I. Freedom and a Civil condition

Two key ideas in Kant’s legal philosophy underpin the argument of this article: 1) freedom, and 2) a civil condition. Freedom is “independence from being constrained by another’s choice.” ^{Footnote 19} As Arthur Ripstein has explained, this conception of freedom differs from those according to which individuals are freer just in case they can do a larger number of things, or pursue their happiness more effectively.Footnote ²⁰ Instead, Kantian freedom is fundamentally interpersonal: a person is free just in case no other person or group can use that person’s body or any other resources that belong to that person for another’s purposes.Footnote ²¹

The premise of Kant’s argument for state authority is that we have a pair of natural duties in a state of nature. First, we each have an internal duty (that is, a duty that we owe to ourselves) of “rightful honor”: we must not allow others to use us as mere means to their ends.Footnote ²² In the context of Kant’s legal philosophy, this means that we have a duty not to permit others to deprive us of our freedom. We likewise have an external duty (owed to others) not to wrong others by depriving them of their freedom.Footnote ²³ Taken together, these two duties amount to a universal “innate right” of freedom, to the extent that it can coexist with the equal freedom of others.Footnote ²⁴

Because freedom is understood as independence, our innate right of freedom amounts to a Hohfeldian right that others refrain from engaging in actions that ‘coerce’ us, meaning actions that override our independence with respect to our bodies or anything else that belongs to us. We also have a strictly correlative duty not to engage in actions that violate the innate right of any other person. Unlike specific property rights or contractual expectations, which we must choose to acquire, we have our innate right of freedom simply because we are human.Footnote ²⁵ Kant then writes that our innate right of freedom “already involves the following authorisations, which are not really distinct from it (as if they were members of the division of some higher concept of a right)”: ^{Footnote 26}

These “authorisations” can likewise be redescribed in terms of Hohfeld’s fundamental legal concepts.Footnote ²⁸ Independence and association are best understood as domains of Hohfeldian liberty: action types that do not violate the rights of others.Footnote ²⁹ So long as we do only what we are at liberty to do, our actions are effectively shielded by our innate right that others not coerce us. Equality is best understood as a Hohfeldian immunity: we are each immune to attempted exercises of power that would impose non-reciprocal obligations on us, and we each have a correlative disability with respect to imposing such non-reciprocal obligations. Importantly, this immunity is (like all aspects of our innate right of freedom) inalienable: my duty of rightful honor makes me legally incapable of “throw[ing] myself away” by choosing to take on new legal duties that do not equally bind others.Footnote ³⁰

In a state of nature, our innate right can extend only as far as our own bodies. For example, individuals in a state of nature have a correlative duty not to wrest an object from a non-threatening person’s grasp or displace that person, since these acts would violate another’s innate right. ^{Footnote 31} But although we each have a right to be free of bodily coercion in a state of nature, we are necessarily insecure in our enjoyment of it, since we have no assurance that others nearby will not choose to coerce us. Perhaps worse, in a state of nature our mere proximity to others can wrong them by physically threatening them in a way that is inconsistent with their innate right, which will at best limit our domain of liberty with respect to association. ^{Footnote 32}

While John Locke thought the state of nature was merely inconvenient because rights were difficult to defend, Kant argues that the very features of the concept of a right make it the case that acquired rights of property, contract, and status are impossible without a state. First, a person can acquire a right to an external thing only by making a choice, and our innate equality disables any person from unilaterally imposing new correlative duties on others. ^{Footnote 33} Second, disputes about the boundaries of acquired rights necessarily arise, and in a state of nature they cannot be resolved because no one is obligated to defer to anyone else’s judgment. ^{Footnote 34} Third, we lack equal assurance that others will respect our rights in a state of nature, and we are not truly independent of the choices of others—and therefore have no acquired rights, properly speaking—if our enjoyment of our putative rights depends on others’ discretionary self-restraint.

Because individuals in a state of nature therefore cannot acquire property rights, they are unable to rightfully pursue many projects that they could physically pursue. A farmer who attempts to grow a crop of corn on a field, for example, is not independent of the choices of others in this pursuit, because the farmer’s neighbors remain at liberty to uproot the growing crop. Our incapacity to constrain others from interfering with projects that involve large external objects or long periods of time effectively “put[s] usable objects beyond any possibility of being used.”Footnote ³⁵ For this reason, and also because our innate right to be free of bodily coercion is otherwise insecure, Kant argues that we have a duty to ourselves and to those around us to become members of a state.Footnote ³⁶ Only as members of a state is it possible for us to enjoy our equal freedom to rightfully pursue the range of projects that we are capable of pursuing without wronging others.

