A. Introduction
The German philosopher Immanuel Kant is considered to be one of the major intellectual figures of the Enlightenment, thanks in part to the originality of his moral theory of law. However, his concept of constitutional heteronomy has only sporadically aroused the curiosity of his commentators, if only by reason of the prominence attached to his opposite and more discussed concept of autonomy. The same is to be said of modern and contemporary constitutional theory as well. Constitutional heteronomy evokes a conceptual apparatus far from dominant in mainstream constitutionalism. The reason for this may be that autonomy has taken the lion’s share as an object of study and a primary value in both theory and practice. With a certain sense of humor, one could say that the radiant presence of the angel has overshadowed that of the demon.
Kant’s use of the term heteronomy does not depart from the conventional etymological and semantic connotations. He employs the term to denote the antithesis of “the lawgiving of its own” (eigene Gesetzgebung), instances where “the will does not give the law to itself.”Footnote 1 The value of the heteronomy perspective is that it sheds light on one of the most formative concerns that continues to plague liberal constitutionalism. The enduring tension between democracy and constitutionalism, seen by some as an oxymoron,Footnote 2 has much to do with the inherent contradiction between autonomy and heteronomy. Masquerading under various forms of “constitutional imposition,”Footnote 3 heteronomy speaks volumes of the sense of frustration and incompleteness of the foundations on which the whole edifice of liberal democracy rests. Derrida has articulated this sense of incompleteness more eloquently than most: “What must be thought,” he writes, “is this inconceivable and unknowable thing, a freedom that would no longer be the power of a subject, a freedom without autonomy, a heteronomy without servitude, in short, something like a passive decision.”Footnote 4
The primary task of a constitutional jurist in the present day is therefore not so much to delineate autonomy and the optimal conditions for its actualization within a legal-institutional structure as to track down manifestations of heteronomy and its potential for impeding the redemptive promise of constitutionalism. Yet, heteronomy remains under-explored in mainstream constitutional theory. Not only is it uncommon to find explicit occurrences of this concept in the extant literature, but the handling of the concept also reveals a fragmented spectrum of uses and normative rationales. Habermas employs this term sparingly, although it can be said that the core of his anti-paternalist objection to liberal constitutionalism revolves around it.Footnote 5 On a more radical note, postmodern theorists, including CastoriadisFootnote 6 and Bauman,Footnote 7 question Kant’s “logico-transcendental trap,”Footnote 8 according to which heteronomy could, under certain conditions, serve as a springboard to public autonomy. Castoriadis, in particular, argues that all forms of heteronomy amount to a kind of “self-occultation” of the “self-instituting” capacity of society and individuals.Footnote 9 Teubner, on the other hand, speaks of heteronomy as an inherent element of the social constitution: In order to identify itself as an autonomous system, “[t]he ‘self’ of the self-constitution must first be defined heteronomously.”Footnote 10 Not far from this idea, Vinx presents heteronomy as a de facto denial of the idea of strong popular sovereignty. This is a kind of unavoidable constitutional standing where “people who differ in their values, preferences, and opinions must somehow take collective decisions that can never fully satisfy all.”Footnote 11
As we shall see, Kant intuitively anticipated some of these criticisms and arguments. The present Article is intended as both a contribution to the dissemination and internal critique of Kant’s pioneering perspective on constitutional heteronomy. The reversion to Kant’s philosophy of law as a theoretical foundation is not coincidental. His transcendental framing of constitutional law and his balanced account, in which autonomy and heteronomy are in a state of constant dynamic equilibrium, are worthy of renewed consideration. Some of Kant’s normative positions, with regard to the optimal equilibrium he proposes, may be open to challenge. Nevertheless, the value of his approach lies in his concern to base his theory of constitutional heteronomy on solid rational and practical foundations prior to outlining the juridical translation to be applied to this theory.
Admittedly, appeal to Kant shall not mean uncritical appropriation. A substantial body of scholarship has subjected his constitutional views to critical scrutiny, a process that I will also undertake in this Article. However, Kant’s most significant contribution is not so much to provide an acceptable practical response to the autonomy-heteronomy dilemma, a task that contemporary constitutional theorists such as Habermas would have arguably accomplished more effectively.Footnote 12 Rather, Kant’s achievement lies in the development of a systematic philosophical structure that foreshadowed several of the challenges that have subsequently surfaced in the course of the evolution of liberal constitutionalism. On the one hand, he foresaw the incompatibility of the heteronomous condition with a constitutional order that purports to uphold genuine autonomy. On the other hand, he outlined the conditions under which individuals are expected to submit to some degree of heteronomy in order to relate to the constitutional commonwealth, which alone is capable of guaranteeing their autonomy in the positive sense. Human beings are morally oriented subjects who assume moral responsibility for themselves and for others. As such, they must both hold to their private autonomy, understood as non-interference or negative freedom, and strive to achieve their public autonomy, which entails consenting to be bound by some universal principles of law—or principle of right—Rechtsprinzip. These principles can be interpreted as summarizing the conditions under which it is possible for a consociate to universalize coercive limits on his external behavior.Footnote 13 Kant presents this as prerequisite for positive autonomy, thereby providing a robust rationale for the claim that constitutional heteronomy is not inherently incompatible with autonomy in the moral sense.Footnote 14
As will be seen at the conclusion of this Article, the majority of Kantian and non-Kantian critics have challenged the philosopher’s reliance on transcendental formulas as the bedrock of his theory of constitutional heteronomy. I contend that these criticisms fail to consider the pragmatic dimension of Kant’s legal philosophy, which is twofold: ahistorical and historical.Footnote 15 The ahistorical stage corresponds to his endeavor to lay transcendental foundations of his theory of law and morality, which he links to the principles of virtue and to such transcendental concepts as the categorical imperative and universalizability. In the historical stage, he adopts an anthropological, in other words pragmatic, stance with the aim of identifying the constraints in the real world that may provide obstacles to the optimal workings of his constitutional theory. He relates these constraints to what he refers to as the principles of prudence, which consider both the human nature and the contingency of history.
