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154 THE MEASURE OF LAW



assumption that ‘naturalizes’ the institution, but this still does nothing to address

the question about what rights the immature (permanent or otherwise) should or

should not be acknowledged to have.2

The problem is that there is nothing in Aristotle’s vocabulary that corresponds

directly to ‘right,’ and it would not occur to him to frame the question in

anything like this way.3 Masters directed, it was their role to deliberate about

what was to be done and this gave them rightful claims. Slaves carried out

directives; that was their duty and it was not their role to reason why or their right

to hear reasons. The supposed ability of the former to initiate discursive thought

and the congenital inability, as Aristotle saw it, of the latter was no doubt little more

than a projection and under-scoring of the roles assigned to them by society.

Nevertheless, the value of having people who were supposed to be able to think

well completely direct the lives of those who could not was taken to be obvious—

the rightful claims and duties entailed by these differences of function did not

seem to call for justification.

Sixteen centuries later, St Thomas Aquinas offered much the same

justification for the existence of slavery, although his version at least

acknowledged the slave’s standpoint: it was ‘useful to this man [the slave] to be

ruled by a wiser man, and the latter to be helped by the former as the Philosopher

[Aristotle] states’ (IIaIIæ Q57 A3). The justification given concentrates on the

advantages of the arrangement, and although Christian morality, which Aquinas

helped to articulate, recognized slaves as having in effect more rights (to

sustenance, to their own families and to freedom from physical abuse and sexual

exploitation) than they were granted in the ancient world, the advantage of

having the lives of the cognitively less well endowed under the comprehensive

control of a more talented master (or tied to his land), rather than a matter of

mutual agreement between them, was not addressed. Roles seemed to have a

unity that made such justification unnecessary.

One thing that may still surprise, after the relative unimportance of rights and

roles is appreciated, is that rhetoric about basic equality and natural freedom was

not unknown in the ancient world, but it did not work as we would expect it to

work against slavery as an institution. This is the watershed effect: no matter how

high the rhetoric falls, if it does not fall on the right side, it does not flow in the

expected direction. Talk of a fundamental equality among all men and the idea

that all men are born free appear long before the institution of slavery was ever

seriously challenged. The writers who used these expressions were, moreover,

well equipped to distinguish what a society regarded as lawful and what it ought

to regard as lawful.

Cicero (first century BCE) articulated the Roman attitude to law in such a way

that it appeared to answer to something more universal than the Roman sense of

ius. Connected to this doctrine that what is lawful is a universally recognizable

natural property, which appears at the head of this chapter, is a striking statement

of the fundamental similarity of all human beings: ‘No single thing is so like

another, so exactly its counterpart, as all of us are to one another’ (Keyes 1938:



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Laws, I.x.29). Conclusive proof of our common human nature, according to

Cicero, is that we all satisfy the same definition; indeed, all humans are sharply

distinguished from beasts by possessing a capacity for ratio (30).

For those creatures who have received the gift of reason (ratio) from

Nature have also received right reason (recta ratio) and therefore they have

also received the gift of Law (lex), which is right reason applied to

command and prohibition. And if they have received Law, they have

received ius also. Now all men have received reason; therefore all men have

received ius.

(33)

(On the range of meanings of ratio, see Sections 3.4 and 6.2.)

Where Aristotle thought some members of the species were deficient in the

capacity that distinguishes humans from other animals, Cicero reckoned that we

all had the beginnings of intelligence (intellegentia) imprinted on our minds, and

with the right nurture we could all reach an acceptable, even somewhat

demanding, level of competence in its use. What prevents people reaching an

acceptable level is another aspect of our fundamental equality: we are all subject

to the same influences, ‘troubles, joys, desires and fears’ (32), which generate

‘bad habits and false beliefs’ that ‘twist weaker minds’ (29). Thus we find, in the

