An Introduction to Kant’s Political
Philosophy, via Rousseau
1. What is ‘right’?
Most
European languages have two words that are translated into English as ‘law’
(Latin lex and ius, German Gesetzt and Recht,
French loi and droit, Italian legge and diritto,
Spanish ley and derecho, Greek νόμος
and δίκαιο). The first of each pair refers to particular
laws and especially to positive laws, i.e. laws that are actually legislated
and enforced by states. The second of each pair is more difficult to pin down.
It is the basis in each case for the word for ‘rights’ (Latin iures,
German Rechte, French droits, Italian diritti, Spanish derechos,
Greek δικαιóματα), but it
expresses a more fundamental idea. Here is H.L.A. Hart’s explanation:
The words ‘droit’, ‘diritto’ and ‘Recht’, used by
continental jurists, have no simple English translation, and seem to English
jurists to hover uncertainly between law and morals, but they do in fact mark
off an area of morality (the morality of law) which has special
characteristics. It is occupied by the concepts of justice, fairness, rights
and obligation .... The most important common characteristic of this set of
moral concepts is that there is no incongruity but a special congruity in the
use of force or the threat of force to secure that what is just, or fair, or
someone’s right to have done shall in fact be done; for it is in just these
circumstances that coercion of another human being is legitimate. (‘Are there
any natural rights?’, Philosophical Review 64:2, 1955)
Kant
similarly says: ‘Right [Recht] and
the authorisation to use coercion ... mean one and the same thing’ (Metaphysics
of Morals 232).
Since
the laws of the state are the place where legitimate coercion takes place (if
it takes place anywhere), we could paraphrase Hart by saying that the words droit,
Recht etc. refer to that which underlies
and justifies all the particular positive laws of states that can be justified,
especially in so far as this underlying something is conceived as ‘natural’ or
transcendent. The English generic noun ‘right’ does sometimes have this meaning
(e.g. she has right on her side) but usually it just means ‘moral correctness’
(e.g. he doesn’t know the difference between right and wrong), so the words droit, Recht etc. are usually translated into English as ‘law’
or ‘justice’ (e.g. droit naturel and Naturrecht as ‘natural law’)
but in my view they should be translated by ‘right’, as happens in the title of Hegel’s Philosophy of Right.
This is how I shall translate them, so for example I shall translate Naturrecht
as ‘natural right’ rather than ‘natural law’. It is also how I shall use
the generic noun ‘right’ in these notes.
2. How does Rousseau ground right?
In the middle ages theories of
natural right based right on God’s will and/or on an Aristotelian idea of what
is in accord with man’s nature. From Hobbes onwards it is possible to see the
development of a ‘philosophy of right’ which instead tries to ground right on
the idea of human beings as free, to the point where Kant and Hegel incorporate
freedom into the very definition of the word Recht. This new grounding
is first made really explicit in Rousseau, and it makes the term ‘natural
right’ rather inappropriate, so it is not surprising that he seems to
substitute ‘political right’ for that term in the subtitle of The Social
Contract: ‘Principles of Political Right’.
For Rousseau humans are free in
that they are:
(1) self-determining, or capable
of self-determination, rather than driven by their desires or instincts,
and therefore
(2) self-authoritative or
‘sovereign’, i.e. having ultimate authority over themselves.
(Rousseau also uses freedom in a
third way, to mean ‘unconstrained by external pressures’. Today this is often
called ‘negative liberty’. But whether humans are free in this sense depends on
their circumstances.)
Because of individuals’ self-authority,
a rightful or (to use Rousseau’s preferred terminology) a legitimate state,
which will have genuine authority over its citizens and correspondingly whose
citizens will be under a genuine obligation to obey it, can only come
into existence through individuals voluntarily surrendering their individual
self-authority to it through a contract:
Every man
being born free and his own master, no one, under any pretext whatsoever, can
make any man subject without his consent. (SC 4.2)
Since no man
has a natural authority over his fellow, and force creates no right, we must
conclude that conventions [i.e. contracts - AC] form the basis of all legitimate authority among men.