Undoubtedly, the greater part of Kant’s constitutional theory falls under the historical strand of his thought. A close examination of his paradigm of constitutional heteronomy reveals that the autonomy-heteronomy divide exists along a continuum, comprising three principal points of reference, from the most transcendental to the most pragmatic: first, autonomy, which corresponds to the prepolitical moment and even transcends it, a state of being in which free will, master of itself, is only governed by its universalizable maxims; second, self-heteronomy, which entails subjects’ duty to bind themselves in order to forge a link with the constitutional community and achieve public autonomy; and third, heteronomy, which is concerned with the circumstances that condition maintenance of the commonwealth.
Kant’s normative political realism and his views on certain constitutional issues of the day, such as representation, republican participation, and the right to resist oppression, provide a rationale for our internal critique of his paradigm. These positions are perceived to espouse a paternalistic construction of the human condition, even one that is arguably coercive and heteronomous. This is seen as being in stark opposition to his earlier transcendental ideas on autonomy and heteronomy. Nevertheless, although Kant’s endeavor to rationalize the transition from moral autonomy to coercive heteronomy remains problematic, this in no way undermines his foundational contribution to the comprehension of the intractable autonomy-heteronomy dilemma in our time. The unresolved tensions identified in this contribution even have the merit of stimulating our perception of the causes and probably the insolubility of the current purported dissonance between democracy and constitutionalism.
My argument will proceed as follows. Section B will examine the structure of the autonomy-heteronomy dilemma in Kant’s legal theory. In this ahistorical stage, the objective is to comprehend the rationale behind the transcendental balance between the two elements of this dilemma, particularly in the context of these two conflicting imperatives: a universal moral legislation that preserves the free will and individual autonomy of the subject, on the one hand, and the need for a legal public order that binds consociates—hence the rationale for self-heteronomy as a stepping stone to public autonomy—on the other hand.
Section C examines Kant’s principled objection to heteronomy, as evidenced by his positions on certain constitutional issues of his era. In order to emphasize the extent to which Kant’s participation in the contentious debate of the time can be seen as a pioneering contribution to the theory of constitutional heteronomy, three relevant themes have been identified for closer examination: Kant’s argument on majority-decision; his case for a system of separation of powers that ensures legislative supremacy; and his anti-paternalistic account of law.
Section D looks at some illustrations of Kant’s evolution to a distinctly heteronomous model of constitutionalism. I argue here that Kant’s adoption of an anthropological—pragmatic—and progressively less transcendental mode of thought is at the root of this evolution. During this historical phase, a number of paternalistic attitudes emerged. My internal critique in this regard will focus on Kant’s endorsement of monarchy as a superior route to republicanism, his argument for constrained republican representation without universal suffrage, and his unconditional case against the right to resist oppression. The Article will conclude with a discussion regarding the topical relevance of Kant’s perspective on constitutional heteronomy.
B. A Transcendental Account of Heteronomy
Kantian terminology generally adheres to the Greek etymological understanding of autonomy (meaning self-legislation) and heteronomy (meaning submission to externally imposed laws). While autonomy is the “quality of the will of being a law to itself,”Footnote 16 heteronomy refers to the condition of the will seeking what should determine it elsewhere than in its “own universal legislation.”Footnote 17 In the context of constitutional vocabulary, the term “autonomy” is used to describe a situation in which individuals are not subject to external coercion and are therefore able to make their own decisions and assume responsibility for those decisions.Footnote 18 This suggests that individuals have the capacity to either decline an obligation that is imposed upon them or to accept it by translating their combined individual wills into law. Heteronomy means quite the opposite. It inherently entails a degree of external compulsion, whereby the law of the others is imposed upon its addressees, regardless of their presumed autonomy and free will.Footnote 19
The Greek etymology of the binomial autonomy-heteronomy offers an initial indication of the intrinsic antinomy that underlies these notions. Autonomy is a compound word deriving from Greek αὐτονομία (autonomía), from αὐτός (autós, self) and νόμος (nómos, law). Heteronomy, on the other hand, derives from ἕτερος (heteros, other, different) and νόμος (nómos, law). In Thucydides’ words, the community of citizens—the demos—is supposed to be entirely sovereign when it is self-legislating (autonomos), self-judging (autodikos), and self-governing (autoteles).Footnote 20 The binomial contrast between autonomy and heteronomy can also be traced back to the Roman legal dichotomy between master and slave. At that time, slavery was the juridical and social expression of heteronomy. While masters have freedom because they are subject to their own will, slaves have no will of their own and must rely on the will of their masters to make decisions for them.Footnote 21 Civil persons, placed on a footing of equality and independence, then have agency to consociate on the basis of consent and contract. Thus the civil understanding of the right to self-determination.Footnote 22 Thus also the idea of morally free self-imposing as tantamount to self-legislating.
