The state of nature and the three leges

Abstract

In this chapter, we continue our analysis of §41 of the Doctrine of Right , beginning with the state of nature, or non-juridical state, which is prior to the juridical state. To explain Kant's notions of the state of nature and the juridical state, section 1 will discuss Gottfried Achenwall's work, to which Kant expressly refers in §41. Although Kant disagrees with Achenwall's contrasting the state of nature to the social state rather than to the juridical state, Kant tacitly adopts Achenwall's distinction between “original” ( ursprunglich ) and “adventitious” ( zufallig ). Kant uses these two terms throughout the Doctrine of Right and understanding their significance is crucial to understanding that work. Indeed the distinction between “original” and “adventitious” elucidates what Kant means with the three leges , namely the lex iusti , the lex iuridica , and the lex iustitiae , in §41. Those leges will be fleshed out in sections 2 and 3, where we provide a detailed explanation of Kant's use of them. In section 4, we argue that understanding the three leges as we claim they should be understood explains Kant's discussion of the three Ulpian formulae, honeste vive , neminem laede , and suum cuique tribue . In particular, it explains what has been considered to be a cryptic comment Kant makes at the end of his discussion of the Ulpian formulae regarding internal legal duties, external legal duties, and those legal duties which contain the derivation of the external legal duties from the principle of the internal legal duties through subsumption.