(SC 1.4)
But if a contract is to be valid
then it must preserve individuals’ self-authority:
To renounce
liberty is to renounce being a man, to surrender the rights of humanity and
even its duties. For him who renounces everything no indemnity is possible.
Such a renunciation is incompatible with man’s nature; to remove all liberty
from his will is to remove all morality from his acts. (SC 1.4)
I think the idea is that the
obligation to keep the terms of a contract is based on a more basic obligation
to carry out your own decisions, so as to be true to your status as a
self-determining being. But if you agree to surrender all of your
self-authority to a third party then you will lose your status as a
self-determining being and so the basis for obligation, so the resulting
contract will be void, i.e. you will be under no obligation to keep to it.
Yet Rousseau (like Hobbes) thinks
that a legitimate state requires that individuals surrender all their
self-authority, for if they surrendered part of it (as happiness in Locke)
‘there would be no common superior to decide between them and the public [i.e.
the state]’ (SC 1.6). His solution is that a legitimate system of government
must be based on every individual surrendering their own self-authority to a
body composed of all the individuals together. The terms of the contract are:
“Each of us
puts his person and all his power in common under the supreme direction of the
general will, and, in our corporate capacity, we receive each member as an
indivisible part of the whole.” (SC 1.6)
Thereby
each surrenders his own self-authority as an individual but regains it as an
equal member of the collective body brought into existence by the contract:
each man, in giving himself to all, gives himself to
nobody; and as there is no associate over whom he does not acquire the same
right as he yields others over himself, he gains an equivalent for everything
he loses […] (SC 1.6)
(NB I am preserving Rousseau’s
sexism here: he clearly has men rather than men and women in kind).
What is then authoritative over
individuals is the will of this collective body or social whole (what Rousseau
calls the ‘state’; he does not mean the central apparatus of power by that
term), which is their own ‘general will’. A system of government is legitimate
in so far as it is brought into being by this contract and in so far as its
laws are all expressions of the general will of its citizens.
3. What is the general will in Rousseau?
Rousseau is notoriously ambiguous
about what he means by the general will (his main discussions of it are in SC
1.7, 2.1, 2.3, 2.4, 4.1, 4.2). It could mean:
(1) What all the citizens
want (so will vote unanimously for).
(2) What the majority of
the citizens want (so will vote by a majority for).
(3) What all the citizens want insofar
as they think of themselves as members of the social whole.
(4) What all the citizens would
want if they were true to their own essence as free beings.
(5) What all the citizens must
truly want, even if they don’t think they do.
(6) What is in the citizens’
common interest.
(1)-(3) are ‘factual’ (or
‘procedural’) definitions of the general will. They make the general will a
matter of what citizens actually want. (4)-(5) are ‘ideal’ (or ‘substantive’) definitions.
They make the general will something whose content can be determined without
actually finding out what the citizens want.
My view is (3). The general will
is the ‘intention of the people’ (SC 4.6), what the people wants (‘volonté
generale’ could be translated ‘general want’ as well as ‘general will’), and
this means what each citizen wants insofar as he thinks of himself as part of a
single body composed all the citizens, and what each such citizen wants is that
the ‘common good’ be realised:
As long as
several men in assembly regard themselves as a single body, they have only a
single will which is concerned with their common preservation and general
well-being. In this case, all the springs of the State are vigorous and simple
and its rules clear and luminous; there are no embroilments or conflicts of
interests; the common good is everywhere clearly apparent, and only good sense
is needed to perceive it. (SC 4.1)
A rough and ready definition of
‘the common good’, or ‘common interest’, would be ‘whatever, when it exists,
automatically benefits everyone in the society’. Examples would be street
lighting, clean air or flood defences (nowadays these are technically called
‘public goods’).