end, that some people’s natural capacity for ratio is so damaged that (as a

fragment of

Cicero’s Republic, III.xxv, suggests) it is not improper to exercise dominium

over those who are not capable of governing themselves. Cicero thus needs to

answer some of the same questions that Aristotle left unanswered: what does it

take to govern oneself? Is it proper to treat those who cannot govern themselves

as marketable commodities? However, Cicero had not set out either to attack or

to defend the institution of slavery when he insisted on the similarity of one

human being to another. He was considering rather the basis of law, and he claimed

that it is a consequence of our common capacity for discursive thought that ‘We

are so made by nature that we share with one another, and pass on to all, (a sense

of) ius’ (Laws I.12.33). This appeal to our common humanity might sound to us

like it ought to issue in rejection of the practice of slavery, but what Cicero

apparently thought followed was that all would recognize the authority of certain

legal institutions, which enshrined among other things the practice of slavery.

Roman legal experts writing two to four centuries after Cicero felt comfortable

living in a slave society while embracing the thesis that Aristotle had tried to

refute, viz. that the institution of slavery has no natural basis. Ulpian, explaining

the Latin term for freeing a slave, manu-missio, writes ‘whereas one who is in

slavery is subjected to the hand (manus) and power of another, on being sent out

of hand (manu+missio), he is freed of that power,’ and adds ‘of course everyone

would be born free by natural ius, and manumissions would not be known when

slavery was unknown.’ Florentinus, a few decades after Ulpian, states flatly



156 THE MEASURE OF LAW



‘Slavery is an institution…whereby someone is against nature made subject to

the ownership of another’ (Watson 1985: I.1.4, I.5.4).4 Florentinus and Ulpian

did not, however, any more than did Cicero, suggest that slavery should be

abolished.

As a group, the Roman jurists of this period distinguished the customs and

institutions that might be endorsed and enforced in any given kingdom or citystate (ius civile) from customs and institutions that all nations (clans, peoples,

gens) observed. The latter they designated either ius gentium or ius naturale.5

Once it became possible to think and speak of slavery as a violation of a person’s

natural rights, scholars traced the antecedents of this back to Cicero and to the

jurists represented in Justinian’s Digest—‘natural right’ being, after all, a

possible translation of ius naturale (for example, Carlyle 1930:5–13). But there

is no indication anywhere of reservations about the institution of slavery. We

find what may strike us as humane and enlightened attitudes toward the

treatment of slaves expressed using cognates of ius:

But let us remember that we must have regard for justice (justitia) even

toward the humblest. Now the humblest station and the poorest fortune are

those of slaves; and we are not given bad guidance by those who bid us

treat our slaves as we should our employees: they must be required to

work; they must be offered fair dealings (iusta prœbenda).

(Cicero, De Officiis; Miller 1913: I.41)

But there is no suggestion that the institution itself might be contrary to what is

ius.

Early and medieval Christianity has the same perplexing (to us) features. The

salvation of every human being was equally important. In St Paul’s words:

‘There is neither Jew nor Greek, there is neither bond nor free, there is neither

male nor female: for ye are all one in Christ Jesus’ (Galatians 3:28). But this lack

of distinction between human beings in relation to God did not translate into

sustained attempts to subvert these distinctions in everyday life. That there is

neither male nor female in Christ Jesus did not mean that different social roles

could be abandoned, even in church. St Paul insisted that women maintain their

traditional submissive roles and ‘keep silence in the churches: for it is not

permitted unto them to speak; but they are commanded to be under obedience, as

also saith the law’ (I Corinthians 14:34). Like the more humane pagans,

Christians acknowledged the humanity of their slaves and thought it proper to

treat them fairly: ‘Masters, give unto your servants that which is just [to dikaion]

and equal [t n isot ta]’ (Colossians 34:1). But servants were equally under

instructions ‘to obey your masters according to the flesh not in eyeservice, as

menpleasers; but in singleness of heart, fearing God’ (ibid. 3:22). Social

differences between master and servant were insignificant in the light of the

relation that all people should have to God: ‘For he that is called in the Lord,

being a servant, is the Lord’s freeman; likewise also he that is called, being free,



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is Christ’s servant’ (I Corinthians 7:22). But the social differences remained

intact.

