Benson External Freedom According to Kant

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External Freedom according to Kant

Author(s): Peter BensonReviewed work(s):Source: Columbia Law Review, Vol. 87, No. 3 (Apr., 1987), pp. 559-579Published by: Columbia Law Review Association, Inc.

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EXTERNAL FREEDOM ACCORDING TO KANTt

PeterBenson*

Professor Fletcher's aim in "Law and Morality: A Kantian Perspec-tive" is as simple as it is fundamental. It is to examine a text, the Meta-

physicsof Morals, and in particular its first Part, the Rechtslehre,odetermine Immanuel Kant's mature views on law and on the relation-ship between law and morality. Fletcher begins by noting that

"[flreedom is the central word in Kant's thinking about law and moral-

ity."2 Both law and morality express freedom, yet they embody it in

two distinct forms, namely external and internal freedom.3 Fletcher'saim can be re-stated as follows: to elucidate the difference as well as

the relation between external and internal freedom in Kant's practicalphilosophy.

The central theme in Fletcher's interpretation of the Rechtslehresthe contrast between law and moralitywhich he understands as the dif-ference between external and internal freedom. He distinguishes ex-ternal and internal freedom in the following way. External freedomembodies a conception of action which begins with subjectively contin-gent choices that spring from the inclinations. In contrast, internalfreedom reflects a conception of action which starts with the complete

abstraction from inclination and which is directed by the pure law-likeform of action itself. Inasmuch as external and internal freedom entailconceptions of action, they relate to the activityof willing. In the Recht-slehre,Kant elucidates the activity of human willing through the two

concepts of Willkzirnd Wille. In Fletcher's interpretation, "Willklir" e-notes the conception of action in external freedom whereas "Wille"re-

fers to the conception of action in internal freedom.4 Hence, forFletcher, external and internal freedom begin from diametrically op-

posed premises.

His fundamental thesis is that Kant's concept of legal obligation

t I would like to thankGregory Bordan and Stephen Perryfor their generous andvaluable help.

* Facultyof Law, McGill University.1. In writing this Comment, I have relied on the English translations of the Recht-

slehreby W. Hastie (1887) andJ. Ladd (1965) as well as on the French translation by A.

Philonenko (1971).2. Fletcher, Law and Morality: A KantianPerspective, 87 Colum. L. Rev 533, 535

(1987).3. Id. at 535, 537.

4. Fletcher translates "WillkzTr",hich pertains to external freedom, as "choice".Id. at 547. Although he does not expressly use the term "Wille" n connection with

internal freedom, it is reasonable to infer that use. Fletcher writes that internal freedom

expresses "the notions of autonomy, of will [and] of the noumenal." Id. at 537 (empha-

sis added). In Kant, Willkzir nd IVille re the two basic terms which pertain to willing.

Since Fletcher refers "Willkzir"o "choice," he must understand "will" to connote"Wille."

559







560 COLUMBIALAW REVIEW [Vol. 87:559

does not presuppose the will's capacityto abstract from the inclinationsand therefore does not express autonomy of the will. Since the capacity

to abstractfrom inclination is, in turn, an essential function of practicalreason, legal obligation-unlike moral duty-cannot be understoodeither as an aspect of practicalreason or under the form of a categoricalimperative.

According to Fletcher, Kantian external freedom is freedom to acton subjectively contingent choices that reflect the divergent purposesof concrete individuals-or what Kant calls "Willkzir".The content ofthese choices is decided by subjective factors that are not necessarilyvalid for everyone. They therefore need not express the dictates of rea-

son. However, these choices are not merely internal states of mind.They are expressed in the external world as actions which can physi-cally hinder others in the pursuit of their own externally manifestedchoices. Law is needed to reconcile these conflicting choices so as toguarantee each individual a maximum sphere of external freedom.

This function of the legal system refers to an ideal dimension oflaw and not to an account of positive law. As such, it is designated bythe word "Recht"or "Right". On Fletcher's interpretation, law embod-ies Right insofar as it can be viewed as an ideal framework for guaran-

teeing maximum individual choice. In other words, "Right" refers tothe ensemble of conditions that maximize Willkzir.5

Morality, in contrast, has to do with internal freedom. ForFletcher, the distinctive and necessary condition of Kantian internalfreedom is the capacity to abstract one's choices from the influence ofthe inclinations. Inasmuch as Fletcher bases internal freedom but notexternal freedom upon this capacity to abstract from inclination, he isable to distinguish morality from law in three ways. First, he contraststhem with respect to the idea of autonomy. According to Kant, the

will's independence from inclination is an essential prerequisite of theautonomy of the will-of what Kant calls "Wille".6 On Fletcher's inter-pretation, only internal freedom can be an expression of the autonomyof the will. Law must therefore reflect heteronomy of the will.

Second, Fletcher explicitly equates internal freedom-but not ex-ternal freedom-with Kantian practical reason. According to Kant, ifaction is to embody the requirements of reason, its mainspring cannotbe the subjective inclination toward a particular object.7 Its sourcemust rather be the pure law-like form of action itself. In Fletcher'sview, it is only if the agent is required to focus on this formal aspect and

5. Id. at 535. Roberto Unger seems to share a similar view. See R. Unger, Knowl-edge and Politics 85 (1975).

6. I. Kant, The MetaphysicalElements of Justice *213-14 J. Ladd trans. 1965)(Rechtslehre)hereinafterMetaphysical Elements of Justice].

7. I. Kant, Critique of PracticalReason *19, *21 (L. Beck trans. 1976) [hereinafterCritique of PracticalReason]; see also MetaphysicalElements ofJustice, supra note 6, at*216 (same).







1987] EXTERNALFREEDOM 561

to embody it in his inner disposition that inclination can be abstractedfrom and reason can be made the determining ground of action. In

other words, on Fletcher's interpretation, pure reason can be expressedin human action only when an act is done out of duty. This happens ininternal but not external freedom. In Fletcher's construal of Kant, it istherefore morality alone-and not law-that has this rational dimen-sion as its determining ground.8

Third, Fletcher identifies Kant's categorical imperative as the dis-tinctive principle of morality but not of law. He views Kant's three for-mulations of the categorical imperative in the Foundationsof theMetaphysics f Moralsas different ways of expressing the moral ideal of

acting out of duty alone. On his interpretation of Kant,an obligation toconform one's external acts-independently of one's inner disposi-tion-to the requirements of universality would not qualify as a cate-gorical imperative. But, according to Kant, there are only two kinds ofimperatives: hypothetical and categorical.9 Consequently, Fletcher'sview requires that legal obligations be construed as hypothetical imper-atives. Similarly, Kant's universal principle of Right must be merely ahypothetical and not a categorical imperative.