It was not until the Enlightenment, most notably with the support of Rousseau and Kant for constitutionalism as a formal translation of civil freedom, that the question of heteronomy was introduced into theoretical reflection. Kant’s philosophical input was particularly influential, largely due to his comprehensive and nuanced insights into the question from a transcendental perspective. According to him, heteronomy is such a form of reasoning directed from the outside, by an authority that is merely assumed or imposed.Footnote 23 This corollary determines the substitution of the individual’s self-referential will by an external cause to regulate their acting and thinking. With the objective of moral education being to foster autonomy, heteronomy is of value only as a requisite, albeit transient, condition for attaining autonomy.Footnote 24
The binomial autonomy-heteronomy, as elucidated herein, bears significant relevance for human agency and legal will-formation. In his Groundwork for the Metaphysic of Morals, Kant sees autonomy as “the quality of the will of being a law to itself.”Footnote 25 Autonomy is self-legislating, in that those who are subject to the law perceive themselves as its authors.Footnote 26 In numerous instances throughout his corpus, Kant expounded this principle as a foundational tenet of his constitutional thought. “The idea of a constitution,” Kant writes, “that is consistent with the natural rights of human beings, the idea, namely, that those who obey the law should also, united, be legislators thereof, underlies all forms of state.”Footnote 27 By contrast, heteronomy occurs when “the will does not give the law to itself, but rather an alien impulse gives it by means of the subject’s nature.”Footnote 28 Heteronomy thus takes shape when “the will seeks that which should determine it anywhere else than in the suitability of its maxims for its own universal legislation.”Footnote 29 Kant deduced from this an irreducible moral incompatibility between autonomy and heteronomy. The autonomy of the will is the sole principle of all moral laws and the duties that flow from them. In contrast, heteronomy is antithetical to the very principle of obligation and the morality of the will, and thus cannot ground any form of duty at all.Footnote 30
This raises the question of whether Kant’s moral framing of law and autonomy ultimately leads to an individualistic or communitarian account of constitutionalism. This question is of great importance for understanding his approach to constitutional heteronomy. As it transpires, the response is not a simple one, as Kant himself makes occasional departures from his own stance on this matter,Footnote 31 which influences his constitutional theory to oscillate between individualism and communitarianism. For instance, some have put forth a libertarian interpretation of Kant’s concept of autonomy, which they contend entails a minimal state.Footnote 32 I would argue that Kant’s concept of freedom does not entirely support this view, as it can be construed, at best, as a restrained individualistic approach rather than a libertarian one. Civil freedom seen from this perspective requires not only the absence of outside interference with one’s own choices, but also a form of independence from the choices of others.Footnote 33 If the constitution is “the act of general will by which a crowd becomes a people,”Footnote 34 this does not mean that the individual is expected to relinquish their individual identity and dissolve into the collective. What Kant calls internal and external freedom corresponds roughly to the distinction between “freedom of the will,” which refers to the ability to determine one’s choice according to one’s moral compass, and “freedom of action,” which refers to the agency to set and pursue one’s ends without being subject to the choices of others.Footnote 35
Kant dwells at greater length on external freedom, reflecting his concern about the heteronomous burden that the external world imposes on individuals, and the state’s primary obligation to support and protect the freedom of the individual in the external world.Footnote 36 Civil freedom is therefore conditional on the adherence to the following three basic principles: the freedom of every member of society, as a human being; the equality of every member with every other, as a subject; and the independence of every member of the commonwealth, as a citizen.Footnote 37 Of the three principles, freedom is by far the most significant, representing a pre-political right that precedes the establishment of the political constitution, although it only gains its meaning within that context. Kant’s conceptualization of civil freedom, formulated in formally liberal and not libertarian terms, becomes ever more precise when it is seen as an effective antidote to heteronomy in the Doctrine of Law. It is defined there as the manifestation of civil personhood, which “consists in being entitled to be represented by no one else in legal matters.”Footnote 38 This is to say that humans are only required to obey the law to which they have given their assent.Footnote 39
By the same token, Kant refutes any instrumental grounding for the state’s legislation and authority vis-à-vis individuals. In order to eliminate any sense of paternalism or heteronomy, it is of the utmost importance that consociates be regarded as “co-legislating members of a state,” not merely as means, but also as ends in themselves.Footnote 40 As Waldron points out, Kant’s legal theory denies the state any claim to base its authority on the benefits it confers on its subjects, but rather on the moral quality—that is, the moral legitimacy—of its legal enactments.Footnote 41
Nevertheless, it would be a misreading of Kant’s liberal construction of civil freedom to view it only from an individualist perspective. His argument extends beyond the concept of autonomy as non-interference to encompass a kind of moral autonomy as a form of standing constituted by the “legal public order.”Footnote 42 This suggests that an examination of Kant’s legal philosophy must be conducted concurrently through the lenses of the duty to others.Footnote 43 Because everyone bears a moral obligation to adopt the happiness of others as their end, the notion of autonomy, when understood in a positive sense, implies the duty of self-binding. In Kant’s own words, “independence … is freedom in the negative sense, whereas th[e] lawgiving of its own on the part of pure and, as such, practical reason is freedom in the positive sense.”Footnote 44 From the transcendental standpoint, a person cannot be considered free simply when he acts independently of any determination by extraneous causes. Autonomy only makes sense as subjects’ capacity to bind themselves morally.
The Kantian concept of autonomy is not primarily concerned with the personal (negative) sense, but rather with the moral sense. Stated another way, moral autonomy amounts to a combination of freedom and responsibilityFootnote 45 —a submission to laws which one has made for oneself. An individual is considered autonomous in the moral sense only when he is guided not only by his own conception of happiness, but also by a universalized concern for the ends of all rational beings.Footnote 46 To rephrase Kant, true autonomy is self-heteronomy. Negative freedom does not set the will free.Footnote 47 It is a necessary, but not sufficient, criterion of autonomy. A truly free will is one that is subject to some self-imposed law,Footnote 48 that is, a set of moral principles or maxims that can be “universally followed”Footnote 49 because they “have the form of law.”Footnote 50 All of which to say that the constitutionalism advocated by Kant is unquestionably a duty-based constitutionalism.
