12.2.1 External Freedom as Capacity

To understand what Kant means by freedom in the external use of choice, it is natural to begin with Kant’s notion of choice (Willkür), abstracting from its various use cases. In Kant’s metaphysics of action, choice is an aspect of the capacity of desire. Specifically, choice is the capacity for doing as one pleases, insofar as one is conscious ‘of the capacity to bring about [one’s desired] object by one’s action’ (MS 6:213). So understood, choice plays a crucial role in Kant’s broader action theory, which distinguishes between determining grounds of choice and objects of choice. Understanding these related notions, I argue, yields an attractive distinction between internal and external uses of choice.

12.2.2 External Freedom as Independence

Kant holds that freedom, understood as ‘independence from being necessitated by another’s choice […] insofar as it can coexist with the freedom of every other in accordance with a universal law is the only original right belonging to man’ (MS 6:237).Footnote ²⁸ Like freedom in the external use of choice, commentators refer to this notion too as ‘external freedom’.Footnote ²⁹ So understood, external freedom is not (an aspect of) a capacity that we have, but instead describes a normative principle governing the relationship between persons’ powers of choice. If the institutional preconditions of right are realized, the result is that we are independent (externally free) in just this sense.

We should now dig deeper and try to get clear on what exactly innate right demands. Innate right prescribes independence from others’ necessitating powers of choice. Readers will recognize necessitation as a technical term, introduced in the context of Kant’s famous treatment of moral rationality. It refers to human choice insofar as it is contingently, not infallibly, determined by rational practical laws but necessitated to them by practical reason (GMS 4:413, 4:439; MS 6:379). On the Kantian picture, moral obligation is paradigmatic of this kind of constraint.

It is thus tempting to read the notion of necessitation drawn from Kant’s moral philosophy into Kant’s statement of our innate right. On this reading, innate right protects against obligations imposed on us from without (so far as such independence is compossible, i.e. can coexist with everyone else’s freedom under universal law). But this is just to be compossibly free from obligations grounded in acquired rights and positive law. After all, positive law is that act of lawgiving by which a moral agent binds ‘another by mere choice’ rather than through laws recognizable as obligatory by reason alone (MS 6:224). And acquired rights are those ‘moral capacities for placing others under obligation’ that are authored by a person’s lawgiving, juridical act, rather than obtaining simply by nature independently of such an act (6:237).

The temptation is now to say that the right to independence is nothing other than the compossible freedom from others’ positive lawgiving – lawgiving that obtains both when the state enacts laws and when individuals acquire rights.Footnote ³⁰ But this is too quick. After all, necessitation admits of a broader interpretation than the above reading suggests. Nöthigung can simply indicate constraint without any relation to obligation or law.Footnote ³¹ Moreover, this rendering makes sense of the emphasis Kant places on coercion (Zwang) throughout the Rechtslehre – the two words after all can be used interchangeably. Yet, there are three good reasons to prefer the narrow reading suggested above.

First, the main virtue of the broad reading, namely that it accounts well for Kant’s focus on coercion, is not completely lost to the narrower reading. To see this, recall that, on my preferred interpretation, the necessitation that we are guaranteed against is that which results from others’ lawgiving wills. Notice further that, on Kant’s account, lawgiving necessarily involves two components: (i) giving a law, and (ii) providing an incentive (see e.g. MS 6:218–19). The relevant incentive in the case of outer lawgiving is explicitly cashed out in terms of coercion’s ability to provide incentives of hope (and, especially, fear).

Admittedly, this means that our innate right does not pick out all coercion as potentially concerning – only that which is part of issuing law. By the same token, however, it is only if Kant’s remarks about coercion clearly and unequivocally imply that we are to be compossibly free from coercion in a perfectly general way that appeal to the broader notion is necessary. But in suggesting this, the broader reading presents a puzzle about the systematic place of coercion in Kant’s broader thought. To read Kant as concerned with necessitation in the broad sense is to read him as introducing a new kind of concern with the Rechtslehre, one that is absent in his earlier moral thought. Notice: there is no analogous question if we read necessitation more narrowly, such that it essentially involves lawgiving. For (as I explain below) Kant is famously sceptical that we have reason to acknowledge alien constraints on our free choosing (GMS 4:432 compare V-MS/Vigilantius 27:500 and MS 6:379–80).