It is clear, then, how Fletcher contrasts Kantianexternal and inter-nal freedom. Fletcher, however, also wants to find their unity. Giventhe manner in which he has distinguished them, it is difficult to see howthis can be achieved. The crucial point is that Fletcher treats Willkiirand Willenot as distinct aspects of a single concept of willing but as twodifferent and mutually independent kinds of willing. In his interpreta-tion, the independence of the one vis-a-vis the other is radical. Fletcherwrites that whereas external freedom-and therefore Will/dir-is a pos-sible object of empirical experience in the phenomenal world, internalfreedom-and so Wille-cannot be experienced in this manner becauseit belongs to the noumenal realm.'0 Now, in the Kantian framework,

the phenomenal and noumenal worlds are categorically distinguishedand each is governed by laws peculiar to it-the former by laws of na-ture,the latter by laws offreedom."I If external and internal freedom aredifferentiated as Fletcher claims, it is difficult to conceive how they canshare anything in common. Moreover, if law and morality are

grounded in external and internal freedom respectively, Fletcher's viewrequires that law and morality also be regarded as two independentspheres.

Indeed, on Fletcher's interpretation, it seems to be not merely dif-

ficult but in fact impossible to conceive a unified notion offreedomwhichembraces both law and morality and which at the same time preserves

8. Fletcher, supra note 2, at 537-38.9. Metaphysical Elements ofJustice, supra note 6, at *221-22; see also Critique of

Practical Reason, supra note 7, at *20.10. Fletcher, supra note 2, at 537.11. Metaphysical Elements of Justice, supra note 6, at *214-18.







562 COLUMBIALAWREVIEW [Vol. 87:559

the difference between them. In the Introduction to the MetaphysicsfMorals,Kant asserts that the concepts of freedom, practicalreason and

autonomy of the will are so fundamentally interconnected that it is im-possible to conceive any of them without the others.'2 But Fletcher's

conception of external freedom severs this connection. Although his

conception is meant to be of externalfreedom,t has nothing to do with

practicalreason or autonomy of the will. If we are to accept Fletcher's

interpretation, it seems we must acknowledge the impossibility of con-

ceiving an essential unity between law and morality as aspects of Kant's

concept of freedom. We must also admit that, despite Kant's explicit

claim to the contrary, there can be no supreme principle to ground a

metaphysics of morals which has as its two parts a Doctrine of Rightand a Doctrine of Virtue.'3

In the light of these implications, it is necessary to undertake a crit-

ical examination of Fletcher's construal of external freedom. I want to

suggest that his interpretation is fundamentally wrong. My aim is to

establish the three following propositions. First, external freedom pre-

supposes the will's capacity to abstract from inclination. In other

words, law expresses the autonomy of the will and is grounded upon

Wille. Second, Willkzir nd Willeare not two different kinds of willing

but are necessarily interconnected aspects of a single concept of freewill. Consequently, law and morality, being forms of freedom, each

embody the unity of Willkzir nd Wille. Finally, law and morality em-

body this unity in categorically different but nonetheless intercon-nected ways. Law and morality are mutually irreducible phases in the

unfolding of a single comprehensive notion of practicalreason that un-

derlies both. In particular, Right is conceptually prior to morality in

the order of this unfolding and together they comprise the two parts ofa metaphysics of morals.

In Part One, I compare Fletcher's interpretation of external free-dom with Kant's explicit account of one instance of external freedom,namely contractualobligation in private law. We shall see that, accord-

ing to Kant, contractual obligation can be conceived only as an expres-sion of what he calls "intelligible possession" and that the basis ofintelligible possession is Wille. For this reason, I will conclude that

Kant's explicit account of contract directly contradicts Fletcher's con-strual of external freedom.

In Parts Two and Three, I outline an alternative interpretation of

external freedom which avoids this inconsistency and which allows ex-ternal freedom to be integrated with internal freedom under a unifiednotion of practicalreason. In Part Two, I present Kant's idea of practi-cal reason and sketch his derivation of intelligible possession from it.In particular, I will suggest that practical reason requires that Willkiir

12. Metaphysical Elements of Justice, supra note 6, at *221-23.13. Id. at *216, *221.








and Willebe united in the concept of a free will and that their unity bedirectly expressed in external freedom by the notion of intelligible pos-

session. Part Three is devoted to a brief discussion of the relation be-tween external and internal freedom as distinct but connected phasesin the unfolding of practical reason. In this respect, I will conclude thatRight must be conceptually prior to morality in the Kantianframework.

I.

In the firstpart of the Rechtslehre ant provides an a priorideductionof the basic categories of private law as expressions of external free-dom. If Fletcher's construal of external freedom is correct, it must becompatible with Kant'sanalysis of these categories of privatelaw. SinceFletcher specifically discusses Kant's account of contractual obligation,I will consider the adequacy of his interpretation in the light of thatparticular aspect of private law. Accordingly, we must determinewhether Kant views contractual obligation merely as an expression ofWillkiir-as Fletcher's interpretation requires-or whether, on the con-trary,Kant grounds it upon the will's capacity to abstract from sensibleconditions.

In the Introduction to the Metaphysics f Morals,Kant states that"keeping faith (in accordance with one's promise in a contract) . . . is

not a duty of virtue . . . but a duty of [Right], one that we can be co-

erced to perform."'4 What is the ground of the juridical obligation tokeep one's promise in contract? Its basis cannot be a duty to be consis-tent in word and deed because, according to Kant, the duty to be hon-est belongs to Virtue and not to Right. Kant's answer to this questionis found in the Remark to Section 19 of the Rechtslehre,'5 passagewhich is referred to and discussed by Fletcher. In that passage Kantcriticizes Moses Mendelssohn's answer to the question: what is the nor-

mative foundation of contractual obligation? Kant then presents hisown understanding of the basis of contractual obligation.

14. Id. at *220.15. I. Kant, Philosophy of Law 103-04 (W. Hastie trans. 1881) (Rechtslehre)herein-

after Philosophy of Law]. The passage reads:That this is the true and only possible Deduction of the idea of Acquisition by

Contract, is sufficiently attested by the laborious yet always futile striving ofwriters on Jurisprudence-such as Moses Mendelssohn in his Jerusalem-to ad-

duce a proof of its rational possibility. The question is put thus: "WhyoughtI

to keep my Promise?"for it is assumed as understood by all that I ought to doso. It is, however, absolutely impossible to give any further proof of the Cate-

gorical Imperative implied .... It is a Postulate of the Pure Reason that weought to abstract from all the sensible conditions of Space and Time in refer-ence to the conception of Right; and the theory of the possibility of such Ab-

straction from these conditions . . . just constitutes the Transcendental

Deduction of the Conception of Acquisition by Contract. It is quite akin to

what was presented under the last Title, as the Theory of Acquisition by Occu-

pation of the external object.







