2.1 Kant discusses equity

Kant writes of equity as ‘a mute divinity who cannot be heard’ in a civil court (MM, 6: 235). In so doing, he simultaneously confines its authority and recognizes its venerability. He disputes not the merit of equity’s motto which is as close as he comes to defining it – ‘the strictest right is the greatest injustice’ – but its ability to provide a basis for coercion (ibid.). While Kant asserts that equity only grants unenforceable rights to claimants who seek to hold defendants to account, he maintains that the latter should be equitably compelled by their own internal ‘court[s] of conscience’ (ibid.). Kant, therefore, recognizes that equity bears moral authority insofar as the individual should invite it to inform their conscience in deciding how to act. He does not, however, explicate why and how.

This is at least partially due to his treatment, in the Metaphysics of Morals, of equity as a unique species of ‘right without coercion’ rather than analysing it under the heading of virtue. Instead of examining a virtuous duty to act equitably, he proceeds on the basis that ‘people think of’ equity as ‘a right in a wider [‘alleged’ or ‘ambiguous’] sense’ (MM, 6: 233). He locates it awkwardly within ‘the intermundia’ between strict ‘rights’ (analysed in the Doctrine of Right) and inexact ‘ethics’ (analysed in the Doctrine of Virtue). Whereas the former is precisely determinable and enforceable through external coercion by the state, the latter requires latitude of judgement, ‘some room for exception’, and enforcement only through the individual’s conscience (6: 234). Kant treats equity as belonging to an intermediate category because:

Equity is stronger than a ‘mere’ calling of virtue, but weaker than an enforceable right. Having categorized it separately as such before expounding the Doctrines of Right and Virtue, Kant brushed equity aside and omitted to explicate its significance within the latter compartment of morality.

This decision in classification is understandable but does not extinguish the need to analyse the necessity of equity within Kantian virtue. In the above quotation, Kant recognized that people do make claims through equity and that the so-called ‘rights’ the claimant thereby calls upon the defendant to honour are not invalid, although they cannot legitimately be judicially enforced. Moreover, Kant was swimming against a tide in which scholars considered equity an enforceable claim of right. Allen Rosen observed that (Reference Rosen1993: 108–9):

Unsurprisingly, Kant deemed it necessary to account for the ‘claimable’ nature of equity while emphasizing its unenforceability. If a Venn diagram of Kantian right and virtue were drawn, equity would fall within the overlap. The former aspect is noteworthy insofar as the one who seeks equity is right to insist upon it but goes no further. The virtuous aspect of equity’s nature within that overlap requires examination.

The corollary of Kant’s treatment of equity as an unenforceable right is that it retains conscience-commanding authority in the domain of virtue. While the distinction between ‘right’ and ‘virtue’ is ‘central to Kant’s practical philosophy’, it is, as Onora O’Neill emphasizes, inexhaustive and non-exclusive, respectively, because duties of ‘right’ like ‘equity’ persist notwithstanding unenforceability and because such duties can be upheld virtuously ‘as a matter of principle’ (O’Neill Reference O’Neill2018: 209). A judge could objectively recognize an equitable ‘right’ which the defendant should honour. Kant could consistently countenance judicial admonition to that effect (Shanske Reference Shanske2005: 2080). To coerce the defendant to honour such a ‘right’, however, would be to adjudicate on a ‘subjective basis’, lacking ‘the conditions [needed] to determine by how much or in what way [the] claim could be satisfied’ (MM, 6: 234). Consequently, for Kant, such coercion must be illegitimate because it infringes freedom by binding one to an ‘active obligation’ contrary to one’s own choosing (6: 274). Objectively, the ‘right’ can be pronounced, but only subjectively can it be measured. Equity can, therefore, be conceived as bearing dimensions of both ‘right’ and ‘virtue’.

This is affirmed by Kant’s simultaneous recognition of an ‘ill’ and rejection of any justiciable cure in his two examples. In both situations, it would be inequitable and unconscionable for a defendant to ignore circumstances transpiring since the formation of a contract and refuse to pay a claimant above the stipulated amount. A claimant might insist on greater payment based on equity, if they initially entered a partnership agreement that set an equal distribution of profits but ultimately contributed more than the others to the endeavour (MM, 6: 234). One might claim that equity warrants the employer paying above the agreed rate because inflation has since rendered that amount unfair (ibid.). While Kant says these claims concern unenforceable ‘rights’, he still recognizes that they should fasten upon conscience (6: 235). The virtuous individual, knowing it would be wrong to withhold additional reimbursement, would be called by conscience to the labour of determining an equitable increase. That the individual should do so is reinforced by Kant’s acceptance that a judge who hears claims of equity against the state ‘may and should listen to equity’ despite this not being strictly required. The claimant’s claim of ‘right’ is a unique one that can only be upheld by the virtuous (state or individual) defendant’s conscience. Indeed, the defendant’s insistence on their ‘strictest right’ to not pay more than agreed is the ‘greatest injustice’ against the claimant (ibid.). Raef Zreik argues that Kantian equity ‘does not mingle with the ethical’ but constitutes only a right that is unenforceable for ‘institutional incapacity’ (Zreik Reference Zreik2023: 138). The absence of such capacity within courts of law, however, leaves the individual’s conscience to enforce equity as a matter of virtue. Kant scholarship remains in need of a sustained analysis of equity in that capacity.