Although not as important to the economy of medieval Europe as it had been

to the Roman world, slavery as an institution continued to exist. The Church

accepted and participated in it—Church law (known as ‘canon law’) up to the

thirteenth century was based on the assumption that the Church owned slaves6—

although it insisted on humane treatment of them. Where St Thomas Aquinas

(thirteenth century) would return to an Aristotelian position and rationalize the

institution of slavery in terms of its utility, St Augustine (fourth to fifth century)

had treated the condition as a consequence of man’s sinful nature (the lust for

domination), a just punishment for sin and an instrument of God’s judgment

(Bettenson 1972:XIV.13, XIX.15).

Christians from St Paul onward also used the vocabulary of natural law and

natural justice to articulate the idea that the laws of God stood above the laws of

men. One sees in Latin authors increasing use of the term lex naturale instead of

ius naturale, reflecting, no doubt, the idea that the standard against which human

(positive) law was to be judged was embodied in something with a linguistic

form, God’s word. In considering whether natural law (lex naturale) was subject

to change, Aquinas allowed (IaIIæ Q94 A5) that it was possible to add to natural

law but not to remove anything from it. Additions to natural law could still be

natural, since it was essential (of its nature) to law that it promote the common

good (Q90 A2), so an institution could be treated as naturally lawful if humans

discovered by using their minds that it promoted the common good:

A thing is said to belong to the natural law in two ways. First, because nature

inclines thereto: e.g. that one should not do harm to another. Secondly,

because nature did not bring in the contrary: thus we might say that for

man to be naked is of the natural law, because nature did not give him

clothes, but art invented them. In this sense, the possession of all things in

common and universal freedom are said to be of the natural law, because,

to wit, the distinction of possessions and slavery were not brought in by

nature, but devised by human reason for the benefit of human life.

Accordingly the law of nature was not changed in this respect, except by

addition.

(Q94 A5)

This is a revealing gloss: to say that all humans are born (their natural condition

is) free is to say about as much as to say that they are all born naked. Social

custom sanctioned by God’s law will see to it that they are dressed in clothes and

assigned social roles—some of them lowly indeed.

By the seventeenth century (at the ‘watershed’), slave labor had, because of its

use in colonies in the New World, once again become central to the European

economy, but as we noted in the previous section a new way of thinking about

liberty began to the replace the idea of a natural nakedness to be covered by a



158 THE MEASURE OF LAW



social role (including whatever forms of servitude went with a given role). It was

now possible to conceive of libertas as a possession that, like an artifact or a

piece of land, could be disposed of in whatever manner would contribute to an

individual’s welfare or survival.

Not everyone was comfortable with putting this much of an individual’s

destiny in his or her own hands, but one of the pivotal figures in the

transformation of European social thought, the early seventeenth-century Dutch

legal scholar Hugo Grotius, suggested that lifelong service in exchange for

lifelong maintenance was for many people an advantageous bargain (1625:255).

He regarded the basest form of voluntary subjection to be that resulting from

having staked one’s liberty on the throw of dice—as Tacitus reported the practice

among the Germans of the first century CE —but he nevertheless accepted even

the outcome of such a wager as binding (ibid.). Grotius also recognized the right

(ius) of conquerors to enslave their captives (690). That we are born free (the

traditional doctrine of the individual liberty of primitive man) does not mean that

humans ‘have the right never to enter slavery’ (551). Moreover, those

legitimately enslaved (not captured in an unjust war, or not simply kidnapped)

are not permitted to resist their masters, e.g. by trying to escape. The condition of

slavery and its attendant rights and duties are traced by Grotius to acts for which

a slave is responsible (contracting into slavery or going to war).

Much of the concern with these issues at this time hinged on their application

to a subject’s obligations to obey a sovereign ruler. Grotius cited Roman and

Hebrew law, which permitted voluntary slavery in order to underwrite the

suggestion that a people might surrender all their iura to a king and have no

more right to restrain those who abused the office of sovereign than a slave can

restrain an abusive master (103). The basis of obligations that arise within human

institutions generally (not merely those involving political authority) are in

Grotius and in subsequent thinkers increasingly seen as the products of voluntary

acts, promises, agreements and contracts.

