JOURNAL OF PHILOSOPHICAL RESEARCH VOLUME XVII, 1 992

KANT ON THE STATE, LAW, AND

O B E D I E N C E TO A UTHOR ITY IN TH E

ALLE G E D 'ANTI-R EVOLUTIONARY' W R ITI N G S

KENNETH R . WESTP HAL

UNIVERSITY OF NEW HAMPSHIRE, DURHAM

ABSTRACT: The tension between Kant's egalitarian concep­tion of persons as ends in themselves and his rejection of the right of revolution has been widely discussed. The crucial issue is more fundamental: Is Kant's defense of absolute obe­dience consistent with his own principle of legitimate law, that legitimate law is compatible with the Categorical Imperative? Resolving this apparent inconsistency resolves the subsidiary inconsistencies that have been debated in the literature. 1 argue that Kant's legal principles contain two distinct grounds of obligation to obey political authority. One lies in his meta­physical principles of law, according to which there is only a duty to obey legitimate law or fully legitimate authorities. Another lies in his moral-pragmatic principles. He believes that membership in the state helps improve one's character by counter-balancing one's immoral inclinations. This is his ulti­mate ground for obedience to de facto, imperfectly legitimate states. On this ground, the duty to obey an actual state is conditional. Kant's strong statements about the duty to obey actual states is explained by the ease with which he thinks the relevant condition is met by extant states. The apparent ambi­guities in his discussion of obedience point to some important philosophical and historical shortcomings of his analysis of the division of govemmental powers and of judicial compe­tence which hamper his analysis of the duty to obey the state.

1. Kant's View of the Duty to Obey Political Authority

I M i n anonymous reviewer-undoubtedly Friedrich Bouterwek-of Kant's Metaphysical Elements 01 Justice (hereafter "ME]") complained

Journal of the History of Philosophy 33.3 (1995):541.

AnnouncementsInternational Kelly Prize in French Political Thought. The Conference for theStudy of Political Thought (CSPT) announces the George Armstrong KellyPrize. It will be awarded for the best journal article, or paper of similar lengthand scope, published in 1994 on the history of 18th- and/or 19th-century Frenchlanguage political thought (including political theory, philosophy, etc.). Thisis an international prize: entries will be accepted from any country, althoughthe articles must be in French, German, English, or Spanish.

Last year’s prize, when the contest was for German political thought, wentto Kenneth Westphal, “Kant on the State, Law, and Obedience to Authority,”Journal of Philosophical Research 17 (1992): 383–426.

Individual authors are encouraged to submit their own work forconsideration for the prize. Others are invited to nominate possible candidatesfor the prize. In addition to journal articles and articles in multi-authoredcollections, the prize committee encourages submissions of single-authoredcollections of articles, from which a winner could be selected.

The deadline for submissions of articles for the prize is November 30, 1995.Four copies of articles in English, French, or Spanish should be sent to Prof.John Christian Laursen, Department of Political Science, University ofCalifornia, Riverside, CA 92507-0118. Four copies of articles in Germanshould be sent to Prof. Martyn P. Thompson, Department of Political Science,Tulane University, New Orleans, LA 70118-5698. The winner of the prize,which includes a cash grant, will be announced at the annual meeting of theCSPT.

(...)

[541]

JOURNAL OF PHILOSOPHICAL RESEARCH VOLUME XVII, 1 992

KANT ON THE STATE, LAW, AND

O B E D I E N C E TO A UTHOR ITY IN TH E

ALLE G E D 'ANTI-R EVOLUTIONARY' W R ITI N G S

KENNETH R . WESTP HAL

UNIVERSITY OF NEW HAMPSHIRE, DURHAM

ABSTRACT: The tension between Kant's egalitarian concep­tion of persons as ends in themselves and his rejection of the right of revolution has been widely discussed. The crucial issue is more fundamental: Is Kant's defense of absolute obe­dience consistent with his own principle of legitimate law, that legitimate law is compatible with the Categorical Imperative? Resolving this apparent inconsistency resolves the subsidiary inconsistencies that have been debated in the literature. 1 argue that Kant's legal principles contain two distinct grounds of obligation to obey political authority. One lies in his meta­physical principles of law, according to which there is only a duty to obey legitimate law or fully legitimate authorities. Another lies in his moral-pragmatic principles. He believes that membership in the state helps improve one's character by counter-balancing one's immoral inclinations. This is his ulti­mate ground for obedience to de facto, imperfectly legitimate states. On this ground, the duty to obey an actual state is conditional. Kant's strong statements about the duty to obey actual states is explained by the ease with which he thinks the relevant condition is met by extant states. The apparent ambi­guities in his discussion of obedience point to some important philosophical and historical shortcomings of his analysis of the division of govemmental powers and of judicial compe­tence which hamper his analysis of the duty to obey the state.

1. Kant's View of the Duty to Obey Political Authority

I M i n anonymous reviewer-undoubtedly Friedrich Bouterwek-of Kant's Metaphysical Elements 01 Justice (hereafter "ME]") complained

384 KENNETH R. WESTPHAL

about Kant's view of the duty to obey political authority. The reviewer was astounded

that the mere idea of sovereignty should necessitate me to obey as my lord anyone who has imposed himself upon me as a lord, without my asking who has given him the right to issue commands to me. (MEl 37 1) 1

Kant fully grasped the objection; he restated i t and referred to the section of MEJ where he argued for strict obedience (§49 37 1 -372). Kant replied that his view may be paradoxical, but maintained that subjects owe strict obedi­ence to their ruler and denied any right to rebel :

If the people were to hold that they were justified in using violence against a constitution, however defective it might be, and against the supreme authority, they would be supposing that they had a right to put violence as the supreme prescriptive act of legislation in the place of every right and law. (MEl 372)

Both the objection and Kant's reply concem obedience to actual holders of state power. Kant apparently eschews Thrasymachus's strategy of claiming that someone is only a ruler when ruling well, so that a putative ruler who did something illegitimate is not, strictly, sovereign so that forcible resis­tance to that person is not, strictly, revolt.2

The contrast between the apparently egalitarian spirit of Kant's concep­tion of persons as ends who autonomously legislate for themselves and his apparently Hobbesian rejection of the right of revolution has been widely discussed.3 The predominant opinion among commentators is that the strict denial of the right of revolution found in "On the Proverb, That May Be True in Theory, but it is of no Practical Use" ( 1 793), supplemented in "To Per­petual Peace: A Phi1osophical Sketch" ( 1 795), and officially defended in MEl ( 1797), is balanced by Kant's revolutionary sympathies expressed in "Idea for a Universal History with a Cosmopolitan Intent" (1784) , in Reli­gion within the Limits of Reason Alone ( 1 793), and in The Struggle of the Faculties ( 1 798). Most prominently, Lewis White Beck noticed only one remark in MEl that excuses, though not justifies, revolution (see p. 339 below). He contends that Kant's position is inconsistent, since it contains both "the teleology of seeking to bring about the rule of law under a repub­l ican constitution . . . and a formalism of obedience to the powers that be. "4

1 aim to show that the real tension in Kant's thought is not simply the compatibility of Kant's justification of absolute obedience to law and to political authority with his sympathy for the French Revolution, or even with his general republican principles. The crucial issue is much more fundamental : Is Kant's defense of absolute obedience consistent with his own principle of legitimate law, that legitimate law is compatible with the Categorical Impera­tive? Resolving this apparent inconsistency also resolves the subsidiary inconsistencies that have been debated in the literature.

KANT'S STATE, LAW, AND OBEDIENCE 385

I argue that Kant's legal principles contain two distinct grounds of obIi­gation to obey poIitical authority. One ground Iies in Kant's unconditional metaphysical princples of law. on these principles there is only a duty to obey legitimate law or fully legitimate authorities. Another ground Iies in Kant's moral-pragmatic principles concerning the moral value of membership in the state. Kant beIieves that the state helps improve one's character by counter-bal­ancing one's immoral inc1inations. I argue that this is Kant's ultimate ground for obedience to de facto, imperfect1y legitimate states. on this ground, the duty to obey an actual state is conditional. Kant's strong statements about the duty to obey actual states is explained by the ease with which he thinks extant states meet the relevant condition. I also argue that the apparent ambiguities in Kant's treatment of obedience and resistance point to some crucial shortcomings of Kant's views on the division of govemmental powers and on judical compe­tence. These shortcomings hamper his analysis of the duty to obey the state.

My case involves demonstrating several new points. First, I show that each of the three supposedly anti-revolutionary texts appear to contain a tension within Kant's principles of law between his view that subjects must obey their rulers and his express principle of legitimate law: positive law must accord with the Categorical Imperative, whose poIitical illustration is the social contract (§§II, III, IV, VI) . Second, 1 show that this tension is alleviated in each of these texts because Kant's view of the duty to obey estabIished authority is carefully circumscribed. A close reading of Kant's metaphysical arguments in each of these texts for obedience to law or to political authority shows that he restricts dutiful obedience to obeying legit­imate law or legitimate rulers (§§II, III, VII) . Kant's strategy is much closer to Thrasymacus's than has been recognized.5 Third, 1 show that Kant's official argument against the right of rebellion in MEJ confIates the very distinction among governmental powers that constitutes the central signifi­cance of his avowed repubIicanism. This conflation leads Kant to espouse what must in his own terms be called despotism (§§ IV-VI) . Another factor that led Kant to espouse despotism is his propounding the "metaphysical elements" of law without discussing any specific institutions (§V) . 1 also show that Kant expresses decided sympathy for Iimits on, if not resistance to, executive authority in MEJ, far more than has been recognized (§VII) . The tension between these two aspects of Kant's principles of law, his principle of legitimate law and his principle of obedience to authority, raises the important issue of determining whether a law is legitimate. 1 then argue, fourth, that Kant fails to address this issue due to an unnecessarily restricted conception of judicial competence (§VIII). 1 then consider some of Kant's Reflexionen that suggest a remedy for this defect (§IX). In conc1usion 1 show, fifth, that Kant's ultimate and sole grounds for obedience to actual, imperfect states are not those found in his unconditional metaphysical legal principles but rather are indirect, pragmatic, conditional grounds based on the moral purposes served by membership in the state (§X).

386 KEN N ETH R. WESTPHAL

The purpose of this essay is not only to illuminate unappreciated features of Kant 's views, but to highlight a fundamental problem for normative political theory: the problem of relating principles of legitimacy to actual human institutions. If some of the principles required to address this issue are now obvious, that indicates some of the historical nature of the devel­opment of political rationality. If some of the principles required to address this issue are sti11 unknown, that indicates a need to continue that develop­ment. Kant's writings are instructive in this regard because they contain a sharp tension between elements of a centralized absolutist state and ele­ments of popular sovereignty and a balance of powers. This tension is once again at the forefront of political events, triumphantly in the Philippines and central Europe, brief1y and tragica11y in China, and tumu1tously in the Soviet Union, South Africa, and several Latin American countries. At a time when one of Kant's historical principles is triumphing in many places, . namely that economic necessity can bring people to do what they ought to do as a matter of right,6 it is worth realizing that Kant's views on obedience to state authority are quite in line with ongoing republican developments.

Interpreting Kant's views in ME! is difficult. Kant grants that his views on the government are not fu11y worked out (ME! 209) . Also, Kant admits at this time that his powers of concentration are waning.7 Moreover, at this time Kant is under great pressure to avoid having ME! censored. He was convinced that if Wo11ner censored ME!, then there would be no way to prevent his zealous censorship from threatening Kant's most cherished value: freedom of thought.8

Clarity requires stressing one more point beforehand. I aim to show that Kant's arguments against resistance to political authorities are strictly qual­ified. In Kant's view, whatever action is not prohibited is (at least) permis­sible. Thus whatever limits there are on Kant's prohibition of political resistance also mark the range of permissible resistance. There are a variety of importantly distinct forms of political resistance, from passive non-com­pliance, through active defiance, organized non-compliance, civil disobedi­ence, active resistance on various scales, to violent protest or, fina11y, revolt. Kant does not distinguish among these forms of political opposition, and he purports to proscribe them a11 with the same argument. If the prohibition established by that argument is limited, then a11 of these forms of opposition are equa11y permitted. This is not a tenable position, but Kant did not develop his views enough to distinguish these forms of resistance and the circumstances which may warrant them.

II. Kant's Views on Obedience to Authority

in "Theory and Practice."

In 1793 Kant relieved the editor of the Berlinerische Monatsschrift by sending him "On the Proverb, That May be True in Theory, But is of No Practical Use" (hereafter "Theory and Practice;" abbreviated "T&P") in

KANT'S STATE, LAW, AND OBEDIENCE 387

which he criticized the right of revolution and apparently (to the editor, at least) withdrew his support from the developments in France.9 However, this essay contains the tension mentioned at the outset between Kant's criterion of the legitimacy of law and his defense of the absolute obligation to obey established authority, along with Kant's strict qualification of the duty to obey the law.

In this essay Kant's criterion for the legitimacy of law is that legitimate law must be a function of the general will, modeled by the social contract. No law is legitimate that could not be agreed to by the unified wi11 of the people (T &P 297, 299) . 10 Kant even claims that this criterion is infallible (T&P 299). Only the nation's leader is authorized to judge by this criterion (T &P 298), and to enforce those judgments, though citizens are capable of using this criterion of the legitimacy of law and are authorized to express their judgments publicly (T&P 304). Most succinctly, Kant states :

The general principle by which a people may judge, though merely negatively, as to whether the supreme legislature has not decreed with the best of intentions is contained in this proposition: Whatever a people cannot decree for itself cannot be decreed for it by the legisla­tor. (T&P 304)

Citizens cannot, however, enforce their judgments, because that is a right they rescinded by entering civil society (T&P 300) .

Kant's argument against the right of revolution in "Theory and Practice" is the model for the argument he offers later in MEJ. It contains two main grounds. First, the ruler wields supreme coercive authority and is not sub­ject to coercion (T&P 29 1) . Second, in a dispute between the leader and the citizens there could be no authorized third party to judge the dispute (T &P 300, 303) . In Kant's own words:

[T]he power of the nation that makes law effective is also unopposable, and there is no rightfully constituted commonwealth without the power to put down a11 intemal resistance, for such resistance would have to derive from a maxim that, if made universal, would destroy a11 civil constitutions, thus annihilating the only state in which men can possess rights.

From this it fo11ows that a11 resistance to the supreme legislative power, aU incitement of subjects actively to express discontent, a11 revolt that breaks forth into rebeUion, is the highest and most punishable crime in a commonwealth, for it destroys its foundation. And this prohibition is absolute, so that even if that power or its agent, the nation's leader, may have broken the original contract, thereby forfeiting in the subject's eyes the right to be legislator, since he has authvrized the govemment to proceed in a thoroughly brutal (tyrannical) fashion, the citizen is nonetheless not to resist him in any way whatsoever. (T&P 299)

388 KEN N ETH R. WESTPHAL

This appears to be an unequivocal statement of the absolute denial of any right to rebel for which Kant is notorious. Beck remarks, in connection with its official version in MEJ, that if the argument fails to convince, fault cannot be found with the rigor of his argument, but only perhaps with the narrow basis of its premises. l l The basis of Kant's premises is narrow, but fault can be found with his rigor. As Locke realized almost a century ear1ier, a maxim to resist or to revo1t against tyrany does not destroy any legitimate civil constitutions, and illegitimate constitutions take away rights people ought to possess. 12 Kant's argument, as stated here, is fallacious; it would be valid only if restricted to legitimate governments. Kant expands the basis of his argument significantly in MEJ by introducing a doctrine of the divi­sion of governmental powers. 1 take up his argument again in that connec­tion below (§VI) .