564 COLUMBIALAW RE VIEW [Vol. 87:559

Fletcher understands the passage in the following way. He as-sumes that when Kant refers to a categorical imperative to keep one's

promises, Kant means a moralduty to do so.'6 Based on this assump-tion, he takes Kant to be criticizingMendelssohn for seeking to explainthe legal obligation in contract in terms of this morally-based categori-cal imperative. On Fletcher's interpretation, Kant corrects this mistakeby regarding contract as founded on Right and more exactly as an ex-pression of Willkzir: Contract is a transfer of one party's power ofchoice (Willktir)o another by virtue of a "common will."''7

I believe that Kant's clear words in the passage belie Fletcher's in-terpretation and that Fletcher has misstated the point of Kant's criti-

cism of Mendelssohn. It is not that Mendelssohn wrongly viewscontract as consisting of two reciprocal promises which are bindingoriginally by virtue of a moral duty. On the contrary, Kant takesMendelssohn's view to be that the "catagorical imperative implied" incontractual obligation is founded upon Right and not upon morality.Indeed, inJerusalem,Mendelssohn explains contract as an external rela-tion between two parties which, by their combined wills, can effect atransfer of right between them. Like Kant, Mendelssohn understandsacquisition in contract as enforceable by strict Right because the obliga-tion entailed is juridical and not merely moral.18

Kant's disagreement with Mendelssohn is over the correct way ofunderstanding the concept of Right which both he and Mendelssohntake to underlie the legal obligation in contract. According to Kant,

"[i]t is a Postulate of the Pure Reason that we ought to abstractfrom allthe sensible conditions of Space and Time in reference to the concep-tion of Right;and the theory of the possibility of such Abstraction fromthese conditions . . . just constitutes the Transcendental Deduction of

the Conception of Acquisition by Contract."'9 Kant is therefore criti-cizing Mendelssohn, not for confounding law and morality, but for fail-ing to grasp the concept of Right-and acquisition in contract-inabstraction from all sensible conditions. Kant does not, as Fletchersupposes, correct Mendelssohn by grounding contract upon Willklir,that is, upon subjectively contingent choices springing from inclination.On the contrary, Kant's crucial point is that contractual obligation canonly be justified by conceiving contract in abstraction from such sensi-

16. Fletcher, supra note 2, at 547 n.59.17. Id.

18. M. Mendelssohn, Jerusalem 23-32, 162-63 (trans. A. Jospe 1969). Prior toKant and Mendelssohn, thinkerssuch as Grotius and Hobbes formulated the conceptionof contract as a transfer of right. See H. Grotius, De Jure Belli ac Pacis, Bk. II, Ch. XI(1625); T. Hobbes, Leviathan I, 14 (1651). I have discussed Grotius in Benson, Grotius'Contribution to the Natural Law of Contract, VI, ii, CanadianJ. Netherlandic Stud. 1(1985). Kant's contribution to the philosophical elucidation of contract is that he ex-plained, through his doctrine of Wille, he unconditional basis of the categorical impera-tive entailed in a transfer of right.

19. Philosophy of Law, supra note 15, at 103-04 (emphasis added).








ble conditions. In Kant's view, "it is ... absolutely impossible to giveany furtherproof of the Categorical Imperative implied [in the obliga-

tion to keep one's promises]."20 Consequently, Mendelssohn's effortsto discover some otherbasis to justify the obligation in contract-suchas societal welfare-are doomed to be "laborious yet always futilestriving[s] "21

We can now understand Kant's reference to a categorical impera-tive to keep one's promises. Contrary to Fletcher's interpretationwhich starts with the general assumption that only moral duties can en-tail categorical imperatives, Kant treats the junidicalobligation to keepone's promises as based on a categorical imperative. At no point in the

passage-nor for that matter anywhere else in the Rechtslehre-doesKant actuallyrefer to the categorical imperative as an exclusively moralnotion, and there is no reason to presuppose such a limitation in thepassage under consideration.22 The difference between law and moral-ity is simply not at issue here because, as we have seen, Kant's objectionis not that Mendelssohn has confounded the two. Kant's disagreementwith Mendelssohn pertains only to the conception f Right that is ade-quate to ground the obligation to keep one's promises. Furthermore,Kant explicitly refers to "the categorical imperative implied in" the ob-

ligation to keep one's promise in contract.23 Kant has already said thatthis obligation is a duty of Right, not of Virtue.24 Here, therefore, is aclear instance in which Kant conceives a basicjuridicalobligation underthe form of a categorical imperative.

Kant's point can be stated more fully as follows. Kant holds thatthe obligation to keep one's promises in contract is a duty of Right thatcan be coerced. It is hence an unconditional obligation in the sensethat it is obligatory in and of itself independently of one's inclinationsor of any further purpose that it might serve.25 Being an unconditionalpractical law, the obligation expresses a categorical imperative.26 The

justification f this categorical imperative cannot, however, be sought insomething other than the obligation itself such as some further purposeor value. For then it would not be unconditional but would be contin-gent upon the validity of that external purpose. Its justification musttherefore be found in the nature of the obligation itself.

According to Kant, to hold that there is an unconditional obliga-tion to keep one's promise in contract, one must postulate the possibil-

20. Id. (emphasis added).21. Id.

22. On the contrary,Kantexplicitly grounds external freedom and the categories ofprivate law on the categorical imperative of practicalreason. See infra note 61 and ac-companying text.

23. Philosophy of Law, supra note 15, at 103-04.

24. See supra note 14.

25. MetaphysicalElements ofJustice, supra note 6, at *215, *221-22.

26. Id. at *22 1.







566 COLUMBIALAWRE VIEW [Vol. 87:559

ity of a special kind of acquisition. More exactly, one must presupposethat the promisor can give the promisee possession of the promise

prior to and independently of actual performance.27 But performancemust take place in time and space and is thus subject to physical contin-gencies; it may or may not occur; and, it gives the promisee physicalpossession of the thing promised.28 Since acquisition in contract isvalid prior to performance, it must be conceived in abstraction from thespacio-temporal conditions of physical possession. Kant calls any suchacquisition "intelligible"-as opposed to physical-possession.29

The categorical imperative to keep one's promises can now be de-fined as the unconditional obligation to act consistently with the possi-

bility of representing contractualacquisition as independent of physicalpossession. Kant's point is that thejustification f the categorical imper-ative to keep one's promise can only lie in showing that contractualacquisition must be represented in this way. Mendelssohn's mistake isnot, as Fletcher supposes, that he wrongly grounds contract upon anunconditional moralduty, but rather that he is unable to grasp the legalobligation in contract as truly unconditional.

