Why is Willing Irrelevant to the Grounding of (Any) Obligation? Remarks on Arthur Ripsteinns Conception of Omni-Lateral Willing

Abstract

Arthur Ripstein’s recent reconstruction of Kant’s legal philosophy seeks to place it beyond the crude dichotomy of positivism vs non-positivism in suggesting that legal obligation be accounted for in terms of omni-lateral willing, or the form of willing that pertains to coercive public institutions that are invested with moral authority. Thus, while residing in social institutions, omni-lateral willing realizes a genuinely moral demand, that is, the demand to secure equal freedom for autonomous agents in their mutual interaction. The paper probes the ability of omni-lateral authorization to overcome the dichotomy between positivism and non-positivism. I wish to suggest that omni-lateral willing disguises what legal and moral obligation have in common and conveys the impression that we, as agents, can be obligated in two distinct ways that are disconnected from one another. I will locate the reason for the misrepresentation in what appears to be a standard interpretation of the role of agent motivation in legal and moral obligation. Ripstein’s account appears to be presupposing the same picture, even as he tries to move beyond it. In the end I will be arguing that Ripstein is right in his diagnosis that individual willing falls short of grounding legal obligation. His mistake is to think that some other form of willing can deliver the grounding question, because none can.