For now it is crucial to note that this argument does not stand alone in Kant 's text. The quotation just ma de is directly preceded by an assertion of some very stringent conditions on the legitimacy of positive law and on its enforcement. That passage reads:

Only ifit is not contradictory to believe that an entire people can agree to such a law is it compatible with right [Recht] , however much pain it may bring . Now if a public law can receive such agreement, it follows that it is irreproachable in relation to the right and thus carries with it the authority to coerce and, at the same time, the prohibition against actively resisting the will of the legislator. (T &P 299; emphases added.)

According to this statement, a law is legitimate (by being "compatible with right") only if it is conceivable that the entire populace can agree to it. The important point is Kant's suggestion that only if ("and th".:.s"; "so ist damit") a law meets this requirement is its coercive enforcement legitimate and does it allow the prohibition against resisting that law. It is not legitimate to enforce illegitimate law, and it is not (on grounds of these principles) for­bidden actively to resist or even to revo1t against the illegitimate will of an unjust legislator ! What is not forbidden, in Kant's theory, is (at least) per­missible. Thus by this reasoning resistance against il1egitimate law is per­missible. Kant's prohibition of the right to rebel, expressed so graphically subsequently, is directly counter-balanced by his principle of legitimate law: The passage just quoted only prohibits active resistance to legitimate law! Kant's precisely qualified statement has been over1ooked in the heat of his subsequent admonition. 1 3

Kant here appears to be of two minds on the issue of whether resistance to the ruler is ever legitimate. On the one hand, the legitimacy of law is a condition for the legitimacy of its enforcement. On the other hand, supreme state power is required for the exercise of state authority, which is a neces­sary condition for the existence of a state, and the existence of a state is a

KANT'S STATE, LAW, AND OBEDIENCE 389

necessary condition for the existence of acquired individual rights. 14 On these grounds, resistance to executive action is prohibited, even if the exec­utive exceeds its authority in principle by enforcing illegitimate law or otherwise instituting tyranny. Kant does not ful1y resolve this tension in this essay. I shal1 show below, however, that as he develops his views on this matter in subsequent writings, these two positions on the issue of resistancf.: come to be associated with quite distinct grounds of obligation. One view, concerning the legitimacy of law as a condition for the legitimacy of its enforcement, is propounded within Kant's strict a priori metaphysical ele­ments of law, while the other view, concerning the supremacy of state power as a condition for the existence of the state and its authority, is propounded within Kant's moral-pragmatic views about the grounds of obedience to de facto, imperfectly legitimate states.

Kant returns to these same issues in the final paragraph of this section of "Theory and Practice," a section directed against Hobbes. The same equiv­ocation recurs, together with the same kind of incomplete development of Kant's doctrines. Here again he asserts that a priori political theory deter­mines the legitimacy of political practices. He then cites the Hobbesian view that people 's limited rationality requires them to live under a superior authority. In reply he asserts that once a superior transcends right and resorts to might, the people may revolt. Kant states :

Any practice that does not conform to it [viz., to the a priori concept of political right] lacks all legitimacy.

Now to this no exception can be taken except that, although men have in their heads some idea of the rights due them, they are, by virtue of their hardheartedness, incapable and unworthy of being treated accord­ingly; and therefore, a supreme power who uses only prudential rules may and must keep them in order. This desperate step [�r­zweifelungssprung] (salto mortale) is of such a nature that when once the issue become one of might, not of right, the people may [dürfte] also seek [versuchen] their own power and thus render all lawful con­stitutions insecure. If there is nothing that immediately commands rational respect (such as the rights of men), all influences on men's wi11s [Willkür] are incapable of restraining their freedom. But when in addition to benevolence the right speaks out loudly, then human nature wi11 not show itself so debased as not to listen reverently to its voice. (T&P 306)

Nota Bene: Once the issue becomes one of might, the people may exercise their own power ! It is unclear whether Kant's "may" expresses merely a prediction or a normative permission. It expresses at least a prediction; his next sentence indicates his belief that no regime could restrain human free­dom unless it commanded "rational respect" by, e.g. , respecting human

390 KE N N ETH R. WESTPHAL

rights. Surely this is the only example of what, on Kant's view, could command the rational respect of citizens. However, Kant's express contrast between might and right suggests (but only suggests) that he expresses a permission: once the issue is one of might, there is no legitimate prohibition of revolt.

Notice also that Kant speaks of the insecurity of a constitution, when the issue is resistance to a person-a ruler who has enacted extra-constitutional measures. Had he distinguished the officer from the office, Kant might have made a step toward recognizing the constitution as sovereign. This might have allowed him to recognize the people as protecting the constitution against tyranny. 1 return to this prospect in connection with MEJ (§VIII). In the final section (§X) 1 return to the issue of whether people, due to their head-strong "hardheartedness," require political control . This is a funda­mental issue in the moral-pragmatic dimension of Kant's political phi1osophy.

III.Kaot's Views 00 Obedieoce to Law io "PerpetuaJ Peace."

In "To Perpetual Peace: A Philosophical Sketch" (hereafter "Perpetual Peace;" abbreviated "PP") Kant again alludes to the social contract and to the consent of the governed as the basis of right and of just legislation (PP 344, 349, 350n; ef 372, 380) . Kant states the strict jurisprudential implica­tion of these principles:

[T]he concepts of reason only permit lawful compulsion that accords with principles of freedom, and it is under such principles alone that a rightful and enduring constitution is possible. (PP 374)

As in "Theory and Practice," Kant here states that coercion is legitimate only if it "accords with principles of freedom." Hence there is no legitimate enforcement of illegitimate legislation. Thus if an illegitimate law were coercively enforced, that use of state power would be an infraction on people's freedom, an infraction they legitimately could resist !

In the last section of the Appendix to "Perpetual Peace" Kant directly takes up the issue of rightful rebellion, offering an entirely different argu­ment against it. Here his argument turns on a "transcendental formula of public right : 'All actions that affect the rights of other men are wrong if their maxim is not consistent with publicity' " (PP 381 ) . Kant says very little about this principle or its rationale, other than to claim that the capacity for public promulgation is inherent in any rightful claim (ibid.) . It is worth pausing briefly to reflect on why such a principle must supplement the Categorical Imperative. 15 One reason for supplementing the Categorical Imperative with (what 1 will call) a Principle of Publicity is that public law is the realm of acquired rights and obligations, where the specific require­ments of such rights and duties would be specified by governmental legis­lation and public consent. The public knows the law, and some member(s) of it would protest any publicly avowed infraction of it. Hence publicity may be required for principles to be rightful, and the possibility of publicity

KANT'S STATE, LAW, AND OBEDIENCE 391

may serve as a test on the rightfulness of anyone's particular claim or proposal. Furthermore, public law is the realm of unequal power relations, at least between citizens and their ruler. The Categorical Imperative tests individual maxims (in part) by determining whether one would ha ve the requisite resources for performing an action if everyone were to act on the same maxim.16 This test assumes roughly equal power oyer resources. In civil society this assumption is not met, since rulers and their agents com­mand state power. Thus another principle, such as the Principle of Publicity, may be required to determine the rightfulness of policies within civil soci­ety. These points are worth bearing in mind when examining Kant's discus­sion of publicity and rebellion in "Perpetual Peace."

Kant describes the point of testing maxims with the Principle of Publicity as follows:

If my maxim cannot be openly divulged without at the same time defeating my own intention, i.e., must be kept secret for it to succeed, or if 1 cannot publicly acknowledge it without thereby inevitably arous­ing everyone 's opposition to my plan, then this necessary and univer­sal , and thus a priori foreseeable, opposition of all to me could not have come from anything other than the injustice with which it threatens everyone. Further, it is merely negative, i.e . , it serves only as a means for recognizing what is not right in regard to others. (PP 381 )

Kant insists that this test i s "negative;" i t determines whether principles are unjust by determining whether they cannot be publicly promulgated. The possibi1ity of public promulgation is at best a necessary condition, but not a sufficient condition, of the rightfulness of a political principle. Kant takes up this specific point later in his discussion.

Having stated and described his Principle of Publicity, Kant directly takes up the question of rightful rebellion against alleged tyrants. He imme­diately grants that because tyrants injure the rights of subjects, no wrong is done to them if their subjects revolt (PP 382). Nevertheless, he claims that such revolt is wrong, and that it is shown wrong by the test of publicity. The test of publicity shows that a maxim to revolt against tyranny is unjust because either of two implications must hold. On the one hand, citizens may have retained the right to use coercion in this one circumstance. If so, they have not really formed a civil society. Kant implies that in this case there is neither revolt nor a prohibition on revolt because there is no state. On the other hand, if citizens have formed a genuine civil society, then their ruler wields supreme coercive power. In this case, the ruler can suppress any rebellion, indeed quite easily if the intention to revolt is publicly promulgated (PP 382-383). Having reached this conclusion, Kant moves on to other issues.

However, he retums to this topic in a prominent location: the essay's closing pages. There he states directly that the capacity to be publicly promulgated does not show that a principle is just, "for he who has deci-

392 KENN ETH R. WESTPHAL

sively supreme power has no need to keep his maxims secret" (PP 385) .n By this reasoning, the first Principle of Publicity is a necessary condition for the rightness of a political maxim, but it is not a sufficient condition of that rightness. (Kant uses the terms "negative" and "affirmative" in connec­tion with each of these principles; this appears to be his way of putting this distinction.) However, as Kant indicates, subjects are prohibited from revolt by the first Principle of Pub1icity because the ruIer holds supreme power. The ruIer can thus say whatever he pIeases and no one can threaten him; but subjects cannot say whatever pIeases them, because the ruler can suppress them with state power. Kant thus shows that the first PrincipIe of Publicity cannot be a Kantian principIe of right at a11, not even negativeIy (as a necessary condition), for state power could be unIeashed against uttereran­ces of pIain truths-even arithmetic truths-and that would show nothing about their falsehood ! Kant insists that might aIone does not make right, so the first principle cannot be meant seriously. It would be evident to an informed reader that this principle is untenable on Kantian principles, even principIes stated in this essay. This makes it hard not to suppose that he made his first, fallacious argument for the benefit of the censors and to throw his moral authority against the revolutionary inclinations of insuffi­ciently subtle (and hence insufficiently principIed) readers . 1 8

In the penuItimate paragraph of his essay, with direct reference to the insufficiency of the first PrincipIe of Pub1icity as a test of rightness, Kant introduces a second "affirmative principle of pub1ic right :"

AU maxims that require publicity (in order not to fail of their own end) agree with both politics and right. (PP 386) 19

He claims that this is a genuine test on the Iegitimacy of maxims because if publicity is required to carry out a maxim, that maxim and its execution must rely on and contribute to the development of mutual public trust (PP 386) . Having said this, he postponed further discussion of this principle. This principle has something in common with the Categorical Imperative, though instead of a complex practical contradiction between an individual 's intention and its universal counterpart, it supposes that there would be an actual expression of opposition (perhaps even outrage) if someone were to express a po1itical maxim that infringed on some person's or group's rights. Unfortunately, this criterion won't distinguish between legitimate com­plaint and expressions of bigotry or paranoia. It is unclear whether Kant 's "affirmative" principIe expresses a necessary or a sufficient condition for the legitimacy of po1itical maxims. Kant's expIanation of the principle suggests that he intends it as a necessary condition. He states that if the only means to carry out political maxims are pub1ic, then those maxims must conform to the rights of the pub1ic (ibid.) . (Kant uses the modal term "onIy" twice; the second time with emphasis.) The contrast between the two prin­ciples also suggests that Kant intends the second principIe to be a necessary

KANT'S STATE, LAW, AND O B E DIENCE 393

condition. The first principIe mereIy stipuIates that Iegitimate politicaI max­ims be consistent with publicity; the second stipuIates that politicaI maxims must require publicity in order to succeed, if they are to be legitimate. This contrast between the two formuIae wouId Iose its significance if the second principIe did not express a necessary condition for the legitimacy of politi­caI maxims.

Notice that the second PrincpIe of Publicity Ieaves opeu the tantalizing possibi1ity that rebe11ion against tyranny is Iegitimate, because the uItimate success of such a rebelliou wouId require publicity and public agreement in the aim of the revoIt ! If Kant intends this second affirmative principIe to be a necessary condition of the Iegitimacy of politicaI maxims, then it has another very interesting implication: a tyrant's policy to suppress rebellion wouId not be, by this soIe affirmative principIe, Iegitimate ! Because a tyrant hoIds supreme coercive power, his or her maxim to supress resistance or rebellion does not require publicity in order to succeed. If it states a neces­sary condition, Kant's second PrincipIe of Publicity stipuIates that maxims are Iegitimate onIy if they require pubIicity for their success. Hence the tyrant's maxim is illegitimate.2o It is difficult to determine here the extent to which Kant suggested what he dare not state explicitly, and the extent to which he hadu't fully deveIoped his views. NevertheIess, he must ha ve been aware of the impIications of this second PrincipIe of PubIicity for the issue of revolt, since he expressIy introduced it to remedy the admitted inade­quacy of the first PriucipIe of Publicity. Kant onIy used the first principIe to argue agaiust the right to revoIt; Kant retracted the first principIe because anyone wieIding superior power can dispense with publicity. Retracting the first principIe in this way aIso retracts any argument based on it. Thus Kant must be taken to retract his own earlier argument in "PerpetuaI Peace" against the right to revoIt. In this penuItimate paragraph of his essay Kant may even suggest the illegitimacy of suppressing revoIt against illegitimate Iaw or i11egitimate ride, and he may even suggest the Iegitimacy of revolt against illegitimate Iaw or illegitimate ruIe.

IV. Kant's Views on Government in

the Metaphysical Elements 01 Justice

As mentioned earJier, one troubling feature of Kaut's arguments against the right to resist or rebeI iu these essays is the narrow basis of their premises: The state is authorized to wieId supreme coercive force, so there can be no other Iegitimate or sufficient force to oppose it. Kant refines his discussion of the state in MEJ by offering his most detailed discussion of forms of government. Kant hoIds that there are onIy two forms of state, republican and despotic, and he defends a republican form of government (§52 340-34 1 ; ef PP 352). He is indirect about his sense of "repubIicanism," but some evidence of his view is found in his claims that onIy a republican constitution is compIeteIy compatibIe with the human rights, that it consists

394 KE N N ETH R. WESTPHAL

in the separation of executive and legislative powers of government (PP 366, 352) , and that it is the only kind of constitution in which the law is "self-ruling" [selbstherrsehend] rather than being "annexed to any particu­lar person" (§52 341) . The point of republicanism, in Kant's view, is that the general will [Wille] of the populace is the source of political legitimacy and authority (§47 3 15, §5 1 338, §52 34 1) .2 1 As before, in this essay Kant explicitly holds that legitimate law is subordinate to and commensurable with the Categorical Imperative (§9 256, §45 3 13 , §46 3 15, §49 3 1 8) .22

Fundamental to Kant's republican form of government is a tripartite division of governmental authority, which he describes as divided into three "persons." These are moral persons, for he explicitly distinguishes between their pure idea and their instantiation by actual people (§49 3 16; ef 3 17) . Sovereign authority resides in the person of the legislator, executive author­ity resides in the person of the ruler, and judicial authority resides in the person of the judge (§45 3 1 3) . Kant holds that these three authorities are coordinate in rank, since each complements the others, and yet each is subordinate to the others in function: "one cannot at the same time usurp the function of the others . . . Instead, each has its own proper principle . . . " (§48 3 16) . 1 examine the principles of each of the three authorities to show that they require distinct officers for each official function. This distinction between officials is important for analyzing Kant's later conflation of gov­ernmental authorities and the bearing of this conflation on his argument for obedience (§§V, VI) .

