The Mirage of Kantian Human Rights

Abstract

Contrary to a widespread view, I argue that the contemporary notion of “human rights” does not have a comfortable home in Kant’s legal philosophy. Even the one “innate right of humanity,” that many consider the pre-institutional Archimedian starting point of Kant’ s argument, is a normative conception that is “juridified all the way down.” In the state of nature, all private rights (innate and acquired) are present only in the form of the consequents of conditional claims about legal rights of the form, “ If and only if in a juridified realm, then X,” with “X” referring to the specificities of positive law within a juridified realm. One objection claims that this proposal undermines the idea that there are powerful individual rights (universal and inalienable) on a par with legal rights but pre-institutional. By means of responding to worries regarding stateless individuals and migrants, I show that even though human rights are foreign to a Kantian conception of legality, other resources in Kant’s practical philosophy stand ready to assuage the objection.