7.2.1 Non-accidental Rightness

The fact that legality is based on maxims rather than consequences and thus not susceptible to resultant luck makes it possible for a good will to ensure non-accidental rightness. Having a good will, which consists in adopting a fundamental maxim that subordinates self-love to duty, ensures that only universalizable maxims will be adopted and that impermissible maxims put forward by instrumental reasoning will be rejected, since the adoption of the maxims on which one acts proceeds on the basis of one’s fundamental maxim (cf. RGV 6:36). The actions of an agent who has a good will are thereby guaranteed to be right, namely to accord with duty.Footnote ⁴

The legality of the actions of a person with a bad will, by contrast, is a matter of constitutive and circumstantial luck.Footnote ⁵ Conformity with duty is then accidental. This is not to be understood in terms of one and the same action being legal or illegal depending on luck, but rather in terms of a bad person performing a legal action or an illegal action depending on luck.

Whether a person with a bad will acts in conformity with duty or not depends on circumstances beyond his control. This is because free choice applies in the first place to the agent’s Gesinnung. One freely chooses one’s fundamental maxim. Non-fundamental maxims are then adopted on the basis of this Gesinnung. Non-fundamental maxims cannot be arbitrarily made up and are not selected at will but are a function of the agent’s fundamental maxim and the context in which the agent finds himself.Footnote ⁶ This allows luck to come in at the level of the adoption of non-fundamental maxims.

When holding the bad will fixed but varying the context, one can end up with permissible as well as impermissible actions. Two people who do not differ in terms of having a bad will can nevertheless differ insofar as the actions of the one are permissible while those of the other are impermissible. This difference is not due to those agents having made different choices at the level of their fundamental maxims, given that both of them have a bad will, but due to factors that can be a matter of luck, such as the circumstances in which the agents find themselves, which can in part determine the non-fundamental maxims that instrumental reasoning will put forward and that will be adopted in accordance with their fundamental maxim independently of their permissibility.Footnote ⁷

The non-accidental rightness that results from a good will goes hand in hand with the accidental rightness that results from a bad will. Moral luck in the form of accidental rightness in the case of a bad will is a corollary of the absence of moral luck due to the non-accidental rightness in the case of a good will. This means that a form of moral luck is at the centre of Kant’s ethical theory.

7.2.2 Coercing Legality

The fact that legality is based on maxims is required to make it possible to enforce legality coercively. Legality can be ensured by external coercion. This is particularly clear in the case of juridical duties, where it is not only possible but also permissible to use coercion to ensure compliance with the law. When the state reliably threatens sufficiently severe punishment, the incentive for complying with juridical laws will be sufficiently strong to outweigh other incentives of self-love. Morality, by contrast, cannot be coerced. This difference arises because legality is compatible with acting on a heteronomous principle and allows for sensible incentives that can be provided by coercion, whereas morality presupposes acting on an autonomous principle and has to be based on the incentive of respect.

Coercion can affect the agent’s choice of maxim. By suitably changing the incentive structure that the agent is facing, one can determine which action will be prudentially optimal and will be supported by instrumental reasoning.Footnote ⁸ This enables legal sanctions to ensure legality. The threat of sufficient punishment makes it the case that duty and self-interest align. In particular, it ensures that the omission of illegal actions will be prudentially rational. An agent who acts on the basis of self-love will perform the very same action that a person motivated by duty would choose. Such agents perform the same action but are motivated by different incentives. In this way coercion can ensure compliance with the law: no matter whether one has a good will or a bad will, one will act in conformity with the law. One is thus guaranteed to act according to duty even if one might not do so out of duty.Footnote ⁹

One can only coerce actions but not consequences. One can coerce someone to act one way rather than another way, in particular to act in a way that conforms to the laws rather than in a way that contravenes them.Footnote ¹⁰ However, coercion cannot ensure consequences, since there is a gap between actions and consequences where luck can intervene. Which consequences follow from coerced actions is a matter of luck just as much as which consequences follow from non-coerced actions. Since legality can be coerced and since coercion can only ensure that someone acts in a certain way, not that they bring about certain effects (given that there is a luck-susceptible gap between action and effect), legality only consists in the agent acting in conformity with the law, not in terms of the agent bringing about certain effects. Legality is thus a matter not of consequences but of actions and is hence immune to resultant luck. Accordingly, there is no difference between morality and legality with regard to resultant luck.

7.2.3 Imputation

Though consequences do not affect the legality of an action, they are nevertheless important for juridical imputation. Since actual, as opposed to intended or expected, consequences are imputed there is room for resultant luck.Footnote ¹¹ Luck can affect which consequences result from an action and can accordingly affect which effects can be imputed to an agent. While the details of Kant’s theory of imputation are intricate and interesting, two points are important for the topic at hand.Footnote ¹²

First, imputation is not restricted to juridical imputation but also encompasses ethical imputation (cf. V-Mo/Collins, 27:290). Both domains allow for imputation of consequences that is susceptible to resultant luck. In the same way that there can be resultant luck in the case of juridical imputation, there can likewise be resultant luck in the case of ethical imputation. This implies that there are no differences between ethics and right as regards the possibility of resultant luck at the level of imputation.

Second, although there is room for resultant luck, it is possible for the agent to avoid the imputation of bad consequences. Since it is only in the case of impermissible actions that bad consequences can be imputed to the agent (cf. RL 6:228), it is possible for the agent to render himself immune to bad luck, given that it is always possible for the agent to act permissibly. The agent can avoid being in a situation in which something that is not under his control can have a negative effect on what can be imputed to him. More generally, if luck comes in, then it is because the agent has acted in such a way as to make himself susceptible to luck. Since no imputation takes place either in the case of obligatory actions or in the case of merely permissible actions, it is completely within the agent’s control whether to make room for luck or not.

7.3.1 Accidental Moral Worth

Whereas the moral worth of the agent is immune to luck, the moral worth of actions is susceptible to luck, even when one has a good will. Someone who has a good will is guaranteed to act according to duty. Such a person, however, is not guaranteed to act out of duty. Whether someone with a good will acts out of duty is a matter of luck. Having a good will, though necessary, is not sufficient for our actions to have moral worth. Non-accidental legality goes together with accidental morality. The moral worth of our actions is susceptible to circumstantial and constitutive luck. Instead of morality being immune to luck and legality being susceptible to luck, the opposite is true.

A good will guarantees legality by only adopting universalizable maxims. Morality, however, cannot be guaranteed in this way, since morality, unlike legality, is not determined solely by maxims. Maxims by themselves do not suffice for morality. Something more is needed in order for the action to have moral worth, namely an ethical incentive in the form of respect for the law that is incorporated into the maxim.Footnote ¹⁴ One needs to act on a universalizable maxim out of respect for the law in order for the action to have moral worth.