It is now also possible to understand why Kant conceives of thecontractual relation in terms of a "common will".30 The common willis simply the contractual transaction viewed from the standpoint of in-telligible possession. Kant explains this as follows. Since contract en-tails acquisition of something by one person from another who isinitially its owner, there must be absolute unity and continuity betweenthe individual acts which transfer the object. Although the transactionpresupposes two parties and therefore two particular wills, the will ofeither party alone is insufficient to effect the acquisition. Their actsmust count as offer and acceptance. The juridical relation which trans-fers thus consists of two declarations of will that are mutually related:this is the aspect of unity. But there must also be continuity,n the sense

that at no point can the object transferred be relinquished by the prom-isor without being at the same time acquired by the promisee. Acquisi-tion in contract must therefore be constituted by a transferin which theobject belongs at one instant to both parties, even though the transac-tion requires two declarations of will which, by their physical nature,must be temporally and spatially differentiated. Unless the transfertakes place in this way (i.e., according to the two conditions of unity and

continuity), there can be no acquisition by one party that is derived

27. Id. at *248, *254-55; see also Philosophy of Law, supra note 15, at *104-05.28. Philosophy of Law, supra note 15, at 102-03.29. MetaphysicalElements ofJustice, supra note 6, at *245 (emphasis in original).30. Philosophy of Law, supra note 15, at 101; see also P. Benson, The Executory

Contract in Natural Law: A Theory of Right in Contract (1987) (copy on file at theoffices of the Columbia LawReview), in which I have attempted to provide a systematictheoretical account of the basic elements of contract-expectation damages, offer andacceptance, consideration and unconscionability-grounded upon the Kantianconceptsof the common will and practical reason.








from what another partyhas as his own; at most, there could be acquisi-

tion through a unilateral act of occupying an object that has been al-

ready abandoned and which is therefore acquired as something that isownerless. The object would be acquired "originally" and not in ac-

cordance with the concept of contract.31

In the light of these two conditions, Kant argues that it can only be

the united wills of both parties (vereinigtenWillenbeider) r their common

will (einem inzigen emeinsamenWillen) hat constitutes the juridical act of

contract.32 Their particular wills (Willkzir)must be represented as a

common will (Wille) n which all empirical conditions of time and space

have been eliminated. Unless empirical conditions, which entail

"before" and "after" in time as well as "here" and "there" in space,can be eliminated, the unity and continuity of the contractual transfer

are inconceivable. Contract is therefore defined as the act of the com-

mon will of two persons by which what belongs to one becomes the

other's.33

The crucial lesson to be drawn from Kant's disagreement with

Mendelssohn is that, for Kant, contractual obligation cannot be eluci-

dated by referring merely to the parties' individual wills or to their ex-

ternally manifested choices. These choices must form part of a

relationship which can be viewed as the parties' common will. Even onFletcher's interpretation of Kant, contractualobligation reflects a trans-

fer of one party's power of choice (Willkzir)o another "by virtue of a

common will".34 But Kant explicitly regards the common will as an

expression of Wille.35 So, even on Fletcher's construal, Willemust be

presupposed as the indispensable foundation of the intelligibility of

contractual obligation. And Wille,as we have seen, refers to the will's

capacity to abstract from sensible conditions. An examination of the

other two basic categories of private law, original acquisition and do-

mestic right, would make clear that, according to Kant,the entire con-

tent of private Right is explicable only by virtue of this

presupposition.36 The will's capacity to abstract from all sensible con-

ditions lies at the heart of Kant's concept of legal obligation as well as

of his concept of moral duty.

In contract, which is paradigmaticof all private law, this capacity to

abstractis expressed as the basis of an externalelationbetween two indi-

vidual wills and not, as in morality, as a function of the internal disposi-

tion of an individual will. It is because a relation of will to will can

embody Wille hat the contractualterms bind the

partiesindependently

31. Philosophy of Law, supra note 15, at 100-03.

32. Id. at 101.

33. Id. at 102-03.

34. Fletcher, supra note 2, at 547 n.61.

35. Philosophy of Law, supra note 15, at 102, 103.

36. Philosophy of Law, supra note 15, at 62-64, 67-76, 82, 95-97, 108.








of their inclinations: the common will articulates the law for the par-ties' particularwills.

At this point, I have shown merely that Kant's explicit account ofcontract sustains my first proposition that Wille s the ground of legalobligation. Because Fletcher's construal of external freedom is funda-mentally incompatible with the text, it must be rejected as an inade-quate account of Kant's view. In Parts Two and Three, I attempt tooutline an alternative interpretation of external freedom that is not vul-nerable to this difficulty.

However, I have not yet explained why, according to Kant, Willemustbe the ground of external freedom. The answer lies in Kant's

statement that, by the law of pure practical reason, thejuridical relationof contract must be grounded in the will (Wille)as a law-giving facultyof reason in accordance with the concepts of freedom (Freiheitsbegrffien)and in abstraction from all empirical conditions.37 Kant appears to besaying that practicalreason itself requires contractual acquisition to beviewed as intelligible possession. To conceive it in this manner is, ac-cording to Kant, to regard contract as an embodiment of freedom. PartTwo is devoted to the explication of this statement.

II.

In this Part,I wish to outline the essential first steps in Kant's eluci-dation of intelligible possession as an aspect of practical reason.38 Ishall begin with Kant's conception of practical reason and explain howthe idea of free will is derived therefrom. For Kant, pure reason ispractical insofar as it determines the will as free. We shall see that, inhis view, free will consists of two necessarily interconnected aspects,Willkfir nd Wille. This idea of free will is embodied in both externaland internal freedom and therefore underlies law as well as morality.

More specifically,I will suggest that free will is initially embodied in therelation between a will and an external object insofar as the relation isrepresented as being independent of spatio-temporal conditions. Kantdefines external freedom in terms ofjust such a relation represented inthis manner. I will conclude this Part by indicating how the notion ofexternal freedom entails Kant's concept of Right. Right will be definedas the ensemble of normative conditions in which external freedom isrealized.

Kant builds the entire structure of the metaphysics of morals upon

practicalreason alone.39 Consequently, his account of law and moralitypresupposes the crucial distinction made between theoretical and prac-

37. Id. at 103. Kant says this at various points in the Rechtslehre. ee, e.g., Meta-physical Elements ofJustice, supra note 6, at *253.

