13.1 Introduction
The resurging interest in the republican tradition of legal and political theory – thanks largely to Quentin Skinner and Philip PettitFootnote 1 – has shed new light on Immanuel Kant’s conception of freedom, revealing that it is best understood along republican lines.Footnote 2 The discussion of Kant’s republicanism to date, however, has focused on what he calls the ‘negative’ conception of freedom. This is the conception of freedom as defined in terms of the absence of something, that is, as consisting in ‘independence’, ‘non-domination’, and ‘not being subject to another master’. What has received much less attention is Kant’s ‘positive’ conception of freedom, that is, his definition of freedom in terms of the presence of something else, and the relation between these two conceptions has hardly been examined.Footnote 3
This terminology of ‘negative’ and ‘positive’ conceptions of freedom is Kant’s own (e.g. GMS 4:446; RL 6:213), and in discussions of his account of freedom of the will the distinction between negative and positive conceptions of freedom is well known. Negatively conceived, he describes freedom of the will as its independence from compulsion by the impulses of sensibility (e.g. KrV A 534/B562; GMS 4:446; RL 6:213). Positively conceived, he describes it as the will’s being subject to its own legislation (eigene Gesetzgebung, GMS 4:440, 447, 450; KpV 5:33).Footnote 4
Although it has not received much attention, we find the same distinction in Kant’s Metaphysics of Morals. In the Doctrine of Right, external freedom conceived negatively, as independence from compulsion at the private discretion of another, is distinguished from freedom conceived positively, as being subject to one’s own legislation. Positively conceived, the freedom of a citizen of a republic consists in the ‘legal attribute’ of ‘obeying no other law than that to which he has given his consent’ (RL 6:314; ZeF 8:350n.).Footnote 5 Kant here defends a notion of freedom that is akin to that articulated by Jean-Jacques Rousseau, who writes in the Social Contract that ‘obedience to the law one has prescribed to oneself is freedom’.Footnote 6
One reason why Kant’s positive conception of freedom has not received much attention in discussions of his political philosophy is the fact that he does not flag it as such; another may be Isaiah Berlin’s influential critique of the perversions of the ideal of ‘positive liberty’, which gave the ideal itself a rather bad reputation.Footnote 7 Kant’s distinction between the negative and the positive conception of freedom does not map onto Berlin’s distinction between negative and positive liberty, however.Footnote 8 Berlin uses the term ‘negative liberty’ for the absence of interference or coercion limiting the actions open to individuals. He uses ‘positive liberty’ to refer to the ability to pursue and realize one’s fundamental purposes, individually or collectively. Berlin tends to see negative and positive liberty as rival political ideals. As I explain below, for Kant, by contrast, freedom negatively conceived consists not in the mere absence of interference or coercion but in independence from interference and coercion at the discretion of other individuals. Freedom positively conceived consists in being subject to one’s own laws, in contrast to laws imposed by another. Furthermore, for Kant these are not two different kinds of freedom (let alone rival kinds) but two aspects of one and the same condition, namely external freedom.
In this chapter, I argue that Kant’s positive conception of external freedom plays a crucial role in his theory of right because freedom in the negative sense requires and is realized by freedom in the positive sense. I also show that this applies to each of the three branches of public right – state right, international right, and cosmopolitan right. I first examine the content and status of the innate right to freedom (Section 13.2). I then show how Kant’s account of the innate right to freedom as independence relates to his positive conception of freedom: mutual independence requires and is realized by joint self-legislation (Section 13.3).
13.2 The Innate Right to Freedom
13.2.1 Kant’s Conception of Freedom as Independence
In the Introduction to the Doctrine of Right, Kant argues that all human beings have one and only one right simply by virtue of their humanity, independently of any juridical act. This is the right to external freedom, that is, freedom in the sphere of interaction with others. He calls this right ‘original’ and ‘innate’, to distinguish it from ‘acquired’ rights, and formulates it as follows:
Freedom (independence from being compelled by the choice of another), insofar as it can coexist with the freedom of every other in accordance with a general law, is the only original right belonging to every human being by virtue of his humanity.
The parenthetical negative definition of freedom as ‘independence from being compelled by the choice of another’ places Kant clearly in the republican tradition of thinking about freedom. In this tradition, freedom is defined neither in terms of a particular substantive entitlement (say, a right to property) nor as the mere absence of interference and compulsion by others. Rather, freedom is defined in terms of a particular quality of your relation to others. It is the condition of not being subordinate to others who have the unilateral power to compel you at their private discretion (that is, compelled by their choice in the sense of it being at their discretion, not in the sense of randomness or caprice). This is why, in the republican tradition, freedom is opposed to slavery, dependence, domination, despotism, and similar relations with asymmetrical power structures.
Note that on this conception of freedom, it is possible for you to be unfree even when de facto you can do what you want without interference or compulsion by others. This is illustrated by the fact that the unfreedom of enslaved persons is not restricted to the moments when their masters make active use of them. If the master grants them a break or temporarily refrains from giving orders, this does not mean they are free. They are still enslaved, and it remains up to the master alone to decide whether and when they are to resume their activities. Thus, if your ability to do what you want is subject to the discretion of another person who has unilateral power over you, then you are not free in the republican sense of the term. Within the republican tradition of political theory, other relationships with asymmetrical power structures similar to that between master and slave also count as forms of unfreedom – such as the relationship between a colonial power and the colony under its jurisdiction, or that between a despot and their subjects.