Whether this ethical incentive is available for incorporation in a given situation, however, is a matter of luck. This is because one can act out of respect for the law only when the maxim put forward by instrumental reasoning is impermissible. Moral rules are practical rules of exception.Footnote ¹⁵ Morality only comes in when rejecting or limiting impermissible maxims put forward by instrumental reasoning. As long as instrumental reasoning puts forward permissible maxims, morality does not even come in. Accordingly, one can act out of duty only in case of a conflict between morality and prudence, given that only then is there a practical rule of exception that can incorporate respect for the law as an ethical incentive.

When acting permissibly and even when acting in a way that is obligatory, it is not the case that there is one practical rule into which one can either incorporate the incentive of duty or the incentive of self-love. Although duty and self-love can enjoin the same action, practical rules of exception have a different logical form from their corresponding practical rules of commission and omission. For instance, whereas prudence would tell one to do phi, morality would require one to omit non-phi. Respect for the law can only be incorporated into practical rules of exception and such rules are available for adoption only when the practical rules proposed by prudence are impermissible such that exceptions need to be made. This means that in the absence of a conflict between morality and prudence it is not only the case that the moral incentive is not available, since respect requires morality to strike down self-conceit, but also that the relevant practical rule of exception that is generated by limiting or rejecting an impermissible practical rule will not be available.

Whether there is a conflict between morality and prudence in a given situation depends on factors that are beyond the agent’s control, thus rendering it a matter of luck whether the agent can act in a way that has moral worth. Which maxims are put forward by instrumental reasoning is not entirely up to the agent. Whereas the agent’s fundamental maxim is freely chosen and immune to luck, the adoption of non-fundamental maxims is susceptible to circumstantial and constitutive luck. Which maxims are put forward depends on the inclinations and abilities of the agent and the circumstances in which he is acting. These factors together determine which maxims will be proposed by instrumental reasoning and will then be adopted or rejected in light of the agent’s fundamental maxim. Since the agent’s inclinations and abilities are partly a function of luck and since the circumstances in which the agent finds himself are likewise partly a function of luck, the moral worth of actions is susceptible to both constitutive and circumstantial luck.

The required conflict between morality and prudence does not imply that there cannot be concurrent inclinations when acting out of duty. An agent can do something from duty while at the same time having a desire to perform that action. There is no need to have an aversion to the action in question. What is required instead is that the practical rule put forward by instrumental reasoning is not universalizable, since only then does pure practical reason kick in and become operative. For that to be the case, the concurrent inclinations need to be outweighed by other inclinations that suggest a different course of action. Instead of an aversion to the action that is performed out of duty, one needs a prudential preference for an impermissible alternative. The action needs to be rejected comparatively rather than absolutely. One can enjoy doing the action that one performs out of duty as long as one would have enjoyed even more an impermissible alternative that one is setting aside due to one’s commitment to morality. The conflict between prudence and morality is to be found at the level of maxims: one can have concurrent inclinations but not concurrent maxims.Footnote ¹⁶

7.3.2 Justice Excludes Virtue

Performing an action that has moral worth is only possible when instrumental reasoning puts forward a non-universalizable maxim that can then be rejected by pure practical reason. Whether instrumental reasoning does put forward such a maxim depends on the context in which the agent finds himself. This means that external circumstances can render virtuous behaviour impossible, that is, they can render it impossible to act out of duty. Interestingly, the mechanism by means of which the state can coerce legality is such as to exclude virtuous behaviour. The state precludes morality when it successfully coerces legality by using coercion to ensure that self-interest and duty align.

If the threatened punishment in case of violations of the law is both sufficiently strong and sufficiently assured, then instrumental reasoning will only put forward permissible maxims. Violating the laws will then never be in the agent’s own interest. No conflict will arise between the maxims suggested by self-love and the demands of pure practical reason. A conflict, however, is necessary for acting in a way that has moral worth, since this requires rejecting or limiting impermissible maxims. When all maxims that are put forward by instrumental reasoning are permissible, then no exceptions need to be made, such that the possibility of acting out of duty does not even arise. When acting contrary to duty is not an option for prudence, then it is not possible to act against prudence and choose something over it. The agent’s actions, accordingly, will always be in conformity with duty but will lack moral worth due to being motivated by self-love rather than by the motive of duty.

A state guaranteeing complete assurance through sufficiently severe and likely punishment will, accordingly, preclude morality with respect to all juridical duties. There is thus an important sense in which justice excludes virtuous behaviour. The effective enforcement of rights that is constitutive of justice excludes the manifestation of virtue by ruling out actions that have moral worth. Since juridical duties are a subset of duties, there is still room for the manifestation of virtue in a just state, namely with respect to non-enforceable duties (most notably imperfect duties, such as the duty of beneficence, but also perfect duties to oneself), yet compliance with juridical laws will in all cases lack moral worth.

The claim that justice excludes virtuous behaviour holds not only for worldly justice but also for divine justice, which establishes a necessary connection between virtue and happiness. If one were to know that God exists, then one would never be able to act out of duty (cf. KpV 5:146–8).Footnote ¹⁷ Since actions contrary to the law would be punished, all maxims proposed by instrumental reasoning would then accord with duty. The problem here is not that the inclination to avoid divine punishment is too strong for morality to outweigh it, but rather that morality never comes in when prudence is guaranteed to result in legality. Divine punishment (and reward) would make conformity with duty the only instrumentally rational course of action. Morality would then not have to limit instrumental reasoning. All limitations would already be internalized at the level of prudence. Pure practical reason would play no role in shaping the agent’s maxims, given that no proposals put forward by prudence would have to be rejected or limited. This would preclude pure practical reason from ever striking down self-conceit and requiring one to make exceptions to prudential reasoning. Respect for the law would never be operative as an incentive.

Though virtue would not manifest itself and actions would not have moral worth, this does not imply that one cannot have a good will in such a situation. The fact that a person’s actions lack moral worth does not mean that the person does not have a good will and that the person’s will lacks moral worth. The good will can be latent and need not manifest itself in action in order to have its worth.Footnote ¹⁸ The unconditional goodness of the good will is not only independent of the consequences that one brings about but also independent of whether it manifests itself.

An agent in such a situation could either have a good or a bad Gesinnung. This, however, would not lead to any differences at the level of the choice of non-fundamental maxims. The agent would act in the same way independently of whether he had a good will or a bad will, given that instrumental reasoning only puts forward permissible maxims.Footnote ¹⁹ The distinctive effects of a good will, namely that such an agent would omit impermissible actions and perform obligatory actions out of duty, would then not be found in the actual world but would be entirely counterfactual. Since one would be guaranteed to do one’s duty independently of whether one had a good will or not, the good will would become dispensable as far as doing one’s duty is concerned.