Third, if Kant is focused on bare coercion (without connotations of law and obligation), it is hard to make sense of the structure of private right and various claims that Kant makes in it. For instance, he explicitly claims that ‘lawgiving is involved in the expression, “this object is mine,” since by it an obligation is laid upon all others (weil allen andern dadurch eine Verbindlichkeit auferlegt wird), which they would not otherwise have, to refrain from using the object’ (MS 6:253, emphasis added). But if coercion in the wider sense is what is normatively relevant as far as right is concerned, then the focus on new obligations is out of place. What matters in the case of property claims is that they are frequently enforced through violence. In line with this, the analysis should proceed explicitly with reference to the way that property rights involve coercion. But it does not so proceed.

For these reasons, I suggest that we reject interpretations which rely on the broader notion of necessitation. So far as we do, Kant’s statement of our innate right invites a question: How far can we remain free of external positive lawgiving, consistent with everyone’s like freedom under universal law? Put differently: how far must we admit a capacity on the part of others to give practical laws that necessitate our own powers of choice?Footnote ³²

Such questions would have been salient to Kant. After all, Achenwall (author of Kant’s textbook on natural law) simply defines freedom in terms of an independence from so-called overlordship. ‘A person enjoys full liberty’, he writes, ‘if he is independent of another’s overlordship in all his actions […] Hence someone is free (autonomous) in as far as he is not subjected (heteronomous)’ (§ 83). Moreover, overlordship specifically involves having a right over someone’s otherwise rightful actions along with a capacity to oblige her (§§ 74–7). And yet liberty is not an all-or-nothing affair – a person’s liberty might be partial, in which case they are only free in some of their actions from the overlordship of others.Footnote ³³ In Achenwall’s language, the question that Kant’s innate right asks is: how far is our freedom from others’ overlordship compatible with everyone’s like freedom?

Now, importantly, when it is understood this way, external freedom as independence has nothing to do with others constraining us by moving about in space – except insofar as what we do in space places others under new normative constraints. It says nothing directly about choosing means to various ends or manipulating which purposes we pursue with our means – except insofar as our doing so has the effect of necessitating others. It has nothing obvious at all to do, in other words, with freedom in the external use of choice at all. And yet, right clearly has to do with the latter. What’s the connection?

The fact that it is only by exercising external choice that we can compromise others’ freedom as independence (‘anyone can be free’, recall, ‘as long as I do not impair his freedom by my external action’) suggests an answer. Right is concerned with freedom in the external use of choice in the specific sense that this is what principles of right constrain. You may not use your external freedom to necessitate me unless doing so is required by universal law. In turn, if I have a right, by the lights of universal law, to constrain you against some action (e.g. interference with my property), then you cannot use your external freedom in the ways specified. Right is not, as is commonly suggested, concerned with freedom in the external use of choice because this is the kind of freedom that it matters to protect (pace Uleman). Right will, of course, protect freedom in the external use of choice. It will do so simply by virtue of the fact that, when persons’ freedom in the external use of choice is limited as right requires, each will remain free to perform those external actions still within her rightful power. But this is not because freedom in the external use of choice is intrinsically valuable or anything like that. It is because we have a very narrow mandate for binding others through our mere choice. Such others are, after all, laws to themselves.Footnote ³⁴ Our authorization to bind them is properly limited to those instances when submitting to our binding is a necessary condition of everyone’s independence.

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:

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:

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:

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.).

13.3.1 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:

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

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:

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.