The republican background of Kant’s conception of freedom helps to explain the sense in which individual freedom has limits. Kant writes that the innate right is a right to freedom insofar as it can coexist with the freedom of every other in accordance with a general law. This locution does not mean that your freedom is somehow reduced by the freedom of others. You have a right to full independence from being compelled at others’ discretion. This does not include a right on your part to compel others at your discretion, however, and this is the sense in which your innate right to freedom is limited by that of others.
Immediately after introducing the innate right in the Introduction to the Doctrine of Right, Kant highlights two implications. The first is that the innate right to freedom is at the same time a right to equality. The two are ‘not distinct’, he claims. The innate right is a right to:
innate equality, that is, independence from being bound by others to more than one can in turn bind them; hence a human being’s quality of being his own master (sui iuris), as well as being a respectable human being (iusti) […].
Kant here explains freedom in terms of a relation of equal and reciprocal independence. Freedom does not mean that you are not subject to any constraints or obligations. Rather, it means that you are not asymmetrically subject to constraints or obligations that stem from the unilateral power of others.Footnote 9 If others have the power to impose obligations on you, then your freedom requires that you have equal power to impose obligations on them. Hence the right to innate equality also means that, by birth, no one has a lower social standing (rank, estate, class, caste) than any other.
The second implication that Kant highlights is that the innate right includes the right to attempt to engage in interaction with others, on the condition that this initiative does not deprive others of what is theirs without their consent. He describes a person’s innate right as:
the authority to do to others anything that does not in itself diminish what is theirs if they do not want to accept it – such things as merely letting them know his thoughts, telling them or promising them something […].
Thus, the innate right to freedom is not a unilateral right to get others to interact or cooperate with you; it is not a right to involve others in your private projects. You have the right to approach others, to speak to them, and to attempt to initiate interaction, as long as you do not already wrong them in doing so.
Kant’s negative description of freedom as independence from compulsion by others, in his formulation of the innate right, does not contain a positive characterization of the proper forms of interaction among free individuals. This raises the question: How can they interact without violating each other’s right to independence? Kant’s positive account of external freedom answers this question.
To anticipate, the key to understanding Kant’s positive conception of freedom is the requirement, expressed in the formulation of the innate right, that the right of each coexists with the right of all others ‘in accordance with a general law’. As mentioned, the innate right of each extends no further than what is compossible with the same right on the part of all others. Securing everyone’s independence from discretionary compulsion by others therefore requires general principles that apply to all, and this in turn requires establishing a state with general coercive laws. Now if these laws were unilaterally imposed by some on others, this would be inconsistent with the others’ right to independence. Hence, Kant argues, the laws of the state must be jointly self-given by the citizens. Thus, the realization of external freedom in the negative sense (individual independence) requires and is realized by freedom in the positive sense (citizens’ self-legislation). Or so I will argue.
Before turning to this argument, however, I first address a worry concerning the role and status of the innate right to freedom. It has seemed to several authors that this right has only a small role to play. On the view I defend, by contrast, it is the most important and most fundamental right in Kant’s Doctrine of Right and grounds the entire system of rights. This is why the scope and status of the innate right must be clarified first.
13.2.2 The Scope and Status of the Innate Right in Kant’s Doctrine of Right
Kant introduces the innate right to freedom in no more than a paragraph. In the rest of the book, he offers lengthy discussions of the various types of acquired rights, such as property rights, contractual rights, status rights, and civil rights. As a result, the innate right may seem little more than a ‘starter’ without a further role to play in the Doctrine of Right as such. Katrin Flikschuh, for example, has argued that the innate right is merely a formal precondition for acquiring substantive rights, with no other scope or content than that of allowing the emergence of acquired rights. She claims that the innate right itself is ‘empirically non-instantiable’ and lacks any substantive content of its own.Footnote 10
Others have argued that the innate right does have a substantive domain of its own, namely a limited right to one’s own body. Japa Pallikkathayil, for example, has argued that Kant acknowledges a right to one’s own body – albeit a limited right that does not include, say, the right to sell one’s body parts – and that this is plausibly innate rather than acquired.Footnote 11
Kant does not explicitly limit the innate right to a merely formal precondition for acquiring rights, however. As shown in the previous section, his description of the innate right – for example, his claim that it includes a right to approach others – indicates that he saw it as implying certain substantive entitlements. Furthermore, although it is plausible that he endorses everyone’s (limited) right to their own body – say, to defend it against illegitimate attacks – and that he would regard such a right as innate, he does not restrict innate right to the right to one’s body.
Others, including Arthur Ripstein, Sharon Byrd and Joachim Hruschka, Bernd Ludwig, and Philipp-Alexander Hirsch, defend a third interpretation, namely that the innate right to freedom under general law is the most fundamental right, the right that normatively governs the acquisition of any other rights – that is, the right that provides the norm for all acquired rights. On this interpretation, the innate right is indeed a precondition of any acquired rights, but it is not non-instantiable. Rather, it is the basic right that is to be fully realized by the entire system of rights.Footnote 12
On this issue I agree with Ripstein, Byrd and Hruschka, Ludwig and Hirsch. There is strong textual evidence in support of this reading. This evidence is found not just in Kant’s argument for the moral necessity of establishing a juridical condition, but also, and more importantly, in the argument that precedes the formulation of the innate right in the Introduction to the Doctrine of Right.
