3.1 Kant’s Substantive Definition of Right

Kant’s substantive as opposed to formal definition of Right is “the sum of the conditions under which the choice of one can be united with the choice of the other [des andern]Footnote ²³ in accordance with a universal law of freedom.” The “Universal Principle of Right” (allgemeines Princip des Rechts)Footnote ²⁴ that he then formulates is that “Every action is right if [in] it or in accordance with its maxim the freedom of the power of choice of each can coexist [zusammen bestehen] with the freedom of everyone in accordance with a universal law” (DR, Introduction, sections B and C, 6:230). Kant makes similar statements in other sources. Thus, in his notes he defines Right by saying that “The doctrine of Right (as Right of human beings) is the content of laws without which freedom cannot subsist externally together with the freedom of everyone” (R 7309, 1780, 19:308; Kant Reference Kant and Rauscher2016, p. 20), and in the transcription of his lectures on natural right he says that “Right is a limitation of freedom according to which freedom can coexist [bestehen] with the freedom of all others in accordance with a universal law” (L-NR, 27:1320; Kant Reference Kant and Rauscher2016, p. 82). Right is thus the condition in which everyone can act as freely as possible consistently with the equal freedom of everyone else, and the principle of right – the categorical imperative of Right, if you willFootnote ²⁵ – is to act only in ways – or only on maxims – that are consistent with the same, maximal degree of freedom for everyone else. Since in Kant’s view the role of the state (civitas), which is itself defined as “a union of a multitude of human beings under laws of Right” (DR, §45, 6:313), is to make the condition of Right determinate and secure for the inhabitants of some bounded region of the surface of the earth, in light of these definitions the role of the state is nothing less and also nothing more than to make the conditions for the coexistence of the freedom of all, or as much freedom for each as is consistent with equal freedom for all, determinate and secure.Footnote ²⁶ Thus Kant notes that “The state can coerce no one to be happy or to make another happy but must secure everyone’s freedom” (R 7919, 1788–89, 19:554; Kant Reference Kant and Rauscher2016, p. 48) and “Not the principle of general happiness but freedom according to universal laws constitutes the principle of the establishment of the state and its idea” (R 7955, 1780–84, 19:564; Kant Reference Kant and Rauscher2016, p. 50).Footnote ²⁷

Drawing these thoughts together, Kant’s first published exposition of his political philosophy in 1793 begins with this clear statement:

By “public Right” as the sum of “external laws” Kant means the state with its legislation defining the obligations and rights of its members, both citizens and office-holders. Thus Kant here clearly expresses his view that the function of the state is to establish and enforce, through its “positive” laws (DR, Introduction, section A, 6:229), that is, its actual legislation, the greatest freedom for each compatible with equal freedom for all in their interactions – that is the sense in which its laws are “external.” But the positive law of any particular state, regardless of how it is actually made, needs to be justifiable in light of the Universal Principle of Right, and limited by it. Since the Universal Principle of Right is itself part of morality as a whole, this is how morality should apply to and govern the legislation of any actual state.

These definitions of Right and its Universal Principle demonstrate the foundation of the principle of Right in the fundamental principle of morality because the latter is itself nothing other than the demand for the preservation and promotion of maximal freedom of choice in one’s own, intrapersonal case and maximal consistency of one’s own exercise of freedom with the freedom of choice of all others in the interpersonal case. The principle of Right is just the application of the fundamental principle of morality to the case in which one person’s external use of choice – that is, action – has the potential to interfere with the free exercise of choice in the actions of others: in such cases the principle requires that each limit her exercise of choice – her freedom – to the condition of consistency with the exercise of free choice in action by all – but only by that condition. Only its threat to the freedom of others gives others the right to limit the freedom of action of anyone else.

Kant’s insistence that the goal of the state is not the happiness of its members but their freedom – which they can use within its limits of equality with the freedom of others to realize their own happiness as they choose, or not at all – provides further evidence that its foundation can lie only in morality itself. For in the Groundwork for the Metaphysics of Morals Kant insists that there are really only two kinds of principles of practical reason, that is, the application of reason to action, on the one hand “counsels” of prudence, “of diet, frugality, courtesy, reserve, and so forth, which experience teaches us are most conducive to well-being on the average” (G, 4:418), that is, which are the deliverances of the empirical use of practical reason, or, on the other hand, the sole imperative of pure practical reason, the fundamental principle of morality. Since the fundamental principle of politics is not prudence, it can be grounded only in the fundamental principle of morality itself. For Kant there is no middle ground between prudence and morality or any third form of practical reason.Footnote ²⁸ Or perhaps better, for Kant the ground for accepting the rule of the state cannot be mere prudence, for even though in many situations prudence and morality may call for the same course of action, they are not the same and will not always call for the same course of action. The demands of morality sometimes override mere prudence, or prudent self-love, so morality cannot be founded on mere prudence, and therefore neither can Right.Footnote ²⁹