A state can create the necessary conditions for our enjoyment of equal freedom by exercising its “three authorities”—legislative, executive, and judicial—each of which are logically necessary to eliminate one of the three barriers to acquiring rights in a state of nature that Kant earlier identified. ^{Footnote 37} The legislative authority is the capacity to enact laws that empower individuals to acquire property, contract, and status rights under uniform rules, as well as those laws necessary to establish and maintain state institutions. The judicial authority is the capacity to exercise judgment to authoritatively resolve disputes about rights. ^{Footnote 38} The executive authority is the capacity to coerce us in accordance with the law, thus providing us with independent assurance that our rights are secure, and that we are all equally bound by the laws. ^{Footnote 39}

The state’s three authorities, together with the innate right of freedom and certain fundamental principles of acquired right, constitute the idea of a civil condition. ^{Footnote 40} Because the state’s authorities are necessary prerequisites to our enjoyment of our rights, Kant’s argument goes, we must see ourselves as having authorised the state to exercise these authorities by means of the “omnilateral” will—a constructive group agent comprised of the united wills of those individuals subject to the same laws in virtue of their identical purpose of enjoying their rightful freedom. ^{Footnote 41} In a civil condition, we can see ourselves as free under neutral laws that reciprocally constrain the sets of actions that we are each at liberty to undertake, because we are rationally required to endorse the state’s authority to promulgate, apply, and enforce those laws. ^{Footnote 42}

A state enables individuals to extend their independence to include acquired rights, such as property, but so long as we do not wrong others, no state has the authority to strip us of our original innate right of freedom, including its authorisations: equality under law, independence, and association. This is the case because the innate right of freedom justifies state authority in the first place, including the authority to create a system of legal property rights.Footnote ⁴³ The foundational status of the innate right of freedom relative to acquired rights plays an important part in the arguments that follow, because it means that the “burden of proof” concerning the existence of an acquired right falls on the legal claimant who asserts its existence.Footnote ⁴⁴ A defendant who denies that an alleged acquired right exists can “appeal methodically to [the] innate right to freedom” to defend against a charge of wrongdoing until the claimant demonstrates that the acquired right in question has indeed been established by law.Footnote ⁴⁵

II. A Standard for Legal Obligation

In Kantian terms, a crime is by definition a knowing transgression of a duty.Footnote ⁴⁶ In order to evaluate potential examples of criminal wrongdoing, therefore, we must first identify an agent’s relevant duties under juridical laws. Kant argued that lawmakers can create new legal duties for us only by supplying the following two ingredients: 1) a legislative command, and 2) an external incentive to obey that command in the form of a coercive response to disobedience. ^{Footnote 47} An external incentive is necessary because it provides us with “equal assurance that [others] will observe the same restraint” that we observe when we obey.Footnote ⁴⁸ Without such assurance, our duty of rightful honor would prevent us from acquiring a new legal duty that others might freely choose to disregard.

The necessary and sufficient conditions of equal assurance remain a matter of debate, but Arthur Ripstein’s account is particularly influential. Ripstein acknowledges that assurance is an essential prerequisite to legal obligation in both public and private law. In the domain of private right, a lack of assurance entails that “nobody is under any obligations with respect to external objects,” and therefore “neither [party to a property dispute] has any rights, properly speaking.”Footnote ⁴⁹ In the context of public right, “a parallel point applies”: assurance is necessary to make an obligatory public law “effective.”Footnote ⁵⁰ I will summarize his account of how the law provides this assurance in both domains and then explain how my own proposal improves on it. I will aim to show, first, that Ripstein is misguided to look to civil remedies to provide the equal assurance necessary to establish property rights. Moreover, although Ripstein later correctly concludes that criminal penalties supply the essential form of assurance necessary to create new legal duties of all types, he fails to identify a key feature of such penalties that makes this possible: their inconsistency with our innate freedom. Without this key insight, Ripstein’s account of equal assurance cannot enable us to accurately identify our legal duties.

Ripstein argues that there are two dimensions along which civil remedies provide the assurance necessary to create a duty to refrain from encroaching on the acquired rights of others. First, these remedies assure individuals that if they become victims of wrongdoing, their resources will be restored to them, as nearly as possible. Second, these remedies may discourage potential wrongdoers by ensuring that any rights violation “carries potential disadvantages.”Footnote ⁵¹ Ripstein thinks that this deterrent effect is “secondary, but supports the assurance provided by the remedy itself.”Footnote ⁵² Deterrence is deemed secondary because “the remedial aspect of [civil] enforcement gives you all the assurance you need: you have what is yours, because if another wrongs you, you will be able to get it back.”Footnote ⁵³

Ripstein’s later remarks on criminal punishment seem in tension with his earlier conclusion that civil remedies provide all the assurance we need. Because a wronged party can choose whether to “stand on his or her own rights,” Ripstein concludes that civil liability is not “systematically” imposed.Footnote ⁵⁴ He infers from this fact that criminal penalties are a necessary form of assurance for acquired rights after all, because the state is empowered to impose them on all knowing wrongdoers regardless of the private choices of victims. Only this systematic assurance, he concludes, can satisfy our duty of rightful honor and therefore conclusively establish acquired rights.Footnote ⁵⁵ Notably, however, Ripstein does not suggest that these systematically threatened punishments provide anyone, much less everyone, with a dispositive reason to obey the law. Instead, they merely “compete with the criminal’s other incentives,” on his view, and presumably are sometimes outweighed by them.Footnote ⁵⁶

I believe that neither of these arguments accurately describes the ‘equal assurance’ that lawmakers must supply in order to create new legal duties. Ripstein is correct to view civil remedies as essential logical extensions of acquired rights in cases in which they are violated. He is also correct to characterise deterrence as a ‘secondary’ effect of these remedies. But this is not because deterrence is a merely secondary form of assurance. As an analysis of Kant’s equal assurance requirement, this discussion grasps the wrong end of the stick: equal assurance addresses us in our capacity as potential wrongdoers, not as potential victims. As potential wrongdoers, we have a duty to refrain from encroaching on the property of others only because we are assured that all other potential wrongdoers are equally constrained. This is not at all the same thing as assuring us, in our capacity as potential victims, that our resources will subsequently be restored to us if we are wronged. Civil remedies have an important legal function: they preserve private rights over time by creating legal powers and liabilities for parties to a rights violation that has already occurred. But such remedies have neither the purpose nor the effect of supplying the kind of equal assurance that creates new legal duties.