14.2.1 The Moral Duties of Citizens

First, then, the obligation of human beings who cannot avoid interaction with one another to enter into and maintain just states is a moral obligation.Footnote ¹⁸ This is the import of the ‘postulate of public right’ that is placed at the transition from Private Right to Public Right. The transition begins with the statement that ‘A rightful condition is that relation of human beings among one another that contains the condition under which alone everyone is able to enjoy his rights, and the formal condition under which this is possible in accordance with the idea of a will giving laws for everyone is called public justice’ (RL, §41, 6:305–6). This is a restatement of the Universal Principle of Right including an allusion to the rights that by this point in Kant’s exposition have been established, namely the innate right to freedom of every individual and the rights to acquisition of property rights, contract rights, and rights to persons akin to rights of things that are the consequences of the innate right to freedom. Everyone’s innate right to freedom, as we saw, is the correlative of everyone’s obligation to respect the humanity in everyone, and so is clearly grounded in morality not prudence; thus when Kant goes on to describe the formal condition under which the rightful condition as ‘accordance with the idea of a will giving laws for everyone’, this too must derive from the categorical imperative, in this case from the first formulation of the categorical imperative which states that requirement of universal validity (GMS, section I, 4:402, section II, 4:421; KpV ‘Fundamental Law of Pure Practical Reason’, 5:30). Kant then states that the ‘condition of public Right’ ‘contains no further or other duties of human beings among themselves than can be conceived in’ private Right, rather ‘the matter of private Right is the same in both’ and ‘The laws of the condition of public Right […] have to do only with the rightful form of […] association (constitution), in view of which these laws must necessarily be conceived as public’ (6:306); that is, public Right is the enforcement of conceptually prior rights of ‘association’ by the instruments of a state.Footnote ¹⁹ That is misleading in one, minor way: since the division of powers in a genuine condition of public right, that is, a properly constituted republic, creates certain rights of officeholders against one another and rights of subjects against their rulers as well as obligations to them, the ‘laws of the condition of public right’ have to include those rights and obligations. Further, the rights of ‘association’ that the state is instituted to secure must include innate as well as acquired Right. If the state exists to enforce rights that are conceptually antecedent to public Right, then it has to enforce innate as well as acquired rights, or to make innate as well as acquired rights determinate and secureFootnote ²⁰ – for example, what precisely will count as working for another without violating one’s right to be one’s own master, or what will count as permissible free speech, needs to be legally defined and enforced just as much as property lines need to be. But the main point here is that if innate Right is grounded in the fundamental principle of morality and the possibility of acquired, private Right is grounded in innate right and is therefore also derived from the fundamental principle of morality, although with one extra step, then, as Kant next makes clear, the necessity of public Right is also morally grounded, and it is a moral obligation as well as permission to bring it about. This is what Kant makes clear with the ‘postulate of public Right’: ‘when you cannot avoid living side by side with all others, you ought to leave the state of nature and proceed with them into a rightful condition’ (RL, §42, 6:307). This is not a juridical ‘ought’ entailed by the laws of an extant state, but a moral ‘ought’, obligatory for those who find themselves in a state of nature with other people – and for any in an extant state who might want to undermine or destroy that state. It is not a matter of prudence. Kant states that the ‘ground of this postulate can be developed analytically from the concept of right in external relations, in contrast with violence’, but this does not mean that this postulate is independent of the fundamental principle of morality, because the concept of Right itself has been grounded on the fundamental principle of morality, beginning with innate Right.

