Kant's political philosophy draws a distinction between 'passive' citizens who are merely protected by the law and 'active' citizens who may also contribute to it. Although the distinction between passive and active citizens is often dismissed by scholars as an 'illiberal and undemocratic' relic of eighteenth century prejudice, the distinction is found in every democracy that distinguishes between mere inhabitants -- such as tourists and guestworkers -- and enfranchised citizens. The purpose of this essay is both interpretive and suggestive. First, (...) I will argue that Kant's mature distinction between active and passive citizens follows from an institutional deficiency in the the developing state rather than the natural deficiency of passive citizens, as Kant's critics have alleged. Second, I will draw on systematic features of Kant's political thought in order to claim that the state has a duty to create the institutional conditions of universal active citizenship. (shrink)

If Kant’s theory of justice is known for one thing, it is for offering a vision of a perfectly just society that is utterly disconnected from the imperfect societies that we occupy. The purity of Kant’s account has attracted criticism from those who claim that if a theory of justice is to be practical, it must offer more than a vision of a perfectly just society. It must also explain how existing societies mired in injustice are to be brought into (...) ever-closer conformity with the ideal that justice prescribes. In this essay, I will argue that this is exactly what Kant’s mature legal and political theory offers. To discern this feature of Kant’s theory, a neglected component must be integrated into his broader framework. This component is what Kant refers to in Toward Perpetual Peace as a permissive law of public right. (shrink)

In an age of constitutional revolutions and reforms, theory and practice are moving in opposite directions. As a matter of constitutional practice, human dignity has emerged in jurisdictions around the world as the organizing idea of a groundbreaking paradigm. By reconfiguring constitutional norms, institutional structures and legal doctrines, this paradigm transforms human dignity from a mere moral claim into a legal norm that persons have standing to vindicate. As a matter of constitutional theory, however, human dignity remains an enigmatic idea. (...) Some explicate its meaning in abstraction from constitutional practice, while others confine themselves to less exalted ideas. The result is a chasm that separates constitutional practice from a theory capable of justifying its innovations and guiding its operation. By expounding the connection between human dignity and the constitutional practices that justify themselves in its light, Jacob Weinrib brings the theory and practice of constitutional law back together. (shrink)

In legal orders around the world, commitments to democracy, liberalism and constitutionalism are increasingly eroding. Although political and constitutional theorists often lament this trend, they invariably adopt frameworks that are indifferent to these commitments. My aims in this article are both critical and constructive. As a critical matter, I will expose the indifference of the leading political and constitutional theories to the emergence, maintenance and refinement of liberal democratic constitutional orders. As a constructive matter, I will draw on Immanuel Kant’s (...) constitutional theory to explain why realizing such a form of governance is a public duty and why receding from it is a public wrong. (shrink)

In his ‘On a Supposed Right to Lie from Philanthropy’ Kant makes the astonishing claim that one is not entitled to lie even to save a friend from a murderer. This claim has been an embarrassment for Kant's defenders and an indication of Kant's excessive rigour for his detractors. Responses to SRL fall into three main groups. The first of these groups, that of Kant's critics, claim that SRL demonstrates that Kant's ethical views are so rigorous that they become abhorrent (...) in practice. The second group, Kant's defenders, argues that Kant's conclusions in SRL do not follow from his own ethical principles. The third group, made up of scholars who are generally sympathetic to Kant's position, attempts to explain why a liar is responsible for all the bad consequences that follow from his act by providing an account of Kant's theory of imputation. (shrink)

If there is one point on which defenders and critics of the doctrine of proportionality agree, it is that Dworkin's rights as trumps model stands as a radical alternative to the doctrine. Those who are sympathetic to proportionality reject the rights as trumps model for failing to acknowledge that there are conditions under which a right may be justifiably infringed. In turn, those who regard rights as trumps reject the doctrine of proportionality for failing to take rights seriously. This paper (...) argues that each of these views is mistaken. On the one hand, Dworkin's rights as trumps model elides with a prominent version of the proportionality doctrine. On the other, this version takes rights seriously. (shrink)

I am deeply grateful to Nicole Roughan for overseeing this symposium and to Alon Harel, Stephen Riley, Julian Sempill, Alec Stone Sweet, and Ionna Tourkochoriti for their insightful engagements wit...

In Dimensions of Private Law, Professor Stephen Waddams describes the obstacles that an adequate classification of private law must overcome. The purpose of this essay is to offer a theoretical account of legal classification that explains how these obstacles can be overcome and what the resulting classification of private law might look like. I begin with the catalogue of obstacles that Waddams presents and argue that, because they are rooted in misconceptions about the classificatory project, they pose no threat to (...) an adequate conception of legal classification. In search of such a conception, I consider how three great legal theorists – Aristotle, Kant, and Hegel – answer three fundamental classificatory questions about private law. First, what is the unitythat underlies the seemingly chaotic array of legal instances? Second, what is the principle of differentiationthat applies to this unity? Third, how are legalinstancessubsumed under this differentiated unity? The focus of this essay is the enduring significance of Kant’s conception of legal classification, which provides an alternative to Waddams’ conception and offers a set of coherent answers to the fundamental classificatory questions. In contrast, both Aristotle and Hegel respond to the fundamental classificatory questions by providing a conception of the unity of private law that fails to cohere with their ensuing accounts of its differentiation. (shrink)