Kant's Theory of Justice

Kant's Theory of Justice*

by Thomas W. Pogge, New York

When he finished the Groundwork in 1785, Kant was convinced that he couldproduce the Metaphysic of Marals within a very short time.1 However, the latter workdid not appear until 1797. This substantial delay alone might suggest that his finalaccount of morals was quite different from what Kant himself had envisaged twelveyears earlier. Concentrating mainly on its political part, I shall try to show that thePosition Kant developed in the 1790's - in Theory and Practice, Perpetual Peace,Rechtslehre, and Tugendlehre - is in fact quite different from, and also more successfulthan, the rudimentary account in the Groundwork.

A reader familiär with those later works may well wonder whether they display asystematic theory at all. And indeed, the theory I shall attribute to Kant is nowhereclearly stated. Nonetheless, I think that my conjecture makes good sense of the politicalprinciples Kant affirms, and also coheres well with other Kantian themes and withmuch of what he has to say about the justice of political actions and institutions.

Being a reconstruction of Kant's own position, the theory I shall sketch is not äsprogressive äs many of his recent followers would like. But no purpose is served bytorturing Kant's own work until it matches what we now view äs the most reasonable

* Many thanks to Bruce Ackerman and Charles Larmore for helpful discussions of an earlierdraft. Work on this essay was supported by a grant from the Columbia University Council forResearch in the Humanities. - In references to Kant's works, I am using the followingabbreviations: Ak: The Prussian Academy Edition of Kant's works. R: Reflexionen; in: Akvolume XIX. Reiss: Hans Reiss (ed.): Kant's Political Writings (Cambridge: Cambridge U. P.1970). Enlightenment (1784): cited by Ak volume VIII and Reiss. Universal History (1784):cited by Ak volume VIII and Reiss. Groundwork (1785): cited by Ak volume IV and H.J.Paton's translation (New York: Harper and Row 1964). Theory and Practice (1793): cited byAk volume VIII and Reiss. Religion (1793): cited by Ak volume VI and the Greene/Hudsontranslation (New York: Harper and Row 1960). Perpetual Peace (1795): cited by Ak volumeVIII and Reiss. Rechtslehre (1797): Part I of the Metaphysic of Morals, in Ak volume VI.Tugendlehre (1797): Part II of the Metaphysic of Morals, in Ak volume VI. Contest (1798): citedby Ak volume VII and Reiss. - As the available translations of Kant's political philosophy arerather unreliable, I have frequently given my own translations, sometimes by correcting the bestexisting version.

1 See for example Arnulf Zweig (ed.): Kant, Philosophical Correspondence (Chicago: University ofChicago Press 1967) 119, 132 (letters 243 and 347).

Brought to you by | UZH Hauptbibliothek / Zentralbibliothek ZürichAuthenticated | 130.60.206.43

Download Date | 9/18/13 11:54 AM

s408 Thomas W. Pogge

Kantian theory of justicc for our time.2 Doing so would block our understanding ofwhat impcllcd Kant to hold the views we now find offensive.

Dcspite this ambition to do justice to Kant's texts, my conjecture does not achieve aperfect fit, and two or three of its implications are at variance with more conservativepositions Kant explicitly endorsed. It is for this reason that my Interpretation, though itheightens the systematic unity of his political philosophy, is at best one criticalreconstruction rather than the definitive reading. But let's look at the theory I postulate,and at how it contrasts with Kant's account in the Groundwork.

l

Let me begin with a brief restatement of two elements that both Kant's earlier andlater accounts have in common. First, the metaphysic of morals is to cover whatever canbe said a priori, from a practical point of view, about subjectively free beings, i. e. agentswho conceive of themselves äs facing choices.3 In analogy to the theoretical realm, the apriori part of morality is rooted in our (transcendental) faculties. Kant holds however,in disanalogy to his position in the theoretical realm, that a priori moral laws derivefrom reason alone. Our having a sensibility makes only this difference: Moral laws arefor us (not for God) imperatives in that they assert themselves against our naturalinclinations.

Theoretical/Speculative Practical

Analytic

Synth etic a priori

a posteriori

. logic

metaphysic of nature

science

metaphysic of morals

moral anthropology

A second crucial element of both the earlier and the later account is that purepractical reason is conceived äs having both a formal aspect, requiring unity in the formof consistency and universality, and a material aspect, requiring (roughly) that reasonitself be promoted in the world. The requirements issuing from the formal aspect alone

2 Section VII will say a little about how this latter theory might be developed out of Kant's own.3 The characterization of this discipline äs a priori must be taken with a grain of salt: Kant's

metaphysic of morals presupposes more than the moral law of reason together with thecategories of the understanding (causality etc.), the forms of Intuition (space and time), andanalytic truths. One might say that Kant shows us what his a priori metaphysic of morals wouldprescribe on the hypothetical assumption (empirically true, but not knowable a priori) of certainvery general circumstances of human life. Thus, most of Kant's particular principles andprescriptions cannot be derived a priori - unless they were expanded by the appropriate if-clauses, stipulating the existence of rational-sensuous beings, land, talents, sexuality, children,money, and so forth.



Kam's Theory of Justice 409

are presented äs taking precedence over those that f ollow only when the material aspect isadded.4

The Groundwork envisions the metaphysic of morals äs embedding these elements in arather straightforward way. At the most general level, reason's practical demand can beexpressed äs the moral law (for us: the categorical imperative) which furnishes a negativecriterion for testing maxims (subjective principles of action): I may act only on maximsthat I can at the same time will to be universal law (Groundwork 421/88). This conditionadmits of a (stronger) formal and a (weaker) material reading. The former generatesperfect duties by rejecting maxims that, universalized, lead to a contradiction inconception - a contradiction between the maxim's conduct universalized and themaxim's end.5 Not all maxims passing this test are acceptable, however, äs the materialreading generates its own imperfect duties by rejecting maxims that, universalized, lead toa contradiction in the will, i. e. to a contradiction with an end that, äs a rational being, onenecessarily wills.6 Perfect duties are presented äs stringent and precise, while imperfectduties are by contrast vague and open-ended. Perfect duties always take precedence; theyact äs absolute constraints upon a rational will, regardless of how much of reason's endmay be at stake.6a

This brief sketch of the Groundwork account is obviously extremely rough, but it isstill sufficient to bring out one main problem with that position — hotly debated ever sincethe early days of Kant scholarship - the so-called content problem: Is the categoricalimperative empty? And, if not, how significant are the constraints it can generate? It iscommonly assumed that one important function of moral principles is that of settlingpractical conflicts; and nothing in the Kantian procedure guarantees success in thismatter. Many practical conflicts may be such that each protagonist can will (the realm ofends associated with) the universalization of his entire System of maxims.

4 Here is a clear Statement of this priority of form over matter, from the later period: "To ensure thatpractical philosophy is at one with itself, it is first necessary to resolve the question of whether, inproblems of practical reason, we should begin from its material principle, i. e. its end (äs an object ofthe will), or from its formal principle [...]. The latter principle must undoubtedly take precendence "(Perpetual Peace 376 f./121 f.).

5 To use Kant's own example: Promises would not be accepted in a world where people feit free to givepromises in bad faith. The deceitful promisor, qua universalization, wills that such a world exist -that everyone be permitted deceitful promises, and hence that there not be a functioning Institutionof promising. Yet she must also will there to be a functioning Institution of promising, äs otherwiseher promise could not attain its objective.

6 A world in which people do not help one another in distress or don't develop their talents conflictswith the end that äs a rational being one necessarily wills, namely the preservation and enhancementof rational nature äs such. This end of reason appears in the transition to the second formula of thecategorical imperative, prescribing that one treat rational beings, potential possessors of a good willand hence bearers of absolute value, never merely äs a means, but always äs an end äs well. - Thedistinction between perfect and imperfect duties is most clearly stated at Groundwork 424/91.

6a My understanding of Kant's position in the Groundwork is developed in The CategoricalImperative in Otfried Hoffe (ed.): Grundlegung zur Metaphysik der Sitten. Ein kooperativerKommentar (Klostermann, forthcoming).



410 Thomas W. Poggc

It would be intercsting to cnquire whether this objection admits of a rebuttal thatdraws upon only the argumentative resources provided in the Groundwork. Whateverthe answer may be, I believe that Kant's later writings offer a modified account thatself-consciously confronts this difficulty.

What is striking about this later account is the small role played in it by thecategorical imperative: It is reverently mentioned a few times, but not used in theargument for particular duties äs, clearly, the Groundwork had anticipated that it wouldbe.7 Instead, Kant Starts out with a fundamental divide within the metaphysic of morals- postulating two spheres of morality, each with its own highest principle. Duties ofvirtue are constraints on a person's actions that are necessary to secure that person'sown inner freedom (Tugendlehre 382 n); these constraints answer to reason's demandfor autonomy or self-determination, äs against determination by whatever naturalinclinations may rise up. This demand follows closely Kant's practical solipsism in theGroundwork. Reason here merely demands motivational unity, separately within eachindividual: each person is to have a coherent, universalizable, and complete System ofmaxims.

