Kant, ‘Theory and Practice’, part 2

Kant, ‘Theory and Practice’, part 2

Full title: ‘On the common saying: this may be true in theory but it does not apply in practice’, 1793

Blue text in square brackets ([ ]) shows the German original

Blue pointed brackets (< >) show the English phrase to which the German original corresponds

Notes on the translation:

‘People’ is usually used to translate Volk, but occasionally the translator uses ‘nation’ instead

‘Right’ is always used to translate Recht

‘Law’ is always used to translate Gesetz

‘Lawful’ is always used to translate rechtlich (or some similar term)

‘Legal’ is usually used to translate rechtlich but occasionally to translate gesetzmäßig

‘State’ is used indiscriminately to translate Staat (i.e. a political community or its centralised apparatus of government) and Zustand (i.e. a condition or state of affairs, as in Naturzustand, the state of nature)

The phrase rechtliche Zustand, which means something like ‘a state or condition of right’, in contrast with a state of nature, is variously translated as ‘lawful state’, ‘legal state’ and ‘legal position’

II ON THE RELATIONSHIP OF THEORY TO PRACTICE IN POLITICAL RIGHT [STAATSRECHT]

(Against Hobbes)⁸

Among all the contracts by which a large group of men unites to form a society (pactum sociale), the contract establishing a civil constitution (pactum unionis civilis) is of an exceptional nature. For while, so far as its execution is concerned, it has much in common with all others that are likewise directed towards a chosen end to be pursued by joint effort, it is essentially different from all others in the principle of its constitution (constitutionis civilis). 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. And the end which is a duty in itself in such external relationships, and which is indeed the highest formal condition (conditio sine qua non) of all other external duties, is the right of men under coercive public laws by which each can be given what is due to him and secured against attack from any others.

But the whole concept of an external right [Rechts] is derived entirely from the concept of freedom in the mutual external relationships of human beings, and has nothing to do with the end which all men have by nature (i.e. the aim of achieving happiness) or with the recognised means of attaining this end. And thus the latter end must on no account interfere as a determinant with the laws governing external right. 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). And public right is the distinctive quality of the external laws which make this constant harmony possible. Since every restriction of freedom through the arbitrary will of another party is termed coercion, it follows that a civil constitution is a relationship among free men who are subject to coercive laws, while they retain their freedom within the general union with their fellows. Such is the requirement of pure reason, which legislates a priori, regardless of all empirical ends (which can all be summed up under the general heading of happiness). Men have different views on the empirical end of happiness and what it consists of, so that as far as happiness is concerned, their will cannot be brought under any [74] common principle nor thus under any external law harmonising with the freedom of everyone.

The civil state [bürgliche Zustand], regarded purely as a lawful state [rechtlicher Zustand], is based on the following a priori principles:

The freedom of every member of society as a human being.

The equality of each with all the others as a subject.

The independence of each member of a commonwealth as a citizen.

These principles are not so much laws given by an already established state [Staat], as laws by which a state can alone be established in accordance with pure rational principles of external human right. Thus:

1. Man’s freedom as a human being, as a principle for the constitution of a commonwealth, can be expressed in the following formula. No-one can compel me to be happy in accordance with his conception of the welfare of others, for 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. A government might be established on the principle of benevolence towards the people, like that of a father towards his children. Under such a paternal government (imperium paternale), the subjects, as immature children who cannot distinguish what is truly useful or harmful to themselves, would be obliged to behave purely passively and to rely upon the judgement of the head of state as to how they ought to be happy, and upon his kindness in willing their happiness at all. Such a government is the greatest conceivable despotism, i.e. a constitution which suspends the entire freedom of its subjects, who thenceforth have no rights whatsoever. The only conceivable government for men <who are capable of possessing rights> [der Rechte fahig sind], even if the ruler is benevolent, is not a paternal but a patriotic government (imperium non paternale, sed patrioticum). A patriotic attitude is one where everyone in the state, not excepting its head, regards the commonwealth as a maternal womb, or the land as the paternal ground from which he himself sprang and which he must leave to his descendants as a treasured pledge. Each regards himself as authorised to protect the rights of the commonwealth by laws of the general will, but not to submit it to his personal use at his own absolute pleasure. This right of freedom belongs to each member of the commonwealth as a human being, in so far as each is a being capable of possessing rights.