38. For a more detailed exposition of Kant'sdeduction, see P. Benson, supra note30.

39. MetaphysicalElements ofJustice, supra note 6, at *213-14.








tical reason. For Kant, thinking is theoreticalwhen it knows an objectwhose content is presupposed and not produced by thinking; in con-

trast, thinking is practicalwhen it gives itselfan object whose content isderived from the inner requirements of thinking alone.40 Kant calls thefaculty through which thinking is practical the "faculty of desire."'4'This faculty is the capacity to be the cause of the reality of an object ofone's thinking by means of the conception f that object. Defined inmore familiar terms, the faculty of desire is nothing other than the ca-pacity to be purposive.42 The principle determining the faculty of de-sire toward action must be located in the thinking subject and not in theobject because this causality in accordance with concepts, as Kant puts

it, is possible only if the conception of the object precedes itsrealization.43

According to Kant, the concept of purposive activity must be ana-lyzed in terms of Willkfir nd Wille. Willktir nd Willeare not two differ-ent kinds of willing but are, in Kant's words, the one faculty of desireviewed in relation to two different yet connected aspects of purposiveactivity.44 Willkfir efers the faculty to actionin accordance with ends,and Willerelates the faculty to the determiningroundof the capacity toset ends in free action. Considered alone, each is a mere abstraction

and cannot be used to elucidate willing whetherin

law or morality. To-gether, they comprise the concept of freedom which is expressed in itsexternal as well as in its internal form.45

The faculty of desire, viewed in relation to this capacity of actingaccording to the conception of a purpose, is "Willkfir".46Since theprinciple determining the faculty of desire toward action must be inter-nal to the subject, the subject can, as Kant puts it, literally do as it likes.For this reason, Willkr is the faculty of desire viewed as entailing ca-pacity for choice. It denotes the indispensible feature of activitywhichentitles us to view it as purposive action rather than as the passive effectof external causes. However, the account of action is incomplete if wesay merely that we can choose. Because choice always involves choos-ing something,t must also include a principle which decides what that

40. See H. Cassirer, A Commentary on Kant's Critique of Judgment 3-7, 68-78

(1938).

41. MetaphysicalElements of Justice, supra note 6, at *211.

42. When the reality of an object of thinking is regarded as the fulfillment of a

purpose, its production is related to a conception n which that object is posited as an end

to be realized. This conception of end functions as the cause which both initiates andgoverns the activitythatproduces the object. See I. Kant,CritiqueofJudgement, Part 1,

? 10 J.Bernard trans. 1951). More generally, see Kant's definition of an "end" in his

Introduction to The Doctrine of Virtue. I. Kant, The Doctrine of Virtue *380, *385 (M.

Gregor trans. 1964) [hereinafterDoctrine of Virtue].

43. MetaphysicalElements of Justice, supra note 6, at *212-13.

44. Id.

45. Id. at *214, *221.

46. Id. at *213.








thing will be. Willkiirs thus a necessary but not sufficient condition ofthe intelligibility of purposive activity.47 It focuses on the fact that ac-

tion is purposive, that is, directed toward ends, and not on how a par-ticular content comes to be chosen as an end.

Although the faculty of desire is always determined, that is, di-rected, toward a particularobject, it can be determined toward it in twovery different ways.48 The principle of determination must be internalto the subject but it can be internal either through contingent inclina-tion or through rational thinking. Where a subject can represent noth-ing as an end unless it is in fact inclined toward it, its activity,althoughpurposive and consequently an expression of Willikir,is unfree.49

Whether an object of desire is represented as an end depends on howits particular content affects the particularmake-up of the subject. Therepresentation does not function as a universal form which can haveequally this or that object as its content.

In contrast, Willkr is free, if it satisfies two conditions. First, thesubject's capacity to set ends must not be determined by, nor condi-tional upon, its wanting anything in particular. Second, the subject'schoice can be determined in accordance with a prioriuniversal criteria,that is, the requirements of rational thought.50

At this point, Kant introduces the concept of "Wille" o completethe account of free purposive activity. It arises in the following way.Free will is purposive activity in which the subject can be the represen-tative of every rational being and the object is such that it can be chosenby such a representative subject. The elucidation of free will presup-poses, negatively, that choice (Willikir) eed not be predicated upon theassumption that a particular content is in fact subjectively wanted.Therefore, the principle which directs Willikirn its action can only befound in that which remains after abstracting from the particularcon-tent of everything wanted. This principle can only be theforn of anobject of purposive activityunqualified by subjectively contingent con-ditions.5' What is meant by Wille s for Willikir o be directed by thelaw-like form of action itself. This form is necessarily universal pre-cisely because it is what is left over after abstracting from all particularcontent.52

We can now understand Kant's view of the connection betweenfree will on the one hand, and practicalreason, autonomy, and the cate-

47. Lewis White Beck comes to a similar conclusion. See Beck, A Commentaryon

Kant's Critique of PracticalReason 198-202 (1960).48. Critique of PracticalReason, supra note 7, at *34.49. Metaphysical Elements ofJustice, supra note 6, at *213, where Kant calls the

unfree will "animal Willkr".50. Id.51. Id.; see also I. Kant, Foundations of the Metaphysicsof Morals *397-98 (L.

Beck trans. 1969) [hereinafter Foundations of the Metaphysics of Morals];Critique ofPracticalReason, supra note 7, at *26-29.

52. Metaphysical Elements ofJustice, supra note 6, at *213-14.








gorical imperative on the other. Kant tells us that Wille,nsofar as it can

determine Willkfir, is practical reason itself.53 It will be recalled that

Kant understands practical reason to be thinking which gives itself anobject that is consistent with the inner requirements of thinking alone.In this sense, the production of the object is said to derive from reason.Practical reason, then, refers to the unqualified spontaneity of thinkingas an active causal principle.54 At no point in the analysis of practicalreason does thinking relate to an object that is given to it from theoutside by something else: "for then the subject would attribute thedetermination of its power of judgment not to reason but to an im-pulse."55 Free will-Willktir that can be determined by the form of

thinking-is the sole conception of purposive activity which fulfils therequirement of judgment being determined by reason rather than byimpulse. It is only in free will that an object is posited whose content isvalidated by the form of universality. Wille is the faculty of desireviewed in relation to this determining ground of Willikir. Conse-quently, Wille s practical reason itself.

Moreover, Kantequates Willewith the principle of the autonomy ofthe will because the thinking subject, as free will, relates only to whatthinking gives itself. The only law which governs free will is one that

the subject, as rational will, legislates for itself.56Finally, Kant says that unconditional practical laws (categorical im-peratives) are founded upon free will.57 According to Kant, an impera-tive is categorical if it "does not command mediately, through therepresentationf an end that could be attained by an action, but immedi-ately, through the mere epresentationf this action tself its orm), which [isthought of] as objectively necessary ....9958 We have seen that free willentails, negatively, the will's capacity to abstract from the particularcontent of everything wanted and, positively, the will's determinationby the form of purposive action. Therefore a categorical imperativerefers to no determination of the will except for its freedom.59 In thissense, freedom must be presupposed if categorical imperatives are tobe possible.