Duties ofjustice are constraints on a person's actions that are necessary to secure theexternal freedom of others; these constraints are designed to rule out (äs the duties ofthe Groundwork arguably did not) the possibility of practical conflict among differentpersons. Since in our world such conflict arises in spatial and physical terms, we can saymore suggestively that, on the new account, reason demands that persons' domains ofexternal freedom be mutually consistent - the constraints must be such that at any giventime each particular right to an object (including human bodies), and access to eachparticular space, (insofar äs these are exclusionary) belongs to at most one person8 Thisnew (purported) demand of reason ensures then in advance that adequate principles of(justice and, a fortiori, of) morals will achieve a consistent ordering of the competing

7 By emphasizing the reduced prominence of the categorical imperative, I do not mean to denythat it could be interpreted äs providing a rationale both for the new division of the metaphysicof morals (which captures part of Kant's earlier distinction between perfect and imperfect duties)and for the highest principles in either sphere. But if so, then the categorical imperative must beinterpreted äs requiring me to take an interest not (only) in that hypothetical world in whicheveryone always acts on my chosen maxims, but in that actual world in which different persons'claims are liable to conflict; the internal consistency of each person's hypothetical world (realmof ends) does very little towards ensuring mutual consistency in the one real world we all mustshare. For a proposal in this direction, see Otfried Hoffe: Der kategorische Imperativ alsGrundbegriff einer normativen Rechts- und Staatsphilosophie in Nichts zu Sehr. Festschrift fürRobert Spaemann zum 60. Geburtstag (1987).

8 So duties of justice do not match the Groundwork's perfect duties towards others: Lies anddeceitful promises are paradigmatic violations of perfect duties towards others (äs well ästowards oneself), yet they do not violate duties of justice (Rechtslehre 238&n). They are likenon-benefkence in that they do not infringe the other's domain of external freedom, but merelyher wish for truthfulness or help (only will/will, not will/wish conflicts are problematic -Rechtslehre 230). (To keep one's promises is, of course, a duty of justice: one must physicallycede to the other the right that is hers by verbal transfer - see Rechtslehre 220).



Kant's Theory of Justice 411

external claims of different persons. The Innovation also provides Kant with a criterionfor the appropriate extent of morally mandated coercion: Force may (and should) beused for the sake of justice only. Persons should be coerced exactly insofar äs isnecessary to meet reason's demand for the compatibility of our domains of externalfreedom.9

The justice/virtue dichotomy is somewhat complicated by Kant's view that we havenot only (direct) duties regarding our conduct, but also indirect duties to deliberate incertain ways. We ought to act not merely in accordance with our duties of justice and ofvirtue, but also from (a motive of) duty. This demand, however, given that it is notnecessary for interpersonal consistency, is itself a demand not of justice but of virtue(Rechtslehre 231/§C). Justice requires only outward compliance with duties of justice,and so is indifferent to the agent's motives and ends.10 In the following diagram, thesphere of justice is marked by italics - the remaining area represents the sphere of virtueor ethics.

duties of virtue

(ethical legislation)

Duttes of justice(juridical legislation)

indirect-ethical duty to fulfillall duties from a motive of duty

in accordancewith duty

fromduty

II

As early äs 1784, Kant called for "the most precise determination and protection ofthe limits of [each person's] freedom so that it can coexist with the freedom of others";but then he viewed this äs necessary to fulfilling "the highest intention of nature"(Universal History 22/45). What arguments might Kant offer for presenting the same

9 Kant sometimes seems to claim that duties of virtue can not be commanded or enforced. Whilethis seems true of indirect-ethical duties, one may well doubt whether it is true in general. Thereis nothing impossible, it seems, about preventing the utterance of a lie, or in requiring citizens toshow, annually say, that they had done sometbing in the way of promoting their talents orhelping the needy. - For more on the justice/virtue distinction see the introduction to theTugendlehre, esp. Sections II, VI-X, XIV.

10 Even this point does not undermine the project of providing a rationale for Kant's later theoryof justice in terms of the categorical imperative. The appearance of the categorical imperative äsa test of maxims might merely be an artefact of its being formulated to steer an agent's inner

' deliberations. For the first-person standpoint, constraints on maxims don't add anything overand above constraints on external action: Being resoived to act outwardly in accordance withduty rules out indifference towards one's motives, äs it already entails that the mere recognitionof such a duty shall provide a sufficient motive for compliance. The categorical imperative mightthen still furnish a criterion for external conduct: An action is wrong absolutely, if all maximsintending it are impermissible. Thus it might still be made to serve äs the foundation of bothspheres of the metaphysic of morals, äs well äs of the division itself.



412 Thomas W. Pogge

Jemand now äs a rcquiremcnt of reason? In somc sensc, after all, conflicts arenccessarily rcsolvcd: If two cxternal claims are inconsistent, at least one of them will notbc satisfied. Force is äs effcctive a mechanism for ensuring mutual consistency äs law.So why should reason demand domains of external freedom precisely delimited inadvance?

Beyond his remark that reason "states this äs a postulate not capable of furtherproof" (Rcchtslehre 231), I don't think Kant answers this question. A Hobbesian appealto self-interest is, of course, unavailable. Kant might argue here that force cannotresolve conflicts among rational beings, äs such conflicts are not about what willhappen, but about what ought to happen. He might also consider it a separaterequirement of reason that there be domains of external freedom, defined by law.Reason would then issue two independent practical demands: for the unification ofeach agent's will, or a consistent System of maxims; and for the unification of all agents'conduct, or a consistent System of constraints on external action. Finally, Kant mightargue that in the absence of secure domains of external freedom we could not developour moral dispositions and hence not achieve even inner freedom (autonomy) andmoral worth. This would provide one way of accounting for the contrast betweenKant's earlier and later theories: The later theory, but not the Groundwork, iscommitted to the claim that without justice, presupposing effective juridical laws, therewould be no morality at all, and human life on earth would lose its value (cp.Rechtslehre 332). Though it would have been important to Kant, I shall put aside theproblem of ultimate foundations,11 investigating instead the inner unity of his theory ofjustice, and the plausibility of its more concrete implications.

The main structural innovation of Kant's later theory concerns how duties of justiceare argued for by appeal to pure practical reason. According to the Groundwork, reasonmakes demands upon persons' conduct directly, by imposing perfect duties. The lateraccount, by contrast, views pure practical reason äs making demands on Systems ofconstraints that might regulate interactions in a society. Here the principles of reasonfunction, äs it were, äs meta-constraints - constraining what constraints ought to beimposed upon individuals. Hence reason's demands affect persons only indirectly: byconstraining what rights and duties a just social order is to stipulate.12

In the Groundwork, Kant presented a necessary condition for the permissibility ofmaxims - perhaps hoping to eStablish, one by one, a collection of (self-imposed)constraints strong enough to safeguard the mutual consistency of our external free-

11 For further reflections on this problem, see Wolf gang Kersting: Wohlgeordnete Freiheit (Berlin:de Gruyter 1984) Teil A, esp. II and IV.

12 One passage I will cite in Support of this begins by asserting the equal freedom principle (orformal principle of justice) äs an imperative. This imperativistic formulation is reminiscent ofthe Groundwork. However, the sequel states very clearly that this principle does not obligateindividuals directly: "Although this law imposes an Obligation on me, it does not in any wayexpect, let alone require, that I should myself restrict my freedom to these conditions, purelyfor the sake of this Obligation. Rather, reason merely says that my freedom, in its idea, is sorestricted, and that it may also actively be so restricted by others" (Rechtslehre 231).




doms. On the new account, Kant proceeds in the opposite direction: Reason's princip-les pare down the field of potential public Systems of constraints. And the preeminentcondition that reason imposes upon such Systems is that they ensure interpersonalconsistency. All schemes not meeting this condition are eliminated in the very firststep; the solution of the "content problem" is assured in advance.

Or is it really? As presented thus far, the new strategy merely relocates theproblem. It leaves us with an indefinite variety of Systems of constraints, each of themmeeting the consistency condition. If persons were to embrace different ones of theseschemes, each doing "what seems just and good to him" (Rechtslehre 312), then asocial order ensuring interpersonal consistency would once again not be achieved.Different schemes for achieving mutual consistency will be mutually inconsistent. Inresponse to reason's demand for interpersonal consistency, Kant's later theory ofjustice sees its task then in pruning further the set of consistent Systems of constraints— ideally down to a single one. This reduction will result in strengthening/multiplyingthe constraints that the shrinking number of surviving schemes share in common.

The first step in this reduction is taken through the other component of purepractical reason's formal aspect — the demand for universality. One person shouldhave a particular external freedom only if that same freedom is enjoyed by everyone.There ought to be no restrictions on any one person's freedom that do not equallyapply to all. In a spatial metaphor: Consistency requires that no two persons* domainsof external freedom overlap, while universality demands that all domains be of thesame shape and size. Taken together, these two conditions constitute what I shall referto äs Kant's formal principle of justice.

Even the füll formal principle is clearly insufficient for selecting a unique System ofconstraints. The ränge of eligible schemes may have been greatly reduced, but a gooddeal of indeterminacy still remains. For example, the demands for consistency anduniversality cannot settle whether everyone should enjoy access to all land and have aduty to concede such access to others, or whether all should enjoy (the chance of)exclusionary possession of land while having a duty not to trespass on land owned byothers. Kant's first principle also fails to exclude schemes under which everyone'sfreedom is equally restricted, but more severly than would be necessary for consi-stency.

It is at this point that Kant introduces the material aspect of pure practical reasoninto his theory of justice. This engenders his material principle of justice whichdemands (roughly) the thriving of reason, and the promotion of its development bothin the species and in each particular person. This principle, äs opposed to the formalone, is teleological. It defines a dimension in which humankind may progress indefi-nitely; there is no limit to enlightenment. Given its teleological character, whatschemes the material principle favors will vary with historical context. However, itdoes give politics some definite long-term goals (see Section IV).