Kant's first statements in ME.! about executive authority clearly mark its distinction from legislative authority. He marks this distinction terminolog­ical1y by speaking of "the sovereign" and "the ruler," the latter being the chief executive:

The ruler [Regent] of the state is that (moral or physical) person who has the executive authority. (ME.! §49 3 1 6)

The ruler 's authority is restricted to implementing the law, as is revealed by the ruler 's being subject to the law:

. . . the sovereign [Beherrseher] of the people (the legislator) cannot at the same time be the ruler [Regent] , for the ruler is himself subject to the law and through it is obligated to another, the sovereign [Souveran] . (ME.! §49 3 17)

The ruler is subject to law because the ruler cannot legislate, the ruler can only issue ordinances or decrees:

The commands that [the ruler] gives . . . are not laws, but ordinances and decrees, because they involve decisions about particular cases and are considered subject to change. A government that at the same time makes laws would be called despotic . . . (ME.! §49 3 16)

KANT'S STATE, LAW, AND OBEDIENCE 395

Kant's use of the term "government" here seems Ioose. His remarks bear on the executive administration; sureIy some branch of government wouId IegisIate. However, the main point of present concem is clear: Kant hoIds that the mIer is not to IegisIate. A republican mler is a chief executive only; a mler who both Iegislates and executes Iaw is a despot. This shows that Kant's distinction of governmentaI powers must involve a distinction be­tween office holders, and not merely a distinction between officiaI func­tions. There is further terminologicaI evidence that Kant distinguishes between officers, and not merely between officiaI functions that might be represented by distinct moraI persons but instantiated by one officia1. Kant states that "regarded as a moraI person the mler [Regent] is called director [Direktorum]" (§49 3 1 6) . Note that Kant did not say (above) that the sover­eign cannot at the same time be the Direktorum, but rather cannot be the Regent. Kant's distinction among officers thus concerns actuaI, not moraI, persons. Second, the German phrase translated by Ladd as "at the same time" is not "zu derselben Zeit" or "gleiehzeitig," but rather "zugleieh," a term that could in some contexts concem time, but more proper1y concerns combination. Kant's next sentence gives good reason to interpret "nieht zugleieh" as a rejection of combination of offices in one office holder, for Kant states:

The sovereign [Souvertin] can take his authority from the mler [Re­gent] , depose him, or reform his administration . . . (MEJ §49 3 17)

While this statement could be contorted to fit a • division of function' view, contending that Kant here discusses moraI rather than physicaI persons, it is far more naturally read as requiring distinct officiaIs, one controlling the other. This interpretation is strengthened by a paralleI discussion in the subsequent paragraph. There Kant says

Finally, neither the sovereign nor the mler can judge; they can only appoint judges as magistrates. (MEJ §49 3 1 7)

Here the distinction between officiaIs, and not merely between functions, is quite explicit, and Kant's transitionaI "finally" underscores the paralleI with his preceding discussion of the distinction between the Iegislator and the chief executive. Kant's tripartite distinction among the moraI persons who form the state requires an actuaI distinction among the officiaIs who exer­cise these three distinct functions.23

Kant declares that the proper principle of the sovereign Iegislative au­thority is that "Iegislative authority can be attributed only to the united Will of the people" (§46 3 13 ; el §49 G.R.fA 3 19, 320; quoted below, p. 398) . He further follows Rousseau in arguing that it is impossible for anyone to prescribe an injustice to oneself, so that "only the united and consenting Will of all-that is, a general united Will of the people by which each decides the same for all and all decide the same for each-can Iegislate"

396 KEN N ETH R. WESTPHAL

(§46 3 1 3-3 14) . Again with Rousseau he holds that it is impossible to re­nounce one's rights (T&P 293) . A republic is thus the sole legitimate con­stitution (§52 341) , and "lawful force is to be found only in the general Will" (§9 257). These tenets apparent1y ground two political principles that show Kant's commitment to the separation of powers, namely, that " . . . the chief of state can never make a decision about a civil official that the united Will of the people would never make" (§49 G.R.fD 328), and the claim cited ear1ier that only in a republic is the law "self-ruling" and not annexed to a particular person (§52 340).

Citizenship in a repub1ic involves the "lawful freedom" only to obey laws to which one has consented (§46 3 14) , "the right . . . to guide the state, to organize, and to work for the introduction of particular laws" (§46 3 1 5), and the right to vote (§46 3 1 4) and to elect jurors (§49 3 1 7) . Kant insists that a true republic requires political representation, and he obliquely suggests that political representation is tantamount to democracy, but he does not explicitly state that citizens elect their political representatives (§5 1 338-39, §52 341),24 though he does state that declarations and waging of war is a matter for vote (§55 345-346) . Kant even claims that a reform-minded regime cannot change the form of government without the consent of the peopIe (§5 1 340) .

v. Kant's Conflation of Governmental Powers in MEJ

UnfortunateIy, and significantly for his views on the duty to obey politi­cal authority, Kant elsewhere in MEJ muddles together the governmental powers he had carefully distinguished. In the preceding section it was shown that Kant uses the term "ruIer" to designate the chief executive, who has no legisIative power. However, in his reply to Bouterwek Kant speaks of the ruIer as holding "supreme commanding and legislative authority . . . " (MEJ 37 1 ; emphasis added.) . This statement flatly contradicts Kant's views about the separation of governmentaI powers . In this passage Kant ascribes a legislative function to the ruIer-to the executive-in direct opposition to his clear assertion that onIy the sovereign peopIe can legisIate (if through their legitimate representatives) . This statement thus violates his own defi­nition of "republicanism" and his strictures against the usurpation of powers and against annexation of the Iaw. Kant at least thrice again confuses the legislative authority of the people with the legislative activity of a 'sovereign' ruIer. He states that "What the people (the mass of subjects) cannot decide with regard to themselves or their fellows also cannot be decided by the sovereign regarding them" (§49 G.R.fD 329) . S imilarly, he says that the "sovereign" cannot change the form of government at will because "the people" may not want the new form (§52 340) . Most bIatant is Kant's discussion of the following question:

Can the sovereign [Beherrscher] be regarded as the supreme proprietor (of the land), or must he be regarded only as the person who exercises

KANT'S STATE, LAW, AND OBEDIENCE 397

supreme command oyer the peop1e by virtue of the laws? . The peop1e, as the aggregate ofhis subjects, a1so belong to him; they are his peop1e. But he is not their owner (by a right in rem) ; rather, he is their commander [Oberbefehlshaber] (by a right in personam). (MEJ §49 G.R.JB 323)

Precise1y these contrasts between "the peop1e" and "the sovereign" are and shou1d have remained excluded by Kant's firm statements about sovereign authority residing so1e1y with the peop1e.

The conflation of 1egis1ative and executive authority into the office-and office ho1der-of a ru1er seems to be an inevitab1e result of Kant 's attempt to propound the "metaphysica1 e1ements" of a republican representative government without discussing even the barest institutiona1 structures re­quired by such a form of government. As noted earlier, Kant's claim on beha1f of a republican form of govemment is that under such a form of govemment the 1aw is "se1f-ruling" and not "annexed" to a particular per­son. However, when he comes to discuss the forms of state (autocracy, aristocracy, and democracy) Kant conflates the three mora1 persons said to represent the three "authorities" within the state, the executive, the 1egis1a­tive, and the judicial . Kant states that these three authorities are "nothing more than so many re1ationships in the united Will of the peop1e" and that these authorities "constitute the pure idea [Idee] of the chief of state" where this idea requires an actua1 person "to represent the highest authority of the state . . . " (§5 1 338; emphases added) . If these three authorities are three parts of one "idea" of the chief of state, it is little surprise to find this idea instantiated by on1y one actua1 office ho1der as Kant proceeds with his discussion. Moving so glib1y from the unity of a body politic to the unity of its govemmental powers undermines Kant's republicanism, not only prac­tical1y but conceptual1y. Once the three authorities are exercised by one and the same officia1, then there is not even a distinction of reason that prevents 1egis1ation from being annexed to the chief executive. The abstractness of Kant's "metaphysical e1ements" thus thwarts his avowed republicanism.25 These two re1ated points indicate a basic point at which Kant had not adequate1y worked out his constitutiona1 theory. These shortcomings bear directly on the significance and adequacy of Kant's arguments for obedi­ence to 1aw and against rebellion.

VI. Kant's Defense of Obedience to the State in

the Metaphysical Elements of Justice

Kant's main argument in MEJ against sedition or the right of revo1ution generates the conflation of governmenta1 powers just noted. Kant's main reason for forbidding civi1 resistance or rebellion is that the ru1er, as su­preme executive of the state, has supreme coercive authority. Any chal1enge to that coercive authority wou1d have to dispute the executive 's competence

398 KEN N ETH R. WESTPHAL

to wield supreme coercive force. To do so would thus be to violate the principle of the division of state powers.26 ln this way, " . . . to punish the ruler would mean that the highest executive authority itself would be sub­ject to coercion, which is a self-contradiction" (§49 3 17; el §49 G.R./E 33 1 , ME.l 372, T&P 299) . Kant even denies the right of resistance under limited constitutions (§49 G.R./A 322f.) . This argument is essentially the same as -Kant offered in "Theory and Practice."

ls Kant's prohibition moral or legal? Were i t only a legal prohibition, there might be a moral right to rebel that would override the legal prohibi­tion against it.27 This question cannot be answered direct1y because Kant says too little about two important issues. First, what are the relations between "just," "right," or "legal" in the sense of what is compatible with the Categorical lmperative and "just," "right," or "legal" in the sense of compatible with positive law? Kant's use of the term "Reeht" is ambiguous between these senses of "just ," as is his occasional use of the term "Legalitiit." Second, what is the relation between the Categorical lmpera­tive and its political extension, the "Principle of Publicity"? ln "Theory and Practice" Kant commends the English Constitution for omitting an absurd clause permitting revolution in case the monarch broke the social contract­surely there can be no legal right to revolt ! But even there Kant explains the absurdity of such a clause by reference to its implication that there would thus be constituted a second supreme coercive force within the state . Broad grounds, however, make it clear that Kant's argument is a moral argument against revolution. Kant holds that political theory is a direct corollary to ethical theory, and he expressly holds that aU duties, as duties, "belong to ethics" (MEJ 219) . Kant's argument to join civil society is a moral argu­ment. Since rebellion would undo this moral consequence (viz. , member­ship in civil society), the prohibition Kant states here must be ta ken as a moral prohibition. This is commensurate as well with the moral purposes served by membership in civil society, discussed below (§X) .

Kant's argument against rebellion i s an extraordinary argument on his part, for it entails that his division of powers is not a system of checks and balances, but involves instead a strict separation of powers-a separation that in effect grants supremacy to the executive. Note that in this passage, which contains Kant's argument against the right to revo1t, Kant twice insists that sovereignty-legislative authority-lies solely with the people:

. . . the people . . . properly have only legislative authority _ _ _ (MEJ §49 G.R./A 3 19)

. . . juridical status, legitimacy, is possible only through subjection to the general legislative Will of the people . (MEJ §49 G.R./A 320)

Kant's argument against resistance or rebellion tums on the people only having legislative authority. Restraining the executive would require an

KANT'S STATE, LAW, AND OBEDIENCE 399

executive action, yet this lies beyond the bounds of the legitimate powers of the legislative sovereign. Thus the people, who are the sovereign legisla­tor, cannot restrain their chief executive. The supremacy Kant grants to the ruler in effect places the ruler above the law-in flat contradiction to his explicit claim, quoted earlier (p. 394), that the ruler is subject to the law­because no effective sentence could be passed against a ruler issuing extra­legal ordinances because there is, by this argument, no authoritative power to issue such a sentence. In effect Kant's argument against sedition and revolution grants the ruler a supreme legislative function because the ruler could enforce whatever laws he will . Kant apparent1y fails to see this impli­cation of his argument. He only stresses that a legislative act to restrict the executive involves the legislator acting in an executive capacity, which violates the separation of powers and involves a capacity superior to the executive, in which case the "legislator" is the executive, not the executive (§49 G.R.fA 3 1 9) . Kant detests the "despotism" such legislative action involves, while ignoring the despotism his argument generates for the ex­ecutive.28 These implications utterly subvert Kant's division of powers. Kant's argument against revolt retreats from a republican notion of govem­mental authority divided among separate branches of govemment back to an absolutist notion of sovereignty as a supreme executive and legislative authority exercised by a single individual; a combination which, we have seen, Kant himself calls "despotic." Kant did not resolve this ambiguity in his concept of sovereignty, as witnessed by his remark that the only "natu­ral" social division is that between sovereign and people (§49 G.R.fD 329) !29

VII. Kant's Qualifications of the Duty to Obey Authority in the Metaphysical Elements of Justice

Having seen how Kant's defence of the absolute duty to obey legal authority conflates his distinction among govemmental authorities, it is important to see that in MEJ his reasoning and principled statements once again limit dutiful obedience to obeying legitimate law. These important qualifications take several forms. One consists in Kant 's statements of the limits of executive authority (§VIIA) . Another lies in Kant 's crucial quali­fication on the limits of dutiful obedience found in his reply to Bouterwek (§VIIB) . A final qualification lies in Kant's moral-pragmatic grounds for obeying actual states (§X) .

A

In a note Kant grants that a people may have "at least some excuse for forcibly [dethroning a monarch] by appealing to the right of necessity . . . " (§49 G.R.fA 32 1n) . This is the only statement that Beck finds in MEJ that in any way admits a right to rebel1ion. He claims that "otherwise Kant's denial of the right of revolution is as firm and clear as his express sympathy

400 KE N N ETH R. WESTPHAL

for the French RevoIution. "30 As Seebolun points out, however, littIe em­phasis shouId be pIaced on Kant's note, since eIsewhere in MEJ he repudi­ates the validity of alleged rights of necessity (MEJ 235-236) , whi1e in "Theory and Practice" he discusses the right of necessity in connection with revoIution, rejecting it as an absurdity (T&P 300).3 1

However, there are other, fully reliabIe passages in MEJ that indicate Kant's avowed sympathy for the principIes of the French RevoIution. Kant says of executive authority that it "resides in the person of the ruIer (in conformity to law [GesetzD . . . " (§45 3 13 ; emphasis added) . Stronger yet, and directly on the topic of the limits of executive power, Kant states that

The sovereign [Souveran] can take his authority from the ruIer [Re­gent] , depose him, or reform his administration . . . (MEJ §49 3 1 7)

The context makes clear that in speaking of the "sovereign" Kant is speak­ing of the sovereign peopIe, for he contrasts "sovereign" with "ruIer" and there is no party mentioned by Kant other than the people to whom sover­eignty couId be ascribed.32 This is in perfect keeping with his declarations (cited earlier) that sovereign authority l ies sol el y with the peopIe. (Recall that two of these statements occur in the very passage in which Kant argues against the right to rebeI [§49 G.R.fA 3 1 9, 320] . ) This remark is the closest Kant comes in MEJ to mentioning impeachment, the Iegitimacy of which was Iong established in English Iaw. Kant's remark is allusive, but appar­ently approving, for he speaks not mereIy of reforming the executive, but of deposing the chief executive. There is l ittle doubt, of course, that were Kant to work out the right and process of impeachment he wouId have the peopIe exercising their sovereign authority through their IegisIative repre­sentatives.