The general will of the people
does not necessarily translate itself into the majority decision of the people
when they are assembled because they think of themselves as individuals as well
as members of the social whole, and the will of each individual towards the
common good may be in tension with, and even overcome by, his will towards his
own personal good, that is:
each
individual, as a man, may have a particular will contrary or dissimilar to the
general will which he has as a citizen. His particular interest may speak to
him quite differently from the common interest […] (SC 1.7)
Although the general will in each
person never disappears (even in ‘detaching his interest from the common
interest’ and pursuing the first at the expense of the second, a man ‘does not
extinguish in himself the general will, but only eludes it’, SC 4.1),
individuals can often end up by voting for laws which will advance their
particular interests (or the common interest of a sub-group of society), and
then the ‘will of all’ (i.e. the majority decision in a vote) may fail to
express the general will:
There is
often a great deal of difference between the will of all and the general will;
the latter considers only the common interest, while the former takes private
interest into account, and is no more than a sum of particular wills […] (SC
2.3)
But conversely if everyone thinks
of himself as a member of the social whole rather than as an isolated
individual then the majority decision will express the general will. Rousseau’s
elaborate voting rules are designed to maximise the chance that this will still
happen even when not everyone is thinking as a member of the social whole, and
voting under these rules is the best possible way of ascertaining what the
general will is. His advice to the legislator, the figure who devises a
constitution for the people to approve, to devise one which will maximise the
extent to which everyone in fact thinks as a member of the social whole, and
thus possesses the traditional republican civic virtues:
He who dares
to undertake the making of a people’s institutions ought to feel himself
capable, so to speak, of changing human nature, of transforming each
individual, who is by himself a complete and solitary whole, into part of a
greater whole from which he in a manner receives his life and being; of
altering man’s constitution for the purpose of strengthening it; and of
substituting a partial and moral existence for the physical and independent
existence nature has conferred on us all. (SC 2.7)
The result is a system of
government and its laws are legitimate when they have been chosen by the
general will of the citizens, as expressed by their majority decisions under
specific voting rules at their periodic assemblies. They must be chosen by a
majority decision that expresses the general will (as opposed to just any
majority decision) because individuals created the social body, with its powers
of coercion over them, strictly in order to advance the common good, and if
they are to carry out their original decision, and so be true to their status
as self-determining beings, then they can only use it for that purpose: ‘the
general will can only direct the forces of the state towards the end for which
it was instituted, i.e. the common good’ (SC 2.1).
Having said all this, there are
passages in Rousseau where he seems to introduce an ‘ideal’ strain into his
account of the general will, suggesting that in order for a decision to count
as an expression of the general will it is not enough that it is one that everyone
would vote for if they were thinking as members of the social whole.
For example, he says that the
general will necessarily wills equality: ‘the particular will tends, by
its very nature, to partiality, while the general will tends to equality’ (SC
2.1). Rousseau elaborates:
Why is it
that the general will is always right [droite], and that all continually
will the happiness of each one, unless it is because there is not a man who
does not think of “each” as meaning him, and consider himself in voting for
all? This proves that equality of right [droit] and the idea of justice
which such equality creates originate in the preference each man gives to
himself, and accordingly in the very nature of man. It proves that the general
will, to be really such, must be general in its object as well as its essence;
that it must both come from all and apply to all; and that it loses its natural
rectitude when it is directed to some particular and determinate object,
because in such a case we are judging of something foreign to us, and have no
true principle of equity to guide us. (SC 2.4)
The idea seems to be that the
social contract only transformed individual self-authority into collective
self-authority, and this gives citizens the authority to make laws over themselves
collectively but not over any particular citizen, for this would be a law made
by one group (however numerous) over someone external to them, violating that
person’s self-authority. Therefore equality before the law follows.
Rousseau also ties the general
will to freedom, in the sense of self-determination, for he sometimes
slips into describing the general will of the individual simply as his ‘will’,
such that when the general will is enacted, even against the individual’s own
desires, this is only the enactment of his own real will and therefore makes
him free (self-determining). Thus:
we can be
both free and subject to the laws, since they are but registers of our wills.