Although Kant’s fundamental dichotomy between prudence and morality is clear in the Groundwork, that the fundamental principle of morality itself is nothing other than the command for maximal consistency in the intra- and interpersonal use of freedom may not be so clear in that work, in Kant’s other foundational work in moral philosophy, namely, the Critique of Practical Reason, or even in the Introduction to the Metaphysics of Morals. So the first step in my argument must be to show that the requirement for the greatest possible consistency in the intra- and interpersonal use of freedom is indeed Kant’s fundamental principle of morality, so that the Universal Principle of Right’s demand for the great possible consistency in the external, interpersonal use of freedom is indeed just an implication or simply a part of that general principle.

We can work back from the Introduction to the Metaphysics of Morals. Kant first argues that moral laws “hold as laws only insofar as they can be seen to have an a priori basis and to be necessary” and “command for everyone, without taking account of inclinations, merely because and insofar as [they are] free and [have] practical reason” (MMI, 6:215–16), and then states that “a metaphysics of morals cannot dispense with principles of application,” for which we shall “have to take as our object the particular nature of human beings, which is cognized only by experience, in order to show in it what can be inferred from universal moral principles” (6:217). This means that the fundamental principle of morality must be entirely a priori, derived from pure reason alone, but that certain basic but only empirically known and therefore contingent facts about human nature and the human condition are necessary for the derivation of the specific duties of human beings, including the duties of Right from the a priori principle of morality in general that is valid for all rational beings.Footnote ³⁰ Kant then proceeds to a systematic exposition of “The Preliminary Concepts of the Metaphysics of Morals.” This begins with the statements that “The concept of freedom is a pure rational concept,” the concept of the “causality of pure reason for determining choice independently of any empirical conditions,” and that “On this concept of freedom, which is positive (from a practical point of view), are based unconditional practical laws, which are called moral” (MMI, 6:221). All of this might mean only, as it did for other authors of the period, that the subject matter of morality is the actions of free agents, or the free actions of agents – not the motions or behavior of nonfree agents, such as falling stones or what we take other animals to be, nor the involuntary actions of persons, as when they are pushed by someone else – but not to imply that the preservation and promotion of freedom is the goal of morality.Footnote ³¹ And when Kant introduces the concept of a categorical imperative into his exposition, which is defined as a “morally practical law” that “asserts an obligation with respect to certain actions” but also connotes the existence of “necessitation” or constraint because it “either commands or prohibits” such actions to creatures, like us, who do not always naturally incline to fulfill their obligations but at least sometimes resist them (MMI, 6:222–3; cf. G, 4:412), his first formulation of the categorical imperative, as in the Groundwork and Critique of Practical Reason, invokes only the necessary universal validity of our maxims of action, as what pure practical reason must demand: “The categorical imperative, which as such only affirms what obligation is, is: act upon a maxim that can also hold as a universal law.”

That is, it is morally permissible to act on some maxim only if it would continue to be possible to act on that maxim if it were universalized, or if everyone were to act on it. (This is what is known as the “Formula of Universal Law.”) In Kant’s best known and most workable example: if you propose to get money by making a false promise, one that you do not intend to keep, could you still accomplish your purpose if everyone were to adopt such a maxim? No, because under that condition, no one would accept a promise, the institution of promising would collapse, and your proposed action would become impossible. Therefore your action would be morally impermissible: you could not will both your proposed maxim and its universalization.Footnote ³² However, even though this formulation of the categorical imperative applies only to beings capable of free choice, it makes no direct reference to freedom at all, that is, it does not explicitly prescribe the preservation and promotion of free choice or action upon free choice. The same is true of Kant’s next statement, that “The supreme principle of the doctrine of morals, is therefore, act on a maxim which can also hold as a universal law. – Any action that does not so qualify is contrary to morals” (6:226).

But Kant’s formulations of the definition of Right and the Universal Principle of Right do explicitly refer to freedom, namely, to the necessity of the coexistence of any one person’s exercise of freedom with the exercise of freedom by all. So how can his principle of Right be derived from the fundamental principle of morality, or from its presentation to us sometimes recalcitrant human beings in the form of the categorical imperative? The answer to this question lies in Kant’s statement that “The ground of the possibility of categorical imperatives is this: that they relate to no other property of choice (by which some intention [Absicht] can be imputed to it) than merely to its freedom” (MMI, 6:222). That is, the categorical imperative – or, since Kant uses the plural, any specific versions of the categorical imperative – does not simply presuppose the freedom of the agents to which it applies; it concerns only their freedom – what it prescribes is nothing less and nothing more than the universalization of their freedom. The categorical imperative requires that anyone exercise their freedom – expressed in their choice of maxims for their actions – only in ways consistent with the freedom of everyone else. And this is exactly what the Universal Principle of Right requires in the case of any and all of our actions that could interfere with the freedom of choice of action by others.