Correspondingly, excepting the choice of the fundamental maxim, such an agent would not be able to rise to the level of positive freedom. Indeed, in a sense even negative freedom would drop out, which is why Kant says that actions would become mechanical (cf. KpV 5:147). This is because the issue of acting contrary to inclinations would never arise, such that the agent would never have alternatives amongst which Willkür could choose.

7.3.3 Duty and Moral Worth

The enforcement of rights by a just state precludes prudence from coming into conflict with morality. It thereby makes it impossible for someone to act out of duty and perform morally worthy actions when fulfilling juridical duties. In a state that effectively enforces justice, no one will perform a juridical duty out of duty. Justice in this way excludes virtuous behaviour.

This might seem to generate a deep-seated conflict between ethics and right. Ethics seems to require virtuous behaviour, yet justice rules out such behaviour. If we are required, from the point of view of ethics, to engage in virtuous behaviour and perform actions having moral worth (as opposed to merely acting in accordance with duty), then ethics and right are in conflict. In that case, ethics requires that we act out of duty, yet right requires the establishment of a rightful condition in which fulfilling our juridical duties out of duty is not possible, given that the state makes it prudentially irrational to act contrary to these duties. Ethics then requires something that cannot be realized in a rightful condition.

This apparent conflict between ethics and right can be avoided, since there is no duty to act out of duty. It cannot be the case that acting out of duty is what one’s duty consists in, that is, that one fails to do one’s duty unless one acts out of duty. First, respect for the law motivates one to do what duty requires, so that what one’s duty consists in has to be specified independently of the incentive that motivates one to act in this way. Second, if one’s duty were to consist in acting out of duty, then this would imply that one would act contrary to duty if one were to act merely according to duty, which would be incompatible with the existence of both imperfect duties and actions that accord with duty without being performed out of duty.

Nor can there be a separate duty to act out of duty. First, if it were a perfect duty to act out of duty, then merely acting according to duty would be impossible, so that there would again be no permissible behaviour not motivated by duty, since one would be violating the second-order duty whenever one would be acting according to but not out of the first-order duty. Second, the very idea of it being a duty to act out of duty would seem to be confused, since it presupposes that the incorporation of incentives is itself an action that is based on maxims that are subject to the categorical imperative. This is misguided since incentives are incorporated on the basis of the Gesinnung, which has a different status from ordinary maxims.Footnote ²⁰

There is no need to act out of duty, except when doing so is necessary for acting according to duty.Footnote ²¹ Only when morality and prudence conflict, such that one has to set prudence aside and act on the basis of respect for the law if one is to act permissibly, does one have to act out of duty. In that case merely acting according to duty is not an option. The only situations in which acting out of duty is possible, namely when there is a conflict between morality and prudence, are also the only situations in which acting out of duty is required. Yet even then one ought to act out of duty not because doing so has moral worth but because doing so is necessary for acting according to duty.Footnote ²²

The categorical imperative requires us to act on universalizable maxims, but it does not require that we do so out of duty. Our maxims have to be universalizable but they do not have to be motivated by respect for the law. We need to see to it that we do our duty, but there is no need to do our duty out of duty. A rightful condition in which compliance with laws is guaranteed by the threat of punishment and in which the fulfilment of juridical duties lacks moral worth is thus unproblematic from the perspective of morality.

7.3.4 Signatory Value

The moral worth of our actions is susceptible to luck. The possibility of performing an action that has moral worth is contingent on instrumental reason putting forward a non-universalizable maxim, which is in part a function of constitutive and circumstantial luck. This type of moral luck is relatively benign because the moral worth of our actions is a derivative kind of worth that results from the manifestation of a good will. Non-derivative moral worth is had by the good will and is immune to luck.

The fact that the worth of our actions derives from manifesting the worth of a good will can be brought out by considering someone who has a bad will yet nevertheless acts out of duty and is motivated by respect for the law. Having a bad will yet acting out of duty is possible since an agent who has a bad will subordinates duty to self-interest. This means that he always pursues self-interest, except that he pursues duty when doing so is not detrimental to self-interest.Footnote ²³ He will, consequently, act out of duty when doing so does not require him to make any sacrifices.Footnote ²⁴

When two alternatives are equally good from the perspective of self-interest, that is, when they are all things considered prudentially equivalent, instrumental reasoning puts forward a disjunctive practical rule requiring us to perform either of them. Whenever one disjunct is impermissible, pure practical reason will reject this disjunctive maxim and restrict the maxim to the permissible disjunct. An agent who has a bad will is going to be motivated by respect for the law to reject the disjunctive maxim that contains the impermissible disjunct and instead perform the permissible action. Neither self-interest nor duty could motivate him to act otherwise, since considerations of self-interest do not decide amongst the two alternatives and since considerations of duty favour the permissible action. The subordinated principle of duty, accordingly, determines how someone who has a bad will acts when two (undominated) options are tied in terms of self-interest but differ in terms of permissibility, since the fact that self-love does not care which of them is performed allows the subordinated principle of duty to come in.Footnote ²⁵

The possibility of acting out of duty while having a bad will is the analogue of the possibility of acting out of self-interest while having a good will. A good will and a bad will differ in terms of the ordering of duty and self-love. If various actions are morally permissible, that is, they are ‘indifferent’ from the point of view of morality, then someone who has a good will chooses amongst them on the basis of self-love, selecting the one that makes them most happy. By contrast, if various actions are prudentially ‘permissible’, so that they are indifferent from the point of view of prudence, then someone who has a bad will chooses amongst them on the basis of duty, selecting the one that is universalizable. The two cases are symmetrical (though the former scenario is much more likely to arise than the latter, since it can easily happen that multiple actions are permissible, yet not so easily happen that multiple undominated actions are prudentially indifferent).

Since respect for the law is playing an entirely subordinated role in the case of an action that is performed out of duty by someone who has a bad will, insofar as it merely functions as a tie-breaker that tips the scale in favour of the permissible action, it seems inappropriate to consider such an action to have moral worth. Though the correct incentive is operative, the agent has the incorrect Gesinnung, which means that the incentive is not assigned its proper role. The action, accordingly, fails to manifest the subordination of self-interest to morality that is to be found in the case of a good will and that gives morality its dignity.