These remarks accord with Kant's remarks about the Iesser powers es­tablished by limited constitutions, in which subjects can oppose their administration's measures through their representatives. He denies that such limits justify active resistance against the executive, but he acknowI­edges that they enabIe a distinct "negative resistance" in the form of refusing to compIy with the executive 's demands. lndeed, he thinks that such acts of non-compliance indicate the heaIth of the republic (§49 G.R.fA 322) .

B

At the outset of this paper 1 quoted a direct deniaI of the right of revoIu­tion from Kant 's repIy to Bouterwek. lt is cruciaI to see that in this same repIy, Kant again limits the duty to obey the Iaw to obeying Iegitimate Iaw. Moreover, he addresses this topic in explicit reference to his argument against revolt in §49. Thus this passage qualifies Kant's argument in the body of MEJ. Just before the statement 1 quoted at the outset Kant states:

KANT'S STATE, LAW, AND OBEDIENCE 401

[A] categorical imperative says: "Obey the suzerain (in everything that does not conflict with internal morality) who has authority oyer you !" . (ME.l 371)33

Kant says the Categorical Imperative commands obedience only insofar as the ruler 's edicts do "not conf1ict with internal morality." What does "inter­nal morality" mean?34 In an unpublished note Kant specifies certain un­likely cases of justifiable revolt :

Force, which does not presuppose a judgment having the validity of law is against the law consequent1y [the people] cannot rebel except in the cases which cannot at a11 come forward in a civil union, e.g. , the enforcement of a religion, compulsion to unnatural sins, assassination, etc. , etc. (Reflexion 805 1 XIX 594-5, lines 32-2)35

Beck notes that Kant trails off into etcetera. What is the scope of this etcetera? Kant says little else about it, but what he does say-in print-is revealing. According to the Critique 01 Practical Reason ( 1788) one is not obligated to make false testimony even by royal command.36 Kant claims that the example of someone who refuses to lie even under royal command would be an inspiring example to young minds, encouraging them to aspire to virtue. The prohibition on lying fo11ows from Kant's main moral princi­pIe, the Categorical Imperative. Thus the scope of this "etcetera" would seem to be quite large, including the whole domain of moral action. In brief, Kant's view seems to be that no ruler can legitimately demand immoral action.

Ref1ection on the structure of Kant 's moral theory confirms this broad scope. Kant distinguishes between principles of justice and principles of virtue as follows. Principles of justice concem overt behavior, to which one may be coerced . Principles of virtue concem motives, intemal mental events for which no coercion is possible (ME.l 21 8-22 1) . Kant's view of the relation between the Categorical Imperative and the sole morally worthy motive of respect for law insures that it is not possible to have a moral motive to perform an immoral act. These features of Kant's view strongly suggest that "inner morality" concems morally worthy motives. This inter­pretation is further supported by Kant's only other use of the phrase in this text. In the Introduction to ME.l, Kant explains that although no relation between right and duty can be determined in our relation to God, the concept of our moral relation to God

is fruitful from an internal, practical point of view in relation to our­selves and to maxims of intemal morality, inasmuch as our whole immanent (accomplishable) duty consists of this purely represented relationship. (ME.l 241-42)37

Our relation to God, according to the second Critique, primarily concems

402 KENNETH R . WESTPHAL

our virtue, that is, the moral worthiness of our motives. Hence the last phrase of Kant's injunction, to do nothing that conflicts with "inner moral­ity," even if commanded by one's suzerain, can only mean 'does not conflict with the Categorical Imperative. '38 It is axiomatic in Kant's politics that legitimate legislation is commensurable with the Categorical Imperative.39 Thus the extent of dutiful obedience is identical with the extent of legitimate positive law.40 In the Introduction to MEJ Kant states directly : "An action is allowed (licitum) if it is not opposed to obligation . . . " (MEJ 222). Therefore it is permissible to disobey rulers or laws that lack legitimacy. Beyond the bounds of legitimate power or law, there is no duty to obey the state ! This is not a right to rebel, but it is a very stringent qualification on the obligation to obey.4 1

The difference between Kant's two views in MEJ, a strong denial of the right to rebel and a principled statement of the limits of dutiful obedience to law, should not be viewed simply as a slip of the pen or as an unsound argument for despotism. Severe censorship was exercised in Prussia since the appointment of Johann Christoph Wollner as minister of cultural and educational affairs in 1786. The Prussian government enforced political and religious orthodoxy among Enlightenrnent intellectuals, especially in their popular publications. What scholars published for each other was of less concern. The pressures of censorship caught up with Kant on October 1 2, 1794; he vowed not to publicize those of his (specifically religious) opin­ions that were censured, though also not to print what he did not believe.42 As mentioned earlier, Kant was under great pressure to avoid having ME! censored, for if W6l1ner censored it, nothing could have prevented him from censoring whatever he pleased. This would have threatened the very free­dom of thought so cherished by Kant. In the second edition of MEJ ( 1 798), after quoting the reviewer 's objection, Kant directly alluded to the censors :

Now, admitting that there is a paradox here, 1 hope that, when the view is examined more closely, it will at least not be convicted of being heterodox. (MEJ 37 1)

Kant indicates that he needs to preserve a veneer of orthodoxy, and he appears to have made use of the device the censors countenanced: the contrast between popular prose and precise academic principle . According to Kant's unconditional metaphysical principles in MEJ, there is only a duty to obey legitimate law or legitimate authority. The duty to obey established law or political authority is thus absolute only in the case of a fully legiti­mate, that is, ideal state !43

It is tempting in this light to read Kant's response to the charge of heterodoxy in another way. Kant alludes to Wollner 's censors here, but is that all? Who has accused him of being heterodox? Bouterwek. Who calls for closer examination of his view? Kant. What does he say upon close examination?

KANT'S STATE, LAW, AND OBEDIENCE 403

[A] categorical imperative says: "Obey the suzerain (in everything that does not conflict with intemal morality) who has authority oyer you ! " (ME! 37 1)

What sort of heterodoxy is rebuUed by this remark? On c\ose reading, this remark rebuts Bouterwek's charge that Kant has betrayed liberal political principles. The remark limits dutiful obedience to obeying "everything" that does not conflict with the Categorical Imperative, and this qualification is found only upon very c\ose examination of Kant's texts and doctrines. Compatibility with the Categorical Imperative is not only a necessary con­dition for an action being moral, it is also Kant's sine qua non for the legitimacy of positive law.44 Hence this crucial qualifier conceming "inter­nal morality" indicates that Kant restricts the absolute duty to obey to obeying legitimate law. When properly understood, Kant's important par­enthetical qualification shows that his position in ME! is consistent with his position in the Religion. There he twice endorses the principle that 'We ought to obey God rather than men. ' Kant interprets this saying to mean the following:

[W]hen men command anything which in itself is evi1 (directly op­posed to the law of morality) we dare not, and ought not, obey them. (Religion 90n2, ef 142nfAk VI 99n, ef 1 54n)45

Kant thus espouses the general principle that one ought not obey a ruler 's commands to perform immoral actions.46

VIII. A Limitation of Kant's Constitutional Theory

in the Metaphysical Elements 01 Justice

According to Kant, all that citizens legitimately can do about unjust legislation or executive action is to register public, formal complaint (§49 G.R.fA 3 19) . The curious point is that, having argued for the absolute and unopposable coercive authority of the executive, he nonetheless grants that the people "have inalienable rights in respect of the nation's ruler, even though these cannot be coercive rights" (T&P 303) .47 The only innate right Kant recognizes is the right to freedom insofar as that freedom is compatible with the freedom of others, though he holds that this one right inc\udes those of innate equality and of being one's own master (ME! 237-238 ; ef T&P 292-293, PP 350n) . The only right he mentions in connection with "inalien­able rights" is the right to freedom of expression, said to be the sole guar­antor of one's innate rights (T&P 304) . These rights cannot be coercive rights against a ruler, and thus these rights cannot be enforced against the ruler, because once a state of civil society is established there can be no independent authority oyer the citizens and the nation's leader (T&P 300, §49 & G.R.fA 3 17-320) .48 This point reveals the most interesting limitation of Kant's conception of the three govemmental authorities. Why can't there

404 KENNETH R . WESTPHAL

be an independent authority to judge a dispute between the chief executive and the citizens? The issue would not be whether the constitution or consti­tutional laws are being administered, but whether instead some other, extra­constitutional initiative is put into effect. Thus the office of an independent judge is very plausible. Kant's way of talking about the unopposable power of the executive in effect grants to the executive what he denies to the people, the power to judge the legality of any particular piece of legislation by passing effective sentence or decree. He denies the right of judging the legality of edicts to the people on the basis of his division of governmental powers. Should he not similarly deny this right to the executive on the same grounds? The very point of republicanism on Kant's view is the division of powers, and he explicitly states that "neither the sovereign nor the ruIer can judge; they can onIy appoint judges as magistrates" (§49 3 1 7) . This remark, made early in his discussion of governmentaI powers in ME!, is ignored in his treatment of public resistance to the ruIer. This is unfortunate, for the issues involved in a dispute between sovereign Iegislative authority and executive authority are just the kind to take before a constitutional court. Such a court could adjudicate disputes between citizens (who in a republic are sovereign) and their chief executive, thus giving citizens an effective redress against unjust exercise of executive power far short of revoIution, but far beyond mere public expression of dissent.

Kant says very little in ME! conceming judicial competence. His re­marks consistentIy indicate that, on his view, courts pass soIely on disputes conceming property rights. His very brief remarks may be quoted here in full :

Public Iegal justice can be divided into three parts as it relates to the possibility, actuality, and necessity of the possession of objects in ac­cordance with laws . . . . These three parts are protective, reciprocally acquisitive, and distributive Iegal justice, respectively. (ME! §4 1 306)

. . . the judicial authority ( . . . assigns to everyone what is his own by law) . . . (ME! §45 3 1 3)

. . . once the facts in a legal suit have been established, then a court of justice has the judicial authority to apply the law and to render, through the mediation of the executive authority, to each person what is his due, his property. (ME! §49 3 1 7)

This is a very limited conception of judicial prerogative. It only concems property; there is nothing here conceming a constitutional court to pass on the legality or constitutionality of any particular positive laws. Would Kant have accepted the institution of a constitutional court? The idea, especially if promulgated by ' the old jacobin' Kant, would have been unweIcome at the time in Prussia . Prussia didn ' t achieve an institutionaI separation be­tween executive and judiciary until Stein's reforms of 1 808 .49 Kant was

KANT'S STATE, LAW, AND OBEDI ENCE 405

already radical in defending the rule of law against the 1ikes of Friedrich the Great's arbitrary, if sometimes enlightened, despotism and in defending freedom of political expression against both him and Friedrich Wilhelm n's vindictive censors. Kant apparently expressed himself unequivocally on this issue in ME!:

[T]he constitution itse1f cannot contain any article that would allow for some authority in the state that could resist or restrain the chief magis­trate in cases in which he violates the constitutional laws. (ME! §49 G.R./A 3 19)50

Kant 's reason for this, as before, is that only the chief executive wields supreme coercive force. However, Kant 's remarks about the competence of the courts indicate that he didn 't consider a court as a candidate for an office that might "restrict or restrain" the chief executive 's extra-constitutional initiatives. 5 1 Moreover, this unqualified statement stands in direct contra­diction with his equally unqualified earlier statement concerning impeach­ment, that the sovereign can withdraw the chief executive's authority, depose him, or reform the executive administratÍon (§49 3 1 7) . 52 Apparently Kant was of two minds on this topic. In this connection it is worth recalling the caveat at the end of Kant's Preface to ME!:

Toward the end of the book, I have worked out some of the sections in less detail than might be expected in comparison to the earlier ones. This is partly because it seemed to me that they could be easily inferred from the ear1ier statements and partly because the subjects of the later parts (concerning pub1ic law) are just now under so much discussion and are yet so important that they amply justify delaying for a while the making of any decisive pronouncements. (ME! 209)

This statement contrasts the detail and definitiveness of the first and second parts of ME!; it does not allow emphasizing earlier oyer later parts of the second part on public law, and so does not allow stressing Kant's tripartite division of powers oyer his absolutist rejection of resistance. How obvious are the implications of Kant's doctrine of private law for his doctrine of public law is debatable, especially on the point here at issue, the conf1ict between the republican and the despotic elements in Kant's doctrine of public law. This much is certain. Kant claims that his doctrine of public law is not given definitive expression in ME!.

Kant is much closer to a consistent position about obedience, resistance, and the limits of executive authority than may at first appear. It would be consistent to exclude any right of rebellion, or perhaps even resistance, against a proper1y constituted republic containing a division of powers with a system of checks and balances, where revolt against the whole regime, government and constitution, would be prohibited.53 Such an argument could be made on very much the grounds Kant offers, and such an argument

406 KE N N ETH R . WESTPHAL

could be made consistent with Kant's argument against the right to rebel by modifying that argument in one small, though significant, detai1. Instead of claiming that the "chief magistrate" wields supreme coercive force, Kant could c1aim that the "supreme authority" -now taken as an umbrella term for the three branches of government-wields supreme coercive force . This emendation would shift the duty to obey from obedience to a particular person to obedience to a proper1y formed republican constitution and gov­ernment. Under such republican rule, resistance would be prohibited for near1y the same reason, that the government wields supreme coercive power, but it would also be otiose, since the people would be resisting or rebelling against themselves, as the ultimate seat of sovereignty, and there would be constitutional channels to redress abuses of power. By my lights, such a position is the most obvious implication of Kant 's doctrine of private law for his doctrine of public law, since Kant justifies membership in civi1 society as a necessary means for preserving individual freedom. It is worth noting that such implications are not merely obvious with historical hind­sight. Apart from judicial redress, this reconstruction of Kant's view is very near1y that offered by one of his popularizers, Johann Adam Bergk.54 It may be that Kant hadn't yet thought through the relation between his division of governmental powers and the supremacy of state coercive power to see that reconci1ing them requires a doctrine of checks and balances rather than a strict separation of powers in order to avoid the usurpation of power by one branch of govemment.

