IN DEFENCE OF KANT’S “INFAMOUS” REPLY TO CONSTANT: “ON A

SUPPOSED RIGHT TO LIE FROM BENEVOLENT MOTIVES”1

Lenval A. Callender, PhD

ABSTRACT

Despite more than two centuries of hostile criticism from moral

philosophers of every persuasion it is argued here that Kant’s short essay,

published in the same year as his major work on the philosophy of law, the

Rechtslehre, is defensible on both legal and moral grounds. Although in

his reply Kant is concerned with a strictly juridical issue – whether a

legally enforceable entitlement to make intentionally false declarations is

compatible with a coherent conception of justice – it is of course the wider

moral dimensions of the case raised by Constant that has continued to

exercise the majority of Kant’s critics. However since the legal and moral

aspects of this case are closely inter-connected it is necessary not only to

clarify the central juridical issue, which itself requires careful examination

of important differences between Constant and Kant’s use of the term

‘right’, but also to focus attention upon features of Kant’s own treatment

that bear directly upon the moral questions involved. Thus in contrast to

the somewhat undemanding manner in which Constant portrays the

householder’s dilemma it is emphasised that in Kant’s construction of the

case the householder himself is confronted with an immediate threat of

violence. This brings to light an ethical problem long obscured by

traditional reactions to Kant’s reply: - is one morally obliged (as distinct

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from morally permitted) to risk one’s own life in an attempt to save that of

another innocent person? Whilst an act of this kind is widely regarded as

morally praiseworthy it is held here that ordinary practical reason agrees

with Kant in refusing to admit a duty to perform it, and hence from this

standpoint at least a real conflict of duties cannot possibly arise. This is

consistent with Kant’s claim in the Metaphysics of Morals that if legal and

moral duties are formulated clearly conflicts of principle within either

province, or between them, are inconceivable.

INTRODUCTION

No aspect of Kant’s mature ethical philosophy has provoked more adverse

comment than his contention that a moral agent has an unconditional duty not to lie, and

no writing of his on this subject is cited more often than the essay described by Sullivan

(1989:173) as “Kant’s infamous reply to Constant”. It will be recalled that Constant

writes as follows in the journal France (VI, I, 1797):

“The moral principle that it is one’s duty to speak the truth, if it were taken singly

and unconditionally, would make all society impossible. We have the proof of this

in the very direct consequences which have been drawn from this principle by a

German philosopher, who goes so far as to affirm that to tell a falsehood to a

murderer who asked us whether our friend, of whom he was in pursuit, had not

taken refuge in our house, would be a crime..It is a duty to tell the truth. The

notion of duty is inseparable from the notion of right. A duty is what in one being

corresponds to the right of another. Where there are no rights there are no duties.

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To tell the truth then is a duty, but only towards him who has a right to the truth.

But no man has a right to a truth that injures others.”

In his reply Kant addresses two questions:

“Now, the first question is whether a man – in cases where he cannot avoid

answering Yes or No - has the right to be untruthful. The second question is

whether, in order to prevent a misdeed that threatens him or someone else, he is

not actually bound to be untruthful in a certain statement to which an unjust

compulsion forces him.”

With very few exceptions2 Kant’s emphatic denial of a right to lie even, so it is

said, ‘to save an innocent life’, has been rejected by all Kantian scholars who refer to the

subject, recent opinion here ranging through “implausible”, “unsatisfactory”,

“repugnant”, “repellent” to “absurd and immoral”. The arguments said to justify

comments of this kind are examined below but it says much of the manner in which

Kant’s reply has so often been treated that although at the outset he lays stress on the

term right, immediately challenges Constant’s use of this term, speaks of a householder

faced with “unjust compulsion” and a “misdeed that threatens him or someone else” and

states plainly enough that “here we are speaking only of a duty of justice” – despite all of

this there is little evidence to suggest that more than a handful of his critics have managed

to identify the juridical context of Kant’s remarks and none at all that their full

significance has ever been appreciated. When one adds the fact that in 1797 Kant also

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published the Rechtslehre, a work which sets out in some detail his conception of justice

(Das Recht) and the nature of a right (ein Recht), it is hardly surprising that a number of

legal and moral questions essential to forming an accurate interpretation of his reply have

yet to be posed: what exactly does Kant mean by ‘a right’ (ein Recht) and how does it

differ from Constant’s use of the term?; what is “unjust compulsion” and what

connection does it have with lawful coercion, a central principle of the Rechtslehre?;

what is Kant’s (rather than Constant’s) understanding of the relationship between legal

and moral duties?; is it correct to say that in Kant’s formulation of the case the

householder is merely asked for information concerning the whereabouts of the intended

victim?; and does the householder’s dilemma really begin when the murderer arrives at

the door? In examining these questions it should become apparent just why Kant denies

the possibility of a legal right to lie, and in proceeding beyond the stated limits of his

own discussion to the moral aspects of the case, why the critical circumstances with

which he is concerned cannot be left out of account.

Adherents of ethical perspectives other than Kant’s have of course long viewed

his reply to Constant as evidence of a fundamental flaw in his approach. To many it is a

telling illustration of what Wiggins (2006: 114) now refers to as “Kant’s crazed rigorism”

and to many more it constitutes an unintended but decisive refutation of the categorical

imperative; a clear demonstration of the failure of Kant’s so-called fundamental ethical

principle to discriminate moral right from wrong and the just from the unjust. As the

Utilitarian Singer (1979:2) puts it: “It may normally be wrong to lie, but if you were

living in Nazi Germany and the Gestapo came to your door looking for Jews, it would

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surely be right to deny the existence of the Jewish family hiding in your attic.” Or the

Intuitionist Ross 1954: 31/2): “Most people would have no hesitation in saying, as

Benjamin Constant says in the work Kant is here criticizing, that to tell the truth is a duty,

but only towards him who has a right to the truth, and that the intending murderer has no

such right". Since neither author appears to recognise the juridical issue being addressed

each uses ‘right’ in a sense quite different from the strict legal meaning employed by

Kant throughout his reply; Singer to mean morally proper and Ross in the same sense as

Constant, a sense specifically rejected by Kant as “unmeaning”. Deficiencies of this kind

not only obscure the burden of Kant’s reply but are bound to result in a failure to come to

terms with the real moral complexities of the case.

Part I of this paper addresses the main juridical issues involved in Kant’s reply,

especially the questions of a right to lie and of unjust compulsion. Part II is concerned

with the supposed moral obligation to save the life of an innocent person.

The ANNEXE examines two influential claims by Paton (1954) that a right to lie

in critical circumstances can be justified on the basis of Kant’s mature ethical principles.

He claims that in contradiction to the standpoint taken in his reply to Constant Kant does

in fact sanction a right to lie in the Rechtslehre, and he also claims that a right to lie can

be defended by appealing to Kant’s distinction between perfect and imperfect duties in

the Tugendlehre. Both of these claims are contested here.

Square brackets denote references to the standard German edition of Kant’s works.