Constitutionalism, as an expression of both autonomy and self-heteronomy, owes much to the contractual character of Kant’s political philosophy, which, in my view, bears a clear organic connotation of state and society. In accordance with Waldron’s “proximity principle,”Footnote 51 entry into the political society is not merely a matter of rational choice; rather, it is a natural obligation. Kant posits that it is a natural duty for all individuals to coexist peacefully within a civil union with those with who they find themselves in constant proximity. The “burden of Kantian autonomy” therefore inevitably gives rise to a number of “heteronomous obligations” that individuals would be required to accept in the civil condition.Footnote 52 This is particularly evident from the categorical imperatives that largely inform Kant’s legal philosophy. The formula of humanity, for example, dictates that each person must ‘‘aspire, as much as he can, to further the ends of others,’’Footnote 53 while the formula of universal law exhorts us to “act only in accordance with that maxim through which you can at the same time will that it become a universal law.”Footnote 54 This latter formula proposes that a legal maxim can only be translated into binding objective law to the extent that it has passed the universalization test—that is, it has been found worthy in the court of reason.Footnote 55 Kant insists that for an action to be both subjectively worthy and objectively correct, it must proceed not only “in conformity with duty” but also “from duty.”Footnote 56 This necessitates seeing Kant’s theory of law as non-utilitarian. Far from any instrumental rationality—in other words, interest—the validity of a legal principle rests fundamentally on the moral autonomy of the will: “[The law],” he writes,
does not have validity for us because it interests us (for that is heteronomy and dependency of practical reason on sensibility, namely a feeling grounding it, which could never be morally legislative), but rather that it interests us because it is valid for us as human beings, since it has arisen from our will as intelligence, hence from our authentic self.Footnote 57
As I shall show, the analytical transition from the negative concept of autonomy as non-interference to the positive concept as self-binding and duty to others is not always as smooth as one might anticipate. Ultimately, this dualistic nature of autonomy renders Kant’s legal theory fraught with tensions. Negative autonomy, as non-interference, corresponds to a distinctly individualistic formulation in which heteronomy has no place. It generally coincides with the ahistorical stage of Kant’s practical philosophy, during which he was establishing the transcendental basis of his theory of autonomy. The second perspective emphasizes the significance of a morally assumed heteronomy, framed by the duty to others and to the legal public order that derives from the civil constitution. In view of this, law and formal institutions are not merely instruments; rather, they serve as morally significant bridges that connect citizens to one another.Footnote 58 The establishment of a republican commonwealth and the proper functioning of the civil constitution, which determine the transition from negative to positive autonomy, therefore imply the introduction of a series of constraints. It was at this stage that Kant began to incorporate pragmatic reasoning into his constitutional theory. He particularly sought to account for this historical stage in his Towards Perpetual Peace (1795) and Metaphysics of Morals (1797).
C. A Transcendental Objection to Constitutional Heteronomy
In Section D, I will show how some of the constitutional ideas developed by Kant during the historical phase sought to rationalize the acceptability, and even the normative necessity, of heteronomy. Before proceeding, however, it is now a matter of examining the implications of Kant’s transcendental balance between autonomy and heteronomy for his constitutional theory. Broadly speaking, it can be said that Kant’s Doctrine of Right, to which we owe most of his constitutional writings proper, is largely shaped by a principled commitment to curbing the heteronomy burden on individuals. However, in consideration of Kant’s multifaceted oeuvre, this analysis will concentrate on three key elements: Kant’s argument on majority rule; his approach to the separation of powers; and his anti-paternalistic account of law.
The first theme pertains to Kant’s stance on the value and limitations of majority-decision in the context of his theory of democracy and political representation. On initial consideration, it may appear incongruous to cite this position in support of Kant’s constitutionalist case against heteronomy, because he himself formally characterized democracy as despotism.Footnote 59 In the terminology of Enlightenment constitutionalism, democracy was understood to mean direct democracy. Kant scholars contend that the form of government he rejects is not representative democracy, but rather direct democracy in which the people combine legislative and executive powers.Footnote 60 Kant saw this as contrary to the imperative distinction of state powers. According to him, the sovereignty of the people is an idea of reason in which the people is not the empirical multitude, but a unified whole from which general will only can be channeled through a representative moral person.Footnote 61 In a nutshell, Kant’s concept of republican freedom did not entail direct democracy. What matters most for him is that the will at work in legislation must be universal, whereas the forms of state—autocracy, aristocracy, democracy—are merely empirical forms of organizing command, and are “republican” only insofar as the rulers legislate with everyone in mind, and not merely with their own interests or those of the majority in mind.Footnote 62
This emphasis on the universal character of the will and its juridical manifestations provides an explanation as to why Kant is not among those who are most enthusiastic about majority rule as a decision-making mechanism. While Kant does not rule out majority rule as a means of reaching decisions, it is questionable whether his stance can be accurately characterized as “majoritarianism,” as Waldron suggests.Footnote 63 The heteronomous implication of the majority principle lies in the gap between the “all” the majority mistakenly claims to embody and the dissenting remainder. As Kant puts it, “‘all’ who are not actually all make decisions, which means that the general will stands in contradiction with itself and with freedom.”Footnote 64 Kant’s contention here is twofold. First, he seeks to stress the arithmetic gap between the majority and the citizenry as a whole. Second, he posits the moral obligation to remove the minority and the unrepresented from heteronomous decisions made on their behalf by the majority. It is evident that Kant is diverging from Rousseau’s endorsement of majority rule as the sole practical means of approximating the general will. This does not mean, however, that Kant views majority decisions as inherently despotic. Rather, he explicitly acknowledges the value of majoritarianism as an alternative to the inability to reach unanimous decisions.Footnote 65 It is the exclusive reliance on majority rule as a mechanism of government that he perceives as despotic.Footnote 66
Indeed, Kant’s argument on majority rule is a compelling and significant contribution to the constitutional debates on representative democracy, both then and now. From a Kantian anthropological point of view, the primary defect of representative democracy is the tendency of citizens to perceive their participation as a means of advancing their individual interests, rather than as a contribution to the collective good.Footnote 67 Majority decisions are therefore less a true manifestation of the general united will than the outcome of self-interested citizens’ decisions. By mistaking the sum of all private wills for the general will, citizens are led to assume that the decisions of the majority are inherently good and just.Footnote 68 As a result, the general will obtained by the majority vote will be neither universal nor united.Footnote 69 The question remains as to whether Kant is more preoccupied with the rights of individuals and minorities than with the universality of the general will, which represents one of his major categorical imperatives. At any rate, a thorough analysis of Kant’s argument makes it clear that his skepticism about the potential for majority rule to become a conduit for constitutional heteronomy, and thus for the subjugation of minorities by majorities, provides a rationale for his stance.Footnote 70