The so-enhanced theory will narrow down the field a good deal further. By now,in fact, Kant is in a position to assert a quite significant set of constraints definitive-ly - he speaks of these äs natural laws, stipulating natural rights and natural



414 Thomas W. Poggc

duties.13 Yet thc resulting thcory is still not strong enough to yield one uniqueconsistent scheine. There is still some residual indeterminacy regarding cases ofpotential conflict with respect to which even the material principle is indifferent (theproblcm of coordination). For example, you might embrace a scheme under whichpeople drive on the left-hand side of the road, while I favor the equally acceptablescheme of driving on the right. This last indeterminacy, irresolvable a priori, requires acentral legislative process to complement the constraints of natural law by those ofpositive law. Natural law comprises then such constraints äs are uniformly imposed byany scheme that meets all three conditions of pure practical reason. Insofar äs suchschemes still diverge, natural law is incomplete. Positive law irons out this incomplete-ness by selecting, on empirical grounds (such äs convenience) and to some extentarbitrarily, one System of constraints from among those that satisfy pure practicalreason.

In the remainder of this essay, I shall attempt a critical reconstruction of someimportant aspects of Kant's political philosophy. This reconstruction will be critical inthat at times I shall contrast the positions Kant actually takes with the positions heought to take, given the basic structure of his theory. As the main elements of this basicstructure, I shall keep fixed Kant's principles of justice and the way they constrain lawsand institutions (directly) and the conduct of persons (indirectly). It will further beassumed that the formal principle always takes precedence over the material one (seeagain footnote 4), and that within the formal principle the consistency condition haspriority over the demand for universality. There is then a strict lexical hierarchy ofaltogether three principles - in order of priority:

{FP-1} Consistency: rational persons ought to coexist under a System of constraintsensuring mutually consistent domains of external freedom;

{FP-2} Universality: that System ought to limit everyone's external freedom equally - theconstraints should be general and universal;

{MP} Enlightenment: the System of constraints ought optimally to promote the develop-ment and flourishing of reason.

Sections III-V discuss Kant's ideal of justice for a self-contained civil society ingeneral: Section III explains how Kant's endorsement of absolute sovereignty arisesfrom {FP-1}; Section IV focuses on some further features of Kant's ideal, derivablefrom {FP-2} and {MP}; and Section V deals with the apparent tension between the twoprevious sets of demands, thereby stipulating the proper attitudes and relationship ofsovereign and citizens.

Section VI examines then how Kant seeks to extend the theory developed thus far tothe international plane. And Section VII, finally, sketches a somewhat modifiedKantian theory of justice, which might be more plausible in our time.

13 The word "natural" here means only that such laws have their origin in reason, that theirvalidity can thus be recognized by reason a priori (Rechtslehre 224).




III

As the supreme requirement of justice Kant postulates that rational-sensuous beingsshould live not in a state of nature, but in a juridical or law-governed state.14 Thepreeminence of this requirement can be explained by its being the only one entailedby {FP-1} alone: A juridical state is defined äs any condition in which the mutualconsistency of our external freedoms is assured. What is involved in such a state canbe explained through three considerations.

The first we have already encountered: There must be a legislative power comple-menting natural by positive law, thereby fully specifiying the complete System ofconstraints. A juridical state is necessary for resolving the problem of coordination,i. e. conflicts involving alternative fully acceptable Systems of rights and duties.

The second consideration Starts out from the problem of Interpretation.15 Provisionsmust be made, through codification and adjudication, for determining definitively whatlaws there are,16 and how they apply to particular cases. In the absence of suchprovisions, no domains of external freedom have been intersubjectively delimited in apublic fashion. This consideration Supports the demand for a juridical state, and alsobroadens it by postulating the need for a mechanism of authoritative determination.

The third consideration is based on the claim that it is not unjust to disregard at leastsome natural laws when one lacks adequate assurances that others will comply äs well.17

Here Kant breaks radically with his earlier account (see Groundwork 438 f./106): In theabsence of assured reciprocity, even natural rights and duties whose Interpretation isunproblematic will have only presumptive or comparative validity (cp. Rechtslehre257). Maintaining consistent domains of external freedom requires therefore an enfor-cement mechanism that is strong enough to overcome countervailing forces. This thirdconsideration again both Supports and broadens Kant's demand for a juridical state.

Taken together, these considerations allow Kant to derive, from {FP-1} alone, theparamount requirement of justice: Rational beings with sensuous inclinations ought tocoexist in a juridical state that solves the above three problems, i.e. that contains

14 Kant calls this state "rechtlich" or "gesetzlich" and kindly adds the Latin "status iuridicus"(Theory and Practice 292/76, Perpetual Peace 383/127). Translations äs "rightful", "lawful", or"legal" are misleading, because a juridical state may well be unjust (in reference to naturallaw); and, äs constitutive of legality, cannot itself be legal, or lawful, in reference to positivelaw. (Cf. how "rechtlich" contrasts with "rechtmäßig" at Perpetual Peace 373n/118n.)

15 Rechtslehre 312. Cp. Theory and Practice 275/61.16 The relationship of natural and positive law is then more complex than the first consideration

would suggest. Natural law, whether complete or not, requires intersubjective recognition tofulfill its function. Natural law must then not only be complemented by, but also beincorporated into positive law, if a public delimitation of domains of external freedoms is to beachieved.

17 Perpetual Peace 349n/98n; Rechtslehre 307. - Kant isn't saying that without such assurancespeople will not comply, but that they need not comply. Thus his point, though related to, is notidentical with what we now know äs the assurance problem; see John Rawls: A Theory of justice(Cambridge: Harvard U. P. 1971) 270, and references there.



416 Thomas W. Pogge

mechanisms for determining, applying, and enforcing a consistent distribution ofdomains of external freedom.

Kant sought furthcr to use thcse arguments in Support of the modern state äs the (oneand only) form of social association that is unconditionally mandated by pure practicalreason. (The three considerations would roughly correspond to Montesquieu's threebranches of government.) However, one may well doubt whether these arguments, sointerpreted, are successful. How can Kant dismiss a priori the possibility that coordina-tion might be achieved through custom äs preserved in culture, and that peer pressuremight provide authoritative determinations and sufficient incentives for compliance?The mere presumption that we are developing a scheme of justice for a world of beingswho have, and know each other to have, non-rational incentives (who experience thelaws of pure practical reason äs constraints) seems too slender a basis on which to assertthat no form of anarchism could effectively maintain our external freedom.

Now I believe that Kant takes his view to be exempt from such empirical challenges,because the problems raised by the three considerations have an a priori Status. It maywell be the case, Kant would concede, that human nature is such that this or that formof social life could ensure a stable delimitation of external freedoms, thus reducing oreven eliminating conflicts. But reason, in (FP-1), demands more than this: What mustbe excluded is the mere possibility of conflicts for which there is no effectivemechanism of authoritative settlement. Though appeal to custom may resolve all acrualconflicts for centuries on end, it still does not constitute a reasonable decisionmechanism, because it cannot cope with those possible conflicts in which the properInterpretation of custom itself is in dispute.

That Kant understood {FP-1} in this formalistic way is confirmed by the fact that,following Hobbes, he subscribed to (what I call) the dogma of absolute sovereignty, tothe view that a juridical state presupposes an authority of last resort. In Kant, äs inHobbes, this view arises roughly äs follows. A juridical state, by definition, involves arecognized decision mechanism that uniquely resolves any conflict. This mechanismrequires some active authority, because a mere written or unwritten code (rules, law,scripture,...) can not settle conflicts concerning its own Interpretation. Any limited ordivided authority would not do, however, äs conflicts might arises about the preciselocation of the limit or division. There must then exist one ultimate and supremeuniversal authority: the sovereign, if there are to be secure domains of external freedomat all.18

18 See Theory and Practice 291/75, 299/81; Rechtslehre 319. - This reasoning is anticipated inAquinas, and clearly stated in Marsilius and Bodin. It maintained its hold well into the 20thCentury, when it declined together with the Austinian conception of jurisprudence. SeeGeoffrey Marshall: Parliamentary Sovereignty and the Commonwealth (Oxford: Oxford U. P.1957) Part I; S. L Benn and R. S. Peters: Social Principles and the Democratic State (London:Allen and Unwin 1959) Chapters 3 and 12; and H. L. A. Hart: The Concept of Law (Oxford:Oxford U. P. 1961).




Given this formalistic reading of {FP-1}, the transition from a state of nature to ajuridical state must then, in this respect, appear äs the crossing of a sharp line -rather than äs a matter of degree, involving a greater or lesser empirical incidence ofconflicts. A juridical state exists only if there is a "logically" complete decisionmechanism, which, to be complete, must provide for an absolute sovereign äs theinstance of last appeal. If this condition is not met, no matter how peaceful ourintercourse, then we are still in a state of nature, reason's demand for justice remainingunfulfilled.

But absolutist government, though necessary, is not sufficient for the existence ofa juridical state. It is also requisite that political power be exercised through laws -though Kant may not emphasize this enough.19 Thus a dictator who pushes othersaround at his whim is not a sovereign in Kant's sense. Although he has effective power,he does not underwrite a consistent distribution of domains of external freedoms.Rather, there are no such domains, äs any external claim is always liableto be invaded or left unprotected. The emergence of such a dictatorship does notthen constitute the transition from a state of nature to a juridical state (cp. R 7980).It is quite difficult, of course, to give criteria for when a state officially governed bylaws becomes dictatorial in this sense.20 And it may well have been this difficulty -together with the rarity of pure dictatorships in modern Europe and his wish tourge obedience - that disinclined Kant to dwell on this distinction.