Subsequent thinkers, however, were wary of the dire consequences (as well as

the somewhat paradoxical nature) of a voluntary act that constrains all scope for

future voluntary action as severely as does contracting into slavery. Sixty years

later, Locke appears to have moved a considerable distance from Grotius on

these matters, for he insists that people do not have the power to enslave

themselves, that the condition of slavery is tantamount to the state of war

between master and slave and that slaves are under no obligation not to resist

their masters (Locke 1689: Second Treatise, §§22–4). However, Locke had a

very narrow understanding of the condition of slavery: it was being under

‘Absolute, Arbitrary Power,’ the ‘Arbitrary Will of another Man’ (ibid.). Grotius

did not regard masters as having arbitrary power of life and death over their

slaves (1625:256) nor even the power to order them to commit a crime or to act

against the state (589). Limits like these on a relationship meant that it did not

count as slavery for Locke, but rather as ‘drudgery,’ a condition that individuals

could, he allowed, contract into.



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The significant difference between Locke and Grotius lies not in the practical

difference that their views made to the institution of slavery (which by then had

become the basis of the economy of large parts of the world) but in the relocation

of the constraints on the exercise of power by one person over another. Grotius

found classical sources (e.g. ‘humane’ Romans such as Cicero and Seneca) for

these constraints and in effect read them as part of the ius naturale in the sense

of ideal legal constraints on the laws and concrete morality of any particular

nation that practised slavery. Locke continued the trend of transforming these

constraints into the natural property of individuals: rather than natural law

constraining those who exercise power over others, everyone could claim, as

Locke did, to be born with ‘A Liberty to follow my own Will in all things, where

the Rule prescribes not…. As Freedom of Nature is to be under no other restraint

but the Law of Nature’ (1689:§22).

Moreover, Locke began to identify a kernel of that liberty as something that

one could not contract to surrender, or bargain with, as one might a commodity.

People have their lives as possessions which they cannot alienate or divest at

will, ‘For a Man not having the Power of his own Life, cannot, by Compact, or

his own Consent, enslave himself to any one, nor put himself under the Absolute,

Arbitrary Power of another to take away his Life, when he pleases’ (§23).

Grotius had recognized no principle that constrained consent in this way, and thus

had offered no basis for the notion of an ‘inalienable right.’

Locke, however, appears to be more in agreement with Grotius when he

allows that people who had committed capital offenses, or been taken prisoners

of war, might be reduced to slavery in the strict sense, since they had already

forfeited their lives. He also appears to have assumed that negro slaves in the

colonies had been ‘justifiably enslaved because they were captives taken in a just

war, who had forfeited their lives “by some Act that deserves Death”’ (see

Laslett’s note to Locke 1689:302–3). Grotius had also treated the conqueror’s

right to enslave the vanquished as a consequence of his right to kill them. The

momentum of the new conceptions of natural freedom and natural rights,

however, brought Jean-Jacques Rousseau in the eighteenth century to challenge

this supposed right of a conqueror and to deny vehemently that it provided any

rightful basis for slavery (1762:144–7).

7.3

Kant's canon

Reason and its imperatives

What we have just seen of the history of the evolution of ideas of natural law in

relation to the institution of slavery illustrates the extent to which those who

believe that the basis of our moral judgments lies outside us— in nature or in God