Ripstein later rightly concludes that threatened criminal punishments supply the critical form of assurance, and when he describes them as “systematic,” he identifies one of the key features that enable punishments to serve this function. ^{Footnote 57} However, when Ripstein suggests that these threats merely “compete with the criminal’s other incentives,” he gives the impression that it is the discomfort or inconvenience occasioned by criminal penalties that constitutes the necessary equal assurance. ^{Footnote 58} If that is indeed what Ripstein means, it would be a problem for his account, because it is the assurance, and not the punishment itself, that must be “equal” if any new legal duties are to be created. Any theory of assurance that relies only on those features of punishment that might be outweighed by other considerations cannot explain how such assurance can be equal, because no incentive that depends on personal preferences for its effectiveness can motivate all individuals to obey, even if it is systematically provided.Footnote ⁵⁹

By contrast, I will aim to show that the state can provide equal assurance by threatening to impose criminal punishments that deprive us of our bodily independence, because bodily independence is an element of our innate freedom. ^{Footnote 60} Recall from Part I that a civil condition is a system of equal freedom under law, and freedom is independence from being subject to the choices of others. Such a system cannot function over time unless it distinguishes between objects of choice—things that are external to us and can therefore be freely acquired and discarded—and the bodily sovereignty that enables individuals to acquire external rights in the first place. Individuals can rationally give up property, contract, or status rights without compromising their innate freedom, but the duty of rightful honor disables any person from legally choosing to surrender bodily independence, since that would ipso facto make that person a mere means for others.Footnote ⁶¹

The inalienability of our innate freedom justifies many existing legal doctrines according to which individuals are legally disabled from consenting to certain kinds of treatment, such as destructive physical violence. ^{Footnote 62} In contract law, terms that purport to limit one party’s future bodily independence, such as those for slavery or indentured servitude, are legal nullities because they are inconsistent with our innate freedom. ^{Footnote 63} Courts decline to order specific performance of more conventional employment contracts for the same reason.Footnote ⁶⁴ The state cannot empower individuals to legally alienate their innate freedom, because the state’s authority is justified in the first place as the sole means by which individuals can secure their innate freedom.

But although our innate freedom is inalienable, our legal right to it—which Kant refers to as our “dignity [as] a citizen”—is not absolute.Footnote ⁶⁵ We can never throw away our innate freedom by signing a contract, but we will be stripped of it, at least temporarily, if we commit a crime.Footnote ⁶⁶ Convicts are transformed into “mere tool[s] of another’s choice” by punishments that are inconsistent with bodily independence.Footnote ⁶⁷ When Kant writes that “it is impossible to will to be punished,” he means that a criminal punishment is by definition the kind of treatment to which an individual could not consent because it is inconsistent with innate freedom.Footnote ⁶⁸ Ripstein aptly describes punishment as “exclusion from the system of freedom,” but he never identifies the key role that this insight must play in a successful account of equal assurance.Footnote ⁶⁹

Our duty of rightful honor obligates us to preserve our innate freedom at the cost of any personal preference or private purpose that we may have. ^{Footnote 70} We are therefore each morally obligated to avoid a punishment that is inconsistent with our external freedom if, by obeying the law, we can continue to see ourselves as free under laws that we have given to ourselves. Because people are often irrational, no law can empirically guarantee universal obedience. But for assurance to be ‘equal’ in any sense at all, lawmakers must at least give everyone a dispositive reason to obey—a reason that does not depend on our contingent personal preferences or purposes.

Criminal punishments can accomplish this goal, because rational agents who are presented with the alternatives of freedom, on one hand, and the loss of freedom, on the other, have a duty to preserve their freedom. My proposed standard for legal obligation is therefore as follows:

When this standard is met, individuals have a duty to obey the legislative command even when the chances of arrest and prosecution are small, because lawbreakers surrender their right to be “beyond reproach,” meaning that their innate freedom is no longer legally protected. ^{Footnote 72}

This proposed interpretation can make sense of Kant’s claim that “[t]he law of punishment is a categorical imperative”—in other words, that state officials are legally obligated to deprive criminals of some aspect of their innate freedom.Footnote ⁷³ Why did Kant think that state officials have a duty, rather than just a Hohfeldian power, to punish crime? I believe the correct answer has two parts: 1) the state must have previously specified a punishment of this type in order to supply the equal assurance necessary to create the very legal duty that the criminal knowingly transgressed; and 2) because our innate equality requires punishments to be systematically imposed, the same law that obligates citizens to obey ipso facto obligates state officials to punish those who disobey.Footnote ⁷⁴

