Immanuel KantThe Metaphysical Elements of JusticeReading Guide

Background and Introduction

1. Given the difficulties involved in reading Kant’s The Metaphysical Elements of

Justice, let’s start with some background on the work. After that, we’ll work our

way into the Introduction. It is important to keep in mind that, for Kant, this text

is not a freestanding work. It is meant as a further development of a theory about

the foundational principles of morality that was articulated in the Grounding for

the Metaphysics of Morals and the Critique of Practical Reason. As such, those

who are entirely unfamiliar with Kant’s works in ethics would benefit enormously

from reading one or both of these works. If you find yourself in a position of

having to work through the Grounding on your own, then you might consider

using the reading guide we have developed as a companion to that text.

2. The primary goal of The Metaphysical Elements of Justice is to refine the general

moral theory and apply it to questions about the foundations of justice. Kant has

done the same thing to questions about the foundations of virtue in a companion

piece to this text. The particular aspects of justice that are front and center in this

work are the philosophical foundations and justification of a legal system. He is

concerned with two aspects of justice as it pertains to law: the obligations that

apply to matters of private right, and the obligations that apply to matters of

public right. For those who are not familiar with the history of this distinction in

the Roman law tradition, or in the German legal tradition, we do find a similar

kind of distinction in the American legal tradition. The law of the land in the

1

United States today can be divided into two main branches: civil law and

criminal law. Both of these sets of laws apply the actions between individuals. In

addition to the system of local, state and federal laws that apply to individuals,

there are also legal powers and restrictions of states. Some of these restrictions—

such as the restrictions on the powers of state governments in relation to the

federal government are embodied in the legal system of the United States, while

others are embodied in the system of international laws. Kant is trying to

articulate the basic principles of justice that apply to this entire system of laws.

Broadly speaking, the chapters on private law pertain to the rights and obligations

of individual citizens, and the chapters on public law pertain to the rights and

obligations of states.

3. Note that the theory does not consist of a set of descriptive principles. That is, the

purpose is not merely to describe the principles that happen to be embodied in any

given system of laws that have actually been adopted in any given state. After all,

the proper aim of legislators, judges and citizens is not simply to obey the laws as

they have been written. The proper aim is also to reflect on these laws, to call

into question those that seem to be at odds with the basic requirements of justice,

and then to amend the system of laws so that they will conform to the

requirements of justice.

a. Kant’s theory of justice as it applies to law is meant to be a framework

that can be used as a basis for justifying our core common sense

commitments about the kinds of laws that should be made and enforced by

any state for any civil society.

2

b. As such, it is not a theory that is designed to explain the principles in the

legal system that had been adopted Prussia at Kant’s time. Rather, it is

meant to be a theory that can be used to justify and criticize any legal

system within any state at any time.

c. How can Kant arrive at such a theory? After all, his understanding of the

common sense commitments that pertain to the principles of justice are

parochial. That is, they were shaped by the culture in which he lived and

in ways that Kant himself could not fully see or understand. Kant is well

aware of these kinds of concerns, and he is attentive to his own limitations

as a person who is developing a philosophical theory of the foundations of

justice.

4. Kant’s method is specifically designed to focus on what he and the tradition

before him called the a priori foundations of justice. The method he is using is

called the transcendental method, and it works by abstracting from all of the

empirical considerations that pertain to the specific conditions found within any

given culture, or any given set of actual circumstances in order to analyze

fundamental conceptions and principles. As such, Kant’s account of the

foundations of justice is, at its core, a pure theory that is free from any admixture

of empirical considerations.

a. Kant does not intend to ignore empirical evidence or considerations about

what is actually the case in any given society. Rather, his intention is to

clearly separate these two kinds of questions: de jure questions about

what kinds of laws are ideal, and de facto questions about what kinds of

3

laws are actually in place. On this account, it is important to make a clear

separation between these two kinds of questions because our search for

answers hinges on different kinds of grounds and different kinds of

methods. Anyone who fails to make a clear separation will run the risk of

use a hodgepodge of different kinds of evidence and methods and, as a

result, they will be lead down a path strewn with confusions and mistakes.