(SC 2.6)
When in the
popular assembly a law is proposed, what the people is asked is not exactly
whether it approves or rejects the proposal, but whether it is in conformity
with the general will, which is their will. Each man, in giving his vote,
states his opinion on that point; and the general will is found by counting votes.
When therefore the opinion that is contrary to my own prevails, this proves
neither more nor less than that I was mistaken, and that what I thought to be
the general will was not so. If my particular opinion had carried the day I
should have achieved the opposite of what was my will; and it is in that case
that I should not have been free. (SC 4.2)
These passages help to explain SC
1.8, where Rousseau says that the social contract not only makes individuals
free in that they cannot be coerced of others (external unconstraint) but also
in the sense of self-determination:
moral
liberty, which alone makes him truly master of himself; for the mere impulse of
appetite is slavery, while obedience to a law which we prescribe to ourselves
is liberty. (SC 1.8)
If our general will is our real
will then the laws we institute through it are the expression of our real will,
and the enforcement of these laws realises the freedom (self-determination) of
each of us. This means that living in the society of the social contract brings
into existence the very freedom (self-determination) that provides the basis
for the legitimacy of that society. It also suggests that the content of the
general will must be limited to what humans can will while remaining true to
their own status as free (self-determining), but Rousseau does not draw this
conclusion explicitly.
To conclude, although for the most
part Rousseau gives a ‘factual’ account of the general will there are also some
‘ideal’ elements in what he says about it. This ambiguity is reflected in an
uncertainty about whether Rousseau thinks that a legitimate state must actually
be initiated by a historical social contract (his view for the most part), or
whether it only needs to be one that could have been so initiated. While the
‘factual’ account ties him to the republican and democratic tradition, the
‘ideal’ elements represent step in the development of the ‘philosophy of right’
referred to above. Kant systematically picks up and amplifies these ideal
elements in Rousseau’s thought in both his moral theory and political theory.
4. Kant’s moral
theory
For Kant a properly human individual is one that thinks and decides for himself rather than allowing himself to be told what to think and do by others:
Enlightenment is man’s release from his self-incurred tutelage. Tutelage is man’s inability to make use of his understanding without direction from another. Self-incurred is this tutelage when its cause lies not in lack of reason but in lack of resolution and courage to use it without direction from another. Sapere aude! “Have courage to use your own reason!” – that is the motto of enlightenment.
Laziness and cowardice are the reasons why so great a portion of mankind, after nature has long since discharged them from external direction (naturaliter maiorennes), nevertheless remains under lifelong tutelage, and why it is so easy for others to set themselves up as their guardians. It is so easy not to be of age. If I have a book which understands for me, a pastor who has a conscience for me, a physician who decides my diet, and so forth, I need not trouble myself. I need not think, if I can only pay – others will easily undertake the irksome work for me. (What is Enlightenment?)
This is really Rousseau’s idea of self-determination, but Kant thinks of humans realising their innate capacity for self-determination in the course of history. And he goes further in asking what self-determination would involve, saying that if I think and decide for myself then in the end this means that I must act rationally. The commands of rationality are called ‘imperatives’, and the most fundamental ones are ‘categorical imperatives’ (by which Kant means commands of rationality applying to me independently of what my personal goals and desires are, unlike ‘hypothetical imperatives’ which are commands or rationality taking the form ‘if you desire X then rationally you should do Y to attain it’). In the end all categorical imperatives are just applications of a single categorical imperative can be formulated in various ways, the most important two of which are roughly:
(1) Act in a way that is consistent with every rational being acting in the same way (i.e. a way that is ‘universalisable’).
(2) Treat every rational being as an end rather than as a means.
Furthermore, (a) all morality just boils down to the categorical imperative and (b) when I act on the categorical imperative (i.e. morally) then I am actually acting on my own true will, and in carrying out those actions I realise my own freedom.
