REGISTRO DOI: 10.69849/revistaft/pa10202503232007
Rubin Assis da Silveira Souza2
ABSTRACT
This paper points out inconsistencies in Kelsen’s theses on Kant. It argues that his hypothesis of a contradiction between pure and practical reason, as well as his claim of an ambiguity between ‘is’ and ‘ought,’ is untenable when Kant’s work is systematically analyzed. In this sense, the second chapter attempts to demonstrate a close connection between the pure and practical reason in Kant’s works. Finally, the paper concludes that even with such a problematic interpretation, Kelsen’s Pure Theory of Right remains relevant, provided that one abandons the idea of the author as a Kantian or neo-Kantian philosopher due to his inadequate comprehension of Kant’s philosophy.
Keywords: Kelsen; Kant; Practical reason; Pure reason; Contradiction.
INTRODUCTION
The purpose of this paper is to clarify Kelsen’s main concepts and to address the controversies surrounding his interpretation, particularly in relation to the problem of judicial decision making. These controversies arise due to significant differences in his interpretation of Kant’s moral philosophy. Therefore, this paper aims to interpret Kelsen’s main concepts while considering Kant’s practical theory. In academic circles, references to Kelsen’s writings arise at a level that corresponds to the complexity of the legal-political system and the necessity of addressing various contemporary issues that the author anticipated in the development of his fundamental concepts. Theories such as the absolute distinction between law and morality, law and State monism, national and international monism, as well as the logic of Causation/Imputation, are frequently encountered in the current legal debate (see, for instance, the IVR German Section’s 2018 publication ‘Hans Kelsen’s Pure Theory of Law: Conceptions and Misconceptions’).
In addition, in recent years, his doctrine has promoted high-level studies on the issue of state arbitrariness. The motivation for these results from his non-cognitive meta-ethical philosophy. Consequently, the author rejects Kantian practical reason, advocates an absolute separation between morality and law, and orients his scientific studies towards discretionary decision-making by authorities, that is not subject to any meta-juridical justification. In this respect, his ideas run counter to those of modern Kantians and moral cognitivists such as John Rawls, Jürgen Habermas, and Ronald Dworkin.
In this sense, the paper is divided into two comparative chapters:
Chapter 1: The first chapter introduces two crucial points in Kelsenian pure theory. Firstly, it emphasizes the absolute distinction between is and ought. Secondly, it analyzes how Kelsen comprehends Kant in a broad sense and how his conceptions resemble or differ from Kant’s concepts of Science, State, Law, and Morality.
Chapter 2: The second chapter examines Kant’s practical philosophy in order to refute Kelsen’s misinterpretation of it. Kelsen’s accusations against Kant lack plausibility when Kant’s works are taken seriously. Therefore, the hypothesis of a contradiction between the Critique of Pure Reason and the Critique of Practical Reason, as argued by Kelsen, is challenged. Upon considering Kant’s Critiques, it is evident that Kelsen’s claim of confusion between is and ought in the Critique of Practical Reason is not sustainable, as ought in a practical sense is entirely a priori. Therefore, theoretical propositions, which involve experience and aesthetics, remain synthetic a priori and are completely separate from pure practical philosophy, which remains completely pure.
1. Kant according to Kelsen
The majority of legal specialists describe Kelsenian legal philosophy as Neo-Kantian. See, for example, HAMMER, 2007, p. 177; HEIDEMANN, 2004, p. 358; LUF, 2007, p. 221; RAZ, 2007, p. 237; WILSON, 1986, p. 37; BERGER, 2016, section III, Chapter 1, Kindle edition; BAUME, 2012, Chapter 1; PAULSON, 2018, p. 282; PAULSON, 2003, p. 547; PAULSON, 1992, p. 311).