What {FP-1} requires then, on Kant's understanding, is that there be an arrange-ment under which persons are governed through a consistent System of laws, thedetermination, application, and enforcement of which is under the ultimate authorityof an absolute sovereign. Such an arrangement Kant refers to äs a civil constitutionor state - the "conditio sine qua non of all other external duties" (Theory andPractice 289/73) and hence of external freedom. This paramount requirement ofjustice has two applications to individuals: In a state of nature, persons - if theycannot avoid each other21 - have a highest-order duty jointly to incorporate themsel-ves under a common civil constitution. In a juridical state, i. e. when a civil constitu-tion is already in place, persons have a highest-order duty to support that constitutionby obeying the laws and by complying with the commands, verdicts, etc., of any

19 Often, however, when Kant preaches obedience, he clearly takes for granted that this conditionis satisfied. Thus we are asked "to obey the currently existing legislative power, irre-spective of its origin" or "to obey the authority that has power over you [because it] is

• already in possession of the legislative function* (Rechtslehre 319, 372). - 'Dictatorship' ismy term for government without law; Kant uses 'barbarism' (at R 7700 and in the Anthro-pology).

20 In a draft for Perpetual Peace Kant says that law atrophied through much arbitrary power isbetter than no law at all (Ak XXIII 183). So in this respect perhaps the transition from astate of nature to a juridical state does permit of gradations.

21 See Theory and Practice 289/73; Perpetual Peace 349n/98n; Rechtslehre 256, 352.



418 Thomas W. Pogge

authority duly cmpowcred by the sovereign.22 Though the firtst of these duties raisesinteresting questions, only the second will be further discussed: in Section V.

IV

Both {FP-2} and {MP} have implications both (A) for the design of a civilconstitution and (B) for the laws to be enacted. What follows is a brief exploration ofthese four areas in turn.

A.l: Pursuant to {FP-2}, the constitution of a state should reflect the will of theunited people, each person having equal political rights (Religion 98/90).23 The peoplemay either exercise sovereignty themselves (perhaps through representatives - Rechts-lehre 341) or may allow sovereignty to be exercised in their behalf by a king or by agroup of nobles. Even when sovereignty is thus tansferred, the people maintain theirStatus äs ideal ("background") sovereign, äs is manifested in Kant's demand thatsovereignty always be exercised in whatever way the people wish.24 The reason is thatthe mechanism determining the law cannot be said to constrain everyone's externalfreedom equally (even if the laws it generates are general and universal), if it is amechanism to which only some would consent.25 Yet, can we realistically hope to find alegislative mechanism to which everyone would content? Kant can solve this difficultyby asserting that, given our duty to coexist in a juridical state, each person must beprepared to accept whatever mechanism is favored by a majority. This acceptanceconstitutes part of (what he calls) the original contract, which "must be the ultimatebasis on which a civil constitution is established" (Theory and Practice 296/79). Theexercise of sovereignty by a king would then satisfy {FP-2} if and only if thatarrangement pleases a majority of the people, because all (unanimously) accept the ideathat a majority should be decisive in this matter.

22 Theory and Prctice 299 f./8l; Rechtslehre 318 ff., 340. These two duties mirror Hobbes'sobligations to the same effect, äs expressed in his first two natural laws - see Thomas Hobbes:Leviathan (Harmondsworth: Penguin 1981) 190/XIV. In Hobbes, however, these obligationsare primarily prudential, äs is reflected in the exception he recognizes in cases where the agent'sown life is at stake. Hobbes is also radier less committed to the rule of law than Kant is.

23 Kant also appeals to volenti non fit iniuria at the highest level to establish the people äs theoriginal sovereign (Rechtslehre 313 f.).

24 If sovereignty now rests with a king, for example, he is not automatically entitled to adopt a newform of regime. It does not depend "on the sovereign's free choice and discretion to subject thepeople to whatever constitution he wished. For even if the sovereign decided to go over todemocracy, he might still be doing the people an injustice; for they might themselves detest thisform of constitution and find one of the two others more congenial" (Rechtslehre 340; cf. also341 f.; and R 8055, 7769, 7734).

25 If the case of a mechanism to which nobody would consent is a serious possibility, it wouldhave to be excluded by appeal to {MP}.




Kant clearly believed that many actual civil constitutions are not based in this wayupon the majority preference of a united people. But this fact does not invalidate theseconstitutions: "The idea of an original comract upon which all rightful legislation of apeople must be founded" is "merely an idea of reason".26 Kant does not postulate anactual social contract, which might be broken and thus become null and void (Tbeoryand Practice 302/83). His original contract is hypothetical, expressing "the general willäs it is given a priori".27 It provides an immutable norm or ideal, toward which both thesovereign and the people are to Orient their conduct.

A.2: {MP} imposes two important conditions on how the civil constitution is to bedesigned. Taken together, these define a republican (äs opposed to a despotic) form ofregime. First, the three powers of determining, applying, and enforcing the laws shouldbe in separate hands (Rechtslehre 316/§48), in Order to rule out arbitrariness äs far äspossible.28 It must be noted, however, that Kant's interpretation of {FP-1} proscribesany real Separation of powers. There can be no genuine checks and balances at thehighest level, because reason requires a single last court of appeal in all conflicts (thedogma of absolute sovereignty). Consistently, Kant (äs Rousseau) views the sovereignäs entitled to dismiss and replace executive and judicial officials:29 "The sovereign maydivest the ruler of his power, depose him, or reform his administration." The Separationof powers is then a demand on the sovereign to abstain from (i.e. to delegate)jurisprudential and executive functions.

The second condition of republicanism is that sovereignty rest with the people (ortheir elected representatives).30 Kant subscribes here to the enlightenment hope that thepeople "will gradually come to the stage where [...] they will be able to create forthemselves a legislation ultimately founded on right" (Perpetual Peace 372/118). At thattime there will no longer be a reason for the people's political freedom to be abridged,for sovereignty to be exercised in their behalf by others.31 (And there is an important

26 Perpetual Peace 350/99 f. with Theory and Practice 297/79.27 Perpetua! Peace 378/123; see also 344/94, 351n/99n; Theory and Practice 294f./77,297ff./79ff.;

andf R 7740: "The contractus originarius is the principle for explaining not how the Status civilisoriginates, but what it should be like."

28 The constitution, after all, must operate on "such warped wood äs humanity is made of"(Universal History 23/46; cf. Perpetual Peace 369/115). Kant also appeals to considerations ofstability (Universal History 25/48; Perpetual Peace 366/112 f.).

29 Rechtslehre 317. Cp. Jean-Jacques Rousseau: The Social Contract (Harmondsworth: Penguin1968)102/111:1.

30 To forestall misunderstanding, I should here explain Kant's remark that "democracy, in theproper sense of the word, is necessarily a despotism" (Perpetual Peace 352/101). Here"democracy" denotes a regime in which the people exercise executive power - which, of course,would necessarily violate either the first or the second condition of republicanism. In accor-dance with Rechtslehre 338 f., I shall use "democracy", "aristocracy", and "autocracy" inreference to the holders of legislative power, or sovereignty.

31 As its derivation from {MP} suggests, the ideal of a pure republic is exalted by Kant inteleological terms: "The old empirical (and statutory) forms, which serve only to effect thesubjection of the people, should resolve themselves into the original (rational) form which alone



420 Thomas W. Pogge

further reason for vcsting it in the pcople: As sovereign, the people will decide aboutwar and pcacc, which will makc war, the ultimate negation of a juridical state amongnations, much less likely - sce Section VI below.)

Having sketched Kant's abstract commitments regarding the ideal constitution, itrcmains to concede that some of his concrcte claims fail, rather grotesquely, to honorthese commitments, There are two important cases. First, Kant notes in brackets thatwomen, grouped here with children, cannot be citizens, i. .e cannot panicipate inIcgislation.32 This fails to realize that "androcracy" - like aristocracy - clearly violates{MP} (plus {FP-2} äs well, if androcracy is not favored by a majority of all persons.Secondly, Kant holds that the economically dependent cannot be citizens either,33 againwithout realizing the similar dubiousness of this exclusion. If economically dependentcitizens are indeed an impediment to reasonable legislation, then certainly {MP} wouldbe better served by raising these people from their dependence than by denying themthe franchise.34 And indeed, Kant once does call freedom, equality, and independenceinnate rights (Rechtslebre, 237 f.).

B.l: Corning now to the laws' content: {FP-2} prescribes that the laws must treateveryone equally. In conjunction with {FP-1} this entails that "legislation proceedsfrom the principle of limiting the freedom of each to those conditions under which itcan be consistent with the freedom of everyone eise according to a universal law".35

Kant is quick to point out that this demands only formal equality, that there may bespecial privileges and prerogatives so long äs these are not hereditary, but rather earned,and (attached to offices and positions that are) in principle open to all (Perpetual Peace351n/99n). This allows him to say that equality is "perfectly consistent with the

makes freedom the principle and indeed the condition of all coercion [...] and this willeventually be realized in letter äs well äs in spirit. This, then, is [...] the ultimate end of all publicright" (Rechtslehre 340 f.). Given {FP-2}, the attainment of a fully just pure republic wouldpresuppose that the people want to exercise sovereignty themselves (cp. footnote 24 above).However, once sufficiently mature, the people ought to want to be sovereign.