As a result, we will have little reason to have confidence in the answers

they give to the different kinds of questions.

5. Having said that, Kant’s aim in this work is to apply the primary principle of

morality that he articulated in the Grounding and second Critique to questions

about the justice as it pertains to legal systems. As such, he is keeping in mind

the specific legal systems that were present in different countries at his time, and

he is also thinking about the legal systems that could be put into place by some

states at some point in the future. Having said that, he is well aware that the pure

theory eventually will need to be brought into harmony with the empirical

considerations that pertain to the specifics of any actual legal system.

6. In his work on the foundations of morality, Kant argues that the primary principle

must have three features. The form of the principle must be a universal and

necessary law of reason that expresses a categorical and not a hypothetical

imperative. The form is articulated in the first formulation of the categorical

imperative: act only those maxims that can, at the same time, be willed as

universal law. The end of the principle must be our rational nature or humanity.

The end is articulated in the second formulation of the categorical imperative:

4

always act so as to treat the humanity in a person as an end in itself and never

merely as a means. The ideal embodied in the principle must be the conception

of a realm of autonomous persons legislating for a kingdom of ends. The ideal is

articulated in the third formulation of the categorical imperative: act on those

ends that are reasonable for all autonomous agents in light of principles that are

acceptable from the point of view of one who is both legislator of the law and

subject to the law.

7. With this background in hand, let us state the general question Kant is trying to

answer: if the primary principle that is embodied in our common sense

understanding of our moral obligations is a categorical imperative that requires of

us that we respect the freedom and dignity of all persons, then what are the

fundamental principles of justice that should govern the basic rights and

responsibilities of individuals and states under a legitimate system of law? Or,

more succinctly, given the account of the primary principle of morality that Kant

has argued for in his earlier works, “What is justice?” [230]

a. The reason for the longer statement of the question is that Kant’s argument

starts, we must remember, from his account of the fundamental principle

of morality. He has already argued that our common understanding of

morality is based on a principle having the form of a categorical

imperative, the end of respect for the dignity of all rational persons, and

the ideal of a kingdom of ends. He sees no need to repeat those arguments

in this work.

5

8. In response to this question about the nature of justice, Kant gives the following

account of the universal principle of justice: “Every action is just that in itself or

in its maxim is such that the freedom of the will of each can coexist together with

the freedom of everyone in accordance with universal law” [230]. Kant notes that

a person can’t be forced to adopt this principle as the ground of a maxim (a

subjective conception of what the person is actually doing). Rather, it can only be

the basis of a choice that is autonomous. As such, the principle of justice applies

to the external sanctions that compel people to act in a manner that is consistent

with the principle.

a. In other words, the requirements of justice under law are not designed to

make people make the right choices for the right reasons. Rather, they

legitimate the state to use coercive threats in order to keep people from

breaking these principles—or that they are punished if they do.

b. Kant’s point is that the principles of justice serve the function of telling us

when the state may legitimately use coercion in order to enforce the laws.

Given the fact that coercion is, on its face, at odds with the freedom of

each person to make decisions for themselves, the state needs a strong

justification in order to use such power. The main idea behind the

justification for the use of such coercive power is that it is legitimate when

it is employed to protect the basic rights of individuals and the core

interests of the state in promoting the rule of law.

6

9. Kant ends the introduction by making a number of distinctions between different

kinds of rights and obligations. We will examine these divisions as they arise in

the context of the rest of the book.