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Part I. JURIDICAL ISSUES

(i) The Question of a Right to Lie

Is a legal right to lie compatible with a coherent system of justice? Or to put it

another way: could a civil society ever admit into law an externally enforceable

entitlement to make declarations contrary to one’s knowledge or belief? Kant’s answer is

a categorical ‘No’, and one has only to consider some of the central concepts in the two

parts of his Metaphysics of Morals to see why. According to this work the general

concept of a right (ein Recht) involves the “...capacity for putting others under

obligation..” [6:239]. In his discussion of Private Right, which is concerned with what

can be acquired as “Mein und Dein (meum et tuum)”, Kant defines a right (ein Recht) as

an externally enforceable entitlement to some possible object of possession. Legal rights

and legal duties stand in a reciprocal relationship such that to say a person has a legal

right to a thing means that others have a duty not to take it from him without his

permission. A legal right in this sense always implies the possibility of external coercion,

as does justice (Das Recht) in general: “Right and authorization to use coercion therefore

mean one and the same thing” [6:232]. Coercion by a properly constituted judicial

authority is invariably referred to by Kant as “lawful” and always contrasted by him with

“violence”, sometimes “savage violence” [6:308], the unlawful use of force. The same

contrast is found in the Critique of Practical Reason when Kant speaks of the central

importance of reason in distinguishing between moral good and evil: “This is the case

with truthfulness as opposed to a lie, with justice as opposed to violence, etc.” [5:61]. All

statements in Kant’s reply to Constant which concern “unjust compulsion” refer to the

unlawful use of coercion - that is, to actual or threatened violence.

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No less important is Kant’s insistence in the Metaphysics of Morals that the clearest

possible distinction be drawn between legal and moral duties3. According to Kant this

distinction does not turn upon any difference in the concept of a duty per se, which in this

work is defined as “that action to which someone can be bound” [6:222] and in the

Groundwork [4: 425] as "..a practical, unconditioned necessity of action..", but rather

upon the possible limits of external lawful coercion. A legal duty can be enforced by

external constraint, a moral duty only by internal self-constraint:

"All duties are either duties of right (officia iuris), that is duties for which external

lawgiving is possible, or duties of virtue (officia virtuitis s. ethica), for which

external lawgiving is not possible. Duties of virtue cannot be subject to external

lawgiving simply because they have to do with an end which (or the having of

which) is also a duty. No external lawgiving can bring about someone's setting an

end for himself (because this is an internal act of the mind), although it may

prescribe external actions that lead to an end without the subject making it his end."

[6:239]

From this standpoint it follows that the notion of ‘a moral right’ is a contradiction

in terms since it conflates a duty of virtue, which cannot be externally (and lawfully)

compelled, with a duty of right, which can.

With these considerations in mind one can see why the concept of ‘a right’ is no

trivial matter to Kant who begins his reply by objecting to Constant’s use of the term: “It

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is to be remarked, first, that the expression “to have a right to the truth” is

unmeaning..For to have a right objectively to the truth would mean that, as in meum and

teum generally, it depends on his will whether a given statement shall be true or false,

which would produce a singular logic...truth is not a possession the right to which can be

granted to one, and refused to another..” Although Kant does not refer to the matter

directly it is also evident from Constant’s remark - "...the notion of duty is inseparable

from the notion of right" - that he has a very different conception of the nature of rights

and duties from Kant himself. Had he cared to mention it Kant would surely have pointed

out that here Constant makes no distinction between legal and moral duties, and indeed

Constant is one of the first in the modern era to use the term ‘right’ outside of the strictly

juridical context in which Kant himself always employs it, and moreover to use it in such

a way that the 'right' being referred to is quite beyond the capacity of any external legal

power to enforce. However, for Kant:

"To every duty there corresponds a right in the sense of an authorization to do

something (facultas moralis generatim); but it is not the case that to every duty

there correspond rights of another to coerce someone (facultas iuridica). Instead,

such duties are called, specifically, duties of Right...Only an end that is also a

duty can be called a duty of virtue. For this reason there are duties of virtue (and

also various virtues) whereas for the first kind of duty only one (virtuous

disposition) is thought, which however holds for all actions." [6:383].

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Hence a duty of right such as that involved in a binding legal contract can be

enforced by external lawful coercion but a person of virtuous disposition would hold to

its terms even in the absence of this kind of coercion.

In his reply Kant defines a lie as “an intentionally false declaration”, the emphasis

here being on the word intentional. It does not mean false in the sense that a declaration

fails to accord with some state of affairs, for one can make a false declaration without any

intention to mislead as when, for example, one is asked for directions and yet honestly

but mistakenly believes it to be this way rather than that. A false declaration is a

statement contrary to one’s knowledge or belief, and that is what Kant means by a lie.

And one does not need to be an expert in legal matters to begin to see the absurdity of an

externally enforceable right to make declarations contrary to one’s knowledge and belief

or to foresee its disastrous civil effects. No such right could be conceded in even the most

rudimentary system of justice for it would mean that sworn testimony in a court of law

would become inherently contradictory, the concept of perjury a manifest nonsense, and

would render powerless in principle any proceedings designed to ascertain the facts in a

criminal or civil case. Where is the lawyer who would care to argue that his client has a

legally enforceable entitlement to make an intentionally false declaration? As Kant

himself says in his reply, a legal right to lie would also mean: "...that all rights founded

on contract should lose their force; and this is a wrong which is done to mankind." It is

not to be thought here that the concept of a contract is narrow in application for it is wide

in scope and penetrates deeply into the fabric of social life – in fact wherever a

relationship between persons arises that is supported by a declaration intended to have

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legal effect. Could a producer of food have a legal right to lie about its contents? A

vehicle manufacturer about the safety of its cars? An airline pilot about his

qualifications? A surgeon about his experience? And who will defend a legal right to lie

in a marriage ceremony, a death certificate or a tax return? Justice in a civil society

demands categorically that there be no legal right to lie, and this demand remains in force

regardless of whether innocent lives are at stake. To Kant it is obvious that legal right to

lie would render every contract instantly void and unenforceable since in issues of breach

the coercive power of the law applied on behalf of one party would be exactly cancelled

out by that same power applied on behalf of the other. No doubt law as it stands is an ass

in this or that respect but it has never been as asinine as this.

Constant further misconstrues Kant’s argument when he remarks: “The moral

principle that it is one’s duty to speak the truth, if it were taken singly and

unconditionally, would make all society impossible.” Yet Kant claims nothing of the

kind. In the Tugendlehre [6:433], for example, he writes: “Between truthfulness and lying

(which are contradictorie oppositis) there is no mean; but there is indeed a mean between

candor and reticence (which are contrarie oppositis), since one who declares his thoughts

can say only what is true without telling the whole truth.” Thus Constant confuses an

unconditional duty not to lie, which is what Kant is really speaking about, with an

unconditional duty to speak the whole truth, which he is not. When Kant speaks of a duty

to ‘truthfulness’ in his reply he is referring only to a duty not to lie, and that is the

meaning of the following remark: “...truthfulness is a duty that must be regarded as the

basis of all duties founded on contract, the laws of which would be rendered uncertain

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and useless if even the least exception to them were admitted.” It may well be the case

that if there was a duty to speak the whole truth and this was universally followed

‘society’ as we know it would collapse, and given the depth of mistrust that now pervades

so much of modern life one might consider this to be no bad thing; but against this mere

possibility is the absolute certainty that if there was indeed a legal ‘right to lie’ then not

only this society, but any civil society, would be impossible.