—tend to find there reflections of familiar attitudes and institutions. For a long

time this did not make anyone suspicious, as our minds were assumed to be

tuned to nature’s wavelength. What Cicero added, under the influence of his



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contacts with Stoic philosophers, was the suggestion that to obtain a better

reception we should tune our reason. For the Stoics were pantheists and took the

natural world to be a thinking, purposive being (an immanent god) and human

thought to be correct to the extent that it conformed to the ends of that being

(God or nature). The result of combining Stoic theology with Roman attitudes to

law is the heavy emphasis on ratio in Cicero’s statement of the fundamental

equality of human beings quoted in the previous section. St Paul more than a

century later took it that salvation required (among other things) conforming to a

law that at least some gentiles already obeyed because it was ‘written in their

hearts’ (Romans 2:12–15). St Ambrose and St Augustine (late fourth century

CE) identified what Paul had said was written in human hearts with lex

naturale.7

This bi-polar natural basis of what is lawful—something outside us and

something within us that receives or represents it—also underwent a

transformation in the seventeenth century. One can discern the direction of this

transformation in the cautious steps that Grotius took toward thinking through

the principles by which we might criticize existing legal institutions without

appealing to how God expected human beings to conduct themselves and their

interactions with one another. ‘What we have been saying would have a degree of

validity even if we should concede that which cannot be conceded without the

utmost wickedness, that there is no God, or that the affairs of men are of no

concern to Him’ (1625:13). Grotius thus moved in the direction of thinking

about what was natural without thinking of it as an expression of God’s will.

But what then is the source of the validity of the fundamental principles of law?

It would have to lie in what is written in our hearts or be found using the native

resources of our minds. Grotius was impressed by the way mathematicians used

their minds to reach enough clarity about very simple and basic concepts to

guarantee the correctness of definitions that were expressed using these

concepts. He believed that the same techniques could be used to articulate his

version of the doctrine of natural law:

I have made it my concern to refer the proofs of things touching the law of

nature to certain fundamental conceptions which are beyond question, so

that no one can deny them without doing violence to himself. For the

principles of that law, if only you pay strict heed to them, are in themselves

manifest and clear, almost evident as are those things which we perceive

by the external senses; and the senses do not err if the organs of perception

are properly formed and if the other conditions requisite to perception are

present.

(ibid.: 23)

Grotius was not claiming to have used his external senses to come up with the

fundamental conceptions of law but to have used a faculty (mental ability) that

yielded a degree of evidence every bit as good as that of the senses, and superior



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for being abstract and general. ‘With a truthfulness I aver that, just as

mathematicians treat their figures as abstracted from bodies, so in treating law I

have withdrawn my mind from every particular fact’ (30). Grotius was not alone

in believing that mathematics could serve as a model of how to use the mind in

other areas; his French contemporary, René Descartes, recommended this

strategy as a way to advance the sciences of nature.

Even Locke, who thought that abandoning the senses in an effort to understand

the natural world was a serious mistake, recognized the special certainty afforded

by mathematics and thought that the principles of law, politics and morals could

be established on the same basis. Our knowledge of morals, like that of

mathematics, was knowledge of our own ideas, ‘hence it follows that moral

knowledge is as capable of real certainty as mathematics’ (Locke 1690:IV.iv.7).

The fact that morals is based on our own ideas did not mean, Locke insisted, that

moral principles can be anything we like, no more than it follows that, if

mathematics is knowledge of our own ideas, mathematical principles can be

anything we like. ‘[A] man [may] have the idea of taking from others without

their consent, what their honest industry has possessed them of, and call this

justice if he please’ (IV.iv.9), but the idea of justice should not be confused with

the word ‘justice’:

As in mathematics, [we have to] keep to the same precise ideas, and trace

them in their several relations to one another without being led away by

their names. If we but separate the idea under consideration from the sign

that stands for it, our knowledge goes equally on in the discovery of real

truth and certainty, whatever sounds we make use of.

(ibid.)

Murder by any other name, Locke believed, still deserves the death penalty

(ibid.: IV.iv.8).

However, one might hesitate to follow either Grotius or Locke in adopting

their faith in reason if it issues in such disputable claims as that a conquering

power acquires over the vanquished the right to determine whether they are to

live or die and the right (if their lives are spared) to enslave them. Definitions

and axioms with consequences like these are bound to strike many people as in

no way ‘beyond question’ or ‘the discovery of real truth and certainty.’ Even

though neither Grotius nor Locke succeeded in executing the program each had

outlined for the use of reason, this does not mean that their faith was baseless,

merely that neither had sufficient talent, analogous to the talent required to be a

creative mathematician, to carry out the program.