32 Theory and Practice 295/78. - As his contractual account of marriage (see footnote 41 below)confirms, Kant clearly accepted women äs rational beings. Perhaps he meant to exclude themfrom citizenship only because and insofar äs they are economically dependent (cf. Rechtslehre314), in which case my first objection would collapse into the second. But then Kant did notrecognize even the possibility of independent women; and insisted that all wives must obeytheir husbands.

33 Theory and Practice 295/78; Rechtslehre 314f.34 This second exclusion was certainly motivated by Kant's commitment to political equality, by

his reluctance to have a large land-owner be permitted to deliver the votes of all his dependents -cp. Patrick Riley: Kant's Political Philosophy (Totowa: Rowman and Littlefield 1983) 112. Inaddition, Kant may well have considered the incidence of economic dependence, and even ofpoverty, to be an ineradicable feature of the human condition. But he must also have thoughtthat economic dependents are bound to be politically immature or otherwise unfit to be co-legislators. In a draft for Theory and Practice Kant calls servants "parasites upon citizens" (AkXXIII 137).

35 Religion 98/90. Cf. Theory and Practice 292/75 f.; Rechtslehre 230/§C.




utmost inequality" in (acquired) rights and possessions (Theory and Practice 291 f./75).But it is perfectly mconsistent with his remark (again in brackets and referring tochildren äs well) that wives must obey their husbands (Theory and Practice 292/75).

B.2: One main contribution of {MP} in the area of legislation is to urge progresstoward less restrictive Systems of law, i. e. ones that impose weaker constraints (withoutviolating the consistency and universality conditions). Like the weak Pareto principle,this component of {MP} generates only a partial ordering: There isn't one equaldistribution of domains of external freedom affording everyone "more" freedom thanthey would have under any other equal and consistent distribution.36 Still, thiscomponent is by no means trivial. One of its corollaries, for instance, is the principlethat laws must not force persons to be virtuous. Any System of law containingprovisions regarding matters of virtue can be transformed into a less restrictive onelacking them. Given the way the justice/virtue distinction was defined, the latter Systemwill still satisfy {FP} if the former did. This corollary entails two prohibitions: The lawmay not impose duties of virtue. And it must be indifferent to the citizens' innerattitudes, must impose duties of justice, but not their indirect-ethical counterparts — äsKant puts it: the sovereign must require only the legality, not the morality, of actions.

There are other advances towards enlightenment for which Kant argues on indepen-dent grounds. For example, there should not be a law "whereby certain articles of faithand religious practices are declared permanent";37 nor a law restricting freedom ofexpression in the public forum.38

In addition, Kant is committed to the claim that, other things being equal, a societywith more mature members is therefore also a more reasonable one.39 Although Kantclearly held the citizens' happiness to be irrelevant äs a legislative consideration (e. g.Theory and Practice 298/80), justice - through {MP} - would then nevertheless requirethat the sovereign shape social and economic institutions with an eye to minimizingilliteracy, poverty, and severe inequality in rights and possessions, wherever these tend

36 In his earlier work Kant does not appreciate this point, demanding a constitution that wouldallow the greatest equal freedom for all (Critiqtte of Pure Reason B 373; Universal History 22145). - It is curious to observe the same development in Rawls's thinking: Compare his oldformulation of the first principle of justice (A Theory of Justice 302) with his new one in TheBasic Liberties and Their Priority in S. M. McMurrin (ed.): The Tanner Lectures on HumanValue III (Sah Lake City: U. of Utah Press 1982) 5. Rawls's shift was prompted by H. L. A.Hart's outstanding review "Rawls on Liberty and Its Priority9 reprinted in N. Daniels (ed.):Reading Rawls (New York: Basic Books 1974).

37 As this would "conflict with the destiny and purpose of humankind" (Theory and Practice304 f.785).

38 Enlightenment 36ff./55ff. Cp. Theory and Practice 304/84.39 See esp. Enlightenment. Cp. also Kant's argument in the Groundwork to the effect that we have

a reason-based ethical duty to develop our talents and to help others in distress (see footnote 6above).



422 Thomas W. Pogge

to kccp pcople dull and depcndent.40 Perhaps Kant believed that there would be littleIccway Icft for choicc in these matters, since {FP-2} and {MP} jointly entail - evenprior to thc cxistcncc of a civil constitution - economic arrangements of a (roughly)libertarian sort that would rulc out redistributive taxation.41 This belief would howeversccm implausiblc: Redistributive tax laws to promote enlightenment would not neces-sarily violate universality, so long äs they are uniformly applied pursuant to generallaws. Moreover, such outlays might also be financed differently, e.g. through returnson collectively owned assets.

In concluding Section IV, I should point out that Kant often mentions rwo formulasfor assessing legislation about which I have said nothing so far. First, he offers Äthefollowing proposition äs the transcendental formula of public law: 'All actions affectingthe right of other human beings are unjust if their maxim is not compatible with theirbeing made public"* (Perpetual Peace 381/126). Kant is not clear on what he means byit; but in any case, this does not constitute a Substantive principle. Right afterwardsKant says that if there are maxims "which I cannot publicly acknowledge withoutthereby provoking the resistance of everyone", then "this necessary and general (hencea priori foreseeable) Opposition can not arise from anything other than the injusticewith which it threatens everyone" (ibidem). This explanation, plainly, already presup-poses principles of justice, presumably {FP} and {MP}. (It also presupposes thepeople's eager allegiance to those principles, of which we are hardly assured a priori.)

A little below, however, Kant uses the appeal to publicity quite differently: äsemphasizing that all rights and duties of justice must fit together into a single publicSystem of law. There can be no right of the people to rebel against even a tyrannicalsovereign, he says, because no civil constitution could both recognize a sovereign äs theultimate criterion of external right and wrong and allow the people to decide forthemselves when to comply with the sovereign's laws - such a constitution would notprovide the well-defined decision mechanism required for a juridical state.42 Thissecond, rather more successful use of the formula shows then that an external actioncannot be right if it could not be permitted explicitly within a complete System of lawsof justice. This reaffirms {FP-1} äs I have interpreted it in Section III: A juridical state

40 The characteristic features of the so-called modern welfare state could then be justified withinKant's theory only insofar äs they are deemed (a) necessary, pursuant to {FP-1}, for thestability of the state itself (Theory and Practice 298 f./80), or (b) suportive of the enlightenmentof the populace äs demanded by {MP}.

41 According to Kant, anything that can conceivably be used or be in someone's power ispotentially property (Rechtslehre 246, 250) and can be appropriated qua temporal priority ofclaim (Rechtslehre 251, 259, 263). (This last rule seems dubious, given that some are born laterthan others.) Changes in ownership can come about only through voluntary transfer (Rechts-lehre 271) - be it of ownership (intelligible possession) or of aspects thereof. (As a curiosityaside: The latter case is exemplified by marriage, which Kant saw äs a contract entitling bothspouses "to the life-Iong possession of each other's sexual attributes" - Rechtslehre 277).

42 Perpetual Peace 382/126 f. Cp. Theory and Practice 303n/84n.




requires clearly demarcated domains of external freedom so that all know in advance whatthey have a right to do or a duty to forebear.

The other formula is: "Whatever [laws] a people cannot impose upon itself, cannot beimposed upon it by the legislator either."43 Immediately after this formulation, Kantapplies it to an example, directing us to ask "whether a people may enact for itself a law[.. .]V4 A search for a sophisticated explanation of what a people can or cannot decreewould then miss Kant's point. This formula again is not a Substantive principle. Its importis that a body of legislation ought to accord with the same Substantive principles of justice,whether soverign power be in possession of the people, äs ideally it should be, or of anyoneeise. Universality and enlightenment are unconditional demands of pure practical reason;their validity is not tied to any particular perspective. Positive law is to meet these demands,not because that is in the people's interest (a policy good for them, but perhaps not for anautocrat), but because this is what reason requires of any legislator whatever. It is anautocrat's duty "to treat the people in accordance with principles that comply with thespirit of the laws of freedom (äs a people mature in reason would prescribe them for itself),even if the people is not literally asked for its consent" (Contest 91/187).

The two formulas merely reaffirm then the essence of Kant's theory, which is to informthe conduct of both the people and the sovereign. As suggested by the image of the originalcontract, the existing sovereign - even if autocratic or aristocratic - is to be conceived of äsexercising legislative power in behalf of the people. This entails that each person must obeythe sovereign; and that the sovereign must enact only (laws that a democratic sovereignmay enact, namely) laws satisfying universality and promoting enlightenment.

V

These two commands may seem to pull in opposite directions, at least in our non-idealworld of fallible and corruptible legislators. On the one hand, Kant is not a legal positivist;he asserts that political arrangements and laws can be unjust. On the other hand, he alsoholds that we must comply with the existing constitution and laws, irrespective of theircontent. The present section discusses how Kant reconciles these two positions.

My interpretative hypothesis affords a straightforward resolution of the problem. Theduty of strict obedience to the existing sovereign is entailed by {FP-1} alone - without it we

43 Tbeory and Practice 304/85. Cp. 297/79, Enlightenment 39f./57f.; Rechtslehre 327 f., 329.44 Theory and Practice 305/85. Thus Kersting errs when he ascribes to Kant (and then criticizes him

for) the view that any - or at least any democratic - sovereign is infallible, i. e. will necessarily enactonly just legislation (Wohlgeordnete Freiheit 265, 272, 308 f., 344). This view is thoroughlyimplausible, because Kant offers an independent criterion of just legisiation; and it is certainly not anecessary truth that legislation enacted by a majority of the people (or of their representatives) willsatisfy, for example, the universality condition. Kersting seems to think that Kant must hold thisimplausible view in order to justify his insistence upon the citizen's absolute duty of obedience. Ishall try to show in the next section that Kant offers a far superior position that reconciles thefallibility of any sovereign with the absolute command to obedience.



