Introduction
The political philosophy of Immanuel Kant (1724–1804) favoured a
classical republican approach. In Perpetual Peace: A Philosophical Sketch
(1795), Kant listed several conditions that he thought necessary for ending
wars and creating a lasting peace. They included a world of constitutional
republics by establishment of political community. His classical republican
theory was extended in Doctrine of Right (1797), the first part of Metaphysics
of Morals. At the end of the 20th century Kant's political philosophy had been
enjoying a remarkable renaissance in English-speaking countries with more major
studies in a few years than had appeared in the preceding many decades.
Kant's most significant contribution to political philosophy and the
philosophy of law is the doctrine of Rechtsstaat. According to this doctrine,
the power of the state is limited in order to protect citizens from the
arbitrary exercise of authority. The Rechtsstaat (German: Rechtsstaat) is a
concept in continental European legal thinking, originally borrowed from German
jurisprudence, which can be translated as "the Legal state" or
"state of rights". It is a "constitutional state" in which
the exercise of governmental power is constrained by the law, and is often tied
to the Anglo-American concept of the rule of law. Kant's political philosophy
has been described as liberal for its presumption of limits on the state based
on the social contract as a regulative matter.
In a Rechtsstaat, the citizens share legally based civil liberties and
they can use the courts. A country cannot be a liberal democracy without first
being a Rechtsstaat. German writers usually place Immanuel Kant's theories at
the beginning of their accounts of the movement toward the Rechtsstaat. The
Rechtsstaat in the meaning of "constitutional state" was introduced
in the latest works of Immanuel Kant after US and French constitutions were
adopted in the late 18th century. Kant’s approach is based on the supremacy of
a country’s written constitution. This supremacy must create guarantees for
implementation of his central idea: a permanent peaceful life as a basic condition
for the happiness of its people and their prosperity. Kant was basing his
doctrine on none other but constitutionalism and constitutional government.
Kant had thus formulated the main problem of constitutionalism, “The
constitution of a state is eventually based on the morals of its citizens,
which, in its turns, is based on the goodness of this constitution.”Kant’s idea
is the foundation for the constitutional theory of the twenty-first century.
………………………………………..
Kant's legal-political philosophy has a peculiar interpretive history
even by Kantian standards. Not only did it take extraordinarily long to receive
much attention by the scholarship at all, but Kantian inspired political
theories received much more attention than did Kant's own. For example, two of
the most influential political theories of the last few decades are those of
Habermas and Rawls -- two Kantian positions that were initially developed
without taking Kant's own legal and political writings as their starting point.
Although Habermas has increasingly become preoccupied with and inspired by
Kant's legal-political philosophy -- and especially Kant's main writing on the
issue, the Doctrine of Right in The Metaphysics of Morals -- the same was never
true of Rawls. Rawls was clearly inspired by some of Kant's shorter, political
essays, primarily in his thinking about global justice in The Law of Peoples,
but most of the Kantian ideas developed as part of his theory of "justice
as fairness" utilize core ideas in Kant's ethical writings, including some
of those captured by the categorical imperative.
One reason for this delay of scholarship is presumably the fact that
Kant's main work on the issue -- the Doctrine of Right -- is written in a
somewhat extreme form of Kantianese (technical Kant vocabulary) that is both
difficult to understand and often presupposes an interpretation of key ideas in
Kant's overall philosophical project. Furthermore, according to Kant himself
the ideas presented are less worked out than he would have liked. (It was published
towards the end of his life when he had less time to devote to polishing it.)
In contrast, many of his shorter, political essays are among the most moving,
well written, and most accessible of any of Kant's writings. Another reason why
his political philosophy received little engagement is simply the fact that in
the Doctrine of Right (as well as in the corresponding lecture notes written by
his students) we find some of those statements seemingly presenting Kant as a
stern absolutist with little or no patience for the poor and who is more than
willing to use the whip to uphold his sexist and homophobic prejudices. In any
case, whatever the reason for the delay, things have changed dramatically over
the last three decades or so, and today there is little doubt that Kant's
legal-political philosophy, including the Doctrine of Right, has come into its
own.
Looking more closely at the rapidly growing secondary literature on
Kant's legal-political philosophy reveals a distinction between two common trends
regarding how it is engaged. On the one hand, a significant number of
interpretations focus primarily on Kant's political writings (even if they also
secondarily draw on other Kant texts). These interpretations typically
emphasize the Doctrine of Right with an aim of identifying or developing a
coherent overall interpretation of the position. On the other hand, a
significant number of interpretations explore the relationship between Kant's
legal-political writings and the historical period in which they were written
or with regard to other aspects of his philosophy, including his theoretical,
historical, educational, anthropological, and aesthetic writings. Since the aim
of Elisabeth Ellis' anthology is to "introduce Kant's political thought to
a new generation of readers and to demonstrate the fruitfulness and vibrancy of
a broadly Kantian approach to political philosophy" (3), it is natural
that the anthology includes representatives from both interpretive streams.
