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

Larry Krasnoff, Nuria Sánchez Madrid, Paula Satne

• Publisher: University of Wales Press
• Year: 2018
• ISBN:
  9781786831828
• Edition: 1
• Topic: Philosophy
• Subtopic: Ethics & Moral Philosophy

For a very long time, Kant's Doctrine of Right languished in relative neglect, even among those who wanted to defend a Kantian position in political philosophy. Kant's more interesting claims about politics were often said to be located elsewhere. This anthology examines a wide range of issues discussed by Kant in the Doctrine of Right and other closely related texts, including his views on social contract theory, private property, human rights, welfare and equality, civil disobedience, perpetual peace, forgiveness and punishment, and marriage equality. The authors have all tested Kant's arguments for possible political application, reaching different and sometimes opposing conclusions. The result is a highly original volume that not only enhances the understanding of Kant's political philosophy, but also invites substantive debate within the Kantian tradition and beyond.

1 • The Originality of Kant’s Social Contract Theory

Macarena Marey

1. Introduction

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

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

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

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

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

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

2. Elements of a political contract theory

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

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

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

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

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

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

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

From this, Gauthier advances the interpretative thesis, with which I agree, that ‘the correlate of the claim that man is non-social by nature is, of course, that [political] society is not, and cannot be, an end in itself.’⁹ Political society, the state, is therefore an instrument whose necessity is hypothetical in the sense that it depends on a pre-political condition.

Kant had two main objections to this, which are closely connected. One is an external critique, which attacks the core of natural law in general by invalidating one of its central tenets, which also has deep roots within modern social contract theories: that we are free only insofar as we act to attain some natural, universal and pre-given rational end, which we do not voluntarily choose for ourselves. The second is an internal critique intended to give modern social contract theorists’ and natural lawyers’ idea of the state a stronger normative basis. This second critique consists in showing that any justification of the exeundum principle that is built upon the individual attainment of a natural end can only be empirically conditioned, hypothetical, and thus not categorical, therefore defeating the original purpose of a social contract theory. I turn to the first objection now, to review the latter in the next subsection.

The state of nature has a distinctive internal logic; it is ordered by a teleological principle that works to orient every individual’s actions. This teleological principle consists in a natural end and has two possible particular material contents: self-preservation and happiness, as in post-Hobbesian and post-Lockean theories, or moral self-perfection, as in Wolff-inspired natural law theories, for instance that of Gottfried Hufeland, who saw himself, mistakenly, as a Kantian.¹⁰ While modern natural lawyers and social contract theorists tied natural freedom to a natural end, Kant’s conception of external freedom as ‘independence from being constrained by another’s choice’ (RL Introduction, 6:237) presupposes a severance of the link between freedom and any pre-given universal end. Indeed, Kant’s notion of external¹¹ innate freedom implies a distinctive capacity of (positive) autonomy in a specific sense, as freedom to set ourselves our own ends for our actions. Kant makes this meta-ethical faculty an initial assumption of the methodology of his doctrine of right;¹² this assumption serves to strictly differentiate the two doctrines of the metaphysics of morals:

One can think of the relation of end to duty in two ways: one can begin with the end and seek out the maxim of actions in conformity with duty or, on the other hand, one can begin with the maxim of actions in conformity with duty and seek out the end that is also a duty. The doctrine of right takes the first way: it is left to one’s free choice which end one wants to propose oneself for one’s action. (TL Introduction, 6:382, translation amended)

What I wish to highlight is that by taking as the doctrine of right’s starting point the meta-ethical, morally neutral definition of freedom as our capacity to set our own ends, as opposed to some specific candidate for a universal, natural end, Kant liberates freedom from the logic and weight of natural law.¹³ After this, it is to be expected that Kant’s state of nature will have different internal dynamics. At least, we can expect that the inconveniences of remaining in the natural condition will not be caused by the teleological structure of our behaviour, allegedly fixed to an end we all individually pursue, though without having chosen it. In fact, Kant has an entirely different approach to identifying the pressing problem generated within this condition. The absence of public right poses, for Kant, a normative and juridical problem, i.e., that we cannot legitimately claim that, beyond not hurting us physically, others have juridical obligations towards us. Kant understands this problem as pressing because we need to obligate others in a way that is not simply ethical. But before we turn to this point in the next subsec...

Table of contents

• Cover
• Title Page
• Copyright Page
• Contents
• Contributors
• Introduction
• Chapter 1: The Originality of Kant’s Social Contract Theory
• Chapter 2: Private Property and the Possibility of Consent: Kant and Social Contract Theory
• Chapter 3: Judging Rights by Their Duties: A Kantian Perspective on Human Rights
• Chapter 4: The Proper Task of Kantian Politics: The Relationship between Politics and Happiness
• Chapter 5: Kant on Poverty and Welfare: Social Demands and Juridical Goals in Kant’s Doctrine of Right
• Chapter 6: On the (Supposed) Distinction Between Classical and Welfare Liberalism: Lessons from the Doctrine of Right
• Chapter 7: Resistance and Reform in Kant’s Doctrine of Right
• Chapter 8: Civil Disobedience: Towards a New Kantian Conception
• Chapter 9: Kantian Insights on the Moral Personality of the State
• Chapter 10: Kant’s Guarantee for Perpetual Peace: A Reinterpretation and Defence
• Chapter 11: Forgiveness and Punishment in Kant’s Moral System
• Chapter 12: A Universal Estate: On Kant and Marriage Equality