If we want to know whether a statute has created a legal duty, on this view, we must initially determine whether its prescribed penalty is a consequence that we could rationally choose, “for it is no punishment if what is done to someone is something he wills.” ^{Footnote 75} Some criminal punishments that meet this standard, such as the death penalty and lengthy incarceration, are very harmful to those on whom they are imposed, but less harmful punishments exist that are inconsistent with our bodily independence. Punishments such as house arrest, curfews, community service work, and/or mandatory in-person instruction are more appropriate punishments for less serious forms of criminal wrongdoing. ^{Footnote 76} As legally specified responses to violations of the terms of statutes, all of these punishments are adequate to create legal duties, because they all conflict with our bodily independence and therefore with our innate freedom.Footnote ⁷⁷ As Ripstein has correctly observed, “Kant cannot accept the idea that the criminal law is a series of [contractual] offers, because these are not offers that anyone could rightfully make.” ^{Footnote 78}

To some readers, my proposed standard for legal obligation may appear objectionably Hobbesian. What about the distinctively Kantian ethical obligation to obey the law out of respect for law as such?Footnote ⁷⁹ We indeed have such an ethical obligation, and it is therefore not maximally virtuous to obey the law merely to preserve our own individual external freedom—even though preserving our freedom is itself an end that we are morally obligated to uphold.Footnote ⁸⁰ But we can obey a legislative enactment out of respect for law as such only if that enactment qualifies as a law in the first place.

Recall that a law is by definition a categorical imperative: a command that unconditionally binds an agent.Footnote ⁸¹ This is true whether the law in question happens to be ethical or juridical in nature. Kantian ‘respect’ is, by definition, our subjective response when we apprehend a law, and it can move us to obey the law on ethical grounds alone. ^{Footnote 82} We can therefore only respond with respect to something that already is a law. Any attempt to elevate a mere hypothetical imperative, such as a desire to avoid the pain and inconvenience of prison, into categorical status by means of the very respect that definitionally constitutes our response to a categorical imperative is akin to pulling oneself up by one’s shoelaces.Footnote ⁸³ Only if we are each morally—and thus equally—obligated to obey a legislative command in order to preserve our own individual freedom can we be universally legally obligated to obey it as a new juridical law.Footnote ⁸⁴ Once a new law has been successfully created in this way, we each have an ethical duty to obey it out of respect for law as such.

My proposed standard for legal obligation is not inconsistent with the exclusivity of the state’s legislative authority. Only the state can create new duties by threatening to punish disobedience, because its exclusive possession of the legislative authority is what enables us to see ourselves as free under laws that we give to ourselves. This freedom under laws is what we are rationally required to preserve through our obedience. By contrast, if a burglar threatens to lock me in a closet until I open my safe for them, there is no alternative open to me that will allow me to regard myself as free. The burglar is simply threatening to violate my independence in two qualitatively different ways, and a Hobson’s choice of this sort cannot create a duty to obey them.

We each have a duty to obey exercises of the legislative authority, but the legislative authority is the authority to enact laws—categorical imperatives—one at a time. It is not some generalised authority to bind us with words alone. If the legislative authority could bind us with words alone, then an ‘external incentive’ might be a useful or prudent tool for motivating citizens to obey, but it is hard to see why it would be an essential prerequisite to legal obligation, as Kant explicitly insists that it is.Footnote ⁸⁵ The foregoing argument resolves this textual mystery by explaining exactly how punishments can create new legal duties. It also helpfully clarifies what kind of response to wrongdoing is adequate to serve this function: one that is inconsistent with our innate freedom.Footnote ⁸⁶ Most importantly, it ensures meaningful equality under law, which our duty of rightful honor demands.

III. A Standard for Criminal Wrongdoing

From a Kantian perspective, the distinction between civil and criminal wrongdoing arises from the fact that every external ^{Footnote 87} action has a dual nature: a physical manifestation (the ‘act’) and its conjoined principle of action (the ‘maxim’). ^{Footnote 88} Arthur Ripstein has shown that an action is civilly wrong in virtue of a property of its act: the physical incompatibility of one person’s conduct with the freedom of others. ^{Footnote 89} Some agents who commit civil wrongs act on unobjectionable maxims, in which case those wrongs are “mere faults” that should not give rise to criminal liability. ^{Footnote 90} Civil wrongs legally entitle wronged parties to remedies that restore their acquired rights to them insofar as that is possible.

By contrast, a crime is a knowing transgression of a duty. ^{Footnote 91} Because knowledge of an act’s wrongful nature is what makes it criminal, an action can be considered criminally wrong only on the basis of a property of its maxim, the principle of action that an individual adopts when choosing to undertake it. ^{Footnote 92} The criminal law targets maxims because its purpose is to provide equal assurance by constraining our conduct prospectively. ^{Footnote 93} In order to function as a deterrent, it must prohibit conduct that individuals can identify in advance by evaluating the maxim on which they are contemplating acting. ^{Footnote 94}