7

Part I: Private Law

Chapter 1: Of the Mode of Having Something External as One’s Property

1. Kant starts his discussion of the rights over one’s personal property my making a

distinction between having de facto possession of some object and having de jure

possession of the same object. Having a right to some object, such that we have a

right to exclude others from using the thing, is a matter of having de jure

possession.

a. Kant suggests that, when it comes to objects that are entirely external to a

person, such as a book or a coat, having a right to possession hinges on the

question of whether the use of that object by another person somehow

constitutes a harm to the person who claims to own it.

b. From a legal point of view, all objects that can be used by the will may be

conceived as possible possessions. In order to convert some object that is

a possible possession into something that is legally owned, there must be

some act of the will. In agreement with the general upshot of Locke’s

account of property, Kant notes that there is something special about being

the first to exercise one’s will in the use of some object. Doing so appears

to be the basis of a claim to having first rights of possession. Unlike

Locke, however, Kant is only saying that this creates some basis for

establishing a valid claim to possession. By itself, a claim of being the

first to “mix one’s labor” with an object by using it in some way may not

be sufficient to establish the right of property over the object. The

8

strength of the claim will depend on a number of things, including the kind

of object we’re talking about (e.g., a small garden, or thousands of acres of

forests), the degree to which others are being excluded from its use, and

all these things need to balance the rights of all to exercise their freedom

through their actions in using the different kinds of objects that are

necessary to live in a civil society.

2. This gives rise to a key question about the right to possession of any object: how

can competing claims to the exercise of freedom in the use of different kinds of

objects be balanced under a principle that demands respect for the freedom and

dignity of all?

3. Kant’s answer is based on the conception of reciprocity when it comes to the

state’s use of coercive force [232]. The idea is that the rights of property for any

kind of thing--including personal property such as one’s clothes, real property

such a house, and the control over things much more personal such as the

ownership of one’s own body—hinges on ensuring that the application of a

system of coercive enforcement must meet two conditions.

a. First, it must be consistent with the freedom of everyone. Under this part

of the principle, everyone must be treated as an equal under the law. As

such, there can be no fundamental differences in property rights based

solely on gender or ethnicity.

b. Second, the legal system of rights and obligations must be in accordance

with universal principles of justice. Under this part of the principle, the

law must apply to all in the same way. As such, there can be no

9

fundamental differences in property rights based on the fact that some

people are born into wealth and others are born into poverty.

c. Taken together, these two provisions are central in our modern conception

of the rule of law. The idea of the rule of law is, according to Kant,

something that demands both a basic equality in that no citizen has special

rights or is exempt from the legal requirement to live up to their obligation

to respect the rights of others and universality in the protection of the

rights of all citizens under principles that apply the same for all.

4. Kant claims that the act of owning something is analogous to the act of promising

something. Through the legal act, the persons who transfer ownership of

property, or who make promises to one another, are joined by a de jure

relationship under the laws. The concept of something external to the person that

is owned gives rise to a critique where practical reason is forced to examine the

grounds under which possession is something a person has as a matter of right.

The critique produces a dialectic between two claims that appear to be equally

valid.

a. Thesis: “It is possible to have something external as mine even though I

do not have possession of it.”

b. Antithesis: “It is not possible to have something external as mine if I do

not have possession of it” [255]

5. Kant’s claims that the solution to this apparent antinomy of practical reason is that

both propositions are true. The first is true when we are talking about empirical

possession. The second is true when we are talking about “pure intelligible”

10

possession. The latter kind of possession, Kant points out, must be inferred from

the above postulate of practical reason. Under that postulate, the rights of

possession are something that an individual can have only under conditions of

reciprocity under the law.

a. In order to understand the basis of this distinction between two ways that

something might be possessed, we need to take a look at what kind means

by empirical and intelligible. This distinction pertains to two ways in

which we can view ourselves. From the theoretical point of view, we

draw on empirical evidence in order to answer the question: what, as a

matter of fact, is actually the case. From the practical point of view, we

draw on a priori grounds to answer the question: what, from the

perspective of an agent who engages in practical reasoning, ought to be

the case under principles we all can accept as binding on our conduct?

