The equation between History and Law is solved in Kant as the determining factor of the requirement in the elaboration of universal (formal) procedural criteria. This is because the author distinguishes between morality and legality in order to enable their coexistence.
In general, the Kantian legacy resides in the consideration of the limits of Reason and the autonomy of its faculties. Thus, Science, Morals and Aesthetics (or knowledge, ethics and art) have their own domains, capable of realizing the full potential of human faculties as cultural spheres, within which there may still be subdivisions.
The one that is immediately interesting here is the Faculty of Practical Reason in general (Critique of Practical Reason, Foundation of Moral Metaphysics, Anthropology from a pragmatic point of view, etc.) in which the understanding of morals is developed. This is divided into ethics and law, different because of the motive that determines them.
In ethics, the motive of action is internal, that is, the intention of the action is deliberated autonomously, independent of other factors, other than the agent's own conscious will (will). In law, on the other hand, this mobile can be either internal or external, and what matters for the analysis is not the intention and yes the expression of the action, its realization or its phenomenon, because it can be the result of a determined will heteronomously.
Kant establishes that the relationship between ethics and law is a relationship of subordination, in which actions guided by the individual's autonomy must become paradigmatic in relation to heteronomous actions. This is because Kant understands man as a sensible being (or natural man) and intelligible (pure subject of freedom) concomitantly, the sensitive being what justifies heteronomy and the intelligible what founds autonomy (since rationality requires reflection). The intelligible, therefore, being the realm of ends and allowing men to think from ideas, expresses the domain (and the essence) of their (men's) freedom and characterizes the duty (the intrinsic act of choices and responsibility over they).
In this way, it is possible to understand how Kant synthesized the predominant discussions between the 16th and XVIII on natural law and positive law (understood, for Kant, natural law as right rational). The so-called jusnaturalist theories justified the foundation of morality or law in the Cosmos or nature or in God, while the theories juspositivists understood the law (and consequently the State) as the result of human will, that is, created by an act of will. Now, in Kant there is no opposition between human nature and will or reason. There is, rather, the opposition between the condition of man in the autonomously created lawless stage (previously understood as state of nature) and the marital state in which the possibilities of a free agreement for the coexistence of various freedoms is given away a priori. Therefore, it is important to point out that in the marital status man has not lost his original freedom (as in Rousseau), nor does he live in a mechanical regime of reciprocal limitation (as determined by the English contractualists), but rather that freedom, understood as autonomy and founded on Reason, has means of determine the agreement (contract) from a maxim that expresses a universal will (and, thus, both in the relationship between individuals and between States).
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But the like this is done, only the history or existence of free beings (and who therefore create their own ends and lead towards them) can determine. Because, as a finite being that thinks or introduces into the world an infinite realm (the intelligible, in the attempt to build the cosmopolitan republic as an idea), man runs into its limitations natural. Therefore, it seems that Kant seems to think of an anthropology of existence, not as a human science descriptive (critical to traditional psychology), but as the only way to relate empirical and transcendental. This relationship would explain the relationship between the evolution of law and laws, as (infinite) freedom creates its conditions of existence, that is, an analysis of the Weltburger, the citizen of the world, the man in the world who, through language, builds for himself the kingdom of ends as the ideal of the cosmopolitan republic.
By João Francisco P. Cabral
Brazil School Collaborator
Graduated in Philosophy from the Federal University of Uberlândia - UFU
Master's student in Philosophy at the State University of Campinas - UNICAMP
Philosophy - Brazil School