The crucial issue is thus not acting out of duty but manifesting a good will. The latter involves the former. The former, however, does not imply the latter, since acting out of duty is not sufficient for moral worth. Moral worth pertains to the manifestation of a good will, which consists in the combination of having a good will and acting out of duty. An action has moral worth iff it is performed out of duty on the basis of a good will.Footnote ²⁶ Both elements need to be combined. Having a good will is not by itself sufficient for an action to have moral worth, since someone who has a good will can out of self-interest perform actions that accord with duty and that lack moral worth.Footnote ²⁷ And acting out of duty is not by itself sufficient, since an action performed out of duty by someone who has a bad will lacks moral worth.Footnote ²⁸

The moral worth of an action is then to be understood as a form of signatory value that does not add anything to the value of the world. It is a derivative value that is due to manifesting the goodness of the good will. What is of ultimate significance is the moral worth of the good will and not the moral worth of our actions. What matters is virtue, not its manifestation in the form of virtuous behaviour. Put differently, the moral worth of an action does not add anything to but merely manifests the moral worth of the good will. Having a good will and acting out of duty is not better than having a good will and merely acting according to duty. To think otherwise would be to engage in double counting. Correspondingly, the unconditioned component of the highest good, namely the supreme good, is to be understood in terms of the having of a good will and not in terms of the manifestation of a good will. The unconditional goodness of the good will extends to the point where its goodness is independent even of its own manifestation. For the highest good to be realized, individuals need to have a good will, but they do not need to manifest their good will through virtuous behaviour.Footnote ²⁹

8.2.1 Permissions and Prohibitions

The first understanding of permissive law that Kant rejects is the idea that permissive laws are required for indifferent acts to be possible. This, according to Kant, would be absurd. Since laws contain ‘a ground of objective practical necessity’ of actions, whereas permissions contain a reason ‘of the practical contingency of certain actions’, a permissive law would present a contradiction: for a permissive law would express the ‘necessity to an action such that one cannot be necessitated to do it’ (8:348 fn.). In other words, a permissive law regarding an action φ would, on the one hand, qua law, state the practical necessity to φ, but on the other hand it would at the same time, qua permission, imply the absence of this necessity. Thus, permissive laws are not required for actions that are morally indifferent.Footnote ⁶

As Kant goes on to argue, it only makes sense to speak of permissive laws insofar as necessitation and permission refer to different actions, but not if ‘the object of the law has the same meaning in both kinds of relation’ (8:348 fn.). As a case in point, both in the main text and in the footnote, Kant refers to the second preliminary article, which prohibits the acquisition of one state by another ‘through inheritance, exchange, purchase or donation’ (8:344). Since such acquisitions lack ‘the necessary legal title’, the preliminary article implies the duty that the states that have acquired other states in these ways restore the freedom of those states (8:347; translation modified). Now, while the article directly prohibits any acquisition of states by others in the future, the reversal of past acquisitions, Kant argues, can be adapted to the circumstances of each specific case. Thus, a past acquisition may still be regarded as valid for a certain transitional period until the restoration can be realized: ‘the prohibition here concerns only the way of acquiring, which from now on shall not hold, but not the status of possession’ (8:347). To the extent that prohibition and permission refer to different objects, it is possible, Kant submits, to speak here of a permissive law (8:348 fn.).

It is important to note that the prohibition is the primary component to which the permission refers, as Kant’s formulations show: ‘the prohibition presupposed’, ‘the exemption from this prohibition, i.e., the permission’ (8:348 fn.).Footnote ⁷ On the one hand, the prohibition is a precondition of the permission‚ in that the conduct regulated by the law is generally prohibited and permitted in certain circumstances only. On the other hand, the prohibition sets limits to the permission by tying the permitted action to specific conditions. Thus, the restitution of state autonomy may be delayed if ‘implementing the law prematurely [will] counteract its very purpose’ (8:347), but the permission does not extend so far that the restitution could be postponed forever, ‘to a nonexistent date’, so that the delay would amount to not restoring the other state’s freedom (8:347). We can therefore say that the permission is limited by the underlying prohibition, or by the grounds of that prohibition.

These observations also apply to the permissive laws that Kant hints at in the appendix of Perpetual Peace. There Kant argues that shortcomings in the constitution of a state do not have to be eliminated in one fell swoop but can be remedied step by step through gradual reforms: there are ‘permissive laws of reason that allow a situation of public right afflicted with injustice to continue’ until the conditions are such that the constitution may safely be changed, that is, ‘until everything has either of itself become ripe for a complete overthrow or has been made almost ripe by peaceful means’ (8:373 fn.).Footnote ⁸ The permission in question applies if ‘a premature reform’ threatens to undo the juridical condition so that a relapse into the ‘anarchy’ of the state of nature is to be feared (8:373 fn.). The reason for the permission to change the constitution step by step accordingly lies in the fact that ‘some rightful constitution or other, even if it is only to a small degree in conformity with right, is better than none at all’ (8:373 fn.; my emphasis).

As with preliminary articles 2, 3, and 4, the permission to forgo a complete revision of a faulty constitution and postpone certain changes holds against the background of a general prohibition, in this case the inadmissibility, itself grounded in ‘the ideal of public right’ (8:373 fn.), of an unjust state constitution. Moreover, in this case, too, the permission is at the same time limited by the prohibition: the postponement is only allowed insofar and as long as it is necessary for change to be actually possible and it is conjoined with the ‘duty’ to work towards the realization of the provision, to ‘make reforms in keeping with the ideal of public right’ (8:373 fn.). Now, it may seem as if the permissive law in question would indeed tolerate a wrongful action, insofar as it allows ‘a situation of public right afflicted with injustice to continue’ (8:373 fn.; my emphasis). But it indeed ‘allow[s]’ deferring certain constitutional changes (8:373 fn.; my emphasis), and it does this insofar as it is required for the injustice to be remedied. The permissive law hence declares that retaining the current constitution, as long as changing it is not possible, is genuinely allowed, based, ultimately, on the idea of Public Right.

8.2.2 Permissive Law as a Kind of Prohibitive Law

The second understanding of permissive law that Kant rejects in his elaboration in Perpetual Peace is the idea that permissive laws are independent norms of exception that are, as it were, attached to, or placed alongside, prohibitive laws. According to Kant, examples of this are often found in positive law (‘in civil (statutory) law’): ‘Then it is said that this or that is prohibited, except for number 1, number 2, number 3, and so forth indefinitely’ (8:348 fn.). In such cases, the relationship between prohibition and permission is such that ‘the prohibitive law stands all by itself and the permission is not included in that law as a limiting condition (as it should be) but is thrown in among exceptions to it’ (8:348 fn.). Kant’s criticism of this approach is that the exemptions from the prohibition are added to the law ‘only contingently, not in accordance with a principle but by groping among cases that come up’ (8:348 fn.).