Kant’s answer to his second question – “whether, in order to prevent a misdeed

that threatens him or someone else, he is not actually bound to be untruthful in a certain

statement to which an unjust compulsion forces him” – follows from his answer to the

first. Of the (presumed) request to the householder that he should lie on behalf of the

intended victim, Kant remarks: “...to admit his right to require another to tell a lie for his

benefit would be to admit a claim opposed to all law”. As Kant puts it in the Metaphysics

of Morals, “Duty is that action to which someone can be bound” [6:222] and so to say

that a person can be bound to lie on behalf of another is merely another way of claiming

that it is possible for that person to have a legal duty to lie. But it follows from the

reciprocal relationship between legal rights and legal duties that were it indeed possible

for a person to be legally bound to lie this itself must imply a legal right to lie; yet if there

is no legal right to lie there cannot be a legal duty to lie, and so one cannot be legally

bound to lie.

(ii) The Question of “Unjust Compulsion”

Constant writes in his paper of a German philosopher “...who goes so far as to

affirm that to tell a falsehood to a murderer who asked us whether our friend, of whom he

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was in pursuit, had not taken refuge in our house, would be a crime.” (Emphasis added).

One of the most striking features in traditional criticisms of Kant’s reply is the apparently

universal failure to discriminate between his and Constant’s construction of the

householder’s case. Generations of critics have mechanically followed Constant’s word

“asked” and there appears to be no example in the secondary literature where this term

has ever been challenged. And this despite the fact that Kant’s reply is littered with such

phrases as: “...where he cannot avoid answering Yes or No”; “utterances that cannot be

avoided”; “the admission of which he cannot avoid”; “is not free to choose”; “it was not a

free deed”; “unjust compulsion”; “unjustly compels me to speak”, and so on. Now if it all

comes down to a question of asking, to what seems to be nothing more than a request for

information, then Constant’s householder would hardly be faced with a moral dilemma at

all. In these circumstances he would clearly have number of options, including avoiding

any direct answer to the question. But Kant’s householder is confronted with a different

problem altogether: he is not being “asked” a question, he is facing a demand with

menaces. This fact dramatically changes the moral dimensions of the case, but before

considering the full import of this “unjust compulsion” it will be useful to examine the

significance of the word “avoid” in such phrases of Kant’s as “the admission of which he

cannot avoid”.

Since one can have no legal right to lie it follows that if a person is subject to

lawful compulsion in or outside of a court of law, and if he cannot avoid answering ‘yes’

or ‘no’, he must tell the truth; for given the restrictive conditions specified no other option

is available. So when Kant says: “Truth in utterances that cannot be avoided is a formal

duty of a man to everyone, however great the disadvantage that may arise from it to him

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or any other..” he is merely setting out what justice necessarily requires wherever a

declaration is intended to have legal effect. So far as lawful coercion is concerned that

much will not be contested, but what is the case when a person is faced with unjust

compulsion?

It is a well-established principle of jurisprudence that a person subject to unjust

compulsion – that is, to actual or threatened violence – and who is forced to reveal

information which is then used to commit a crime, cannot be held legally accountable for

that crime. The bank manager who reveals the combination of a safe only at the point of a

gun will not be charged with complicity in the crime, and the principle involved here has

been a basic tenet of justice wherever law has been formally codified and assumed in

practice where it has not. As Kant puts it in is reply: "...if you have strictly adhered to the

truth, public justice can find no fault with you... it was not a free deed (in the juridical

sense).” The same principle applies when information extracted by unlawful coercion is

used to commit murder, for it has long been accepted that one is not legally obliged to

risk one’s own life to save that of another. In other words, there is not and never has been

a legal duty to attempt to save the life of an innocent person at the risk of one’s own. This

remains the case in jurisdictions such Germany, France, Canada and Japan where ‘Good

Samaritan’ laws have recently come into force. These laws, designed partly to protect

from legal liability professionals who give emergency aid to the injured, and partly to

encourage members of the public to assist others in distress, invariably specify that

assistance need not (and in some cases should not) be attempted at the risk of serious

personal injury, much less at the risk of one’s own life. It could hardly be otherwise, for

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on what legal grounds could it be claimed that the life of one innocent citizen is more or

less valuable than that of another?

Part II. ON A SUPPOSED MORAL OBLIGATION TO SAVE THE LIFE OF AN

INNOCENT PERSON.

Traditional criticisms of Kant’s reply assume one does have some kind of moral

obligation to save the life of innocent person, although this is often taken for granted

rather than openly argued for. If there is no legal duty to attempt to save the life of an

innocent person at the risk of one’s own is there a defensible argument for a moral duty

or obligation of this kind? This is a question that needs to be squarely faced and not

avoided by noting a certain artificiality in the circumstances presented by Constant. It

might be said, for example, that what the householder says or does is morally irrelevant

anyway since an unjust and overwhelming force stands in no need of permission to act.

Or one might say with Sullivan (1989: 177) that Kant: "...could have begun by pointing

out that Constant's is an extraordinary case, that we rarely face a situation in which we

must answer a question...” Sullivan does not say exactly who he means by "we", but it

cannot include all those across the globe who have faced just such a situation and whose

names and cases appear in the files of the Medical Foundation and Amnesty

International. Nor can the moral issue be avoided by neglecting to take account of the

particular circumstances in which Kant’s householder is placed, most especially the fact

of unjust compulsion. Thus most of the three-part strategy suggested for the householder

by Clohesy (2005) does not meet the requirements of Kant’s case, the first two parts of

which, “mediation” and “coercion” in that order, being immediately ruled out. The third,

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“evasion”, in which it is said “lying could be a necessary tactic”, is the policy of last

resort and is described as follows: “...the best course of action might well be to escape

from the pursuer or send him away before he can do us harm”. Yet it should be clear

from Kant’s stipulation, “if one cannot avoid answering Yes or No”, that to lie or not to

lie are the only options remaining.

So to return to Kant’s householder. The murderer at the door is demanding an

answer to his question and threatening violence if he doesn’t get it. But the dilemma the

householder now faces does not begin at this moment but at the earlier point when he is

first asked for refuge by the intended victim; it is then that he has to decide whether to

risk his own safety, perhaps his own life, in an attempt to save that of another innocent

person, and it is at this point that critical moral questions arise: does he have a moral

obligation to grant the fleeing victim refuge?; does anyone in these circumstances have

an obligation to do the same?; or might it be that whilst the householder’s action is

meritorious from a moral point of view it is nevertheless one that most would regard as

above and beyond the call of duty - that is, as supererogatory? How does Kant himself

respond to moral dilemmas of this kind?

It has often been claimed4 that Kant’s ethical philosophy does not allow for

supererogatory acts yet both the Critique of Practical Reason and the Metaphysics of

Morals show this to be incorrect. In the Introduction to the latter, for example, Kant

writes:

“If someone does more in the way of duty than he can be constrained by law to

do, what he does is meritorious (meritum); if what he does is just exactly what the

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law requires, he does what is owed (debitum); finally, if what he does is less than

the law requires, it is morally culpable demeritum)…The greater the natural

obstacles (of sensibility) and the less the moral obstacle (of duty), so much the

more merit is to be accounted for a good deed, as when, for example, at

considerable self-sacrifice I rescue a complete stranger from great distress.” [6:

227/228].