424 Thomas W. Pogge

have no dctcrminate dccision mechanism, hencc no civil constitution, hence no juridicalstatc. An allcgcd right on the part of the pcople to disobey the existing sovereign for thesakc of univcrsality or enlightenmcnt, on the other hand, would depend for support on{FP-2} or {MP} respectively, and is therefore trumped by the higher-ranking require-ment of compliance. "Any law-governed constitution, even if it is only in smallmeasure just, is better than none at all" (Perpetual Peace 373n/l 18n), in that at least itupholds the idea of law, of guaranteed domains of external freedom.45

Now while my reading is certainly committed to this response äs far äs it goes, Ithink there are interesting further ramifications. What is missing so far is the idea thatboth sovereign and citizen do not only have an outward and active, but also an inner,reflective persona. Part of this idea can already be found in Hobbes who (pace Kant)46

does acknowledge duties of the sovereign. For Hobbes, the demand for a juridical state,in conjunction with the dogma of absolute sovereignty, entails that there ought to be asovereign who has no obligations in foro externo, i. e. no obligations that anyone eisecould rightfully Interpret or enforce. The sovereign's laws and commands are bydefinition/«5f (Leviathan 232/XVIII). Yet, they may fail to be good (Leviathan XXX,esp. 388) by being, for example, inequitable or ineffective. There is room then for dutiesof the sovereign in foro interno (before his own conscience or before God) whichobligate him to promote the interests of his citizens, even to accord them certainrights.47

Kant offers an expanded version of this idea. Externally, the sovereign is, once again,the authoritative criterion of justice or public right; for practical purposes, whatever thesovereign declares right is right, and thus counts äs being fully in accordance withnatural law. And again, the sovereign ought, inwardly, to view things differently, i. e.should by no means assume that his legislation will automatically accord with naturallaw: The sovereign is fully responsible, internally, for ensuring that political arrange-ments and the laws satisfy the principles of justice äs far äs possible.48 Now Kant

45 There are several instances of this reasorung, showing how Kant tacitly relies on the priority of{FP-1}. Thus he writes, for example: "even if [the supreme legislative] power or its agent, thecriief of state, has violated the original contract [...] the subject is still not permitted to offercounter-resistance. The reason for this is that the people, under an existing civil constitution,has no longer any right to determine how the constitution should be administered. For supposeit did have this right, and that it disagreed with the judgment of the actual chief of state, who isto decide which side is right? Neither can act äs judge of its own cause. Thus there would haveto be another chief above the chief of state to decide between the latter and the people, which isself-contradictory" (Tbeory and Practice 299f./8l; cp. Perpetual Peace 382/126f.; Rechtslehre320).

46 Theory and Practice 303 f.784; R 7667.47 Rousseau subscribes to the same idea: Only under complex, highly favorable conditions does

the legislative will of the united people tend to coincide with the enlightened general will. SeeThe Social Contract Book II.

48 Cp. R 7989: "As head of state he is therefore always in the right, even while äs human being heis in the wrong." - In modern terminology (cp. A Theory of Justice 85 f., and reference there),one could say that the Hobbes-Rousseau-Kant picture of sovereignty is split: It is a mechanism




extends this idea by introducing an analogous split on the side of the citizen äs well.While the citizen must, still äs in Hobbes, externally count the existing laws and regimeäs perfectly just, he may, and should, be inwardly fully aware that he has "inalienablerights [...] about which he is entitled to make his own judgments" (Theory and Practice304/84). The citizens' dual Status is then äs follows. They must not pass judgment uponthe sovereign's performance which "must be considered to have been outwardly inkeeping with right"; the sovereign, "regarded äs the source of all laws, is incapable ofany unjust action" (Rechtslehre 321n). They must not appropriate unilaterally theobjects of any rights the sovereign should but does not concede. Nor do the peoplehave rights to refusal or resistance, corresponding to the sovereign's duties towardsthem - let alone a right to prevent or punish violations of these duties. Yet, whilepractically constrained in these ways, they remain cognitively free and competent (noless so, in principle, than the sovereign) to make judgments about laws and institutions.

On this reconstruction of it, Kant's reconciliation instantiates a pattern familiär fromour ordinary conception of jurisprudence. Once a verdict has been rendered, citizenshave no right whatever to resist it or to refuse compliance - let alone to punish the Jury.Thus we must outwardly treat the acquitted äs innocent and the convicted äs guilty.(And the practice of judicial settlement would be entirely pointless, if this were not so.)Yet, even though a verdict plays such a constitutive (defining) role, all participants alsoconceive there to be an independent fact of the matter, making the verdict either corrector incorrect. Thus, a judge or Jury must not simply decide äs they please, secure in theknowledge that their judgment, whatever it may be, will count äs correct. Rather theyhave a most solemn Obligation, in foro interno, to ascertain the facts, and to apply thelaw, in good faith and to the best of their abilities. And ordinary citizens need notcognitively accept the official judgment - though they must practically. They areperfectly free to have - and even express - the opinion that, say, an innocent person hasbeen convicted. On my view, Kant applies this reconciliation to political authority ingeneral.49

of pure procedural justice when looked at from the outside, but a mechanism of imperfectprocedural justice when viewed from within.

49 Having said this, I must confess that Kant admits an exception to the requirement ofabsolute obedience to the authorities. There are three passages: "When human beingscommand anything that in itself is evil (directly opposed to the law of morality) they mustnot, nor ought they to, be obeyed" (Religion 99n/90n; cp. 154n/142n; R 7975). "It is acategorical imperative: Obey the authorities (in all matters not contradicting innermorality) which have power over you" (Rechtslehre 371). The people "must not resist/disobey except in those cases that fall outside the civic union, e. g. forced worship,coercion to commit unnatural sins: assassination etc." (R 8051). Probably Kant thoughtthat only passive resistance could ever be justified, that it could never be against innermorality to refrain from an officially prohibited action. Whether or not this distinction ismorally and conceptually tenable, it seems that, at least on my reconstruction of it, noresistance can be justified within Kant's theory of justice. Perhaps Kant thought there tobe duties of virtue that can conflict with, and override, even the paramount duty of justice;but I cannot speculate about this matter here. Suffice is to say that Kant's acknowledgement ofexceptions punctures his allegiance to the dogma of absolute sovereignty by restoring the



426 Thomas W. Poggc

This rcading has an important consequence. If the constitution and the iaws are liableto be morc or less just depending on their conformity to the principles of justice, and ifthe citi/.ens, though not entitlcd to judge this matter in a practical respect, are permittedand competent to judge it theoretically, then it would seem important to tap thiscompetency of the people in order to support the sovereign in his task to promotereasonable institutions. A basic yardstick for the sovereign's good will is then furnishedby the question to what extent it tolerates purely theoretical debate. And just this idea wefind repeatedly expressed in Kant: "To deny [the subjects] this freedom [of the pen]would deprive the supreme rule [...] of any knowledge of matters that he himselfwould change if he knew of them, thereby bringing him in contradiction withhimself."50 Similarly, after giving an example of a law that a people cannot judge tohave been enacted in good will", Kant continues: "In all cases, however, where thesupreme legislation did nevertheless adopt such measures, it would be permissible topass general and public judgment upon them, but never to offer any verbal or activeresistance" (Tbeory and Practice 304f./85). But what if the sovereign enacts a lawprohibiting the passing of general and public judgment upon any of its Iaws, may thecitizens or may they not pass general and public judgment upon that law? On myInterpretation, Kant would have to say that they may not.51 And we know, in fact, thatin 1794 Kant bowed to an angry Frederick William II, promising not to publish onreligion again while privately commenting: "Recantation and denial of one's innerconvictions is base, but silence in a case like the present is a subject's duty".52

Any changes required in light of {FP-2} and {MP} are then the sole responsibility, inforo interno, of the present sovereign, who alone may "alter the existing constitution ifit does not accord well with the idea if the original contract" (Recktslehre 340). "Whatsequence can progress be expected to follow? The answer is: not the usual sequencefrom the bottom upwardsy but/rom the top downwards." "It is not merely conceivablethat we can continually approach [a political constitution conforming to the require-ments of reason]; so long äs it can be reconciled with the moral law, it is also the duty ofthe chief of state (not of the citizens) to do so."53 The current sovereign alone can decidewhether a transition to a republican constitution does not expose the state to excessivedangers from abroad and whether the people are ready to legislate for themselves

potential for conflicting claims about the rightness of external actions. (There is no decisionmechanism for mediating a dispute between sovereign and citizen about whether some actwould constitute an unnatural sin, or contradict inner morality.) It thus pushes Kant towardswhat, äs Section VII will argue on independent grounds, is a plausible modification of his theoryof justice. ·

50 Theory and Practice 304/85. Cp. Enligbtenment 41/59; Contest 89/186. All these passages showthat Kant did not consider the sovereign infallible.

51 Kant speaks at R 7989 of the "right of remonstrance, which [...] the sovereign can also takeaway".

52 Ak XII 406. - After the monarch's death, Kant feit released from this promise and resumedpublication on religious subjects.