There's something for everyone, even if everything is not there and if
everything that is there is not for everyone.
Kant's Political Theory consists of nine articles as well as one of the
currently richest bibliographies on Kant's legal-political thought. The authors
are a mix between well-established scholars in the field and newer voices. They
include philosophers, historians and political scientists. Moreover, applying
the distinction between the two kinds of writings we commonly find in the
secondary literature on Kant's legal-political thought yields two groups of
papers. Five of the papers (by Onora O'Neill, Arthur Ripstein, Thomas W. Pogge,
Louis-Philippe Hodgson, Robert S. Taylor) explore Kant's political thought by
primarily focusing on the Doctrine of Right and the political essays. The
remaining four papers (by Michaele Ferguson, Ian Hunter, Mika LaVaque-Manty,
and John Christian Laursen) explore aspects of Kant's political thought by
looking to some of his other writings and/or the historical setting of his
academic life.
Of the papers in the first group, the first two -- by O'Neill and
Ripstein -- seek to identify core elements in the basic philosophical structure
of Kant's theory and to use them to situate Kant's theory in relation to the
historical canon. The main idea suggested by O'Neill in "Kant and the
Social Contract Tradition" is that rather than using the prominent social
contract ideas of hypothetical or actual (explicit or implicit) consent to
understand Kant's basic claim that just impositions on persons' exercise of their
external freedom can be consented to by these persons whose freedom is so
constrained, we should use a modal notion of consent, meaning that such consent
must be possible (36). The implication of this, O'Neill suggests, is that if we
want to call Kant a social contract theorist, we should be aware that "he
is a peculiar one." (27) O'Neill ends by saying that the main reason why
we need justice and the state is that human beings not only have to interact,
but have an irreducible "unsociable" aspect (39) and are not
"reliably altruistic"
Despite the many agreements between O'Neill's and Ripstein's articles,
it is clear that challenging this very last idea -- that Kant affirmed the
historically prominent idea that justice fundamentally remedies human beings'
typical tendency not to act virtuously (insufficiently altruistically) --
motivates a great deal of Ripstein's interpretation in "Kant and the
Circumstances of Justice." Ripstein argues that even if we assume away our
"crooked timber," or our typical tendencies to act in ignorant,
biased, selfish, or vicious ways, we still need justice. And to fully establish
justice, we need states (the rule of law). Against much Kant interpretation
(including the majority of the other articles in the anthology) and other
prominent theories of justice, such as those we find in Hobbes, Locke, and
Hume, Ripstein defends the claim that for Kant "neither justice nor the
law is remedial." The first part of
Ripstein's paper aims to demonstrate that this basic assumption fundamentally
informs Kant's proposal that establishing the state is constitutive of
realizing justice, including why the pre-state condition or the state of
nature, at best, is "devoid" of justice. (Because this
"remedial/non-remedial" assumption is crucial for how one tries to
make sense of Kant's writings, I indicate below which conception of justice and
the state the other articles presuppose, if one is presupposed.) In the second
part of the paper, Ripstein shows that though justice requires a state (the rule
of law) anyone who manages to establish a monopoly on coercion (rule-governed
violence) does not thereby also establish a minimally just state. Therefore,
barbaric regimes like Nazi-Germany cannot issue political obligations on those
subject to its force.
In the third article, "Is Kant's Rechtslehre a 'Comprehensive
Liberalism'?" Pogge utilizes Rawls's influential distinction between
"freestanding, political conceptions of justice" and
"comprehensive doctrines" to explore a particularly puzzling feature
of Kant's Doctrine of Right, namely the way in which justice and the law are
seen as restricted to so-called "external" freedom. Rawls'
distinction is utilized to explain aspects of the way in which Kant separates
ethics ("internal" freedom) from justice or right
("external" freedom). Pogge suggests that Kant's conception of
justice is freestanding and political in the Rawlsian sense. Consequently like
Rawls's theory of "justice as fairness," Kant's legal-political
theory is compatible with -- can fit as a "module" into -- many very
different comprehensive doctrines and not only Kant's own (as Rawls thought).
In addition to making this larger point, Pogge engages some of the more
specific aspects of Kant's argument for the establishment of the state, including
expressing some worries that Kant's justification of the state does not succeed
as an "a priori" (or "non-remedial") argument, but only as
the weaker "empirical" ("remedial") argument. (86f) This
and other arguments in this paper can be fruitfully engaged by reading it along
with the contributions by O'Neill, Ripstein, and Hodgson (next chapter), all of
which were written subsequent to Pogge's contribution, which was a
groundbreaking piece (originally published in 1998).
