Unethical Laws and Lawless Ethics: Right and Virtue in Kant’s Rechtslehre

Abstract

In this paper, I examine the relation between law and morality within the context of Kant’s late work The Metaphysics of Morals. I argue that Kant’s conception of the law is based on a fundamental distinction between Right and Virtue, which respectively correspond to his legal-political theory and moral philosophy. My analysis is two part: in the first part, I examine the relationship between the Doctrines of Right and Virtue within the Kantian architectonic; in the second, I evaluate two cases of adjudication in the Rechtslehre that exemplify the distinction between law and morality explicated in the preceding section. I begin by showing that Kant’s legal and moral philosophies are normatively distinct, insofar as Right and Virtue belong to incommensurable realms of freedom and necessity. From this distinction, I derive Kant’s conception of the legal state as principally concerned with external freedoms and the preservation of the lawful condition itself. The second part of this paper analyzes Kant’s views on two cases of criminal justice, revealing his prioritization of the political over independent ethical considerations in juridical decision-making. Here, the conceptual barrier between law and morality serves as a caveat against facile recourses to Kantian ethics as means of legitimizing juridico-political decisions.