Willikir nd Willeare, then, necessarily interconnected and distinctaspects of free will. This concept of free will is, according to Kant, ba-sic to both parts of the metaphysics of morals.60 In his view, external

53. Id. at *213.

54. Foundations of the Metaphysics of Morals, supra note 51, at *443; see also Cri-tique of Practical Reason, supra note 7, at *50 (describing "the idea of freedom as afaculty of absolute spontaneity.").

55. Foundations of the Metaphysics of Morals, supra note 51, at *448.

56. MetaphysicalElements of Justice, supra note 6, at *223.

57. Id. at *22 1.

58. Id. at *222 (emphasis added).

59. Id.

60. Id. at *22 1.








and internal freedom are forms which begin from and specify this gen-eral concept. Each embodies the unity of Willkir and Wille.

At this stage, I have shown that Fletcher's conception of Willkturand Willeas two different kinds of willing is not Kant's. Moreover, ifboth Willkiir nd Willeare necessarily united in the concept of freedom,it must be incorrect to regard, as Fletcher does, a form of freedom asbased on only one of them. Law cannot be an expression merely ofWillkzir.Finally, I have suggested how the concept of free will is neces-sarilyconnected to the three notions of practical reason, autonomy andthe categorical imperative. If, as Kant thinks, external freedom presup-poses the general concept of free will, it must express both practical

reason and autonomy. And, for the same reason, external freedom canentail categorical imperatives. Unless the connection between law andfreedom is denied-a possibility which Fletcher's own interpretationsquarely rejects-law, and not only morality, must be grounded in Willeand must be practical reason itself. Law also can embody categoricalimperatives-such as, for instance, the one implied in contractual obli-gation which was discussed in Part One. Fletcher's central thesis re-garding the difference between law and morality is, therefore,untenable.

However, to establish completely my second proposition that legalobligation embodies the unity of Willkfirnd Wille, must still show howthe general concept of free will is specified in external freedom throughthe notion of intelligible possession. Kant states that intelligible pos-session rests upon "the concept of freedom [which] can only be de-duced from the practicallaw of reason (the categoricalmperative)s a factof practical reason."'6' What follows is merely the barest outline of theargument that is found in the Rechtslehre.62

Practical reason begins with a subject whose activitycan be viewedfrom a universal standpoint and goes on to elucidate a determinate ob-ject which, being adequate to this perspective, can be willed by such asubject. The elucidation of an object of practical reason proceeds intwo stages. In Part Three, I will suggest that this two-step procedureestablishes the difference as well as the relation between external andinternal freedom. In this Part, I will focus on the first stage, externalfreedom, and will indicate how intelligible possession is derived frompractical reason.

In the first phase, the categorical imperative of practical reason ismerely permissive and essentially negative.63 Because practicalreason

commences with the complete abstraction from the content of objectsof desire, its end or object can be initially characterized only in purely

61. Id. at *252 (emphasis added).62. The discussion whichfollows refers to Kant's account of "the juridical postulate

of practicalreason." See MetaphysicalElements ofJustice, supra note 6, at *245-55. Afuller treatment is developed in P. Benson, supra note 30.









formal terms. Therefore, practical reason (Wille)cannot yet positively

direct Willkiir oward a set of determinate objects which must be recog-

nized as substantive ends by every rational being. At this point, it onlyprohibits Willkturrom acting in a way that denies the will's capacity to

be a subject which can have an object adequate to its universal andrational nature.

Willkiirs a living being's capacityto act in accordance with concep-

tions that function as ends and it therefore presupposes the physical

possibility of using things as means toward chosen ends. Willkturn-

cludes the physical possibility of a relation between Willkiir nd things

which, being situated externally in time and space, can be used by

Willkiir.From the standpoint of the individual whose subjective interestlies exclusively in the fulfillment of his various ends, this relation is all

that is involved in his volition. But, though this physical relation may

express Willkiir,t does not yet embody external freedom. To do so, it

must be determined by Wille.

Practicalreason (Wille)determines Willkiir s free through its cate-

gorical command that the physical relation be viewed in terms which

abstract from all empirical conditions and that every expression of

Willkiirbe consistent with the possibility of its being so construed.

Whether something is mine cannot be determined by my being subjec-tively inclined toward it or by external factors which may affect either its

particular physical nature or my physical control over it. The physicalrelation between Willkiir nd thing must be able to count as an intelligible

relation between a formally universal subject and object. The physical

possibility of using things must be grasped in terms of the normative

possibility of having as one's external object anything that is differentfrom a subject. For practical reason, an object is "external" not be-

cause it is located in time and space but insofar as it is devoid of free

will. In Kant'sview, the significance of the intelligible relation is that itis the first way in which practical reason can express the most funda-

mental postulate of the entire realm of freedom: the difference be-

tween a rationally free being or "moral personality"-which must

always be recognized as an end in itself-and external things-whichcan simply be used.64 This difference is made explicit through practicalreason's requirement that it be normatively possible for Willktiro useexternal things in a way that is not determined by empirical conditions,and in particular, that is independent of the contingencies of physicalpossession. The faculty of desire is thereby directed toward an objectin accordance with a priori universal criteria. In other words, Willklirs

determined by Wille.

The possibility of such "intelligible" or "noumenal"65possessionis the rational universal dimension in the physical relation between

64. Id. at *223.

65. Id. at *255.







574 COLUMBIALAW REVIEW [Vol. 87:559

Willkuirnd external things. As such, the physical relation constitutesproperty, which is the fundamental category of private law. As prop-

erty, the external object is represented as embodying the free will'spurposive capacity even if the object is not actually physically pos-sessed. Because the intelligible relation between will and external ob-ject directly embodies the will's capacity to abstract from all sensibleconditions, it expresses the external xistence offree will. Property is theinitial shape of external freedom in the Kantian framework.

Kant's concept of Right is entailed by the notion of external free-dom in the following way. Since property embodies the universal as-pect of free will, it must be recognized as valid by every will (Willikir).

Accordingly, everyone is prohibited from using anything in a way thatdenies the objective possibility of its being intelligibly mine or yours.The prohibition becomes particularized as a discrete relation betweentwo wills (Willikir)with respect to a thing, in which there is a right toexclude on one side and a correlative negative duty to refrain from useon the other side.66 This relation of will to will signifies that the first

person is so bound to a thing that it is possible for him to be wrongedby the other's unapproved use of it even when the thing is not in thefirst'sphysicalpossession. This relation of right and correlative duty ex-

presses the concept of Right as it pertains to the possibility of intelligi-ble possession.67 The basic categories of private law successivelydevelop and embody the notion of intelligible possession. Public law,which completes the account of Right, incorporates an even more com-plex meaning of external freedom that at the same time preserves itsinitial rational significance as the possibility of intelligible possession.