Kant’s distinction between a duty and a meritorious act is directly relevant to the

householder’s dilemma. So what ought he to do? If the positions were reversed and he

was the intended victim, would he want the householder to grant him refuge? Surely he

would. Yet from a moral point of view ought he to do what he is being asked to do?

Could he will as a universal permissive law the maxim ‘I want to save the life of an

innocent person’? Well of course he can, for anyone, including the murderer himself, can

will such a law. The point, however, is this: his maxim does not give rise to a moral duty

but to a permissive5 law, a law he is entitled to act upon if he chooses to do so and hence

according to his particular inclinations; and of course a permission to act in a certain way

is not at all the same as an obligation to act in that way, any more, say, than a permit to

park a car obliges one to park it. Thus whilst authentic Kantian ethics does not preclude

the householder from granting refuge to the intended victim it does establish clearly that

he is under no moral obligation to do so. However sympathetic they might be to the

victim’s plight some will doubtless turn aside, fearful for the welfare of themselves or

others who may be put at risk, whilst some others will to do what is being asked of them.

But one needs to be quite clear here that what is being asked is bound to put someone else

at risk, and if a person is prepared to take that risk he will almost certainly be regarded as

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morally exceptional, perhaps even heroic, and this precisely because his action is seen as

above and beyond the call of duty. After all, the idea of a moral hero – Schindler is an

example – would make no sense at all if his attempts to save others in circumstances

dangerous to himself were not seen as morally exceptional.

This conclusion fully accords with that ‘ordinary practical reason’ to which Kant

refers in the Groundwork. Despite their well-founded reservations about lying in general

when the question is asked whether a person is morally obliged to lie in an attempt to

save an innocent life many will reply ‘Yes’, and they will do so on the basis that in this

particular case a lie is morally justified in order to prevent a greater evil. It is of course

for this same reason that Kant’s unequivocal denial of ‘a right to lie’ is so widely

condemned as morally repugnant. But when it is asked whether at the risk of their own

life a person is morally obliged to attempt to save the life of an innocent person the usual

answer is either ‘No’, or, ‘It depends on who the innocent person is’. And this is so

because this second question makes evident the false antithesis on which the first is

based; that is, whereas ordinary practical reason accepts a moral obligation not to lie it

does not accept a moral obligation to save the life of another at the risk of one’s own.

From this standpoint traditional criticisms of Kant’s reply conflate the concept of a moral

duty with the concept of a meritorious or supererogatory act, and so the ‘choice’ the

householder is supposedly forced to make between not lying on the one hand and saving

an innocent life on the other is really no genuine choice at all; it is an artificial dilemma

because the only two options on offer are not legitimate moral alternatives.

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Nevertheless, the fact remains that the householder has decided to grant refuge,

and so if he “cannot avoid answering Yes or No” what ought he to do now? Most

commentators argue that from sympathetic feeling or from some kind of obligation the

householder is morally entitled to lie whilst others go further and contend that the

householder has a moral duty to lie. Thus whereas Korsgaard (1996:146) writes: “A

person with a good character will tell the lie. Not to tell it is morally bad”, Timmermann

(2001:351) answers his own question – “...can there be a ‘kantian’ duty to lie to save a

person?” – in the affirmative. Paton (1954:197) himself remarks: “Here is a man in

danger of his life. It is my duty to save him if I can. This duty I cannot set aside even if,

in order to fulfill it, I have to tell a lie to a criminal..” Yet all of these views give rise to a

serious difficulty, at least for any person who happens to find himself in the situation

faced by the householder; if, as is said, one does have a moral obligation to lie, how far is

this to be pressed in the face of a violent threat? For bearing in mind Singer’s example of

the Gestapo at the door, and speaking from a strictly prudential point of view, the course

of action this supposed obligation enjoins is not one to be lightly recommended. Those

who do so would do well to take advice on the subject of lying in the face of violence

from professionals in the long established business of information extraction. General

Aussaresses (2001), commander of the ‘French Gestapo’ during the battle of Algiers in

1957 and a self-confessed expert in the field, has no problem at all in admitting:

“Torture’s efficient. The majority of people crack and talk. Then, most of the time, we

kill them”.

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The argument in support of lying would seem to require that a person commits a

moral wrong if they yield, and indeed ever yield, the information demanded; if it is

morally wrong to speak the truth in the face of a murderous threat to the life of another

then presumably it will continue to be morally wrong so long as that threat remains and

one retains the capacity to influence the outcome. Under the kind of interrogation the

General has in mind that is far easier said than done, and in these pressing circumstances

it is not unreasonable to ask advocates of the lie just where along the line of painful

compulsion the act they so readily condemn as a moral wrong ceases to be a moral wrong

– if it ever does.

This argument does not rest on the assumption that for Kant a threat negates a

duty since this would directly conflict with his repeated contention that “duty has to be a

practical unconditional necessity of action”. The argument merely makes evident the

practical consequences of maintaining that there is a legitimate moral duty when there is

not. If those who claim such a duty fail to take account of the threat to which Kant so

clearly refers it is surely up to them to say whether they are prepared to maintain their

view when the reality of the threat is eventually pointed out. That is the challenge faced

by anyone who claims there is a legal or moral duty to attempt to save the live of another

innocent person. Should it finally be admitted that there is indeed a moral limit to what

one human being can be expected to endure on behalf of another it is difficult to see how

this could be based upon anything other than a realisation that there is, after all, no moral

obligation of the kind they have claimed. And with that realisation the entire moral case

19

against Kant, pursued with such vigour and over so long a period of time, collapses in

ruins.

In considering the juridical aspects of the case it was remarked that if a person

subject to unjust compulsion yields information which is then used in a criminal act he

cannot be held accountable from a legal point of view. So should a person in exactly the

same circumstances be held accountable from a moral point of view? Speaking of the

legal context Kant draws an important distinction between harm and wrong, writing that

Constant “...confounds the action by which one does harm (nocet) to another by telling

the truth, the admission of which he cannot avoid, with the action by which he does him

wrong (laedit). It was merely an accident (casus) that the truth of the statement did harm

to the inhabitant of the house; it was not a free deed (in the juridical sense).” Had Kant

chosen to address the issue of saving the life of an innocent person he would doubtless

have drawn exactly the same conclusion. But his critics take the opposite view and

condemn as a moral wrong the actions of a person who cannot avoid answering ‘Yes’ or

‘No’ and who reveals a truth that might be used to commit murder. Yet one has to say

that what is truly infamous in all of this is that a person should be charged with acting

immorally when short of sacrificing his own life he has already done more to protect that

of another than can be justifiably expected of him. If there is no alternative to speaking a

truth in the circumstances Kant describes how can it ever be a moral wrong to reveal it?

Indeed, how can it ever be morally wrong not to lie?