53 Contest 92&n/188&n. Cp. Rechtslehre 320 f.




(Perpetual Peace 372/118). And this position Kant accepts - and must accept, given thepriority of {FP-1} - even though he well realizes that in this way progress may be stalledunreasonably by the existing sovereign who is made from the same warped wood äs the restof us (Perpetual Peace 371/117).

VI

It may seem at first that a separate discussion of how Kant's theory of justice applies onthe international plane is superfluous. Humankind at large is merely a special case of acollection of rational-sensuous beings, and thus required to form (what Kant variouslycalls) an international or universal state, a cosmopolitan constitution, or, more specifically,a world republic.54 Thus one might think that the results of Kant's theory of justice must,without further ado, be applied globally, yielding the demand for a unified world stateunder a single world sovereign.

Two considerations support this view. First, neither the number of persons involved,nor heterogeneities of history or culture, language or technology, race or even species, canpossibly make a difference to what justice demands - which for Kant, after all, isdetermined by pure practical reason a priori. And secondly, one can also not appeal toKant's proviso that, only if they cannot avoid each other, ought persons jointly toincorporate themselves under a common constitution. The point of this proviso is to waivethe requirement in cases where stable domains of external freedom are safeguarded by themere fact of total Separation. The proviso exempts only insular individuals and groups(such äs, perhaps, Europeans vis-a-vis the American Indians before 1492), and thus cannotapply today. This is clear from the transitivity of the relation 'must form a common civilconstitution': For two persons, A and 2, to be required to coexist under a commonconstitution it is enough that they be interdependent, i. e. that there be a chain of personsbetween them, such that all persons in the chain have intercourse with their respectiveneighbors. The common constitutions governing A and By B and C, C and D, etc., must allbe one and the same, because otherwise one person would fall under two differentjurisdictions, which would open up the possibility of conflicts regarding the delimitationof her external freedom.

These two considerations notwithstanding, theproblem of global justice still involves apeculiar complexity, arising äs follows. So far, we have been making an importantsimplifying assumption. I have written äs though a set of interdependent persons couldonly coexist either in a juridical state, under a common civil constitution, or in a state ofnature. However, there is an important intermediate case, which can be defined by theexistence of at least one civil constitution limited in scope (i. e. not governing all members ofthe set). And it is this state, of course, in which our world has been for a good number ofcenturies.

54 Theory and Practice 310/90; Perpetual Peace 357/105, 379/123. Cp. Critique ofjudgment § 83;Rechtslehre 343.



428 Thomas W. Poggc

How docs Kant's thcory assess this condition relative to the two others? Recourse to{F;P-1} alone is sufficicnt to answer this qucstion. It i$ clearly inferior to a globallyjuridical state, because thcre are possible conflicts (between agents belonging todiffercnt jurisdictions) for which there is no determinate decision mechanism. On theothcr hand, it is superior to a thoroughgoing state of nature, because such a decisionmechanism does exist for some possible conflicts - which also upholds reason' ideal oflaw, of mutually consistent domains of external freedom. Reflecting these considera-tions, let me call scmi-juridical an overall state in which some, but not all, relationsbetween persons are still in a state of nature. Kant's theory of justice applied to theworld at large ranks then any fully juridical above any semi-juridical state, and anyscmi-juridical state above any complete state of nature.55

Understandably, Kant is rather uncomfortable with his theory's demand for a worldstate, presupposing (äs for him it does) an absolute world sovereign. His position onthis matter is extraordinarily unsettled, sometimes leading to inconsistencies evenwithin a single passage. He experiments with a number of arguments that might get himout of the commitment, but then at times also embraces it wholeheartedly. Let's beginwith a brief look at his arguments against a world state.

One consideration is that universal peace may engender inactivity and culturaldecline (Universal History 26/49, 20f./44f.). But this can provide no relief, äs it can atmost invoke {MP}, whereas the conflicting demand for a world state rests on {FP-1}alone.

Secondly, Kant claims that his ideal of a cosmopolitan constitution would beundermined, "if [...] it could lead to the most fearful despotism (äs has indeedhappened more than once with overly large states)" (Theory and Practice 310f./90).This claim fails for the same reason, äs republicanism again is a demand only of {MP}.

The third argument is a (later) improvement on the second. It claims that effectivegovernment of very large territories is impossible, so that any attempt to institute aworld state will lead to a relapse into a state of nature (anarchy or dictatorship). Thus aninternational state, and hence perpetual peace, ais of course a unrealizable idea".56 Thisargument, though at least it appeals to {FP-1}, is still unsuccessful, because Kant isdeeply committed to the view that we must never assume that something unachieved inthe past is therefore unachievable, nor drop a morally mandated project unless it is"demonstrably impossible".57 And that Standard is certainly not met by mere hunches,even Kant's. The claim that, for better or worse, a law-governed world state is feasibletoday would probably be accepted by a majority of social theorists.

There are traces of two further arguments. These do not aim to undermine the idealof a world state äs such, but rather concern the path of transition from a semi-juridical

55 It is obviously crucial, especially in the present section, to keep distinct the two meanings of"state" - in German: "Zustand" and "Staat" - äs invoked, for example, by "state of nature" and"world state", respectively.

56 Rechtslehre 350. Cf. Perpetual Peace 367/113.57 Theory and Practice 309f./89. Cf. Rechtslehre 354 f.




to a fully juridical state (cp. R 8045). The fourth argument asserts that this transitionwould, impermissibly, pass through a state of nature: The transfer of legislative powerfrom each national to one global sovereign is different from any ordinary transition ofsovereign authority (even, say, from monarchy to democracy), because it destroys thebonds of political union through which each united people has its distinctive identity.58

This problem could arguably be solved by conceiving the creation of a global sovereignon the model of Immigration. But then it is not so obvious in any case whether Kantdoes, or we should, take too seriously the problem of a momentary relapse into a stateof nature.

The fifth argument is this: Within an already existing civil constitution there is amechanism for the authoritative determination of external right and wrong. It mustthen depend on that mechanism whether a people ought to incorporate itself withothers under a cosmopolitan constitution.59 - But this cannot work. Yes, the existingsovereign is the last court of appeal in this matter in foro externo, but it may still betrue that the sovereign ought in foro interno to promote a world state. Or, if thesovereign ought to subject the people to whatever constitution they prefer, it may stillbe true that they ought to prefer a world state.60

The preceding arguments contrast sharply with Kant's ringing endorsement of aworld republic: "For states in their relation to each other, there cannot be anyreasonable way out of their lawless condition which entails only war except that they,like individual human beings, should give up their savage (lawless) freedom, adjustthemselves to public coercive laws, and thus establish a continuously growing interna-tional state (civitas gentium), which will ultimately include all the nations of the world.But under their idea of the law of nations they absolutely do not wish to do this, and soreject in practice what is correct in theory. If all is not to be lost, there can be, then, in

58 The national sovereigns (representing these unions - Rechtslehre 338/§ 51) also cannot remain inexistence by jointly incorporating themselves under a meta-constitution in analogy to howpersons in a state of nature can jointly incorporate themselves under a civil constitution. Kanthad proposed this solution (Theory and Practice 312f./92), but then rejected it äs contradictory(Perpetual Peace 354/102): A global constitution requires the creation of a world sovereign,which would annihilate all national sovereigns and dissolve the underlying nations into a singlepeople. There cannot be a world state of sovereign states on pains of there being competing lastcourts of appeal.

59 I suspect this thought to be behind Kant's assertion that states have "outgrown the coerciveright of others to subject them to a wider law-governed constitution" (Perpetual Peace 355 f./104). - Note that Kant makes the opposite claim two years later (Rechtslehre 350, 343): "thestate of nature among nations, just like that among individuals, is a condition that should be

• abandoned in favour of entering a juridical state"; states must not remain in "the condition ofnatural freedom [but have] the right to compel each other to abandon this state of war [and thusmust seek] a constitution that will establish an enduring peace".

60 These two sentences are precisely analogous to what Kant would say about the goal ofrepublicanism: In foro externo the existing sovereign decides whether this goal is to bepromoted. Still, it is the morally correct ideal, and hence should be wanted by the people andthus be promoted by the sovereign.



430 Thomas W. Pogge

place of the positive idea of a world republic, only the negative Surrogate of an alliancewhich averts war, endures, spreads, and checks the force of that hostile inclination awayfrom law, though such an alliance is in constant peril of its breaking loose again"(Perpctual Peace 357/105).

This passage strikingly reveals the ironic quality of the essay: Kant proposes afederation of states which he himself considers a negative Surrogate capable at best ofengcndering a fragile peace - while he holds back the positive idea of a world republic,the only fully rational organization of humankind and the only hope for a really stablepeace. The passage also suggests what may be the true reason for Kant's hesitations toadvocate a (for now utopian) world republic: A semi-juridical state (like a fully juridicalone) allows a great deal of room for moral improvement (or deterioration). Kant mightthen have thought it irresponsible to throw all his support behind reason's ultimateideal of a world republic,61 given that there is also the ideal of a morally much improvedsemi-juridical state - an ideal not so overwhelmingly opposed by the powers that be.Promoting a pacific federation might in addition be the best way of bringing about thehistorical and cultural preconditions that would make possible an eventual transition toa world republic.