b. So, in the case of the thesis, something can be my possession even if I am

not currently holding the object and keeping others from using it. The

external object can be my possession because, as a matter of fact, it has

already been established under the law that I have such a right. In this

case, the possession is a positive fact that is established based on what the

established laws actually say and the fact that I’ve actually satisfied the

conditions under the laws for having a right to possession.

c. In the case of the antithesis, it is not possible to have something external

as mine if I do not have possession of it because, under the principles of

11

what is fair for all, someone can’t claim a right to possession if they have

not engaged in acts of will with respect to the object.

d. In order to illustrate the notion of intelligible possession, take the case of

two settlers who are heading to Arizona during the time of Western

expansion in United States history. If, during the journey, both see a hill

on the horizon and the one says to the other, “I can see from the map that

the hill has not yet been claimed—so I now claim it as my possession,”

then is the claim to possession valid? Kant is pointing that, regardless of

what the actual laws might say, there is no right to possession in this case

because the settler has not yet exercised his will with respect to the land

and done anything productive with it—such as till the ground and plant

crops. Nor has the settler purchased the land from someone else who has

engaged in such activities on the land. As such, the land is something that

can, as a matter of principle, be owned by someone at some point. Until

someone has done something with the land, however, there can be no right

to possession.

e. The reason for this restriction with respect to intelligible possession of

external objects is that, until someone has exercised their will with respect

to the object, they have no right to claim that others have an obligation not

to interfere with their activities or the objects involved in those activities.

Ultimately, on Kant’s account, it is the activities themselves that are the

real source of the rights and obligations of ownership. As such, a valid

system of laws must be built on an understanding of the reciprocity

12

between the free activities of all of the people living in a society. The

right of one person to the possession of an object creates an obligation on

the part of others to refrain from using it only on the condition that we

recognize the same relationship applies to all others.

Chapter 2: On Technical Terminology from the Roman Law tradition (Note: this section

is omitted in the only English translation that is available. As such, it is not part of this

reading guide.)

Chapter 3: Of Acquisition that is Subjectively Stipulated Through a Decision of a Public

Judiciary

1. The right to possession is established under a system of laws where those who

threaten to violate the right can be coerced to obey the law [256]. As such, there

are no such property rights in the state of nature that Hobbes envisions in

Leviathan. Up to this point, Hobbes and Kant are in general agreement about the

status of the right to property. The full right to possession is something that is

really in effect only under an authority that has the power to make and enforce the

laws.

2. They disagree, however, about the ground of the legitimacy of the right once it

has been established. Hobbes maintains that the source of the right is the

realization on the part of all self-interested agents that they are better off giving up

some freedoms in order to live in a civil society under a set of laws than to live in

13

the state of nature. Kant maintains that the ground of the right is not the rational

self-interest of the individuals to avoid the harms inherent in living in a state of

nature and the arbitrary act of a sovereign in making and enforcing laws. Rather,

the origin of the right is a shared understanding of what is necessary to have a

system of reciprocal rights and obligations that promotes and protects the freedom

of all persons. Having a state the legislates and enforces laws is necessary to give

these provisional rights full effect, but the origin of the rights themselves is in a

shared understanding of what is reasonable and fair for all. As such, the moral

principles that provide the foundation of what is reasonable and fair with respect

to our moral rights and obligations is the ground of a legal system of rights and

responsibilities and not, as Hobbes would have it, the other way around.

3. This general point can be applied to the authority of a court. Kant calls a court a

“moral person” because the authority of those, such as the judge, to administer the

law is something that is grounded on moral principles [297-8]. The same point,

one would think, should apply to the authority of those who have the power to

legislate or to enforce the law.

a. While Kant claims that the right of a court to adjudicate cases under a

legal system is grounded on moral principles that make it a duty to respect

the autonomy and dignity of all persons, he is keenly aware of the

difficulties that judges face in making judgments under the legal system.

When the laws that have actually been made in a state are in conflict with

their moral sense of what is reasonable and fair, they should not simply

override the requirements established under the legal system.

