Kant's Doctrine of Right in the Twenty-first Century

Introduction

Larry Krasnoff, Nuria Sánchez Madrid and Paula Satne

For a very long time, Kant’s Doctrine of Right languished in relative neglect, even among those who wanted to defend a Kantian position in political philosophy. In the second half of the twentieth century, at least in the English-speaking philosophical world, the work was best known for its uncompromising views on punishment and revolution, and for a seemingly limited and not particularly original emphasis on private property. Kant’s more interesting claims about politics were often said to be located elsewhere: in the third Critique, as Hannah Arendt and Patrick Riley argued, or in the structure of the critical project, as Onora O’Neill suggested. When John Rawls explained why his theory of justice could be given a ‘Kantian interpretation’, he drew on concepts found just in Kant’s moral philosophy, bypassing the Doctrine of Right entirely.

From the perspective of the second decade of the twenty-first century, things look very different. Major commentaries have appeared in English, from B. Sharon Byrd and Joachim Hruschka, and from Arthur Ripstein. Ripstein, in particular, succeeded in reframing Kant’s main arguments in the Doctrine of Right from a perspective that was at once more general, more systematic, and more congenial to the concerns of contemporary legal theory. The ground was now open for interpreters to argue, as Elisabeth Ellis has done, that a conception of Kantian political philosophy grounded in the arguments of the Doctrine of Right might have real application to the contemporary world.

Are Ripstein and Ellis right? To date there has been no anthology in English that has taken up this question by examining Kant’s Doctrine of Right from a twenty-first-century political perspective. The authors in this volume have sought, in different ways, to test different pieces of Kant’s argument for possible political application. Not surprisingly, they reach different and sometimes opposing conclusions, and we hope that the potential for substantive debate will be one of the most welcome features of this collection. While the order of the essays roughly tracks the organization of Kant’s work, and while the authors always seek to be faithful to the text, the methodology of the volume is not primarily textual. Our focus is on what kinds of political positions the text can be understood to support. In some cases (Walla, Oki, Brockie, Satne, Baiasu) the essays proceed from potential tensions in Kant’s arguments, while others (Boot, Sánchez Madrid, Krasnoff, Bernstein, Pascoe) confront the arguments with more contemporary political issues. In each case, however, the goal is to understand what a political position grounded in the Doctrine of Right would look like in twenty-first-century terms.

We begin with an overview of some foundational concepts in Kant’s text. In ‘The Originality of Kant’s Social Contract Theory’, Macarena Marey argues that the distinctive force of Kant’s conception of the social contract is its insistence on a purely juridical standpoint. Other familiar conceptions of the social contract, both classical and contemporary, ground the force of the contract in pragmatic or moral considerations which are understood as prior to politics. Kant, however, wanted to establish a conception of the political that was independent of ethical claims. His claims about the social contract derive solely from the juridical conceptions of political obligation and a united will. The result is a thinner, more realistic account which may have more contemporary political relevance than more familiar contemporary contractualisms and contractarianisms like Rawls’s and Gauthier’s.

In ‘Private Property and the Possibility of Consent: Immanuel Kant and Social Contract Theory’, Alice Pinheiro Walla examines the Kantian social contract from a more specific perspective, asking why Kant introduces the notion of common possession of the earth in addition to the permissive law authorizing the possibility of becoming owners of objects. She shows that the idea of common possession of the earth is supposed to account for an asymmetry between the right to external objects as involving at some point the first acquisition of external objects, and other forms of private right. Pinheiro Walla argues that Kant needs common possession of the earth in addition to the permissive law in order to account for the consent required for the possibility of imposing an obligation on all others to respect one’s possession of external things, a problem one does not have in regard to other forms of private right. This conception of common possession helps us to understand how Kant can be said to be a social contract theorist.