Kant’s approach to the separation of powers undoubtedly offers further insight into the extent to which the concern for heteronomy permeates his constitutional theory. It is evident that, in accordance with the tenets of a theorist from the late eighteenth-century, the principle of separation of powers is of such significance that Kant categorizes democracy as a despotic system due to its offense to this principle. Nevertheless, the manner in which he delineates the division of governmental powers transcends the mere acquiescence to the conventional fetishizationFootnote 71 to which this principle was subject at the time. His notion of the separation of powers speaks volumes about his conception of the legitimacy of constitutional decision-making. Resolutely republican, he was cognizant of the necessity to confer a greater authority on legislative decisions reached through democratic processes than those taken in a paternalistic manner. In this he owes a particular debt to Rousseau’s populist constitutionalism, especially his assimilation of the enactments made under the authority of the sovereign legislature and the general will.Footnote 72
From the perspective of the Doctrine of Right, the issue is not merely one of separating state powers; it is primarily about structuring them in a way that eliminates any heteronomous bias that could impinge upon individuals’ autonomy. In defending the superiority of the legislature, Kant adopted a stance that is at odds with the American ideology of three separate but “co-equal” branches of government in a system of “checks and balances.”Footnote 73 His approach thus differs from the familiar form of argument that the separation of the three state powers reduces the likelihood of arbitrary uses of power. Kant does not take this instrumentalist view, often traced in Montesquieu’s Spirit of the Laws,Footnote 74 as his starting point. Instead, he bases his argument on the principled necessity of linking the division of governmental powers to the process of will-formation before addressing the question of how to keep them under control.Footnote 75 In Kant’s view, the distinction of powers is not merely an institutional fact; rather, it is a distinction of reason between the moments of the determination of the popular will as one will, from the formation of its general maxim to its particular application.Footnote 76 Far from being a problem of constitutional engineering, it is a simple matter of distinguishing between various uses of sovereign power. Legislative power consists in determining a universal maxim of the collective will, whereas executive power deals with the ordering of the will according to this universal maxim in view of a particular case.Footnote 77 With this in mind, the hierarchical structuring of the three branches of government becomes the only conceivable logical outcome. Using a syllogism, Kant sets out his position as follows:
“[T]he major premise contains the law of the sovereign will, the minor premise contains the command to act according to the law, that is, the principle of subsumption under the will of the sovereign, and the conclusion contains the adjudication (the judicial sentence), which determines what is right in the case at hand.”Footnote 78
As can be seen, this syllogism leads directly to a hierarchical arrangement of legislative-executive relations. In Kant’s mind, it is not possible to equate the executive authority, or regent, with the legislative authority, namely the sovereign people through their duly mandated representative. The legislature, as the genuine locus of sovereignty in a state, must take precedence over the other two branches, especially the executive, which is merely its agent.Footnote 79 The executive authority is subject to the law and, as such, is answerable to a higher authority: the sovereign legislator. Conversely, the legislator has the power to strip the regent of his authority by removing him or her from office or reforming his administration.Footnote 80
In my view, Kant’s insistence on the legislative supremacy is primarily intended to prevent the process of will formation from drifting into a form of heteronomy. Thus, not only can the legislative power reside in the united will of the people,Footnote 81 but it is also the responsibility of the executive to treat citizens “according to the laws of their own independence,”Footnote 82 whereby each individual is in possession of oneself and not dependent on the absolute will of another. This brings us to Kant’s anti-paternalist argument about law. This argument posits that the government should not, for whatever reason, treat citizens as subjects in the same way as children are treated within the family unit.Footnote 83 It is not within the purview of the regent to assume the role of the legislator. The orders he issues for the administration of the state are merely revocable ordinances that determine the course of action to be taken in particular cases.Footnote 84 They are not laws, because a government that combines legislative and executive powers would be a despotic government: It would not be subject to the law because, as a lawgiver, it could change the law at any time.Footnote 85
The third argument concerning Kant’s transcendental case against constitutional heteronomy pertains to his anti-paternalist stance, wherein he objects to the government’s acting in accordance with the principle of benevolence as a father figure towards citizens. In fact, there is nothing more despotic than a paternalistic government.Footnote 86 Citizens, as morally autonomous persons, cannot afford to accept the benevolence of a government that legislates on their behalf without involving them in the decision-making process. The Kantian state, unlike Hegel’s, must be as neutral as possible towards its subjects. It has no cultural role or ethical education to perform, and its coercive power must not be used to promote the welfare, virtue, or happiness of its subjects.Footnote 87 As Kant himself explicitly agrees in the Metaphysics of Morals,Footnote 88 paternalism is not limited to acts which are liberty-restrictive, but also to those that are undertaken to confer benefit upon others.Footnote 89 Even if a government works well in providing for the people, its paternalistic attitude will be just as contrary to the moral law that individuals are not mere “subjects” or “members of one family but … citizens of the state, that is, in accordance with laws of their own independence.”Footnote 90
The idea of benevolent paternalism underlying government legislation is significantly shaped by Kant’s transcendental concept of the categorical imperative. This concept is an elaborate criticism of the heteronomous and utilitarian narratives of morality espoused by certain philosophies of the premodern Europe, which supported paternalistic and state-centric ideologies.Footnote 91 Some two centuries later, Habermas would build upon this concept to challenge the paternalistic and heteronomous features of the constitutional welfare state and the liberal narrative of the rule of law.Footnote 92 The categorical imperative of law emphasizes the necessity of defining obedience to laws exclusively in accordance with the criteria of autonomy, universality, and equality in freedom. From this transcendental perspective, it would be morally unjustifiable to demand unquestioning obedience; rather, the juridical relationship with the obligating norm is enough.Footnote 93
D. The Historical Account of Heteronomy
Having set out the essential tenets of Kant’s transcendental rationale against constitutional heteronomy, it is now a matter of examining how this rationale relates to certain controversial matters that arose in the dynamic context of the late-eighteenth century. Before doing so, however, it is worth pointing out the difficulty that Kantian constitutional theory encountered in navigating between the two ahistorical (transcendental) and historical (political) levels of analysis. Kant was aware of this difficulty when he insisted on the sharp divide between the metaphysics of morals and the anthropology of morals, the latter of which focuses on human nature.Footnote 94 Moral anthropology, which Kant believes “cannot be dispensed with,”Footnote 95 is concerned with the “subjective conditions in human nature that help or hinder [people] in fulfilling the laws of a metaphysics of morals.”Footnote 96 The anthropological perspective is therefore fundamentally pragmatic. This would assist in understanding some of the aporias in Kant’s constitutional theory, and the underlying meaning of his normative positions in this respect.