In contrast to this approach, Kant holds that if one wishes to identify ‘permissive laws […] of pure reason’ (8:347 fn.) a properly systematic approach is required in which ‘the conditions [are] introduced into the formula of the prohibitive law’ (8:348 fn.; Kant’s emphasis). If this is done, that is, if the conditions under which a certain action shall be permitted are specified in the formula of the prohibition, the prohibitive law (‘it’) becomes ‘at the same time a permissive law’ (8:348; my emphasis). By including the conditions under which the prohibition shall not hold into the law itself, the law assumes a dual character: in relation to the generally required omission of a certain course of action, the law is a law of prohibition, but in relation to those conditions under which that course of action is allowed it is a permissive law. Thus, Kant characterizes permissive law as a form of prohibitive law that specifies conditions for exemptions from its prohibition, thereby establishing a particular permission.

Permissive law is thus a kind of prohibitive law. This is reflected by Kant’s distinction, in his remark at the end of the section on the preliminary articles, between prohibitive laws ‘of the strict kind (leges strictae), holding without regard for differing circumstances’, on the one hand, and ‘laws that, taking into consideration the circumstances in which they are to be applied, subjectively widen [one’s] authorization (leges latae) and contain permissions’, on the other hand (8:347).Footnote ⁹ In a similar vein, in the Vigilantius lecture notes, Kant distinguishes between prohibitive laws that hold universally (‘universales’), that is, which are ‘valid under all circumstances, so that an exception is therefore impossible, and a permissive law not to be thought of here at all’, and merely general prohibitions (‘generales’), ‘where the prohibition holds good in the great majority of cases (in general)’ and where therefore ‘exceptions are conceivable’ (27:514). As the texts clearly show, Kant in both cases regards permissive law as a kind of prohibitive law.

In considering permissive law as a kind of prohibitive law, Kant follows his textbook authors Alexander Gottlieb Baumgarten and Gottfried Achenwall.Footnote ¹⁰ Both regard the lex permissiva as a special (Baumgarten: ‘peculiaris’) kind of prohibitive law (‘species legis prohibitivae’). Both argue that a permissive law is a law of prohibition that on the one hand establishes an obligation (in the form of a prohibition) and on the other hand grants an authorization. Thus, Baumgarten explains that ‘a permissive law (permission strictly considered) is a law declaring that a certain action that has indeed not been prescribed is indeed nevertheless not to be impeded’. The permissive law is therefore ‘a particular species of prohibitive law’ (est peculiaris species legis prohibitivae). It is a law ‘in favour of someone who perhaps will carry out certain things’ in that it ‘obligates others to omit an impedition that otherwise could have been opposed to such a free determination’.Footnote ¹¹

Achenwall similarly elaborates:

Kant’s view, however, differs from that of his textbook authors with regard to what is permitted and what is prohibited by the law. For Achenwall and Baumgarten, permission and prohibition refer to the actions of different agents addressed by the law. The law that permits an agent A to φ is a permissive law for this agent. Insofar as the law at the same time prohibits other agents from interfering with A’s doing φ, it is a law of prohibition for those other agents. This is very clearly brought out by Achenwall’s explanation of permissive law, quoted above: the law ‘has a different effect’ for the different agents. As Achenwall puts it succinctly in his Ius Naturae: ‘[S]uch a law is called “permitting” with regard to the person to whom it concedes the ability to do something licitly, but “commanding” with regard to the person whom it obligates not to hinder someone else.’Footnote ¹³

On Kant’s view, in contrast, permission and prohibition are directed at the same agent. For Kant, what differs are the forbidden and permitted actions, namely the respective ‘object[s] of the law’ (8:348 fn.), and they differ on the basis of the conditions or circumstances in which an agent subject to the law finds herself. Thus, while agent A is generally prohibited from φ-ing, A is permitted to φ under certain circumstances as specified by the law. Thus, it is forbidden for states to acquire another state, while they are allowed to retain their prior acquisitions until restitution of wrongful acquisition can successfully commence.

Now, Kant’s notion of permissive law, like that of Achenwall and Baumgarten, also implies that other agents are prohibited from preventing the addressee of a permissive law from exercising his authority. Within the scope of the conditions specified by the permissive law, A’s doing φ is permitted, that is, it is not subject to any prohibition. Hence, insofar as A’s doing φ conforms with law, other agents may not interfere with it. Thus, other nations may not force state S to restore freedom immediately to those states it had illegitimately acquired in the past. Indeed, owing to the permissive law, S may rightfully resist any such attempts at interfering with conducting its own affairs. This aspect, however, is not the essence of permissive laws for Kant. In fact, the account of permissive law found in Achenwall and Baumgarten cannot suffice in Kant’s eyes. On their account, the normativity of the permissive law (its being a practical law) does pertain only to the agents who are prohibited from interfering with the permitted action.Footnote ¹⁴ But unless the permitted action is also prescribed, it does not make sense, as we have seen in the previous section, to speak of laws for permitted acts. On Kant’s account, in contrast, the permissive law is a proper law for the addressee of the permission insofar as she is at the same time the addressee of the antecedent prohibition.

Given Kant’s understanding of permissive law as a kind of prohibitive law, it is clear that permissive laws do not authorize doing something that is still forbidden: as Kant says, a generally prohibitive law is turned into a permissive law by inserting ‘into the formula of the prohibitive law’ the conditions under which the action regulated by the law is to be permitted (8:348 fn.; emphasis removed). Since prohibition and permission are for Kant part of the same law, the permission has genuinely to allow the action in question, rather than merely tolerate it as a transgression of the prohibition: for it would be contradictory for a law to establish a prohibition and at the same time allow a contravention to it. Moreover, like all practical laws, the permissive laws with which Kant is concerned are principles of (pure practical) reason (8:347 fn.; 8:373 fn.), and reason cannot issue a prohibition while at the same time allowing its transgression. Indeed, Kant emphasizes that the authorizations granted by permissive laws do ‘not’ allow the agents ‘to make exceptions to the rule of right’ (nicht als Ausnahmen von der Rechtsregel; 8:347). Far from taking permissive laws as suspending the validity of the prescripts of reason, Kant thus understands permissive law as conditionally allowing, or licensing, a course of action that is otherwise forbidden, namely if the conditions contained in the law do not obtain. In this sense, a permissive law merely limits the scope of an antecedent prohibition.

8.5.1 The Juridical Postulate of Practical Reason as a Permissive Law (§ 2)

According to Kant, the ‘juridical postulate of practical reason’ (6:246) that he introduces at the beginning of Private Right can be described as a permissive law (6:247).Footnote ²⁵ The postulate states that it must be possible ‘to have any external object of my choice as mine’ (6:246). By means of the postulate, practical reason ‘extends itself’ beyond innate right and opens up the sphere of the external mine and thine (6:247). The postulate thus lays the foundation of Private Right as a whole.