According to the author:
Insofar as only the presupposition of the basic norm makes it possible to interpret the subjective meaning of the constitution-creating act (and of the acts established according to the constitution) as their objective meaning, that is, as objectively valid legal norms, the basic norm as represented by the science of law may be characterized as the transcendental-logical condition of this interpretation, if it is permissible to use by analogy a concept of Kant’s epistemology. Kant asks: “How is it possible to interpret without a metaphysical hypothesis, the facts perceived by our senses, in the laws of nature formulated by natural science?” The epistemological answer of the Pure Theory of Law is: “By presupposing the basic norm that one ought to behave as the constitution prescribes, that is, one ought to behave in accordance with the subjective meaning of the constitution-creating act of will – according to the prescriptions of the authority creating the constitution. (KELSEN, 2005, p. 202 – Original KELSEN, 1960, p. 204 and 205).
Furthermore, Kelsen’s Neo-Kantianism is supposedly derived from the Marburg and Baden schools, drawing on the theories of Hermann Cohen, Windelband, and Simmel (EDEL, 2007, p. 195; PAULSON, 2003, p. 560). These references suggest that Kelsen only employs part of Kant’s philosophy as the theoretical-scientific basis for the pure theory of law. Within his philosophical framework, he rejects all Kantian metaphysics, deeming it contradictory from the first critique. With this, Kelsen aims to establish his legal theory based on Kant’s Critique of Pure Reason, without recognizing the Critique of Practical Reason, the Critique of the Power of Judgment, the Groundwork of the Metaphysics of Morals, and the Metaphysics of Morals, even in opposition to Kant’s own words.
The last of the types we have here develop, which in contrast to the metaphysical, has been described as critical dualism, evidently bears the features of Kant’s philosophy of critical idealism. Yet it will be immediately observed that Kant’s philosophical system differs somewhat from our ideal picture. This is already the case in his natural philosophy. The struggle which this philosophical genius supported by Science, waged against metaphysics, which earned him to the ultimate conclusion. In character, he was probably no real fighter but rather disposed to compromises conflicts. The role which the “thing-in-itself” plays in his system reveals a good deal of metaphysical transcendence. For this reason, we do not find in him a frank and uncompromising confession of relativism, which is the inescapable consequence of any real elimination of metaphysics. A complete emancipation from metaphysics was probably impossible for a personality still as deeply rooted in Christianity as Kant’s. This is most evident in his practical philosophy. Just here, where the emphasis of the Christian doctrine rests, its metaphysical dualism has completely invaded his system, the same dualism which Kant fought so persistently in his theoretical philosophy. (KELSEN, 1945, p. 444).
In this respect, according to Kelsen, it is impossible to establish or recognize objective, rational, or categorical moral norms. Kelsen (1971, p. 18) argues that all attempts to justify the categorical imperative have resulted in empty and nonsense rules, often used to support conservative values. Therefore, the categorical imperative cannot establish objective moral rules. As a result, Kant’s morality aligns with authoritarian, conservative, and moralistic perspectives (Kelsen, 1971, p. 18).
Kelsen employs the Critique of Pure Reason as the foundation of the pure theory of law. However, in practical and moral spheres, he aligns with several dominant skeptical theories, including the neo-positivism of the Vienna Circle, the Vienna Law School, G.E. Moore’s meta-ethics, emotivism, and Sigmund Freud’s psychoanalysis. Since then, he has consistently rejected Kantian moral and practical philosophy, including Kantian Law and Jusnaturalism theory (JABLONER, 1998, p. 368).
In this regard, pure legal theory adheres to the concept of a division between theoretical and practical philosophy, and one of Kelsen’s most important arguments centers on the Kantian distinction between is and ought.
1.1 Is/ought problem to Kelsen
In Kelsen’s work, the terms ‘is’ and ‘ought’ are entirely separate, although they share the same empirical origin (WRIGHT, 2007, p. 365). In other words, ‘is’ is an empirical phenomenon, and ‘ought’ is, in a juridical sense, the meaning of that phenomenon when expressed as a duty or an obligation. This distinction underlies all Kelsenian legal concepts, including the Grundnorm and the separation of Law and Morality.