3.2 Earlier Versions of Kant’s Argument

This might seem like a lot to extract from Kant’s remark that the “ground of the possibility of categorical imperatives” “relates” “merely” to freedom. But if we now go back to look at Kant’s statements about the fundamental principle of morality and the categorical imperative in works leading up to the Metaphysics of Morals we will see that this is what he means. Kant uses a variety of concepts to express the fundamental principle of morality, but they all point in the same direction. Whether Kant presents the principle in terms of will, willing maxims, humanity, or freedom of choice, the result is always that the fundamental principle of morality is to preserve and promote the greatest and most equal freedom of choice of ends and action toward those ends that is possible for oneself and others. The principle of Right is simply that such freedom must be preserved in the subset of cases in which one person’s choices of action would leave others with less freedom than the first would enjoy, so the principle of Right is simply part of the principle of morality itself.Footnote ³³

Kant’s earliest recorded thoughts about morality are notes that he made in his own copy of his 1764 book Observations on the Feeling of the Beautiful and Sublime.Footnote ³⁴ One of these notes says that “In subjection there is not only something externally dangerous but also a certain ugliness and contradiction that at the same time indicates its unlawfulness. … [T]hat the human being himself should have no will of its own, and that another soul should move my limbs, is absurd and perverse” (ROFBS, 20:93; Kant Reference Kant, Frierson and Guyer2011, p. 129). Kant’s observation that there is “something externally dangerous” in subjection may be taken to acknowledge that it is in fact often imprudent or risky to try to subject others to one’s own will rather than finding a way to minimize subjection to all. In surrounding remarks Kant also suggests that there is something psychologically displeasing about the subjection of one human being to the will of another: we may chafe at the limitations nature places on us,

But Kant’s use of terms of logical criticism – “contradiction” and “absurd” – as he continues suggests that there is more than an argument from prudence or psychology here. Rather, Kant suggests that all humans being do have wills of their own; that we all know this; that to subject others to one’s own will is to treat them as if they did not have wills of their own, which is in turn tantamount to denying that they have their own wills; thus in subjecting others to our own will we are both asserting and denying that they have wills of their own – which is a contradiction, a violation of the most fundamental law of reason. In various forms, an argument like this remains the most basic level of Kant’s thought about morality.Footnote ³⁵

The next major source for Kant’s evolving moral philosophy is the lectures on ethics that are recorded from the middle of the 1770s.Footnote ³⁶ In the introductory section on “The Supreme Principle of Morality,” Kant states that this principle must be “intellectual” – what he will subsequently call a priori rather than a posteriori or empirical – and offers what is clearly a version of his later first formulation of the categorical imperative: “The principle of morality is the agreement of an action with a universally valid law of the free power of choice” (Eth-K, pp. 64–5). Kant continues:

Here, as O’Neill, Rawls, and Korsgaard have suggested, the contradiction is between an intention and its supporting maxim and the universalization of that maxim, as in Kant’s example of the contradiction between the intention to accomplish some end by making a false promise and the consequences of the universalization of the supporting maxim of lying in order to achieve one’s ends. But why should one raise a moral question about the consequences of the universalization of one’s own maxim in the actual world, in which the universalization of one’s maxim might not result from one’s own adoption of it? Kant’s introductory discussion might suggest that pure reason simply requires universalizability, and many commentators on Kant have been content with that idea.Footnote ³⁷ But in the main part of the lectures, Kant suggests that the core concept of morality is “freedom according to a choice that is not necessitated,” that is freedom of choice, because freedom is “the highest degree of life … the inner worth of the world, the summum bonum.” Yet precisely in order to maximize that value, to prevent any one exercise of freedom of choice from undermining and destroying the possibility of others, which would be “the most terrible thing there could ever be,” or “savage disorder,” freedom must be “restricted by objective rules” (Eth-K, p. 177; Collins, 27:344). These “objective rules,” however, although Kant refers to them in the plural, are in fact nothing but the single principle that every use of freedom, every free choice, must be compatible with the greatest possible use of freedom. In this section, Kant is discussing duties to oneself, and the rule for “self-regarding actions” is “so to behave that any use of [one’s] powers is compatible with the greatest possible use of them because “the greatest use of freedom” is “the highest principium of life. Only under certain conditions can freedom be consistent with itself; otherwise it comes into contradiction with itself.” For example, the decision to get drunk might be a free choice considered by itself, but it can destroy one’s ability to make further free choices for a time, or, if one maims or kills oneself in an ensuing car crash, one’s free choice can limit or completely destroy one’s further possibility of freedom. But this example immediately suggests that this principle is not in fact just self-regarding, for obviously a drunk driver can injure or kill others and thereby limit or altogether destroy their freedom. Thus the restriction of any use of one’s freedom to the “conditions under which alone the greatest use of freedom is possible, and under which it can be self-consistent,” is entirely general and the “principium of all duties,” not just duties to oneself (Eth-K, pp. 179–80; Eth-C, 27:346). It applies to the interpersonal and intrapersonal case, and is the fundamental principle of morality for both.Footnote ³⁸ Further, although Kant is not discussing Right here, his example also shows clearly why the fundamental principle of governmental regulation, the principle of Right, is implicit in the fundamental principle of morality: we all assume that government should prohibit driving under the influence precisely because one individual’s choice to drive while drunk, although considered by itself perhaps a free choice, can easily damage or completely destroy the freedom of others and is therefore not consistent with the “greatest use of freedom.” If driving while drunk risked injury only to one’s own freedom, perhaps we would not feel comfortable publicly enforcing its prohibition; but since it clearly risks injury to the freedom of others, we have no hesitation in doing so.