By virtue of the postulate – and the concept of merely juridical possession it serves to establish (6:252) – it is possible for agents to put others under obligation with regard to external objects, namely by restricting their freedom with regard to these objects. For this reason the postulate can be called a permissive law:

How do we have to understand this extension of practical reason by the postulate? The ‘mere concepts of right as such’, and the universal principle of right that follows from them (6:230), contain only the power to bind other agents with regard to one’s own inner freedom. Thus, the innate right of freedom allows us to use coercion if and only if another person restricts our freedom in a way that violates the universal law of right. To be sure, this also applies to objects that are in our physical possession, insofar as someone who ‘wrest[s] the apple from my hand’ against my will harms me ‘with regard to what is internally mine (freedom)’ (6:248). However, the permission to use coercion based on the innate right does not extend to objects that are not in my physical possession. Rather, restricting another agent’s use of an object that I do not physically possess constitutes a wrong. On the basis of the universal principle of right alone, it would be morally prohibited to make juridical claims and to use coercion against other persons with regard to external objects that are not under one’s physical control. With the introduction of the postulate that prohibition is restricted: on the basis of the postulate, we are justified in preventing other agents from using certain objects which are not in our physical possession but belong to us in terms of merely juridical (non-physical, but intelligible) possession only.

The juridical postulate clearly refers to an antecedent prohibition and establishes as rightful certain actions that would otherwise be prohibited. This means that the actions in question are not indifferent as such, as Hruschka holds. On the other hand, the postulate does not permit wrongful acts: it does not allow a transgression of the universal principle of right or of others’ inner right. Instead, the postulate specifies conditions under which the external use of freedom is compatible with everybody’s freedom. In this sense the universal principle of right is synthetically extended by the postulate. The postulate predicates the permission to restrict other agents’ freedom in relation to external objects on the condition that the objects in question be in one’s merely juridical possession. Of course, legitimate merely juridical possession can only come about in the course of a legitimate process of acquisition. It is the task of the three parts of the second chapter of Private Right, ‘How to acquire something external’, to spell out the specific conditions under which this is possible with regard to things, services, and persons, respectively. The postulate only states that it must be possible, in principle, for agents to put each other under obligation with regard to external objects subject to the condition of merely juridical possession.

8.5.2 Possession in the State of Nature by Favour of a Permissive Law (§ 16)

Like the postulate in RL § 2, the permissive law in § 16 also refers to an antecedent prohibition and, by specifying conditions, excludes certain actions from its scope. The object of the permissive law in § 16 is the original acquisition of external things, specifically pieces of land, in the state of nature. Prior to the establishment of the juridical condition, the original acquisition of land by an agent amounts to an act of unilateral obligation of others. Considered as such, imposing obligations on others unilaterally is a violation of the universal law of right: ‘the law which is to determine for each what land is mine or yours’ can only originate ‘from a will that is united originally and a priori’; such acquisition can thus only be rightful in civil society (6:267). According to Kant, however, the original acquisition in the state of nature is possible, and only possible (‘needs’), by virtue of a permissive law: the agent in question has the ‘favor of a law (lex permissiva)’ on his side (6:267).

In the state of nature, the permissive law authorizes the obligation of others through the unilateral will of the first occupant of the thing in question. In virtue of the juridical postulate from § 2, mere juridical possession of things, which are one kind of external object of the faculty of choice, must be possible. Since we are not originally in possession of things, an original acquisition must be possible for this to have effect. Original acquisition, however, can only occur unilaterally, through first acquisition, since otherwise it would be a derivative acquisition, which would in turn presuppose the possession of the thing to be transferred. Original acquisition through a unilateral act must, hence, be possible. The permissive law grants this acquisition.

However, the permissive law in question qualifies the right of the agent who originally acquires a thing. The acquisition must take place in conformity with the idea of the general will (see 6:259–60, 6:268) and it can only happen in the state of nature and thus only until – and in conjunction with the willingness not to resist – the establishment of the juridical condition, that is, the state. As Kant emphasizes, the ‘favor’ granted by the permissive law ‘does not extend beyond the point at which others (participants) consent to its establishment’, namely the juridical condition (6:267). Prior to the foundation of the state, the rights of the first occupant are merely provisional; only within the juridical condition can they be peremptory (6:267, 264; cf. 256–7).

Of the different cases of permissive laws in the Doctrine of Right, the case in § 16 bears the most resemblance to the cases in Perpetual Peace. The permission here refers to a condition that pure practical reason obliges us to overcome and is thus subject to a temporal condition. And just as in Perpetual Peace, for example, the toleration of unlawful possessions under international law is only permitted with a view to restitution, so too, in RL § 16, the act of unilateral first occupation of a piece of land is only permissible insofar as it is a prerequisite for possession of property.Footnote ²⁶

8.5.3 Legitimating the Possession of Persons: The Permissive Law in RL § 22

The third instance where Kant makes use of a permissive law is the acquisition of other persons – ‘wife’ or ‘husband’, ‘children’, and ‘servants’ (6:280; 6:277) – in the form of a personal right in the manner of rights to things (‘auf dingliche Art persönliches Recht’, which Gregor translates as ‘rights to persons akin to rights to things’). Such an acquisition, Kant states, is made possible by the ‘favor’ of a ‘natural permissive law’ (6:276).Footnote ²⁷ Since the personal right in the manner of rights to things allows the agent to act towards the other person in a certain way, namely, as if the other person were a thing, one might think that the permissive law in question would indeed permit a violation of the general prohibition against treating another person as a thing, thus condoning certain violations of the other person’s humanity. The permissive law in § 22 might thus be taken as a case in point for the common reading of permissive laws as allowing or condoning morally impermissible actions. However, as I will sketch out, this is not the case.

Kant defines the personal right in the manner of rights to things as the right ‘of possession of an external object as a thing and use of it as a person’ (6:276). The right thus has two components, possession and use of the other person, and it is only the possession of the other person that obtains in the manner of rights to things. Thus, Kant argues, the agent can fetch back the other person if he or she has ‘gone astray’ and the agent can vindicate the other person from any third party in whose possession the person might be (6:278, 282, 284; 6:361). It is because of this legal capacity that Kant, when he introduces the permissive law in question, states that the basis of such a right to another person must lie ‘beyond any rights to things and any rights against persons’ (6:276): it is the right of humanity, Kant argues, that provides this basis and from which the permissive law in question ‘follows’ (6:276).