It is now possible to understand Kant's characterization of the con-cept of Right. Right makes explicit the normative condition which mustobtain in a relationship between wills if their external freedom is to be

respected. Being based on external freedom, it presupposes the will'scapacityto abstract from all sensible conditions. In the Introduction tothe Rechtslehre, ant states that the concept of Right considers "only he

formof the relationship between [two] wills insofar as they are regardedas free, and whether the action of one of them can be conjoined with

66. Philosophy of Law, supranote 15, at 96-97. My own translationof this passageis:

The abstraction from the sensible conditions of possession (which entail the

relationship of a person to things hat cannot be obliged) is nothing other thanthe relationship of a person topersons.This latterrelationship entails an obliga-tion, relative to the use of things, that can be imposed by the will (Wille)of oneperson upon all the others, insofar as this will is in conformitywith the axiom ofexternal freedom, the postulate of this faculty and the universal legislation ofthe will (Wille)conceived of as unified a priori. This is the intelligibleossessionof things, that is by pure Recht ...

(My translation is based on Hastie and Philonenko.)

67. MetaphysicalElements ofJustice, supra note 6, at *249-50, *253-54.








the freedom of the other in accordance with a universal law."68 Rightdoes not take into account "the matterof the will, that is, the end that a

person intends to accomplish by means of the object that he wills.."69 For Kant, Right beginswith the complete abstraction from allparticular ends and it considers only the form of the relationship be-tween wills viewed as free, i.e. as determined by Wille. This point ofdeparture is required because "it is a postulate of the Pure [Practical]Reason that we ought to abstractfrom all the sensible conditions ... inreference to the [concept] of Right ....970

The crucial point is that Right does not begin with individuals' sub-jectively contingent choices and then move to a perspective sufficiently

formal to integrate them under general rules.7' Contrary to Fletcher'sassertion, the explanation of the formal nature of Right cannot be thatthere are conflicting choices which Right must reconcile or that there isa substantive end, such as maximum individual choice,72 which Rightmust serve. Because Right begins with the complete abstraction fromsubjectively contingent choices, the latter are categoricallyxcluded fromthe concept of Right and cannot be its content or its goal. By virtue ofthis starting point, Kant expressly characterizes the obligation in Rightas an unconditional categorical imperative.73 Fletcher's understandingof Right, which stems from his misconstrual of external freedom asbased on Willkitr,s, therefore, fundamentally incompatible with a Kant-ian perspective.

III.

Kant's account of Right is merely the first part of a metaphysics ofmorals which also includes a doctrine of Virtue. According to Kant,there is a metaphysics of morals because both law and morality aregrounded in one supreme principle, autonomy of the will. Earlier, I

suggested that Fletcher's construal of external freedom makes the inte-

68. Id. at *230 (emphasis added).69. Id. (emphasis added).70. Philosophy of Law, supra note 15, at 104.71. Alone among contemporary Kantians,John Rawls has clarified the special na-

ture of the Kantian conception of the beginning point of Right and has elaborated atheory of public Right on the basis of that conception. See Rawls, KantianConstructiv-ism in Moral Theory, 77J. Phil. 515, 549-50 (1980).

72. In his formulation of the concept of Right, Kant makes no mention whatsoeverof "maximum" Willkzir. n this regard, it is interesting to note that Rawls has restated

the first principle of justice as an equal right to "afully adequate cheme" rather than to"the mostextensiveotal scheme" of equal basic liberties. 3 J. Rawls, The Basic Libertiesand Their Priority,in The Tanner Lectures on Human Values 5 (S. McMurrined. 1982)(emphasis added).

73. The Doctrine of Virtue, supra note 42, at *388, where he writes, "We have

alreadyndicated how [if we abstract from all ends] the formal principle of duty is con-

tained in the categoricalmperative:So act that the maxim of your action could become auniversal law.' " (emphasis added). Kant is referring here to the universal principle of

Right.








gration of law and morality impossible. It is not surprising, therefore,that when Fletcher explicitly addresses the question of the unity of

Kant's legal and moral theory, he concludes that at present it remainsunresolved. He canvasses a variety of answers proposed by post-Kant-ian writers and argues that none is able to maintain the specific charac-ter of external freedom. What is at stake here is the currently much-debated question regarding the priority of Right vis-a-vis the Good.Fletcher is saying that the Kantian perspective does not appear to pro-vide a satisfactoryanswer to this fundamental issue.

I wish to suggest, to the contrary, that Kant resolves this questionconsistently with the notion of external freedom discussed in PartTwo.

Once Fletcher's construal of external freedom is rejected, and law, inKant's conception, is seen to be also grounded in the autonomy of thewill, it becomes prima acie possible to integrate law and morality as twoparts of a metaphysics of morals. Having indicated already why law em-bodies the unity of Will/iurand Wille, now wish to sketch Kant'sview asto how it does so differently from morality. I will try to show that thearticulation of their difference does not contradict but rather preservesand fulfills the idea of their unity under a single comprehensive notionof practical reason. Briefly stated, law and morality are two intercon-

nected stages in the elucidation of an object of practical reason.In Right, Willdiur's reedom, i.e., its independence from inclination

and its determination by Wille, s not itself an object of individualvoli-tion but is objectively embodied through a relationbetween wills re-garded as free. At this point, viewing the individuals' wills as freedepends neither upon their subjective volitions nor upon their abilitytoact out of duty alone. Accordingly, Right need not presuppose thatindividuals are selfish, or alternatively, generous. It is entirely in-dependent of such qualifying conditions because, being expressions of

inclination, they are as such categorically irrelevant.74 Here, the per-spective of freedom is still wholly external to individuals' consciouspurposes. It is the universal dimension that ought to be implicitn theirconscious interactions and which is explicitly ecognized in legal judg-ments that coerce. Right does not, positively, designate a particularend as obligatory; rather, it "abstracts from all ends as the matter ofchoice"75 and specifies only the universal form which must not be vio-lated in one's choice of any end if the subject of action is to berespected as a free will. In other words, Right articulates the normativecondition under which any object whatever must be willed if it is tocount as a possible end of a rational being. By vindicating the subjectas moral personality-i.e., as someone who can be obliged-Right es-tablishes the indispensible condition under which an obligatory end isalone possible.

74. MetaphysicalElements of Justice, supra note 6, at *230-31.75. Doctrine of Virtue, supra note 42, at *374.








By contrast, in morality, practical reason requires that it be not

only possiblebut also necessaryor the free will to have a determinate

end.76 Whereas Right deals only with the formal condition of choice,morality goes "beyond this and provides a matter(an object of free

choice), an end of pure reason which it presents also as an objectivelynecessary end."77 A specified content is now positively integrated as its

object and so a determinate end becomes at the same time a duty: eve-

ryone must will the determinate end(s) out of duty alone and not for

the sake of some further end which could only refer to an object of

inclination. This is the sphere of internal reedom and its obligationsare moral. By requiring Will/iurto will a determinate end, the "Good,"

practical reason completes the elucidationof an

objectof free will. In

order for something to be a necessarynd for rational beings, it must

first of all be apossible nd for them. Right, which articulates the norma-

tive condition under which an object of volition is rationally permissi-

ble, is therefore prior to morality.

