This blog post examines why Kant’s external proposition, by undermining both the categorical and hypothetical nature of legal norms, paradoxically complicates the conditions for establishing legal commands.
Ethical norms and legal norms are similar in that they do not merely describe what actions are required of humans, but possess a prescriptive character that directs individuals toward such actions. However, when delving into more specific aspects, the two reveal distinctly different characteristics. Kant presented this point in an exceptionally clear form. According to his explanation, unlike ethical norms, legal norms concern only the external aspects of an action and do not concern themselves with the disposition from which the agent proceeded to that action. This is because law ultimately focuses its primary concern on the external form that ensures the free expression of each individual’s will in a situation where all people coexist.
According to “Kant’s Explanatory Framework,” the following detailed propositions hold true regarding legal norms. First, the normativity proposition: legal norms contain prescriptions instructing people what they ought to do and what they ought not to do. Second, the external proposition: legal norms demand only that people act in a way that externally conforms to them, without requiring that compliance itself be the motive for the action. Third, the proposition of unconditionality states that legal norms bind all persons under their jurisdiction, not just those sharing a particular purpose.
However, it has been pointed out that the proposition of externality in Kant’s explanatory framework appears to cause a serious paradox. This criticism becomes clear when examining how legal norms can be expressed as commands. First, legal norms do not presuppose the actual purposes or needs of those who follow them. Precisely because they presuppose only external freedom, legal norms possess unconditionality and immediate efficacy. Thus, at first glance, legal norms seem expressible only as categorical imperatives.
However, the only way to obey a categorical imperative is to follow it precisely because it commands. An act performed because it is a command must be distinguished from an act that coincidentally aligns with a command. For example, if one performs an action demanded by a categorical imperative out of fear of punishment, this cannot be called true obedience to the categorical imperative. From this, it follows that legal norms cannot be expressed as categorical imperatives as long as the principle of external motivation holds. This is because legal norms must differ from ethical norms in that they do not require the internal motivation to follow them.
Then, should legal norms be expressed as hypothetical imperatives? Not necessarily. A hypothetical imperative takes the form of “If you wish to avoid the risk of coercion and punishment, do what the law prescribes.” However, if formulated this way, legal norms would only be effective for those seeking to avoid the risk of coercion and punishment, which conflicts with the aforementioned unconditional proposition.
Ultimately, while acknowledging both the prescriptive proposition and the unconditional proposition that seem applicable to both ethical and legal norms, the moment we introduce the external proposition unique to legal norms, legal norms can no longer be expressed as either categorical imperatives or hypothetical imperatives. This results in the paradoxical situation where, specifically for legal norms, we cannot acknowledge the prescriptive proposition. In other words, even if legal norms do not merely describe what actions they require or prohibit, paradoxically, they cannot instruct, command, or demand that one act accordingly.
Nevertheless, within Kant’s explanatory framework, which locates the difference between ethical and legal norms solely in the form of law-making—that is, in the autonomy versus heteronomy of the mode of obligation enforcement—it is difficult to abandon the proposition of externalization. Since Kant defines the concept of law-making through two elements—norm and motive—legal norms must also present a certain motive. And the motive he deems suitable for legal norms is precisely the external motive of heteronomous compulsion. Therefore, unlike ethical norms, legal norms enable others to compel those who do not voluntarily comply to do so. As long as external validity constitutes the core hallmark of legal norms, it is difficult to disregard it within Kant’s explanatory framework. This naturally leads to the conclusion that the paradox of legal commands caused by introducing the external validity proposition remains difficult to resolve easily.