Can the perspective of this Kantian social contract, which emphasizes a shared sense of political obligation, nonetheless ground a conception of human rights, which has become essential to contemporary political argument? In ‘Judging Rights By Their Duties: A Kantian Perspective on Human Rights’ Eric Boot argues that a Kantian can identify human rights by adopting a ‘perspective of duties’. Kant’s primary focus is on duties, and from there he proceeds to rights. Boot appeals to the Kantian distinction between duties of right and duties of virtue to argue that genuine rights correspond only to duties of right. On this view, only where there is a possible duty of right can there also be a (human) right. The duty of beneficence is a duty of virtue; as such, it does not correspond to a right. Hence talk of a subsistence right understood as a right to a decent standard of living is misguided. Nevertheless, Boot ends by noting that duties of virtue are genuine duties, and as such they provide genuine obligations. They and duties of right are equally binding; they should not be understood as merely optional, super-erogatory excellences.

Boot’s arguments about the duty of beneficence raise the familiar but still pressing question of whether an eighteenth-century liberal theory like Kant’s can accommodate the claims about welfare which the politics of the twentieth century has bequeathed to us. After Boot, the next three authors confront this question even more directly. In ‘The Proper Task of Kantian Politics: The Relationship between Politics and Happiness’, Masataka Oki analyses Kant’s claim that the proper task of politics is to secure the conditions for happiness, considering how this can be done without the state resorting to despotism and imposing a particular notion of happiness on its citizens. Oki suggests the following Kantian thesis: we may regard ourselves happy as long as we live in a political system where every juridical claim of individuals for what is their own would be justly settled through a rationally constructed system of laws. Oki argues that the fundamental human longing for happiness translates into a fundamental interest of human beings in their own active freedom, arguing that this interest is the motor that drives them to take part in and to advance true politics.

In ‘Kant on Poverty and Welfare: Social Demands and Juridical Goals in the Doctrine of Right’, Nuria Sánchez Madrid criticizes the claims of commentators who argue that Kant would legitimate public measures for enhancing social welfare in current states at a global scale. Sánchez Madrid argues that this kind of ‘Kantian’ view results in a plain anachronism. Although Kant assigns to the state the right to force the well-off citizenry to economically support destitute people, his account of this extraordinary measure is very unlike our current understanding of poverty as a social burden and our conviction that the whole people ought to contribute to relieve it. Despite the Doctrine of Right’s concern about the social upheavals that poverty might cause, Kant argues in other writings, such as ‘Theory and Practice’, that social inequality does not undermine republican citizenship. It is thus a very disputable matter whether ‘social policies’ might play a concrete role in Kant’s notion of the state.

In ‘On the Supposed Distinction between Classical and Welfare Liberalism: Lessons from the Doctrine of Right’, Larry Krasnoff rejects a version of Sánchez Madrid’s distinction, taking issue both with readings of Kant as a merely classical liberal, and with readings suggesting that Kant can also accommodate claims about welfare. Krasnoff claims that these opposing readings each miss the force of the Doctrine of Right, which argues that freedom and law are essentially connected. If we do understand this argument, we can better appreciate the liberal force of contemporary welfare policies, especially social insurance programs. Such policies are neither threats to freedom nor the contribution of some further perspective beyond freedom. Building on some arguments of Arthur Ripstein, Krasnoff argues that social insurance programs can and should be understood as ways of expressing the idea of individual freedom in law. A distinctive contribution of the Doctrine of Right is its implicit argument that the supposed distinction between classical and welfare liberalism makes little theoretical sense.

Another vexed question in Kant’s political philosophy is the status of resistance to unjust political authority, and of civil disobedience in particular. In ‘Resistance and Reform in Kant’s Doctrine of Right’, Wendy Brockie argues that although regimes which abuse property rights and other freedoms of individuals do not meet Kant’s definition of what constitutes a civil condition, there is no evidence in Kant’s theory of right for legitimating any resistance against public power. Brockie claims that it is difficult to argue that Kant’s Doctrine of Right contains passages allowing for illegal action against such despotic and abusive regimes. Brockie recognizes that the apparent rigidity in Kant’s position in the Doctrine of Right has given rise to a debate in which Kant’s clearly stated position has been disputed, and sometimes mitigated, by reference to his wider moral philosophy. But Brockie draws a quite sceptical conclusion about Kant’s appraisal of civil disobedience, arguing that unlike the rightful general will, the common will of an outraged group of people is rarely homogeneous. It is impossible to be certain about the inner motivation of each individual person who disobeys the law, whatever ideological stance is claimed, and this uncertainly will thwart the legal claims of any attempt at rebellion.