An overview of the steps of the latter argument reveals that it yields all the elements contained in the formulation of the innate right. Kant formulates the ‘General Principle of Right’ (allgemeines Princip des Rechts) and, on its basis, the ‘General Law of Right’ (das allgemeine Rechtsgesetz) in the form of a categorical imperative: ‘Act externally in such a way that the free use of your faculty of choice (Willkür) can coexist with the freedom of everyone in accordance with a general law’ (RL 6:231). This imperative tells you to act in such a way that your actions can coexist with the external freedom of everyone in accordance with a general law, that is, in accordance with a law that applies equally to all. Kant subsequently argues that since, as a matter of right, your external freedom is restricted in this way, others have the authority to prevent you from infringing on theirs: to the relevant extent, your freedom ‘may be actively limited by others’ (RL 6:231). Kant then argues that having a ‘right’ and having the ‘authority to coerce’ are equivalent (RL 6:231–2). On the basis of these steps, he concludes that right ‘is grounded on the principle of the possibility of external coercion that can coexist with the freedom of everyone in accordance with general laws’ (RL 6:232).
Taken together, these steps imply the innate right to external freedom. If, as Kant argues, (1) everyone has the authority coercively to prevent others from infringing on their freedom, (2) this authority is equivalent to having a right to freedom, and (3) everyone’s freedom must be able to coexist with the freedom of all in accordance with a general law, then it follows that everyone has a right to freedom to the extent that it can coexist with the freedom of everyone in accordance with a general law. In other words, the argument in support of the innate right to external freedom is found in the Introduction. Kant’s argumentation is brief and clearly calls for further analysis, but for the purposes of this chapter the relevant point is merely to explain why he may not have seen a need to explicate and defend the innate right in the paragraph in which he formulated it: in essence, he had already done so.
According to this reconstruction, the innate right is not a merely formal precondition for rights nor a limited right to one’s body. Rather, being based directly on the General Law of Right, it is the most fundamental right. It animates the entire system of right.
13.2.3 How to Acquire Rights without Dominating Others
According to Kant, acquiring and owning something external means being entitled to constrain the conduct of all others with regard to it: it means being entitled to prevent them from taking or using it. But is it possible to constrain the conduct of others in this way without compelling them at one’s own discretion, that is, without violating their innate right to freedom? If so, how?
In the state of nature, Kant argues, this is indeed impossible. The problem with the state of nature is not just a matter of human nastiness. Irresolvable disagreements will arise even among friendly, upright, and reasonable people. In the Feyerabend Lectures on Natural Law from 1784, Kant gives the following example: if, in the state of nature, he shoots a wild animal and it runs onto someone else’s land and dies there, he may believe he has the right to retrieve it, but the other person may claim that it belongs to him because it is on his land (V-NR/Feyerabend 27:1337). They each have grounds for claiming that the dead animal is theirs: Kant because he shot it, the other because he found it on his land. Whoever unilaterally imposes his will on the other, however, violates the other’s innate right.
To solve this structural problem endemic to the state of nature, there needs to be a general positive law that covers such cases. Kant reportedly explained: ‘I do wrong to others if I wanted to make my will into their law, hence I am obligated to subject myself to an external law that is valid for everyone’ (V-NR/Feyerabend 27:1338).
In the Metaphysics of Morals, Kant develops this point in more detail, explaining that even ‘good-natured and right-loving’ people (RL 6:312) ought to leave the state of nature and enter a civil condition, that is, they ought to subject themselves to general laws, law enforcement, and impartial arbitration.Footnote 13 Having something external as mine entails obligations on the parts of others, such as the obligation not to take it or use it without my permission. Kant argues that this is possible – without violating the freedom of others – only under general laws (RL 6:255–6). In order for an owner’s entitlement not to boil down to the authority to compel others unilaterally, that is, for the owner’s freedom to be compatible with the freedom of others, the entitlement must itself derive from a ‘general’ or ‘omnilateral’ authorization by the united citizens, expressed in a general law (RL 6:245–57). Or, to use Ripstein’s apt terminology, rightful unilateral acquisition requires omnilateral authorization.Footnote 14
This explains why Kant writes that ‘it is possible to have something external as one’s own only in a rightful condition, under a public-legislative power, that is, in a civil condition’ (RL 6:255). In the state of nature, there can be ‘only provisional’ possession (RL 6:256). This applies to each of the three kinds of objects to which one can acquire rights: (1) material objects (things I own), (2) the substance of contractual agreements (that which others have promised me), and (3) persons to whom I stand in certain status relations (which Kant revealingly describes in terms of a person’s being ‘my wife’, ‘my child’, or ‘my domestic servant’, as part of ‘my belongings’, RL 6:248; for discussion see Section 13.3.2).