Arthur Ripstein aptly describes a criminal act as one by which “the criminal seeks to exempt himself from the law” by violating the same binding rules of conduct that the criminal is rationally required to endorse for others.Footnote ⁹⁵ This characterisation of criminal wrongdoing is both straightforward and accurate, but it can be tricky to apply in complex cases. In this section, I will propose a standard for criminal wrongdoing that encapsulates the notion of self-exemption and can be operationalized to evaluate test cases. I initially arrived at this standard by means of a close textual analysis of Kant’s keystone legal principle: the Universal Principle of Right.Footnote ⁹⁶ But as a potential action-guiding standard, it is worth endorsing only if it can successfully identify conduct that is justly punishable:

This standard asks whether two hypothetical states of affairs could coexist: 1) the legality of actions on A’s maxim, and 2) everyone’s freedom in a civil condition. ^{Footnote 98} In other words: Could everyone possibly be free in a civil condition if actions on A’s maxim were legal? If the answer is “no,” then individuals who act on the maxim of A are seeking to exempt themselves from the necessary preconditions of equal freedom that they are rationally required to endorse for others. Any action on A’s maxim is for this reason criminally wrong.

Some readers may wonder why this standard compares the legality of actions on certain maxims, rather than the maxims themselves, to the concept of everyone’s freedom in a civil condition. This question has three answers, one textual, and two philosophical. As an interpretation of the second prong of Kant’s Universal Principle of Right, this standard accounts for Kant’s stipulation that an action is right (meaning that it is not contrary to any legal duty) if “under its maxim the freedom of choice of each can coexist with everyone’s freedom” in a civil condition.Footnote ⁹⁹ In the context of an existing legal system, to say that an action is ‘legal’ just means that everyone is free to choose it. Philosophically, sticking closely to Kant’s language turns out to be important for two reasons. First, it is metaphysically impossible for a maxim itself to be inconsistent with the external freedom of others. Freedom, understood as physical independence, can never be violated by an abstract principle. But, secondly, we cannot overcome this objection by assuming that an individual’s external conduct will necessarily track the subjective principle on which they are acting in order to evaluate that package as a whole. Maxims can include mistakes about the world, or can describe conduct that an agent tries, but fails, to undertake.

Suppose, for example, that an Envious Job Seeker acts on the maxim: “I will remove the sparkplugs from my more qualified neighbor’s car in the dark of night, so that my neighbor cannot drive to the job interview tomorrow.”Footnote ¹⁰⁰ Suppose also that the Envious Job Seeker is disoriented in the dark and therefore mistakenly removes the sparkplugs from the envious jobseeker’s own, very similar car instead. The Envious Job Seeker’s external conduct can coexist with everyone’s freedom—nothing that belongs to anyone else has been touched—and so can the Envious Job Seeker’s maxim, since the maxim itself is just an abstract principle. However, the legality of actions on the Envious Job Seeker’s maxim could not coexist with everyone’s freedom in a civil condition: if theft were legal, no one would be capable of acquiring property rights. My proposed standard for criminal wrongdoing can therefore accurately identify attempted crimes as crimes themselves: actions by which wrongdoers seek to exempt themselves from the same legal duties that they are rationally required to endorse for others.

To apply this standard to cases, one must first formulate appropriate maxims. The criminal law punishes only actions involving external conduct (although its criminality will depend on an agent’s mental state), so the maxims relevant to this inquiry are “very specific first-order principle[s] of volition and consequently action” ^{Footnote 101} with the following structure:

The ends specified in these maxims are what criminal law doctrines refer to as ‘motives’: desired states of affairs that move an agent to act. ^{Footnote 103} Unlike intentions—results that an agent undertakes to cause in the doctrinal sense ^{Footnote 104} —motives as such have no impact on the legal status of an action. ^{Footnote 105} Consider the example of a potential organ donor who refuses to donate a kidney to a nephew because the potential doner actively dislikes the nephew and wishes him dead. This is an evil motive for refusing, but a mere motive, even if it is the death of another, cannot transform a choice into a crime, any more than the possession of an admirable motive can transform a crime into a legal action. ^{Footnote 106}

Whether or not an action is criminally wrong will instead depend on the agent’s intended physical conduct and any results the agent intends to bring about as well as certain relevant circumstances. For example, it is not criminally wrong for an assault victim to coercively defend against an attacker, because the attack is a circumstance that justifies defensive coercion. ^{Footnote 107} This is true even if the assault victim is privately motivated by a desire to harm the attacker, so long as the victim’s use of force objectively amounts to a proportionate defense. ^{Footnote 108} To distinguish intentions from motives, intended results that are imputable to an agent by causation doctrines must be incorporated into a maxim’s description of the agent’s act. For example, both surgeons and murderers cut people with knives, but the surgeon’s intended act can be accurately described as ‘operating’, while the murderer’s intended act should be described as ‘killing’. These examples show that a person who formulates maxims for analysis must do so in light of the content of the law, because maxims would be hopelessly complex if they included every detail of an agent’s subjectively intended conduct and known circumstances. Only by consulting legal standards is it possible to generate succinct maxims by selecting the legally relevant features of an action. ^{Footnote 109}

After a maxim is formulated, it must be converted into a ‘Legality Proposition’, because my proposed standard for criminal wrongdoing compares the legality of actions on an agent’s maxim, rather than the maxim itself, to the concept of everyone’s freedom in a civil condition. Legality Propositions omit the ends specified in maxims, since these private motives are legally irrelevant (recall that results the agent intends to legally cause are folded into the act definition) and they also abstract from the specific identities of individuals referenced in maxims. Legality Propositions therefore take the following form:

In the context of a Legality Proposition, the claim that an action is ‘legal’ is a claim that it does not violate any legal duties, including our natural law duty not to violate others’ innate right of freedom. Once formulated, a Legality Proposition must be compared to the concept of everyone’s freedom in a civil condition. ^{Footnote 110} A conflict between these two ideas shows that these states of affairs could not simultaneously obtain in the world and therefore indicates that actions on the underlying maxim are criminally wrong.