But now what has happened to the first formulation of the categorical imperative as the requirement to act only on maxims that could also be willed to be universal laws? To answer this question we need to understand the structure of Kant’s argument in Section II, the central section of the Groundwork for the Metaphysics of Morals. Here Kant first formulates the categorical imperative as the command to act only on universalizable maxims, but then argues that the ground of the categorical imperative is the “humanity” (Menschheit) in every person. However, this humanity includes the capacity of each person to set her own ends, which is the form of freedom relevant to Right.Footnote ³⁹ Thus, although now under the name of humanity, the intrinsic and unconditional value of free choice, of all of one’s own free choice but of everyone’s else’s free choice equally, remains the fundamental value underlying all formulations of the categorical imperative, and the rule of acting only on universalizable maxims becomes a means of realizing this end. When he comes to the Doctrine of Right, Kant then appeals directly to the obligation on every person to treat the humanity in every person always as an end and never merely a means as the foundation of Right, in this way showing that Right is founded in the foundational value of morality just as the categorical imperative formulated as the requirement that one’s maxims be universalizable is.

Kant begins his argument in the Groundwork with an argument by elimination: if a categorical imperative as a necessarily true law that can be known by pure reason a priori can contain no contingent and therefore empirical “condition to which it would be limited,” then “nothing is left with which the maxim of action is to conform but the universality of a law as such, and this conformity alone is what the imperative properly represents as necessary.”Footnote ⁴⁰

However, in the Critique of Pure Reason Kant insists that “transcendental proofs” – the proofs that go to the very conditions of the possibility of knowledge, whether theoretical or practical, thus including knowledge of the fundamental principle of morality – “must never be apagogic but always ostensive.” By “apagogic” proofs he means indirect proofs such as proofs by elimination, while by “ostensive” proofs he means “direct” proofs that are “combined with the conviction or proof and simultaneously with insight into its sources” (CPR, A 789/B 817). In other words, philosophy ultimately requires proofs that show not just that something is true, on the assumption that the proof has accounted for all possibilities and eliminated all but one of them, but that also show why it is true. Apagogic proofs “can produce certainty, to be sure, but never comprehensibility of the truth in regard to the grounds of its possibility,” yet philosophy requires such comprehensibility. For this reason, after formulating the categorical imperative as the Formula of Universal Law, Kant says that we must nevertheless, “however reluctantly, step forth, namely into … metaphysics of morals” (G, 4:427) and find something that could be “the ground of a possible categorical imperative.” This, he says, must be “something the existence of which in itself has an absolute worth, namely something which as an end in itself could be a ground of determinate laws” (4:428).

Now where have we previously heard about something the existence of which in itself has an “absolute worth”? Of course, in the statement in the lectures that freedom is the “inner worth of the world” – except what Kant now says is that “the human being and in general every rational being exists as an end in itself, not merely as a means to be by used by this or that will at its discretion” (G, 4:428), and what he infers from this is that “The practical imperative will therefore be the following: So act that you use humanity, whether in your own person or in the person of any other, always as an end, never merely as a means” (4:429; this is known as the “Formula of Humanity as an End in Itself”). But what Kant means by “humanity” here is precisely the capacity to set one’s own ends, to freely choose the ends of one’s actions, and the Formula of Humanity as an End in Itself therefore means that in any exercise of one’s free choice preserving and promoting one’s own capacity for such choice and that of every other person must be one’s overriding end, whatever more particular goal one might have in mind. As Kant says in the Groundwork, “Rational nature is distinguished from the rest of nature by this, that it sets itself an end” (G, 4:437), so to make rational nature, or better rational agency, which we are acquainted with only in the case of humankind, thus in the form of humanity, our end is to make the capacity to set ends our most general end.Footnote ⁴¹ Or, as Kant says even more directly in the Metaphysics of Morals, humanity is that “by which” a human being “alone is capable of setting himself ends” (DV, Introduction, section V.A, 6:387), or “the capacity to set oneself an end – any end whatsoever – is what characterizes humanity (as distinct from animality)” (Section VIII, 6:392). The capacity to freely choose our own ends and the actions by which to realize them is the end in itself, the inner worth of the world – but this capacity not just on one occasion of use, but throughout one’s life, and not just in oneself, but in everyone. To treat this capacity in this way of course requires “objective rules” of “consistency,” and therefore the use of reason, but not merely instrumental reason, or counsels of prudence.Footnote ⁴²