Kant’s account raises the question, of course, where the required general laws are to come from. Clearly, the laws in the state must not stem from the unilateral imposition of some people’s wills on others. This would yield a despotic state, and it would violate the innate right to freedom.
In Section 13.3 I show that Kant’s considered answer is that the united citizens themselves should legislate and that freedom conceived positively consists in being subject to one’s own legislation. Or, more precisely, this is the answer Kant gives starting with Towards Perpetual Peace (1795) and the Metaphysics of Morals (1797). According to Ripstein, by contrast, Kant holds that state officials should take up a general (omnilateral) perspective and give to the people laws that the people could give to themselves. In what follows, I shall frequently refer to Ripstein’s account, since he offers the most comprehensive, detailed, and philosophically astute discussion of Kant’s republicanism. Like most others who discuss the topic, however, Ripstein focuses entirely on Kant’s negative conception of freedom as independence.Footnote 15 By comparing his interpretation to the one I propose in this chapter, I aim to clarify the important role Kant attributes to the positive conception of freedom as joint self-legislation.
Furthermore, I argue that this positive conception of external freedom structures not only Kant’s account of the state but each of the three levels of public right in the Doctrine of Right. Only once a rightful condition exists at the levels of the state, international right, and cosmopolitan right can rights be definite and secure (‘peremptory’) (RL 6:266, 311; ZeF 8:349n.).
13.3 Freedom and Public Right
13.3.1 Independence and Self-Legislation in the republic
The question raised at the end of the previous section was how individual ‘independence from compulsion by the choice of others’ (the innate right to freedom) can be secured through laws without introducing new forms of unfreedom in the process, namely domination by those giving the laws.
One answer found within contemporary republican theory is that the state should ensure non-arbitrary rule, without this requiring self-legislation by the people. Philip Pettit, to mention one prominent example, has argued that democratic participation has some instrumental value but is not valuable in and of itself. Pettit distances himself from what he calls the ‘populist’ view that freedom consists in democratic self-rule, a view which he associates with Rousseau and Kant.Footnote 16 The better kind of republicanism, Pettit argued in his influential 1997 book Republicanism, ‘sees the people as trusting the state to ensure a dispensation of non-arbitrary rule’.Footnote 17
On Ripstein’s interpretation, this last statement in fact comes close to Kant’s view. He argues that Kant sees it as the role of the state, and ‘state officials’, to ‘make arrangements for the people’.Footnote 18 Ripstein says very little about how these officials receive their mandate, but he seems to conceive of them as being elected. At least on one occasion he refers to ‘chosen representatives’ of the citizens who act ‘on their behalf’.Footnote 19 These officials are to give laws to the people that the people ‘could’ give themselves, laws that it would be ‘possible’ for the citizens to adopt.Footnote 20 The officials are to take up, vicariously, an omnilateral perspective and give laws that make it possible for the people to interact on terms of equal freedom.
Thus, to put it in terms of Hanna Pitkin’s influential distinction between trustee and delegate models of representation,Footnote 21 Ripstein seems to conceive of these state officials as elected representatives who act as trustees to whom the citizens have outsourced the business of legislation – not as elected delegates through whom the citizens themselves give laws. Ripstein does not describe the citizens as legislating. He consistently describes the task of the state officials as that of giving to the people laws that the people could give themselves.
When introducing this view, Ripstein quotes a passage from ‘What Is Enlightenment?’ (1784), in which Kant writes: ‘The touchstone of whatever can be decided upon as law for a people lies in the question: whether a people could impose such a law upon itself’ (8:39, emphasis added).Footnote 22 In the Feyerabend Lectures on Natural Law from the same year, Kant makes similar claims (V-NR/Feyerabend 27:1382). Neither in ‘What Is Enlightenment?’ nor in the Feyerabend Lectures, however, is there any indication that Kant argues that legislation ought to be enacted by elected representatives. Thus, the role Kant attributes to the people seems significantly weaker than Ripstein assumes it is. Kant seems to present this ‘touchstone’ as a normative criterion for autocratic rulers. He presents the rulers as ‘representing’ the people (V-NR/Feyerabend 27:1382), but without suggesting that these rulers should be elected by the citizens.Footnote 23
By the mid-1790s, however, Kant’s position has changed significantly, and he now attributes a much stronger role to citizens than Ripstein claims he does. In Towards Perpetual Peace and the Metaphysics of Morals, Kant explicitly emphasizes that laws should be adopted by the citizens. He defends the separation of powers and argues that this requires a representative system in which different subsets of citizens are active in the different branches of government (RL 6:313–17, 341).
It is not hard to see why, philosophically speaking, it made sense for Kant to introduce the requirement of actual self-legislation.Footnote 24 If the people must obey laws that are unilaterally imposed on them by an unelected ruler, then strictly speaking this ruler is a despot, no matter how enlightened and benevolent. Whatever an enlightened despot decides, he unilaterally decides which law to impose on the people (even if he chooses from among laws the people could give themselves). In such cases, the people are subject to the compulsion of another who binds them through his choice, without their having the reciprocal power to bind him. This asymmetry is precisely what Kant, in the Metaphysics of Morals, describes as a violation of the innate right to freedom under general laws (see Section 13.2.1).