According to Kelsen, Kant addresses the problem of causation in his first critique by rejecting both classical metaphysics and empiricism, especially that of Christian Wolff and David Hume. In this context, the transcendental theory offers synthetic a priori concepts that allow for the addition of a predicate to a subject while avoiding both the problem of causation and metaphysical and dialectical concerns. In this sense, Kant proposed the synthetic a priori method, which implies that knowledge arises from, but is not limited to, experience. The faculty of reason can process factual information and construct concepts that organize and create meanings for empirical facts. This active faculty of reason operates a priori, generating ideas through the mind rather than deriving them from the object or experience (HEIDMANN, 2013, pp. 247-250).
Consequently, it is understood that the concept of knowledge, according to Kant, begins with experience, but this experience does not limit it. In other words, knowledge does not merely represent objects in themselves; the faculty of reason transforms impressions and organizes the sensible world into intelligible knowledge, i.e., Knowledge is derived from experience and is transformed by active reasoning. This process is the creation of concepts that allow us to organize our experiences into a coherent system (Heidemann, 2013, p. 250).
In this role, Kelsen aims to reach the same level as Kant’s transcendental philosophy (HEIDEMANN, 2004, p. 358). In this context, the jurist asserts the fundamental norm, similar to Kant’s first critique, implying that the act of will is not only passively apprehended from experience (“is”) but also interpreted as “ought.” For example, some people in a room raise their hands while another speaks from a pulpit. We can describe these actions as an act of will, but we can also interpret them as an election in which a group of people votes on some rules that represent the meaning of that act of will. Therefore, legal norms are, beyond a mere fact, a meaning of acts of will (KELSEN, 2005, p. 2).
It is also crucial to understand that certain peculiarities of this act of will are interpreted as the meaning of the act. Initially, the act of will is only legal in a narrow sense, validated by another superior norm that classifies it as such (KELSEN, 2005, p. 201). With this distinction between the act and its meaning, Kelsen shows that all norms have an empirical origin; however, the norm itself is not empirical – it is transcendental, similar to Kant’s critical philosophy (KANT, 2004, Prolegomena, § 32).The act and its meaning are natural phenomena, and neither is recognized as a thing in itself (Ding an sich or noumenon).
According to Wright (2007, p. 380), Kelsen’s distinction between ‘is’ and ‘ought’ is considered a classic in the legal positivism tradition. This has its roots in the empiricism of David Hume and the theoretical philosophy of Kant, and was adopted by Kelsen in the pure theory of law. Norms originate from the empirical facts of the world, conceived transcendently. However, norms must be interpreted as the meaning of the acts to be enabled in an autonomous science of Law. The norm as an act (‘is’) should not be confused with the norm as the meaning of the act (‘ought’).
1.2 Is and Ought in Kant according to Kelsen
Kelsen claims that Kant’s theoretical philosophy makes a clear distinction between “is” and “ought”. Nevertheless, according to Kelsen, the author seeks to reconnect these categories in his Practical Reason. Consequently, he turns these practical propositions into a natural fallacy. In this sense, Kelsen argues that Kant does not confuse “is” and “ought” in his Pure Reason, but only in his Practical Reason. This means that Kelsen points to an internal contradiction (KELSEN, 1991, p. 108).
According to Kelsen (2006, p. 444), even when considering the undeniable distinction between an act of will and the meaning of that act, Kant contradicts pure reason and supports a religious and metaphysical moral. Kelsen (2006, p. 444) argues that Kant’s moral and legal philosophy is religious and fundamentalist, and that Kant’s deeply Christian roots would bind the author to a Jusnaturalism that upholds the necessity of the connection between “is” and “ought” in a fundamentalist view of nature and society. In summary, Kelsen believed that Kant’s practical philosophy was merely a form of Christian evangelism, based on traditional values and artificial rules (KELSEN, 2006, pp. 444-445).