Kant’s earlier remarks about equity amplify its necessity as a concern of virtue for the conscience-bearer and the need to analyse it as such. Nine years before MM, Kant implied equity’s importance in guiding conscience, without analysing it, in his Critique of Practical Reason. We can justifiably pass some judgements against wrongdoers, he writes, ‘which, though made in all conscientiousness, yet seem at first glance quite contrary to all equity’ (CPrR, 5: 99). Kant believed that it is not inequitable to strictly judge a recalcitrant wrongdoer, whom others might deem ‘incapable of improvement’, because we know, as does the malefactor, in conscience, that he has freely chosen an immoral path (ibid.). The implication is that equity still has some role to play in judging an individual’s conduct through conscience; for Kant it would come into play when judging someone who laboured under an honest misunderstanding (MM, 6: 401). Strikingly, in his Lectures on Ethics, two decades before MM, Kant stated that equity ‘belongs only to ethics’. This is because it ‘is not an external law: its validity is only coram foro conscientiae’ (LE, 35). Kant’s position in MM only changes insofar as he introduced and emphasized the ‘unenforceable right’ element; he maintained its venerability within the conscience. Allen Rosen considers the position in LE more consistent with Kant’s ‘claim that the essential difference between duties of justice and ethical duties is that the former but not the latter are enforceable through coercion’ (Rosen Reference Rosen1993: 110). As Zreik observes, Kant’s ‘process of distinctions and distinctions within distinctions’, and ‘move[ment] from technical distinctions to those based on the institutional level’, leaves the reader to discern which distinctions are most workable (Reference Zreik2023: 138). Kant might have elaborated on equity had he another lifetime to continue his intellectual enterprise. His simultaneous maintenance of and limited discussion of equity’s virtuous necessity, however, leaves work to be undertaken.

Although Kant’s insufficient attention to equity has generated responses within certain spheres, none make its place within ethical decision-making their particular focus. As Alice Pinheiro Walla observes, Kant scholars leave ‘a remarkable omission … with regard to equity’ (Pinheiro Walla Reference Pinheiro Walla2020: 80). Prominent scholars of Kantian moral philosophy, including Mary Gregor (Reference Gregor1993: 9–100), Thomas Hill Jr and Adam Cureton (Reference Hill, Cureton and Snow2018: 274), and Onora O’Neill (Reference O’Neill2018: 218, 221), consider his thoughts on the concept no further than within a couple of pages. Recent contributions draw from Kant in theorizing equitable approaches to social and political justice. Pinheiro Walla contends that Kant’s exclusion of equity from the sphere of judicial enforceability leaves it to operate as a basis for, not merely moral rights, but ‘welfare rights’, to be enacted via ‘improvements and reforms’ in response to systemic injustices (Reference Pinheiro Walla2020: 77). Jason Fisette argues that equity, as Kant understood it, should inform the sovereign’s conscience toward legislating reparations for slavery (Fisette Reference Fisette2022: 691–4). Avery Kohlers extracts aspects of Kantian moral philosophy to support a ‘structural notion’ of equity under which we have a duty to undertake political action in solidarity with oppressed peoples (Kohlers Reference Kohlers2016: 29). Pinheiro Walla, Fisette, and Kohlers give the relationship between Kant and equity much-needed attention without focusing specifically on its virtuous, conscience-informing, role within Kantian morality. Moreover, legal minds have found Kant’s discussion of equity as right either unsatisfactory or begging for qualification (Brown Reference Brown1962: 43; Bennington Reference Bennington2011; Ripstein Reference Ripstein2004: 30). This further indicates that his barely-over-a-page treatment of equity in the Metaphysics of Morals left significant work to be done.Footnote ⁵ It is time for a study of equity’s significance within Kantian virtue, that is, inside the court of conscience.

2.2 Upholding ends

Once it is appreciated what equity denotes, its indispensability in Kant seems to lie in its facilitation of conscience’s endeavour to uphold what he considers the ultimate moral end. If equity embodies the maxim that ‘the strictest right is the greatest injustice’, then at least in some kinds of situations a norm (e.g., giving others their due) should be applied in a manner that is ethical considering the relevant circumstances (e.g., paying above the agreed and legally binding amount when unforeseen events require such to avoid unfairness). Equity denotes an approach to applying relevant morally laden norms which accounts for particularity and circumstance. That is, in relation to a given end. It is, as Martha Nussbaum says, ‘judgement that attends to the particulars’ (Nussbaum Reference Nussbaum1993: 85). More specific definitions of equity are found in which thinkers connect the notion to the ideals they believe it should promote or express their understanding of what it requires in a given context. Any understanding of equity, including Kant’s, will be determined by the end one has in mind.

Like other broad concepts, equity gives rise to different, but not always incompatible, conceptions.Footnote ⁶ A philosopher, when asked ‘what is equity?’, might begin their response with reference to Aristotle’s Nicomachean Ethics, concerning the flexible application of legal rules to circumstances not conceived by the legislator and/or a personal virtue of inclining toward favourable treatment of others (Aristotle 2004: 1138a, 1137b–1138a; cf. 1909: 1375a). A lawyer working within an Anglo-American jurisdiction might respond that it is a ‘mollify[ing]’ body of legal doctrines and remedies supplementary to those that comprise the common law (Heydon, Leeming, and Turner Reference Heydon, Leeming and Turner2014: 5). A social reformer might say it concerns treating people fairly with appropriate regard to their difference of circumstance, especially of disadvantage or marginalization (Frederickson Reference Frederickson2010). In each instance, equity refers to applying relevant norms in a manner that takes account of particular factors and circumstances that contextualize the relevant situation. When one speaks of one’s equity in a business context, referring to the value of one’s assets minus debts, this entails making an adjustment in calculating what is rightly ‘theirs’, factoring in the amounts within their holdings which would be due to others. When Aristotle writes of equity in the Rhetoric, he focuses on the need to adapt the style of one’s communication so that one’s message will be most acceptable to the audience (2007: 1356a). Across different spheres of life, the concept of equity generates different conceptions in the minds of different thinkers.