Humanity – namely, the property of a human being to be a free rational being and thus a person (6:239) – limits the extent to which we can make use and dispose of our own person as well as that of others. The use a person makes of herself or of others must always conform with her own personhood and that of others, respectively (6:270). From the fact that the normative basis of personal rights in the manner of rights to things is the right of humanity it should be clear that the permissive law that grants the acquisition of such rights cannot be meant to permit wrongful actions. Rather, the permissive law attaches certain conditions to the possession of one’s spouse, children, and household servants that indeed guarantee the conformity with the personhood of the persons involved. That is, in the form of the permissive law following from the right of humanity, while practical reason enables the legal possession of one person by another it at the same time ensures that the persons are not treated like things.

In the following, I will provide a brief sketch of how the permissive law in RL § 22 enables the acquisition of another person by imposing requirements both on the possession and on the associated use of the other person in terms of compatibility with their humanity. In the individual sections of The Right of Domestic Society, Kant emphasizes that practical reason clearly delineates what is permissible, that is, in conformity with the right of humanity, from what is impermissible, (i) in sexual relationships, (ii) in the parent–child relationship, and (iii) in the relationship of master and servant.

(i) Our humanity limits the extent in which we can make use of our own person, and this includes the use we make of our body. Thus, according to Kant, the right of humanity in our own person rules out all forms of sexual intercourse in which agents make themselves into a mere object of pleasure for the other, as this would amount to treating humanity as a thing (6:278). According to Kant, this problem indeed pertains to all relationships that fall short of being a monogamous and lifelong marriage, for as Kant argues, only exclusive and permanent relationships can avert the problem of sexual objectification that our sexual desire naturally gives rise to (6:277–8).Footnote ²⁸ Because marriage alone eschews sexual objectification and thus conforms with the right of humanity it is the only ‘sexual union […] according to the law’ (6:277), that is, according to ‘pure reason’s laws of right’ (6:278). Only in establishing a marriage can persons, therefore, acquire each other as spouses in terms of the right to persons in the manner of rights to things. All non-marital sexual relationships, including polygamy and concubinage, Kant argues, cannot be legally valid because they necessarily involve sexual objectification; in the case of such relationships the spouses do therefore not acquire rights to each other, making the relationships legally ‘null and void’ (6:278–9). By permitting the acquisition of another person as a spouse only in marriage, the permissive law clearly confines the legal powers that it confers on agents to certain conditions. Rather than permitting acts that would run counter to humanity and the personhood of the persons involved, the permissive law indeed specifies that legally valid sexual relationships have to conform to the right of humanity; it is thus based on the normatively antecedent prohibition, established by reason, not to treat persons as things or mere means (6:270; 6:236).

(ii) We find a similar argument in Parental Right. As Kant makes clear, the right of parents to their children is limited such that the parents’ power over their children may only serve to maintain, raise, and educate the children. In particular, parents may not treat their children like pieces of property that could be mutilated, destroyed, consumed, or alienated (6:280–2), and their right automatically ceases when the children reach the age of majority (6:282). As Kant argues, the parents’ right, both in terms of personal right and in terms of right in the manner of rights to things, is grounded in the parents’ duty towards their children: because the parents through their act of procreation have brought a new person into the world without her consent, they are required to care for this person until she can do so on her own (6:280–1). Indeed, not doing so would amount to treating the child as a thing, thereby violating the child’s humanity. As Kant explains, it is the parents’ duty that leads to the acquisition of their rights to the child, and it is this duty that in particular gives rise to parents’ right to ‘handle’ their children, including the right to reclaim them from any third parties and, if necessary, to bring them back under their own control by force (6:281). Hence, while the permissive law establishes the right of parents to their children as a right to a person in the manner of rights to things, it on the one hand grounds this right in the children’s humanity and, on the other, limits the parents’ handling of their children to conformity with the children’s status as persons.

(iii) Similarly, the master’s power over his domestic servants is limited in that ‘he can never behave as if he owned them (dominus servi)’ (6:283). For instance, the labour of the servants, that is, their use by the master of the house, may not amount to consumption. In this respect, domestic servants have the right to judge the master’s treatment of them and they may report violations of their rights, although, according to Kant, they may not leave the household on their own authority (6:283; 6:284). Furthermore, the employment relationship cannot be for life in a strong sense, but it must always be possible to terminate the contract (6:283). The acquisition of domestic servants is thus only possible insofar as the right to freedom of the servant, namely his humanity, is preserved. This distinguishes a contract for domestic services from the conditions of serfdom or slavery, which as Kant points out, are null and void (6:283). So in this case, too, the permissive law makes possible a certain type of legal relation, which it subjects to strict conditions, and it does so with reference to a normatively antecedent prohibition.

9.2.1 Unilaterality Problem

Even though persons can identify rights in the state of nature through reason (objectively), these judgements have private character and cannot authoritatively bind others externally.Footnote ¹⁸ Distinctive of Kant’s legal theory is the idea that one’s correct but private judgement about rights does not warrant the authority to decide and coerce others in matters of right. One may indeed do so (without authority), due to the normative vacuum of the state of nature, that is, the fact that there is no public enforcement of rights. However, in contrast to John Locke,Footnote ¹⁹ the unilaterality problem arises for Kant because even though one may have ‘right on one’s side’, the authority to impose one’s judgements about rights on others externally requires omnilaterality.Footnote ²⁰ Omnilaterality is the condition of reciprocity in external relations. Therefore, the unilaterality problem in the state of nature concerns the moral possibility of binding others, which is also directly connected with the moral possibility of externally coercing them.Footnote ²¹ Although Kant derives the concept of rightful coercion analytically from the concept of a hindrance of freedom (which coercion then logically negates), the authority to coerce is not analytically derived from the concept of a ‘negation of a negation’ of external freedom.Footnote ²² Instead, the authority to coerce is derived synthetically from the united will of all under public law (instituted, not original).Footnote ²³ The unilaterality problem thus arises because the normative condition for the enforcement of rights is not given in the state of nature and needs to be brought about in a condition of public law that has yet to be established.