Regarding the problem of the categorical imperative (CI), Kelsen argues that the formula is ineffective in establishing moral norms as true or false. He believes that the categorical imperative, which is intended to provide a definitive answer to questions such as ‘what to do?’ or ‘what is justice?’, is not a solution but rather a support for arbitrary norms, conservative politics, and anti-democratic governments (KELSEN, 1971, p. 18).
The concrete examples by which Kant tries to illustrate the application of his categorical imperative, are precepts of the traditional morals and the positive law of his time. They are not, as the doctrine of the categorical imperative pretends, deduced from this principle—for nothing can be deduced from this empty formula. They prove to be only compatible with it; and any precept of any established social order is compatible with the principle that says nothing else but that the individual shall act in conformity with general norms. Thus, the categorical imperative, just as the golden rule, can serve as a justification of any social order. This possibility explains why these formulas in spite of—or rather because of—their emptiness, are still, and probably will always be, accepted as satisfactory answers to the question of justice (KELSEN, 1971, p. 18).
In this sense, Kelsen (1971, p. 19) argues against the categorical imperative using the casuistic problems formulated by Kant in his Critique of Practical Reason, Groundwork of the Metaphysics of Morals, and Metaphysics of Morals. Kelsen contests four kinds of Kantian duties: perfect duties to ourselves, perfect duties to others, imperfect duties to ourselves, and imperfect duties to others. The four types of responsibilities, as defined by Kelsen (1971), are predetermined obligations by practical reason for our actions, such as refraining from suicide (type one); predetermined duties in the face of others, such as paying debts (type two); generic responsibilities that govern how individuals must direct their lives, such as providing self-development (type three); and imperfect duties toward others, which represent the commandment to respect others no matter the situation, and are also generic and abstract (type four) (p. 19).
According to Kelsen (1971, p. 19), all these duties do not derive from the categorical imperative. Rather, they arise from Christian values, which are not universal, but only obligatory if one accepts them. Therefore, Kant’s practical philosophy could be seen as a form of religious proselytism used to justify conservative and reactionary politics.
2. Kant’s Practical Philosophy
As previously noted, one of the primary objections against Kant concerns the distinction between ‘is’ and ‘ought’. Kelsen argued that the German philosopher contradicted himself by rejecting his theory of pure reason in favor of constructing a practical metaphysical philosophy. In this context, Kant redirected his attention from his scientific project and attempted to revive and justify Christian Protestant proselytism (see against this argument GUYER, 1989, p. 139, who addresses the issue of freedom in the first critique and its resolution in the second critique).
This chapter aims to challenge Kelsen’s interpretation of Kant’s morality and law by analyzing their origin and connection with the first Critique. The analysis will demonstrate that Kelsen’s interpretation lacks textual support and must be refuted from the very beginning.
2.1 Morality Origin
Kant’s ‘Groundwork of the Metaphysics of Morals’ (KANT, 2002) (Grundlegung Zur Metaphysik der Sitten) is one of his primary works on morality. The structure of the work unfolds from an analytical to a synthesis section, progressing from popular morality to a philosophical groundwork, and finally to the ‘Critique of Practical Reason.’ The first section discusses the unconditional value of ‘goodwill’ and practical reason within popular conscience. In this sense, the concept of ‘goodwill’ justifies the formal principle of the categorical imperative (CI). Kant, however, advances in the second and third sections not by rejecting popular opinion on morality, but by reclaiming a philosophical justification that could provide universality and necessity to the concept. The Kantian concept of ‘goodwill’ is the beginning of morality, but not its end. In a second step, rational justification requires universal elements that do not conform to an empirical and popular stage of morality.
