3.1 What is equal public standing?

Kant distinguishes between two notions of legal equality, or equal public standing, in a system of public right: persons are equal subjects before the law or equal authors of the law. All persons are equally subject to state coercion in the enforcement of the law. As equal juridical subjects before the law, they are rights-bearers whose interests the state must represent and to whose laws they hypothetically consent. Equal juridical subjects cannot be compelled to ‘recognize … any superior with the moral capacity to bind them as a matter of right in a way that they could not in turn bind the other’ (MM, 6: 314). As equal authors of the law, persons assume a public normative authority that authorizes them to influence the political process, hold office and vote (ibid.). They enjoy the normative ideal of freedom as self-mastery that I discussed above. To wit, they stand as masters over their own lives through the joint administration of political power, which enables them to control the background institutional conditions of their existence. Kant warns, however, that being an equal subject before the law does not entail that one stands as an equal author of the law. For him, the innate right to freedom excludes the political right to govern that permits all persons to participate in public will formation as civic equals.

Kant’s rationale for political exclusion rests on a notorious model of citizenship that distinguishes active from passive citizenship, perhaps the weakest element of his mature political philosophy. Active citizens have the ‘essential’ attributes of freedom, equality and independence (MM, 6: 315): ‘The attribute of civil independence’ is that ‘of owing one’s existence and preservation to one’s own rights and powers as a member of the commonwealth, not to the choice of another among the people’ (6: 314). Active citizens have civil independence in that their ‘existence and preservation’ does not rest ‘on the will of another’ (6: 315). Rather their de facto access to capital enables them to enjoy forms of employment, in which they can sell goods on the market, rather than being forced to sell their labour power (Pascoe Reference Pascoe2022; Moran Reference Moran2021; Hasan Reference Hasan2018). Their independence from the direction of another as labourers positions them as sui juris agents. Active citizens are, then, authorized to represent their own interests in the public sphere (6: 314). They acquire a ‘civil personality’ through their use of the ballot, public office and public reason in the form of the written word and public debate (6: 315). Active citizens enjoy positive rights and privileges as civic equals; their de facto access to political and material capital is bolstered by dependent labourers.

Unfortunately, with the exception of children, passive citizens appear to languish in relations of private dependence as second-class citizens, as in the cases of women, non-whites and wage-contract labourers. For their ‘preservation in existence (their being fed and protected) depends not on their management of their own business but on arrangements made by another’ (MM, 6: 315). Because their survival depends on their labouring under the direction of another, legal guardians who benefit politically and materially from their labour represent these ‘mere underlings of the commonwealth because they have to be under the direction or protection of other individuals, and so do not possess civil independence’ (ibid.). Worse still, Kant does not regard private dependencies as miscarriages of justice, claiming passive citizenship is compatible with a juridical notion of equality in public right (Recht). All persons are ‘natural’ moral equals by virtue of their rational humanity, yet civil independence alone grants one public standing to rule as a civic equal – and there is no imperative to arrange for the equal civic standing of all persons. On the contrary, on his original account of a just state (Rechtsstaat), large sections of the populations subject to coercive state power are excluded from the public sphere. So long as persons’ ‘natural rights’ are not violated, he reasons, they are equal juridical subjects who can remain mere associates of the commonwealth without an active role in government (ibid.). Kant views all persons as ‘natural’ moral equals before the law, even as he appeals to notions of ‘natural’ social inferiority that bar groups’ civil independence (Kleingeld Reference Kleingeld2019: 6). A woman’s ‘natural’ moral equality is somehow consistent with the ‘natural’ inferiority of her gender, which demands she submit to the needs of the family at her intellectual and political death. One’s social identity, then, delimits one’s entitlement to equal civic status. It also showcases why the suppression of one’s civic standing nonetheless confirms that one can be said to have equal public standing consistent with an ideal of right. In denigrating certain groups as natural social inferiors, Kant demarcates the civic status that a person of that social background might hope for.

Consider that as unpaid domestic labourers women are tools for the reproduction of the household, just as a wage labourer is a tool for the accumulation of capital by the owners of the means of production.Footnote ⁴ Gender identity rationalizes the civic subordination of dependent labourers. A male labourer whose economic exploitation makes possible the civic standing of other wealthy men cannot access political power, but he can still enjoy command over his own household, so much so that in time he can come to benefit from the care-work in his own household, as well as from other wage labourers. Race complicates the rationalization of civic subordination. White women can more readily escape care-work obligations by hiring women of colour who are, as a consequence, triply vulnerable as dependent labourers: they are forced to sell their labour power, carry on the reproductive labour in the household of their employers and often remain primary care givers in their own households (MM, 6: 276–83). Exploitive labour relations constitute nested spheres of private dependence, with women of colour standing at the very bottom rung to bolster the civic status of whites through their socially necessary reproductive labour.