20

CONCLUSION

It is has been argued that given the definition of a right as an externally

enforceable legal entitlement, and of a lie as an intentionally false declaration, Kant’s

denial of a right to lie, a duty to lie, and of the possibility of being legally bound to lie are

all correct from a strictly juridical standpoint. This denial is categorical – that is, without

condition, qualification or exception. It is has also been concluded that according to the

universal law formulation of the categorical imperative whilst the maxim ‘I want to lie’

cannot be willed as a universal permissive law (as Kant himself argues in the

Groundwork and elsewhere) the maxim ‘I want to save the life of an innocent person’

most certainly can. On this basis it can be shown that whereas the first maxim leads to a

duty not to lie the second leads only to a permissible universal law, a law upon which one

is morally entitled, but not morally obliged, to act. It follows that the conventional

counter-position of a duty not to lie on the one hand and of a ‘duty to save the life of an

innocent person’ on the other is false since it opposes a legitimate moral duty – not to lie

- with a prescription which, on the basis of Kant’s ethical principles at least, cannot be

shown to be a moral duty at all. In a well-known passage in the Metaphysics of Morals

[6:224] Kant writes:

“A conflict of duties (collisio officiorum s. obligatonium) would be a relation

between them in which one of them would cancel the other (wholly or in part). –

But since duty and obligation are concepts that express the objective practical

necessity of certain actions and two rules opposed to each other cannot be

necessary at the same time, if it is a duty to act in accordance with one rule, to act

21

in accordance with the opposite rule is not a duty but even contrary to duty; so a

collision of duties and obligations is inconceivable..”

Although this passage is usually taken to contradict the standpoint Kant takes in

his reply to Constant the opposite case has been argued here; since there is no moral or

legal duty to save the life of another the possibility of a conflict of principle with a duty

not to lie cannot arise. This conclusion also explains why Kant so clearly limits himself to

the issue of a ‘right to lie’, and also accounts for the emphatic tone of his reply and the

unusual circumstances in which it was published. That he had no doubts about the

correctness of his legal approach is evident from the almost perfunctory way in which he

responded to the enquiry from Cramer, the editor of the German periodical in which the

translation of Constant’s article was published, as to whether Kant had in fact denied a

right to lie even to save the life of an innocent person. Kant replied: “I hereby admit that I

have really said this in some place which I cannot now recollect.” To Cramer, as with

Constant himself, Kant’s view seemed extraordinary and of it he remarks: “J.D.

Michaelis, in Göttingen, propounded the same strange opinion even before Kant.”

What might account for Kant’s confidence in this ‘strange opinion’ when Cramer

and so many others have seen in the Constant case a fundamental issue concerning the

extent of one persons moral obligations to another? After all, Kant had written

extensively on many other normative issues so why not on this? Could he have just

overlooked it? Or perhaps he passed it over in silence because in terms of his own ethical

principles he could not find a way of meeting Constant’s objection? Yet given the

22

thoroughness of his approach and his record of facing up to difficult questions both of

these possibilities appear unconvincing. There is, however, one explanation that is

consistent with all of the known facts and with the conclusions arrived at in this paper.

Kant does not refer to the issue that has pre-occupied so many other moral philosophers

because for him it was never an issue in the first place; he does not accept a legal or

moral obligation to save the life of an innocent person and so this is a matter which

simply does not arise and so which he is not required to address. It would seem that Kant

considered that his own ethical principles had fully confirmed the insights of ordinary

practical reason on this subject and so he takes it as virtually self-evident that the

obligation to which Constant and Cramer refer is not an obligation at all. For Kant the

only moral question which arises in his dispute with Constant concerns lying, and this is

confirmed by the footnote in his reply where he says that “..here we are speaking only of

a duty of justice”. He continues: “Ethics looks in this transgression only to the

worthlessness, the reproach of which the liar draws on himself.”

According to the argument outlined in this paper Kant’s approach to the issue

raised by Constant is vindicated in full and hence attempts to ‘reconstruct’6 his ethical

principles so as to meet Constant’s objection are not required. The implications of this

conclusion will not be lost on those who regard Kant’s ethical philosophy as the most

coherent account of morality yet advanced and who are prepared to recognise that the

historical failure to provide a convincing resolution of his dispute with Constant has long

been one of the major obstacles to its progress. But if such a resolution is possible at all it

has to be grounded upon principles that can be demonstrated to be authentically Kantian,

23

and in particular to be consistent with the categorical imperative as Kant himself employs

it and with his unwavering contention from the Groundwork onwards that “..duty has to

be a practical, unconditioned necessity of action”. The argument presented here claims to

meet these requirements, and if this proves to be so one might finally see the end of all

those attempts to ‘save Kant from himself’ by casting about in the boundless expanse of

the conditionally unconditional, the hypothetically categorical and the unnecessarily

necessary.

ANNEXE

On H.J. Paton’s “An Alleged Right to Lie: A Problem in Kantian Ethics.” Kant-Studien 45 (1953-4): 190-203.

Paton offers a number of arguments designed to show that Kant’s rejection of a

right to lie in his reply to Constant conflicts with his earlier statements on the subject and

consequently is not to be taken seriously. The weakest of Paton’s arguments is surely his

contention that Kant’s reply may have no ethical significance at all since it could be

nothing more than the cantankerous reaction of an old man in the declining years of his

life. Had that been so this decline must have been unusually precipitous for otherwise it is

difficult to understand why Paton has no hesitation in referring to the Rechtslehre,

published almost simultaneously, in support of his claim that in this work Kant does in

fact sanction a right to lie. This important claim, also made by Aune (1979) and

Grunewald (2005), is examined below.

24

The Rechtslehre and a Right to Lie.

According to Paton (199/200):

“If we turn to the Rechtslehre (Ak. VI, pp. 237-8), we find some most surprising

statements. Kant is arguing that the only innate right possessed by man in virtue of

his humanity is the right to freedom. All other rights are derived from this,

including not only the fundamental right to equality, but also the right or faculty

(Befugnis) to do to others anything that does not in itself diminish their freedom.

Under this heading is included, not only the right to communicate our thoughts, but

also - and here comes the surprise - the right to make statements and promises either

true or false, since it depends solely on others whether they will believe us or not. It

should be remembered that in thus expressly recognising a right to lie Kant is

speaking solely of a legal right; but even so he is admitting that in strict law an

untruth (falsiloquium) is a lie (mendacium or falsiloquium dolosum) only if it is a

direct breach of the right of others. That is, he explicitly accepts here the view

which he rejects in the essay ‘On the Right to Lie’ - the view namely, that in law an

untruth is a lie only if it is to the prejudice of someone else (in praejudicum

alterius). Telling a lie to a would-be murderer is certainly not a direct breach of the

right either of the murderer or of his victim, and consequently it must escape at least

legal condemnation".

This statement is misleading in three important respects. Firstly, Kant does not

use the expression 'a right to lie' in the passage to which Paton refers. Whereas Paton

speaks of "a right or faculty (Befugnis) to do to others...” Kant himself uses only the term

25

Befugnis, or authorization. And he makes it quite clear that an authorization is not itself a

right in the sense of a legal entitlement to coerce, but refers specifically to the general

internal capacity (facultas moralis generatim) from which all rights as possible

entitlements to coerce can proceed in an actual system of justice. Thus whilst

authorization is required to establish an enforceable legal right in positive law it does not

follow that this authorization necessarily leads to such a right, and most certainly not to a

legal right to lie. This brings one to the second misleading aspect of Paton’s statement.