2.1.1 A priori groundwork
In the second section of the GMM, which covers popular morality to metaphysical groundwork, Kant maintains that the principle of freedom is rooted in common sense, even without philosophical determination (KANT, 2002, p. 22). Therefore, the structure of the GMM follows a strict line of moral recognition rather than a restricted set of its theoretical foundations. In the first section, individuals act according to the CI, even without a philosophical groundwork or justification. The pre-philosophical identification of the CI as ordinary moral sense is recognized, and philosophical justification becomes necessary only after this recognition. This is fundamental in Kantian morality, as the CI exists in the empirical world and, consequently, in the moral world. Therefore, the sense of morality exists and cannot be disputed in terms of its empirical origin, and morality must be recognized as an anthropological sense from the beginning, and the rational justification is only necessary for the universality and necessity of a formal practical concept.
Throughout this sequence, in the second section of the GMM, common sense still exists, but now remains below the universal grounds of morality in terms of its own determination. According to Kant (2002), morality is metaphysically real and not determined by common sense. This marks a fundamental distinction between Kantian morality and empirical moral philosophy. Unlike English moral sense conceptions, e.g., the CI is not based on empirical reality or tradition. It is commonly recognized from its inception, even prior to its philosophical foundation, but not in its subsequent universalization.
Schneewind (1992, p. 326) argues that the GMM starts with a common-sense examination, leading to Kant’s assumption of the existence of morality in the absence of its foundation. In other words, moral law already exists and can be recognized through a non-philosophical or a priori method. It can be accessed by empirical feelings, even if it lacks rational justification based on these popular sentiments.
Commonsense beliefs about the moral goodness of the good agent show us, Kant thinks, that the categorical imperative is the principle behind sound moral judgment. Kant also thinks he obtains from beliefs about the good agent his view about the motivation proper to morality. Historically the latter was as revolutionary as the former, and systematically the two aspects of the theory are inseparably linked. (SCHNEEWIND, 1992, p. 326)
On the other hand, the Categorical Imperative (CI) must be entirely a priori. The moral law is a metaphysical foundation that is not dependent on material substance, tradition, or majority support. It subordinates empirical laws by avoiding the restriction of free will to emotional, anthropological, or psychological determination. The virtue of the CI lies in its complete independence from heteronomous intentions. It is important to note that the moral law cannot be identified through common sense alone, unless it is clearly marked as a subjective evaluation. In other words, the origin of the moral law is empirical, like empirical perceptions in pure reason, but not limited to this empirical worldview.
From what we have adduced it is clear that all moral concepts have their seat and origin fully a priori in reason, and this as much in the most common human reason as in that reason which is in highest measure speculative; that these concepts cannot be abstracted from any empirical, and therefore mere contingent, cognition; that their dignity lies precisely in this purity of their origin, so that19 they serve us as supreme practical principles. (KANT, 2002, p. 28)
herefore, the a priori method must transcend popular morals and refrain from providing any empirical justification for morality. The rules of CI are not influenced by any subjective or emotional desires. This does not imply that popular morality does not adhere to the principle of practical reason. On the contrary, the Hypothetical Imperative (HI) is limited to the consequences of the action. In this sense, popular morality, when faced with practical reason, still operates within the confines of the HI, lacking a philosophical foundation. However, it is possible to recognize the absolute validity of moral law through common sense, even though it cannot be empirically determined (KANT, 2002, p. 28). In this sense, see Kerstein on the matter of empirical origins of morality and practical reason.
Kant’s appealing to experience in his derivation of the Formula of Universal Law does not seem incompatible with all rational agents having an empirically unconditioned motive at their disposal for abiding by this formula. That we rely on our moral experience in pinpointing the supreme principle of morality does not, for example, seem to entail that our having at our disposal sufficient motive to comply with it is conditional on our expectation that doing so will get us something we want. KERSTEIN, 2009, p. 134
Thus, the oral law is considered entirely a priori. However, even in the absence of a philosophical foundation, common sense retains a moral consciousness. Therefore, it is not without meaning. The empirical substance of moral rules remains pertinent and rational-practical, as expressed by popular aspirations. This analogy aligns with how empirical phenomena remain valid for deducing a priori conditions for possible knowledge in the Pure Critique.