{FP-2} & {MP} Secondary axis ofprogress

pnmaryaxis ofprogress

world despotism (- ) world republicwarring despotisms { ) peaceful republics

dlctatorship/anarchism

juridical statesemi-juridical statestate of nature

Kant borrows the idea of a pacific federation from St. Pierre and Rousseau, and until1793 follows them in the assumption that such a federation would have centrallegislative, judicial, and executive powers.62 In working out his political philosophy,Kant is forced to retract that assumption: The dogma of absolute sovereignty makes itimpossible for authority to be divided between the federation and its member-states;and vesting ultimate authority at the center would annihilate the individual sovereignsand states, resulting in one international state, rather than a federation of states. OnKant's considered view, the federation has then no central powers at all. It is merely a"continuing free association" (Perpetual Peace 383/127; cp. 356/104), to the terms ofwhich each member sovereign is committed only so long äs it chooses to be (Rechts-lehre 344/§54). This is a sufficient reason for Kant's practical scepticism ("constantperil"): A free association would evidently be pointless, if it committed its membersonly to terms unanimously adopted and reaffirmed. Those terms would merely reflectthe present consensus of sovereigns, i. e. could never in principle resolve any conflicts

61 At least he put the passage in, and thus remained faithful to what he had written in a draft for theessay (Ak XXIII184): "However much the offense by practice against theory may be acceptedäs a general maxim, theory itself, äs the idea that confronts human beings with their duty, mustnot be falsified, let alone be abandoned äs empty."

62 Universal History 24/47; Theory and Practice 312f./92.




among them. On the other hand, if individual sovereigns could be bound against theirwill, the association would seem very fragile, äs dissatisfied members could simply pullout. This tendency is counteracted insofar äs the general benefits of membershipoutweigh occasional losses. One important such benefit, of course, is peace which, Kantthought, would be particularly appealing to republican states, in which "the people,who pays for it, has the deciding voice on whether there is to be war or not".64

But more compelling for Kant would have been the theoretical objection: Neithernational states, nor individual persons must be allowed "savage (lawless) freedom" -even if such freedom could be tamed within a peaceful free association. The reason isthe same in both cases: Without central mechanisms of legislation, adjudication, andcoercion, reason's demand for a juridical state, providing for the authoritative settle-ment of all possible conflicts about external right and wrong, remains unfulfilled.65

VII

A very disturbing implication of Kant's theory of justice is its demand for an absolutesovereign, preferably global in scope, whose laws, and whose judicial and executiveappointees, all persons have an unconditional duty to obey, If we are interested in a

64 Tbeory and Practice 311/90 f. Cp. Perpetual Peace 351/100; Rechtslehre 345 f. - That Kant'sfaint hopes for a lasting peace through a free association of states are supported by the nowavailable historical evidence has recently been argued by Michael Doyle: Kant, Liberal Legades,and Foreign Affairs in Philosophy and Public Affairs 12 (1983). But what Doyle actually showshas very little to do with Kant. Doyle alters Kant's claim that republics will be less belligerent tothe claim that they will be less belligerent against each other. (This is enough for perpetualpeace, because, present trends continuing, all states will be republics by the year 2113 - p. 352.What if the proliferation of communist regimes also continues?) And in identifying republics(or, äs he says, liberal states) Doyle ignores two of the three conditions Kant considers essential,and adds one of his own: Doyle pays no attention to Kant's demand that there be a Separation ofpowers, and that the people have the decisive say over war and peace. (The latter was Kant'sforemost reason for optimism; and one is curious to hear what Doyle would say in this regardabout the U. S. invasions of Vietnam, Cambodia, and Grenada, or about Britain's war in theFalklands. Are there any true republics in Kant's sense? Could there even be any in the nuclearage?) Of the single remaining Kantian condition: democracy, we are told that the U. S. satisfiedit since 1776 - slavery and male suffrage notwithstanding. Doyle adds the condition that liberalstates must have "market and private property economies" (p. 212; cp. p. 208). Since theinconvenient examples of U. S. covert warfare against democratically elected governments (inIran, Thailand, and Latin America) are brushed aside äs well (p. 215), political science (!) candeliver the desired result: Capitalist "democracies" don't attack one another. And for theexplanation of that fact we hardly need to trouble good old Kant, nor does he have anything tocontribute to it.

65 Kant once writes that his peaceful federation, being Äsome kind of law-governed condition",would constitute a juridical state (Perpetual Peace 383/127). But this claim is contradicted by hiscontention that absolute sovereignty is necessary in the domestic case: If a free association ofstates is enough on the global level, then why should a free association of individuals orhouseholds, with laws but without authorities, be contrary to reason?



432 Thomas W. Pogge

Kantian thcory of justice that might be acceptable today, then, it seems, we shall have tomodify Kant's own account so äs to block or at Icast mitigate that implication, Perhapsthis project will require, in thc cnd, that onc or both lexical priorities ({FP-1} over {FP-2}, and {FP} ovcr {MP}) be givcn up, so äs to allow a balancing of the demand forjuridicality against those for formal equality and democracy, say. However, I shall hereoffcr a brief sketch of what might be done while retaining the priorities, esp. that of{FP-1}.

Kant's theory is committed to the oppressive implication only because {FP-1} worksin tandem with the dogma of absolute sovereignty; and it is this dogma, I believe, thatone should first try to sacrifice. One very powerful reason for this is that most of usnow are living quite juridically under constitutions that lack an absolute sovereign inany comprehensible sense. No developed Western state has a final court of appeal inKant's sense: a person or corporate body empowered to lay down the law, and also todismiss executive and judicial officials. There is then no "logically" complete decisionmechanism that could settle all possible conflicts. And it is quite easy (äs well äsentertaining and a little frightening) to think up scenarios picturing the three branchesof government in an all-out struggle for power - each going to the brink of what, ontheir understanding, they are constitutionally authorized to do. Would Kant concludefrom this that we are still in a state of nature?

Being a theorist, he might not be swayed by the experience of the past 200 years,which shows conclusively that non-absolutist government, though it may fail in theory,can work quite well in practice. But there is a second argument: the very idea of alogically complete decision mechanism makes no sense to begin with. Even vesting allpolitical power in a majority of members of parliament would not take care of disputesabout who rightfully is a member of parliament, whether the parliament is now inSession, or which vote tally is correct. And similar disputes can arise even with regard toan absolute monarch: Is this King Richard or an impostor? Has Richard transferredsovereignty and is thus no longer king? Is Richard dead (or insane)? Who has by lawsucceeded the dead Richard? In all diese cases it is unclear who is to decide; and I thinkit is obvious that this problem of logical incompleteness would beset any constitutionwhatever.

Absolute sovereignty does not then solve the logical puzzle, does not provide acomplete decision mechanism. Nor does the historical evidence show it to be less pronein practice to ultimate disputes about what the law demands - certainly not so much lessthat one could follow Kant in viewing absolute sovereignty äs a necessary condition fora juridical state.65 Let us then drop the dogma of absolute sovereignty and redefine ajuridical state äs one in which persons are constrained by publicly recognized andeffective laws, such that ultimate conflicts about what the law is (i. e. about what is lawand about what it means) are very rare. By an ultimate conflict I mean one

65 Though Kant, of course, had no way of foreseeing the practicability of checks and balances atthe highest level.




concerning which the disputants don't even agree on a legally correct way of settling it.*Very rare" must be left undefined, of course, and that makes clear that there isn't reallya sharp line between states of nature and juridical states. Still, we can keep Kant'sthreefold classification, the fiction of a sharp line, trusting that, despite possible hardcases, the sorting of most actual cases will prove uncontroversial.

It should be noted that losing the sharp distinction between states of nature andjuridical states is not a cost associated with abandoning the dogma of absolutesovereignty. Two other components of this distinction are a matter of degree in anycase: the transition from a dictatorial to a law-governed exercise of power, and thetransition to effective mechanisms of adjudication and enforcement. If {FP-1} is ever tobe satisfied at all, it must be interpreted äs involving a certain degree of tolerance, äsdemanding not "the most precise determination and protection of [each person's]freedom", but only domains of external freedom that are reasonably clearly delimitedand reasonably well protected. This degree of tolerance makes possible anothermitigation of the disturbing implication, which I shall only mention: Justice might nowbe compatible with some civil disobedience and conscientious refusal. However,persons engaging in such conduct would have a highest-order duty to ensure that theoverall level of such activities stays within the limits of what is compatible with ajuridical state.66

Abandoning the dogma of absolute sovereignty makes possible not only a genuineSeparation of powers, but also genuine federalism. This is particularly significant on theglobal plane. In order to attain a globally juridical state äs demanded by {FP-1}, it isnow no longer necessary to vest ultimate authority over all matters in a worldsovereign. Rather, though the central authorities would require sufficient force toovercome all resistance and would take precedence over national authorities in case ofconflict, they would need to be in charge only of matters (such äs disputes between stategovernments) that do not fall neatly within a single national jurisdiction. Moreover, theworld government could exemplify a real Separation of legislative, judicial, and execu-tive powers, thus affording genuine checks and balances.

This arrangement would on the one hand be less fragile than a free association ofgovernments, which is regularly stalled by lack of consensus (e. g. vetoes). It would alsocome closer to the republican ideal insofar äs world law would reflect democraticprocedures rather than the distribution of power among national governments. On theother hand, the arrangement falls short of a (despotic or republican) world stateannihilating all national constitutions: It could be genuinely federalist, leaving a gooddeal more authority with the political institutions of its member states than, say, theconstitution of the United States does... But the details of such a Kantian model willobviously have to await another occasion.

66 Rawls raises a similar demand: A Theory of Justice 373 ff.



Documents

Kant's Theory of Justice