In ‘Civil Disobedience: Towards a New Kantian Conception’, Alyssa Bernstein stakes out the opposite position, arguing that despite its famous arguments against revolution, Kant’s political philosophy can accommodate a certain conception of justified civil disobedience. Kant’s arguments against revolution presume a stable juridical condition; thus resistance is permitted in cases where such a condition has yet to be firmly established. Previous attempts to exploit this point to support Kantian civil disobedience have failed, however, by neglecting Kant’s view that unjust polities are nonetheless juridical conditions. Using the example of Martin Luther King Jr, Bernstein argues that from the Kantian perspective, civil disobedience may be permissible if it is justified by appealing to higher legal conventions.

The final essays in the volume seek to apply Kant’s juridical arguments in the Doctrine of Right to international and then to interpersonal relations. In ‘Kantian Insights on the Moral Personality of the State’, Milla Vaha begins from the observation that Kant’s thought is often taken not only as the philosophical basis of ‘idealism’ in international relations, but also as the main source of practical guidelines on how international order should develop towards a society of liberal democratic states that universally respect human rights. Vaha critically examines the acclaimed ‘Kantian heritage’ of these liberal exclusionary visions of world politics and argues tha their conclusions not only contradict Kant’s own ideal of a federation of states; they fundamentally undermine the moral personhood of the majority of existing states. Here Vaha engages with a question raised by Brockie’s and Bernstein’s arguments about political resistance: what is recognizable as a state, for Kant? Vaha emphasizes that for Kant, even non-liberal states are moral persons. Should these or any other states act aggressively against other states, they would allow themselves to become ‘unjust enemies’, leaving themselves liable to external force. Yet until this happens, their moral personality and respective standing in world politics remain intact.

In ‘Kant’s Guarantee for Perpetual Peace: A Reinterpretation and Defence’, Sorin Baiasu examines Kant’s mysterious notion of a guarantee for perpetual peace, which Kant takes to be the highest political good. This idea is discussed only very briefly in the Doctrine of Right, in the especially short section on ‘The Right of Nations’, and so Baiasu reflects on a variety of Kantian texts, especially ‘To Perpetual Peace’. There Kant suggests that nature will provide the guarantee by constraining individuals to work incessantly towards perpetual peace but without restraining their freedom. In Baiasu’s view the main interpretative problem with the guarantee is how to account for it epistemically, given that Kant says that we cannot have theoretical cognition of it, but only practical cognition (PP 8:362). The problem is that Kant seems to be suggesting that we assert the reality of the guarantee in ‘dogmatic’ terms, but this dogmatic claim might fail to be very convincing for anybody who is not already convinced of its reality. Baiasu argues against interpretations that understand the highest political good in analogy to the highest ethical good, and or that attribute the guarantee to the will of the citizens rather than to nature. Baiasu is able to maintain that the guarantee is the result of an agency which is independent from that of human beings, an agency which may constrain us to act in a particular way, but does so without prejudice to our freedom, by appealing to Kant’s distinction between opinion, belief and knowledge in the Canon of Pure Reason, and showing that the epistemic status of the guarantee can be defended as the object of doctrinal belief, a form of assent that can generate conviction about the enforcement of peace treaties by the ‘great artist nature’.