For example, consider a Malicious Assailant who acts on the maxim: “I will hit my neighbor’s child, who is playing on the sidewalk, with a rock in order to amuse myself.” After eliminating the legally irrelevant motive, one can derive this corresponding Legality Proposition:

This proposition conflicts with the concept of everyone’s freedom in a civil condition because that concept includes the innate right of freedom, which puts us all under a legal duty not to physically coerce others who are not themselves violating the rights of others. The Malicious Assailant’s action is therefore criminally wrong, and the assailant can be justly punished if the relevant legal jurisdiction imposes a criminal penalty for battery. ^{Footnote 111}

Next, consider the case of a Regulatory Scofflaw, who knowingly violates the terms of a malum prohibitum penal statute. ^{Footnote 112} The Scofflaw might adopt the following maxim: “I will open a restaurant when I have not obtained a licence and doing so will contravene a penal statute in order to make money.” This maxim yields the following Legality Proposition:

Comparing this proposition to the concept of everyone’s freedom in a civil condition reveals no necessary conflict with any individual right, because restaurant licensure is just one possible strategy a state might adopt to minimise the risk of food poisoning. ^{Footnote 114} However, a conflict appears when we focus on the concept of the legislative authority, which is part of the larger idea of a civil condition. The legislative authority includes the capacity to enact positive laws, including penal laws, on the basis of lawmakers’ empirical judgments about how to best secure conditions of equal freedom. ^{Footnote 115}

If it is logically possible that a malum prohibitum penal statute serves the state’s purpose of securing everyone’s freedom in a civil condition, then individuals must regard it as a product of the omnilateral will even if they personally consider it misguided. ^{Footnote 116} In this example, it is logically possible that a restaurant licensing law prevents restauranteurs from wrongfully endangering their patrons’ health. As we saw in Part II, illegality is necessarily the effect of a penal statute so long as agents who obey it can continue to regard themselves as free under laws. The Regulatory Scofflaw’s Legality Proposition therefore conflicts with the possibility of everyone’s freedom in a civil condition because it is inconsistent with the nature of the legislative authority, and the Scofflaw can be justly punished under an applicable law so long as the punishment prescribed is proportionate to the gravity of the offence.Footnote ¹¹⁷

IV. Application to Necessity Cases

Part II of this article argued that lawmakers can create new legal duties for us only by providing us with a dispositive reason to obey: one that does not depend on our personal preferences or purposes. The resulting standard for legal obligation can operate in combination with the standard for criminal wrongdoing from Part III to make sense of Kant’s famous analysis of a shipwrecked sailor who commits a murder in circumstances of necessity. More importantly, these twin standards underpin an appealing new analysis of a more controversial class of necessity cases involving alleged violations of property rights.

The argument that follows depends on an important distinction between an unconditional duty and a duty that applies in all circumstances. In Kantian terms, all duties created by statutes are “unconditional” in a specific sense: they apply to all individuals regardless of their personal preferences or purposes.Footnote ¹¹⁸ An unconditional duty may or may not apply to individuals in all circumstances, however. Sometimes, the same statute that creates a new legal duty specifies circumstances under which it does not apply. For example, U.S. law requires all individuals to file federal income tax returns every year, unless they have an annual gross income below the exemption amount, or unless they are in one of several other sets of circumstances stipulated by law.Footnote ¹¹⁹ The fact that individuals have different duties under tax law owing to their different circumstances is not inconsistent with our innate equality under law, because our external circumstances are not personal attributes. When legal duties apply only to those in certain external circumstances, we can—at least potentially—claim that the law applies equally ‘to all those similarly situated’ and can therefore bind them unconditionally.

I will aim to show that necessity cases are best understood as a class of cases in which individuals’ external circumstances are such that penal statutes fail to present individuals with the usual alternative between freedom under laws and the loss of freedom. Because no statute can provide the equal assurance necessary to create a legal duty to obey a legislative command in circumstances of necessity, duties created by statutes do not extend to those circumstances. If necessity is properly understood as a circumstance-defined limitation on the scope of duties created by legislation, it is fully consistent with the law’s essential impartiality, because it takes no account of individuals’ preferences or purposes, or of any other personal attribute.

In Kant’s most famous criminal law example, a Drowning Sailor bent on self-preservation kills a non-threatening victim by pushing that victim off a floating plank.Footnote ¹²⁰ The Drowning Sailor’s maxim might be formulated as follows: “I will kill a non-threatening person when doing so is my only chance of survival in order to live.” The associated Legality Proposition is:

This proposition, like that of the Malicious Assailant, conflicts with the victim’s innate right of freedom. In Kant’s words, the doctrine of right would “be in contradiction with itself” if our innate right had no correlative legal duty. ^{Footnote 121} We therefore always have a natural law duty not to physically coerce non-threatening others, whether or not this conduct has been forbidden by statute. The Drowning Sailor’s natural law duty should have inspired respect for law, and that respect could have moved the Drowning Sailor to refrain from murdering the victim, even at the cost of life itself. Because the Drowning Sailor chose instead to violate the victim’s innate right, the Drowning Sailor is guilty of criminal wrongdoing.