So Kant’s will is akin to the general will within each of Rousseau’s citizens. In both cases it is my true will, acting on which makes me free, and it is a will oriented to the ‘general’ or the ‘universal’ (the German allgemeine is used for both of these words). The differences are that Kant’s will is ultimately motivated by pure rationality rather than a sense of membership of a social whole; that it is not brought into existence by the individual’s becoming a member of such a social whole but by the individual getting in touch with his/her own inner rationality; that when it universalises it does so not just across its fellow citizens but across all rational beings everywhere; and that the laws it lays down are not ‘external’ state laws to be enforced on each other by fellow citizens though a police force but ‘internal’ moral laws that the individual must impose internally on him/herself through the force of his/her own rationality. All in all it looks like an idealised and internalised version of the general will of the citizen in Rousseau.
The second formulation of the categorical imperative is really the most fundamental. Here is Kant’s argument for it:
If then there is a supreme practical principle or, in respect of the human will, a categorical imperative [...] the foundation of this principle is: rational nature exists as an end in itself. Man necessarily conceives his own existence as being so; so far then this is a subjective principle of human actions. But every other rational being regards its existence similarly, just on the same rational principle that holds for me: so that it is at the same time an objective principle, from which as a supreme practical law all laws of the will must be capable of being deduced. Accordingly the practical imperative will be as follows: ‘So act as to treat humanity, whether in thine own person or in that of any other, in every case as an end, never as means only’. (Groundwork of the Metaphysics of Morals, part 2)
In other words, in so far as you act rationally you must respect your own ‘rational nature’ (i.e. your capacity for rational decision-making) as an end in itself (as a source of ultimate authority, let’s say). But rationally speaking you must take the same attitude to every other rational being’s ‘rational nature’, since it makes no difference whether the rational nature happens to be yours or someone else’s. Therefore you should interact with other rational beings (i.e. beings with a capacity for rational decision-making) only on the basis of consent and rational argument, treating them as rational co-decision-makers with yourself, and never by coercing, manipulating or lying to them.
If you treat other rational beings in this way you will only act towards them such a way that, were they to act in the same way towards you, would be consistent with your own rationality, and vice versa. So treating others as ends comes to the same thing as acting in a universalisable way.
4. Kant’s social
contract
At one point in the Groundwork Kant evokes the idea of a ‘kingdom of ends’ (‘republic of ends’ would have been more accurate), a society whose laws would be made by (true) wills of its members and so would realise the idea of all treating each other as ends rather than means:
For all rational beings come under the law that each of them must treat itself and all others never merely as means, but in every case at the same time as ends in themselves. Hence results a systematic union of rational being by common objective laws, i.e., a kingdom which may be called a kingdom of ends, since what these laws have in view is just the relation of these beings to one another as ends and means. It is certainly only an ideal.
A rational being belongs as a member to the kingdom of ends when, although giving universal laws in it, he is also himself subject to these laws. He belongs to it as sovereign when, while giving laws, he is not subject to the will of any other. (Groundwork of the Metaphysics of Morals, part 2)
This idea anticipates Fichte’s and Hegel’s systems of right and Marx’s conception of communism, but Kant himself only uses it in order to give yet another formulation of the categorical imperative (‘Act as if you were a legislating member in the universal kingdom of ends’). He does not use it in order to ground his theory of right.