In the Groundwork, Kant does not offer an argument for the claim that rational nature, or its sole known instantiation in the form of humanity, is the one and only end in itself. He simply says that the nature of human beings as “persons,” beings that can set their own ends, “already marks them out as an end in itself, that is, as something that may not be used merely as a means, and hence so far limits all choice” (G, 4:429). Just as he earlier supposed that it is self-evident that every human being has her own will and that we cannot deny this without contradicting ourselves, so he now also supposes that it is self-evident that every human being has the capacity to set her own ends, leaving unstated that we cannot deny this without contradicting ourselves. Nor does Kant offer much explanation of how precisely the status of humanity as an end in itself, and the only one, “grounds the possibility” of the previous formulation of the categorical imperative as the requirement to act only on maxims that we could also will to be universal laws. Presumably he supposes that if everyone could choose to act on a maxim on which we choose to act, that means that our choice leaves them as free to choose that maxim as we are. This would leave them free not to do what we are doing, after all, but if they were to consider acting in circumstances like our own of course they would also have to act only on a universalizable maxim. This would be the sense in which the Formula of Universal Law could be a “testing procedure” for the Formula of Humanity as an End in Itself. But this step need not detain us, because the key point here is that Kant derives the Universal Principle of Right directly from the status of humanity as an end in itself, not from the Formula of Universal Law. The fact of our common humanity, in Kant’s special sense, is the foundation of the Universal Principle of Right, just as this fact is the ground of the categorical imperative in general.

The Feyerabend lectures, delivered at the very time that Kant was writing the Groundwork, suggest the same conclusion. Initially ignoring his textbook, Kant began with an exposition of the main ideas of his own moral philosophy as it was taking shape in the Groundwork. Kant’s introduction takes up ten printed pages (L-NR, 27:1319–29), and seems to have stretched over several sessions. That Kant began with this general exposition of his own moral philosophy itself, just as he would later do in the Metaphysics of Morals, makes clear that he regarded his topic as a proper part of moral philosophy. The lectures begin with the assertion that “The whole of nature is subject to the will of a human being as far as his power can reach excepting other human beings and rational beings. Considered rationally, things in nature can be viewed only as means to ends but a human being alone can be viewed as himself an end” (27:1319). Kant then hints at his original idea that since we know this perfectly well it is a contradiction for us to act in a way that effectively denies it: “A human being is an end so it is contradictory to say that a human being should be a mere means” (27:1319). This is the bedrock of Kant’s moral thought. Kant then spells out that the status of all human beings as ends in themselves is based on the possession by each of his or her own will, but he identifies having a will of one’s own with freedom, thus tying together the terminology of his original notes, of his lectures on ethics from the previous decade, and of the Groundwork: will is freedom which is the end in itself. As he does in the Groundwork (G, 4:434–5), Kant also links our having our own wills with our unique “dignity,” unlike everything else in nature that has merely a “price”:

Freedom is nonfungible: freedom, unlike anything else, cannot be traded off for something else of equal value. There is nothing else of equal value. But if each human being possesses freedom and is therefore entitled to the status of an end in itself, then the value of freedom will be fully realized only if the freedom of each human being is exercised only in ways that are compatible with the freedom of all. And then Kant concludes that “Right is a limitation of freedom according to which freedom can coexist with the freedom of all others in accordance with a universal law” (27:1320): the definition of Right that he uses in his final statement of the doctrine of Right is reached at the end of this argument.

Kant concluded his first lecture in Feyerabend by distinguishing his approach to morality in general and to Right in particular from the standard approach, which grounded morality and Right in the supposed value of happiness:

as long, that is, as one person’s way of pursing happiness does not prejudice the freedom of others. Behind this passage there are at least three thoughts. First, the law that limits our use of freedom to its use consistent with the freedom of all is a law of reason, not mere nature – although in light of Kant’s claim in the Groundwork that our nature “marks us out” as ends in ourselves, reason must be part of our nature. Second, our freedom to set our own ends is the condition of the possibility of our pursuit of happiness, because happiness is nothing other than the realization of our ends (G, 4:418). But, third, precisely because we can each use our freedom to set different ends than others, as long as they do not compromise the freedom of others, there can be no single conception of happiness that is universally valid, and therefore the pursuit of happiness cannot be the fundamental principle and direct object of morality, a fortiori of Right. Morality in general and Right in particular do not preclude the pursuit of happiness by anyone, because since happiness is the realization of our ends, our freedom as the freedom to set our own ends is freedom to pursue our own conception of happiness; but any one person’s exercise of her freedom to set and pursue her own ends must always be constrained by the equal value of the freedom of everyone to do the same.