Kant nonetheless concludes that no penal statute can empower the state to punish the Drowning Sailor, because “a penal law of this type could not have the effect intended.” ^{Footnote 122} If the argument of Part II is correct, then the “effect intended” by a penal statute is the creation of a legal duty to obey a legislative command, and lawmakers can only accomplish this by supplying equal assurance: an external incentive that creates a dispositive reason to obey. In most circumstances, lawmakers can supply equal assurance by threatening a punishment that is inconsistent with our innate freedom, which our duty of rightful honor obligates us to preserve at the cost of any amount of discomfort or heartbreak that our obedience might entail.

In the Drowning Sailor’s circumstances, however, a threatened criminal penalty cannot set up an alternative between freedom under laws, on one hand, and the loss of freedom on the other. Instead, the relevant legislation in Kant’s era would (if applicable to the sailor’s case) have presented individuals with a different set of alternatives: death by drowning, on one hand, and the death penalty, on the other. The death penalty is the most complete deprivation of freedom that an individual can suffer at the hands of the state. The question, then, is whether the sailor’s alternative, death by drowning, is one that they are rationally required to prefer. Kant himself answers this question in the negative, but why would that be the case?

I think the answer lies in the fact that the freedom that we can usually preserve by avoiding a threatened criminal punishment is specifically our external freedom: our physical independence. The Drowning Sailor would have no remaining physical independence after drowning at sea, and likewise no remaining physical independence after being put to death by the state. The Drowning Sailor’s good moral character should be worth more to them than life itself. But no external incentive of the type that the state can provide can generate a dispositive reason for them to obey a statutory command against murder, because with respect to external freedom, the outcome is identical under the alternatives that such a statute could generate.

A general penal law against murder therefore does not apply to murders committed in circumstances of necessity, whether this limitation is reflected in the language of the statute or not. Because the statute does not apply in such cases, it cannot empower the state to punish the Drowning Sailor. Such a circumstance-defined limitation on a statute’s scope of application does not undermine the essential impartiality of the penal law: it applies equally to all similarly situated individuals regardless of their preferences or purposes. Indeed, a suicidal sociopath, who pushed the victim off the plank out of curiosity, would likewise be unpunishable so long as the sociopath understood the external circumstances to be such that the sociopath’s only alternative was certain death.

Next, consider a more controversial case of necessity that arises in the context of an acquired property right. Arthur Ripstein describes a hiker who breaks into an unoccupied cabin in the woods to escape a sudden storm in which the hiker would otherwise perish. As a threshold matter, Ripstein claims without analysis that the “hiker commits a wrong against the owner of the cabin: he uses another person’s property without his consent.”Footnote ¹²³ Ripstein then considers the “harder question” of whether the hiker’s conduct is a crime in the Kantian sense of being a knowing wrong.Footnote ¹²⁴ He correctly explains that Kant’s unconditional moral concepts preclude us from characterising the hiker’s conduct as an example of justified coercion. ^{Footnote 125} It would be incoherent to claim that the hiker has a ‘right to life’ that overrides (or outweighs) the cabin owner’s property right, because Kantian rights are “rights to independence, not [rights] to existence,” and our reciprocal rights and duties are by definition incapable of coming into conflict. ^{Footnote 126} To say that someone has a legal right is just to say that others have an unconditional duty not to violate it. Coercion is only justified (that is, consistent with rights) insofar as it “hinder[s] … a hindrance to freedom,” and in this case the cabin owner is doing nothing to impair the freedom of the hiker. ^{Footnote 127} On the basis of these arguments, Ripstein concludes that the hiker is, like the Drowning Sailor, a criminal wrongdoer who escapes punishment only because the relevant penal statute could not guide the hiker’s conduct prospectively. ^{Footnote 128} In other words, Ripstein concludes that the hiker has a legal excuse for his crime. Unlike a justification, which “changes legal relationships between persons,” he explains, “an excuse is personal to the person excused and cannot change the rights of others.”Footnote ¹²⁹

Although superficially plausible, Ripstein’s conclusion has an unsettling implication: that a freezing hiker has a moral obligation to die rather than take shelter in someone else’s cabin. This implication arises because our legal duties are moral duties: categorical imperatives, just like the ethical ones. ^{Footnote 130} Results like this one are worth reconsidering. They make the most attractive feature of Kant’s moral philosophy—its unity—look like a defect instead. I will aim to show that Ripstein reaches the wrong conclusion because he starts with a faulty premise. Ripstein is mistaken to assume without analysis that the Freezing Hiker’s use of the cabin violated the cabin owner’s property right, and this mistake ensnares him in a false dichotomy of justification or excuse. If the hiker’s conduct does not violate the cabin owner’s property right in the first place, then the hiker requires neither a justification nor an excuse.