Instead, in the second section of his essay ‘Theory and Practice’, on ‘theory and practice in political right’ Kant grounds right in the idea of a social contract like Rousseau’s. However instead of saying that a rightful law is one that a people, brought into being by a historical social contract, has actually enacted by a majority vote that expresses their general will, he says that it is one that the people of a state could have enacted as part of a social contract, although no such contract may ever have taken place. So although Kant uses the ideas of the general will and the social contract he does not mean an actual general will or contract but a possible one, which is to be used as ‘a rational principle for judging any lawful public constitution whatsoever’ (TP 81):
This, then, is an original contract by means of which a civil and thus completely lawful constitution and commonwealth can alone be established. But we need by no means assume that this contract (contractus originarius or pactum sociale), based on a coalition of the wills of all private individuals in a nation to form a common, public will for the purposes of rightful legislation, actually exists as a fact, for it cannot possibly be so. Such an assumption would mean that we would first have to prove from history that some nation, whose rights and obligations have been passed down to us, did in fact perform such an act, and handed down some authentic record or legal instrument, orally or in writing, before we could regard ourselves as bound by a pre-existing civil constitution. It is in fact merely an idea of reason, which nonetheless has undoubted practical reality; for it can oblige every legislator to frame his laws in such a way that they could have been produced by the united will of a whole nation, and to regard each subject, in so far as he can claim citizenship, as if he had consented within the general will. (TP 79)
So any particular law is in accord with right if, and only if, it could have been agreed to by ‘the united will of the whole nation’
This is the test of the rightfulness [Rechtmäßigkeit] of every public law.
For if the law is such that a whole people could not possibly agree to
it (for example, if it stated that a certain class of subjects must be
privileged as a hereditary ruling class), it is unjust [nicht gerecht];
but if it is at least possible that a people could agree to it, it is
our duty to consider the law as just [gerecht] [...] (ibid.)
Kant is not at all helpful in explaining what he means by this ‘could’ and ‘could not’, but he gives one useful example:
For example, if we wish to discover whether a law which declares permanently valid an ecclesiastical constitution (itself formulated at some time in the past) can be regarded as emanating from the actual will or intention of the legislator, we must first ask whether a people is authorised to make a law for itself whereby certain accepted doctrines and outward forms of religion are declared permanent, and whether the people may thus prevent its own descendants from making further progress in religious understanding or from correcting any past mistakes. It is clear that any original contract of the people which established such a law would in itself be null and void, for it would conflict with the appointed aim and purpose [Bestimmung und Zwecke] of mankind. (TP 85)
Therefore the idea seems to be that a law is rightful only if the people could have chosen it unanimously while remaining true to their inbuilt purpose (or telos) of human beings, which, if we follow ‘What is Enlightenment?’, is to become self-determining.
From this Kant concludes that a ‘rightful condition’ or
‘condition of right’ (rechtliche Zustand), i.e. a condition in which the principles of right rule
by contrast to a state of nature (Naturzustand), must be one governed by
three principles:
1. The freedom
of every member of society as a human being.
2. The equality
of each with all the others as a subject.
3. The
independence of each member of a commonwealth as a citizen.
(TP 74)
Each individual must be free (externally unconstrained), subject only to the degree of constraint needed to prevent him from impinging on the similar freedom of other individuals. Kant does not explain why this must be so beyond saying that it is based on the fact that every human being is ‘a being capable of possessing rights’ (TP 74). But possibly what he has in mind is that that humans, as beings whose essence is to become self-determining, require a maximum of freedom (external unconstraint), and the only restrictions on this freedom that they could all agree to a government imposing would be those minimal restrictions on my freedom that are necessary in order for me to be prevented from constraining the freedom of others. Therefore in any system of laws that the people as whole could agree to while each remaining true to his or her own essence:
each may seek his happiness in whatever way he sees fit, so long as he does not infringe upon the freedom of others to pursue a similar end (TP 74)
Each individual must be equal to all others before the law, or as Kant puts it each member of the commonwealth must have the same ‘right of coercion’ over every other member as every other has over him (TP 75). For example, each must have the same rights to sue others for injuries and be equally liable to being sued by others, regardless of how rich or poor they are. Again Kant’s explanation of this is very sketchy, but he does briefly repeat Rousseau’s argument for equality before the law, saying that subjects of a commonwealth:
are all equal as subjects before the law, which, as the pronouncement of the general will, can only be single in form [...] (TP 75)
Finally, each individual must have a right to vote on specific laws only if he is economically independent, i.e. is not someone else’s servant or employee. Kant’s reasoning is very obscure here but it seems to be that only someone who is economically independent can be expected to detach himself from his private interests and think for the whole when voting for legislation.