Arguably the philosopher who, close to a century after Locke, made the most

convincing attempt to carry out something like this program was Immanuel

Kant. However, Kant sharply distinguished the use of the mind in the creation or

discovery of mathematics from the use needed to provide a rational foundation

for morality or provide rational principles for the criticism of a legal institution



162 THE MEASURE OF LAW



(like slavery) or a concrete morality (e.g. that takes slavery for granted). Reason

(Vernunft) for Kant is strictly speaking our ability to deal with what must

universally be the case, that is judgments or statements that apply necessarily and

universally (A75n/B100n). Since experience can reveal that a thing is so, but not

that it is necessarily so (B3), this means that reason deals with what we can know

prior to experience, that is a priori; the criteria of a priori knowledge are

necessity and strict universality (B4).8 Reason is not by any means the source of

the most important items of the a priori knowledge that we are entitled to accept

in mathematics and natural science, but when it comes to determining what

should be done, reason can set a goal for itself (i.e. for us) entirely in terms of

characteristics proper to itself, that is specify the goal entirely in terms of its

rational features.

This comes about in the following way: everything we do deliberately is

governed by one or another explicit or implicit general principle of the kind that

Kant calls a ‘maxim.’ This technical use of the term ‘maxim’ should be carefully

distinguished from that of Jonsen (1991; see Section 6.3). A maxim, Kant

explains, is a subjective principle of volition, that is a general rule that it seems to

us, as individual agents, is a good idea to follow. If we thought of this rule as an

objective principle, as something that everyone should follow, Kant would say we

are thinking of it as a ‘law’ (1785:400n, 421n). Now insofar as we are rational

creatures we should aspire to think and act in terms of principles that are

universal and necessary; it should not be good enough merely to act on principles

that suit us as particular individuals. That is to say, it suits us far better as

rational creatures to conform to a law, that is to a principle that applies

universally to all rational creatures and binds them by a kind of rational necessity.

To achieve this we must, at the very least, reject any maxim that (or refuse to

follow a subjective principle if it) cannot be made into a universal law. In Kant’s

view, this gives rise to the one supreme rational principle of action, the

‘categorical imperative’: ‘act only on that maxim which you can at the same time

will that it should become a universal law’ (ibid.: 421).

Kant offers a number of illustrations of how this apparently refined aspiration

to be true to one’s nature as a rational creature is supposed to have quite specific

practical consequences. One of them, the most convincing, involves a man in a

tight spot who sees that he can get out of his difficulties by borrowing money and

promising to pay it back within a fixed time, knowing full well that he will never

be able to keep his promise. The maxim of his action, Kant says, is ‘Whenever I

believe myself short of money, I will borrow money and promise to pay it back,

though I know that this will never be done.’ The problem with this maxim is that

if it were made a law,

that every one believing himself to be in need can make any promise he

pleases with the intention not to keep it[, this] would make promising, and

the very purpose of promising, itself impossible, since no one would



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believe he was being promised anything, but would laugh at utterances of

this kind as empty shams.

(ibid.: 422)

Here we see a constraint of reason (the outcome contradicts the intention behind

the maxim) standing in the way of a maxim becoming a universal law applying

to all rational creatures. The result, that one should not make a lying promise,

coincides with the concrete morality that operates in our society as well as in

Kant’s—indeed, in any society in which there is a recognized institution of

promising. It makes plausible the claim that by trying to be as true to their

rational nature as possible, people would be led to conduct themselves honestly.

Another of Kant’s illustrations is of a man who, as a consequence of a series

of misfortunes, feels that life has nothing to offer him and is contemplating

suicide. His maxim, Kant says, is ‘From self-love I make it my principle to

shorten my life if its continuance threatens more evil than it promises pleasure’

(ibid.). This, Kant claims, cannot become a universal law of nature, because

there is a contradiction in having a feeling (self-love) whose function is to

stimulate the furtherance of life produce the very opposite, the destruction of

life.