Accordingly, in the Doctrine of Right Kant now argues that the right to freedom requires that the united people give themselves the laws to which they are subject:
When someone decrees something over another [etwas gegen einen anderen verfügt], it is always possible that he thereby wrongs the other, but he can never do wrong in what he decides about himself […]. Therefore, only the concurring and united will of all, insofar as each decides the same thing for all and all for each, and hence only the general united will of the people can be legislative.
He now emphasizes that ‘the only qualification for being a citizen is being fit to vote’ (RL 6:314) and that the laws should ‘spring from [the citizens’] own legislating will’ (RL 6:316; cf. SF 7:91). The ideal representative political system is what Kant calls a ‘genuine’ or ‘pure republic’, and he claims that this is ‘the only constitution that accords with right’ (RL 6:340). Here citizens are ‘united for the purpose of legislation’ (RL 6:314), and they have the right ‘to manage the state itself as active members of it, to organize it or to cooperate for introducing certain laws’ (RL 6:315). In a genuine republic every citizen is a ‘co-legislating member’ of the body politic (mitgesetzgebendes Glied, RL 6:345, also 6:335).
This normative ideal of joint co-legislation by the citizens is clearly quite different from Kant’s earlier defence of the unelected enlightened ruler who was to give laws to the people that the people could give themselves. Moreover, his terminology of the citizens as ‘co-legislators’ and laws being given ‘by the citizens, by means of their delegates’ (RL 6:341; cf. ZeF 8:352–3), presents elected representatives as delegates who are the voice of the citizens themselves, rather than as trustees to whom citizens transfer the task of legislation (which is how Ripstein presents them).
Kant conceives of the co-legislating citizens as free in a positive sense, that is, as being subject to their own legislation. As mentioned at the beginning of this chapter, he describes the freedom of the citizen as the ‘legal attribute’ of ‘obeying no other law than that to which he has given his consent’ (RL 6:314). In Towards Perpetual Peace, he similarly describes ‘external (rightful) freedom’ as ‘the authority to obey no external laws other than those to which I have been able to give my consent’ (ZeF 8:350n.).Footnote 25 By calling freedom a ‘legal attribute’ and an ‘authority’, he indicates that his point is not that the freedom of citizens consists in their following the law.Footnote 26 The contrast case is not disobedience but despotism. The freedom of the citizens consists in their not having to obey laws given by another but those given by themselves.
We can now see that the two conceptions of freedom are intimately connected. As long as you must obey laws that are imposed on you by someone else at their discretion, you are not free in the negative sense. Freedom in the negative sense – independence from compulsion by the choice of others – is possible and secure only through everyone’s subjection to jointly self-given laws; that is, it requires freedom in the positive sense. Only if and when the united citizens jointly give themselves the laws to which they are subject are they no longer subject to the discretionary choice of another.
Thus, the relation between freedom in the negative sense and freedom in the positive sense is not merely additive, as if you could first have mutual independence without joint self-legislation and then add it. Rather, genuine freedom in the negative sense (independence from compulsion by the choice of another) requires and is realized by freedom in the positive sense (joint self-legislation). Kant’s view is that the citizens become genuinely independent of each other by virtue of subjecting themselves to collectively self-given laws in a republican state.
In other words, for Kant the fact that the citizens of a republic are subject to coercive laws does not run counter to their freedom – on the contrary, in instituting a system in which they give themselves general laws that they must all obey, they make themselves independent of each other. They are no longer in a condition where the more powerful individuals can compel the others at their discretion: under the rule of law they are each other’s equals. Here Kant agrees with Rousseau, who claims in the Social Contract that citizens become independent of each other as they become dependent on the (jointly self-given) laws of their state.Footnote 27 Incidentally, this thought explains the otherwise rather puzzling fact that Kant sometimes groups together ‘freedom, equality, and independence’ and at other times ‘freedom, equality, and dependence’. In the first case, he is referring to independence from other individuals (RL 6:314). In the second case, he is referring to everyone’s dependence on their own laws, for example in Towards Perpetual Peace, where he describes the republic in terms of the ‘freedom’, ‘equality’, and ‘dependence of all upon a single common legislation (as subjects)’ (ZeF 8:349–50).
Kant’s argument shows that the innate right to freedom requires a genuine republic. Indeed, his description of the legal properties of citizens in a republic echoes his description of the different aspects of innate right (RL 6:237, quoted above) and articulates how this right is realized in the republic. The characteristics of the citizen are as follows:Footnote 28
Lawful freedom, obeying no other law than that to which he has given his consent; civil equality, not recognizing among the people any superior with regard to him, except one that he has the moral capacity legally to bind, just as the other can bind him; and third, the attribute of civil self-sufficiency, of owing his existence and preservation to his own rights and powers as a member of the commonwealth, not to the choice of another among the people; and hence his civil personality, not needing to be represented by another in juridical matters.
Freedom in the state is here described as subjection to public laws to which the citizen has agreed – the positive conception of freedom. Equality is again explained in terms of the citizens’ reciprocal power to impose obligations, now further specified as legal obligations. Independence is realized in the form of civil independence from the discretionary choice of others, and the right to speak for oneself is specified as civil personality in legal affairs. Thus, by institutionalizing a legal system that determines and secures the different aspects of this right, the republic realizes the innate right to freedom.