14

4. Kant draws on this understanding of the source of the authority of the state to

make and enforce the law in order to make a transition from private law to public

law. This transition can be understood in terms of three categories that come

under the heading of modality in his table of judgments. The categories of

possibility, actuality and necessity can be applied to the possession of objects in

accordance with law in order to determine the rights and obligations that pertain

to the protection, the reciprocal acquisition, and the distribution of legal justice.

The movement from the first two categories to the third constitutes the transition

from private to public law [306].

15

Part II: Public Law

First Section: Municipal Law

1. Kant starts this part of the discussion with a definition of public law. It is “the

body of those laws that require public promulgation in order to produce a juridical

condition.” In order to understand the point of offering a definition, let’s consider

Kant’s method. The aim of this book, we have seen, is to provide an adequate

explanation and justification of justice as it applies to a system of legal rights and

obligations. In order to do this, he needs to clarify our common sense conceptions

of justice, and he needs to figure out where the common sense conceptions are on

the right track and where they might be confused or mistaken. The first step in

this process is to provide what is called a nominal or verbal definition of the

conception. A nominal definition is a compact statement of what we commonly

mean in our current use of a concept. A real definition does more. It is an

explanation of what the thing that is being defined really is.

a. Is Kant, at this stage of the discussion, offering a nominal definition or a

real definition? In order to settle the question, we will need to see what he

does with the definition he has offered on the first page of this section. If

he drastically amends or develops the account, then there is good reason to

think he was starting with a nominal definition.

b. If he is offering a nominal definition, then one reason he might do this is

to pin down the starting terms of a debate. If, for instance, there have been

several different competing explanations of public law that have been

offered, then he might start with the nominal definition in order to find

16

some common ground that all the parties can agree to at the outset of the

discussion.

2. There are three levels of public law: the laws between a multitude of individuals

within a nation, which is called municipal law; the laws between a multitude of

nations, which is called a law of nations; and the laws that apply all all people in

all nations, which is the Idea of an international or world law. He is trying to

answer the following key question: what kind of relationship must be established

between the three levels of law in order for there to be a rule of law within or

between states?

3. Kant claims that these three levels of law are related in an interdependent manner:

“if one of these three possible forms of juridical condition lacks a principle

circumscribing external freedom through laws, then the structure of all the other

will unavoidably be undermined and must finally collapse” [312]. His reasons for

making this claim are straightforward. Human beings only succeed in

constituting a civil society when there is a “Will” that unites them under a

constitution. The constitution provides a general framework of law for

adjudicating disputes without having the individual citizens within a state resort to

a brute display of power where they try to force the other individual to accord

with their will.

a. Drawing on Rousseau’s understanding of a “General Will,” Kant is saying

that the individuals within a nation can agree to live under a system of

laws when the constitutional principles that provide the justification for

the legal system are grounded in moral principles that they all recognize

17

are binding on their conduct. As we have seen, Kant claims that every

legal system must be grounded on a principle that circumscribes the

external freedom of all citizens under the rule of law. This principle of

justice is rooted on a moral law that has the form of a categorical

imperative, the end of respect for the humanity of all, and the ideal of a

realm of autonomous agents legislating a kingdom of ends on grounds that

are reasonable for all.

b. What is true for the multitude of citizens within a state is also true for a

multitude of states within a larger world of states. If a given set of states

do not act towards one another on the basis of a system of laws that are

grounded on basic principles of justice, then there can be no justice within

or between states.

c. Furthermore, there can be justice between states unless all states in the

world accept a system of laws that are based on principles of justice. The

reason is that there will always be a risk that some states will come into

conflict that can only be resolved by a brute exercise of power. The mere

presence of such a risk undermines the necessary conditions for

establishing the rule of law and a civil society for all peoples in all states.

d. Kant’s point about the reciprocity between civil, international and world

law is worth noting. As we can readily see from contemporary events in

the modern world, we have not yet arrived at system of laws that have the

kind of reciprocal fit that Kant’s insists is necessary for the rule of law

within and between states.

18

19