B. Sharon Byrd

Kant zu Strafrecht und Strafe im Rechtsstaat

Der Beitrag untersucht Kants Auserungen zum Strafrecht im Gesamtzusammenhang seiner Rechtsphilosophie

Kant's Doctrine of Right : Introduction and methods of interpretation

The Doctrine of Right is Kants masterpiece on legal and political philosophy. The work is highly structured and meticulously formulated. In it Kant makes a few simple assumptions he calls “axioms” and “postulates” and from those assumptions the whole doctrine of right unfolds systematically. It unfolds Kants 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. Peace is ensured in Kants view by securing and protecting individual rights. Thus Kants most significant contribution to legal and political philosophy is dedicated 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 process of law.” Unlike authors before, during, or after Kants time, Kant expands his inquiry beyond the juridical state of one nation to include the juridical state of nation states and the cosmopolitan juridical state. Kants 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.

Kant's Doctrine of Right : 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.

Kant's Doctrine of Right : The state of nature and the three leges

In this chapter, we continue our analysis of §41 of the Doctrine of Right , beginning with the state of nature, or non-juridical state, which is prior to the juridical state. To explain Kants notions of the state of nature and the juridical state, section 1 will discuss Gottfried Achenwalls work, to which Kant expressly refers in §41. Although Kant disagrees with Achenwalls contrasting the state of nature to the social state rather than to the juridical state, Kant tacitly adopts Achenwalls distinction between “original” ( ursprunglich ) and “adventitious” ( zufallig ). Kant uses these two terms throughout the Doctrine of Right and understanding their significance is crucial to understanding that work. Indeed the distinction between “original” and “adventitious” elucidates what Kant means with the three leges , namely the lex iusti , the lex iuridica , and the lex iustitiae , in §41. Those leges will be fleshed out in sections 2 and 3, where we provide a detailed explanation of Kants use of them. In section 4, we argue that understanding the three leges as we claim they should be understood explains Kants discussion of the three Ulpian formulae, honeste vive , neminem laede , and suum cuique tribue . In particular, it explains what has been considered to be a cryptic comment Kant makes at the end of his discussion of the Ulpian formulae regarding internal legal duties, external legal duties, and those legal duties which contain the derivation of the external legal duties from the principle of the internal legal duties through subsumption.