Force and Freedom: Kant's Legal and Political Philosophy
Arthur Ripstein
Language: English
Pages: 416
ISBN: 0674035062
Format: PDF / Kindle (mobi) / ePub
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. Ripstein shows that Kant’s thought is organized around two central claims: first, that legal institutions are not simply responses to human limitations or circumstances; indeed the requirements of justice can be articulated without recourse to views about human inclinations and vulnerabilities. Second, Kant argues for a distinctive moral principle, which restricts the legitimate use of force to the creation of a system of equal freedom. Ripstein’s description of the unity and philosophical plausibility of this dimension of Kant’s thought will be a revelation to political and legal scholars.
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. Ripstein defends the idea of equal freedom by examining several substantive areas of law―private rights, constitutional law, police powers, and punishment―and by demonstrating the compelling advantages of the Kantian framework over competing approaches.
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relation to freedom as such and depend entirely on advantage. Coleridge’s argument was repeated without a reference to him by Henry Sidgwick, and explicitly endorsed by Frederick Maitland, both of whom Hart referred to in introducing his own version of it.6 All of the standard objections to the idea of equal freedom conceive of 2. Hart, “Rawls on Liberty and Its Priority,” in Norman Daniels, ed., Reading Rawls (New York: Basic Books, 1975). 3. Cohen, “Freedom, Justice, and Capitalism,” New
cases of mutual mistake, so that I think that I am agreeing to one thing, and you think we are agreeing to another. In such a situation, agreement fails for lack of common terms; for all of our negotiations, we were really just talking past each other. Fraud is distinctive because the willful misrepresentation of 22. There may be cases in which natural or social circumstances lead to so great a disparity of bargaining power that the contract will be judged to be unconscionable. It seems to me
antecedently and publicly established property right in the objects of the will. Kant also emphasizes that to affect a transfer by a will, there must be a public possessor, entitled to exclude others between the testator’s death and the heir’s acceptance of the legacy. That is, a “legal will” presupposes public insti tutions entitled to make the testator’s choice binding. Both the “public tennis court” and “the park” presuppose public forms of property with standardized rules of access.
John Locke, The Second Treatise of Government, 66, §124. 34. Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999). Waldron attributes the same type of argument to Kant in “Kant’s Legal Positivism,” Harvard Law Review 109 (1996): 1535–1566. 170 l f o r c e a n d f r e e d o m kind of threat to the rightful condition, but the threat is factual rather than conceptual. No argument is likely to move such a person, but what is required is not an argument, just force,
only be applied by the parties themselves. It is thus a structural feature of the situation that it is possible for each party to believe, in good faith, that the other is the sole aggressor. They each make inconsistent claims of right. However, once they have made inconsistent claims of right, there is no answer, apart from what seems good and right to each of them. The idea that there can be no answer in a dispute about defensive force may seem surprising, because the question of who was the