In this so-called historical phase, which is responsible for the bulk of Kant’s political and constitutional writings, it is not a question of a radical reversal of position; rather, it is a matter of a downward revision of his theses on the problem of autonomy and heteronomy. Yet Kant’s downward turn is most apparent in his account of the practical conditions under which individuals may exercise their political autonomy. Based on his transcendental definition of autonomy as self-legislation, one might expect him to uphold a constitutional system that not only allows the citizens to think for themselves about political issues, but also provides them with appropriate means of translating their well-reasoned views into government policy. Far from it. There is little evidence of an emphasis on freedom as a primary concern in Kant’s constitutional writings proper. Admittedly, he anticipates this criticism by stressing the difficulty that politics and morality have in coexisting.Footnote 97 However, the resulting attempt to provide a balanced account of the tension between autonomy as a moral aspiration and heteronomy as a transcendent factual datum is not entirely conclusive. The philosopher, who, in a sense, epitomized the maturity of the Enlightenment, found it challenging to attune his pragmatic positions on many constitutional issues with his transcendental ethics. This makes him at best a moderate, reformist democrat in a practical sense.
It is unclear, for example, whether Kant’s rejection of majority rule and democracy in general, which he characterizes as despotism, was driven by his personal inclinations and realistic apprehensions about the revolutionary fervor of the era, or by his concern that the minority should fall victim to the heteronomous interference of the majority. At any rate, the conditions he sets forth for the implementation of the majority rule as a mechanism of representative democracy are, in practice, exceedingly challenging to achieve through the voting process. For a universal law to mirror the actual consent of citizens, it must emanate from the “omnilateral will.”Footnote 98 Definitely, the principle of majority rule is a necessity in the face of a persistent disagreement among citizens. In this instance, however, the legitimacy of recourse to majority voting is contingent upon the unanimous acceptance of the entire people.Footnote 99 In Kant’s own words, “only the concurring and united will of all, insofar as each decides the same thing for all and all for each, and so only the general united will of the people, can be legislative.”Footnote 100
There are two distinct ways of interpreting Kant’s stance to the majority/minority nexus. On the one hand, the private autonomy of the minority or the unrepresented would be of equal importance to the public autonomy embodied by the majority, and thus merits the greatest legal protection. This initial interpretation situates Kant within the conceptual framework of anti-majoritarian theories and “legal constitutionalism,” which is currently one of the most influential schools of thought, and provides substantiation for certain assertions regarding Kant’s individualist perspective on human rights.Footnote 101 The second line of interpretation, to which I adhere, pertains to Kant’s political inclinations as a bystander to a seminal and tumultuous era. If Kant was unenthusiastic about the use of majority rule as a decision-making mechanism in representative democracy, it was because this very mechanism was one of the most impactful drivers of the turbulent constitutional transformations that occurred in Europe, particularly in France, during the 1790s.Footnote 102 Subsequent to a period of overt endorsement of the American and French revolutions, Kant promptly voiced concern about the “excesses” of Robespierre’s Terror. His celebrated essay of 1793, On the Common Saying: This May Be True in Theory, but It Does Not Hold in Practice,Footnote 103 was a timely illustration of this state of mind. In this essay, he develops a minimalist definition of right as “the restriction of the freedom of each to the condition of its being compatible with the freedom of all, to the extent this is possible in accordance with a general law.”Footnote 104 This explicitly references his second definition of autonomy as self-binding, in which considerations of legal public order and collective general interest are brought to the fore.
Kant’s minimal stance—downward from his transcendental definition of autonomy—is equally visible in his view of representation and republicanism. These should not be confused with democracy, as a monarchy may offer more conducive conditions for their actualization. In a democratic polity, sovereignty resides necessarily and solely in the people.Footnote 105 Nevertheless, the people must exercise their legislative authority not directly, but through representatives. This implies that there are two distinct entities involved in the concept of sovereignty: the real but abstract sovereign, that is the people, and the delegated but actual sovereign, that is the head of state, whether a monarch or an elected assembly.Footnote 106 As far as can be ascertained, while not explicitly dismissing the alternative of an elected assembly, Kant nevertheless has a normative preference for the monarchical form of sovereignty. He initially posits that monarchy, akin to a republican system of governance, could be regarded as a representative structure, contingent upon the monarch’s role as a legislator for the collective citizenry.Footnote 107 Kant was also confident that the “representativeness” of a representative system is more likely to be greater with a small number of the personnel exercising state power, and that monarchy better than democracy favors the gradual march towards republicanism.Footnote 108 Such contentions prompt the question of whether Kant’s normative stance on political representation is not at odds with his rationale against constitutional heteronomy and his insistence on the omnilateral character of legislative will-formation.