Turning to interpersonal relations, in ‘Forgiveness and Punishment in Kant’s Moral System’, Paula Satne seeks to clarify Kant’s views on forgiveness in order to dissolve an apparent tension in Kant’s thought. Kant’s identification of a duty to be forgiving in the Doctrine of Virtue seems to be in tension with the theory of punishment and clemency defended in the Doctrine of Right and Kant’s views on moral guilt and culpability developed in the Religion within the Boundaries of Mere Reason. Satne argues that Kant is fully committed to the view that legal wrongs require punishment by the state and that punishment for moral wrongs is only a prerogative of a supreme authority, perhaps God, but never of ordinary human agents. Satne also claims that the right to grant clemency that Kant attributes to the sovereign is very limited and that it never requires a violation of the universal principle of right. This means that, for Kant, forgiveness does not (and cannot) involve the forgoing of punishment or the wiping out of moral guilt. And yet, Satne argues that there is space in Kant’s philosophy for a genuine theory of forgiveness, one that is compatible with Kant’s views of punishment and culpability. The key to understanding this theory is to recognize that the duty to be forgiving is a duty of love (i.e. a wide duty of virtue) which is conditional on the wrongdoer’s repentance, understood as part of a project of moral improvement which involves reflection and self-reform. Satne offers an argument in support of Kant’s duty to be forgiving, clarifying the nature of this duty and the specific features of a Kantian conception of forgiveness, briefly assessing them in relation to some developments in the contemporary literature on forgiveness.

Finally, in ‘A Universal Estate: Kant on Marriage Equality’, Jordan Pascoe offers a historical explanation of why Kant’s account of marriage as a foundational element of right has been fertile ground for contemporary theorists hunting for both a philosophical defence of marriage and tools for reforming marriage as a more just institution. Pascoe reads Kant’s arguments against the background of debates about the reform and expansion of marriage prompted by the introduction of the Prussian Legal Code in the 1790s. By comparing Kant’s arguments about marriage to those of his contemporaries von Hippel and Fichte, Pascoe argues that while Kant offers a useful philosophical framework for the mainstream marriage equality movement, those looking to rethink marriage’s role as a feature of justice would do well to look beyond Kant.

* * *

This book was conceived and planned by Harry Lesser. Sadly, Harry died suddenly a few months before the first draft of the manuscript was due for completion. In addition to serving as editor, Harry had planned to write a chapter, entitled ‘Justice and Public Morality’. Unfortunately, we do not know whether he had actually completed the chapter, since we have been able to locate only the abstract. The focus of Harry’s chapter was to be §49 of the Doctrine of Right, in which Kant considers whether the death penalty, which he thinks is the right penalty for murder, should be imposed on those who have killed in circumstances under which not to kill, or not to risk killing, would bring great social disgrace (unmarried mothers and soldiers refusing to fight a duel are the two examples). Harry had planned to consider Kant’s position in these two cases and its application to contemporary issues in order to conclude that the argument should not be applied to crimes of honour or racist crimes, but remains relevant to the problem of what to do about the use of excessive violence in self-defence.

In the final years of his life, Harry had become increasingly interested in Kant’s practical philosophy, attending many conferences and workshops in this area. He realised that Kant’s Doctrine of Right still has relevance for key issues in contemporary political theory, and he sought both to clarify Kant’s positions and to work out what in those positions is illuminating and true. Harry was known for his attentive reading of Kant, for his sharp philosophical judgement, as well as for his friendliness and openness to philosophical dialogue. The great variety of topics discussed in this book is testimony to Harry’s breadth of knowledge and interests. His friendliness and collegiality are evident in the range of authors, who come from different continents, traditions and backgrounds. Having taken up his unfinished editorial work, we dedicate this volume to Harry’s memory. We hope that our final version of the book reflects Harry’s vision, and we remember him with love, admiration and gratitude.

1 • The Originality of Kant’s Social Contract Theory

Macarena Marey

1. Introduction

It is a well-known fact that Kant’s doctrine of the original social contract is so complex that it has prompted many different, sometimes opposing interpretations of his political philosophy. A simple enumeration of some of the central tenets of Kant’s ideal social contract theory suffices to let us see the reasons for that complexity.

