Philosophy, Department of


Date of this Version



Jarbuch für Recht und Ethik (1994) 2: 95-111.


Copyright 1994, Friedrich-Alexander-Universität Erlangen-Nürnberg. Used by permission.


It is quite clear that a positive law must have some motivation connected with it, as specified in a penalty, at least a criminal law must, as opposed to a law appropriating funds or a law authorizing persons to make use of certain legal possibilities, such as a will, a limited liability corporation, or marriage. Some ten years ago Nebraska's state legislature passed a law requiring the wearing of a motorcycle helmet while riding a motorcycle on the state's roads, and the Governor signed it into law. Only some time after this process had been completed was the defect of the law discovered: the law as passed omitted to include any provisions for penalties for violating the law. In the interval before the law was corrected by a new legislative session, did my state have a motorcycle helmet law" It was contrary to law not to wear such a helmet, ... etc., but no individual could be penalized for violating this law. I would say that during this interval Nebraska had no law against not wearing a motorcycle helmet. 2 If this is right, then I am in agreement with Kant with respect to at least the area of the criminal law and related areas of the law: every piece of legislation (Gesetzgebung) reqnires two elements: a precept and an incentive.