Whenever equity informs our reasoning, we seek to ensure that our application of norms is undertaken consistently with an end that we aim to uphold or avoid undermining in our judgements. When Aristotle writes of equity in judicial contexts, he advocates for applying legal norms in a manner that best upholds the end of justice as the legislator would have conceived it in the present circumstances (2004: 1138a). When he writes of equity in contexts of interpersonal dealings, he implores temperance of self-regarding norms with other-regarding norms, especially with respect to another’s circumstances, in pursuit of the end of virtue. His writing about rhetorical equity concerns adapting norms of communication toward the end of persuasion (ibid.). When a notion of equity is applied, one has an end in mind in terms of a goal to be pursued or a pitfall to be avoided.

While a given end that draws support from equity might not bear an overtly moral character, if one accepts – as do Aristotle and Kant – that human activity should be directed to an ultimate end, then the former end should really be pursued in service of the latter. That is, for Kant, other than when one merely permissibly and prudently pursues one’s happiness without undermining a moral end.Footnote ⁷ For Aristotle, who distinguishes between instrumental and self-sufficient value, one might adopt certain means in pursue an ‘end’ of housebuilding, medicine, rhetoric, law, or virtue, to serve the ultimate end of the ‘good life’ which is characterized by contemplation (2004: 1094a–1097b). He would employ considerations of equity when needed to ensure that his application of relevant norms is directed, within each sphere, toward optimal accomplishment in pursuit of the best possible (most contemplative) life. One need not accept Aristotle’s system to appreciate the general point that if some ultimately self-sufficient moral end should be pursued, then any notion of equity, engaged throughout manifold endeavours, should ultimately be pointed toward it. This brings us to the question of how Kant requires equity to operate in support of the ultimate moral end he has in mind.

3.1 The categorical imperative

The strictness of moral duty conveyed when Kant first enunciates the Categorical Imperative might strike one as hostile to equity and inconsistent with his accepting its voice within conscience. The Categorical Imperative is so-called because the imperative to act according to duty is categorical: ‘act only according to that maxim which you can at the same time will that it become a universal law’ (G, 4: 421). Kant re-phrases this formulation: ‘so act as if the maxim of your action were to become by your will a universal law of nature’ (4: 422). If morality were to consist solely of negative duties, we would need only exercise ‘the faculty of judgment’ within the ‘internal court’ of conscience in order to determine whether an act is forbidden under a ‘rule’, and if so, the verdict condemns it (MM, 6: 438–9). It would be wrong, for example, to let desperation drive one to falsely promise repayment to secure a loan, knowing that no one would take any promise seriously if everyone else did the same (G, 4: 422). To follow one’s inclination here might seem ‘equitable’ but would ‘deprive [strict laws of duty] of their dignity’ (4: 405). Kant would object to any notion of equity which grants exceptions to prohibitive moral duties. Yet Kant also insists that the moral law embodied in the Imperative entails positive and ‘wider’ duties (4: 423). If conscience conveys that we should positively do good, and that this can entail judging equitably in light of circumstances – such as by sometimes paying someone more than originally agreed – the substance of Kant’s moral law must justify both this kind of duty and that of the negative kind.

If Kant stopped at the first formulation, the Categorical Imperative would leave the moral law empty of content. As Paul Guyer writes, it would fail for lack of ‘a necessary object of action, recommended by something other than contingent inclination, that could serve as the basis of a universal and necessary principle of morality that is not purely formal in character’ (Reference Guyer2002: 64). Kant remedies this by introducing ‘the idea of humanity as an end in itself’ in the second formulation (ibid.). On this basis, we can appreciate that Kantian morality is not only proscriptive but also prescriptive, with respect to the end of human dignity, and why it requires equity in the latter sense. This principle and its relationship with conscience enable us to distinguish between kinds of duties which do not require equity and those which do. Those are, respectively, negative and positive duties. The following parts of this section explain Kant’s understandings of dignity and conscience, before showing how they exclude equity from the sphere of negative duties and ultimately confine its role to assisting our undertaking of positive duties.

3.2 The principle of humanity

Kant translates (if we might so put it) the Categorical Imperative into the Principle of Humanity thusly: ‘So act that you use humanity, in your own person as well as in the person of any other, always at the same time as an end, never merely as a means’ (G, 4: 429). In so doing, Kant claims that respect for human dignity is the fundamental law that should inform human action. Moral value is distinct from instrumental value. The former bears a ‘dignity’ as ‘an end in itself’. The latter bears merely a ‘price’ as something that is replaceable (4: 434-5). For Kant, our ‘rational nature’ is self-recognizing of its own end status, in its embodiment of the moral law, and gives us ‘autonomy’, that is, our ability to set our own ends, in accordance with that law which is the ultimate source of dignity (4: 435-6; 446-9). Persons, being bearers of dignity, constitute ‘ends’, embodying their shares of humanity, are members of the ‘kingdom of ends’ who recognize each other as such under the moral law which they enact in the maxims of their actions (4: 433). Kant writes that (4: 434):

If one behaves according to a maxim that is disrespectful to anyone’s end status, then one necessarily conducts oneself according to a maxim that one could not universalize because this would be contrary to an inevitable recognition of one’s own end status. Thus, the moral law informs the Categorical Imperative with the notion of human dignity which demands respect for each person and their rational capacities in whom that law is embedded.