2. Man’s equality as a subject might be formulated as follows. Each member of the commonwealth has rights of coercion in relation to all the [75] others, except in relation to the head of state. For he alone is not a member of the commonwealth, but its creator or preserver, and he alone is authorised to coerce others without being subject to any coercive law himself. But all who are subject to laws are the subjects of a state, and are thus subject to the right of coercion along with all other members of the commonwealth; the only exception is a single person (in either the physical or the moral sense of the word), the head of state, through whom alone the rightful coercion of all others can be exercised. For if he too could be coerced, he would not be the head of state, and the hierarchy of subordination would ascend infinitely. But if there were two persons exempt from coercion, neither would be subject to coercive laws, and neither could do to the other anything contrary to right, which is impossible.

This uniform equality of human beings as subjects of a state is, however, perfectly consistent with the utmost inequality of the mass in the degree of its possessions, whether these take the form of physical or mental superiority over others, or of fortuitous external property and of particular rights (of which there may be many) with respect to others. Thus the welfare of the one depends very much on the will of the other (the poor depending on the rich), the one must obey the other (as the child its parents or the wife her husband), the one serves (the labourer) while the other pays, etc. Nevertheless, they are all equal as subjects before the law, which, as the pronouncement of the general will, can only be single in form, and which concerns the form of right and not the material or object in relation to which I possess rights. For no-one can coerce anyone else other than through the public law and its executor, the head of state, while everyone else can resist the others in the same way and to the same degree. No-one, however, can lose this authority to coerce others and to have rights towards them except through committing a crime. And no-one can voluntarily renounce his rights by a contract or legal [rechtliche] transaction to the effect that he has no rights but only duties, for such a contract would deprive him of the right to make a contract, and would thus invalidate the one he had already made.

From this idea of the equality of men as subjects in a commonwealth, there emerges this further formula: every member of the commonwealth must be entitled to reach any degree of rank which a subject can earn through his talent, his industry and his good fortune. And his fellow subjects may not stand in his way by hereditary prerogatives or privileges of rank and thereby hold him and his descendants back indefinitely.

All right consists solely in the restriction of the freedom of others, with the qualification that their freedom can co-exist with my freedom within [76] the terms of a general law; and public right in a commonwealth is simply a state of affairs regulated by a real legislation which conforms to this principle and is backed up by power, and under which a whole people live as subjects in a lawful state [rechtlichen Zustand] (status iuridicus). This is what we call a civil state, and it is characterised by equality in the effects and counter-effects of freely willed actions which limit one another in accordance with the general law of freedom. Thus the birthright of each individual in such a state (i.e. before he has performed any acts which can be judged in relation to right) is absolutely equal as regards his authority to coerce others to use their freedom in a way which harmonises with his freedom. Since birth is not an act on the part of the one who is born, it cannot create any inequality in his legal position [rechtlichen Zustandes] and cannot make him submit to any coercive laws except in so far as he is a subject, along with all the others, of the one supreme legislative power. Thus no member of the commonwealth can have a hereditary privilege as against his fellow-subjects; and no-one can hand down to his descendants the privileges attached to the rank he occupies in the commonwealth, ‘nor act as if he were qualified as a ruler by birth and forcibly prevent others from reaching the higher levels of the hierarchy (which are superior and inferior, but never imperans and subiectus) through their own merit. He may hand down everything else, so long as it is material and not pertaining to his person, for it may be acquired and disposed of as property and may over a series of generations create considerable inequalities in wealth among the members of the commonwealth (the employee and the employer, the landowner and the agricultural servants, etc.). But he may not prevent his subordinates from raising themselves to his own level if they are able and entitled to do so by their talent, industry and good fortune. If this were not so, he would be allowed to practise coercion without himself being subject to coercive counter-measures from others, and would thus be more than their fellow-subject. No-one who lives within the lawful state [rechtlichen Zustande] of a commonwealth can forfeit this equality other than through some crime of his own, but never by contract or through military force (occupatio bellica). For no legal [rechtliche] transaction on his part or on that of anyone else can make him cease to be his own master [Eigner seiner selbst]. He cannot become like a domestic animal to be employed in any chosen capacity and retained therein without consent for any desired period, even with the reservation (which is at times sanctioned by religion, as among the Indians) that he may not be maimed or killed. He can be considered happy in any condition so long as he is aware that, if he does not reach the same level as others, the fault lies either with himself (i.e. lack of ability or serious [77] endeavour) or with circumstances for which he cannot blame others, and not with the irresistible will of any outside party. For as far as right is concerned, his fellow-subjects have no advantage over him.*