Several historical points concerning constitutional restraints on the exec­utive are pertinent here. First, the framers of the Constitution of the United States of America began their deliberations with firm belief in the separa­tion of powers, but were driven to embrace checks and balances in order to avoid the usurpation of power by any one branch of government.55 Second, Kant cannot be faulted for not thinking of a constitutional court due to the example of the United States Supreme Court. Although the US revolution he admired occurred 2 1 years before MEJ was published, and the US con­stitution was ratified in 1788, the authority of judicial review, as a judicial power to pass on the constitutionality of federal law, is not expressly written into the US Constitution. This distinctly American contribution to jurispru­dence is not fully and explicitly formulated unti1 Chief Justice Marshall's decision in Marbury vs. Madison in 1 803 (the year before Kant's death, only six years after MEJ appeared) , and it is widely regarded as Marshall 's invention, for the policy has only seant historical preeedent. 56 Kant can be faulted for failing c1ear1y to reeognize the possibility that a eonstitution or a set of legal institutions be sovereign, for this eoncept of sovereignty was established by the Freneh and Ameriean Revolutions he so admired. On this view of sovereignty, the law is truly "self-ruling." Had he eonsistently recognized this, he might also have recognized that a constitutional court is a neeessary component of a "self-ruling" legal system.57

KANT'S STATE, LAW, AND O B E DIENCE 407

Third, Kant's historical position in the development of Iiberal constitu­tional theory cannot excuse his not considering a system of checks and balances, nor a judicial competence that extends to trying executives for tyranny. Machiavelli in his Discourses approves of a kind of system of checks and balances. He claims that the three good forms of government, principality, aristocracy, and democracy, are inherently unstable and so short-lived:

Hence prudent legislators, aware of their defects, refrained from adopt­ing as such any one of these forms, and chose instead one that shared in them all, since they thought such a government would be stronger and more stable, for if in one and the same state there was principaIity, aristocracy and democracy each would keep watch oyer the other.58

Machiavelli credits Sparta 's 800 years of stability to the mixed govemment Lycurgus gave it (ibid.) . On these points, he follows an ancient source: Book VI of Polybius's Histories.59 It may seem quite a stretch from a mixed form of government of this ancient sort to the modem American system of checks and balances among the three branches of govemment. However, despite the shared control oyer legislation in such a mixed system, there is a root connection. Moreover, this connection was common knowledge in the 17th and 1 8th Centuries, especially in England, where Polybuis was widely read and republicans, in their struggle with monarchists, favorably compared the English system of govemment and its implicit checks on abuses of power with Polybius's ideal of a mixed form of government.60 In the mixed system, the state 's elders-representing the aristocratic ele­ment-sit in judgment oyer disputes between prince and people. This as­signment of roles is reflected in the judicial capacities of the EngIish House of Lords, which adjudicates cases of treason and impeachment, where such charges may be brought against an executive by the people through the House of Commons. Machiavelli insists repeatedly on the importance of providing constitutional means of judicial redress for grievances in order that disgrunt1ed would-be plaintiffs don 't seek extra-constitutional means of vengeance that might destroy the state. Machiavelli explicit1y mentions bringing grievances against executives, even the prince, including charges of tyranny.61 Machiavelli thus ascribes a much broader role to the judiciary than does Kant. The indications 1 have found, however, strongly suggest that Kant had not read either Machiavelli or Polybius.62

Finally, Kant certainly read and esteemed Montesquieu's Spirit 0/ the Laws .63 Montesquieu directly advocates a system of checks and balances, which is central to what he calls a "moderate constitution."64 While he did not develop a doctrine of judicial review, he insists that the legislature "has a right and ought to have a means of examining in what manner its laws have been executed,"65 and he endorses a legislative power of impeachment oyer the executive.66 As has been noted, Kant, too, at one point grants the legis-

408 KE N N ETH R. WESTP HAL

lature the power of impeachment. Kant cannot be excused on historical grounds for not having considered more thoroughly a system of checks and balances. Indeed, Kant says that his argument against the right to revolt or legislatively to restrict the executive implies that "a so-called moderate political constitution . . . is nonsense" (§49 G.R.fA 320) . The phrase "mod­erate constitution" is Montesquieu's, to whom Kant thereby surely aludes. Thus it appears that Kant criticizes, rather than ignores, Montesquieu's analysis and defense of moderate constitutions and the system of checks and balances they involve. Unfortunately, he criticizes Montesquieu without having himelf first developed a consistent account of the division of powers and its implications. Most significant1y, Kant overlooks how his own view conflates the executive and legislative powers into one despotic office.

IX. Kant on the State and Obedience in

the Reflexionen zur Rechtsphilosophie

Kant's unpublished notes (Reflexionen) cannot be dated accurately, and it is not clear whether Kant endorsed what he wrote in them. Thus ascribing a view to Kant on their basis is hazardous. However, Kant's notes on philosophy of law contain some very interesting statements on the issues and problems under discussion. A brief glance at those notes is thus in order. Kant's notes do not present a clear, univocal , distinct view. 1 discuss onIy those notes that augment his published views; they are selected from a welter of material , much of which repeats views and confusions found in his publications.67

In his notes, Kant states that the constitution determines all civil rights, both for citizens and for rulers; there can be no secret rights.68 He also states that a genuine constitution must involve some channels for redress of griev­ances; it cannot require passive subjection to someone else's legislation.69 He states a clear separation of executive and judiciaI offices and office holders: No monarch can dismiss magistrates or abolish their offices except insofar as they are condemned by another judge.70 Kant even states that it is unjust for a singIe person to be sovereign.71 The obvious remedy is to divide sovereignty among distinct offices and officials. As in "Theory and Practice," in his not.es Kant distinguishes hetween judging in the sense of determining the facts and judging in the sense of issuing an authoritative, enforceable judgment.72 He fürther states that an authority can be constitu­tionally constituted to judge the ruler's adherence to the social contract, as in the English Parliament (where the House of Lords sits in its judicial capacity for impeachment trials) .73 Most important for present concerns, in two passages Kant clearly distinguishes between obedience to laws and obedience to rulers and places law above the ruler. Indeed, he states that there can be a legitimate court to assess the unconstitutionality of a ruler 's commands and that such a court can withdraw a ruler's authority by sus­pending the duty to ohey him.

KANT'S STATE, LAW, AND O B E DIENCE 409

[A]l1 subjects can of course be bound to obey those laws that limit the power of the monarch, and there can be a court that judges and senten­ces [beurteil und richtet] those actions that they do by command of the souverain. In this way a11 obedience to him can be withdrawn. (Reflex­ion 805 1 ; Ak XIX 594, Iines 16-20; my tr.)

The people cannot vindicate their freedom through rebe1lion (seditione), but only through the right vested in them by the constitu­tion, if the summus imperans [supreme ruler] has broken the pactum fundamentale. Indeed they may not do this through a newly usurped power, but only by means of that [power] that they have always had according to the pacto fundamentali, according to a law that grants this [power] to them and specifies its limits so that the summum imperium [supreme authority] remains uninterrupted at a11 times according to the form of the constitution and does not in the mean time enter the Status naturalis, since in this [state] they cease to be a people, there is no law, nor any superior towards whom obedience is a duty. (Reflexion 8043; Ak XIX 590, lines 7- 16; my tr.)

These passages describe the rudiments of impeachment by constitutional means. Impeachment is a drastic remedy against any official. However, once one grants the legitimacy of a court to try impeachment, only a sma11, though important, step is needed to recognize a court of that stature being vested with the power of judicial review to determine the constitutionality of executive or legislative acts. That step is missing in Kant 's principles of law, but Kant does not overlook one crucial point . Three times his Reflexionen state that not a11 revolutionary activity is rebe11ious. Forcible resistance to a ruler is not rebel1ious in those cases where the people disobey a ruIer who has broken the social contract, where they have the constitu­tional right to resist such abuses of power, and where they do not destroy the social whole in so doing.74 These views are at sharp variance with Kant 's express denial of the right to revolt even under limited constitutions stated in ME! (above, §VI), and they rest on the cruciaI distinction forgotten in his published discussion of the issue, the distinction between obedience to a ruler and obedience to a higher source of law-the constitution. LiberaIs can only wish that Kant had developed and incorporated these thoughts into his Metaphysical Elements of Justice.

X. Kant's Ultimate Moral-Pragmatic Grounds for Obedience to Actual States

There is still a problem to resolve. Kant's response to the censors in­cluded his vow not to print what he did not believe, and he printed some strong denials of the right to rebe1. For example, Kant states: "It is the people 's duty to endure even the most intolerable abuse of supreme author­ity" (§49 G.R./A 320).75 For a11 his moral idealism, Kant was a political

41 0 KEN N ETH R . WESTPHAL

realist. He grants that actual states have only come into existence by seizure of power, that extant states always have served to subjugate peoples, and that no actual state could fully exemplify the principles that would legiti­mate it (§52 340, MEJ 37 1 , PP 37 1) . Why, then, did he maintain so force­fully the obligation to obey actual state authority, given that no such authority was in fact legitimate? As Seebohm points out, strictly speaking, on Kant's view all actual states only represent efforts to leave the state of nature; humanity has not yet solved its most difficult task, to form a just civil union.76 The problem with acknowledging this point is that Kant grants that people have the right to use coercion to force people to join civil society (§44 3 1 2) . The direct implication of this is that if rulers haven't left the state of nature because they disregard human rights, then citizens have the right to use coercive force against their rulers' illegitimate measures in order to improve the justness of society !77 We are left with the following circum­stance. According to Kant, there can be no legal justification of revolution. Nor can there be any moral justification of resistance or revolution, pro­vided that the government is legitimate. Yet Kant expressly believes there are and have been no fully legitimate governments, and that there is no legitimate enforcement of illegitimate laws ! Kant could argue-he certainly believed-that obedience to imperfect states is obligatory under some cir­cumstances, but he didn't develop his view on this topic in any detail, and he would need to be very specific about the grounds of such obligations and about the extent or kinds of permissible imperfections.78 This development would have to take into account the avai1ability and effectiveness of channels for redress of grievances, e.g., a popular assembly or a constitutional court.

If the duty to obey is unqualified only in perfect states, as Kant actual1y argues, then the duty to obey within imperfect states must rest on broader grounds of obligation. Kant upholds such broader grounds. Qur obligation to act morally entails an obligation to do whatever is necessary to act morally. Kant holds that this inc1udes membership in a state. According to Kant membership in civil society helps to bring about an improvement in moral character that is otherwise not generally possible (PP 366-67) . The coercive laws of civil society counterbalance our inclinations to act immorally, and through this habituation we eventually are enabled to consider acting, not only in accordance with duty (as legitimate coercive laws require), but on the basis of duty. This is one important reason why Kant's discussion of the metaphysical elements of justice precedes his discussion of the metaphysical elements of virtue, as Parts Qne and Two of The Metaphysics of Morals.79 Kant's assertion of popular sovereignty, when confronted with his concern about tyranny of the majority (PP 352), his insistence on political represen­tation (§49 G.R.fA 3 19), and his ultimate conflation of executive and legis­lative authority into the office of the ruler, shows that he wavers on the question, Who has the ability to express the general wil1? He distrusts rulers and subjects alike on this count, but the workings of nature and history are

KANT'S STATE, LAW, AND OBEDI ENCE 41 1

supposed to serve a moral end. One element in these workings is that the chief executive, by actually representing sovereign authority, procures "an effective influence of this idea on the popular Will" (§5 1 338) . Even despots unwittingly serve the moral purpose of counter-balancing what Kant else­where calls the "radical eviI in human nature."80 Gradually, through the workings of these influences, Kant believes, "the people become capable of being influenced by the mere idea of the law's authority . . . and thus is found to be its own legislator (which [ability] is originally based on [innate] right)" (PP 372) . Kant's ultimate grounds for membership in and obedience to actual states are pragmatic, conditional, and rest only indirectly on his fundamental moral principles. On these broader principles, one is obligated to obey an actual, imperfect state only to the extent that obedience to it serves to improve one 's moral character. If a regime is so corrupt that it degrades its citizens' characters more than anarchy or the grave hazards of revolt, then Kant offers no grounds for contending that anyone is obligated to obey it. His final grounds of obligation to actual states are therefore not found in the unconditional principles of ME.! (or "Perpetual Peace" or "Theory and Practice") and are not absolute grounds ! 8 1

These pragmatic grounds for obeying actual states do appear in ME.!. Kant begins his discussion of the right to rebel in ME.! by warning against inquiring too closely into the historical origins of any actual state. Kant strongly suggests that questions of the historical origins of states, and in particular questions of whether there was an historical social contract to found a state, are irrelevant to the question of whether one presently is obligated to obey the extant authorities (§49 G.R.fA 3 1 8) . Kant returns to this point in his reply to Bouterwek, where he reiterates this point (ME.! 372) and insists that no empirical state would ever fully conform to the conceptual ideal of a perfect state (MEJ 371 ) . This implies that our obliga­tion to obey actual states cannot rest on their perfect conformity with the ideal. It is noteworthy, in this connection, that Kant offers a pragmatic argument against revolutionary reform in his reply. He insists that a defec­tive constitution is to be improved by reforms that are introduced by the chief of state . "Otherwise, if a subject were to adopt a conflicting maxim (to proceed in accordance with his Wilkür) , a good constitution would come into being only as a result of blind chance" (ME.! 372) . Now since on Kant's view a good constitution is required both to fulfill the ideal of civil freedom (to say nothing of peace) and to improve as much as possible one's moral character, if Kant is right that a good constitution would come out of a revolution only by chance, then he has strong moral-pragmatic grounds to reject the rightfulness of revolution. 82 As he states in "Perpetual Peace,"

[A]ny legal [rechtlich] constitution, even if it conforms with right only to a small degree [nur in geringem Grade rechtmiiflig] , is better than none, and the latter fate (anarchy) would result from premature reform. (PP 373n)

41 2 KEN N ETH R. WESTPHAL

Kant's duty to obey established political authorities is conditional. It is conditional on membership in the state improving one's moral character more than non-membership, and on membership in the state leading most directly to a good constitution. The strength of Kant's anti-revolutionary rhetoric in these essays does not result merely from Wollner 's threats. It refIects the fact that Kant thinks these conditions are easily fulfil1ed by almost any state. Kant's position on revolution is ultimately consistent, since the strength of his moral-pragmatic rejection of a right to disobey is matched by the depth of his pessimism in these essays about the outcomes of revolutions. Whether his pessimism is warranted is a separate question that cannot be addressed here; recent historical experience suggests not.83 Whether it is warranted or not, its implications for our political duties depends central1y on the extent to which there are constitutional means for redressing grievances against the govemment. Kant did not adequately address this issue either, and could not adequately address it before having more firmly grasped a third: the issues involved in the division of powers. Throughout the al1eged "anti-revolutionary' texts Kant evinces a faith in the good effects (if not the good intentions) of rulers, an underestimation of the corruption and corrupting infIuence of tyrants, and an underestimation of the common sense and reasonably good prospects of success of some revo­lutionaries.84 However, despite some disparaging remarks about democracy (PP 352-352), Kant's democratic aspirations are plain,85 even if he did not succeed in reconciling his moral idealism and his political realism. Kant did not work out his political principles thoroughly enough to make them work out in practice. The point of this conclusion is not simply to chastise Kant for this failure, but rather to emphasize both the importance and the diffi­culty of this task, for Kant thought deeply about various moral, legal, and pragmatic considerations that bear on this issue. His difficulty in reconcil­ing these factors is instructive, for it reminds us that we, too, need to grapple carefully with the relation between political principles and political prac­tices in order to maintain and improve the legitimacy of our institutions.86

ENDNOTES

lThe review is reprinted in Kant's Gesammelte Schriften (K6niglich Preussische Akademie der Wissenschaft [Berlin and Leipzig: de Gruyter, 1 922-]), XX 445-453n. Citations are as follows. The Akademie Ausgabe is abbrevated "Ak;" volume numbers are given in Roman numerals. 1 cite only the Akademie pagination, except for Kant's "Observations," Religion, and Correspondence. ME! is in Ak VI, tr. J . Ladd (lndianapolis: Bobbs-Merrill, 1965). Appended to ME! §49 is a "General Remark" with lettered subsections. This remark is abbreviated "G.R." Where a lettered subsection is referred to, the letter is given after a slash, e.g . . , (§49 G.R.fA). AU sections cited by Arabic numerals are from ME!. Citations from ME! not bearing a section number are either from the Introduction or the Appendix . Sections indi­cated by Roman numerals are intemal to this article.