3.3 Dignity and conscience

In turn, Kant’s account of human dignity must also connect with his view of conscience. This is observed by Susan Meld Shell: ‘[Kantian] Dignity … applies to any finite being who has or can be presumed to have a conscience. It is thus something that all human beings possess because we are all co-legislators of the moral law’ (Shell Reference Shell, Kraynak and Tinder2003: 56). Kant writes that conscience is ‘practical reason holding the human being’s duty before him’ (MM, 6: 400). If so, conscience is what enables us to recognize and uphold the human dignity of ourselves and others in accordance with the moral law. Before explicating this further, we must acknowledge the differences concerning conscience within Kant scholarship.

Marijana Vujošević provides an excellent overview of the debate about which moral capacities, for Kant, constitute conscience throughout his varying references to it (Vujošević Reference Vujošević2014: 451–2). Vujošević argues that Kantian conscience reviews moral judgements, rather than making them initially, emphasizing that, elsewhere than the quotation above, Kant ascribes conscience a more limited scope as ‘the moral faculty of judgement, passing judgement on itself’ (p. 465, citing R, 6: 185). Allen Wood, for example, finds Kantian conscience to include both rational and emotional capacities (Wood Reference Wood2008: 183). Jason Howard considers it a solely emotional function (Howard Reference Howard2004: 624–5). A plausible reading, as Emre Kazim proposes, could take Kant’s ‘disparate’ usages of the term as referring to parts of the ‘same unified concept’ (Kazim Reference Kazim2017: 5). Like Kazim (p. 18), this article takes Kantian conscience as at least the capacities of reason which communicate and command conformity with duty, as expressed in the Metaphysics of Morals and inclusive of numerous of Kant’s more limited references to conscience. It does not include moral feeling which, according to Kant, conscience triggers as an enforcer (MM, 6: 402).Footnote ⁸ This approach groups the functions that Kant explicitly describes as conscience in alignment with the common understanding that conscience enables us to know right from wrong.

The point for present purposes, however, is not to resolve the conscience debate. It is that we can hold ourselves accountable to ensure that we uphold human dignity because we all, as rational beings, have a conscience. Kant explicates that human dignity is the substance of the ‘universal law’ as a universal end (MM, 6: 395):

Under that law, Kant writes, everyone ‘has a legitimate claim to respect from his fellow human beings and is in turn bound to respect every other’ (MM, 6: 462). Therefore, everyone has ‘a duty regarding the respect that must be shown to every other human being’ (ibid.).

The universal end underpinning the moral law, then, is what enables it to be known to ‘even the commonest’ people (G, 4: 404). Kant illustrates this universality of conscience through a judicial metaphor (4: 400):

Conscience is reason, as our dignifying capacity for morality, when engaged in practical questions about the quality of what one is to do or has done. If the individual exercises their ‘power of judging’ responsively to, rather than ‘obstruct[ing] the claims of conscience’ or ‘engaging legalistic quibbles with [it]’, they can labour from ‘common understanding’ to address ‘practical matters’ in ‘seek[ing] sincerely to determine the worth of actions for [one’s] own instruction’ (G, 4: 404).Footnote ⁹ This common understanding must concern human dignity as the fundamental principle of the moral law. Although Kant’s writing on conscience does not explicate the link, it necessarily entails that conscience is fundamentally concerned with human dignity. That is because conscience is ‘incorporated in his being’ to establish an ‘authority watching over the [moral] law’ (MM, 6: 438), the substance of which is the dignity of each person as a moral end (G, 4: 395).

This can be appreciated by returning to Kant’s prohibition against lying which excludes equity. Pointing to dishonesty, he provides an exemplification of conscience’s registration of human dignity (G, 4: 423):

When Kant says, ‘has enough conscience’, he really means, ‘has enough regard for conscience’, because he considers every person a conscience-bearer (MM, 6: 400). One who makes ‘a lying promise’, for the sake of procuring a loan, defies conscience and ‘makes use of another human being merely as a means, who does not at the same time contain in himself the end’ (G, 4: 429). One who seeks to misdirect a murderer by lying to him has committed an inherent wrong to ‘humanity generally’ (RTL, 65). In turn, Kant says, a liar ‘annihilates his dignity as a human being’ (MM, 6: 429). This means that ‘[t]hey do not throw away their humanity, but rather, through disregarding it, treat themselves as if they have none’ (Kerstein Reference Kerstein and Betzler2008: 218). By lying, one also uses oneself ‘as a mere means (a speaking machine)’ contrary to the moral law embedded in one’s humanity (6: 430). One might, to be sure, offer an interpretation of the Categorical Imperative, to correct Kant’s own view as expressed here, in recognition of a concern for equity which in such circumstances permits otherwise impermissible acts (Singer Reference Singer1954: 587). Still, for Kant, defiance of a proscription, which is a perfect and negative duty to oneself or others, is simply morally outlawed and cannot be justifiable through equity because it remains contrary to his understanding of human dignity.

