康德法哲学中的人权、所有权与国家

Human Rights,Eigentum/Property and State in Kant’s Philosophy of Law

所有权的合法性问题是西方政治生活中的重要主题,它涉及整个政治架构的设计及其运作。在西方现代政治生活中,所有权之所以成为宪法上的基本权利,除了是社会发展的结果外,还有赖于早期启蒙哲学不可忽视的推动作用。所有权的合法性根据何在?这是早期启蒙哲学家最关注的基本问题之一。关于这个问题的回答,霍布斯(Thomas Hobbes,1588~1679年)认为,所有权并非脱胎于人权,而是国家立法的产物。

The issue of ownership plays an important role in Kant’s philosophy of law.It is key for derivation of the national legitimacy from the inherent rights(human rights).In the first part,this paper discusses the relationship between the inherent rights and Eigentum/property in Kant,s philosophy of law.The first focus is the problem that how to combine the subject and object to constitute an Eigentum/property.Kant opposed Rock’s thoughts and he traced the basis of Eigentum/property by using reflection method with the traditional concept of Roman law.Through reflecting the concepts of inherent rights and possession,he traced the concept of intelligibler Besitz/intelligible possession,and pointed out that only this concept was the basis of Eigentum/property.If the first part answers the question of the relationship between inherent rights and Eigentum/property and seeks a rational way to establish Eigentum/property,the second part aims to answer the following question:as a concept of super space,how can a rational concept be used in the objects in time and space?Here comes to a classical problem in the philosophy of Kant,that is how to combine the contrary.Different from direct use of imagination to realize the combination of Verstand/Understanding and Sinnlichkeit/sensibilit in the epistemology,as a practical philosophy,what legal philosophy involves are rational concepts which cannot be explained by the law of causality.Therefore the communication between the contrary involves more complex relationships.This paper attempts to clarify the subtle relationship between the rational and understanding to reproduce Kant*s reasoning process on this issue.But there is another goal in this part.That is to reveal some inherent difficulties of the communication mentioned above.These difficulties are just the background for national appearance and involve a temporary permission of Eigentum/property granted by Erlaubnisgesetz/permissive law in a state of nature.The third part explores the original idea of the concept of Erlaubnisgesetz/permissive law.According to J.Hraschka,a famous Kantian expert,he interpreted that what permitted by Erlaubnisgesetz/permissive law is a kind of power which is of no great importance,which is based on academic history.The goal of this paper is to deny rationality of such a view and points out that Erlaubnisgesetz/permissive law relates to the provision of an exception.The fourth part focuses on the discussion of the role of Erlaubnisgesetz/permissive law during the transition from natural law to the state.This part will reveal the role especially from the perspective of differences and similarities between Rousseau and Kant.In Kantian system,there is no Enlightenment of the divine Legislator like that in Rousseau Republic,instead it constructed a country by way of claiming Eigentum/property to each other and mutually force the other to join the state.The fifth part takes up to study Kant’s awareness of the problem embodied in Erlaubnisgesetz/permissive law.He spared no effort to deduce the basis for freedom theory in Erlaubnisgesetz/permissive law and permitted acquisition and utilization of Eigentum/property in the state of nature with the use of Erlaubnisgesetz/permissive law.In fact,this reflects his thinking about philosophical tradition,the French Revolution and Germany legislation reform activities.And finally,this also reflects his insights into the course of human history.Among these related ideas,the core idea is against sudden change and to advocate gradual reform.Only by basing on a rational competition system,as a category,can human being develop their rational ability and transit from the state of natural man to free man.From the individual level,they will suffer pain and misfortune,but from the point of view of a category,it’s a kind of progress.To cancel the competition is nothing but stop eating for fear of choking,because it will interrupt the process of human progress.Thus,they will virtually not be better,but fall into nothingness.