A Freezing Hiker might act on the maxim: “I will break into a cabin when I lack permission from the owner, when doing so is my only chance of survival, and when doing so contravenes the terms of a penal statute in order to live.” After removing the legally irrelevant motive, the associated Legality Proposition is:

No threatened punishment can generate a dispositive reason to obey a penal statute in the Freezing Hiker’s circumstances, because no punishment will leave the hiker with less physical independence than they will have after death. But this case differs from that of the Drowning Sailor in that the Freezing Hiker’s conduct does not violate anyone’s innate right. The question, then, is whether the cabin owner’s property right—which is established by positive law—can be violated by specific uses that fall within a class of uses against which lawmakers can provide us with no equal assurance.

Recall that we each have an innate right to be free from bodily coercion if we do not wrong others. In a state of nature, we are therefore at liberty, in the Hohfeldian sense, to engage in any action that does not violate the bodily independence of any other person. In a civil condition, the state can reduce this domain of pre-existing liberty in accordance with a set of neutral laws that enable the acquisition and transfer of property rights. But as I have argued in Part II, our innate equality makes it the case that lawmakers can only put us under new legal duties by supplying equal assurance in the form of a dispositive reason to obey.

An important implication of the foundational status of innate right is that, in any dispute about the extent of a property right, the burden of proof belongs to the party asserting it:

Applying this approach to the present case yields the conclusion that the cabin owner’s property right has not been violated. Because all legal rights are strictly correlative to legal duties, a legal system of property rights cannot eliminate those pre-existing liberties that fall outside the scope of the equal assurance that underwrites the duties created by that system.

Ripstein erred by conceptualizing necessity as a subsequent carve-out in pre-existing legal right. Necessity is more accurately understood as a domain of residual liberty that is shielded by our innate right to bodily independence. This residual domain of liberty has never been, and cannot be, eliminated by positive law, because lawmakers are incapable of supplying the equal assurance necessary to create new duties in circumstances of necessity. If this is correct, then property rights simply do not include the right to exclude uses by others in circumstances of necessity, the Freezing Hiker’s Legality Proposition does not conflict with the concept of everyone’s freedom in a civil condition, and the Hiker’s conduct is not criminally wrong.Footnote ¹³²

This intuitively sound conclusion is not inconsistent with any fundamental feature of property rights. The purpose of a system of property rights is to enable the rightful pursuit of projects by equally constraining our conduct in accordance with a set of uniform rules. It is important that these rules be neutral in the sense that they do not take any account of the “matter of choice”—the preferences or purposes of individuals—and that they can be applied by an independent judge to definitively resolve any property-related dispute. Understood as a circumstance-defined limitation on the possible extent of property rights, necessity constitutes an equal and reciprocal domain of residual liberty, and disputes about whether some particular action falls within that domain can be readily adjudicated by a neutral judge without reference to individual preferences or purposes. Suppose, for example, that the Freezing Hiker was suicidal, entered the cabin only to look at the pictures on the walls, and survived due to accidentally falling asleep there until the storm had passed. If the hiker understood the circumstances to be such that entering the cabin was necessary to survival, then doing so would fall within the ambit of our equal and reciprocal domain of residual liberty regardless of the hiker’s private purposes.

Perhaps some property owners could rightfully pursue an even wider range of possible projects if the boundaries of their property interests were defined solely in spatial terms, but the above argument indicates that this is not a result that lawmakers could bring about, even if they tried. Moreover, it is implausible that the limits of property interests must be defined exclusively by metes and bounds. ^{Footnote 133} In practice, these acquired rights often have temporal or circumstantial boundaries as well as spatial ones. For example, the owner of a fee simple timeshare interest in a condo has a right to exclude co-owners from the condo, but only at certain times each year.Footnote ¹³⁴ The owner of a farm that is subject to an easement entitling the neighbors to traverse it to reach the local church cannot rightfully pursue projects that conflict with that use, regardless of what the neighbors’ private purposes are for going to church. We do not usually think that non-spatial boundaries render property rights chimerical.

While it is true that property owners may not know the exact limits of their rights in advance of a legal judgment following a use for which necessity is claimed, such uncertainty is common in other property law contexts. For example, there may be doubt about the presence or absence of an easement until a judge has made an authoritative determination. In Kantian terms, a judge who determines that an easement exists has not concluded that one person’s right overrides (or outweighs) that of another. Rather, the judge has concluded that the parcel owner’s independence does not extend to uses that conflict with the easement holder’s right. An easement holder who legally traverses a servient tenement is not engaged in justified coercion. Rather, this action is not coercive and therefore requires no justification.

If necessity is best understood as a residual domain of innate liberty rather than as a right in the Hohfeldian sense, a legal conclusion that the Freezing Hiker is innocent of wrongdoing would not, pace Ripstein, entail a correlative duty to rescue others in dire straits.Footnote ¹³⁵ As a legal matter, a cabin owner who is at home in a locked cabin when the Freezing Hiker arrives at the door is at liberty to ignore the hiker’s pleas for assistance. Should the hiker break into the occupied cabin in this revised hypothetical, the cabin owner will be entitled to respond coercively only if threatened with bodily harm by the hiker. While this might prove to be a factually complex legal case, it is imminently capable of authoritative judicial resolution by means of the application of neutral legal standards that impose no affirmative legal duties on the owner of the cabin in question.