By omitting direct mention of a crucial footnote appended to the passage in the

Rechtslehre Paton fails to make clear that what Kant is actually presenting is the

generally accepted legal definition of a lie and pointing out how it differs in one key

respect from the moral definition. Whilst both understand a lie to be an intentionally false

declaration the moral definition goes no further than this; but the jurist always adds the

qualification that a lie is open to legal sanction only under the condition that it infringes

the rights of another. And thirdly, Paton's claim that Kant "...explicitly accepts here the

view which he rejects in the essay 'On the Right to Lie' - the view namely, that in law an

untruth is a lie only if it is to the prejudice of someone else.." is demonstrably false. All

of this becomes evident from the passage to which Paton refers and from the footnote to

which he does not. Kant himself writes:

"There is Only One Innate Right"

“Freedom (independence from being constrained by another’s choice), insofar as

it can coexist with the freedom of every other in accordance with a universal law,

is the only original right belonging to every man by virtue of his humanity. - This

26

principle of innate freedom already involves the following authorizations, which

are not really distinct from it (as if they were members of the division of some

higher concept of right): innate equality, that is, independence from being bound

by others to more than one can in turn bind them; hence a human being's quality

of being his own master (sui iuris), as well as being a human being beyond

reproach (iusti), since before he performs any act affecting rights he has done no

wrong to anyone; and finally, his being authorized to do to others anything that

does not in itself diminish what is theirs, so long as they do not want to accept it -

such things as merely communicating his thoughts to them, telling or promising

them something, whether what he says is true and sincere or untrue and insincere

(veriloquium aut falsiloquium); for it is entirely up to them whether they want to

believe him or not."*

Kant’s footnote:

*"Telling an untruth intentionally, even though merely frivolously, is usually called

a lie (mendacium), because it can also harm someone, at least to the extent that if he

ingenuously repeats it others ridicule him as gullible. The only kind of untruth we

want to call a lie, in the sense bearing upon rights, is one that directly infringes

upon another's right, e.g., the false allegation that a contract has been concluded

with someone, made in order to deprive him of what is his (falsiloquium dolosum).

And this distinction between closely related concepts is not without a basis; for

when someone merely says what he thinks, another always remains free to take it as

he pleases. But a rumour, having some basis, that this is a human being whose talk

27

cannot be believed comes so close to the reproach of calling him a liar that the

borderline separating what belongs to Ius from what must be assigned to ethics can

only be drawn in just this way." [6: 238]

In a juridical sense, Kant says, "The only kind of untruth we want to call a lie, in

the sense bearing upon rights, is one that directly infringes upon another's right...” The

example Kant gives of a false allegation about a contract would be incomprehensible if

the passage above it were taken to sanction a legal right to lie, a ‘right’ that would by its

nature automatically infringe contracts of every kind. Jurisprudence distinguishes

between a lie that is actionable and one that is not, the former being one intended to

establish an enforceable legal obligation. There are many instances of intentionally false

declarations that are without legal effect, as when someone insincerely says to a casual

acquaintance: “I'll call you, we must get together soon”. Kant mentions examples such as

"...merely communicating his thoughts to them, telling or promising them something,

whether what he says is true and sincere or untrue and insincere (veriloquium aut

falsiloquium); for it is entirely up to them whether they want to believe him or not."

The distinction between the legal and moral approaches to lying is relevant to

another of Paton’s arguments, and looking at his point here also serves to emphasize once

again the critical importance of adhering strictly to Kant’s specific usage of ‘right’ rather

than employing the term in some other (often vague) non-Kantian sense. Speaking of

Kant’s criticism of the phrase “a right to the truth” Paton (194) remarks: “It is surely clear

enough that what Constant meant was a right to be told the truth..” It was remarked

28

earlier that Constant misconstrues Kant’s argument when he takes it as claiming a duty to

speak the whole truth rather than a duty not to lie. Thus had Kant given any serious

consideration to “a right to be told the truth” for him it could only mean a ‘right not to be

lied to’; and given the reciprocal relationship between legal rights and duties this itself

would imply a duty not to lie, a duty which in the nature of things would have to be a

duty of right. But this duty not to lie is not Kant’s duty not to lie; for Kant’s is clearly

stated to be a perfect duty of virtue to oneself [Tugendlehre [6:429], a duty which arises

solely because a maxim of lying cannot function as a universal permissive law. So in

Kant’s terminology what would an unconditional legal duty not to lie mean in practice? It

would mean that every lie and every insincere promise would be open to legal sanction

regardless of whether it infringed the rights of others. So the person who makes an

insincere New Year’s resolution, or who lies when he says his wife’s new dress really

suits her, could find himself in a court of law and for the serial offender, even in jail; and

it is just because of considerations of this kind that there can be no unconditional legal

duty not to lie, and why the juridical approach to lying is restricted in the way it is. Thus

it appears that Paton’s “right to be told the truth” is no advance on Constant’s “right to

the truth” since it generates another legal impossibility – a duty which in principle could

only be externally enforced but in practice could not be externally enforced. Perhaps this

is why Kant takes Constant’s “right to the truth” in the way he does, declining to trouble

himself with the inconsistencies that arise from Paton’s problematical interpretation of

the phrase.

29

Paton’s claim to find a difference between Kant’s position on lying in the

Rechtslehre and in his reply to Constant also disregards the fact that in his reply Kant

once again draws attention to the customary distinction between the legal and moral

definitions of a lie: "If, then, we define a lie merely as an intentionally false declaration

towards another man, we need not add that it must injure another; as the jurist's think

proper to put in their definition (mendacium est falsiloquium in praejudicium alterius).

For it always injures another; if not another individual, yet mankind generally, since it

vitiates the source of justice." Thus Paton misses the point entirely when he says that in

the Rechtslehre Kant: "...explicitly accepts here the view which he rejects in the essay

‘On the Right to Lie’ - the view namely, that in law an untruth is a lie only if it is to the

prejudice of someone else (in praejudicum alterius)". It should be clear that Kant is

merely repeating the point he makes in the Rechtslehre: that there is really is no need to

add the jurist's qualification to the common definition of a lie (that it must also prejudice

the rights of another) because a lie is always prejudicial to others, namely, to mankind.

To say that a lie of the kind that Kant is speaking of will usually escape legal sanction is

certainly not the same as saying that one has a legal right to lie. All Kant is doing here is

taking the concept of infringement in its widest possible sense, and there is nothing wider

than humanity as a whole.

Perfect Duties, Imperfect Duties and the Right to Lie.

Of all the arguments advanced by Paton in support of his claim that authentic

Kantian ethics can permit a lie in critical circumstances the most tortuous by far revolves

around Kant's distinction between perfect and imperfect duties. Ignoring his own

30

translation of the Groundwork which so clearly states that “duty has to be a practical,

unconditioned necessity of action” Paton embarks upon a re-construction of the concept

of an imperfect duty in such a way that whereas for Kant a moral agent can choose how

and towards whom he is to fulfil his (unconditional) duty of beneficence it now appears

that a moral agent has a choice as to whether a duty is to be performed at all; that is,

Paton introduces the idea of a conditional duty, a tactic that enables him to claim that one

duty can “over-ride” another: He writes: "No doubt a perfect duty must generally over-

ride an imperfect one: we must pay our debts before we are entitled to indulge in charity.

But might there not be special cases where we are obliged to neglect even a perfect duty

for an imperfect one? The humane and reasonable answer to these questions is surely that

there may be necessary exceptions to moral laws, even to strict moral laws and perfect

duties. This is at least a provisional answer, although the details may want closer

examination.”

