Julian Rivers

The purpose of Immanuel Kant’s philosophy of law is generally misunderstood by contemporary philosophers and legal theorists. In this article we explain why various common approaches are mistaken. In their place, we present his legal philosophy as a theory of legal knowledge based on a sequence of practical postulates. Kant is interested above all in how morality reveals the world of human relations to have legal significance. We then turn to consider the relationship between Kant’s legal philosophy and two contemporary legal theorists who have been deeply influenced by Kant: Robert Alexy and Jürgen Habermas. We argue that Alexy offers an elegant synthesis of contemporary misreadings which still overlooks Kant’s core claim about the conditions for the possibility of legal knowledge. Habermas, by contrast, understands the role of practical postulates in our knowledge of law, but re-presents these in a social constructivist mode. Neither ultimately succeeds in defending Kant’s core insight that facts about law can only be known to be law if they are treated as a reflection of an underlying moral idea.

A series of cases, some of them with a high media profile, suggest that freedom of religion or belief in the United Kingdom is being undermined by the operation of new equality laws. This article outlines the constitutional context for liberty and equality rights as well as the main ways in which religious liberty is secured by and within equality law. However, British equality law puts pressure on religious liberty in four ways: (1) it confines the relevance of ‘religion’ to limited social contexts; (2) it creates a priority for equality-perspectives over liberty-perspectives on social conflict; (3) it generates new social assumptions about what individuals have to believe and say (or refrain from saying) if they are to be trusted to uphold the law; (4) it provides legitimation for the imposition of contested comprehensive equality doctrines, some of which are inimical to civil liberty. In response, it is important to emphasise the role of equality law as a tool to secure mutual toleration and equal rights in the face of religious and ethical disagreement.