3.4 Negative and positive duties

If conscience conveys strict moral prohibitions which leave no room for equity, but Kant nonetheless recognises a role for equity in conscience, then equity’s work must be in helping conscience to guide us in actively serving moral ends. We can only locate equity’s place within Kantian conscience by differentiating between negative and positive duties to uphold human dignity. This distinction tends to correspond to that between perfect and imperfect duties (Hill and Cureton Reference Hill, Cureton and Snow2018: 272). According to Kant, we have perfect duties to oneself (e.g., refraining from suicide) and others (e.g., refraining from defrauding them), as well as imperfect duties to oneself (e.g., cultivating one’s human capacities) and others (e.g., helping those in need) (G, 4: 421–4, 429–30). While both duties arise from the same underpinning moral principle, perfect duties are ‘unrelenting’ because they require strict compliance, and imperfect duties are ‘meritorious’ because they can be achieved to greater and lesser degrees (4: 424). Perfect duties are typically, but perhaps not always,Footnote ¹⁰ negative. One must always refrain from lying and suicide. Kant treats imperfect duties as positive, namely one’s own self-perfection and beneficence toward others (MM, 6: 419). When concerned with negative duties, conscience immediately knows what human dignity demands by recognition of acts that reason proscribes for their inherent wrongfulness toward humanity. When concerned with positive duties, however, the conscience would have to detect situations that prescribe active service to humanity. It would have to account for empirical circumstances in deciding when, how, and to what extent one can practicably perform which good deeds.Footnote ¹¹ Positive duties, then, must be what necessitates equity’s guidance within conscience as we strive to apply dignity-upholding principles optimally.

4.1 Conscience registering positive duties

Consider the argument that Kant excludes positive duties from conscience’s jurisdiction. Jens Timmermann, for example, claims that: ‘In its capacity as a guide, [Kantian] conscience concerns itself solely with the juridical permissibility of a proposed action’ (Timmermann Reference Timmermann2016: 165). He bases this on passages where Kant writes of prohibitive judgements (e.g., ‘with respect to the action I want to undertake I must … be certain that it is not wrong’ (quoting R, 6: 185–6)). Timmermann adds that ‘[t]his restriction of the scope of conscience tallies with the metaphor of conscience as a court of law’, wherein ‘violations of the demands of equity result in a bad or guilty conscience’ (p. 166).

Recall, however, that the jurisdiction of the internal court of conscience, for Kant, is more expansive than that of a civil court. Timmerman misses the significance of how the equitable duties Kant writes about go beyond perfect duties, such as to not breach a contract (which would be tantamount to a lying promise). They concern the imperfect, positive, duties to approximate and then pay a circumstantially appropriate amount to another person. The internal court of conscience mandates that one do more than what can be externally compelled and often requires judgement about the appropriate measures to be taken through positive action. Kant’s placement of positive duties within the internal court of conscience is underscored by philosophers who oppose this confinement. Patricia Smith, for example, argues that some positive duties should be justiciable, and ‘challenge[s] [the] position’ that such ‘moral injunction[s] should be left to individual conscience’ (Smith Reference Smith1990: 20). Equity’s unenforceability in civil courts, for Kant, leaves it nowhere to mandate positive duties but in conscience. Kant’s internal court of conscience, in which equity operates, necessarily encompasses positive duties.

Commendably, Timmerman acknowledges in a footnote that, because the duty to advance the ends of others makes it wrong ‘not to adopt a maxim of helpfulness’, ‘conscience may well, indirectly, have something to say about imperfect obligations after all’ (Reference Timmermann2016: 165). For Kant, we must imagine the ‘judge’ in the ‘court of conscience’ as ‘an ideal person’ working ‘within the human being’ who ‘must also impose all obligation, that is … a person in relation to whom all duties whatsoever are to be regarded as also his commands …’ (MM, 6: 439). The phrase ‘all duties’ must encompass positive duties. Conscience would have to deliver an adverse judgement against one who avoids adopting, or acting upon, positive other-regarding maxims. It would then trigger the punishment of guilty moral feeling (6: 438–40).Footnote ¹² Nussbaum writes, ‘It is incoherent to salve one’s conscience on the duties of material aid by thinking that these things are unnecessary for true flourishing while insisting so strictly on the absolute inviolability of duties of justice …’ (Nussbaum Reference Nussbaum2001: 44). If she were wrong, it would have been strange for Kant to say: ‘the maxim of common interest, of beneficence toward those in need, is a universal duty of human beings, just because they are … fellowmen, that is, rational beings with needs, united by nature in one dwelling place so that they can help one another’ (6: 453). Conscience, for Kant, would instruct one to evaluate, equitably, how one might optimally serve the end status of others and oneself.

4.2 Equity guides conscience in implementing positive duties

Positive duties inherently require conscience to make imprecise evaluations about how one might fittingly uphold human dignity in particular circumstances. The ‘laws’, or moral principles, deriving from the overarching moral law of human dignity, here, therefore, necessitate equity to guide their application through conscience. Kant writes:

This does not make all such choices equally good. In choosing one’s actions, one must do more than simply decide whether the action is forbidden or not. One must try to approximate the best action to be undertaken, in the best measure, within given circumstances. Simultaneously, the characteristic imperfection of positive duties does not change their nature as duties:

Conscience, then, commands the intellectual labour of judging to determine how moral principles can best be applied in positive action to circumstances, with the underpinning value of the persons as moral ends – human dignity – in mind. That kind of judgement is, in a word, equitable.

