Moral Realism and Kantian Constructivism

Abstract. This paper questions nearly every major point Christina Lafont (2004 ) makes about “the validity of social norms” and their relation to moral realism and Kantian constructivism. I distinguish realisms from theories of objective or subjective knowledge, then from cognitivism. Next, I distinguish Kant and constructivism from Rawls' political constructivism. Finally, I propose clues for an alternative theory of moral constructivism.     

Starting Points: Kantian Constructivism Reassessed

G. A. Cohen and J. Raz object that Constructivism is incoherent because it crucially deploys unconstructed elements in the structure of justification. This paper offers a response on behalf of constructivism, by reassessing the role of such unconstructed elements. First, it argues that a shared conception of rational agency works as a starting point for the justification, but it does not play a foundational role. Second, it accounts for the unconstructed norms that constrains the activity of construction as constitutive norms. Finally, on this basis, it draws a contrast between constructivist and foundational methods of ethics, such as deontology and teleology.     

Permissive Laws and the Dynamism of Kantian Justice

If Kant’s theory of justice is known for one thing, it is for offering a vision of a perfectly just society that is utterly disconnected from the imperfect societies that we occupy. The purity of Kant’s account has attracted criticism from those who claim that if a theory of justice is to be practical, it must offer more than a vision of a perfectly just society. It must also explain how existing societies mired in injustice are to be brought into ever-closer conformity with the ideal that justice prescribes. In this essay, I will argue that this is exactly what Kant’s mature legal and political theory offers. To discern this feature of Kant’s theory, a neglected component must be integrated into his broader framework. This component is what Kant refers to in Toward Perpetual Peace as a permissive law of public right.     

A Kantian Critique of Kant's Theory of Punishment

In contrast to the traditional view of Kant as apure retributivist, the recent interpretations ofKant's theory of punishment (for instance Byrd's)propose a mixed theory of retributivism and generalprevention. Although both elements are literallyright, I try to show the shortcomings of each. I thenargue that Kant's theory of punishment is notconsistent with his own concept of law. Thus I proposeanother justification for punishment: specialdeterrence and rehabilitation. Kant's critique ofutilitarianism does not affect this alternative, whichmoreover has textual support in Kant and is fullyconsistent with his concept of law.     

Revisiting Kantian Retributivism to Construct a Justification of Punishment

The standard view of Kant’s retributivism, as well as its more recent reworking in the ‘limited’ or ‘partial’ retributivist reading are, it is argued here, inadequate accounts of Kant on punishment. In the case of the former, the view is too limited and superficial, and in the latter it is simply inaccurate as an interpretation of Kant. Instead, this paper argues that a more sophisticated and accurate rendering of Kant on punishment can be obtained by looking to his construction of the concept of justice. In so doing, not only is a superior account of Kant furnished, but also one up to the task of resolving the vexed issue of justifying legal punishment.

Ownership,Use, and Exclusivity: The Kantian Approach

Ownership combines the owner's right to exclude others from the owned object and the owner's liberty to use that object. This article addresses the relationship between using and excluding, by presenting Grotius's and Kant's classic accounts of ownership. Grotius's approach treats use and exclusivity as separate notions, with the latter evolving out of the former. For Kant, in contrast, use and exclusivity are integrated aspects of ownership as a right within a regime of equal reciprocal freedom. This article offers a Kantian critique of Grotius's account of the original right to use, and then presents Kant's notion of usability as the basis for his integration of use and exclusivity.     

A Kantian Interpretation of Kelsen’s Basic Norm

This paper proposes a reading of Kelsen’s basic norm based on Kant’s regulative ideas. I begin by exposing Kant’s conception of the principles of reason. Then I criticize an interpretation of the basic norm along the same lines made by Stanley Paulson. Thirdly I analyze two theses from Hermann Cohen that influenced Kelsen greatly and reinforce my stance on the basic norm. Lastly, I explain how the Kelsenian tenet that the basic norm is the transcendental grounding of the normativity of law can be comprehended based on the role the ideas of reason play in the systematization of knowledge.     

A Kantian (re)turn: Aesthetics,postmodernism and law

A review essay of P. Crowther,The Kantian Sublime: From Morality to Art (Oxford: Clarendon Press, 1989); P. Crowther,Critical Aesthetics and Postmodernism (Oxford: Clarendon Press, 1993); P. Crowther,Art and Embodiment: From Aesthetics to Self-Consciousness (Oxford: Clarendon Press, 1993).     

康德法哲学视野下的“动物权利论”批判

当代动物权利运动的主将汤姆·雷根提出的动物权利论遮蔽了道德共同体成员的理性和道德义务这两个道德理论中的核心概念,忽视了理性、义务在构建道德共同体中的必要性,也不能在逻辑上全面地说明动物与人类之间以及动物之间的关系。康德主义的道德哲学则仅通过“实践理性”这一标准,即可合理说明人与动物在道德上的不同地位,也能更好地解释和指导人类利用和保护动物的实践。     

Moral Objectivity and Reasonable Agreement: Can Realism Be Reconciled with Kantian Constructivism?

Abstract. In this paper I analyze the tension between realism and antirealism at the basis of Kantian constructivism. This tension generates a conflictive account of the source of the validity of social norms. On the one hand, the claim to moral objectivity characteristic of Kantian moral theories makes the validity of norms depend on realist assumptions concerning the existence of shared fundamental interests among all rational human beings. I illustrate this claim through a comparison of the approaches of Rawls, Habermas and Scanlon. On the other hand, however, objections to moral realism motivate many Kantian constructivists to endorse the antirealist claim that reasonable agreement is the source of the validity of social norms. After analyzing the difficulties in the latter strategy, I try to show how a balance between the realist and antirealist elements of Kantian constructivism can be reached by drawing a sharper distinction between the justice and the legitimacy of social norms.     

In Force Without Significance: Kantian Nihilism and Agamben’s Critique of Law

In Homo Sacer, Giorgio Agamben makes the claim that Kant’s moral philosophy is prophetic of legal nihilism and modern totalitarianism. In doing so, he draws an implicit parallel between Kantian ethics of respect and autonomy, and the authoritarian constitutional theory of Carl Schmitt. This paper elucidates and evaluates this claim through an analysis of Agamben’s assertion that the legal condition of modernity is a nihilistic law that is ‘in force without significance’. I argue that the theoretical continuity between totalitarianism and the Moral Law is the problem of the undecidable, which arises when the empty ground of normative judgment comes to light.     

Otherwise than Hospitality: A Disputation on the Relation of Ethics to Law and Politics

At a time of unprecedented migration and social displacement, following a century ravaged by war and hegemonic shift, the question of hospitality presents itself with unparalleled urgency. Taking his cue from Immanuel Kant’s cosmopolitics, Jacques Derrida addressed this question by deliberating on the nature of the political obligation to the other person. Invoking the work of Emmanuel Levinas, this demand is first of all ethical, and unconditional. But Derrida was also acutely aware of the residual violence of the hospitable gesture, which always takes place in a scene of power. The resultant aporias at the heart of hospitality provoked debate between the two authors at the 2007 Critical Legal Conference, and this paper seeks to elucidate and elaborate on this encounter. At stake are the matters of the potential political forms of hospitality, whether it should always been striven for and, ultimately, how one can conceptually reconcile its ethics with its violence.