The argument here strikes many people as unconvincing. Why should selflove be directed solely toward the preservation of life, regardless of the quality

of that life? Is it not at least as plausible (at least as ‘reasonable’) to say that the

function of self-love is to direct people to make the most of what life offers and

that if it appears that nothing can be made of it except misery, not to prolong it?

The point here is not whether suicide is ever justified, but that Kant’s principle

does not offer an indisputable resolution of the question—not, however, because

there appears to be anything wrong with the demand to universalize, but because

it is possible to challenge the maxim that Kant applies to the situation before

subjecting it to this demand.

Kant offers two more illustrations, which involve complications; discussion of

them will therefore be taken up in Section 8.1. We have seen enough to begin to

appreciate how Kant proposes to lay the groundwork (Grundlegung in the title of

1785) of this theory. His answer to the long and widespread tradition that looks

for a standard by which to assess conduct is to offer the categorical imperative as

‘the general canon for all moral judgment of action’ (424). (On ‘canon’ as

straightedge see Section 4.2.) For something to serve to determine what we

ought to do (as a canon by which to determine what our duty is), it has to be a

command (‘imperative’) that is not conditional on something we happen to want.

A conditional command, ‘If you want to reduce your chances of getting lung

cancer and heart disease, do not allow yourself to become a heavy smoker,’ is an

example of what Kant calls a hypothetical imperative and applies only to people

who happen to desire to reduce their chances of getting lung cancer or heart

disease. An imperative that does not depend on any condition of this or any other

sort is ‘categorical’ as opposed to ‘hypothetical.’



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It might seem from the way in which Kant’s argument has been presented so

far that what he calls ‘the categorical imperative’ is really based on the implicit

condition, ‘If you want to be rational, then act only on a maxim that you could, if

you were doing the legislating, make a universal law of nature.’ Kant, however,

takes himself to be addressing human beings insofar as they are rational, and that

if the imperative applies to them, it does so because it applies to all rational

beings. The only thing that Kant believes he has so far still left problematic (a

matter of ‘if…’) is whether there is an imperative that applies to all rational

creatures. If there is, he believes he has shown that it will be ‘act on that maxim,

etc.’ (425). But what will show that there is a law that applies to all rational

beings?

The answer lies in the concept of the will of a rational creature (426):

For the purpose of achieving this proof it is of the utmost importance to

take warning that we should not dream for a moment of trying to derive the

reality of this principle [the existence of this law] from the special

characteristics of human nature. For duty has to be a practical,

unconditioned necessity of action; it must therefore hold for all rational

beings (to whom alone an imperative can apply at all), and only because of

this can it also be a law for all human wills.

(425)

A rational want (not necessarily a pure rational want) is one that has been

informed by the idea of a law. When the idea that there is a law connecting

habitual smoking with lung cancer and heart disease is joined to the desire to

remain healthy, the result is a rational want not to smoke habitually. However,

this is a rational want based on a subjective end—the desire to stay healthy may

be valid for human beings (in most circumstances) in view of the special

characteristics of their nature, but not for every rational creature. For a want to be

fully rational, it must be directed toward ‘something whose existence has in itself

an absolute value, something which as an end in itself could be a ground of

determinate laws’:

Now I say that man, and in general every rational being, exists as an end in

himself, not merely as a means for arbitrary use by this or that will: he

must in all his actions, whether they are directed to himself or to other

rational beings, always be viewed at the same time as an end. All the objects

of inclination have only a conditioned value; for if there were not these

inclinations and the needs grounded on them, their object would be

valueless. …Beings whose existence depends, not on our will, but on

nature, have none the less, if they are non-rational beings, only a relative

value as means and are consequently called things. Rational beings, on the

other hand, are called persons because their nature already marks them out

as ends in themselves—that is, as something which ought not to be used



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2 Natural slaves and natural law

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