Kant reiterates his basic idea in what appears to have been the next lecture, summing up his argument thus far with the remark that “If rational beings alone are capable of being ends in themselves it cannot be because they have reason but because they have freedom. Reason is merely a means” (27:1321). That is, reason is what we need to use in order to exercise our own freedom and set our own ends only in ways that are compatible with the equal freedom of all to do the same. This tells us in a nutshell that a pure principle of rationality such as the Formula of Universal Law is in fact but the means to realize the value of freedom. This is why Kant at this point invokes the contemporaneous Groundwork’s distinction between two kinds of “hypothetical” imperatives, those of “skill” and of “prudence” (although at G, 4:418 he denies that the latter are really imperatives at all) on the one hand, and the one and only categorical imperative on the other (27:1323–4): the use of the latter is the means to freedom as the end, just as the other forms of imperatives – which of course are not really imperatives after all – express the means to other, lesser, contingent ends. Kant then introduces his students to the formal distinction between Right and Ethics just as it will subsequently be made in the Metaphysics of Morals. Obligation in general rests on “the possibility for how the action can hold under universal laws.” “Legality is agreement of an action with duty” or obligation “without considering whether or not duty is the determining ground of the action,” that is, the agent’s fundamental motivation, thus an action is legal just as long as it conforms with obligation. And “Morality is the agreement of an action with duty insofar as duty is the determining ground of the action,” that is, insofar as respect or esteem for duty is itself the motivation for fulfilling one’s obligation. Kant then distinguishes Right from Ethics on the basis of this distinction: “In all juridical actions their legality is conformity with duty, but not their morality, they are not done from duty. Legality is only concerned with whether I act in conformity with duty, beyond that it is all the same whether I act out of respect or inclination or fear.” Kant makes it clear that this is the basis of the distinction between Right and Ethics properly so called: “Ethics (Ethic) is the science of judging an action in accordance with its morality. Jus [Right] is the science of judging an action in accordance with its legality. Ethics is also called the doctrine of virtue” (all from 27:1327). The crucial point here, again, is that the distinction between legality and morality, between Right and Ethics, is a distinction within morals as a whole. There has been no suggestion that Right has any other foundation than the general premise that human freedom is the end in it itself that Kant has been expounding up to this point. It is crucial to keep this in mind when reading the Doctrine of Right published a dozen years later. There Kant does not repeat the introductory argument of the lectures, but must have felt that he had no need to because in the interim he had published the Groundwork for the Metaphysics of Morals. Everyone could now read the foundations that he still had to lay out for his students in the summer of 1784.

Finally, as he does in the Metaphysics of Morals, Kant informs his students that Jus or Right concerns those actions that can be coerced, while “Ethics is not concerned with actions that can be coerced.” He explains that “Ethics is the practical philosophy of action regarding dispositions,” that is, fundamental motivation, while “Jus is the practical philosophy of actions regardless of dispositions.” “Everything obligatory belongs to Ethics, thus all duties,” because any obligation can be fulfilled entirely on the basis of respect for the moral law itself, but “Jus is concerned with duties and actions that are in accord with the law and can be coerced. … Right is a doctrine of duties that can and should be coerced through force” (27:1327). Kant then asks his students, “When is an action enforceable?” (27:1328). Well, if it is duty but “respect for the law” is not a sufficient motive for someone to do it, “then it must be done through coercion” (27:1327). But if “Coercion is a limitation of freedom,” how can the use of coercion ever be right? Because, as Kant has already argued, the use of freedom must be compatible with the greatest possible freedom for everyone: it is only the use of freedom in accordance with a universal law, not freedom without any constraint at all, that is permitted and required by the fundamental principle of morality. “An action that is directed in accordance with a universal rule of freedom is right, [but] if it contradicts freedom in accordance with a universal rule then it is unjust. The aim may be whatever it will. My action is allowed to be constituted only in a way that accords with universal freedom” (27:1328). Again, Kant appeals to logic, that is, to pure reason: if an action contradicts the universal rule of freedom, it is wrong, but upholding the universal rule of freedom, that is, preserving the greatest freedom equally possible for all, even if it involves the use of coercion, is right.

3.3 Kant’s Final Version of His Argument in the Doctrine of Right

In the Feyerabend lectures, Kant’s proof that Right is as much a part of morals as is Ethics is based on the premise that freedom is the end, reason the means. In the Doctrine of Right, Kant adopts the style of the Groundwork by basing his argument for the Universal Principle of Right on the foundational value that grounds morals in general, the status of humanity as an end in itself: since humanity is or includes the freedom of each human to set her own ends, its status as end in itself requires the adoption of the principle that everyone should have as much freedom as is possible consistent with the equal freedom of everyone else. The structure of Kant’s argument in the Introduction to the Doctrine of Right closely follows the structure of his argument in the central section of the Groundwork, and ultimately rests on the same premise as the latter: the intrinsic and unconditional value of humanity as an end in itself.