The inclusion of positive duties within Kant’s conscience-governed Doctrine of Virtue presents tensions between duties which highlight the need for equity. This is underpinned by commitment to the human dignity of oneself and others:

Kant divides the Doctrine of Virtue into two general categories of duties: to strive toward one’s own ‘perfection’, and the ‘happiness’ of others (MM, 6: 386). ‘Happiness’ as Kant used the term includes not only ‘enjoyment’ but also ‘well-being’ (CJ, 5: 443). Each specific positive and negative duty embodies a moral principle (such as beneficence, respect, gratitude, conscientiousness, truthfulness, self-esteem, moderation) underpinned by human dignity. Given that these duties tend to be positive and imperfect, their latitude ‘unavoidably leads to questions that call upon judgment to decide how a maxim is always to be applied in particular cases, and indeed in such a way that judgment provides another (subordinate) maxim’ (MM, 6: 411). To ensure that an application of moral principles serves dignity effectively, and does not unintendedly undermine it, conscience must exercise equitable, that is particularized, moral judgement in managing tensions between competing moral pursuits.

Other-regarding and self-regarding duties fetter the extent to which one should pursue aims concerning each in accordance with the other. For instance, conscience registers a duty to help the less fortunate but giving too much can leave insufficient resources for self-regarding duty to one’s material being, which must be upheld for the facilitation of one’s moral betterment (MM, 6: 454). Moreover, tensions arise even within specific categories of other-regarding and self-regarding duty, as signalled in the previous paragraph (6: 390; Gregor Reference Gregor1963: 167–8). One’s duty to cultivate attention to conscience is greater than that to promote one’s other natural capacities (‘i.e. in acquiring knowledge or skill’) (6: 391–4). Still, Kant counsels us to prioritise competing talents in accordance with ‘the different situations’ in which we find ourselves (6: 393). He would discourage spending so much time studying ethics that one neglects their physical capacities. Many moral duties which, for Kant, must be upheld only through the individual’s conscience require equitable judgements ultimately aimed at serving humanity.

4.3 Not mere prudence

Such judgements are not merely of prudence. Rather, equity directs the exercise of prudence toward moral ends. For Kant, judgement is the faculty through which we recognize, organize, and synthesize representations of objects in our minds (CPR, A69/B94). It is exercised well through the ‘skill’ of ‘prudence’ when seeking a merely desired outcome such as one’s own happiness (G, 4: 415–6). Imagine Gary seeing some objects and judging that they are fruits, specifically apples, from their representations to his senses. He then applies mathematical concepts to his empirical observations to judge how many there are, and then to prior experience, in judging whether they are enough to make a self-satisfying pie. He prudently exercises judgement aimed at self-interest. Prudence itself, in this scenario, does not concern moral judgement.

Prudence can be undertaken equitably when seeking to exercise optimal judgement, considering the relevant circumstances, for serving a moral end. Envision Gary counting the apples, planning to make a large enough pie for a gathering of his friends and give each a generous share. He chooses apple pie rather than cocktails to include friends who do not drink. He accounts for friends who would welcome a second helping. If he did this because he cares about his friends (MM, 6: 451–2), he served a moral end. He has not acted merely prudently. Like the employer who raises her worker’s payment to counter inflation, albeit with less exigency, he applied prudence pursuant to the equity informing his judgement. Granted, in good conscience, he could choose different ways in which to express friendship. Surely, however, conscience would censure him if he treated ‘friends’ merely prudentially by showing kindness only with a view to maximizing their usefulness to him. Rather, he should treat them as ends whose happiness is important and act kindly toward them, equitably, considering relevant circumstances. Prudence cannot render equity redundant. Moral judgements made through equity, rather, incorporate the use of prudence toward moral ends.

One could be forgiven for overlooking equity for prudence. In a footnote, Kant writes that the ‘latitude in [the] application’ of imperfect duties of virtue, like candour (active truth-telling), means that:

In the first sentence of this quotation, Kant seems to crash into contradiction. How could a virtue of positive duty exist and yet be exempt from the moral law, and thus be left to mere judgements of prudence?

The footnote is only reconcilable with its context if ‘the rules of morality’ in its first sentence refers to the proscriptive rules governing negative duties and ‘the rules of prudence’ refers to equitably informed prudence as they are applied toward moral ends. As Roger Sullivan argues, the moral law, in the sphere of positive duties, is ‘indeterminate in what it requires’ and consequently, ‘needs substantial supplementing by the principle of prudence’ (Sullivan Reference Sullivan1997: 466). The rules of morality tell one to make ‘man as such his end’, and one must apply rules of prudence to determine how to best go about serving that end in our empirical world. While such prudence leaves room to factor in regard for one’s own happiness, one’s conscience would rule against a pattern of conduct that minimises positive action in service of humanity in the name of prudentially pursued happiness. Surely, it would undermine the moral law to ‘supplement’ it with a license to characteristically apply its positive provisions in a manner that persistently privileges self-serving prudence. The ease with which one could invoke ‘prudence’ to excuse a minimalist approach to performing positive duties demonstrates why Kant’s moral system depends on equity. Otherwise, the moral law would suffer a loophole that confers moral legitimacy upon the conduct of those who deceive themselves into believing their parsimonious efforts are satisfactory. The prudence Kant advocates in determining how to carry out positive duties must be guided through ‘equity’: the ‘divinity’ he recognized within the court of conscience in the early pages of the Metaphysics of Morals.