Kant’s claim that the citizen’s freedom consists in the entitlement to obey only those laws ‘to which he has given his consent’ might make it sound as if one need not obey laws to which one has not given consent. But this is clearly not his view. In fact, he is notoriously committed to the opposite view (RL 6:320). Citizens ought to obey the law regardless of how they voted. In some texts, Kant endorses the majority principle, according to which a decision of the majority counts as a decision of all (TP 8:296; cf. VARL 23:351). Kant fails to address the position of outvoted citizens in detail, however, and a discussion of the majority principle is strikingly absent from the Metaphysics of Morals.Footnote 29
Importantly, the fact that external freedom requires joint self-legislation does not imply that all positive laws passed by citizens actually realize external freedom. Although Kant does not discuss the procedural requirements for proper legislation in much detail, it is obvious that the innate right to freedom imposes normative constraints on the citizens’ legislation. Positive laws must be compatible with the innate right to freedom of all. For Kant this means that laws must be truly general. They should not, say, include exceptions on behalf of special interests (see e.g. TP 8:298n.) or usurp what belongs to minorities for the sake of majority interests.Footnote 30 In other words, Kant retains the earlier criterion that it must be possible for the entire people to adopt a law (e.g. RL 6:329). But this requirement is now a necessary condition for rightful legislation and no longer a sufficient condition. Thus, the shift in Kant’s stated position does not imply that he has dropped the earlier ‘touchstone’. Rather, he has added a further normative condition for rightful legislation, namely that laws actually be adopted by the people.Footnote 31
As a result, for a positive law to meet Kant’s requirements it is not sufficient that the citizens’ representatives happen to enact it. Kant should not be misunderstood as claiming that whatever the citizens happen to prefer is just. Any law must also satisfy the criterion (now as a necessary condition) that the entire people could impose it on itself. This criterion makes it possible to distinguish between just laws and those resulting from a despotic majority or powerful special interests. Another important reason why Kant preserved this criterion may well have been the fact that on his own account the set of citizens with voting rights was a small subset of the people, excluding all so-called ‘passive’ citizens. The ‘active’ citizens should give laws for the passive citizens that the latter could give themselves. To this issue I now turn.
13.3.2 Not All Humans Become Herren
Thus far, I have used Kant’s terminology and discussed the innate right of ‘every human being’ and the freedom of ‘the citizens’ or ‘the people’. This may give the mistaken impression that he endorses universal adult suffrage. In fact, however, he limits the full enjoyment of the human right to freedom to a small subset of adult males. Therefore, before I turn to relations among states, an important qualification is in order regarding Kant’s claim, quoted in Section 13.2.1, that ‘every human being’ has the innate right to freedom.
Kant distinguishes between active and passive citizens, as did the French Constitution of 1791. He asserts that those who depend on others for their livelihood do not qualify for the right to vote and are hence passive citizens. His examples include shop assistants, day laborers, domestic servants, children, and ‘all women’ (RL 6:314). He argues that these groups are dependent on others, whereas store owners, artisans, and heads of households are not.
Kant recognizes that the distinction might seem problematic. He admits that it seems to be at odds with his own account of citizenship and that it is hard to draw the line. He nevertheless claims that the difference in civil status is justified as long as it is possible for passive citizens to work their way up to active status (RL 6:314–15). It is not entirely clear what the precise nature of the relevant dependency relation is or why Kant sees dependence as disqualifying someone from the right to vote.Footnote 32 Nor does he explain why he argues in favour of restricting voting rights rather than in favour of abolishing social, economic, and juridical dependency relations among private individuals as far as possible – especially since the latter argument would have been more in line with the innate right to freedom of all. I leave these issues aside here, since my focus in this chapter is on the relation between Kant’s positive and negative conception of freedom, not on his political theory in general. The status of women as dependents deserves further comment, however, for reasons that will become clear.
By placing all women in the category of dependents (RL 6:314), Kant in effect denies them the possibility of ever working their way up to active status. And indeed, he claims elsewhere that women do not qualify for the right to vote because they lack an unspecified allegedly ‘natural’ prerequisite (‘that it not be a child or a woman’, TP 8:295). Nowhere does he criticize the inferior legal status of women as passive citizens or call for their emancipation.
This reveals clear tensions in the Doctrine of Right. Recall that Kant describes the innate right to freedom as a right that ‘belongs to every human being by virtue of his humanity’ and that it includes the right to equality and independence, including the right ‘to be one’s own master’ (Herr, meaning ‘master’, ‘lord’, ‘gentleman’). Yet he also claims that women are naturally unfit for the right to vote, arguing that the ‘natural superiority’ of men in promoting the common interest of the household gives a husband the right to command over his wife as her master. He writes that the law is right to say to the wife: ‘he shall be your master [Herr] (he the commanding, she the obeying part)’ (RL 6:279). Furthermore, in the Anthropology from a Pragmatic Point of View (1798) Kant again appeals to ‘nature’ in explaining why women cannot represent themselves in court (7:209).