Closer examination is certainly required. Paton continues (p.192):

“..we should note that Kant himself draws a further distinction between perfect and

imperfect duties, and tells us in the Grundlegung (Ak. IV, p.421) that a perfect duty

is ‘one which allows no exceptions in the interests of inclination’. He thereby

implies that an imperfect duty does allow exceptions in the interests of inclination,

and this may be of some importance in the sequel. We may perhaps equate

exceptions in the interests of inclination with arbitrary exceptions...for our present

purposes we may take perfect duties as equivalent to what he also calls strict or

narrow or rigorous or unconditional duties, and imperfect duties as equivalent to

31

what he also calls wide or meritorious or conditional duties..” Later (p.197) he

states: "The duty of benevolence is, however, a conditional duty, while the duty to

respect the right of others is an unconditional and mandatory duty.”

Yet in all of his mature ethical works Kant never wavers from the view that the

rational concept of a duty requires unconditionality. Thus speaking of the distinction

between duties of right as narrow and duties of virtue as wide [6:390] and elaborating on

his view that “Ethics Does Not Give Laws for Actions (Ius Does That), but Only for

Maxims of Actions” [6:388/9]7, he writes:

..if the law can prescribe only the maxim of actions, not actions themselves, this is a

sign that it leaves a playroom (latitudo) for free choice in following (complying

with) the law, that is, that the law cannot specify precisely in what way one is to act

and how much one is to do by the action for an end that is also a duty. – But a wide

duty is not to be taken as permission to make exceptions to the maxim of actions

but only as permission to limit one maxim of duty by another (e.g., love of one’s

neighbour in general by love of one’s parents), by which in fact the field for the

practice of virtue is widened. – The wider the duty, therefore, the more imperfect is

a man’s obligation to action; as he, nevertheless, brings closer to narrow duty

(duties of right) the maxim of complying with wide duty (in his disposition), so

much the more perfect is his virtuous action.

32

Kant’s argument here seems straightforward enough. All duties, be they to do or to

forebear, of right or of virtue, perfect or imperfect, refer ultimately to actions, but not

necessarily to this or that particular action. No person has unlimited resources so if a

duty of beneficence is to be fulfilled at all decisions will have to made about what is to be

given and to whom it is given, decisions which can only be made by an agent in

accordance with his particular circumstances and inclinations. In distinguishing between

benevolence and beneficence, for example, Kant puts it like this: “For in wishing I can be

equally benevolent to everyone, whereas in acting I can, without violating the

universality of the maxim, vary the degree greatly in accordance with the different

objects of my love (one of whom concerns me more closely than another." [6: 452].

So whereas for Kant a wide or imperfect duty permits no exception to the duty as

such but only allows for different ways of complying with it – that is, like all legitimate

Kantian duties, it is unconditional – for Paton it is interpreted in such a way that it now

becomes conditional and consequently can be “over-ridden” by some other prescription.

Whilst Kant speaks of limiting “one maxim of duty by another” Paton speaks of limiting

'the maxim of one duty by the maxim of another'; so almost imperceptibly a change is

made from the idea of one duty with two maxims to the quite different idea of two duties

each with its own maxim. For Kant there is one obligatory duty and a choice between

different ways of fulfilling it, but for Paton there are two duties which in effect are non-

obligatory and merely a choice as to which may over-ride the other.

33

Thus in the case of an imperfect duty Paton slides from the idea of a limitation ‘in

the interests of inclination’ to the wholly unconnected idea of an exception to a duty. But

Kant regards the notion of an unconditional duty of any kind as inherently contradictory

and there is no such species in the Groundwork or any work which follows it. Indeed,

Paton himself goes on to remark: “...in one place (Metaphysik der Sitten, Einleitung VII,

Ak. VI, p.390) [Kant] suggests even in imperfect duties we are not allowed to make

exceptions to the maxims of duty: we are only allowed to limit the maxim of one duty by

the maxim of another. For example, the duty of being kind to our parents may make it

impossible for us to be kind to a stranger." But again this is misleading for the idea of an

imperfect duty as unconditional is not found merely 'in one place' in this work but

everywhere, and it is either stated as such or taken as read wherever the term is used.

Paton's claim that "...for our present purposes we may take perfect duties as

equivalent to what he also calls strict or narrow or rigorous or unconditional duties, and

imperfect duties as equivalent to what he also calls wide or meritorious or conditional

duties..” is therefore incorrect in a number of respects. It should also be noted that

Paton’s idea of a ‘meritorious duty’ is also a contradiction in terms since it seeks to

include in one and the same concept both the idea of a duty and the idea of an action that

by definition is beyond duty – that is, as Kant himself puts it, an action that is “more than

duty requires”. As stressed earlier in this paper, Kant’s own distinction between a moral

duty on the one hand and a supererogatory act on the other is fundamental to clarifying

the various issues involved in his dispute with Constant.

34

NOTES AND REFERENCES

1. Über ein vermeintes Recht, aus Menschenliebe zu lügen. [8:427-30]. Berlinische

Blätter, September 1797. Benjamin Constant’s Des réactions politiques, which first

appeared in May 1796, was translated into German and published in the periodical

Frankreich im Jahre 1797. Aus den Briefen deutscher Männer in Paris. Constant

confirmed to K.F. Cramer, the editor of Frankreich, that the “German philosopher” to

whom he refers is Kant.

2. These include Schwarz (1970), who draws attention to “unjust compulsion”, and

Geismann (1988), who identifies the legal contradiction involved in the notion of a ‘right

to lie’. Despite these insights neither author provides a comprehensive treatment of either

the legal or moral aspects of Kant’s reply. The chief difficulty in these and other earlier

treatments of the juridical aspects of Kant’s reply is the shared assumption, often

compounded by an equivocal use of ‘right’, that there is a moral obligation to save the

life of an innocent person. So long as this assumption has remained the principal focus of

attention the full legal and civil implications of a ‘right to lie’ do not become apparent.

This customary emphasis is well brought out in the approach of Sullivan (1989). Whereas

for Kant to concede a right to lie (and its corollary, that one can be legally bound to lie)

would be “to admit claim opposed to all law” Sullivan, in an under-statement of some

magnitude, writes: “The arguments Kant gave against a civil law mandating the policy

Constant proposed are not obviously absurd”. Although Geismann himself considers

Kant to be correct in opposing a legal right to lie he limits his treatment to a consideration

of contract law. He argues that Kant’s denial of a right to lie to save an innocent life

could only be disproved if it can be shown that lying to a murderer does not infringe this

35

particular branch of law. Grunewald (2005), like Paton (1954) before him, argues that

this condition can be met and consequently the lie is justified. Moreover these treatments

do not bring out the critical importance of unjust compulsion, including its relationship to

legal culpability. In contrast the paper presented here has sought to point out some of the

wider implications of a legal right to lie and unequivocally endorses Kant’s contention

that to acknowledge such a right would be to destroy the possibility, not just of a legal

contract, but of juridical law itself.

3. This distinction, the basis for dividing of the Metaphysics of Morals into the

Rechtslehre (Doctrine of Right) and the Tugendlehre (Doctrine of Virtue), is certainly no

invention of Kant’s. The principle that a duty of right can be externally compelled while a

duty of virtue cannot has been recognised in many cultures, including those sometimes

described as 'primitive'. Devlin (1977: 82) gives an interesting example from a council of

the Barotse people of the former Northern Rhodesia in 1942: "The distinction was well

put in the judgement of African elders in a family dispute: "We have power to make you

divide the crops, for this is our law, and we will see this is done. But we have not power

to make you behave like an upright man."