A merely prudential attitude to performing positive duties would be unconscientious. This is not least because such would be insufficient in relation to the duty of self-perfection which follows the duty to be one’s own innate judge (including to ‘cultivate one’s conscience’) (MM, 6: 401, 438–40). That, in turn, corresponds with strengthening commitment to one’s duty to benefit others, as illustrated in the following paragraph. To advocate for an ‘unrevised prudential latitude’, as Mavis Biss holds, would rely ‘on an understanding of virtue and the fulfilment of imperfect duties that is incompatible with Kant’s conception of moral improvement’ (Biss Reference Biss2015: 626–7). She reasons that ‘an agent may exercise the strength necessary to avoid violating her perfect duties and yet still not fully realize her freedom, for the duty of moral self-perfection requires more than resisting temptations to vice’ (p. 610). This must be correct because conscience registers duties, including positive duties, deriving from the moral law under which persons constitute moral ends, and, in turn, requires us to enhance both our sensitivity to these duties and the soundness of our implementation of them. While emphasising the purity of moral laws themselves, Kant explained that they ‘still require a power of judgment sharpened by experience’ (G, 4: 389). Such judgement, as we pursue positive duties, entails equity in applying principles to the circumstances and mindful implementation of prudential learning based on experience. In other words, positive duties can be seriously upheld, not through mere prudence, but only by conscience engaging equity to assist in circumstantial moral judgement, which enlists prudence in support of moral ends.

Consider an example. Conscience can instruct Maria, out of ‘candour’ and beneficence toward Saul’s future wellbeing, to encourage him to reconsider his drastic hairstyle (MM, 6: 433). Ideally, her conscience will be informed with equity, instructing her to balance candour with a degree of ‘reticence’ (ibid.), which entails deploying prudence toward a moral end. Instead of saying that Saul resembles Sonic the Hedgehog, she might suggest he adopt a conventional aesthetic until he firmly establishes his career. If she said the former with caring intentions, but evoked a tearful response, Kant would say her judgement was ‘faulty’ though she committed no ‘vice’ (ibid.). Surely, however, vice would occur if she were to take the latitudinous nature of the kind of judgement she is making as licence to give ostensibly beneficent advice without regard for the feelings or self-esteem of the recipient. A poor excuse for ‘candour’ would hardly serve the advisee’s end-status. Rather, following reflection, Maria’s conscience should, in future, enable her to deliver better judgements in equitably managing the tension between competing needs for candour and reticence with the benefit of experience as she evaluates circumstances in similar situations. The equity guiding her conscience will encourage her to consider the characteristics and circumstances of the individual whom she advises, mindful of the need to counterbalance her tendency of forthrightness with tact. The skill of prudence, through which she judges how to bring about the desired outcome, will then be used in a manner which is equitable in carrying out her positive duties, to favour both parties’ respective moral end-statuses: hers by striving toward self-perfection and the other’s by promoting their wellbeing.

The undertaking of Kant’s unfinished business of analysing equity under the rubric of virtue has thus begun. We understand that, for Kant, equity should not be coerced. We should act virtuously of our own accord and strive toward perfection as we exercise our consciences equitably in carrying out our positive and imperfect duties. To treat humanity ‘in a manner appropriate to [our] dignity’, Kant writes, means recognizing that it is ‘more than a machine’ (WIE, 54). He therefore implores us to pursue ‘Enlightenment’. That is, to overcome ‘self-incurred immaturity’ and have the ‘courage to use your own understanding’, instead of appointing someone to ‘have a conscience for [you]’ (WIE, 60). The corollary is to engage conscience equitably in one’s efforts to serve the end of human dignity as well as one can. Prudence alone is inadequate because we are not merely seeking to advance our own happiness. The place of equity, for Kant, as a vital assistant for conscience in its dignity-serving endeavour, is thus established. It remains to be illustrated where its necessity is most pronounced.

5.1 Equity in interpersonal interactions

Equity demands discernment about how to appropriately conduct oneself given the circumstances, especially when challenges arise, in relation to those with whom we interact. Aristotle’s interpersonal thought about equity (2004: 1143b) assists in conceiving equity’s place within Kant’s courtroom of conscience:

If human dignity is the end we must uphold in our dealings with others, we should undertake a good faith exercise of informing our consciences equitably so that our judgements will enable conduct which, in each situation, applies the moral principles favourably to the end-statuses of both parties. This can be challenging.

Conscience must undertake equitable exercises of judgement to manage the tension between our duty to serve human dignity through the principle of beneficence toward others and our duty to avoid undermining it by violating the principle of self-esteem and reducing oneself to servility. ‘Beneficence’ concerns one’s positive duty to ‘the happiness of other human beings, whose (permitted) end I thus make my own end as well’ and entails an indeterminate degree of ‘sacrifice of a part of [one’s own] welfare’ (MM, 6: 388, 393). Kant recognizes that:

The moral law informs its maxims rather than prescribing determinate actions. In applying the maxims to specific situations, equitably, with respect for their basis in the moral law, we uphold the law and its fundamental commitment to human dignity. In so doing, one must have regard for one’s own ‘dignity (an absolute inner worth) by which he exacts respect for himself from all other rational beings’ (MM, 6: 435). The vice of ‘servility’ is committed when one waives ‘any claim to moral worth in oneself’ or disavows one’s self-regarding duty of maintaining the ‘self-esteem’ owed to a ‘rational human being’ (ibid.). Conscience, therefore, operates equitably to account for the circumstances concerning the other’s characteristics and needs as well as one’s own, to simultaneously honour the human dignity of both parties.