41 2 KEN N ETH R. WESTPHAL

Kant's duty to obey established political authorities is conditional. It is conditional on membership in the state improving one's moral character more than non-membership, and on membership in the state leading most directly to a good constitution. The strength of Kant's anti-revolutionary rhetoric in these essays does not result merely from Wollner 's threats. It refIects the fact that Kant thinks these conditions are easily fulfil1ed by almost any state. Kant's position on revolution is ultimately consistent, since the strength of his moral-pragmatic rejection of a right to disobey is matched by the depth of his pessimism in these essays about the outcomes of revolutions. Whether his pessimism is warranted is a separate question that cannot be addressed here; recent historical experience suggests not.83 Whether it is warranted or not, its implications for our political duties depends central1y on the extent to which there are constitutional means for redressing grievances against the govemment. Kant did not adequately address this issue either, and could not adequately address it before having more firmly grasped a third: the issues involved in the division of powers. Throughout the al1eged "anti-revolutionary' texts Kant evinces a faith in the good effects (if not the good intentions) of rulers, an underestimation of the corruption and corrupting infIuence of tyrants, and an underestimation of the common sense and reasonably good prospects of success of some revo­lutionaries.84 However, despite some disparaging remarks about democracy (PP 352-352), Kant's democratic aspirations are plain,85 even if he did not succeed in reconciling his moral idealism and his political realism. Kant did not work out his political principles thoroughly enough to make them work out in practice. The point of this conclusion is not simply to chastise Kant for this failure, but rather to emphasize both the importance and the diffi­culty of this task, for Kant thought deeply about various moral, legal, and pragmatic considerations that bear on this issue. His difficulty in reconcil­ing these factors is instructive, for it reminds us that we, too, need to grapple carefully with the relation between political principles and political prac­tices in order to maintain and improve the legitimacy of our institutions.86

ENDNOTES

lThe review is reprinted in Kant's Gesammelte Schriften (K6niglich Preussische Akademie der Wissenschaft [Berlin and Leipzig: de Gruyter, 1 922-]), XX 445-453n. Citations are as follows. The Akademie Ausgabe is abbrevated "Ak;" volume numbers are given in Roman numerals. 1 cite only the Akademie pagination, except for Kant's "Observations," Religion, and Correspondence. ME! is in Ak VI, tr. J . Ladd (lndianapolis: Bobbs-Merrill, 1965). Appended to ME! §49 is a "General Remark" with lettered subsections. This remark is abbreviated "G.R." Where a lettered subsection is referred to, the letter is given after a slash, e.g . . , (§49 G.R.fA). AU sections cited by Arabic numerals are from ME!. Citations from ME! not bearing a section number are either from the Introduction or the Appendix . Sections indi­cated by Roman numerals are intemal to this article.

KANT'S STATE, LAW, AND OBEDIENCE 41 3

2Cf. Republic 1 340e.

3Thomas Seebohn and Harry van der Linden discuss the flaws of various efforts to explain or to explain away Kant's apparent inconsistency. See Seebohm, "Kant's Theory of Revolution" (Social Research 48 [ 1 98 1] , 557-587), 565-569, and Harry van der Linden, Kantian Ethics and Socialism (lndianapolis: Hackett, 1 988), 176-1 79. Calling Kant's denial of the right to resist the ruler 'Hobbesian' understates Kant's view. Hobbes acknowledged a natural right to preserve one's own life, even against the ruler, even in cases of just capital punishment. Kant recognizes no such restriction. (Seebohm understates Kant's Hobbesian strain [op. cit. , 558] .) For a discussion of Kant's theory of punishment see Jeffrie Murphy, "Kant's Theory of Criminal Punishment" (L.W. Beck, ed. , Proceedings ofthe Third lnternational Kant

Congress [Dordrecht: Reidel, 1 972] , 434-44 1) .

4"Kant on the Right of Revolution" (in : Essays on Kant and Hume [New Haven: Yale University Press, 1978], 1 7 1 - 1 87), 1 83- 1 84, cf. 1 87 . (Unless otherwise noted, aU references to Beck are to this article.) Sidney Axinn, in "Kant, Authority, and the French Revolution" (Journal ofthe History ofldeas 32 No. 3 [ 1971 ] , 423-432) 424,

and Seebohm (op. cit. , 560, 57 1 -572, 573) argue that Kant's principled 1ega1 arguments against the right of revo1ution are consistent with his pragmatic cautions against the hazards of revo1utionary activity and with his historica1 reflection that some revo1utions may achieve juridica1 improvements, because these assessments are made upon distinct, though compatib1e grounds. Unfortunate1y, they do not exp1ain how these distinct grounds of assessment are to be coordinated. John Atwell recently argued that Kant's position is mistaken, but not inconsisten, since Kant ho1ds that the way for citizens to promote a republican constitution is to obey the political authorities (Ends and Principles in Kant 's Moral Thought [The Hague: Nijhoff, 1 986] , 1 89- 1 93, esp. 1 9 1 ) . Atwell presents seven distinct, though close1y re1ated, arguments b y Kant against the right to revolt (ibid. , 1 77- 1 80). The differences among these arguments are interesting, but they do not affect the points 1 argue here, since Atwell does not consider them in connection with Kant's princip1es concerning the 1egitimacy of 1aw. 1 believe Kant 's position is clear, but is not the one Atwell finds that utterly forbids revolt under any circumstances whatsoever (ibid. , 1 76). None of these commentators address the tension 1 take up here, within Kant's metaphysica1 princip1es of 1aw, between Kant's insistence on obedience to established authority and his princip1e of legitimate 1aw, nor do they notice how Kant qualifies his arguments for obedience.

5Robert Spaeman finds "Thrasymacus's" strategy in Aquinas (Summa Theologica

II, llae qu . 42 art. 2 ad 3) , but doesn ' t see it in Kant ("Kants Kritik des Widerstandsrechts" [in: Zwi Batscha, ed. , Materialien zu Kants Rechtsphilosophie;

Frankfurt: Suhrkamp, 1 976; hereafter cited as "Batscha"; 347-358] , 347). He a1so ignores Kant's doctrine of division of powers and its implications for his position on the right of resistance.

6'fhis is a generalization of Kant's point about how the spirit of trade is incompatib1e with war, and that the spirit of trade eventually overtakes every nation ("To Prepetua1 Peace: A Phi1osophical Sketch;" Ted Humphrey, tr. , Perpetual Peace and Other Essays

[Indianapolis: Hackett, 1 983; hereafter "Humphrey;" 107- 1 43], Ak VIII 368).

41 4 KEN N ETH R . WESTPHAL

7See Bemd Ludwig, Kants Rechtslehre (Hamburg: Meiner, 1988), 39-4 1 .

8See Fred Beiser, Between Kant and Fichte (Cambridge: Harvard University Press, 1 993), ch. 2, "The Politics of Kant's Critical Philosophy," esp. pp. 48-52.

9See Beck, op. cit. , 1 7 1 - 1 72.

lO"On the Proverb: That May Be True in Theory, But is of No Practical Use" (Humphrey, 6 1 -92; Ak VIII) .

l lBeck, op. cit., 175.

12John Locke, Second Treatise of Government ( 1 689), § § 1 49, 1 55, 240 (Indianap­olis: Hackett, 1980; 77-78, 80-8 1 , 1 23). Though Locke can be criticized for under­estimating the state as a condition for acquired rights, and for over-simplifying the decision to revolt, Kant 's argument can still be faulted for disregarding the merit of Locke's point that no legitimate govemment is threatened by the principle of non-obedience to illegitimate law, and for disregarding the institutional require­ments for assessing and, if needed, redressing the legitimacy of law (see §§VII-IX) .

1 3Kant remarks that a monarch who was to reestablish a previous ecclesiastical constitution would be doing something illegitimate, but that this measure could not be resisted verbally or actively (T&P 304-305). However, Kant states "in aU cases . . . when something ofthis sort is decreed in this manner . . . " ("In allen FiiIlen aber, wenn etwas gleichwohl doch von her obersten Gesetzgebung so verfügt wiire . . . ") (emphasis added). Kant's quantifier is restricted to cases of the ruler reinstituting a prevous ecclesiastical constitution by perpetual decree. Thus Kant's statement on this matter daes not pertain to other cases of pratesting or resisting illegitímate monarchical decree. It is worth noting two related points. Pirst, this particular instance of monarch reinstituting a prevous ecclesiastical constítutian comes very close to the kind of event Kant admits in a Reflexion would justify revolt, but also wouldn't occur in a civilized state (see p. 40 1 below) . Second, in 1 788 Priedrick Wilhelm II issued a law enforced by penalties that declared Lutheranism to be the state religion . This does not amount to installing an ecclesiastical constitution, but Kant's opposition to an ecclesiastical constitution appears also to express definite, if oblique, disapproval of Friedrick Wilhelm II's law.

14Por Kant's distinction between innate and acquired rights see ME.! 237. Acquired rights are acquired through a juridical act; they include property rights, the existence, enforcement, and enjoyment of which are fundamental to Kant's social contract argument.

15Peter Nicholson erroneously contends that Kant's Principle of Publicity amounts to nothing more than the Categorical Imperative ("Kant on the Duty Never to Resist the Sovereign" [Ethics 86, 1976, 2 1 4-230] , 224).

16See Onora O'Neil [formerly NeU], Acting on Principle (New York: Columbia University Press, 1975), esp. ch. 5.

17Van der Linden offers this objection to Kant's argument against revolution (op. cit. , 1 84- 1 85), without noticing that Kant himself offers it, and without considering

KANT'S STATE, LAW, AND OBEDIENCE 41 5

what this must mean for interpreting Kant's viewso Hella Mandt neither eonsiders this objeetion, nor the important faet that Kant offers it himself ("Historiseh­politisehe Traditionselemente im politisehen Denken Kants" [Batseha, 292-330])0

Dieter Seheffel offers some interesting eriticisms of the first principle of publieity, but he also ignores Kant's second prineiple, and henee Kant's eriticisms of the first principle ("Kants kritisehe Verwerfung des Revolutionsrechts" [in: Ro Brandt, edo , Rechtsphilosophie der AufkLiirung: Symposium WolfenbütteL 1 981 ; Berlin: de Gruy­ter, 1982; 1 78-2 17], 1 82- 1 83)0

1 8Cp o Kant's denigration of questions about the faetual origins of states "that threaten the state with danger if they are asked with too mueh sophistieation by a people who are already subject to eivil law" (§49 GoR.fA 3 1 8) 0 Jt might be objeeted that I am unfair to Kant's argument beeause he applies this first Principle of Publieity to the issue of rightful rebellion only in eonneetion with an original social eontraet, so that the basis of Kant's prohibition on revolution is not solely one of might, but of the legitimate might involved in forming a stateo This objeetion is faultyo Kant's initial assertion of and rationale for the first PrincipLe of Publicity is independent of his diseussion of the soeial eontraet, and my eriticisms of its normative Kantian status thus stand-including Kant 's own later indication that this first prineiple is meaningless in eonnection with the supreme ruler preeisely beeause the supreme ruler wields supreme eoercive authority (see below)o Kant offers distinet arguments against revolution, one based on the social eontraet and another based on the Principle of Publieityo These grounds require independent evaluationo

191 have emended Humphrey's translation of the last word in this statement; he renders "Recht" as "moralityo"

20Kant's seeond Principle of Publieity does not go too far in the other direetiono The laws enaeted and the ediets declared in a republie will require publieity in order to inform the citizens of them so that they ean obeyo

2 1 "The supreme authority resided originally in the people, and all the rights of individuals eonsidered as mere subjeets (and especially as political officials), must be derived from this supreme authority" (§52 34 1) 0 Compare his sole statements about the ground of the three govemmental authorities (diseussed presently) : "o o o

the three authorities in the state o o o embody the relationship of a universal suzerain (who, if regarded under the laws of freedom, ean be none other than the united people) to the aggregate of the individuals regarded as subjeets o o o" (§47 3 1 5]);

"The three authorities in the state that proeeed out of the eoneept of a eommonwealth in general are nothing more than so many relationships in the united Will of the people, whieh originates a priori in reason" (§5 1 338]); and see belowo

Ladd translates " Wille" by "Will" (eapitalized) in order to distinguish it from " Willküro" Kant's term " Willkür" appears in almost none of the passages discussed in the present essay, so no further indieation will be made that "will" or "Will" translates " Willeo" Oceuranees of " Willkiir" are indieatedo For discussion of this distinetion, see Henry Allison, Kants Theory 01 Freedom (Cambridge: Cambridge University Press, 1990), eho 70

22Jt is worth quoting Kant 's words: "In a society under a civil eonstitution, natural

41 6 KENNETH R . WESTPHAL

law (that is, the kind of law that can be derived for such a society from a priori principles) cannot be abrogated by the statutory laws of the society" (§9 256); "A state is a union of a multitude of men under laws of justice. Insofar as these laws are necessary a priori and follow from the concepts of extemal justice in general (that is, are not established by statute), the form of the state is that of a state in general, that is, the Idea of the state as it ought to be according to pure principles of justice. This Idea provides an intemal guide and standard for every actual union of men in a commonwealth" (§45 3 1 3); " . . . whatever might be the kind of laws to which the citizens agree, these laws must not be incompatible with the natural laws of freedom and with the equality that accords with this freedom . . . " (§46 3 1 5) ; "By ' the well-being of the state' is meant that condition in which the constitution conforms most closely to the principles of justice, that is, the condition that reason through the categorical imperative obligates us to strive after" (§49 3 1 8) . There is also strong indirect evidence or ascribing this axiom to Kant. This axiom is the presupposition of the entire ME!, insofar as his book is commiUed to demonstrating the legitimacy of membership in the state based on the " sole innate right to freedom" (ME! 237-238), a right deriving from his analysis of freedom in the Groundwork.

23In "Perpetual Peace" Kant is explicit about the distinct offices of legislator and executive requiring distinct officers. He states: "Every form of government which is not representative is, properly speaking, without form. The legislator can unite in one and the same person his function as legislative and as executor of his will just as little as the universal of the major premise in a syllogism can also be the particular subsumed under the universal in the minor. And even though . . . constitutions are always defective to the extent that they do leave room for this mode of administra­tion, it is at least possible for them to assume a mode of govemment conforming to the spirit of a representati ve system (as when Frederick II at least said he was merely the first servant of the state)" (PP 352; L.W. Beck tr. , Kant Selections [New York: Macmillian, 1 988], 435). Kant's original begins: "Alle Regierungsform namlich, die nicht reprasentive ist, ist eigentlich eine Unform, weil der Gesetzgeber in einer und derselben Person zugleich Vollstrecker seines Willens (so wenig, wie das Allgemeine des Obersatz in einem Vemunftschlusse zugleich die Subsumption des Besondem unter jenem im Untersatze) sein kann . . . " This obviously parallel passage shows that Kant uses the term "zugleich" in a logical sense to deny combinations of distinct funtions.

24Compare the following two remarks: "The relationship of the highest authority in the state to the people may be conceived in three ways: a single person in the state has command oyer all , or several persons who are equal and united ha ve command oyer all the rest, or all the people together ha ve command oyer each person, including themselves. Accordingly, the form of the state may be autocratic, aristo­cratic, or democratic. (It would be improper to use the term 'monarchical ' instead of 'autocratic' for the concept intended here, for a monarch is one who possesses only the highest authority. The laUer is sovereign; the former merely represents him)" (§5 1 338-339); and "Every true republic is and can be nothing else than a representative system of the people if it is to protect the rights of its citizens in the name of the people. Under a representative system, these rights are protected by the citizens themselves, united and acting through their representatives (deputies)" (§52 341).