The theory of exploitation that I suggest here captures the fact that dependent labourers suffer the denigration of their social identity, which informs both the perceived value of their labour and their civic status. Their labouring activity, on the one hand, prevents their participation in the formal public sphere and, on the other hand, buttresses the civic status of those who materially benefit from it. Kant’s original model of public right is thus parasitic on the exploitation of dependent labourers. It positions women and women of colour as especially vulnerable to languishing under dominating power relations. Their civic subordination as a ‘natural’ social inferior is expressed through their economic exploitation in civil society and the family. Social denigration bolsters the civic status of some who happen to have de facto access to capital and political power on account of belonging to a more esteemed social group. The exploitation of labour thus betrays a relation of civic inequality among groups. In the next sub-section, I consider how to rework the system of public right using the ideal of civic equality, so that all persons regardless of their social background can come to enjoy independence as sui juris agents. The ideal of civic equality must intervene in the background institutional conditions that exploit labourers; the de facto access to capital that supports the civic status of men and white men in particular is inconsistent with justice. Pace Kant, I posit that a just republic cannot include passive citizens. For ‘the end of securing independence is constitutive of the concept of right itself’ (James Reference James2016: 303). On my view, private dependence among labourers requires state-led corrective measures that actualize the ideal of civic equality for all. Otherwise a system of public right will have embedded within it dominating power relations that only allow a parasitic minority to enjoy civic standing at the expense of others.

3.2 Can the ideal of civic equality undo structural domination?

The ideal of civic equality is a requirement of justice that should support the civil independence of all persons as active citizens (Holtman Reference Holtman2018). Our natural moral equality should entail a political right to control the institutional conditions of our existence (Love Reference Love2017: 587–90; Wood Reference Wood2014: 84). There are at least two reasons why the ideal of civic equality is essential for undoing structural domination: (1) it guides a political process of social justice reform to intervene in exploitive labour relations that Kant lets fester in a system of public right and, relatedly, (2) it showcases the complicity of the state in creating second-class citizens.

With respect to (1), the ideal of civic equality ensures that all persons stand as effective authors of the law, not mere passive associates of the state. Equality before the law must give all persons the equal public standing to hold political power as civic equals. The subjects of the law must be its rightful authors. In other words, the ideal of civic equality is just that: an ideal to which society should aim, rather than a privilege that some enjoy in the light of their de facto access to capital granted by their favoured social identity. One cannot assert self-mastery – and effectively bind another’s power of choice – unless one already enjoys civil independence. The state should therefore protect the equal public standing of all groups to command political power by virtue of persons’ innate right to freedom. In this way, the ideal of civic equality promotes the qualitative transformation of one’s formal relation to one’s civic fellows in a political process of social justice reform. Additionally, the ideal of civic equality would be meaningless if persons did not apply it to disrupt exploitive labour practices that create private dependencies. Without a critique of exploitive labour, the only persons who would enjoy active citizenship are those who already have civil independence by virtue of their membership in a historically favoured group, which shores up their de facto access to capital and independence from the burden of care-work.

With respect to (2), recall that the domination contract does not appear ex nihilo from the state-of-nature. The concept of structural domination helps us appreciate that the ‘quality’ or ‘attribute’ of civil independence reflects background institutional conditions that produce defined social relations, sanctioned by the state, to constitute dominating power. The upshot is that, if there exists a category of second-class citizens, public institutional and social norms have created this class of passive citizens by institutionalizing exploitative labour relations. The de facto access to capital that some powerful groups enjoy from the jump is itself a form of structural domination. The state is the reason some groups lack access to the public sphere because it denies them labour conditions that secure universal civil independence. As Charlotte Sabourin eloquently puts it, passive citizenship ‘is inherently political and, in the case of women, [people of colour, and wage labourers], takes the form of a legal subjection preventing’ members of these groups from achieving civil independence (Sabourin Reference Sabourin2021: 252; cf. Pascoe Reference Pascoe2022). Public institutional arrangements, in effect, coerce vulnerable groups into becoming dependent labourers. The ideal of civic equality demands, instead, that the state intervene in exploitive labour relations for the sake of freedom for all. How might it do this?