An equitable mentality is needed in various kinds of interpersonal dealings: with family, friends, intimate partners, in workplaces, in business, and with strangers. In each context, Kant’s instruction is equitable in counterbalancing the instruction to be kind to others with advice such as ‘Be no man’s lackey’ and ‘Do not let others tread with impunity on your rights’ (MM, 6: 436). A television series called The Good Place introduced a character named Doug Forcett who demonstrates the impossibility of perfecting imperfect positive duties. Doug illustrates the problem of dignity with any moral system which neglects equity in this regard through his commitment to beneficence at the extravagant expense of self-respect. He would, for instance, be ordered to routinely do his neighbour’s laundry and perform degrading acts for the latter’s entertainment.Footnote ¹⁵ Such an extreme example underscores how the inequity or relentless service to the ends of others can lead one to mistake conscience as ‘lord[ing] over us as a tyrant’ (LE, 134) and treat oneself as a mere means rather than an end.

Our consciences might encounter more challenging cases, however, concerning people who need help but display problematic attitudes. Consider a duty to support a relative who experienced a series of misfortunes. Benevolence, for Kant, extends to a duty of ‘sympathy’ (MM, 6: 465–7). If the relative persistently wallowed in misery and became demanding, one would not act consistently with either person’s end-status by indulging this behaviour. One reduces oneself to a mere means by tending to another’s every whim, while enabling the other’s self-destruction. Kant would call this ‘pity’ which ‘has no place in people’s relations with one another’ (6: 457). He would nonetheless insist that one’s human dignity is inconsistent with the ‘supposition that he could never be improved’ and encourage us to sensitively help them ‘uncover’ their self-deception (unless they proved incorrigible) (6: 464–5). Kant’s positive other-regarding duties can only be applied equitably, though conscience might find this more or less challenging from case to case, as we aim to harmonize the promotion of the ends of others with respect for our own.

5.2 Applied to partnership example

Kant’s own examples of equity providing unenforceable rights, which translate into virtues compellable only by conscience, also reveal a positive duty to determine how one should go about acting beneficently toward others consistently with one’s own self-worth. This conscientious process, which Kant would encourage as a matter of virtue, evokes Aristotle’s ‘equitable person’ who ‘does not stand on his rights in a bad way, but tends to accept less than his share, though he has the law on his side (Aristotle 2004: 1137b–1138a). Accepting ‘less’ in Kant’s examples would mean giving another more than one can be coerced to give. Although Kant wrote that one who brings an equitable claim is not ‘merely’ asking for beneficence, and indeed the claimant has a moral ‘right’ to insist, the defendant’s immunity from judicial enforcement leaves the claimant at the mercy of his beneficence.

The objectivity of the duty to treat people equitably follows the premise of human dignity which informs conscience. We know that we should engage equity in seeking instruction on what we should do which must be informed by the relevant circumstances. The subjective element concerns our necessarily imprecise evaluation of how to act based on those circumstances. Business partners who ultimately contributed less than the other to their venture, as conscience-bearers, know their duty to the latter as a moral end to consider some kind of adjustment. Otherwise, some would receive proportionately more than their contribution while another receives proportionately less than theirs. To let this stand would be to passively retain a benefit generated by the other as a means without seriously regarding them simultaneously as an end. Their internal court of conscience should be guided by equity which will enable them to balance commitments to their own end-status with commitments to that of their partner.

One might start with the thought that they are within their rights to not pay anyone more than agreed, which follows their freedom as bearers of human dignity. Yet in present circumstances, one’s conscience conveys that the other party’s dignity requires beneficent adjustment, unless the partners have an established practice whereby partners take turns making greater contributions when they can.Footnote ¹⁶ They should then estimate an adjustment that would adequately account for the other partner’s greater contribution without making an undignified self-sacrifice. It may be impossible to precisely calculate how much work one partner contributed beyond the others and the extent of all offsetting factors. The court of conscience demands an equitable adjustment, however, which may slightly favour the other party.

One should be cautious not to adopt a ‘tormenting conscience’ like Doug and drastically overcompensate the other party (LE, 134). We can appreciate in this business context that one could ultimately self-sacrifice to the point of undermining one’s end status by going to extremes to advance the ends of others. One would attract a reputation as a ‘pushover’ of whom advantage can easily be taken. While the calculation should be made as prudently as one can make it in relation to the relevant proportions of contribution, this must be done equitably with the dignity of all parties in mind. Carrying out the imprecisely measurable practice of benevolence will in any case strengthen one’s inclination to continue doing so (MM, 6: 401), thereby upholding the self-regarding duties to ‘obtain a hearing for conscience’ (6: 402), while maintaining self-respect (6: 435). Exercising conscience equitably in seeking to advance the ends of others through benevolence consistently with one’s own end-status, for Kant, serves the dignity of the humanity of both parties. The process is one through which the court of conscience delivers an equitable judgement, without which one would undermine the fundamental law which underpins the self-regarding and other-regarding duties.

It would be impossible, under the Kantian understanding, to commit to our positive moral duties without equity. This is apparent in our interpersonal dealings like those adduced in the previous section where we consider how to treat others. It is pronounced most starkly when the tension arises between one’s own moral end-status and that of someone else. Thus, the voice of the ‘divinity’, ‘who cannot be heard’ in a civil court, speaks to the individual’s conscience. It is muffled when one falls short in the responsibility to duly engage conscience in pursuit of the duty to promote the substance of the moral law, namely, the dignity of humanity.