4. See Baron (1995) “Kantian Ethics Almost Without Apology.” It is also worth noting

that in the Metaphysics of Morals Kant distinguishes between moral duties and

meritorious (i.e. supererogatory) actions; in the Method of Pure Practical Reason [155]

of the second Critique he distinguishes both from “suprameritorious” [überverdienstlich]

actions. He counsels that moral education should dispense with examples of the latter

kind (e.g. Horatio at the Bridge, etc.) and “...to stake everything merely on duty and on

the worth that a human being can and must give himself in his own eyes through the

36

consciousness of not having transgressed it...” In his mature ethical works there are few

better illustrations of the distinction Kant insists upon between morally obligatory and

morally permissible actions.

5. In the Groundwork, the Critique of Practical Reason and the Metaphysics of Morals

Kant employs the categorical imperative in the following way: As a subjective principle

of action a maxim is always first personal and of the form (a) 'I want to do X' or (b) 'I do

not want to do X'. The function of the imperative is to determine whether a maxim of

either type can also be an objective principle of conduct valid for all moral agents. The

Categories of Freedom in the Analytic of the second Critique show that in using any

formulation of the imperative the outcome is to be judged in terms of the modal

categories “permissible” or “forbidden” So if (a) can be willed as a universal law the

action is permissible, if not it is forbidden and a duty arises not to perform it. If (b) can be

willed as a universal law that action is permissible, if not it is forbidden and a duty arises

not to perform it, i.e., there is now a duty to perform the action this maxim attempts to

rule out. According to Kant it is only in this way that a duty either to do or to forebear can

arise.

6. In connection with Kant’s reply Korsgaard (1986) writes: "One of the great difficulties

with Kant's moral philosophy is that it seems to imply that our moral obligations leave us

powerless in the face of evil...It is not always feasible to live up to the ideal set by the

Categorical Imperative.." Much in the manner of the Intuitionist Ross before her

Korsgaard argues that a two-tiered theory of duties is required to accommodate

exceptions to a moral principle in critical situations. Referring to the same matter Hösle

(1990) writes: "...every moral theory wishing to be taken seriously must explain

37

rationally the necessity of exceptions, and even more, it must recognize that there are

norms which are valid only under certain conditions and not valid under others." He

proposes a hierarchy of values and goods designed to preserve a distinction between a

categorical and a hypothetical imperative. Nevertheless, as Munzel (1999: 250) remarks,

this "...raises its own problems, for there must now be criteria for ranking such values and

ways of deciding on these criteria...” Indeed; for it is at this critical juncture that the

coherence and consistency demanded by Kant is lost as one is propelled into that nether

region of limitless terminological impossibilities where the infinite regress reigns

supreme.

7. Given all he says in 6:388/390 about how a duty of virtue might be practiced – not to

mention the key duty of virtue to promote the happiness of others [6:393] - it would be

erroneous to counterpose ‘maxim’ and ‘action’ in this statement and so to conclude that

for Kant a duty of virtue involves a maxim but not an action. Kant’s distinction here is

not between actions on the one hand and maxims on the other but between actions and

maxims of action. Although in his remarks on the Tugendlehre Paton himself does not

misread Kant on this point I have to thank an anonymous reviewer for illustrating so

clearly the perils awaiting someone who does; by ignoring two thirds of Kant’s “maxims

of action” – that is, the words “of action” – one is presented with the paradoxical notion

of a duty of virtue based on a ‘maxim’ that requires no act of virtue. Just what an action-

less duty of virtue might mean in practice is impossible to say since (of course) there

would be no practice.

A Final Note.

The central argument of this paper first appeared as a chapter of my doctoral

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thesis, “Kant on Education”, L.A.Callender, London University 2004 under the title:

Never to Lie: In Defence of Kant’s Reply to Constant, pp.105-142. Over the years I have

received many helpful comments on this highly contentious subject but I would like to

give particular mention to Graham Haydon, Paul Franco, Graham Bird and the two

anonymous referees appointed by Kantian Review.

BIBLIOGRAPHY

Aune, B. (1979) “Kant's Theory of Morals.” Princeton, N.J: Princeton University Press.

Aussaresses, P. (2001) “Service Speciaux: Algerie, 1955-57.” Paris: Perrin.

Baron, M.W. “Kantian Ethics Almost Without Apology.” Ithaca: Cornell U.P.

Clohesy, W., (2005) Kant’s Opposition to Lying from Expediency. Xth International Kant

Congress, Sao Paulo, 2005. Proceedings (forthcoming).

Devlin, P. (1977) Morals and the Criminal Law. In Dworkin, R.M. (ed.) The Philosophy

of Law. Oxford: O.U.P.

Geismann, G., Versuch über Kants rechtliches Verbot der Lüge; in: Oberer, H, et.al.

(hrsg.), “Kant. Analysen –Probleme-Kritik,” Wurzburg 198, S. 293-316.

Grünewald, B., Wahrhafttigkeit, Recht und Lüge. Xth International Kant Congress, Sao

Paulo, 2005. Proceedings (forthcoming).

Hösle, V. “The Greatness and Limits of Kant’s Practical Philosophy,” Graduate Faculty

Philosophy Journal 13 (1990): 133-57.

Korsgaard, C.M. (1986) "The Right to Lie: Kant on Dealing with Evil." Philosophy and

Public Affairs 15 (Fall 1986): 325-49

Munzel, F.G. (1999) “Kant’s Conception of Moral Character.” Chicago: University of

Chicago Press.

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Paton, H.J. (1954) “An Alleged Right to Lie: A Problem in Kantian Ethics.” Kant-

Studien 45, 190-203.

Ross, D. (1954) “Kant’s Ethical Theory: A Commentary on the Grundlegung zur

Metaphysik der Sitten.” Oxford: OUP.

Singer, P. (1979) “Practical Ethics.” Cambridge: C.U.P.

Sullivan, R.J. (1989) “Immanuel Kant's Moral Theory.” Cambridge: C.U.P.

Timmermann, J., (2001) “The Dutiful Lie: Kantian Approaches to Moral Dilemmas.”

Kant und die Berliner Aufklärung. Proceedings of the IXth International Kant Congress.

Gerhardt, Horstmann & Schumacher (Eds). Berlin 2001, 345-354

Wiggins, D., (2006) “Ethics. Twelve Lectures on the Philosophy of Morality.” London:

Penguin Books.

ENGLISH TRANSLATIONS OF KANT WORKS

On a Supposed Right to Tell Lies From Benevolent Motives. In Abbott, T.K., (1909)

Critique of Practical Reason and Other Works on the Theory of Ethics, pp. 361-5. Sixth

Edition, London: Longmans.

Critique of Practical Reason. Trans. Pluhar, W.S. (2002). Indianapolis: Hackett

Critique of Practical Reason. Trans. Gregor, M. (1997) Cambridge: C.U.P.

Groundwork of the Metaphysic of Morals (1989). In Paton, H.J. The Moral Law. 23rd

impression. London: Unwin Hyman.

The Metaphysics of Morals (1996). Trans. Gregor, M. Cambridge: C.U.P.

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