If we try to find a definite meaning for the word gracious, as distinct from kind, beneficent, protective etc., we see that it can be attributed only to a person to whom no coercive rights apply. Thus only the head of the state’s government, who enacts and distributes all benefits that are possible within the public laws (for the sovereign who provides them is, as it were, invisible, and is not an agent but the personified law itself), can be given the title of gracious lord, for he is the only individual to whom coercive rights do not apply. And even in an aristocratic government, as for example in Venice, the senate is the only ‘gracious lord’. The nobles who belong to it, even including the Doge (for only the plenary council is the sovereign), are all subjects and equal to the others so far as the exercise of rights is concerned, for each subject has coercive rights towards every one of them. Princes (i.e. persons with a hereditary right to become rulers) are themselves called gracious lords only with future reference, an account of their claims to become rulers (i.e. by courtly etiquette, par courtoisie). But as owners of property, they are none the less fellow-subjects of the others, and even the humblest of their servants must possess a right of coercion against them through the head of state. Thus there can be no more than one gracious lord in a state. And as for gracious (more correctly distinguished) ladies, they can be considered entitled to this appellation by their rank and their sex (thus only as opposed to the male sex), and this only by virtue of a refinement of manners (known as gallantry) whereby the male sex imagines that it does itself greater honour by giving the fair sex precedence over itself.

3. The independence (sibisufficientia) of a member of the commonwealth as a citizen, i.e. as a co-legislator, may be defined as follows. In the question of actual legislation, all who are free and equal under existing public laws may be considered equal, but not as regards the right to make these laws. Those who are not entitled to this right are nonetheless obliged, as members of the commonwealth, to comply with these laws, and they thus likewise enjoy their protection (not as citizens but as co-beneficiaries of this protection). For all right depends on laws. But a public law which defines for everyone that which is permitted and prohibited by right, is the act of a public will, from which all right proceeds and which must not therefore itself be able to do an injustice [Unrecht] to any one. And this requires no less than the will of the entire people (since all men decide for all men and each decides for himself). For only towards oneself can one never act unjustly [unrecht tun]. But on the other hand, the will of another person cannot decide anything for someone without injustice [unrecht], so that the law made by this other person would require a further law to limit his legislation. Thus an individual will cannot legislate for a commonwealth. For this requires freedom, equality and unity of the will of all the members. And the prerequisite for unity, since it necessitates a general vote (if freedom and equality are both present), is independence. The basic law, which can come only from the general, united <will of the people> [Volkswillen], is called the original contract.