The connection between Right and the Good-and between exter-

nal and internal freedom-is thus expressed as the conceptual priority

of Right vis-a-vis the Good in the order of elucidating an object of prac-tical reason. Kant's fuller explanation of the priority of Right can beoutlined as follows. For something to constitute a content of the Good,i.e. to be an obligatory end, it cannot be given by inclination but, on thecontrary, it must be posited by the will in accordance with the law offreedom. To be an adequate expression of freedom, the particular

matter of all ends must first be established as valid from a purely uni-versal standpoint. The Good thus presupposes the stage of the willwhich has initially abstracted from the matter of all ends and which is

determined in its choice by the form of univeral law. But the concept ofRight embodies only this universal standpoint and its sole function is to

articulate the formal condition that must govern the exercise of choice.

It occupies the entire ground of the first stage of free will. Accordingly,the Good presupposes and must be consistent with the possibility of

Right. However, unlike Right, morality introduces a specific matter orend which, being adequate to that standpoint, is obligatory. In doing

so, the Good goes further than Right and for this reason comes afterRight in the order of elucidating the object of practical reason.78

76. Id. at *380.

77. Id.

78. Kant's conception of the priority of Right is already present in the Foundationsthrough the distinction drawnbetween thinking nd willinga maxim as a universal law of

nature without contradiction:

Some actions are of such a nature that their maxim cannot even be thought s auniversal law of nature without contradiction,far from it beingpossible hat one

could will that it should be such. In others this internal mpossibilitys not found,

though it is still impossible to will that their maxim should be raised to univer-

salibility of a law of nature . . . the former maxim conflicts with the stricter or

narrower (imprescriptible)duty, the latter with broader (meritorious) duty.







578 COLUMBIALAWRE VIEW [Vol. 87:559

The content of the Good must thus arise out of and preserve whatis first entailed in the purely formal condition of Right. So, at this sec-

ond stage, the various categories of Right are now availableas adequatecontents of the Good: everyone is obliged in ethics to will Right for itsown sake.79 However, in making Right a necessary object of individualvolition, we are no longer in the sphere of Right. This internalizationof freedom in individual volition comes after its manifestation in an ex-ternal relation of will to will.

In Kant's view, the conceptual priority of Right does not implyeither that Right is more valuable than the Good or that the Good issubjectively and not objectively valid. Viewed in terms of its specific

nature, i.e., as Right, Right is not more valuable than aspects of theGood because the category "value" (i.e., the quality of being a ration-ally desirable end), only applies at the stage of the Good. Value is cate-gorically irrelevant in Right because Right specifies only the weakernotion that an end is permissible. Insofar as Right is regarded as valua-ble, it is being viewed as an aspect of the Good and as one possiblesubstantive value among others. Nor does the priority of Right implythat value is merely subjective. On the contrary, by initiallyarticulatingthe indispensable condition under which there can be an obligatoryend, Right provides the essential precondition for establishing ration-ally necessary goods.80 The conceptual priority of Right means simplythat logicallyRight comes before the Good in the order of eludicatingthe object of practical reason. In the Kantian framework,the fact thatRight is conceptually prior indicates that it is only a preliminary andnecessarily incomplete elucidation of its object.8' The more complexconcept of the Good is its full articulation.

CONCLUSION

I began the examination of Fletcher's interpretation of Kantianlegal theory by considering his reading of Kant's criticism of Mendels-sohn. I suggested that his reading of that passage is wrong and that hismisconstrual stems from a basic error in his interpretation of Kantianexternal freedom. More specifically, we saw that Kant criticizes Men-delssohn for failing to ground contractual obligation on the will's ca-pacity to abstract from all sensible conditions. Kant's point is thatcontract expresses the parties' common will (Wille). But Fletcher's con-ception of external freedom as based solely on Willkir,a priori, pre-

cludes this interpretation. Hence Fletcher is compelled to view Kant's

Foundations of the Metaphysics of Morals, supra note 51, at *424 (emphasis added).


80. See Kant's discussion of the concept of an object of pure practical reason inCritique of PracticalReason, supra note 7, at *64-66.

81. This point is made explicitly by Hegel. See G. Hegel, The Philosophy of Right,? 32 & Addition (Knox trans. 1952).








criticism as turning on something else, such as the distinction between

legal and moral obligation.

I then tried to show that Fletcher's characterization of thediffer-

ence between law and morality is fundamentally inadequate from aKantian perspective. Kant views Willkiir nd Willeas unified aspects offree will and regards law and morality as distinct but interconnectedways of embodying their unity. Fletcher, in contrast, treats Willkiir ndWilleas different kinds of willing and grounds law on the former, moral-ity on the latter. Fletcher's central thesis is that law, unlike morality, is

based on Will/iurand that, as a result, it does not express either practi-cal reason or autonomy. But this view of law cannot make sense of theconcept of "intelligible possession" which is fundamental to the wholeKantian architectonic of private law. For, according to Kant, intelligi-ble possession directly expresses the will's capacity to abstract fromsensible conditions and is grounded upon the categorical law of practi-cal reason.

Kant's concept of external freedom is not, as Fletcher maintains,the freedom to act on subjectively contingent ends. Like internal free-

dom, external freedom begins with the complete abstraction from allcontingent ends and entails the determination of purposive activity(Will/iur)by the form of universal law (Wille). More specifically,external

freedom is expressed in the external relation between a will and an ob-ject of that will-an object being anything that the will has the physicalcapacity to use. External freedom is this relation grasped indepen-

dently of physical contingencies and in accordance with the possibilityof intelligible possession. Kant's concept of Right is in turn based onthis notion of external freedom. Contrary to Fletcher's view, the goalof Right is not to maximize individual expressions of Will/dir.Rather,Right's function is to make explicit the normative condition in whichexternal embodiments of Willeare respected in relations between per-

sons. Consequently, the universal principle of Right as well as all thejuridical duties derived therefrom are unconditional categoricalimperatives.

Finally, I attempted to outline how Kant differentiates and relateslaw and morality in a way that is consistent with their sharing the com-

mon ground of autonomy of the will. In the Kantian perspective, the

task of integrating law and morality under a comprehensive notion ofpractical reason is not collateral to the work of defining external free-dom. Kant requires that external freedom be defined such that it is

qualified to belong to a unified metaphysics of morals. Fletcher's fail-ure to show how his construal of external freedom can be integrated in

this manner thus strikes at the very core of his interpretation of Kant'slegal theory.

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