2.2 Free will and State Coercion
Like moral law, the principle of the state and positive law must be considered a priori. This is because the corollary of the state and positive law results from the assumption that such moral law authorizes positive law. Therefore, as an a priori category, moral law cannot endorse empirical or a posteriori positive law as the grounds for its principles.
For this reason, positive law shares the same attributes and characteristics as moral law. It is likewise autonomous and justified by the CI and is not related to any heteronomous aspirations. In this sense, positive law overlooks its empirical origins and avoids contradictions between ‘is’ and ‘ought,’ in accordance with moral law, as it remains entirely as the imperative of ‘ought’.
The Metaphysic of Morals is for Kant the system which follows upon the Critique of Practical Reason (LT, VI 205). As a part of the Metaphysic of Morals, Kant’s philosophy of law no longer belongs to the critique of practical reason but presupposes the results of this critique. It is not a pre-Critical, dogmatic theory but a critical one. It develops the rational concept of law which sets the supreme critical standard for any existing law. In contrast to an exaggerated rationalism, which attempts to derive existing law from rationality, Kant recognizes that philosophy is limited to the small task of the clarification of basic concepts and principles. As a science independent of experience, legal philosophy can replace neither the legislator nor the judge or legal expert. On the other hand, the latter all rely upon the philosopher and upon the justification of the a priori legal principles on the basis of which a constitution and legal system is seen as reasonable and just.
Furthermore, in the Metaphysics of Morals, Kant (1991, p. 56) defines law (right) as “the conditions under which the choice of one individual can be united with the choice of another in accordance with a universal law of freedom. Therefore, Law is an integral part of pure practical reason.
In this regard, Ripstein (2009, p. 161) explains that Kant’s principle of law (right) does not derive from human nature in an empirical sense, nor from a teleological worldview. According to Ripstein (2009, p. 162), Kant only employs legislative reason purified from all anthropological and empirical aspects. This means that reason alone is determined to produce a non-empirical Law; i.e., pure reason is relevant to the concept of Law as designated by the practical bounds of reasons. Furthermore, the idea of Law is shaped by the universality, necessity, and formality of reason, which determine its structure and potential value under the categorical imperative.
The Doctrine of Right is also likely to surprise readers familiar with the modes of argument prominent in contemporary political philosophy. Kant insists on a sharp divide between the metaphysics of morals he will provide and an anthropology of morals that focuses on human nature (MM 6:217). He argues that law and justice are morally required “no matter how well-disposed and law abiding men might be” (MM 6:312), explicitly denying that either is a response to unfortunate features of the human situation. He denies that needs generate any direct obligations of mutual aid, dismissively treating it as no different from “mere wish” (MM 6:230). Yet he formulates many of his arguments in terms of coercion, which most recent philosophers assign a secondary role in law and politics. Most striking of all from the perspective of contemporary readers, he denies that justice is concerned with the fair distribution of benefits and burdens.
Consequently, Kant argues that Law (as Right) is authorized by practical reason, which is legitimated by pure reason. In other words, the moral law legitimizes and approves positive Law in the same way that pure reason allows practical reason. In this sense, liberty cannot accept the Law without its rational roots or non-universal elements outside its competence, just as pure philosophy cannot permit a non-pure practical reason.
2.2.1 External Coercions
In the previous sections, it was evident that Kant’s theoretical and practical foundations, along with his concept of Rights, are closely related. The upcoming section will discuss the doctrine of Rights and its external characteristics, namely external coercion and the matter of the State’s positive constitution. The first issue pertains to juridical will and coercion in Kant’s legal philosophy. In this sense, how can external coercion be possible on internal will? Or how does the CI doctrine and morality justify external coercion, given that both are considered a priori?