Only a moral foundation can explain how individuals in the state of nature are under an obligation to institute a state and have the right to compel others who would resist the institution of a state to join them. Kant states that ‘No one is bound to refrain from encroaching on what another possesses if the other gives him no assurance that he will observe the same restraint toward him’ (RL 6:307). This may sound like a matter of mere prudence, or a natural right grounded in self-preservation, as in Hobbes or Achenwall.Footnote ²¹ But Kant continues in moral terms. First he states that ‘No one is bound to refrain from encroaching on what another possesses if the other gives him no equal assurance that he will observe the same restraint toward him’, and further ‘it is not necessary to wait for actual hostility; one is authorized to use coercion against someone who already, by his nature, threatens him with coercion’. This might still sound like mere prudence, and it may be from the point of view of prudence that Kant further states that ‘Given the intention to be and to remain in this state of externally lawless freedom, men do one another no wrong at all when they feud among themselves’ (6:307). But he then takes the moral point of view when he adds that ‘in general they do wrong in the highest degree* by willing to be and to remain in a condition that is not rightful’ (6:307–8), and adds the note at the asterisk that this is a distinction between what is ‘materially wrong’ and what is ‘formally wrong’.Footnote ²² The latter is, of course, an indication of moral wrong, so what Kant means is that while refusing to enter into the juridical condition and thereby exposing oneself to the preventative measures of others may be imprudent or not, depending upon the circumstances, refusing to enter into a state is always morally wrong, therefore all who cannot avoid contact with others altogether have a duty to enter into the judicial condition. This could not be so if entering into this condition were merely a matter of prudence.

Kant raises the question how one person can rightfully acquire property when rightful acquisition requires that the division and acquisition of land or other assets concerned could be the subject of an ‘omnilateral will’, that is, the possible agreement to the division among all who could lay any claim to the property, when the rightful condition does not yet exist. His answer to this is his distinction between ‘provisional’ (provisorisch) and ‘conclusive’ (peremptorisch) acquisition or possession (following Achenwall’s concept of ‘conditional’ obligation).Footnote ²³ His idea is that the acquisition of property is not in fact determinate, secure, and rightful in the absence of an omnilateral will and its expression in a juridical condition, but that antecedent to the realization of that condition individuals can rightfully acquire property if they do so with the intention of establishing a juridical condition and in a way that is compatible with the emergence of such a condition and can lead to it: ‘something external can be originally acquired only in conformity with the idea of a civil condition, that is, with a view to it and to its being brought about, but prior to its realization […] Hence original acquisition can be only provisional. – Conclusive acquisition takes place only in the civil condition’ (RL, §15, 6:264). In a state of nature, prudence requires that you take as much but only as much as you reasonably think you can get away with, given whatever forces you possess. Only morality requires that your acquisitions even in a state of nature be subject to the constraint of the idea of the possibility of an omnilateral will, and that you indeed attempt to bring about the actual juridical or civil condition that will make your possession conclusive. Only morality can justify the ‘principle of private right, in accordance with which each is justified in using that coercion which is necessary if people are to leave the state of nature and enter into the civil condition, which can alone make any acquisition conclusive’ (6:264). Prudence would allow and indeed require you to take as much property as you can and defend it with whatever means you can; only morality requires you to take only as much property as is compatible with an omnilateral will and then allows or even requires you to compel others to enter into a juridical condition in which the possessions of all are conclusive. (Of course Kant does not think that an omnilateral will must be established by the actual consent of everyone affected to every particular property claim; it is established by a system of laws concerning property to which everyone could freely consent.)

