius Naturae (1758/59), Achenwall added the Prolegomena
Iuris Naturalis (1758). Kant used the second edition of the Prolegom-
ena and the fifth edition of Ius Naturae, all three volumes from 1763.
Achenwall published a third edition of the Prolegomena in 1767 and a
sixth edition of Ius Naturae in 1767/68.58 In this Commentary, however,
we quote from the second edition of the Prolegomena and from the fifth
edition of Ius Naturae, which Kant in fact still used for his lectures dur-
ing the summer semester of 1784, or sixteen to seventeen years after
publication of the sixth edition.59 Kant also used the fifth edition when
he wrote the Doctrine of Right of 1797. One can see, for example, that
Kant adopted Achenwall’s definition of “contract” from the fifth edi-
tion almost verbatim.60 In the sixth edition, Achenwall’s definition of

57
On the title page is stated: “improved edition following two previous editions” (Editio post
binas priores emendatior).
58
Later eighteenth-century editions of Achenwall’s work are reprints of the editions of
1767/68.
59
That Kant used the 5th edition for his lectures can be seen by comparing the lecture notes to
the 5th and 6th editions of Achenwall’s books on natural law. In the 5th edition, Achenwall
discusses the absolute rights in Book I in the following order: Tit. I On everyone’s right with
respect to himself (De iure cuiusvis respectu sui ipsius), Tit. II On natural equality (De aequalitate
naturali), Tit. III On natural freedom (De libertate naturali), Tit. IV On the right to declare
one’s thoughts (De iure circa declarationem mentis), Tit. V On the right to be held in esteem
[by others] (De iure circa existimationem), Tit. VI On the right to things (De iure circa res). In
the 6th edition one finds the following ordering: Tit. I On everyone’s right with respect to
himself (De iure cuiusvis respectu sui ipsius), Tit. II On natural freedom (De libertate naturali),
Tit. III On natural equality (De aequalitate naturali), Tit. IV On the right to declare one’s
thoughts (De iure circa declarationem mentis), Tit. V On the right to be held in esteem [by
others] (De iure circa existimationem), Tit. VI On the right to things (De iure circa res). In the
6th edition, Achenwall switched the ordering of Titles II and III in comparison to the 5th
edition. In Feyerabend’s lecture notes (AA XXVII.2,2., p. 1338, l. 38 – p. 1339, l. 6, and
p. 1339, ll. 21–37) Kant deals twice with the right to equality (Jus aequalitatis) before the
right to freedom (Jus libertatis), thus following the 5th and not the 6th edition in structuring
his lecture.
60
AA VI, §18, p. 271, ll. 32–34: “The contract is the act of the united choice of two persons
through which what one has as his passes to the other.” In the 5th edition, Achenwall’s
definition of “contract” is: “Thus contract contains the consensus of both of those consent-
ing, i.e. a mutual (reciprocal) consent through which what one has as his is transferred
to the other” (Pactum itaque continet consensum utriusque eorum, qui consentiunt, id est consen-
sum mutuum (reciprocum) de suo alterius consentientis in alterum consentientem transferendo, I.N.I,
§167, p. 146). Noteworthy are Kant’s and Achenwall’s corresponding uses of “his” (das
Seine for Kant; suum for Achenwall). In addition, Kant emphasizes the “transferring” aspect
of contract (translatio), which one also finds in Achenwall’s definition (transferendum), AA
VI, §18, p. 271, ll. 26–27. Neither of these aspects of the definition can be found in the 6th
edition of Ius Naturae.
 Introduction and methods of interpretation 19