On the one hand (a) Kant claims that leaving the state of nature is a categorical duty (albeit moral in a juridical, not ethical, sense), and consequently (b) he relies on neither instrumental arguments nor individuals’ subjective motivations to prove the practical necessity to leave the state of nature. Ever since his so-called pre-critical period, and especially in his definitive work on political philosophy, the Doctrine of Right,¹ (c) Kant holds that the social contract is to be considered exclusively as a norm, a regulative principle to be used as a normative criterion to establish the ideal Staatsrecht and to critically evaluate the legitimacy of existing states, rather than as a descriptive explanation of the origin of the state aiming at legitimizing its empirical exercise of the monopoly of coercion. Given these three theses, (d) the idea that juridical-political obligations have their origin in individual and unilateral choices, a central tenet of the social contract tradition² that markedly pervades contemporary democratic liberal political thought,³ no longer seems to be extant in Kant’s Doctrine of Right. Kant even states that in the state of nature ‘each may impel the other by force to leave this state and enter into a rightful condition’ (RL §44, 6:312, my emphasis).

In the first paragraph of ‘Against Hobbes’, Kant explains that the difference between a social contract and any other kind of contracts consists in that (e) regarding the ‘pactum unionis civilis’, unity is an ‘end in itself’, ‘an unconditional and first duty in all external relationships in general among human beings, who cannot avoid reciprocally influencing one another’ (TP 8:289). The juridical condition is, for Kant, both a duty and an end in itself, not a means to attain a further aim, such as happiness or security. This Kantian stance against Hobbes and Achenwall reappears in the Doctrine of Right. Kant explains now that unlike any other kind of society, the principle ‘you ought to enter this condition’ ‘holds a priori’ for the juridical or rightful society. This principle, he affirms, is necessarily valid a priori for ‘all human beings who could (even involuntarily) come into relations of right with one another’ (RL §41, 6:306, translation amended). It is evident that this deontological modality of Kant’s exeundum separates him from the typical strategy of the social tradition of contrasting the empirical inconveniencies of the state of nature with the security of the rightful condition, and consequently of showing the prudentially rational, as opposed to practical and moral, modal character of the exeundum principle.⁴

But on the other hand, (f) the Doctrine of Right develops an argument for the practical necessity of the state that gives an account of the natural condition in order to determine the pressing problem the state authority is meant to solve, which is the key move of the social contract tradition’s argumentative strategy. Moreover, (g) this argument serves to justify the rule of the general will. In §47 of this work, (h) Kant states that a person’s ‘dependence upon laws’ ‘arises from her own lawgiving will’ (RL §47, 6:315–16, translation amended), and in §44 (i) he explicitly adopts the thesis of the artificiality of the state: the state, though conceived as an a priori ideal, must be created.

It is uncontroversial to state that the way Kant combines these tenets in a cohesive doctrine of the original contract makes this theory a very original one, but disagreement starts when it comes to establishing where exactly in this theory its originality chiefly resides. I shall propose that the proper Kantian contribution to the social contract tradition is his concept of an a priori united will, a concept that aims at solving some problems Kant finds within the two modern political traditions which he both adopts and criticizes, and which still permeate liberal democratic theory today. I am referring, of course, to modern natural law theories and to social contract theories, which were objects of Kant’s political reflection from a very early stage in his intellectual life.⁵ My general aim in this essay is to critically compare Kant’s social contract theory with modern social contract tradition. I have chosen this path for a simple reason: against his own rendering of the problems of this tradition, Kant maintained that a solid theory of the state could only be based upon a purely juridical or political starting point. This is the main reason, I will then affirm, that allows us to detach Kant’s social contract theory from many contemporary contract doctrines that mistakenly consider themselves to be Kantian. Kant’s theory enjoys features of its own kind that render it fruitful vis-à-vis contemporary contractualisms and contractarianisms, and so my more specific purpose is to determine what Kant’s political philosophy contributes to our contemporary conception of the social contract and its function.

The next sections of the chapter are devoted to the following tasks. In section 2, I enumerate the components of a modern social contract theory, with the aim of delineating Kant’s own construal of them and thus stressing its originality. In section 3, I conclude by alluding to the political and philosophical meaning of Kant’s ideal original contract and the conjoined concept of an a priori united will.