Thus Kant argues that individuals in a state of nature have a moral obligation to exit that state and enter into a civil condition and have a moral right and even an obligation to compel others to join them in that condition. He also argues that once in a civil condition, that is, once they are subjects of a state, individuals have a moral obligation to maintain the existence of that state and avoid relapse into a state of nature. This is evident in Kant’s denial of the possibility of a right to rebellion against an existing government.Footnote ²⁴ Kant has several specific arguments against a right to rebellion. One is that a rebellion in the hope of greater happiness than under a current regime would be unjustified because the business of government is not to promote happiness (TP, section II, 8:298); the hope for greater happiness is no more a justification for rebellion than it is for paternalistic government. But this argument seems irrelevant to the case in which people would rebel against the injustice of an existing government. More plausible is Kant’s constitutional argument that a right of rebellion against the designated supreme authority in a state would be incoherent because then the supreme authority would not be the supreme authority after all, but neither would be the people, so there would be no supreme authority, and therefore really no state at all (TP, section II, 8:299–300; RL, General Remark A, 6:319–20). But Kant’s main idea is simply that rebellion exchanges a juridical condition, however imperfect, for a condition of lawlessness or anarchy – a return to the state of nature – and that if it is wrong to remain in the state of nature, then it is also wrong to return to the state of nature – morally wrong, that is, just as it is morally wrong to refuse to leave the state of nature in the first place. Even if a better state might emerge from a rebellion, a happier or even a more just state, the process of rebellion necessarily includes a phase of anarchy when the old state has been destroyed and the new one not yet created: ‘the previously existing constitution has been torn up by the people, while their organization into a new commonwealth has not yet taken place. It is here that the condition of anarchy arises with all the horrors that are at least possible by means of it’. Thus Kant holds that the people do ‘wrong in the highest degree by seeking their rights in this way; for this way of doing it (adopting it as a maxim) would make every rightful constitution insecure and introduce a condition of complete lawlessness (status naturalis), in which all rights cease, at least to have effect’ (TP, section II, 8:301–2 and note). Again, Kant’s use of the phrase ‘wrong in the highest degree’ indicates that this is not a matter of prudence, but of morality. So individuals have an obligation to enter into the civil condition, and once in it to remain in it.

They should of course have the right to petition the authorities in an imperfect civil condition to reform and improve it (TP, section II, 8:30304), and perhaps they even have a moral obligation to petition for reform. But the moral obligation to reform an existing civil condition in the direction of a more ideally just one falls primarily on the shoulders of those who are in a position of power in such a state. Individuals in a state of nature and subjects in an existing state have the moral obligation to enter into and maintain such a state. But authorities – politicians – have the obligation to reform it, or as Kant puts it, to be moral politicians.

14.2.2 The Moral Obligations of Rulers

The granddaddy passage on this subject is the Sixth Proposition of Kant’s 1784 ‘Idea for a Universal History with a Cosmopolitan Aim’.Footnote ²⁵ After having argued in the Fifth Proposition that the solution to potentially wayward subjects is a ‘perfectly just civil constitution’ that will if necessary subdue their ‘wild freedom’ with coercion and make them grow straight like trees in a forest (IAG 8:22), Kant raises a problem in the Sixth, namely that ‘the master, who breaks [the subject’s] stubborn will and necessitates him to obey a universally valid will with which everyone can be free’, must himself be found in ‘such crooked wood as the human being is made’, from ‘which nothing entirely straight can be fabricated’, and ‘who has no authority over him to exercise authority over him in accordance with the laws’ (8:23, emphasis added). On pain of an infinite regress, at some point the chain of authority must stop with an actual human being or group of humans (a ‘natural’ or ‘moral person’ in Hobbes’s terminology) who have no one to exercise coercion over them, and who are subject to the same temptation to misuse their freedom as is any other human being. So if a prudent regard for coercion will not restrain rulers from exploiting their own authority, what can? Only morality. Thus, although a ‘perfect solution’ to this problem ‘is impossible […] the approximation to this idea is laid upon us by nature’. Writing in his teleological voice, Kant is disposed to attribute our moral end to nature itself, but this is definitely not an appeal to prudence. On the contrary, the solution is morality on the part of rulers: ‘it requires correct concepts of the nature of a possible constitution, great experience practiced through many courses of life, and beyond this a good will that is prepared to accept’ that constitution (8:23). We may regard each of these as a necessary condition, with their conjunction a sufficient condition for the approximation to an ideally just civil condition; the list makes it clear that a good will, that is, respect for the moral law, is among the necessary conditions for ‘masters’, authorities, or politicians to realize and maintain justice. Since there is no one to force them into acting as morality requires, only their own respect for morality can make them do so – and if it is only their good will, or respect for the moral law, that can lead them to improve the civil condition, then their doing so must itself be a requirement of morality, not a mere matter of prudence for themselves or anyone else.