Anyone who has the right to vote on this legislation is a citizen (citoyen, [78] i.e. citizen of a state, not bourgeois or citizen of a town). The only qualification required by a citizen (apart, of course, from being an adult male) is that he must be his own master [sein eigener Herr] (sui iuris), and must have some property (which can include any skill, trade, fine art or science) to support himself. In cases where he must earn his living from others, he must earn it only by selling that which is his,* and not by allowing others to make use of him; for he must in the true sense of the word serve no-one but the commonwealth. In this respect, artisans and large or small landowners are all equal, and each is entitled to one vote only. As for landowners, we leave aside the question of how anyone can have rightfully acquired more land than he can cultivate with his own hands (for acquisition by military seizure is not primary acquisition), and how it came about that numerous people who might otherwise have acquired permanent property were thereby reduced to serving someone else in order to live at all. It would certainly conflict with the above principle of equality if a law were to grant them a privileged status so that their descendants would always remain feudal landowners, without their land being sold or divided by inheritance and thus made useful to more people; it would also be unjust if only those belonging to an arbitrarily selected class were allowed to acquire land, should the estates in fact be divided. The owner of a large estate keeps out as many smaller property owners (and their votes) as could otherwise occupy his territories. He does not vote on their behalf, and himself has only one vote. It should be left exclusively to the ability, industry and good fortune of each member of the commonwealth to enable each to acquire a part and all to acquire the whole, although this distinction cannot be observed within the general legislation itself. The number of those entitled to vote on matters of legislation must be calculated purely from the number of property owners, not from the size of their properties.

He who does a piece of work (opus) can sell it to someone else, just as if it were his own property. But guaranteeing one’s labour (praestatio operae) is not the same as selling a commodity. The domestic servant, the shop assistant, the labourer, or even the barber, are merely labourers (operarii), not artists (artifices, in the wider sense) or members of the state, and are thus unqualified to be citizens. And although the man to whom I give my firewood to chop and the tailor to whom I give material to make into clothes both appear to have a similar relationship towards me, the former differs from the latter in the same way as the barber from the wig-maker (to whom I may in fact have given the requisite hair) or the labourer from the artist or tradesman, who does a piece of work which belongs to him until he is paid for it. For the latter, in pursuing his trade, exchanges his property with someone else (opus), while the former allows someone else to make use of him. – But I do admit that it is somewhat difficult to define the qualifications which entitle anyone to claim the status of being his own master.

Those who possess this right to vote must agree unanimously to the law of public justice [Gerechtigkeit], or else a legal contention [Rechtstreit] would arise between those who [79] agree and those who disagree, and it would require yet another higher legal principle [Rechtsprinzips] to resolve it. An entire people cannot, however, be expected to reach unanimity, but only to show a majority of votes (and not even of direct votes, but simply of the votes of those delegated in a large nation [Volke] to represent the people [Volks]). Thus the actual principle of being content with majority decisions must be accepted unanimously and embodied in a contract; and this itself must be the ultimate basis on which a civil constitution is established.

Conclusion

This, then, is an original contract by means of which a civil and thus completely lawful [rechtliche] 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 [Volk] 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 [Volk], 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 [Volks], and to regard each subject, in so far as he can claim citizenship, as if he had consented within the general will. 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], even if the people is at present in such a position or attitude of mind that it would probably refuse its consent if it were consulted.*

If, for example, a war tax were proportionately imposed on all subjects, they could not claim, simply because it is oppressive, that it is unjust because the war is in their opinion unnecessary. For they are not entitled to judge this issue, since it is at least possible that the war is inevitable and the tax indispensable, so that the tax must be deemed rightful in the judgement of the subjects. But if certain estate owners were oppressed with levies for such a war, while others of the same class were exempted, it is easily seen that a whole people could never agree to a law of this kind, and it is entitled at least to make representations against it, since an unequal distribution of burdens can never be considered just.

But this restriction obviously applies only to the judgement of the legislator, [80] not to that of the subject. Thus if a people, under some existing legislation, were asked to make a judgement which in all probability would prejudice its happiness, what should it do? Should the people not oppose the measure? The only possible answer is that they can do nothing but obey. For we are not concerned here with any happiness which the subject might expect to derive from the institutions or administration of the commonwealth, but primarily with the rights which would thereby be secured for everyone. And this is the highest principle from which all maxims relating to the commonwealth must begin, and which cannot be qualified by any other principles. No generally valid principle of legislation can be based on happiness. For both the current circumstances and the highly conflicting and variable illusions as to what happiness is (and no-one can prescribe to others how they should attain it) make all fixed principles impossible, so that happiness alone can never be a suitable principle of legislation. The doctrine that salus publica suprema civitatis lex est⁹ retains its value and authority undiminished; but the public welfare which demands first consideration lies precisely in that legal [gesetzliche] constitution which guarantees everyone his freedom within the law [durch Gesetze], so that 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.