3.3 State-sponsored poverty relief initiatives

Kant counsels that a just state must not prevent second-class citizens from becoming active citizens but says little about how the state should promote the ideal of civic equality in civil society. He notes that second-class citizens can work themselves up into active citizens:

He neglects to theorize, however, what sorts of state-backed measures can undo structural domination, which the state had help establish in the first place through the exploitation of women’s and people of colour’s labour.

Recent Kant scholarship defends the role of the state to help persons achieve civil independence, but unfortunately it neglects a critique of exploitation. For passive citizens to secure civil independence, many Kant scholars argue that, at a minimum, the state must advance anti-poverty legislation and basic equality of opportunity (Varden Reference Varden2014: 251; Holtman Reference Holtman2018: 3). The satisfaction of persons’ basic needs prevents their reliance on charity to survive. So long as public office is open to all, quality public education is accessible and extreme poverty is eradicated, then a minimally just state can be said to support the civil independence of all. Yet state-sponsored poverty relief initiatives alone, even given ‘equality of opportunity’, cannot achieve the ideal of civic equality. When it comes to undoing structural domination, too much is assumed here regarding the contribution of providing a thin (or a thick) bundle of material goods as part of a social welfare scheme. As I see it, there are at least two problems with this materialist emphasis, demonstrating the extent to which social welfare measures are necessary but insufficient for justice.

First, passive citizenship primarily attacks one’s civic status, not one’s social welfare or well-being, however much it also hurts the latter. Though it is vital for a person’s basic needs to be met, the manner in which public institutional arrangements meet them mediates a person’s civic standing. We must pose the deeper question of whether poverty relief programmes can undo structural domination with respect to exploitive labour relations. Unfortunately, the welfare state is consistent with the domination contract. The crucial satisfaction of basic needs does not by itself transform the background institutional conditions that disproportionately lock women and people of colour into structural domination as dependent labourers (Fraser Reference Fraser2016). They continue to languish as secondary citizens, remaining vulnerable to dyadic domination as dependent labourers who are unable to hold any public normative authority over the conditions of their existence but must instead acquiesce to the demands of employers and the market. Perhaps a small percentage can use their newfound opportunities to access civil independence and, ultimately, meaningful political power to freely define their lives. However, the vast majority of women and historically oppressed racial groups would remain subject to the domination contract. Jordan Pascoe and Dilek Huseyinzadegan observe that a successful white woman will hire immigrant women of colour as care workers, so as to enjoy her newfound independence (Pascoe Reference Pascoe2022; Huseyinzadegan and Pascoe Reference Huseyinzadegan, Pascoe, Lettow and Pulkkinen2023). The public administration of material goods alone does not improve an immigrant woman’s subordinate social status that makes her vulnerable to hunger, poor compensation, poor health and limited and unrewarding job prospects.

Second, Kant’s freedom-based model of justice avoids outlining social welfare rights that should underwrite the coexistence of free choice. A republic that prioritizes the satisfaction of material interests above establishing rightful relations among civic fellows is unjustifiable. Kant’s theory of justice cannot endorse a welfare state that forgoes the public recognition of persons’ equal public standing as civic fellows to command political power in exchange for maximizing their happiness or material goods. Even an enticing bundle of goods should not compel anyone to forego their rightful moral claim to achieve substantive freedom as sui juris agents. Remember the state is not an extremely powerful and efficient tool for tracking persons’ aggregate interests (MM, 6: 318).

The promise of Kant’s theory of justice is not his thin account of which social welfare rights should count as ‘basic’ because they might translate into effective civic standing. Given the historical hold of the domination contract on modern republics, we have cause to doubt that social welfare policies will reliably increase the political power of the oppressed (Pascoe Reference Pascoe2022). On the contrary, the modern welfare state has historically functioned to entrench racial and gender inequalities (Basevich Reference Basevich2022: 32). Notwithstanding the historical failures of the welfare state, there is a more worrisome philosophical issue at hand here. Kant scholars are in the strange position of listing bundles of social welfare rights, as if we can reach a tipping point of enough food, medicine and clothes to entail freedom for all. The promise of Kant’s political thought is that it helps us appreciate that any material claim to redistribution and resources should primarily aim to actualize an equal social relation among civic fellows. Redistribution efforts that neglect the qualitative transformation of civic relations will fall short of justice, as they tend to incubate dominating power relations instead, especially in the organization of reproductive labour.

