8

¹ For the text of the passage, see below nn. 7 and 9.

² Immanuel Kant, The Metaphysics of Morals, tr. Mary Gregor (1996), [6:209].

³ The leading representative of this view in recent years was Robert Nozick (though he would not have described his position in the terminology I use in this paragraph); see Robert Nozick, Anarchy, State, and Utopia (1974), 149–82.

⁴ For a recent example of this, see Liam Murphy and Thomas Nagel, The Myth of Ownership: Justice and Taxes (2002), 74–75, 173–77.

⁵ Notable examples for contract, torts, and unjust enrichment, respectively, are: Anthony Kronman, “Contract Law and Distributive Justice,” (1980) 89 Yale L.J. 472; Gregory Keating, “Reasonableness and Rationality in Negligence Theory,” (1996) 48 Stan. L. Rev. 311; Hanoch Dagan, The Law and Ethics of Restitution (2004).

⁶ Kant, for instance, has nothing like the Lockean proviso that limits property rights for Nozick; see Nozick, above n. 3, at 178–82.

⁷ Kant, above n. 2, [6:328].

⁸ Ibid., [6:231].

⁹ Ibid., [6:326].

¹⁰ Ibid., [6:230].

¹¹ Ibid.

¹² Ibid., [6:231].

¹³ Jeffrie Murphy, Kant: The Philosophy of Right (1970), 145.

¹⁴ Above n. 2, [6:393]; Groundwork of the Metaphysics of Morals, Morals, tr. Mary Gregor (1996), in The Cambridge Edition of the Works of Immanuel Kant: Practical Philosophy, [4:423], [4:430].

¹⁵ For an argument that support of the poor exemplifies a duty of beneficence, see Allen D. Rosen, Kant’s Theory of Justice (1993), 173–208. Rosen draws on the duty to aid another that Kant sets out in the Groundwork, above n. 14, to conclude (at 201) that:

if no one can rationally will the maxim of never helping others as a law of nature … then neither can an entire people rationally will as a law of political society that the state should allow them to perish rather than supply their basic needs. The same reason that makes it impossible rationally to will the maxim of never helping others as a law of nature also makes it impossible rationally to consent to a law of political society that would permit the state to ignore the basic needs of its citizens.

However, it by no means follows from the notion that everyone is obligated to help another that everyone is also obligated to give the state the power to coerce such help.

¹⁶ Mark LeBar, “Kant on Welfare,” (1999) 29 Canadian J. Phil. 225; Wolfgang Kersting, “Kant’s Concept of the State,” in Essays on Kant’s Political Philosophy, ed. Howard Williams (1992), 143, 164; Bruce Aune, Kant’s Theory of Morals (1979), 157; Mary Gregor, Laws of Freedom (1963), 36.

¹⁷ Kant, “On the Common Saying: That May Be Correct in Theory but Is of No Use in Practice,” in The Cambridge Edition of the Works of Immanuel Kant: Political Philosophy, tr. Mary Gregor (1996), [8:298].

¹⁸ Ibid.: “If the supreme power gives laws that are directed chiefly to happiness (the prosperity of the citizens, increased population and the like), this is not done as the end for which a civil constitution is established but merely as a means for securing a rightful condition, especially against a people’s external enemies.”

¹⁹ Kant, above n. 2, [6:222] says that duty, “that action to which someone is bound,” is “the matter of obligation,” and he defines obligation as “the necessity of a free action under a categorical imperative of reason.”

²⁰ For brief suggestions of an approach similar to the one set out here, see Mary Gregor, “Kant on Welfare Legislation,” (1985) 6 Logos 49, 55; Leslie Mulholland, Kant’s System of Rights (1990), 317, 39 (see below n. 81). For a related interpretation see Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (2009), 267–99.

²¹ Kant, above n. 2, at [6:318].

²² Hanoch Dagan, “The Distributive Foundation of Corrective Justice,” (1999) 98 Mich. L. Rev. 138.

²³ This phrase is taken from John Rawls, Political Liberalism (1993), 259–62.

²⁴ A terminological note: The word “property” that I use in this section is not strictly accurate from a Kantian perspective. Kant is dealing with the more general idea of that he calls “having something external as one’s own” or “external mine and thine” [6:245]. What we think of as property, namely, things that have an in rem legal status, is just part of what Kant is referring to. Kant’s “external mine and thine” also includes in personam contractual entitlements and entitlements within the status relationships of the household [6:247–48]. Perhaps “ownership” might be a more appropriate English term for capturing Kant’s capacious notion of what one has as one’s own, although I doubt that English-speakers would differentiate between ownership and property in this way. (Kant himself uses the word “ownership” (Eigentum) for what we would call “property” [6:270].) I have simply used the word “property” throughout, despite its inaccuracy.

²⁵ Kant, above n. 2, [6:306].

²⁶ Ibid., [6:267], [6:306].

²⁷ Ibid., [6:236].

²⁸ Ibid., [6:306].