Alexandre Travessoni, Belo Horizonte (Brasilien)

Kants Rechtstheorie und die Beziehung zwischen Recht und Moral^*

Abstract: The nature of Kant’s legal philosophy is highly controversial: some consider it to be a positivist account of law, while others claim it should be classified as a non-positivist theory. The question on whether Kant should be classified as a positivist or a non-positivist depends on the equally polemic question whether there is, for Kant, a right to resist unjust requirements of the positive legal order (at least in some cases) or the duty to obey it is absolute. This essay advocates that, according to Kant, the citizens have no right at all to resist unjust positive orders, but it also recognizes that there can be, in Kant, a form of resistance, which is passive an can be performed from Parliament against the ruler. This, however, is insufficient to guarantee an actual control on the ruler, for there is, in Kant’s theory, a conflation of powers, with the ruler being the one who ultimately decides what is going to be enforced. This is inconsistent with Kant’s principle of right and with his moral philosophy in general, but is not sufficient to classify Kant as a positivist, for Kant’s concept of law is, at least in the Metaphysics of Morals, derived out of morality.

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