Again, justice requires not mitigating external interference, so that it happens less often or with less disastrous consequences. Nor does it mean satisfying a minimal baseline of social welfare.Footnote ⁵ Justice requires undoing the institutional conditions that prevent some groups from reciprocally binding others as civic equals in the public command of political power. It is therefore essential that reform efforts position labourers as public authorities about their economic plight. The input of the dominated assists in the determination of what even constitutes a violation of external freedom. For example, dependent labourers have cause to demand cooperative ownership of their workplace and the means of production, as well as state protection of racially integrated unions, rather than remain content with welfare cheques and the ‘fair’ opportunity to attend elite schools or climb a corporate ladder.

4.1 Rethinking property rights

Kant’s original theory of justice emphasizes that access to capital best positions one to enjoy civil independence. Unfortunately, as Love, Wood and many others have noted, Kant’s defence of property neglects to assail the relations of private dependence that it seems to presuppose. And yet, his defence of property rights also shows why capital is the foundation of civil independence that translates into reliable political power: the public administration of property rights is the crux of Kant’s theory of justice precisely because of its influence on the character of civic relations (MM, 6: 261). The upshot is that a state committed to actualizing the ideal of civic equality is authorized to establish a scheme of property rights to ensure that none languishes in private dependence. I suggest two ways for reimagining property rights to secure universal civil independence.

First, the state should support labourers’ right to housing. Women and women of colour are disproportionally vulnerable to structural domination because they do not own a home. As heads of single-family households, women often stay in abusive relationships, drop out of school and accept poverty wages for fear of homelessness for themselves and their children. Barbara Herman explains that ‘some things over which there are property rights … are necessary for our having civic standing and for the exercise of our rights generally. The right to housing is the form of our juridical abode’ (Reference Herman2021: 198–202). She adds, ‘unhoused persons do not have a civic existence’ (p. 199). We can extrapolate from Herman’s critical observation to think more expansively about the background institutional conditions that make possible our civic existence and should thus stand as indispensable civic rights expressing our independence (Messina Reference Messina2021; James Reference James2016).

In the US there is a strong historical precedent for the state to intervene to redistribute land and housing-stock through low-interest, federally backed mortgages, but these initiatives have benefited white male-led households; and they were also premised on westward colonial expansion. An alternative scheme of housing rights is crucial in the aftermath of economic crises that have left many without homes or housing insecure. Indeed, renewed calls for reparations for black chattel slavery and Jim Crow seek compensation for black homes and business destroyed by white mobs and discriminatory housing practices (Fisette Reference Fisette2022). These calls stand as a litmus test for the future development of a theory of justice that can undo the domination contract.

Second, the cooperative ownership of the means of production by productive labourers mitigates civic subordination. Authoritative control over one’s own labour power gives one civic status as a person whose work has dignity and should be the material basis for reciprocal command of political power. Pace Kant, we cannot condone the existence of ‘underlings’ whose socially necessary labour makes possible the existence of modern society but who have no say in the political destiny of the community. Instead, we have to rethink the organization of productive labouring activities that position labourers in a role consistent with their self-mastery as civic agents. For example, Nicholas Vrousalis explains that realizing the republican ideal of independence in the workplace entails workers (1) controlling the conditions of production in their workplace and (2) assuming political control ‘over the conditions of production in the economy as a whole’ (Reference Vrousalis2019: 259). Labourers’ joint ownership of the capital requisite for the production process secures their structural independence and better positions them as civic equals in the public sphere.

4.2 Defending the public provision of care-work

Exploitive reproductive labour practices disproportionately burden women and women of colour. To alleviate their hardship, the state should regard the public organization of care-work as also essential to our civic existence. To be sure, adults should retain custodial authority in the home. However, because care-work is indispensable for maintaining a household, the absence of public support for this essential labour in effect coerces women into becoming dependent laborers. Access to quality day- and elder-care is critical for liberating women from burdensome domestic responsibilities. Care-work must be publicly recognized for its integral role in human life and compensated as such. Additionally, public provisions for care-work should be integrated along racial and gender lines. White men are more likely to garner the political will to organize and compensate care-work fairly, and to regard labourers who execute it as civic equals, if they are also expected to take responsibility for it as reproductive labourers in civil society. In other words, the public administration of care-work should take it outside of the household; it is socially necessary labour that requires extensive public planning akin to the construction of public schools and hospitals. The occupational desegregation of care-work professions dominated by women and immigrants, increased compensation, as well as effective and integrated unions, are just some viable options for a Kantian theory of justice to consider.