As we have already seen, Kant defines the doctrine of Right as the “sum of those laws for which an external lawgiving is possible,” and states that the “doctrine of natural Right” “must supply the immutable principles for any giving of positive law” (DR, Introduction, Section A, 6:229). A doctrine of natural Right is to supply the moral standard by which the actual legislation – positive law – of any particular regime is to be evaluated and if necessary reformed. The possibility of external lawgiving is a formal and nominal definition of Right. Kant next provides his substantive definition of Right: “Right is … the sum of the conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom” (Section B, 6:230), that is, not just a law for free beings, but the law that freedom itself must be universal. Kant then applies this definition to the case of particular actions in the form of the Universal Principle of Right, “Any action is right if it can coexist with everyone’s freedom or if on its maxim the freedom of the choice of each can coexist with everyone’s freedom in accordance with a universal law” (Section C, 6:230). This still has the form of a definition.Footnote ⁴³

So does Kant’s next step, the introduction of the concept of strict Right. Kant defines “strict Right” as “the possibility of thoroughly reciprocal coercion compatible with everyone’s freedom in accordance with universal laws” (Section E, 6:232).Footnote ⁴⁴ This is an analytic proposition because it has been reached from the previous definition of right as the use of freedom in accordance with universal law by what Kant regards as a strictly logical step, namely, the connection of “authorization to coerce someone who infringes upon” Right “by the principle of contradiction.” His argument is that since the use of freedom in accordance with universal law is right, then whatever is “a hindrance to freedom in accordance with universal laws” is wrong, but then whatever is a hindrance to that, thus a “hindering of a hindrance to freedom,” is once again right (Section D, 6:231). Actually, what Kant is using is the principle of double negation, that a double negation is an affirmation (¬ (¬p) = p), but this is still a purely logical principle, and Kant’s connection of the right to use coercion to prevent violation of Right is still supposed to follow from the definition of Right plus a purely logical principle.Footnote ⁴⁵ We can see Kant as thinking that he has reconciled any potential conflict between the definition of Right as enforceable and the definition of Right as the use of freedom in accordance with universal law by the use of the straightforward logic, and that he is capping this reconciliation by the definition of strict Right. But by the latter he is not introducing a new category of Right or a subset of the original category of Right: all genuine Right is strict Right according to Kant’s initial definition.

At this point in Kant’s series of definitions, it might be objected that Kant is overlooking his own longstanding distinction between logical and real relations,Footnote ⁴⁶ and that he needs to show that it is really possible for a use of coercion, which considered in itself is always an abridgement of someone’s freedom, that of the person coerced, to preserve freedom in accordance with a universal law, which would seem to have to include the freedom of everyone involved, the would-be perpetrator of a violation of Right as well as the would-be victim. Although Kant does not supply such an argument, this can be done by supposing that if the laws and potential punishments for their violation in any actual state are public and known, the would-be perpetrator of a crime has a free choice between committing his crime and suffering the potential consequences of it, or not so choosing, and thus always has the option of a free choice to preserve his own freedom in a way that the would-be victim of his crime would not. That is, under a system of public laws there is always a way to preserve freedom in accordance with universal law, and when someone freely chooses to break a law, he has in fact freely chosen to do that and to risk the associated punishment. A system of enforcement to preserve freedom can in fact preserve freedom.Footnote ⁴⁷

But the main point that I want to make here is that in Kant’s view conclusive philosophical arguments can never be based on definitions alone.Footnote ⁴⁸ They need some external or additional ground to prove that the definition has “objective reality,” or really applies to something actual, in the first place. This is a foundation of Kant’s “critical” philosophy, and Kant makes this point in many ways and applies it in many cases. He states the general principle at the beginning of the central argument of the Critique of Pure Reason, the “Transcendental Deduction” of the “Pure Concepts of the Understanding”: concepts that are not derived directly from experience, which categories that are supposed to hold necessarily and universally can never be, must be shown not to be merely “usurped,” such as concepts like “fortune” and “fate,” which we can define but cannot show that we have any right to use (A 84/B 117). His famous critique of the ontological argument is nothing other than an argument that we cannot derive the existence of God from a mere definition of the concept of God, but must instead have some antecedent reason to believe that such a concept applies to something real in the first place. Or, as Kant’s defender J.G. Schulze explained,

In other words, no informative, in Kant’s usage “synthetic” propositions, are ever proven from definitions alone. Any definition must be shown to have “objective reality,” or actually to apply to some existing object; only then will whatever follows from the definition by logical rules also be shown to have objective reality. Or, in the normative case, it must first be shown that a definition really does state an obligation for us, and only then will whatever follows from the definition also turn out to apply. Show that the definition of Right actually applies to us, or is actually normative for us, and then the further inference that Right is strict Right, that coercion may be used to enforce it, will also apply to us. But definitions alone will never show that any norms apply to us.