“contract” is significantly different from that in the fifth,61 and clearly

was not the basis for Kant’s definition. One cannot say, however, that
because Kant used the fifth edition, he did not also consult the sixth
edition while he wrote. An advantage of using the fifth edition of Ius
Naturae in this Commentary, however, is that at least Iuris Naturalis pars
posterior is more easily accessible to our readers because of its publica-
tion in the Academy Edition of Kant’s works.
In 1995, Jan Schröder published the Latin text with a German trans-
lation of the first edition of the Elementa of 1750.62 Of course, this
edition expands accessibility to Achenwall’s thoughts. Unfortunately,
however, the edition is of little benefit for any interpretation of Kant’s
Doctrine of Right. Achenwall developed his concepts and arguments over
time.63 These concepts and arguments, to the extent they are included
in the first edition of the Elementa at all, are rudimentary. Using them
alone creates a significant danger of false interpretation.
In the Kant literature today, one occasionally finds misunderstand-
ing of the role Pütter played in co-authoring Achenwall’s book on
natural law. Gerhard Lehmann, who is the editor of the notes taken
on Kant’s lectures in the summer semester of 1784, for example, calls
the book a “commonly produced work by Pütter and Achenwall,”64
even placing Pütter’s name first as co-author. Jan Schröder determined
that Pütter in fact authored only about one-sixth of the first edition of
the Elementa.65 In light of Schröder’s discovery, one can assume that
Pütter’s contribution to the second edition of the Prolegomena and to
the fifth edition of Ius Naturae was minimal if at all existent. Certainly
one cannot say that the 1763 editions were the “commonly produced
work” of the two professors in Göttingen.66
61
“Mutual (reciprocal) consent regarding a specific performance, i.e. that something be per-
formed by one of the consenting parties for the other, is called contract (pact, convention).”
(Consensus mutuus (reciprocus) in certam praestationem, hoc est, ut aliquid praestetur alteri consenti-
entium ab altero, pactum (pactio, conventio) vocatur.) I.N.I (6th edn. 1767), §170, pp. 149–150.
62
Achenwall / Pütter, Elementa.
63
This development, at least with regard to the deontic operators Achenwall uses, is traced in
Hruschka, Sechseck bei Achenwall, pp. 23–30.
64
Feyerabend, AA XXVII.2,2, p. 1053.
65
Achenwall/Pütter, Elementa, pp. 333–334 in the postscript by Jan Schröder.
66
If one compares the various editions merely for their size then one sees that the Elementa
of 1750 has 292 pages and the 2nd edition of the Elementa of 1753 has 394 pages. The 2nd
edition of the Prolegomena and both volumes of the 5th edition of Ius Naturae of 1763 have
altogether 666 pages (always according to the original pagination in the works). Thus in
1763 the work was 69 percent larger than the longer 2nd edition of the Elementa of 1753
and 128 percent larger than the shorter 1st edition of that work of 1750. The pages here
refer only to the actual text part of the books. The title pages, prefaces, table of contents
and indices are not included. The Prolegomena is 134 pages, Ius Naturae I 276 pages, and Ius
Naturae II 256 pages long.
20 Kant’s Doctrine of Right: A Commentary

6. Additional authors on topics discussed in the

Doctrine of Right
Of course Achenwall is not the only author who influenced Kant or to
whom Kant refers. Hobbes and Kant, Locke and Kant, Rousseau and
Kant, to name a few, are often compared and indeed one does see the
influence particularly of Hobbes’ Leviathan on Kant’s legal philosophy.
We are not especially concerned with comparing Kant’s legal philos-
ophy to another author’s. What we do care about, and what is at the
forefront of our interpretation of the Doctrine of Right, are the concepts
authors before Kant developed to the extent they shed light on Kant’s
legal philosophy. Over the course of this book, we refer to the fol-
lowing authors and their works: Grotius, De Iure Belli ac Pacis (1625),
Hobbes, De Cive (1642), Pufendorf, Elementa Jurisprudentiae Universalis
(1660), Hobbes, Leviathan (Latin 1668), Pufendorf, De Jure Naturae et
Gentium (1672), Pufendorf, De Officio Hominis et Civis (1673), Locke,
Two Treatises of Government (1690), Thomasius, De Praesumtione Bonitatis
(1700), Thomasius, Fundamenta Juris Naturae et Gentium (1705), Wolff,
Philosophia Practica Universalis I (1738), Hume, “Of the Original Con-
tract” (1742), Wolff, Jus Naturae III (1743), Montesquieu, De l’esprit
des loix (1748), Baumgarten, Initia Philosophiae Practicae Primae (1760),
Rousseau, Du contrat social (1762), Beccaria, Dei delitti e delle pene (1764),
and Adam Smith, An Inquiry into the Nature and Causes of the Wealth of
Nations (1776).67
As is true of his use of Achenwall, Kant sometimes simply uses the
concepts these authors developed, sometimes takes them and develops
them further, and sometimes takes and criticizes them. A particularly
good example is provided by Kant’s taking the concepts iustitia distribu-
tiva and iustitia commutativa from Hobbes and developing them further
(see Appendix to Chapter 2).
We cannot claim to have found and included all of the influences, or
even all of the important influences, on Kant’s work by earlier authors.
We cannot even claim to have found and included all of them from the
works we do use. Most probably there are countless additional sources
for Kant interpretation, leaving future research with a large unplowed
field to work.