A further indication can be seen in Kant’s discussion of republican and despotic forms of sovereignty. As might be anticipated from an Enlightenment philosopher, Kant articulates a clear preference for republicanism, which entails a distinction between the executive and legislative branches of government. But this is where he clearly departs from his rejection of heteronomy as a matter of principle. Republicanism requires representation,Footnote 109 but this does not necessarily mean election. While republicanism is best characterized by an elected legislature, the moral person in power, whether elected or not, remains representative of the united people as a whole. A republic may indeed take the form of a monarchical government, in which the king acts as legislator on behalf of the will of the people, and his ministers as executives. The king-lawgiver, when determining his or her will, therefore represents himself or herself and the unity of the people insofar as she or he asks himself what unites the wills.Footnote 110 Such a view suggests that republican government may not require effective citizen participation in will-formation. This lends some credence to the claim put forward by non-Kantians, notably Carl Schmitt, who has asserted that Kant’s constitutional thought in fact conceals a liberal-bourgeois intellectual endeavor to identify a principle of compromise between monarchy and democracy.Footnote 111
The criticism of Kant’s theory of representation can be further substantiated by considering his stance on the right of suffrage. Holding on to some of the prevailing prejudices of his time, he asserted that there could be no universal suffrage. While government must be representative, there is no requirement for every adult subject to have the right to vote.Footnote 112 To be an “active citizen”Footnote 113 and not merely part of the commonwealth means to be master of one’s volition. The right to vote and to participate in the making of certain laws therefore requires the possession of property or a skill that enables one to support oneself independently. This substantive criteria is not deemed to be met by women and the poor.Footnote 114 Admittedly, Kant recognizes the difficulty of determining the criteria for claiming the category of being one’s own master.Footnote 115 He is also careful to stress that this in no way prejudices one’s right to move from the passive to the active condition of citizenship.Footnote 116 The “pragmatic”Footnote 117 rationale for such a “restrictive citizenship”Footnote 118 would arguably be that voting is a civic right, not a human right, and as such only plays an instrumental role in selecting and holding to account those who govern, which does not presuppose “universal inclusion.”Footnote 119 Further justifications for the exclusion of those who are civilly dependent from participation in the law-giving process have been put forward. These include the lack of the requisite political capacity, the limited liberty to participate, and the susceptibility to corruption or undue influence.Footnote 120 Whatever their merits, these justifications hardly dispel the perception of paternalism inherent in Kant’s argument. The pragmatic categorization of civilly dependent individuals as “protected compatriots, not as citizens”Footnote 121 is illustrative of the capacity of Kantian constitutional theory to accommodate heteronomy. The paternalistic assumption of the existence of two distinct layers of citizens in fact shows the extent to which Kant’s idea of external freedom—referring to the ability to determine one’s choice according to one’s moral compass—struggles to remain bound to the transcendental formulation of autonomy as self-legislation.
We now turn to Kant’s anti-resistance position. In its fullest, the transcendental understanding of autonomy, especially external freedom, inherently entails the ability of individuals to articulate their disagreement with a policy or specific law that affects their daily lives. In his third Critique, Kant acknowledges that the faculty of judgment enables human beings to bridge the gap between legislation and the realms of theoretical knowledge, on the one hand, and freedom, on the other.Footnote 122 Following this logic, human agents are not to be regarded as just another species of organisms, but as organisms endowed with teleological capacity, and therefore with the faculty of applying an abstract moral rule or concept to a given empirical particular. This would provide a sufficiently logical basis for everyone’s right to express their opposition and resistance. Once more, Kant’s transcendental objection to heteronomy is rendered inapplicable. His stance on this matter is unequivocal: the constitution must, by any means, pave the way for civil disobedience.Footnote 123 Once “active resistance”Footnote 124 to the supreme commander is ruled out, he proposes a permissible alternative, namely “negative resistance” by the people (in parliament), who then have the right to continually refuse to comply with the government’s demands that the latter claims are necessary for the administration of the state.Footnote 125 In the political context of the time, parliamentary resistance refers to the legislature’s prerogative to deny funding, and therefore approval, of executive action.
Elsewhere, Kant opens up another avenue of “passive resistance”—namely, the right to publicly criticize the government through “the freedom of the pen, [which] is the only protector of the people’s rights,”Footnote 126 the dividing line between republican and non-republican states. Reference is here made to Kant’s principle of publicity, which is to be understood as being not only ethical (as belonging to the doctrine of virtue), but also juridical (as concerning the rights of humans).Footnote 127 Though they must obey punctually, the sovereign’s subjects are competent to censure freely.Footnote 128 The alternative provided is intended to allow some distinction from Hobbes’s instrumentalist line of reasoning, according to which the supreme commander has no duties and the subjects have no rights against him or her. It is notable that Kant’s rationale for banning the right of rebellion is not dissimilar to the mindset of the Leviathan: “[T]he power of the state,” Kant writes,
which makes the law effective is also irresistible, and there is no lawfully constituted commonwealth without such power to put down all internal resistance …. The reason for this is that under an already existing civil constitution the people has no right to judge how the constitution is to be administered …. And this prohibition is unconditional, such that even if the legislative authority or its agent, the head of state, violates the original contract … the subject is still not allowed to resist in any way. For if one supposes that the people has such a right to judge and that its judgment is in conflict with that of the actual head of state, then who shall decide who is right? Neither of the two can decide as a judge in their own case. There would therefore have to be a head above the head of state, who would decide between him and the people, which is a contradiction.Footnote 129
Kant’s attempt to substantiate his absolute opposition to resistance was perceived as “overly legalistic,”Footnote 130 as if he were more preoccupied with finding a way out for the state by enhancing its administrative practices than with denying its right to rule.Footnote 131 The parallel with Hobbes remains, then, because resistance is ultimately seen from an instrumentalist point of view, that is, the fear that it will lead to the “annulment of the entire legal constitution,”Footnote 132 one of Hobbes’ greatest fears.Footnote 133 This is all the more true because Kant’s constitutional theory is grounded in a teleological vision of history and politics, as well as the revolutionary zeal that pervaded the era. This provides an explanation as to why the Doctrine of Right has been identified as the product of “heteronomous elements.”Footnote 134 Indeed, Kant himself sees his theory of right as part of a practical morality understood as a “universal doctrine of prudence”Footnote 135 —in other words, a theory of maxims according to which one selects the most effective means to attain ends to one’s own advantage.