If the supreme power makes laws which are primarily directed towards happiness (the affluence of the citizens, increased population etc.), this cannot be regarded as the end for which a civil constitution was established, but only as a means of securing the rightful state [rechtlichen Zustand], especially against external enemies of the people. The head of state must be authorised to judge for himself whether such measures are necessary for the commonwealth’s prosperity, which is required to maintain its strength and stability both internally and against external enemies. The aim is not, as it were, to make the people [Volk] happy against its will, but only to ensure its continued existence as a commonwealth.* The legislator may indeed err in judging whether or not the measures he adopts are prudent, but not in deciding whether or not the law harmonises with the principle of right. For he has ready to hand as an infallible a priori standard the idea of an original contract, and he need not wait for experience to show whether the means are suitable, as would be necessary if they were based on the principle of happiness. For so long as it is not self-contradictory [81] to say that an entire people could agree to such a law, however painful it might seem, then the law is <in harmony with right> [dem Rechte gemäß]. But if a public law is beyond reproach (i.e. irreprehensible) with respect to right, it carries with it the authority to coerce those to whom it applies, and conversely, it forbids them to resist the will of the legislator by violent means. In other words, the power of the state [Staate] to put the law into effect is also irresistible, and no rightfully established commonwealth can exist without a force of this kind to suppress all internal resistance. For such resistance would be dictated by a maxim which, if it became general, would destroy the whole civil constitution and put an end to the only state [Zustand] in which men can possess rights.

Measures of this kind might include certain restrictions on imports, so that the means of livelihood may be developed for the benefit of the subjects themselves and not as an advantage to foreigners or an encouragement for their industry. For without the prosperity of the people [Volk], the state would not have enough strength to resist external enemies or to preserve itself as a commonwealth.

It thus follows that all resistance against the supreme legislative power, all incitement of the subjects to violent expressions of discontent, all defiance which breaks out into rebellion, is the greatest and most punishable crime in a commonwealth, for it destroys its very foundations. This prohibition is absolute. And even if the power of the state or its agent, the head of state, has violated the original contract by authorising the government to act tyrannically, and has thereby, in the eyes of the subject, forfeited the right to legislate, the subject is still not entitled to offer counter-resistance. The reason for this is that the people, under an existing civil constitution, has no longer any right to judge how the constitution should be administered. For if we suppose that it does have this right to judge and that it disagrees with the judgement of the actual head of state, who is to decide which side is right? Neither can act as judge of his own cause. Thus there would have to be another head above the head of state to mediate between the latter and the people, which is self-contradictory. – Nor can a right of necessity (ius in casu necessitatis) be invoked here as a means of removing the barriers which restrict the power of the people; for it is monstrous to suppose that we can have a right to do wrong in the direst (physical) distress.* For the head of state can just as readily claim [82] that his severe treatment of his subjects is justified by their insubordination as the subjects can justify their rebellion by complaints about their un-merited suffering, and who is to decide? The decision must rest with whoever controls the ultimate enforcement of the public law, i.e. the head of state himself. Thus no-one in the commonwealth can have a right to contest his authority.

There is no casus necessitatis except where duties, i.e. an absolute duty and another which, however pressing, is nevertheless relative, come into conflict. For instance, it might be necessary for someone to betray someone else, even if their relationship were that of father and son, in order to preserve the state from catastrophe. This preservation of the state from evil is an absolute duty, while the preservation of the individual is merely a relative duty (i.e. it applies only if he is not guilty of a crime against the state). The first person might denounce the second to the authorities with the utmost unwillingness, compelled only by (moral) necessity. But if a person, in order to preserve his own life, pushes a shipwrecked fellow away from the plank he grasps, it would be quite false to say that (physical) necessity gives him a right to do so. For it is only a relative duty for me to preserve my own life (i.e. it applies only if I can do so without committing a crime). But it is an absolute duty not to take the life of another person who has not offended me and does not even make me risk my own life. Yet the teachers of general civil law are perfectly consistent in authorising such measures in cases of distress. For the authorities cannot combine a penalty with this prohibition, since this penalty would have to be death. But it would be a nonsensical law which threatened anyone with death if he did not voluntarily deliver himself up to death when in dangerous circumstances.