In "Realizing External Freedom: The Kantian Argument for a World
State," Hodgson engages another central debate in the literature, namely
issues concerning global justice. In short, Hodgson utilizes arguments
structurally similar to the ("non-remedial") ones Ripstein presents
for the domestic case in order to justify the claim that Kant does and Kantians
should support the establishment of a world state. The world state is viewed as
a legal-political framework with legislative, judiciary, and executive powers
restricted to interactions between states and between states and aliens. Within
the existing secondary literature, the position Hodgson defends is on one
extreme, where the other extreme maintains that Kant rejects the permanent
establishment of any kind of a global public authority with coercive powers.
Interestingly, as the relevant secondary literature shows, one can end up on
either extreme -- and anywhere in between -- regardless of whether one
interprets Kant and the Kantian project as "remedial" or
"non-remedial." Hodgson's paper is a fine illustration of how one can
end up firmly within the world state camp by means of non-remedial arguments.
The four papers already described focus primarily on Kant's Doctrine of
Right. In contrast, Taylor explores Kant's thought by making one of Kant's
political essays his primary focus. "The Progress of Absolutism in Kant's
Essay 'What is Enlightenment?'" explains how Kant's
"Enlightenment" essay contributes to the specific debate in his time
of how to understand the concept of enlightenment. Taylor also takes us through
some of the key arguments in the "Enlightenment" essay, such as
Kant's somewhat peculiar distinction between private and public uses of reason.
He then argues that understanding Kant's contribution involves seeing how Kant
conceived of the possible, historical or developmental transitions from an
absolute monarch to an enlightened republic "in a manner wholly consistent
with both justice and the short-run interests of the regent himself." To
strengthen his case, Taylor draws on several of Kant's other political essays
as well as Kant's treatment of historical religions and the Doctrine of Right.
Although many of the details of Taylor's argument can be disputed, it is not
hard to see that an interpretation along this line is relatively easily made
compatible with much of what is claimed in the previous four essays (even with
their differences on whether to accept the remedial or non-remedial
assumption).
Looking at the first set of five papers together, there is little doubt
that they give a good starting point for engaging much of the literature
surrounding many of the larger interpretive questions in Kant scholarship.
There are a few larger questions that are not addressed by any of the papers,
such as discussions of Kant's conceptions of domestic public right, freedom of
speech, and punishment, but the papers as a whole yield a solid beginning for
new readers to engage many classical systematic issues in relation to Kant's
legal-political theory. A second, possible drawback (the anthology is entitled
Kant's Political Theory: Interpretations and Applications) is that most of the
classical or common applied topics in legal-political philosophy, such as
distributive justice (poverty), children's rights, abortion, animals' rights, health
care rights, environmental protection etc., are not addressed by these (or the
remaining) papers.
Let us turn now to the second set of papers, which are less attentive to
a technical exploration of Kant's legal-political writings as such, and instead
are more focused on other works or historical facts that may have a bearing on
how we consider certain aspects of Kant's legal-political thought. Two of these
papers, like Taylor's, consider Kant's theory of justice in relation to issues
of history and historical progress. But their approaches are quite different.
Ferguson's "Unsocial Sociability: Perpetual Antagonism in Kant's Political
Thought" argues that in order to understand Kant's core notion of
"unsocial sociability," including what we find in the essay "The
Idea for Universal History with a Cosmopolitan Purpose," we must look not
only to Kant the "moral philosopher," but also to Kant the
"phenomenologist" As we do, we
must notice the distinction and tension in a way that Kant himself and Kantians
do not . The problem is that Kant and Kantians conflate human nature (viewed as
things about us that pose problems for our morality or cause "moral
failure") and the human condition (the morally neutral plurality of
humankind) when they consider antagonism's role in human societies and their
development . Consequently, Kant typically sees antagonism from the point of
view of moral philosophy, according to which antagonism should be overcome.
Hence Kant asserts that a united will provides a means for overcoming or, to
use Ripstein's language, "remedying" antagonisms (163). Similarly,
contemporary Kantian approaches, like those of Rawls and Habermas, mistakenly
search for the construction of some procedures, "rational will
formation," or "cosmopolitan institutions that could guarantee
peaceful and just relations around the globe."
In contrast, Ferguson argues that if we see antagonism from the point of
view of phenomenology, we can appreciate how the pursuit of a cosmopolitan
future -- perpetual peace -- "both requires and is undermined by
antagonism." (164) For example, she argues that even though antagonism as
a result of moral failure (human nature) makes peace difficult, antagonism as a
result of the plurality constitutive of the human condition (our unsocial
sociability) drives much of human progress, including our recognition of the
need for the rule of law and public institutions at both the domestic and
global levels . As we have seen above, some of the prominent interpretations of
Kant today challenge the remedial interpretation of Kant's justification of the
need for justice and the state. If they are correct in maintaining that Kant
provides both remedial and non-remedial justifications for justice and the
state, then, correspondingly, Kant may not have been confused about this, and
Ferguson's interpretation may be closer to getting Kant right on "unsocial
sociability" than she thinks.
