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Kant maintains that while claims to property are morally possible in a state of nature, such claims are merely “provisional”; they become “conclusive” only in a civil condition involving political institutions. Kant’s commentators find this thesis puzzling, since it seems to assert a natural right to property alongside a commitment to property’s conventionality. We resolve this apparent contradiction. Provisional right is not a special kind of right. Instead, it marks the imperfection of an action where public authorization is lacking. Provisional (...) right thereby functions as a methodological device in a sequential elucidation of the moral basis of public law. To develop this reading, we first explain Kant’s two-step account of property rights—his division between ‘having’ and ‘acquiring’. Then we explain what is involved in a sequential exposition of right more generally. (shrink)

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This collection of essays takes as its starting point Arthur Ripstein's Force and Freedom: Kant's Legal and Political Philosophy, a seminal work on Kant's thinking about law, which also treats many of the contemporary issues of legal and political philosophy. The essays offer readings and elucidations of Ripstein's thought, dispute some of his claims and extend some of his themes within broader philosophical contexts, thus developing the significance of Ripstein's ideas for contemporary legal and political philosophy. -/- All of the (...) essays are contributions to normative philosophy in a broadly Kantian spirit. Prominent themes include rights in the body, the relation between morality and law, the nature of coercion and its role in legal obligation, the role of indeterminacy in law, the nature and justification of political society and the theory of the state. This volume will be of interest to a wide audience, including legal scholars, Kant scholars, and philosophers with an interest in Kant or in legal and political philosophy. (shrink)

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These essays take up contemporary debates concerning the rationality of legal and political institutions. Roberto Unger proposes a "politics of modernism"--a politics appropriate to the historical experience that Nietzsche calls "nihilism" and identifies as the re-grounding of all values in human will. Unger's aim is to heighten the artificiality, plasticity or revisability of all social arrangements, so that the self may perpetually overcome its context. But such an attempt to give the idea of self-overcoming a political translation threatens to be (...) devoid of any content beyond the reiterated assertion of the will. Wittgenstein's remarks on rule-following give voice to an anxiety that recurs in contemporary legal culture: Can a rule--in words that H. L. A. Hart once used--"step forward to claim its own instances"? Wittgenstein does not deny that it can, but he wishes to call attention to our captivation by a picture of a "rule by itself," according to which this "stepping forward" seems queer in light of an otherwise unbridgeable gap between a rule and its application. In the grip of such a picture, it becomes tempting to think that the normative demand of a rule must be activated by an interpretation. Such a thought leads not only to philosophical perplexity, but to failures of justification in the court-room. To make sense of Aristotle's notion of corrective justice, we need the idea that a judgment can be genuinely in accord with a universal even though the content of the universal cannot be completely spelled out in detachment from the concrete situations to which it is applied. It is plausible to see much of contemporary tort law as a specification of corrective justice. But attempts to supply corrective justice with a consequentialist foundation are unable to account for the significance of wrongful agency in tort law, while attempts to supply it with a deontological foundation are unable to account for the significance of the tort victim's loss. (shrink)

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