This section of ‘Theory and Practice’ is subtitled ‘Against Hobbes’, because he wants to counterpose his view of a legitimate state (in which it is one that guarantees individual freedom and equality before the law) to Hobbes’s (in which it is one that makes its subjects happy, minimally by saving them from violent death). But what Kant is really doing in this section is reworking Rousseau in the direction of a philosophy of right ‘based on a priori principles’ (TP 86), specifically on the ideas of self-determination and self-authority, while dropping every mention of the ‘common good’.
5. The principle of right
If we put together the idea of maximal freedom (external unconstraint) and equality before the law we get the ‘principle of right’ which Kant states a number of times in ‘Theory and Practice’ and the Metaphysics of Morals:
· Right is the restriction of each individual’s freedom so that it harmonises with the freedom of everyone else (in so far as this is possible within the terms of a general law). (TP 73)
· each may seek his happiness in whatever way he sees fit, so long as he does not infringe upon the freedom of others to pursue a similar end which can be reconciled with the freedom of everyone else within a workable general law – i.e. he must accord to others the same right as he enjoys himself. (TP 74)
· each remains free to seek his happiness in whatever way he thinks best, so long as he does not violate the lawful [gesetzmäßigen] freedom and rights of his fellow subjects at large. (TP 80)
· Right is therefore the sum of the conditions under which the choice [Willkür] of one can be united with the choice of another in accordance with a universal law of freedom. (MM 230)
· The Universal Principle of Right: “Any action is right if it can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with a universal law.” (MM 230)
· the universal law of Right [Rechtsgesetz], so act externally that the free use of your choice can coexist with the freedom of everyone in accordance with a universal law […] (MM 231)
· Strict Right rests instead on the principle of its being possible to use external constraint that can coexist with the freedom of everyone in accordance with universal laws. (MM 232)
This is the basis for the whole of his doctrine of right. Surprisingly, given the way he has derived it from the idea of what a politically unified people to legislate to itself, he thinks that the principle of right applies to people’s relations to each other even in a state of nature, in that it tell them what rules they may rightfully enforce upon each other on a one-to-one basis even where there is no central governing authority to enforce them.
6. Kant’s moral
theory and his political philosophy
Kant’s Groundwork of the Metaphysic of Morals deals with the foundations of morality as such (i.e. of all principles governing how we should treat each other). In the Metaphysics of Morals he aims to expound the principles of morality more concretely. But he confuses things by on the one hand insisting that the principles of morality (summarised in the categorial imperative) include the demand that we must conform to them because we are prompted to do so by our own pure rationality rather than for any emotional or self-serving reasons, and yet on the other hand saying that this only applies to the part of morality that occupies part 2 of the Metaphysics of Morals (namely ‘virtue’), and not to the part that occupies part 1, namely ‘right’. The principles of right do not include any such demand, so from the point of view of right it is enough if we conform to them out of fear of punishment, and correspondingly they are principles which its morally permissible to enforce on others by coercion.
This leaves the relation between morality and right in Kant rather murky, especially since both the will which underlies his theory of morality and the general will which underlies his theory of right both seem be descendants of Rousseau’s general will and both seem to be grounded in the idea of self-determination.
Perhaps it is significant that whereas in ‘Theory and Practice’ (1793) Kant tries to derive the principle of right from the idea of what the people could agree to in a possible social contract, at the start of the Doctrine of Right in the Metaphysics of Morals (1797) he does not rely on the idea of a social contract at all to derive that principle. Instead he first derives the principle of right in general, then in §§1-40 shows how it applies in the state of nature (this ‘private right’), and then in §§41-49 onwards shows how it applies in the rightful condition, i.e. when a commonwealth has been established with a central authority that can announce and enforce positive laws implementing the principle (this is ‘public right’). He only uses the idea of a possible social contract in his discussion of public right.
