Kant on Acting from Juridical Duty

ABSTRACT

A much debated passage in the Metaphysics of Morals often leads commentators to believe that it is not possible to act from juridical duty. On the one hand, Kant says that all lawgiving includes an incentive ‘which connects a ground to determining choice to this action subjectively with the representation of the law’ (MM: 218). On the other hand, he claims that juridical lawgiving ‘does not include the incentive of duty in the law’ (MM: 219). The first claim seems to entail that agents can perform a juridical duty for the sake of that duty; the second seems to entail that agents cannot perform a juridical duty for the sake of that duty. This paper shows that it is possible to reconcile both passages and to claim that one can act from juridical duty in Kant’s terms. First, it gives an account of what can be called the paradox of juridical duties. Second, it discusses briefly how responses to the paradox remain somewhat unsatisfactory. Finally, it clarifies how agents can act with no other incentive but the actual juridical duty without endangering the Kantian morality-law divide.

KEYWORDS:

• Kant
• juridical duty
• paradox of juridical imperatives
• acting from duty
• Metaphysics of Morals

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. Willaschek (2000) calls this apparent contradiction ‘the paradox of juridical imperatives’: in order to respond to juridical law as law, I must act from the incentive of duty; but in order to respond to law as juridical I cannot act from the incentive of duty; thus, in order to respond to a juridical law as such, it seems that it both does and does not require that I act from the incentive of duty. In order to be more faithful to Kant’s terminology in the Metaphysics of Morals, though, I call it throughout ‘the paradox of juridical duties’.

2. ‘The concept of duty, therefore, requires of the action objective accord with the law but requires of the maxim of the action subjective respect for the law, as the sole way of determining the will by the law. And on this rests the distinction between consciousness of having acted in conformity with duty [pflichtmässig] and from duty [aus Pflicht], that is, respect for the law; the first of which (legality) is possible even if the inclinations alone have been the determining grounds of the will whereas the second (morality), moral worth, must be placed solely in this: that the action takes place from duty, that is, for the sake of the law alone.’ (CPrR 5, 81) The emphasis on the difference between outer conformity with the law and acting out of respect for the law is consonant with the principles of the philosophia practica universalis set out as early as in Pufendorf: see De officio I.2.13 (Pufendorf 1997, 20–1).

3. ‘The mere conformity or nonconformity of an action with law, irrespective of the incentive to it, is called its legality (lawfulness) [Legalität (Gesetzmäβigkeit)]; but that conformity in which the idea of duty arising from the law is also the incentive to the action is called its morality [Moralität].’ (MM 6, 219).

4. For further developments of what this relation entails, see Hill 1971, 65); and Kersting (2004, 221).

5. Laurence’s (2015) use of terminology follows the introduction to the Metaphysics of Morals very closely. He says that the distinction between objective and subjective elements in lawgiving refers to moral duties, broadly speaking, whereas the second distinction between kinds of incentive refers to juridical and ethical duties. His discussion of whether juridical duties are part of moral duties is not about whether juridical and ethical duties are similar, but about whether the juridical duties cohere with (and can be derived from) the moral duties presented in the first distinction. However, I prefer not to follow this option due to Kant’s terminology in the Critique of Practical Reason, for instance, where morality is used as synonymous with the notion of ethical duties provided in MM 6, 219. In addition, Kant does not actually say that the distinction between objective and subjective elements applies to moral duties, but rather to ‘all lawgiving’ (aller Gesetzgebung).

6. I adopt the notion of provisional law developed by Ellis (2005, 112–153), even though she uses it somewhat differently, in reference to the possibility of having to adopt a juridical status.

7. The classic example of such competition depicts the band of robbers and the state coercive order vis-à-vis the same individual (Augustine 1998, 147–8). When someone commands you to hand her over your money, how are you to distinguish between the robber and the tax collector? Both seem to act lawfully when considered in the light of the coercive system they serve. But which acts not only lawfully but also ‘juridically’?

8. I derive the distinction between primary and secondary incentives in the context of Kant’s notion of ‘acting from duty’ from Barbara Herman (1981) and Marcia Baron (1995, 117–187). The criticism developed by Latham (1994, 2007) that we cannot make sense of the position that an agent can hold multiple motives for action and yet be motivated by only one of them does not apply to my proposal because primary and secondary motives are neither competing nor mutually excluding, but rather complementary.

9. This solution is very similar to how Stratton-Lake (2000) conceives of acting from duty in the Kantian context. However, there are obvious differences because juridical duties are different from ethical duties. First, for Stratton-Lake, the secondary motive in ethical duties, the commitment to morality, is unconditional; whereas in my proposal the secondary motive in juridical duties is conditional on the transition from provisional to peremptory law. Second, for Stratton-Lake, the primary motive in moral actions has to be the same as the direct normative reason why the action ought to be done. If one ought to X because one promised, then one’s primary motive will be because one promised. In my proposal for juridical duties, however, the primary motive is independent of the direct normative reason why the act ought to be done in the first place. If one ought to X because that is what the legal system establishes, one’s primary motive can have any content whatsoever (including the fact that the legal system establishes it, albeit then only contingently).

Additional information

Funding

This work was supported by Fundação para a Ciência e a Tecnologia (Portugal), Grant/Award Number: IF/01587/2015 Fundação para a Ciência e a Tecnologia [IF/01587/2015].