Contrary to Ferguson who thinks that much can be learned if we merely
untangle various confusions found in Kant's and Kantian legal-political
thinking, Hunter's "Kant's Political Thought in the Prussian
Enlightenment" is much more ambitious. He seeks to uncover the true
structure of Kant's legal-political philosophy -- a structure that is invisible
if one reads only Kant's legal-political and moral writings. Consequently, it
is unappreciated by currently prominent Kant scholars. Hunter's first task is
to inform contemporary Kantians of "the complex cultural-political
terrain" Kant was operating in -- a terrain that is "largely terra
incognita in studies of Kant's moral philosophy" (175f). He aims to show
that Kant's political and religious writings, despite appearances, seek to
defend Kant's ideal of the intellectual as "the Protestant German
university metaphysician" (185)
against various competing moral-religious
programs. Second, he employs this historical knowledge to uncover Kant's real
purpose in the Doctrine of Right, which he summarizes in the following way:
Kant's Rechtslehre is thus based on the metaphysical anthropology of man
the self-determining pure intelligence that he elaborated in his metaphysics of
morals. In fact Kant's political and legal doctrine is formed on the basis of
the extraordinary conception that right or justice originates when this pure intelligence,
existing outside space and time, seeks to exercise its freedom 'externally' by
occupying the global surface of the earth. (182)
There is almost no end to the interpretive puzzles and controversies
raised by this statement (and statements of its kind throughout the paper),
some of which readers may discern from consulting the other papers in the
volume. That this statement and many other interpretive claims throughout the
paper are textually implausible gives Hunter little pause, however, since what
Kant appears to be saying is not so important. To understand what Kant really
means in his legal-political writings, we need to look elsewhere. In
particular, we need to appreciate a particular (also controversial)
interpretation of Kant's Religion within the Boundaries of Mere Reason, the
plausibility of which is seen as stemming from a particular interpretation of
various historical facts that influenced Kant deeply (including in ways Kant
himself wasn't aware).
LaVaque-Manty's "Kant on Education" explores aspects of Kant's
view of education. It starts by explaining how Kant was particularly influenced
and supportive of the Philanthropinen education movement (founded by Johann
Bernhard Basedow) before moving on to the way in which Kant's conception of
education complements his moral philosophy -- both his ethics and his
legal-political philosophy. Of particular importance, LaVaque-Manty points out,
is the emphasis Kant puts on children being treated as children whose aim is to
learn to master their freedom -- both their internal and their external
(including embodied) freedom. LaVaque-Manty does not explore whether or how
this impacts the issue of children's rights or public law issues concerning
education, but clearly it points to many concerns such an account will
consider.
The final paper, Laursen's "Kant, Freedom of the Press, and Book
Piracy" primarily focuses on Kant's argument for book piracy, though at
the very end it touches upon the question of freedom of the press. Laursen
begins by arguing that Kant's small section on book piracy in the Doctrine of
Right ("What is a Book?") contains arguments he had presented in an
essay in Berlinische Monatsschrift a decade earlier -- an essay aimed at
refuting his contemporary, Martin Ehler. According to Ehler, book piracy should
be outlawed because it involves stealing the author's thoughts or ideas,
whereas Kant proposes that piracy should be outlawed because it involves
"the transaction of business in the name of another without his consent."
(230) Laursen's paper is particularly useful for learning about the historical
setting in which Kant was formulating his piracy arguments.
To me, a general drawback of these last four papers is that they do not
reveal an intimate familiarity with the kinds of positions defended in the
first five papers and hence that they do not try to draw any connections to
them. Therefore they are unconnected from currently prominent interpretations
of Kant's Doctrine of Right and his legal-political essays. At least this seems
to be the reason why these last four papers do not utilize the kinds of
interpretations found in the first five papers as they develop their own. Then
again, this disconnect is prominent in the literature, so perhaps Ellis is
quite right in making this selection in her effort to represent the current
literature accurately. In sum, then, although the selection of some of the
papers puzzles me somewhat and, as mentioned above, although there are some
types of papers I believe the anthology would have benefitted from including,
in my view it certainly succeeds in its aim of providing new readers with a
good starting point for approaching the literature surrounding Kant's
legal-political thought. These new readers should be fairly well versed in
legal-political philosophy beforehand, but to such readers the anthology
provides a very good sense of the current variety of approaches to Kant's
theory of justice.
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