The weight of the teleological, and therefore instrumentalist, handling of the constitutional issues of the time gives rise to questions as to whether Kant remained consistent with his initial transcendental objection to heteronomy when addressing the issue of civil disobedience. Kant is frequently charged with inconsistency on this matter, which has resulted in disparate evaluations.Footnote 136 The philosopher’s personal realist concerns intersected significantly with his legal theoretical system, making his account of constitutional heteronomy a “historical” rather than a “transcendental” one.Footnote 137 It is worth noting, however, that Kant’s Doctrine of Right coincides with his mature writings on ethics and law. By its very normative character, Kant’s constitutional theory is designed to articulate what is morally right on the basis of principles of reason. As such, it does not prejudge what is feasible in the real world, which is more a matter of prudence. The question of what is right is therefore distinct from that of what is actually achievable or realistic.Footnote 138 From a teleological perspective, human actions are essentially determined by the gradual historical and social process of enlightenment. It is only through this process that humans can attain their purpose and emerge from what Kant’s refers to as “one’s self-incurred immaturity.”Footnote 139 In the meantime, it is necessary to accept the mixed nature inherent in human beings, which causes them both to socialize and to behave antagonistically towards each other.Footnote 140
Yet it is challenging to envisage that Kant’s combined transcendental and historical perspective could provide a solution to the issue of heteronomy in constitutionalism in the present era. While the transcendental strand of the Doctrine of Right provides a sound theoretical foundation for elucidating the manner in which constitutional heteronomy impedes human autonomy and freedom, the historically based strand offers an indecisive denouement to the autonomy-heteronomy dilemma. In my view, it is not the transcendental terms that form the basis of this dilemma that are at issue; rather, it is the manner in which the philosopher evaluated the political implications—general and potentially personal for the philosopher, given his status as a prominent public figure at the time—of implementing his moral theory of autonomy to the end.
E. Conclusion
In his second work of transcendental philosophy, Critique of Practical Reason, Kant depicts heteronomy in almost demonizing terms as the “source of all ungenuine principles of morality.”Footnote 141 In his anthropological account of the constitutional issues of the day, heteronomy is no longer the devil it might appear to be. This would appear to indicate a reversal of position. However, this is not the case. The lesson to be drawn from Kant in this respect is that the transition from personal (negative) autonomy to moral (positive) autonomy cannot stand without a certain degree of heteronomy—certain moral and instrumental concessions that consociates must put up with if a civil constitution is to function smoothly. This offers insight into the divergence between Kant’s perspective and that of some of his critics, such as CastoriadisFootnote 142 and Bauman,Footnote 143 who see autonomy and heteronomy as mutually exclusive alternatives in constitutional matters.
More elaborate, in my view, is Habermas’s internal objection to Kant’s argument on the autonomy-heteronomy dilemma, particularly with regard to the perceived paternalistic and metaphysical bias surrounding this argument. As a pragmatist neo-Kantian, Habermas admits that “the distinction between autonomous and heteronomous actions has in fact revolutionized our normative consciousness.”Footnote 144 The concept of “political heteronomy,” as contrasted with “the practice of politically autonomous lawmaking,”Footnote 145 refines our understanding of the difficulties inherent in liberal constitutionalism. One illustration of these difficulties is what he calls the “paternalism of the rule of law,” a framework based on a substantivist account of rights and morality, which is problematic to embrace from a post-metaphysical perspective. In Habermas’s account, Kant is not far from this perspective becauce he grounds his argument in a metaphysical framework within which plausibility is open to challenge from a discourse theory point of view. By subjecting law to morality, Kant oversimplifies the rational basis of legitimacy. The legitimacy of a rational law that purports to be universal presupposes a pre-established harmony of reason beyond the real-world. Yet this argument is ill-formed in that it assumes an existing consensus that precedes actual discourse in the public sphere.Footnote 146
I endorse Habermas’ internal objection. Kant’s perspective on heteronomy is an integral aspect of the Enlightenment contractarian constitutionalism. As such, it conveys a morally paternalistic view of the human condition in relation to society and the state. Some have even advanced the claim that Kant’s constitutionalism harbors a clearly “authoritarian or Hobbesian residue”Footnote 147 that is at odds with, and ultimately irreconcilable with, the tenets of his transcendental philosophy. Kant’s perspective can therefore be reasonably questioned for its normative inconsistency. He presents formal anti-paternalist objections but also seeks to rationalize or even necessitates paternalism. This is illustrated by his rejection of the right to vote for civilly dependent individuals, who he designates as “protected compatriots,”Footnote 148 as well as his unequivocal opposition to the right to resist oppression.
A further limitation of Kant’s perspective is that it is constrained to a single thematic instance, namely paternalism, which represents merely one of the least-coercive forms of will obliteration, while the spectrum of heteronomy as manifested in constitutionalism today ranges from the subtle to the most overtly coercive. This may include, but is not limited to, paternalism, counter-majoritarianism, transnational socialization, asymmetric policy convergence, and internally or externally imposed constitutions. This means that a research program designed to examine the entire issue in depth would have to consider both the soft (subtle) and hard (coercive) forms of constitutional heteronomy.
Understandably, Kant’s occasional, and certainly ambivalent, emphasis on paternalism as an instance of constitutional heteronomy is due to the restricted scope of the constitutional theoretical repertoire of the period. This was an era when the subtleties of contemporary constitutional theory could not be anticipated. Yet even with these thematic and conceptual limitations, Kant has the merit of drawing our attention to, and potentially helping us to address, the tensions between democracy and constitutionalism in the present day. What can be learned from him is that constitutional heteronomy within a democratic setting—“republican,” in Kant’s lexicon—is distinct from its counterpart in a non-democratic setting. In a democratic setting, constitutional heteronomy, if it is not to offend the premises of individual and collective autonomy, is subject to the scrutiny of universal morality and reason in so framing the challenge of constitutional heteronomy, he has made a seminal contribution to the clarification of a number of contemporary constitutional issues that remain challenging. It seems reasonable to suggest that many of his theoretical views position him as the originator of procedural constitutionalism, a framework embraced by Habermas and numerous proponents of originalism and political constitutionalism. Of particular note are his conception of the single chain of command in a republican polity, wherein the separation of powers can in no way be designed apart from of the legislator’s sovereignty; his elaborated demarcation line between private and public autonomy; and his assertion of the primacy of procedural legitimacy in the formation of the will over any paternalistic substantivism. My internal critique notwithstanding, it is my assertion that Kant should be regarded as the pioneering theorist of constitutional heteronomy, if not the definitive one.
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