Nonetheless, estimable men have declared that the subject is justified, under certain circumstances, in using force against his superiors. I need name only Achenwall,¹⁰ who is extremely cautious, precise and restrained in his theories of natural right.* He says: ‘If the danger which threatens the commonwealth as a result of long endurance of injustices from the head of state is greater than the danger to be feared from taking up arms against him, the people may then resist him. It may use this right to abrogate its contract of subjection and to dethrone him as a tyrant.’ And he concludes: ‘The people, in dethroning its ruler, thus returns to the state of nature.’

Ius Naturae. Editio V. Pars posterior, §§ 203–206.

I well believe that neither Achenwall nor any others of the worthy men who have speculated along the same lines as he would ever have given their advice or agreement to such hazardous projects if the case had arisen. And it can scarcely be doubted that if the revolutions whereby Switzerland, the United Netherlands or even Great Britain won their much admired constitutions had failed, the readers of their history would regard the execution of their celebrated founders as no more than the deserved punishment of great political criminals. For the result usually affects our judgement of the rightfulness of an action, although the result is uncertain, whereas the <principles of right> [Rechtsgründe] are constant. But it is clear that these peoples have done the greatest degree of wrong in seeking their rights [ihr Recht] in this way, even if we admit that such a revolution did no injustice [Unrecht] to a ruler who had violated a specific basic agreement with the people, such as the Joyeuse Entrée.¹¹ For such procedures, if made into a maxim, make all lawful [rechtliche] constitutions insecure and produce a state of complete lawlessness [Gesetzlösigkeit] (status naturalis) where all rights [alles Recht] cease at least to be effectual. In view of this tendency of so many right-thinking authors to plead on behalf of the people (and to its own detriment), I will only remark that such errors arise in part from the usual fallacy of allowing the principle of happiness [83] to influence the judgement, wherever the principle of right is involved; and partly because these writers have assumed that the idea of an original contract (a basic postulate of reason) is something which must have taken place in reality, even where there is no document to show that any contract was actually submitted to the commonwealth, accepted by the head of state, and sanctioned by both parties. Such writers thus believe that the people retains the right to abrogate the original contract at its own discretion, if, in the opinion of the people, the contract has been severely violated.*

Even if an actual contract of the people with the head of state has been violated, the people cannot reply immediately as a commonwealth, but only by forming factions. For the hitherto existing constitution has been destroyed by the people, but a new common wealth has still to be organised. At this point, the state of anarchy supervenes, with all the terrors it may bring with it. And the wrong which is thereby done is done by each faction of the people to the others, as is clear from the case where the rebellious subjects ended up by trying to thrust upon each other a constitution which would have been far more oppressive than the one they abandoned. For they would have been devoured by ecclesiastics and aristocrats, instead of enjoying greater equality in the distribution of political burdens under a single head of state who ruled them all.¹²

It is obvious from this that the principle of happiness (which is not in fact a definite principle at all) has ill effects in political right [Staatsrecht] just as in morality, however good the intentions of those who teach it. The sovereign wants to make the people [Volk] happy as he thinks best, and thus becomes a despot, while the people [Volk] are unwilling to give up their universal human desire to seek happiness in their own way, and thus become rebels. If they had first of all asked what is lawful [Rechtens] (in terms of a priori certainty, which no empiricist can upset), the idea of a social contract would retain its authority undiminished. But it would not exist as a fact (as Danton¹³ would have it, declaring that since it does not actually exist, all property and all rights under the existing civil constitution are null and void), but only as a rational principle for judging any lawful [rechtlichen] public constitution whatsoever. And it would then be seen that, until the general will is there [da ist], the people has no coercive right against its ruler, since it can apply coercion legally [rechtlich] only through him. But if the will is there [ist da], no force can be applied to the ruler by the people, otherwise the people would be the supreme ruler. Thus the people can never possess a right of coercion against the head of state, or be entitled to oppose him in word or deed.