67
Kant read German, Latin, and French. For English and Italian works, we have checked to
ensure that German or French translations were available in the eighteenth century.
 Introduction and methods of interpretation 21

Throughout this book we maintain the Latin, and sometimes even

the German, terminology, in parentheses following the English we
ourselves use. That is intended to facilitate the reader in further
research on Kant’s concepts and their historical origin. A book full
of foreign words can be somewhat tedious to read at times, but we
have done our best to ensure that the English text explains the con-
cepts fully. Sometimes our translations of the German terms Kant
uses (accompanied by the original Latin terms) may seem odd to the
modern reader (e.g. “adventitious state”). Again that is because we
are making an effort to use the English equivalents that derive most
closely from the Latin (e.g. status adventitius). In such cases, however,
we also explain what we mean by the term and why we are choosing
the translation we use. Sometimes we have simply left the terms in
Latin (e.g. lex iusti, lex iuridica, lex iustitiae). That is because Kant too left
them in Latin, never providing a German equivalent for them. Conse-
quently, their full meaning simply cannot be given with some German
or English equivalent, but instead needs quite a bit of interpretation
and explanation to understand.
Translations of Kant’s works are our own. We have used Kant’s
gesammelte Schriften, which is commonly referred to as the Akademie
Ausgabe. The Academy Edition is the most complete and commonly
used reference for Kant scholars today. Even editions in English and
German other than the Academy Edition of some of Kant’s works often
contain the Academy Edition pagination in their margins. Thus our
references to volumes, pages, and lines should be easily decipherable
regardless of what edition of Kant’s works our readers use. Much of
the Academy Edition has been translated under the direction of Paul
Guyer and Allen Wood, thus ensuring to the extent at all feasible con-
sistent use of the same English equivalents for the German throughout
Kant’s work. We have sometimes consulted these translations, particu-
larly the one by Mary Gregor on Kant’s practical philosophy. Although
the translations are excellent, they do contain some mistakes. We have
tried to avoid those mistakes and also point them out to the reader.
The technical defects in the printed versions of Kant’s Doctrine of
Right are well known.68 The second edition (1798) is somewhat dif-
ferent from the first (1797). We are assuming that Kant himself made

68
See, e.g., Gregor, “Introduction,” Cambridge Edition, “Translator’s note,” pp. 355–356, and
Ludwig (ed.), Rechtslehre, “Einleitung,” particularly pp. XXVIII–XXX.
22 Kant’s Doctrine of Right: A Commentary

corrections to the first edition, but we are also assuming that Kant did
not read the proof or galley sheets for either edition systematically.
The assistant whom he might have employed to read the sheets did
not notice the defects. We have generally ignored them. The one-and-
a-half-page text inserted in §6 of the Doctrine of Right, which most obvi-
ously does not belong there,69 is valuable for interpreting the work
in our opinion. We have thus used it, although some more modern
editions exclude it. Other supposed defects do not indeed seem to be
defects to us at all, but we have noted why we choose to adhere to the
Academy Edition text rather than to other “corrected” editions when
citing Kant.
69
AA VI, p. 250, l. 18 – p. 251, l. 36.
 CHAPTER 1

The idea of the juridical state and the

postulate of public law

One of the most significant passages in the Doctrine of Right is contained

in §41, entitled “Transition from the State of Nature to the Juridical
State”:

The juridical state (der rechtliche Zustand) is the relationship among human
beings which contains the conditions solely under which everyone can enjoy
his rights. The formal principle of the possibility of this state, seen according to
the idea of a universal legislating will, is called public justice. In relation to the
possibility or reality or necessity of the possession of objects (as the substance
of choice) according to laws, public justice can be divided into protective (iustitia
tutatrix), mutually acquiring (iustitia commutativa), and distributive justice (iustitia
distributiva). – Here law first says merely what conduct internally according to
its form is right (lex iusti); second, what as substance is also externally capable
of law, i.e. what state of possession is juridical (lex iuridica); third, what, and
through the judgment of a court in a particular case under the given law, is in
accordance with it [the law], i.e. what is established as right (lex iustitiae), where
one then calls that court the justice of a country, and whether such justice exists
or not can be called the most important of all juridical issues.
The non-juridical state, i.e. the state in which there is no distributive justice,
is called the state of nature (status naturalis). The state of nature is not contrasted
to the social state (as Achenwall thinks), which also could be called an artificial
state (status artificialis), but rather to the civil state (status civilis) of a society
under distributive justice, because in the state of nature there can be lawful
societies (e.g. marriage, parental, household in general, and countless others)
of which no law a priori is valid: “You should move to this state,” as certainly
can be said of the juridical state, namely that all human beings who can come
into legal relations with each other (even though involuntarily) should move
to this state.
One can call the first and second states, states of private law, the last and third
however the state of public law. Public law contains no additional or different
duties for human beings in relation to each other than can be conceived in the
state of private law. The substance of private law is the same in both. The laws

23