Thus, in the Doctrine of Right women lack each of the three essential characteristics of the citizen described above. They lack the lawful freedom to obey no other law than that to which they have given consent, since they lack active citizenship; they lack civil equality, since they cannot legally bind men in the way men can bind women; and they lack civil independence, including the power to represent themselves in court. Thus, despite his claim that every human being has the right to be ‘his own master’ (sein eigener Herr) by virtue of ‘his humanity’ (seiner Menschheit), Kant simultaneously denies this right to women. In light of this, I have followed Kant in his use of male pronouns. Gender-inclusive language (‘he or she’, ‘she’, or the non-binary singular ‘they’) would be misleading and in many cases factually incorrect.Footnote 33
13.3.3 Freedom and the Republican Federation of States
Kant famously argues that states ought to leave the international state of nature (ZeF 8:354–7). Rather than advocating the establishment of an internally undifferentiated world state, however, he writes that ‘[i]nternational right shall be based on a federalism of free states’ (ZeF 8:354).
Kant’s terminology of a ‘federalism of free states’ has often been read as indicating that he advocates only a loose form of association without any coercive powers. In light of the analysis in Section 13.3.1, however, the expression as such could also refer to a federation with legislative, executive, and judicial powers. After all, he also conceives of the citizens in a republic as free. Thus, a republican federation with coercive powers could in principle be called a federation of free states – in both the negative and the positive sense of ‘free’ – if states were independent of each other by virtue of living under collectively self-given international laws.
Given the predominant emphasis in the literature on Kant’s negative conception of freedom as independence, it is not surprising that his emphasis on the ‘freedom’ of states is usually seen as evidence that he endorses only a loose league of states. In this vein, Arthur Ripstein reads Kant as rejecting an international federation of states with public laws and law enforcement. He claims that Kant defends only a voluntary league ‘for deciding disputes’, but one without any power to enforce its rulings.Footnote 34 To defend his reading, Ripstein argues, first, that ‘no “mine or yours” structure’ applies to the acquisition of state territory, since ‘the state does not acquire its territory’; consequently, ‘there is no need for omnilateral authorization of a unilateral acquisition’ and hence no need for public international law and coercive enforcement.Footnote 35 Second, Ripstein points to Kant’s claim that the federation of states should not only be entered into voluntarily but also remain ‘dissoluble’ (cf. RL 6:351), assuming, as many authors do, that the voluntary character of the federation implies that it lacks coercive laws.Footnote 36
A closer look at the texts reveals, however, that Kant does argue that states have an external ‘mine and yours’ and should join a federation with public international laws to make rights peremptory. In the Metaphysics of Morals, he writes:
[In the international state of nature] all international right and all […] external mine and yours of states is merely provisional; and only in a general union of states [allgemeiner Staatenverein] (analogous to that by which a people becomes a state) can it come to have peremptory validity and become a true condition of peace.
He claims that states ought to leave the international state of nature and enter into a condition in which their conflicts are decided on the basis of international public laws (RL 6:350–1; cf. ZeF 8:358).Footnote 37
Kant’s claim that the ‘external mine and yours of states’ requires an international legal order is not surprising given his scathing criticism of the belligerent and imperialist behaviour of the European states of his time, many of which were actively striving to enlarge their own territory at each other’s expense and to appropriate additional territory overseas. Against this background of war, conquest, and colonialism, the territorial claims of states do call for just laws on the basis of which international disputes can be settled, such that all states receive what is rightfully theirs. Such international laws should not be unilaterally imposed by a subset of states – say, European colonial powers – on the rest of the world.Footnote 38 Given Kant’s positive conception of freedom, public international laws should rather be the states’ jointly self-given laws.
This does not entail that states (or groups of states) have a right to coerce other states into a federation against their will. In Towards Perpetual Peace, Kant argues that the only way to leave the international state of nature is for states to form a voluntary federation (ZeF 8:357). This argument has often been read as inconsistent. After all, he argues that individuals do have a right to coerce each other to leave the state of nature (ZeF 8:349n.).Footnote 39 But Kant’s positive account of freedom within the republic, discussed above, clarifies why his position is not inconsistent. Given their innate right to freedom, individuals in the state of nature are entitled to coerce each other into a state with common legislation, to secure their mutual independence from each other’s discretionary choice. If states had a general right to coerce other states into a world state or an international federation, however, against the will of their citizens, the citizens would once again be compelled by the discretionary choice of another – namely, foreign states. Thus, there can be no such right, and joining an international federation should be a voluntary decision by the citizens of a state.Footnote 40 The fact that joining should be voluntary does not mean that it does not matter whether they do: Kant argues that states have a duty to work towards the ideal of a union of states (RL 6:350).
Kant ends this discussion in the Metaphysics of Morals with the claim that the federative union of states should remain dissoluble, unlike the US constitution, which prohibits secession (RL 6:351). Ripstein sees this as indicating that Kant rejects the ideal of an international federation with public laws enforced by a federal executive.Footnote 41 Kant’s rejection of the US model, however, does not concern the fact that it has a federal legislature and executive.Footnote 42 Rather, it concerns the fact that it is not a real federation, in Kant’s eyes, because it is ‘based on a state constitution [Staatsverfassung] and hence indissoluble’ (RL 6:351). It starts with ‘We the people’ – as if it were a single people – rather than with ‘We the states’ or ‘We the peoples’, and it does not grant its member states a right to secession. Kant’s claim that the federation should grant states the right to exit does not imply that he denies that it should have a federal legislature, executive, and judiciary – just as little as in the analogous case of a state and its citizens’ right to emigrate. The current example of the European Union demonstrates that the member states’ right to leave is compatible with their being subject to common coercive public laws while their membership lasts. In practice, it may be difficult to carry out – and carry out consistently – the demands of public international law, as Kant was well aware (ZeF 8:357) and as is attested by the difficulties surrounding international economic boycotts and peace-keeping efforts. But the fact that membership in the federation should remain voluntary does not entail that it should lack coercive public laws.