9.2.2 Dignity Concerns

In certain passages, Kant expresses concerns about addressing the consequences of violations of rights as a matter of meritorious duty or virtue. Since it is possible to discharge duties of right from ethical motivation, the problem is not that relying on ethical motivational while discharging duties of right is problematic (since it is clearly permissible from a legal perspective and required from an ethical perspective). The difficulty arises from addressing the rights of others as if they were only matters of virtue, since this would be incompatible with the dignity of the right holders. There is something humiliating about someone’s right claim being made into the object of another’s beneficence, even though the line between moral concern for another’s wellbeing and respecting the dignity of persons may not always be clear. Depending on the goodness of others to have one’s right respected is problematic because beneficence is not something one can demand from others as a matter of right; one also becomes indebted to the benefactor since beneficence is freely bestowed.Footnote ²⁴

Even under a civil condition agents may tend to treat right claims as a matter of beneficence. Further, it is more convenient to regard oneself as doing something meritorious for others rather than giving others what is owed to them. Duties of right are strict, while duties of virtue are wide. Assuming a duty of virtue would allow the agent more flexibility for compliance and the possibility to do less than the duty of right would prescribe, not to mention the idea that one would be acquiring merit as a consequence of one’s conduct (as opposed to doing one’s strict duty). Although the possibility of genuine ignorance must be granted, self-deceit can also motivate such a vitium subreptionis. A vice of subreption is a mistake in cognition; in this case, in the recognition of the appropriate moral category (the type of duty in question). Self-deceit is a psychological mechanism allowing an agent to rationalize away her own awareness of possibly objectionable conduct and thus to stop scrutinizing her motivations. Since complete honesty with oneself would require recognizing oneself as morally unworthy, which is painful, self-deceit allows agents to believe that they are being moral when they are not, which feels better than acknowledging blame and taking full responsibility for one’s conduct.Footnote ²⁵

Rights preserve an important sphere of external freedom that (in principle) allows right holders to pursue ends, including providing for themselves, to a certain extent independently of constraints imposed by the arbitrary choice (Willkür) of others; having their rights violated means that they may be in a position where they will need the beneficence of others to satisfy their needs. Kant identifies two ethical dangers in this scenario: the humiliation of the helped and the self-glorification of the helper.

1. 1. Humiliation of the helped: Beneficence binds the beneficiary towards the benefactor. Kant acknowledges that being indebted towards one’s benefactor can be humiliating to a certain extent, and may cause resentment towards the benefactor as a result of one’s hurt pride.Footnote ²⁶ While the duty of gratitude is a means to counteract the tendency of beneficiaries towards resentment, benefactors are required to be beneficent in ways that do not cause the beneficiary to feel humiliated, since this would be incompatible with adopting the happiness of others as one’s end. For instance, Kant acknowledges that it is better to practise beneficence in secret or anonymously than to let one’s identity be known.Footnote ²⁷

2. 2. Self-glorification of the helper: The benefactor, who may be in a position to do beneficence with no considerable cost to herself, may revel (schwelgen) in moral feelings at the thought of her beneficent action. Whatever the source of the need, if the benefactor is well situated to help another at no significant cost to herself, Kant suggests that she should not regard her action as meritorious, but in the manner of strict duty instead.Footnote ²⁸ A further reason for Kant’s claim that one should treat beneficence subjectively as a strict duty, this time specifically under a civil condition, is that systemic injustice through the shortcomings of existing governments may be at the root of the poverty individuals are addressing through beneficence. Since wealthier individuals may be indirectly benefiting from the injustice of their governments and society, their merit is questionable.Footnote ²⁹

9.2.3 Demandingness Concerns

Rights preserve the individual sphere of external freedom that allows persons to set and pursue their own ends by providing them with immunity from the arbitrary interference of others.Footnote ³⁰ Therefore, thwarting this sphere of freedom can bring about material dependence on the means of others. Although as finite beings we are by nature vulnerable and mutually dependent on each other, rights violations can be a cause of human dependence on the charity of others.

If an agent takes seriously Kant’s admonitions about avoiding humiliation to others and treating wide duties as if they were strict ones (given the possibility of systemic injustice), she may find herself in a situation that is extremely morally demanding. Since the acute needs of others would trigger a duty of beneficence (to which morally conscientious agents are more responsive than other, less morally attuned agents), morally conscientious agents would find themselves in a situation in which they would bring it upon themselves to compensate for these needs. Since we can assume that morally conscientious agents constitute a minority of all agents who are actually under the duty, depending on the degree of deprivation, the help required to bring about a satisfactory level of support would require such agents to weigh beneficence against the promotion of their own ends and happiness. A paradox arises from this scenario. A morally good agent is actually worthy of happiness.Footnote ³¹ However, being a morally good agent, especially under acutely demanding scenarios, would mean that precisely these agents may need to sacrifice their own happiness to address need. Therefore, the best moral agents may be less likely to enjoy the happiness they morally deserve.

Elsewhere I argued that moral overdemandingness is not intrinsic to Kant’s moral theory, but contingent upon external circumstances.Footnote ³² Injustice and lawlessness do not only bring about need but also directly contribute to moral demandingness. This means that protecting moral agents provides an additional ethical argument for Kant’s exeundum, which I take to imply not a mere ‘one off’ move out of a state of nature. As stressed earlier, the state of nature is a matter of degree: although a group may have left the absolute state of nature by entering a legal order, they are still in a relative state of nature in regard to other polities, towards whom their external relations remain unregulated. Further, their internal public institutions will be still very far from the rational ideal of a Kantian res publica, according to which the principles of external freedom and equality before the law are the basis of legislation. There is thus a duty continually to improve this legal order in order to bring it closer to the rational ideal. The exeundum is thus an ongoing obligation to transition towards a more inclusive condition of public law, both domestically and internationally. It is inclusive because arbitrary discrimination and interference must be gradually abolished and the scope of those included in the juridification of external relations is enlarged, compatible with hierarchies of legal orders, at different levels.Footnote ³³

The argument presented above lends support to the idea that Kant’s legal-political thought has a transitional character. It enables us to address real-world politics and institutions with the guidance of pure principles derived from Vernunftrecht, or Right of Reason. There is something very appealing about this picture. It allows us to dismiss the cliché of Kant’s theory as empty formalism; we find instead a versatile theory that can guide us through the messiness and complexity of real political practice. It is thus not surprising that Kant’s theory was recently rediscovered and celebrated as a promising theory of transitionality.Footnote ³⁴

While I do not dismiss the potential of Kant’s legal theory, which proponents of a Kantian theory of transitionality are very correct to stress, in Section 9.3 I will address what I take to be a misunderstanding of Kant’s theory in the recent literature: the conflation of ‘transitionality’ with what Kant scholars have referred to as ‘provisionality’. While there is a sense in which provisional rights are rights under transitional circumstances (i.e. in the development towards a condition of public law), I argue that talking about ‘provisionality’ in general, or applying this notion to duties, misses the point. Kant restricts the attribute ‘provisional’ to acquired rights, and for a good reason: it is the indeterminate status of acquired rights in the state of nature that compels us to leave that state.Footnote ³⁵ Once we understand why acquired rights in the state of nature are deemed ‘provisional’, it becomes clear that it does not make sense to talk about provisional duties or ‘provisionality’ in general. While there is indeed a connection between ‘transitionality’ and ‘provisionality’, this relation pertains exclusively to provisional rights.