We can see, furthermore, that this theory is adequately confirmed in practice. In the British constitution, of which the people are so proud that they hold it up as a model for the whole world, we find no mention of what the people are entitled to do if the monarch were to violate the contract of 1688.¹⁴ Since there is no law to cover such a case, the people [84] tacitly reserve the right to rebel against him if he should violate the contract. And it would be an obvious contradiction if the constitution included a law for such eventualities, entitling the people to overthrow the existing constitution, from which all particular laws are derived, if the contract were violated. For there would then have to be a publicly constituted* opposing power, hence a second head of state to protect the rights of the people against the first ruler, and then yet a third to decide which of the other two had right on his side. In fact, the leaders (or guardians – call them what you will) of the British people, fearing some such accusation if their plans did not succeed, invented the notion of a voluntary abdication by the monarch they forced out, rather than claim a right to depose him (which would have made the constitution self-contradictory).

While I trust that no-one will accuse me of flattering monarchs too much by declaring them inviolable, I likewise hope that I shall be spared the reproach of claiming too much for the people if I maintain that the people too have inalienable [unverlierbaren] rights against the head of state, even if these cannot be rights of coercion.

Hobbes is of the opposite opinion. According to him (De Cive, Chap. 7, § 14), the head of state has no contractual obligations towards the people; he can do no injustice [Unrecht] to a citizen, but may act towards him as he pleases. This proposition would be perfectly correct if injustice [Unrecht] were taken to mean any injury which gave the injured party a coercive right against the one who has done him injustice. But in its general form, the proposition is quite terrifying.

The non-resisting subject must be able to assume that his ruler has no wish to do him injustice [Unrecht]. And everyone has his inalienable rights, which he cannot give up even if he wishes to, and about which he is entitled to make his own judgements. But if he assumes that the ruler’s attitude is one of good will, any injustice which he believes he has suffered can only have resulted through error, or through ignorance of certain possible consequences of the laws which the supreme authority has made. Thus the citizen must, with the approval of the ruler, be entitled to make public his opinion on whatever of the ruler’s measures seem to him to constitute an injustice against the commonwealth. For to assume that the head of state can neither make mistakes nor be ignorant of anything would be to imply that he receives divine inspiration and is more than a human being.

No right in a state can be tacitly and treacherously included by a secret reservation, and least of all a right which the people claim to be part of the constitution, for all laws within it must be thought of as arising out of a public will. Thus if the constitution allowed rebellion, it would have to declare this right publicly and make clear how it might be implemented. [85] Thus freedom of the pen is the only safeguard of the rights of the people, although it must not transcend the bounds of respect and devotion to wards the existing constitution, which should itself create a liberal attitude of mind among the subjects. To try to deny the citizen this freedom does not only mean, as Hobbes maintains, that the subject can claim no rights against the supreme ruler. It also means withholding from the ruler all knowledge of those matters which, if he knew about them, he would himself rectify, so that he is thereby put into a self-stultifying position. For his will issues commands to his subjects (as citizens) only in so far as he represents the general will of the people. But to encourage the head of state to fear that independent and public thought might cause political unrest is tantamount to making him distrust his own power and feel hatred towards his people.

The general principle, however, according to which a people may judge negatively whatever it believes was not decreed in good will by the supreme legislation, can be summed up as follows: Whatever a people cannot impose upon itself cannot be imposed upon it by the legislator either.

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 [dürfe] 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. Thus a law of this kind cannot be regarded as the actual will of the monarch, to whom counter-representations may accordingly be made. In all cases, however, where the supreme legislation did nevertheless adopt such measures, it would be permissible to pass general and public judgements upon them, but never to offer any verbal or active resistance.