A decade later, Kant reiterates the moral burden on rulers to improve the justice of their states in an Appendix to his pamphlet Towards Perpetual Peace.Footnote ²⁶ This work is written in the form of a proposed treaty to bring about perpetual peace among states accompanied by recommendations to their rulers in the Appendix. Perpetual peace is a moral requirement for human beings, as Kant says in the Metaphysics of Morals ‘the entire final end of the doctrine of right within the limits of mere right” (RL, Conclusion, 6:355), which is to say pure practical reason. The treaty itself is divided between ‘preliminary’ and ‘definitive’ articles, the former stating conditions that must be observed during the current and usual condition of warfare among states to make eventual peace even possible and the latter those conditions that will make it actual. It might be noted that this structure mirrors the distinction between provisional and conclusive acquisition of property in Kant’s theory of the latter. Chief among the definitive articles is that each state must become a republic, for Kant holds the (empirical) view that republics responsive to the genuine interests of their citizens will be loath to make war upon one another (ZeF, 8:350). In the Appendix, Kant then holds that the transition of present states to genuine republics is the responsibility of ‘moral politicians’, who ‘take the principles of political prudence in such a way that they can coexist with morals’, in other words who subordinate self-interest and prudence to morality, just as demanded by Kant’s Religion two years before Towards Perpetual Peace, rather than ‘political moralists’, who frame their ‘morals to suit the statesman’s interest’. Kant then writes:

Kant’s language is moral throughout: the goal of republican government is a requirement of natural right, itself an idea of reason; the burden of transforming a state from a despotism into a republic falls on the head or heads of state; and it requires them to be moral politicians ‘who take to heart the maxim that such an alteration is necessary’, not mere political moralists who might or might not undertake such a transformation, depending on what they think is in their self-interest – giving a little to their subjects if they think that will allow them to keep their crown (as Louis XVI wrongly thought), or toughing it out if they think that will let them keep their crown (as Charles I wrongly thought). Of course the burden of the transformation of existing states must fall on their rulers rather than on their subjects, since the subjects have been deprived of the right to do that by the means of rebellion; but in the absence of the possibility of coercion either by their subjects or by anyone over them, Kant uses his most moralistic language to stress that nothing but their own moral will, or the determination of their will by the moral law, can force rulers to undertake this transition even when they might not see it as in their personal interest: they must ‘take to heart the maxim that such an alteration is necessary’, that is, morally necessary.

What does this mean in practice? The essay on that subject, which was clearly present in Kant’s mind as he wrote the Appendix to Towards Perpetual PeaceFootnote ²⁷ – the Appendix begins with the statement that ‘Morals is of itself practical in the objective sense, as the sum of laws commanding unconditionally, in accordance with which we ought to act, and it is patently absurd, having granted this concept of duty its authority, to want to say that one nevertheless cannot do it. […] (hence no conflict of practice with theory)’ (ZeF, Appendix, 8:370) – makes it clear that rulers must fulfil their duty by extending to their subjects the right to criticize the government and petition for reform. The Metaphysics of Morals then makes it clear that rulers also have the moral obligation to act upon such criticisms and petitions and actually reform their governments. First, there is Kant’s explication of the right to criticize and petition – which implies the obligation of governors to extend this right – in ‘Theory and Practice’:

This is a rich passage. It is one of the places where Kant makes clear his distance from Hobbes, who not only holds that transferring one’s power to a ruler is an act of prudence but also holds that this grant of power must be absolute, exempting only the right to self-defence against the ruler which is simply a natural disposition that the subject cannot give up. (At the same time, Kant aligns himself instead with Rousseau by stating that the ruler properly gives orders to the people only as a representative of the general will).Footnote ²⁸ Rather, Kant holds that the right to make their opinions known is a right that the people retain against a ruler, and, as a right, it implies that the ruler has an obligation to recognize this right. Although of course the people themselves must exercise their right ‘within the limits of esteem (Hochachtung) and love for the constitution’, that is, within the limits of their own juridical obligations, and the limits of morality more generally, of which their juridical obligations are part – Kant’s term Hochachtung, a variation of his basic term Achtung for the virtuous attitude to the moral law, links the political obligations of the people to morality. Finally, Kant’s phrase that the ruler will be in contradiction with himself suggests that his obligation to grant the people the right to bring to his attention defects in his constitution or administration also suggests that this is a moral obligation, for Kant’s basic idea is that immorality is a self-contradiction of pure practical reason, a state in which one denies one’s own and others’ purely rational will even as one must admit it.Footnote ²⁹

As I said, in the Metaphysics of Morals Kant then makes clear that rulers have the obligation to respond to the proper calls for reform by their subjects. After rejecting the right to rebellion in that work, Kant then states that ‘A change in a (defective) constitution, which may certainly be necessary at times, can therefore be carried out only through reform by the sovereign itself, but not by the people, and therefore not by revolution; and when such a change takes place this reform can affect only the executive authority, not the legislative’ (RL, General Remark A, 6:321–2). If the people cannot reform their government by rebellion, it must be reformed by the government itself; and if, as Towards Perpetual Peace has made clear, it is a moral obligation to reform the government, in the direction of a genuinely republican regime, then it is not just the right but also the obligation of the government to undertake this reform. Kant assigns this right and obligation to the executive rather than the legislative authority because while the legislature can write laws, it is the executive who puts them into effect; and in particular, if there is going to be any coercion involved – as there inevitably will be, because in any reform there are going to be some who will see their own interests as being harmed and will be disposed to resist the change – then it must be the executive which exercises that coercion, because the division of powers in a Kantian republic reserves the coercive enforcement of law to the executive (RL, §49, 6:316–17).Footnote ³⁰ But Kant also emphasizes that the people, in the person of their duly representative legislature or parliament, have the “negative” right of refusal ‘to accede to every demand the government puts forth as necessary for administering the state’ (where here ‘government’ must mean the executive) (RL, General Remark A, 6:322), and here one could add that even though only the executive can enforce the laws necessary for an improvement in justice, it must be the prerogative of the legislature to write those laws. Without worrying about the details, perhaps we can simply conclude that for the purposes of approximating the ideal of justice in the civil condition, the people have the right to criticize the state, in the form of all three of its authorities (legislature, executive, and judiciary; see RL, §45, 6:313), the state must recognize that right, and the state must act to address those criticisms and resolve them. These are rights of the citizens that may be considered juridical rights, grounded in moral obligations, while the obligations of the rulers, since no one can coerce them, can only be ethical obligations, again grounded in their moral obligations.

Kant grounds the demands of Right on the fundamental principle of morality, not prudence; and only such a foundation of Right makes sense of his account of the moral obligations of citizens to enter into and maintain a state and rulers to administer the state in the way that he demands that they must. By way of conclusion, this passage from The Conflict of the Faculties, Kant’s own concluding work,Footnote ³¹ sums up his position very nicely:

To be sure, Kant’s claim that even in the absence of an ideal system of government an actual government should rule in a republican but not democratic way, and in anticipation and in the direction of an actual republican but not democratic will, sounds jarring to a contemporary ear – but what Kant meant by a ‘democratic’ government is straightforward rule by a majority on all possible issues, with none of the constitutional guard rails provided by the division of powers and a bill of rights to be found in a genuine republic, whereas what we mean by a ‘democratic’ government is precisely what he meant by a ‘republic’, that is, a government with a representative legislature expressing the sovereignty of the people but with the guard rails of a division of governmental powers and a guarantee of the components of the innate Right to freedom.Footnote ³²