FORCE AND FREEDOM

FORCE AND FREEDOM

Arthur Ripstein
Copyright Date: 2009
Published by: Harvard University Press
Pages: 416
https://www.jstor.org/stable/j.ctt13x0hb0
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  • Book Info
    FORCE AND FREEDOM
    Book Description:

    In this masterful work, both an illumination of Kant's thought and an important contribution to contemporary legal and political theory, Arthur Ripstein gives a comprehensive yet accessible account of Kant's political philosophy. In addition to providing a clear and coherent statement of the most misunderstood of Kant's ideas, Ripstein also shows that Kant's views remain conceptually powerful and morally appealing today.

    eISBN: 978-0-674-05451-6
    Subjects: Philosophy, Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xvi)
  4. CHAPTER 1 Kant on Law and Justice: An Overview
    (pp. 1-29)

    Political philosophy is often thought of as an application of general moral principles to the factual circumstances that make political institutions necessary. For example, John Stuart Mill seeks to justify liberal institutions by showing that they will produce the best overall consequences, given familiar facts about human nature and circumstances; for John Locke, institutions can only be justified by showing that they are the results of individuals exercising their natural prepolitical rights in response to the “inconvenience” of a state of nature.

    Kant might be expected to adopt a parallel strategy, applying the Categorical Imperative to questions of political legitimacy,...

  5. CHAPTER 2 The Innate Right of Humanity
    (pp. 30-56)

    The universal principle of right states that “an action is right if it can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with universal law.”¹ An action is wrong if it hinders an action or “condition” that is itself rightful, that is, one that can coexist with everyone’s freedom.

    Kant also identifies a right as a “title to coerce.” He goes on to argue that it follows from this, by “the principle of contradiction,” that any act that hinders another...

  6. CHAPTER 3 Private Right I: Acquired Rights
    (pp. 57-85)

    As a principle limiting the actions of separate persons, the Universal Principle of Right is silent on rights with regard to external objects of choice, that is, those thingsotherthan your own person that you can use in setting and pursuing your own purposes. Your right to your own person does not depend on any further rights you might have, whether to property, or to affirmative deeds, or to loyalty¹ on the part of others. Others would need to restrict their conduct in light of your right to independence even if no other things could be used to set...

  7. CHAPTER 4 Private Right II: Property
    (pp. 86-106)

    The theory of property is often thought to be a topic only of interest to libertarians or lawyers. Most recent political philosophy conceives of property as a sort of power the state confers on private persons as part of a broader distributive agenda, a sort of public law carried out by other means. Lockean theories of property stand in sharp contrast, seeking to ground property rights in the distinctive act of original acquisition.

    Kant rejects both of these approaches. Against the “public law in disguise” model of property rights, Kant shows how it is a structure of rightful relations between...

  8. CHAPTER 5 Private Right III: Contract and Consent
    (pp. 107-144)

    The second title of Private Right is contract. Contracts are essential to the operation of any legal system, because they are the legal means through which persons are entitled to make arrangements for themselves, and so to change their respective rights and duties. Kant’s analysis of contract focuses on the way in which it enables separate persons to set and pursue their own purposes interdependently. The most familiar legal examples of contracts involve two persons making mutual undertakings for future performances: I agree to cut your lawn next Wednesday, and in return you agree to pay me. Kant introduces what...

  9. CHAPTER 6 Three Defects in the State of Nature
    (pp. 145-181)

    States claim powers that no private person could have. Not only can they collect taxes and imprison wrongdoers; they can impose binding resolutions on private disputes, restrict agents on grounds of public health, and regulate other aspects of social life. Defenders of limited government insist that the state’s power to do these things must be subject to fundamental restrictions. Prior to any question of what factors properlylimitthe exercise of those powers, however, is the more basic question of the justification of the powers themselves: how can an institution, whose offices are filled with ordinary fallible human beings, be...

  10. CHAPTER 7 Public Right I: Giving Laws to Ourselves
    (pp. 182-231)

    Kant’s characterization of the three defects in the state of nature provides an account of why, in the absence of a “united and lawgiving will,” conclusive private rights are impossible, and even the innate right of humanity in your own person is insecure. The arguments also show that a fully rightful condition must contain a separation of powers between legislative, executive, and judicial branches, because the resolution of disputes and the enforcement of rights must be done in accordance with prior law. Kant characterizes the need for a rightful condition as the “postulate of public right.” Like the other postulates...

  11. CHAPTER 8 Public Right II: Roads to Freedom
    (pp. 232-266)

    The defects in a state of nature that require a condition of public right arise exclusively at the level of private rights. It might be thought that they would therefore generate a state entitled only to enforce private rights, and unable to do most of the things that modern states do. Although some might celebrate such moral restrictions on state power, Kant takes a different approach. He argues that a rightful condition gives the state a series of further powers that no private person could have. The solution to each of the defects already incorporates distinctively public powers: the power...

  12. CHAPTER 9 Public Right III: Redistribution and Equality of Opportunity
    (pp. 267-299)

    This chapter will consider two further issues Kant addresses through the idea of the original contract: what he characterizes as the duty to support the poor, and his argument for formal equality of opportunity. Recent political philosophy, including political philosophy that characterizes itself as “Kantian,” has often represented these ideas as outmoded, and sought to replace them with more robust ideas of material equality. Kant’s grounds for rejecting these more substantive ideas rest on his understanding of the nature of political society as only entitled to use force to create and sustain a rightful condition. Kant’s narrow conception of the...

  13. CHAPTER 10 Public Right IV: Punishment
    (pp. 300-324)

    Kant’s discussion of punishment has probably generated more scholarly attention than any other aspect of his legal and political thought. Much of that attention has focused on Kant’s endorsement of a retributive principle; recent discussions, drawing on a groundbreaking article by Sharon Byrd,¹ have sought to integrate Kant’s retributive principle with his explicit references to deterrence. A successful integration of deterrence and retribution is of interest both to Kant scholarship and to legal philosophy more generally, in that it promises to bridge the divide between the two intuitive ideas that animate both popular and scholarly discussions of punishment. One of...

  14. CHAPTER 11 Public Right V: Revolution and the Right of Human Beings as Such
    (pp. 325-352)

    Kant’s focus on the social contract as an “idea of reason” solves a certain problem about any actual existing set of institutions. Both the entitlement and the obligation to think of the government as a representative of the united general will follow from the need to look at any sort of particular institutional realization of law as an imperfect version of the fully specified idea of law. Thus there is at once a standard through which particular legal institutions can be judged, that is, the standard of a system of equal freedom under laws, and, at the same time, the...

  15. APPENDIX: “A Postulate Incapable of Further Proof”
    (pp. 355-388)
  16. Index
    (pp. 389-399)