The concept of freedom is central to positive law when considering the relationship between Law and Morality. In essence, law is derived from the universal value of freedom, enabling individuals to pursue their own goals, even if they are opposing or contradictory. The definition of law supports the plurality of intentions, meaning that the compatibility of such purposes through the universal Law of freedom forms the basis for the development of civil society.
In analogy to the concept of freedom, the use of coercion by the state cannot be understood as a mere physical threat. Positive law does not limit freedom; instead, it promotes it for everyone. In other words, the CI preserves maximum equality in the sphere of freedom and seeks to apply the universal principle of the right through external coercion:
Resistance that counteracts the hindering of an effect promotes this effect and is consistent with it. Now whatever is wrong is a hindrance to freedom in accordance with universal laws. But coercion is a hindrance or resistance to freedom. Therefore, if a certain use of freedom is itself a hindrance to freedom in accordance with universal laws (i.e., wrong), coercion that is opposed to this (as a hindering of a hindrance to freedom) is consistent with freedom in accordance with universal laws, that is it is right. Hence there is connect with Right by the principle of contradiction an authorization to coerce someone who infringes upon it. (KANT, 1991, p. 57)
By discouraging irrational aspirations, the State’s coercions can actually support freedom and practical reason. In other words, the public coercion is in line with the CI, and a coercive public system does not restrict anyone’s autonomy. This can be seen from the victim’s point of view, as they have the freedom to seek justice through the law against criminal or irrational actions (GUYER, 2014, p. 230).
Final considerations
Kant’s moral philosophy is grounded in pure reason and excludes any empirical evidence. A systematic interpretation reveals that the Law is an integral component of morality, with its existence justified by pure reason and leading to the doctrine of Right. Since the Law is a moral authorization and morality is a consequence of the a priori method, it follows that the Law is an essential part of the CI doctrine.
In this sense, law does not involve obedience to subjective desires, nor is it simply a formulation of external regulations. It is not subject to hypothetical imperatives. In other words, there is no categorical error or confusion between empirical desires and facts, and universal moral law.
Based on these assumptions, the current paper arrives at the following conclusions.
1. The Law’s exteriority does not allow for the interpretation of positive norms as hypothetical imperatives. This exteriority only distinguishes between ethics and Law, but does not constitute a rupture.
2. State coercion principle is not an arbitrary punishment. It is a means of preserving maximum freedom, as allowed by practical reason.
3. In this sequence, the moral law, as expressed through the CI, justifies the state’s constitution to exert social coercion and promote maximum freedom. Therefore, even the state and positive law originate in Pure Practical Reason.
4. Kant’s examples in the Groundwork of the Metaphysics of Morals (GMM) and the Metaphysics of Morals (MM) are merely demonstrative. Therefore, Kelsen’s exemplification to prove the contradictions of Kant is not relevant for comprehending the critique of practical reason and the formation of the State and Law.
5. There are no categorical errors in practical reason and the doctrine of Right, as both are a priori. Therefore, Kelsen’s accusations of contradiction between pure and practical reason are false. Practical reason is entirely in the sphere of ‘ought’ (imperative), which distinguishes itself from pure reason in terms of synthetic elements in its logic.
6. Consequently, Kant’s complete work reveals a close connection between practical and theoretical philosophy. This insight leads us to view the Critique of Pure Reason as an outcome of both theoretical and practical considerations. Thus, Kant aimed to address the theoretical problems of the faculties of reason and understanding in order to find a ground for the a priori valid moral law.
Therefore, there are no categorical errors in practical reason or in the doctrine of Right, and there is no contradiction between pure and practical reason. Both are entirely a priori. Hence, Kelsen’s accusation against Kant’s supposed contradiction regarding the separation of ‘is’ and ‘ought’ is a misinterpretation, and the accusation of a contradiction between pure and practical reason is also incorrect.
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1This work was supported by the São Paulo Research Foundation (FAPESP), grant number 2021/08496-1.
2Pesquisador de pós-doutorado do Direito FGV-SP e FAPESP.