In every commonwealth, there must be obedience to generally valid coercive laws within the mechanism of the political constitution. There must also be a spirit of freedom, for in all matters concerning universal human duties, each individual requires to be convinced by reason that the coercion which prevails is lawful [rechtmäßig], otherwise he would be in contradiction with himself. Obedience without the spirit of freedom is the effective cause of all secret societies. For it is a natural vocation [Naturberuf] of man to communicate [86] with his fellows, especially in matters affecting mankind as a whole. Thus secret societies would disappear if freedom of this kind were encouraged. And how else can the government itself acquire the knowledge it needs to further its own basic intention, if not by allowing the spirit of freedom, so admirable in its origins and effects, to make itself heard?

***

Nowhere does practice so readily bypass all pure principles of reason and treat theory so presumptuously as in the question of what is needed for a good political constitution. The reason for this is that a legal [gesetzliche] constitution of long standing gradually makes the people accustomed to judging both their happiness and their rights in terms of the peaceful status quo. Conversely, it does not encourage them to value the existing state of affairs in the light of those concepts of happiness and right which reason provides. It rather makes them prefer this passive state [Zustand] to the dangerous task of looking for a better one, thus bearing out the saying which Hippocrates told physicians to remember: iudicium anceps, experimentum periculosum.¹⁵ Thus all constitutions which have lasted for a sufficiently long time, what ever their inadequacies and variations, produce the same result: the people remain content with what they have. If we therefore consider the welfare of the people, theory is not in fact valid, for everything depends upon practice derived from experience.

But reason provides a concept which we express by the words political right [Staatsrecht]. And this concept has binding force for human beings who coexist in a state of antagonism produced by their natural freedom, so that it has an objective, practical reality, irrespective of the good or ill it may produce (for these can only be known by experience). Thus it is based on a priori principles, for experience cannot provide knowledge of what is right, and there is a theory of political right to which practice must conform before it can be valid.

The only objection which can be raised against this is that, although men have in their minds the idea of the rights to which they are entitled, their intractability is such that they are incapable and unworthy of being treated as their rights demand, so that they can and ought to be kept under control by a supreme power acting purely from expediency. But this counsel of desperation (salto mortale) means that, since there is no appeal to right but only to force, the people may themselves resort to force and thus make every legal [gesetzliche] constitution insecure. If there is nothing which commands immediate respect through reason, such as <the basic rights of man> [Das Menschenrecht], no influence can prevail upon man’s arbitrary will and restrain his [87] freedom. But if both benevolence and right speak out in loud tones, human nature will not prove too debased to listen to their voice with respect. Tum pietate gravem meritisque si forte virum quern Conspexere, silent arrectisque auribus adstant (Virgil).¹⁶

Notes

⁸ p. 73. Kant seeks here to refute Hobbes’ political theory, which found its classic expression in the Leviathan (1651). The actual argument is explicitly directed against Hobbes’ De cive (1642).

⁹ p. 8o. ‘The public welfare is the supreme law of the state.’

¹⁰ p. 82. Gottfried Achenwall (1719–72), professor in Gottingen and the leading statistician of the age. His Jus naturae in usum auditorum was published in Gottingen, 1755–6 (7th ed. 1781). Kant used this work as a text-book for his lectures on Natural Law, held twelve times between 1767 and 1788. The use of textbooks for lectures was customary.

¹¹ p. 82. Charter granted to Brabant by Duke John III in 1354 in which the Duke undertook to maintain the integrity of the duchy and not to wage war, make treaties or impose taxes without consulting his subjects represented by the municipalities.

¹² p. 83. These remarks refer to the French Revolution.

¹³ p. 83. Georges Jacques Danton (1759–94.), the French revolutionary leader.

¹⁴ p. 83. This remark refers to the accession of William III of Orange and Mary to the British throne in 1688 (the Glorious Revolution). After James II had been overthrown, Parliament legislated for William’s and Mary’s accession, restricting the monarchy to the Protestant successors of James I.

¹⁵ p. 86. ‘The judgement is uncertain, and experiments are dangerous.’

¹⁶ p. 87. ‘If they catch sight of a man respected for his virtue and services, they are silent and stand close with ears alert.’ Virgil, Aeneid I, 151–2.

Interpolations: Andrew Chitty