B. Sharon Byrd und Joachim
Hruschka, Jena/Erlangen: Lex iusti, lex iuridica und lex iustitiae in Kants Rechtslehre
Abstract: In connection with his
discussion of the three Ulpian formulae, Kant introduces three
“leges,” namely the “lex iusti,” the “lex iuridica,”
and the “lex iustitiae,” which he then defines in § 41 of the Doctrine
of Right. The three “leges”
correspond to the attributes “right,” “juridical,” and
“established as right.” These three attributes in turn relate to
the possibility, the reality, and the (material) necessity of our rights and
juridical duties. The three “leges” and attributes have certain
consequences for the division of public justice, public justice being
constitutive of the juridical state, into “iustitia tutatrix,”
“iustitia commutativa,” and “iustitia distributiva.”
This article provides a comprehensive account of all these concepts from §
41 of the Doctrine of Right. It also
explains what until now has seemed to be a rather cryptic comment Kant makes at
the end of his discussion of the Ulpian formulae regarding internal and
external legal duties, and those legal duties that contain the derivation of
the external legal duties from the principle of the internal legal duties
through subsumption. Indeed the article provides the key to understanding the
entire Doctrine of Right from a totally
new perspective.
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