2. Elements of a political contract theory

Every modern contract theory can be understood as a long argument whose aim is to establish the practical necessity of the state. Social contract arguments were philosophically occasioned by the historic unavailability of an uncontroversial ontological explanation of the naturalness of political authority. Social contract theorists did not, however, entirely disregard nature; very much on the contrary, they encountered the necessity of coining a new understanding both of human nature and of the way human beings interact naturally, without turning to substantial ties amongst them and without appealing to inner ethical precepts that could regulate their external reciprocal conduct.

Social contract arguments also share a distinctive systematic structure. Each of them is articulated in three different moments, each of which shares the aim of justifying the necessity of a certain form of artificial political authority. These three stages can be enumerated as follows. First, we find a description of the state of nature, which is designed to show, second, the necessity of the exeundum principle. The way the state of nature is devised will determine the modality of the dictum ‘one has to leave the state of nature.’ This modality, third, then ought sufficiently to determine the particular conception of the state which a social contract theorist wishes to defend, together with its institutional design. Each one of these stages contains a number of elements that are necessary for the argument to work and for a philosophical system to be considered a modern social contract theory stricto sensu. In what follows, I enumerate them and indicate Kant’s construal of them. The criterion I apply in this enumeration is what I believe to be the main question of the social contract tradition: who pacts what with whom and why?

As to ‘who’ and ‘with whom’, the social contract theorists’ answer consisted mainly in a characterization of human beings, their entitlements and the practical consequences of their interactions from the perspective of the state of nature: that is, a condition devoid of the concrete existence of a binding legal corpus. This we will see in subsection 2.a. The answer to ‘why’ is to be looked for in the modality attributed to the exeundum principle, which is, in turn, the practical outcome of the natural interaction of human beings who possess certain natural entitlements and tend to act in a certain way. This is the topic of subsection 2.b. The ‘what’ in the question denotes the content of the pact: the nature of sovereign power and the institutional form of the state. This is the object of subsection 2.c.

2.a. The state of nature is basically an argumentative device to show the need to establish a political society no longer conceived as natural. Within the abstract scenario of a natural human condition, a social contract theory places its conceptions of our natural freedom, natural equality and natural practical rationality, i.e., the way persons deliberate and then act in a context devoid of an enforced and univocal legal corpus. In this condition, the motives and reasons human beings who are naturally and equally free have for acting in a certain manner ought to suffice (1) to generate a zero-sum situation, with the main feature of being inhospitable for the very same abstract persons who generated it in the first place, and (2) to persuade them to voluntarily decide to leave this natural condition and enter a juridical one.

Now, as it is the factum that we cannot avoid interacting that makes it necessary for us to establish a juridical state under the rule of political absolute authority, the practical test of these conceptions of human nature is the way they shape the characterization of this interaction. But despite this emphasis on interaction, it is also the case that modern social contract theories hold that the origin of juridical and political obligation, and consequently of political obedience, is always a certain voluntary act of the individual. This is not casual, since for modernity the very notion of political obligation was problematic; it was now necessary to explain how and whence some juridical-political normativity no longer viewed as natural could be produced. Why do we have to obey the state, an artificial authority, rather than no one? The seemingly most effective solution was condensed in the distinctly Hobbesian argumentative strategy of defining obligation as self-created: there is ‘no obligation on any man which ariseth not from some act of his own; for all men equally are by nature free’.⁶

Following a path of analysis parallel to the one I travel here, but from a contractarian perspective, David Gauthier concedes that the theory of the social contract ‘concerns the rationale of relationships among persons, and between society and its members, rather than the cause of those relationships’.⁷ But, he goes on, social contract theories

require, first of all, that individual human beings not only can, but must, be understood apart from society. The fundamental characteristics of men are not products of their social existence. Rather, in affording the motivations that underlie human activity in the state of nature and that are expressed in natural hostility, they constitute the conditions of man’s social existence.⁸

From this, Gauthier advances the interpretative