Why would Kant view it as important that states retain the right to exit? His positive conception of freedom, in particular the crucial role of the ideal state in securing the freedom of citizens under their own public laws, again suggests an explanation. Recall that the state is to secure individuals’ innate right to freedom under general laws, and that the international federation is in turn to secure the freedom of member states under general international laws (thus securing the innate right of the citizens who compose these member states). If the international federation were to prevent its members from leaving, it would undermine the very thing it seeks to promote, namely their citizens’ innate right to freedom. For example, if the federation has a ‘despotic’ political structure but some of its member states are republics, and if the latter’s citizens wanted to leave the federation, their right to freedom would be violated if they were prevented from doing so. On this suggested reading, Kant’s reason for emphasizing that states ought to have a right to leave the federation, then, turns out to be akin to his reason for claiming that states must not be forced to join it: the individual innate right to freedom, conceived both negatively and positively.
13.3.4 Cosmopolitan Right
In addition to state right, which is to govern interactions among individuals, and international right, which is to govern interactions among states, Kant adds a third branch of public right, which is to govern interactions between states and individuals or groups who are neither their citizens nor official representatives of other states. His examples include the interaction between a state and shipwrecked foreigners stranded on its beach (VAZeF 23:173), between a state and foreign trading companies wanting to enter the country (ZeF 8:359), and between non-state peoples and a state attempting to appropriate their hunting grounds (RL 6:353). This third branch of public right is called cosmopolitan right.
Cosmopolitan right articulates the conditions under which states and foreign individuals or groups can interact without one party’s violating the freedom of another. Its core is the right to hospitality, by which Kant means the right of persons and states to request peaceful interaction without being treated with hostility (ZeF 8:357–8). He discusses the circumstances under which parties have a right to refuse such requests, arguing, for example, that they do not have this right in cases where refusal would lead to the other’s ‘demise’ or the annihilation of their freedom (ZeF 8:358). Thus, he denies that states have a right to send shipwrecked sailors back into the sea (VAZeF 23:173). Furthermore, he denies that foreigners (such as representatives of trading companies) have a right to enter another state at will. They do have the right to request entry (without being treated with hostility), but the state in turn has a right to refuse their request, except in cases where this would lead to their demise. Finally, states do not have the right to seize land used by non-state peoples, and any settlement in regions used by others requires their informed agreement (RL 6:353). Accordingly, Kant argues that the colonialism and imperialism of the European states of his day constitute flagrant violations of cosmopolitan right (ZeF 8:358–9; RL 6:353).
Kant’s description of cosmopolitan right clearly echoes his description of the innate right to freedom conceived negatively as independence from compulsion by the choice of another. It echoes his description of the innate right as including the right to attempt to engage in interaction with others (see Section 13.2.1), while others have the right to refuse (unless this leads to the demise of the first). Moreover, by highlighting the illegitimacy of states’ unilateral acquisition of territory used by others and the illegitimacy of nonconsensual entrance into states, Kant’s examples also re-emphasize the normative importance of freedom and equality.
Kant provides hardly any details on how he envisions the legislation of cosmopolitan law, but the link with his positive conception of freedom is visible even in this case, albeit less clearly. He writes that it is a task of the ‘peoples’ (in the political sense, ‘peoples as states’, ZeF 8:354) to unite for the sake of giving cosmopolitan law. The peoples are to establish ‘right, which can be called cosmopolitan right, insofar as it concerns the possible union of all peoples for the purpose of certain general laws of their possible interaction’ (RL 6:353). This legislation is to yield a ‘rightful connection of human beings under public laws’ (RL 6:355). Thus, even in the case of cosmopolitan right we encounter Kant’s positive conception of freedom: the peoples of the world are to unite for the purpose of giving themselves the laws that govern the cosmopolitan interaction between states and foreigners.
13.4 Conclusion
On Kant’s republican account, freedom, negatively conceived, consists in independence from compulsion at the discretion of another. Freedom, positively conceived, consists in being subject to one’s own legislation. The mutual independence of a plurality of individual agents can be achieved only through their joint subjection to collectively self-given public laws. Thus, the innate right to external freedom requires the realization of freedom in both senses, and this holds for each of the three domains of public right (ZeF 8:349n.; RL 6:311).
The interpretation proposed in this chapter is different from how Kant’s republicanism is usually described. Most authors focus on his negative conception of freedom as independence. The argument of this chapter suggests that, in doing so, they overlook his thesis that mutual independence requires collective self-legislation. The current focus on independence, in republican readings of Kant, should be complemented with an increased emphasis on Kant’s account of citizenship, co-legislation, and the appropriate mode of political representation.
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