KANT'S STATE, LAW, AND O B E DIENCE 41 7

251 criticize onIy what Kant did, to propound the "metaphysicaI elements" of justice without analyzing govemmental institutions. They are further questions whether Kant thought that such an abstraction was required by his "metaphysical" leve! of discussion and whether Kant was right that this is required by his level of discussion. These questions cannot be explored here. 1 suspect that the answer to the latter question is negative, but that the answer to the former is positive. (Compare Kant's remarks about "metaphysics" [MEJ 2 1 7] with his remarks about the "idea" of the state [§45 3 1 3]) .

26Cf T&P 299-300: " . . . under an already existing civil constitution the people no longer have the right to judge and to determine how the constitution should be administered . . . "

27Beck dismisses Kant's argument in MEJ as making "a point of boring obviousness, name!y, that there can be no legal right of revolution" (op. eit. , 1 76). He finds a deeper moraI argument based on the Principle of Publicity in "Perpetual Peace." At one point Seebohm suggests that he concurs, since he finds that Kant approves of some revoIutions on "extra-Iegal" considerations (op. cit. , 560), but he recognizes that Kant's argument must be a moral argument (ef, ibid. , 576). van der Linden realizes that Kant's argument must be a moral argument to meet the position of revolutionaries, who would be unimpressed by a legal prohibition on revolt (op. cit.,

1 80). Scheffel argues that the right of revolution is forbidden under conditions of justice that conform to natural law, so that Kant's positive assessment of the enthusiasm aroused by the French revolution is compatible with his critical rejection of the right of revolution, since the French revolution was directed against a constitution that did not conform to natural law. His argument tums on two points. First, that a revolution would be contrary to the social contract. Second, that revolution would be contrary to a condition of justice (reehtlicher Zllstand). Scheffe! then argues that if there were no contract, there would also be no exclusion of the right to revolt (op. cit. , 1 99). Similarly, if one were in a merely legal condition (gesetzlieher Zustand), this would not exclude an extra-Iegal, moral right to revolt (ibid. , 200). Scheffel seems to offer interesting criticisms of Kant 's doctrine in the name of expounding Kant's doctrine. Kant specifically denies that a social contract is any matter of fact (T&P 297, §49 G.R./A 3 1 8, MEJ 37 1 -372), he specifically denies the relevance of which came first, the constitution or the highest power (§49

G.R./A 3 1 8), and in the very passage quoted by Scheffel he specifically condemns revolution for contradicting the whole legal constitution (gesetzliehe Verfassung).

These points refute Scheffe!'s first point. Second, Kant contends that a legal condi­tion requires promulgation and enforcement of law, both roles of the ruling power, and these factors make for a reehtlieher Zustand. Distinct from this in Kant 's view is a reehtl1lii�iger Zllstand, in which laws conform ta the principles of natural law (see Spaemann, op. cit. , 348). Kant's argument expressly denies a right of revolution in a reehtlicher Zllstand (§49 G.R./A 320, line 13). This refutes Scheffel 's second point.

28Kant also states: "The ruler . . . prescribes those rules for the people by means of which each of [the citizens] can, in conformity with the law, acquire things or preserve his property . . . " (MEJ §49 3 1 6) . This passage may conf1ate legislative and executive authority. Exactly what sort of "rules" the ruler prescribes is not clear.

41 8 KEN N ETH R . WESTPHAL

If Kant has laws in mind, then this passage contains the troubling conflation of govemmental powers. If Kant means some other sort of "ordinances or decrees" (ibid.) which supplement the law, then this passage is nominally consistent with Kant 's separation of powers-but it harbors a politica\ threat to that separation: Who or what cou\d prevent the ruler from issuing ordinances or decrees, e.g. , that make it extreme\y difficult for some group of peop\e to acquire or preserve their property?

29See the simi1ar statements quoted above in §V. This contrast between the sover­eign and the peop\e is again in conflict with Kant's assertion that on\y the people are sovereign. Kant's argument against revolt begins as it ought, arguing against resistance to the "chief magistrate" (oberster Belehlshaber), but slides into discuss­ing the "legislative chief" (das gesetzgebende Oberhaupt) of state or the "supreme \egislation" (hOchste Gesetzgebung); "legis\ative chief' also appears in Kant's Appendix (ME! 372, cp. §49 G.R./A 3 1 9-320). If Kant wanted to distinguish between the supreme legislative office and the people, then he should have treated two distinct issues of resistance: resistance to the executive and resistance to the \egislature. Hella Mandt emphasizes Kant 's despotism and the traditional e\ements of the absolute state in Kant 's thought, but she doesn't see how Kant himse\f must regard his own view as despotic, she ignores the implications, indeed the existence, of Kant's doctrine of the division of powers, and she ignores Kant's qualifications on the duty to obey po\itical authority. Her ascription of Kant's repudiation of the right of resistance to his "epistemo\ogical and logica\ orientation" (op. dt. , 3 1 7) is thus unfounded.

300p. cit. , 1 74.

3 1 Seebohm, op. cit. , 558.

321 insist on this point despite the fact noted above (§V) that Kant occasionally distinguishes terminologically between the sovereign and the people, since those passages conflate the three state authorities, whereas the passage just quoted dis­tinguishes them.

33"Inner morality" translates "dem inneren Moralischen." Wemer Haense\ senses that this passage and T &P 299 (quoted above, p. 388) hint at important qualifications of Kant's view, but instead of spe11ing these hints out, he dismisses their significance because of the purportedly anti-revo\utionary character of the texts in which they occur ("Kants Lehre vom Widerstandsrecht" [Kant-Studien Erganzungsheft 60, 1 926; 1 - 1 04] , 59-60).

34Wolfgang Schwartz ("The Right of Resistance" [Ethics 74; 1963; 1 26- 1 34] , 1 30), Nicholson (op. dt. , 2 1 8), and Leslie Mulholland (Kant 's System 01 Rights [New York: Co\umbia University Press, 1 990] , 338) notice this enticing but allusive phrase and simp\y assume it means what 1 demonstrate it means. Schwartz contends that Kant grants both a duty and a right to non-corr· pliance, but he on\y addresses a narrow se\ection of Kant's statements on the matter. Nicho\son argues that the duty not to resist the sovereign is an absolute moral duty (op. dt. , 2 1 5) , but also contends that "the conscientious man's disobedience to avoid acting unjustly is neither resistance nor illegitimate" (ibid. , 2 1 9). Now just because Kant doesn't call such

KANT'S STATE, LAW, AND OBEDIENCE 41 9

disobedience of immoral commands "resistance" doesn't mean that it's not resis­tance, and Nicholson doesn't consider the question of how his interpretation can be reconciled with Kant's admitted insistence that we are ob1igated even to obey tyrants (ibid., 222). Nicholson also over1ooks the issues involved in Kant's statements about the chief executive being subject to the law and subject to impeachment by the legislator (ibid. , 220), as well as Kant's division of powers and its conflation (ibid., 222-223). Mulholland concludes that "either Kant must revise his conception of the rights of the people against a despot, or he must allow that there are circumstances under which the people have the title to coerce a despot" (op. cit. , 346) . If 1 am right, Kant's views are qualified carefully in such a way that such revisions are unneces­sary because such allowances are already made.

3SCited and translated by Beck (op. cit., 1 73). Dieter Henrich notes Kant's accep­tance of disobedience, resistance and protest, though only by reference to this Reflexion ("Kant über die Revolution" [Batscha, 359-365] , 362-363). He doesn't see the traces of such views in MEI that 1 highlight here, nor those in "Theory and Practice" or "Perpetual Peace" dicussed above.

36Ak V 1 55- 1 57 ; L.W. Beck, tr. (Indianapolis: Bobbs-Merril1, 1 956).

37"Inner morality" here translates "innere Sittlichkeit." Kant does not distinguish between 'das Moralische'and 'das Sittliche,' so 1 see no reason to think that these phrases differ in meaning in these contexts. Ladd translates "gedachten" as "imag­inary;" 1 have emended this to read "represented." A main aim of Kant's philosophy is to determine what can be thought ( 'gedacht') within a practical context without being known within a theoretical context .

38Beck (op. cit. , 1 84) contends that Kant's view is that no one is obligated to obey commands to perform immoral acts, but he supports this contention simply by genera1izing from Kant's discussion of false witness in the second Critique. My construal of "inner morality" is confirmed by the only other occurrence of the phrase familiar to me, where Kant speaks of "innere Moralitiit" in Religion within the

Limits 01 Reason Alone (Greene and Hudson, trs . ; New York: Harper Torchbooks, 1 960), 90/Ak VI 99.

39'f&P 299, 306, PP 374, MEI§9 256, §45 3 1 3, §46 3 1 5, §49 3 1 8; quoted above pp. 388, 389, 390, and note 22.

40Jt may appear that, strict1y speaking, permission to resist commands to perform immoral actions is not equal to permission to resist il1egitimate law, since a law that prohibited freedom of speech or assembly may not itself be immoral. However, as shown above (in the passages cited in the previous note), Kant 's sine qua non for the legitimacy of law is the Categorical Imperative, whose po1itical expression is (at least hypothetical) consent of the governed. This is fundamental to his-and to any-repub1icanism. The issue of consent makes the needed connection between the "inner mora1ity" of motives and the legitimacy of coercibly enforceable law, since consenting to law involves agreeing to obey it, and agreeing to obey it involves motivating oneself to act in accord with it. The command to do something to which one did not or (in some unspecified sense of "could") could not agree is iteslf

420 KENNETH R. WESTPHAL

immoral, since it involves disrespecting the person commanded as and end in him­or herself. (See Onora Q'Neill, Constructions of Reason [Cambridge: Cambridge University Press, 1 989] . chs. 6, 7.) Consequently, being forced to obey a law to which one did not, or could not, agree is illegitimate, and resistance to such laws is, by the reasoning 1 have been setting out, legitimate. (By making consent hypo­thetical [T&P 299; quoted above, p. 388] Kant intrdouced difficulties that cannot, and need not, be addressed here.)

4 1It is not an altemative to my interpretation to suggest that Kant grants the state (to speak broadly here) authority oyer all matters of public policy (including property rights), while granting individuals moral authority oyer all personal mat­ters. S ince Kant's ethical theory fonns the foundation of his political theory, even if the state has authority oyer all public policy, no state legitimately could command any of its citizens to do anything that violated the moral law.

42Por discussion of Wollner 's policies, see Klaus Epstein, The Genesis of German Conservatism (Princeton: Princeton University Press, 1 968), 356-369. Por specific discussion of their bearing on Kant see Beiser (op. cit.) and Emst Cassirer, Kant 's Life and Thought (James Haden, tr. [New Haven: Yale University Press, 1 98 1] , ch . VII. Wollner 's Cabinetsordre to Kant and Kant's letter of reply to Priedrich Willhelm II appear in his preface to The Conflict of the Faculties (M.J. Gregor, tr. [New York: Arabis Books, 1 979]), Ak VII 6- 10 . Gregor 's introduction contains some very illuminating letters and details of Kant's treatment by and his response to he censors (ibid. , vii-xxix). Kant's subsequent policy was to speak only the truth, but not necessarily to speak the whole truth. See Doctrine of Virtue (M.J. Gregor, tr. [Philadelphia: University of Pennsylvania Press, 1964]), Ak. VI 433n; LeUer to Moses Mehdelssohn of April 8, 1 766 (Ak X, 69fA. Zweig, ed. & tr. , Kant: Philo­sophical Correspondence [Chicago: University of Chicago Press, 1 967] , 54) ; and Kant 's Note given at Ak XII 380 (1 sI ed. , 406) . (1 thank Richard Velkley for helping me locate this Note.)

43. Seebohm notes that on Kant 's principle, there is no right to revolt against an ideal state (op. cit. , 576, 577), but he doesn 't notice Kant's restrictions on dutiful obedience or on the legitimacy of revolt, nor does he follow out the implications of Kant's strict statements of principle for his views on the obligation to obey actual authorities (on which see below). There have long been concems about the manner of Kant's composition of MEJ (whether he assembled notes written at various times) and about Kant's waning mental capacities at the time this text was completed. Bemd Ludwig (op. cit.) makes a good case that the basic ordering of Kant's discussion can be made out in a sound manner, but he does not del ve into the issue of whether Kant's sections were written at different times, nor does he discuss the tension 1 have stressed between Kant's republicanism and his rejection of a right to resist the ruler. It would be nice to discover that Kant's argument against resistance to the ruler stemmed from an earlier period, but that is out of the question in view of "Theory and Practice" and "Perpetual Peace." This much is sure: Kant 's reply to his reviewer was written during the time between the first and second editions of the Metaphysics of Morals ( 1 797 and 1 798) and it contains a quite specific and strict limit on the duty to obey the ruler.

KANT'S STATE, LAW, AND OBEDIENCE 421

44T&P 299, 306, PP 374, MEJ §9 256, §45 3 1 3, §46 3 1 5, §49 3 1 8; quoted above pp. 388, 389, 390, and note 22. Kant occasionally speakes of popular consent as a criterion of legal legitimacy (T&P 299, 304, MEJ § §9, 46, 49, 5 1 , 52, 55; quoted above pp. 388, 387, and 395-396), but he does not formulate this in terms of actual consent or any form of direct or indirect representative government. He repeatedly states popular consent as an idea, where hypothetical consent suffices for legitimacy. In this way, his remarks about popular consent appear more to illustrate, rather than to augment, his explicit criterion of legal legitimacy, consistency with the Categor­ical Imperative. It may be that genuine political legitimacy needs to meet additional conditions, but consistency with the Categorical Imperative is l ikely Kant's only metaphysical criterion, and hence the only criterion pertinent to his metaphysical elements of justice.

45Roger Hancock cites these passages ("Kant and Civil Disobedience" [Idealistic

Studies 5; 1 975; 1 64- 1 76] , 1 65). He argues that Kant's views are consistent because Kant admits, not a right of resistence, but a right of disobedience in the sense of non-compliance with immoral demands. His contention is based on the idea that having a right does not require having the further right to enforce one's right coercively (ibid. , p. 1 76) . Kant denies this; he holds that all genuine rights must be enforceable (MEJ 237). This raises problems for Kant's contention that subjects have non-coercive rights against their sovereign (e.g . , freedom of expression), but Hancock ignores rather than addresses them. His further development of his position strays rather far from Kant's texts and doctrines (esp. op. cit. , 1 68) and does not come to grips with the range of views Kant expresses and their implications (esp. ibid. , 1 74- 1 75) . He is right that Kant admits that is some cases the state cannot coercively enforce moral duties, specifically cases where saving one's life is only possible by immoral means, because the punishment cannot outweigh the risk (ibid. , 1 7 1 ) . However, he offers no Kantian grounds for extending these cases (the one Kant considers is two shipwrecked men fighting oyer a plank only large enough for one [MEJ 235]) to the political cases at issue in civil disobedience or revolt .

46See note 40 above.

47 Another of Kant's inconsistencies may be noted here. Kant speaks here of "non­coercive rights," whereas his main declaration conceming the nature of rights in MEJ indicates that rights must be legally binding, that is, coercively enforceable (MEJ 237) . Kant's commitment to the thesis that rights are coercively enforceable may explain why he is convinced that a populace has no right to do anything when not presided oyer by a ruler, a premise in his most frequent arguments against revolution . This thesis would thus be the enthememe linking 'positive' and 'natural ' law in the way Kant's argument requires, a l ink that eludes Haensel (op. cit. , 69, 70) . Haensel at least sees the issue; Hans Reiss rejects Haensel 's concern because he objects to his way of formulating it ("Kant and the Right of Rebell ion" [Journal

ofthe History ofldeas 1 7, 1 956, 1 79- 1 92] , 1 82 n I 6) . Spaemann seriously overstates Kant 's view of the relation between legitimate and supreme coercive force. He claims that the sole criterion of a legitimate revolution is its success, since its success shows that the toppled govemment didn 't command supreme coercive force and so wasn 't legitimate (op. cit. , 353) ! Stronger yet, he claims that irresistibility is a state 's

422 KEN N ETH R. WESTPHAL

sole and sufficient titIe to legitimacy (ibid.). This is false and certainly not Kant's view. Kant denies that there have been any fully legitimate states (PP 37 1 , MEJ 37 1 ; see §X) . If he held the view Spaemann attributes to him, he would not have denied that there were fully legitimate states.