If we take the Metaphysics of Morals as giving his final views on the relation between morality and right, maybe we can see his essential argument as follows:
1. Our essence as humans is to be (or become) self-determining beings
2. Self-determination entails rational deliberation about how to act
3. Rational deliberation entails treating oneself as self-authoritative (as an ‘end’)
4. Rationally this entails that we must treat other humans as self-authoritative too (this is the essential content of morality)
5. Self-determination also entails that we may coerce each other so as to guarantee each a sphere of freedom, in the sense of external unconstraint, for their own choices, for such a sphere is necessary for self-determination
6. But in doing so we must all treat each other in the same way for we are all equally self-determining beings
7. So this coercion must conform to the principle of guaranteeing individual freedom under universal rules (the principle of right)
8. Finally, self-determination entails that we must establish a common authority to implement the principle of right in positive laws, for without this we will be unable to coerce each other in a consistent way
9. These laws must be must be such that all can support them while being true to their essence as self-determining and self-authoritative beings (a ‘principle of public right’, though he never uses that phrase)
NB 5 is equivalent to Locke’s idea of the executive power of the law of nature. Since all the ‘musts’ and ‘mays’ above are moral ‘musts’ and ‘mays’, this means that in 8 establishing a commonwealth with a central authority (a state) just advantageous to us, as in Hobbes and Locke but is a moral duty:
In all social contracts,
we find a union of many individuals for some common end which they all share.
But a union as an end in itself which they all ought to share and
which is thus an absolute and primary duty in all external relationships
whatsoever among human beings (who cannot avoid mutually influencing one
another), is only found in a society in so far as it constitutes a civil state,
i.e. a commonwealth. (TP 73)
From private
Right in the state of nature there proceeds the postulate of public Right: when
you cannot avoid living side by side with all others, you ought to leave the
state of nature and proceed with them into a rightful condition [rechtliche
Zustand] [...] (MM §42, 307)
Furthermore, the ultimate reason why morally we ought to enter the civil condition is not so much our propensity to violence, as in Hobbes, or our tendency to disagreement about how to interpret the law of nature, as in Locke, but rather the latter in combination with our own individual self-authority. Speaking of the state of nature, Kant says that:
it lies a priori in the rational Idea of such a condition (one that is not rightful) that before a public lawful [gesetzmäßig] condition is established, individual men, peoples, and states can never be secure against violence from one another, since each has its own right to do what seems right and good to it and not to be dependent on another’s opinion about this. So, unless it wants to renounce any concepts of Right, the first thing it has to resolve upon is the principle that it must leave the state of nature, in which each follows its own judgement, unite itself with all others (with which it cannot avoid interacting), subject itself to a public lawful [gesetzmäßig] external coercion, and so enter into a condition in which what is to be recognised as belonging to it is determined by law and is allotted to it by an adequate power (not its own but an external power); that is to say, it ought above all else to enter into a civil condition. (MM §43, 312)
Self-authority has to be surrendered because preserving it would make it impossible to create the conditions needed for self-determination, which is even more fundamental.
If this is right then for Kant morality is ultimately a matter of being true to our own essence as self-determining beings, and right is that part of morality which allows us to coerce each other so as to ensure that each has a sphere of external freedom in which it can realise that essence, and to set up a political community for this purpose. Rousseau too thinks that our essence is self-determination and both Rousseau and Kant think that a political community is necessary to realise it. But whereas for Rousseau this is because we realise it through actually participating in the government of a political community, for Kant it is because we can only realise it in the spaces of private freedom guaranteed by a political community. Rousseau is a republican, (of the civic humanist kind, according to which participation in collective self-government realises one’s humanity); Kant is a liberal.
TP = ‘Theory and practice’ in Kant’s
Political Writings, ed. H. Reiss, CUP,
1970 (CUP edition pagination)
MM = Metaphysics of Morals,
tr. M. Gregor, CUP, 1991 (Prussian Academy pagination)
AC 12 Nov 2003
Minor corrections 28 Jan 2007