Kant's "Philosophy of Law" may be made here. The errors which I have condemned in considering the "Critique of Pure Reason," as clinging to Kant throughout, appear in the "Philosophy of Law" in such excess that one often believes he is reading a satirical parody of the Kantian style, or at least that he is listening to a Kantian. Two principal errors, however, are these. He desires (and many have since then desired) to separate the Philosophy of Law sharply from ethics, and yet not to make the former dependent upon positive legislation, i.e., upon arbitrary sanction, but to let the conception of law exist for itself pure and a priori. But this is not possible; because conduct, apart from its ethical significance, and apart from the physical relation to others, and thereby from external sanction, does not admit even of the possibility of any third view. Consequently, when he says, "Legal obligation is that which can be enforced," this can is either to be understood physically, and then all law is positive and arbitrary, and again all arbitrariness that achieves its end is law; or the can is to be understood ethically, and we are again in the province of ethics. With Kant the conception of legal right hovers between heaven and earth, and has no ground on which to stand; with me it belongs to ethics. Secondly, his definition of the conception law is entirely negative, and thereby inadequate.[1] "Legal right is that which is consistent with the compatibility of the respective freedom of individuals together, according to a general law." Freedom (here the empirical, i.e., physical, not the moral freedom of the will) signifies not being hindered or interfered with, and is thus a mere negation; compatibility, again, has exactly the same significance. Thus we remain with mere negations and obtain no positive conception, indeed do not learn at all, what is really being spoken about, unless we know it already from some other source.
- ↑ Although the conception of legal right is properly negative in opposition to that of wrong, which is the positive starting-point, yet the explanation of these conceptions must not on this account be entirely negative.