48Kant speaks here of the leader as "the supreme legislative power" (T &P 299) and suggests that the leader may be the legislative representative of the people. Kant nowhere clarifies his occasional mentions of representation, and treating the leader as a supreme legislative authority contradicts again in this text his own distinction between chief executive and legislator, as discussed in §Y.

49See Epstein, op. cit. , 373.

50Dieter Henrich quotes this passage and lets i t stand as Kant's considered view (op. cit., 359-360). He does not notice, as 1 argue below, that this passage cannot be taken alone.

5 1 See §IX, however, for a discussion of pertinent Reflexionen.

52Quoted above, pp. 395, 400. Notice that this contradiction concems the supremacy of the executive or legislature; the judiciary isn 't considered. This further supports my suggestion that Kant didn 't consider courts as a forum for addressing abuses of constitutional power.

53Kant indeed extends his prohibition on resistance or revolt to such "1imited" constitutions (MEJ §49 G.R./A, 322), but he apparent\y doesn't rea1ize-he cer­tain\y doesn't remark on-how less needful such and exercíse of public force should be under such a constitution.

54J.A. Bergk, Briefe über Immanuel Kant 's Metaphysische Anfangsgründe der Rechtslehre, enthaltend Erliiuterungen, Prüfung und Einwürfe (Leipzig & Gera: Wilhelm Heinsius, 1 797). See 'LeUer 23, ' 1 89-2 14, esp. 1 92- 1 97 1 .

55See Forest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, Ka: University Press of Kansas, 1 985), 80-86, 225-260; and Madison's explanations in The Federalist, nos. 47-5 1 .

56Marshall's decision is reprinted in Lockhard, Kamisar, and Choper, The American Constitution: Cases and Materials (St. Pau\: West Pub1ishing Co., 1 967), 1 -6 . For discussion of the issue and Marshall 's originality, see Gerald Gunther, Constitu­tional Law (llth ed. ; Mineola, NY: The Foundation Press, 1 985), 1 3- 1 7. For a summary of the historical antecedents of judicial review, see Klaus Stem, Grundideen europiiischer-amerikanischer Verfassungsstaatlichkeit (Berl i n : de Gruyter, 1984), esp. 23 ff. Stem's discussion is so concise as to appear whigish ; McDona\d indicates the historical qualms i n this development (op. cit. , 84-85, 254-258).

57 Although Kant occasionally speaks of a constitution as if it were the object of obedience, and so perhaps the locus of sovereignity (MEJ 372; quoted above p . 386), these remarks are occasiona\, and each time Kant attempts to specífy a 'sovereign ' he attempts to specífy specific persons, not a legal document or insitution. In

KANT'S STATE, LAW, AND OBEDIENCE 423

"Theory and Practice" he does repudiate revolt against a constitution, but he does not there consider constitutions in relation to rulers (T&P 302n, 305) . If anything, these passages bear out my main complaint, that Kant keeps regarding revolt against a ruler, a person, as a destruction of a legal system, a constitution (ef MEl 320).

58Bk. I Ch. 2 §§ 14- 16; Leslie J. Walker, S.J., tr., The Diseourses ofNieeolo MaehiaveLLi (London and Boston: Routledge & Kegan Paul, 1950), voI. 1, 2 14-2 15. 1 thank Natalie Dedenkar for bringing Machiavelli to my attention regarding this point.

59 Diseourses VI. l 06- 1 1 . On Polybius 's influence on Machiavelli in this regard, see Walker 's notes 1 8 and 1 9 (op. cit. , voI. II, 1 1 - 12) .

6OE.P. Panagopoulos, Essays on the History and Meaning of Cheeks and Balanees (Lanham, MD: University Press of America, 1 985), documents from primary sources the wide-spread influence of Polybius's view of mixed govemment on the development of the theory of checks and balances in the English and American contexts. (See esp. 4, 1 6-2 1 , 25-26, 35, 39, 40, 42, 46-49, 53, 57, 60-66, 1 0 1 , 1 06- 107, 1 10, 1 1 5, 127- 128.) There were at least four translations of Polybius into English during the relevant period, by Watson (London, 1 568), Grimmston (London, 1 633), Sheeres (London, 1 698), and Hampton (London, 1 764) . This shows consid­erable popular interest, since the well-educated would, like Hume, have read Poly­bius in the original. Additionally, at least two of these translations were expressly undertaken to address the debate between republicans and monarchists about the extent to which either side could claim the support of Polybius 's authority. A German translation by Seybold appeared in 1783 (Lemgo: Meyer), ten years before the first of Kant's main political writings. (1 thank the referee for JPR for mentioning to me the wide-spread discussion of Polybius's views on this issue in this period.)

61Diseourses, op. cit. , 1.4.4, 1 .6 . 1 Of. , 1 .35. 1 , 1.44.2-3; ef III .34.3 (Walker, voI 1, 2 1 9, 226-233, 292, 3 1 2, 557-558).

62Kant mentions Polybius only once, in his lectures from the Winter term of 1 765- 1766, as an example of an author whose book contains genuine worldly wisdom (Ak II 307, line 1 1 ) . Kant similarly mentions Machiavel1i only once, and not in public. In the preparatory notes for "Theory and Practice," Kant stated the aim of one section of his essay as follows: "Against Hobbes and his Machiavellian­ism that the people have absolutely no rights" (Ak XXIII I 34, line 13 ; my tr. ,) . This statement suggests that Kant knew Machiavel1i by reputiation, or at unlikely best from The Prinee, but certainly not from his other, overtly republican writings, such as The Diseourses. These two references to Polybius and to MachiaveIli are the only ones listed in Holger, Gerresheim, Lange, & Gotze, eds. , Allgemeiner Kantindex zu Kants gesammelten Sehriften Bd. 20 3 . Abteilung. Personenindex zu Kants

gesammelten Sehriften (Berlin & New York: de Gruyter, 1969) .

63Kant mentions Montesquieu by name in only one publication, in his early essay " [Observations . . . ] on the Beautiful and the Sublime" (John T. Goldwait, tr. , [Berkeley : University of Califomia Press, 1 960] , 103/Ak II 247). Kant mentions Montesquieu six times in passing, according to the Personenindex (op. cit.), and two of his correspondants similarly mention Montesquieu in passing. Each of these

424 KENNETH R . WESTPHAL

passages suggest that Montesquieu had been widey read, which he was. Kant once assessed Montesquieu 's work in this way : "One reason because of which Montes­quieu was able to say so many penetrating [vortreflich] things is this, that he had presupposed that those who introduced customs or would give laws every time had a rational ground [for doing so]" (Ak XX 1 66, line 24; my tr.) . Patrick Riley brings out many points of comparison between Kant's views and those of Montesquieu in Kant 's Politieal Philosophy (Totowa, NJ: Rowman and Littlefield, 1982).

64Thomas Nugent, tr. , The Spirit 01 the Laws (New York: Macmillan [Hafner] . 1949) ; Bk. II, Bk. XI §4 (voI . 1 8- 1 8 , 1 50).

65Ibid., Bk. XI Ch. 6 (voI . 1 1 58).

66Ibid., Bk. XI Ch. 6 (voI . 1 159) .

671 disavow the notion that these notes contain his true esoteric doctrine in contrast to his official published doctrine. Dieter Henrich discusses some of the pro-resis­tance Reflexionen 1 discuss here (he quotes Reflexionen 8043, 8044, 8046, and 805 1 ) and claims that they were written before the French Revolution (op. cit. , 360) . He suggests that at the time of "Theory and Practice" it occurred to Kant that govem­mental power must be unitary in view of England's attempted interference in post-revolutíonary France (360, 361 ; ef Reflexion 8077) . This is paradoxical. Kant's most developed account of the division of powers is in ME!; it is more refined than that given in the mean time in "Perpetual Peace." A more likely hypothesis is that the horrors of the Reign of Terror firmly reinforced Kant's belief that people need a supreme political control in oreder to keep them from acting immorally (see §X) . On Kant's refinement of his division of power, compare his respective discussions of distinction between the form of sovereignty and form of govemment (PP 352; ME! 338-339) . In ME! a monarch is no longer an autocrat. Kant apparently tries to incorporate Montesquieu 's innovative govemmental taxonomy (Spirit of the Laws, op. cit. , Bk. II) .

68Reflexion 805 1 ; Ak XIX 594, lines 13- 15 , 28-29.

69Reflexion 8046; Ak XIX 592, lines 14- 15 .

70Reflexion 8014; Ak XIX 582, lines 6-9.

7 1Kant is not clear about the nature of the "injustice" of a single person as sovereign, but the context suggests that it lies in a single person's abi1ity to transfer power to another party at wi11. A single person as sovereign thus makes for an unstable constitution: "Hence the misfortune of the [French] king follows directly from his sovereignty; after he had once allowed a11 the deputies of the people to assemble themselves, he was thus nothing, since his legislative power was grounded only on his representing the whole people. From this also becomes clear the injustice of a single person as sovereign." (Reflexion 8055; Ak XIX 596, lines 4-9; my tr.) .

72T&P 304 (quoted above, p. 387), Reflexion 8044; Ak XIX 591 , lines 8- 10.

73Reflexion 8044; Ak XIX 59 1 , lines 8-1 1 .

KANT'S STATE, LAW, AND OBEDIENCE 425

74Reflexionen 8043, Ak XIX, 590, lines 1 7-20, 32-33 ; 8046, Ak XIX 59 1 , lines 2 1 -29.

7SOn the preceeding page Kant states, " . . . the subject may lodge a complaint (gravamina) about this injustice, but he may not actively resist" (§49 G.R.fA 3 1 9) . In Reflexion 8043, in which Kant sketches most thoroughly the rudiments of constitutionally authorized resistance, he also states that where no such constitu­tional provision is made, the people are left to the good wil1 of their regime (Ak XIX 590-59 1 , l ines 33- 1 ) .

760p. cit. , 586; ef "Idea for a Universal History with a Cosmopolitan Intent" (Humphrey, 29-40), Ak vm 22. Unfortunately, Seebohm wavers on whether actual states are only attempts to leave the state of nature, since he describes despots and revolutions as stepping "back into" the state of nature (op. eit. , 585, 5 86). If they can step back into the state of nature, they must have left that state at some point.

77Two commentators have also noticed this implication; John Atwell, in "A Brief Commentary" on Beck's and Axinn's papers (Journal of the History of ldeas 32 [ 1 97 1 ] , 433-436; 433), and van der Linden (op. cit. , 1 8 1) .

781n "Perpetual Peace" Kant states "[t]hese are permissive laws of reason: to allow a condition of public right afflicted with injustice to continue unti\ everything is either of itself or through peaceful means ripe for a complete transformation, for any legal constitution, even if it conforms with right only to a small degree, is beUer than none, and the latter fate (anarchy) would result from premature reform" (PP 373n).

79For discussion of the moral purpose of membership in civi\ society see Patrick Riley (op. cit.) .

80See the tit1e to Book One of Religion within the Limits of Reason Alone (op cit.) . This and the Second Book contain Kant's funest statement of the difficulties of behaving morally whi1e being subject to sensuous inclinations. The problem with viewing despots as this sort of counter-weight is that they have been known, well before Kant 's time, to be exemplars of the "radical evil in human nature ." As Reiss notes (op. cit. , 1 89 f.), the modern technical developments of communícations media, transit, and weaponry have greatly multiplied the dangers of which malign despots are capable and also have undermined the effectiveness of Kant 's sole bulwark against despotism, freedom of expression.

8 1Kant al so offers pragmatic grounds to rulers to honor human rights: If they do not, their subjects are likey to revolt (ibid.) . Beck contends that "[t]he duty we have to contribute to the progress of mankind is a duty of imperfect obligation, is unenforceable, and leaves elbow room for its realization . . . . the duty we have to fullfil1 the requirements of the established law, is a duty of strict or perfect obliga­tion, and is thus for Kant prior in its claims to the former" (op. cit. , 1 84; referring to PP 377). However, if I am right that the absolute duty to obey the law holds only within fully legitimate states, then the duty to obey actual positive law also becomes a conditional duty. Kant is not inconsistant in the way Beck supposes.

426 KENNETH R . WESTPHAL

821 stress the "if' in this statement; 1 believe Kant underestimates in these essays the political rationality that can be found in revolutions, in part because he regards revolutions as merely natural phenomena (ef PP 373n).

83Kant thought better of the political progress made possible by revolutions when he wrote the second part of The Struggle o/the Faeulties (op. eit.) . The scope of the present essay, however, is restricted to analyzing Kant 's purportedly anti-revolution­ary writings, and aims to show that they are not anti-revolutionary in the way so commonly thought.

84If 1 were to identify a source within Kant's philosophy of his favorable (if qualified) regard toward leaders, it would be his faith in a providential God. This premise appears in his argument in the Groundwork that reason's "natural" purpose is to produce a good will (Ak IV 395-396), and it underlays his "Idea for a Universal History" (op. cit.) . Thus 1 concur with John Atwell, who remarks on " . . . Kant's almost desperate faith that nature, providence, or God will-even despite the efforts of men-bring about a just civil society if only men will endure, for a time, an unjust one" (Ends and Principles, op. cit. , 1 85- 1 86).

85Cf PP 372, quoted above, p. 4 1 1 ; ME! §46 3 1 3, 3 1 5, 3 1 8, §52 34 1 , discussed above, pp. 395-396, and notes 22, 24.

86For example, John Rawls's Theory o/ Justice is applicable to "near just" societies. One of the immediate criticisms of his theory from the left was that the USA in not even a "near just" society.

1 thank Manfred Kuehn, Larry May, and Michael Hardimon for their helpful sug­gestions on the first draft of this paper. Various portions of this paper were presented to the Indiana Philosophical Association (October, 1 987), to the APA Pacific Divi­sion Meeting (March 1 988), to the University of New Hampshire Symposium in the History of Phi1osophy (September, 1 989), to the Northern New England Philosophy Association (October, 1 989) , to St. Anselm's Col1ege (Manchester, NH; December 1 989), to the Seventh International Kant-Congress (Mainz; March, 1 990) , and to the APA Central Division Meeting (Apri1 , 1 990) . 1 benefitted greatly from the discus­sion on each of these occasions, and especíally from comments delivered by Harry Silverstein (APA Pacific), David Cummiskey (UNH Symposium), and Nancy Snow (APA Central) . An abbreviated version of some of this material appeared originally in "Kant 's Qualified Principle of Obedience to Authority in the Metaphysical Elements o/ Justiee" (G. Funke, ed. , Akten des 7. internationalen Kant-Kongre� [Bonn: Bouvier, 1 99 1] , 88- 1 0 1 ) . 1 thank Professor Funke, as editor, for kind permis­sion to reuse that material here. Finally, 1 thank Harry van der Linden for very helpful comments on the penultimate draft of this paper.