Thus Kant’s definitions of Right and of the Universal Principle of Right in the Introduction to the Doctrine of Right do not constitute a premise from which whatever follows can be shown to bind us. They merely define a concept – Right – that must still be shown to express a binding obligation for us. Kant is perfectly well aware of this methodological point, his own fundamental methodological point, and so, just as in the Groundwork he added an “ostensive” proof of the moral law with the assertion of the fact that our nature marks us out as persons and ends in ourselves to the merely “apagogic” argument for the first formulation of the categorical imperative, so in the Introduction to the Doctrine of Right does he follow the initial definition of Right with the justifying ground for that definition: the “innate right” to freedom that each of us possesses in virtue of the humanity in each of us, or the obligation that each of us has to treat the humanity in all of us as an end and never merely as a means.

Kant takes this crucial step under the bland title of a general “Division of Rights.” The first division is the familiar one between “natural Right,” “which rests only on a priori principles,” and “positive Right,” “which proceeds from the will of a legislator,” that is, is the legislation in some actual state. It goes without saying by this point in Kant’s exposition that the former is to be the moral standard for the latter. The moral character of rights, thus collectively of Right, is then made explicit in Kant’s second and “highest division”:

Kant’s use of the term “nature” here is telling: as in Kant’s argument in the Groundwork that humanity whether in one’s own person or that of any other is the ground of a possible categorical imperative, it signals the factual basis for the application of a moral concept, in this case the concept of innate right, to us. Kant then explains: “Freedom (independence from being constrained by another’s choice), insofar as it can coexist with the freedom of every other in accordance with a universal law, is the only original right belonging to every human being by virtue of his humanity” (6:237). Everyone has a right to freedom in virtue of his humanity, that is, his ability set his own ends; everyone has such a right because humanity and thus freedom is the end in itself, thus we have an obligation to treat it always as an end and never merely as a means, and right is the correlative of obligation. If I have some obligation to you, then you have a right to my fulfillment of that obligation; if I have an obligation to everyone, then everyone has a right to my fulfillment of that obligation. Since humanity is freedom, the freedom to set our own ends, the obligation that we each have to the humanity in all, in our own person and that of every other, as the sole end in itself, entails a correlative right of all to as much freedom as is conjointly possible for everyone.Footnote ⁵⁰ This is the moral foundation of Kant’s doctrine of Right, the something “given” that makes the mere definition of Right applicable to and normative for us. The innate right to freedom is grounded in our fundamental obligation to treat the freedom of all as an end and never merely as a means, and is in turn the ground of the Universal Principle of Right, just as the humanity in us all is the ground of the imperative always to act only on universalizable maxims. Kant has followed his own methodology: first the analysis of the concept of Right, then the proof that this concept has objective reality.Footnote ⁵¹

Kant spells out what is contained in the concept of innate right and thus what is our moral obligation in the case of Right in terms of three entitlements.Footnote ⁵² Kant says that these are “not really distinct from” the concept of innate right, “as if they were members of the division of some higher concept of Right” (as say Australopithecus and modern Homo sapiens might be species of some higher genus of hominids); they are simply the marks of this concept, its predicates; perhaps the importance of this remark is that the concept cannot be satisfied if just one of its entitlements is observed, while the genus of hominids still exists even if only one species, namely, modern humans, survives. Innate Right demands that all of the entitlements always be satisfied. These entitlements are: “innate equality, that is, independence from being bound by others to more than one can in turn bind them, hence a human being’s quality of being his own master (sui iuris),” that is, the right to deal with others always from a position of equality; “being a human being beyond reproach (iusti), since before he performs any act affecting rights he has done no wrong to anyone,” that is, the right to continue to enjoy one’s equal freedom with others as long as one has not by one’s own act brought down any limitation of freedom upon oneself;Footnote ⁵³ and third, “being authorized to do to others anything that does not in itself diminish what is theirs,” that is, their freedom, “so long as they do not want to accept it – such things as merely communicating [one‘s] thoughts to them, whether what [one] says is true and sincere or untrue and insincere (veriloquium aut falsiloquium); for it is” – that is, as long as it is – “entirely up to them whether they want to believe him or not” (6:237–8).

The entitlements are forms of freedom of action. Everyone has as much right to freedom as everyone else, so no one is naturally inferior to any other in this regard. Thus no one has an innate right to limit or destroy the freedom of another unless the other has brought that on himself by his own action. And because everyone has an innate right to freedom, no one has the right to manipulate or defraud others, because manipulation and fraud are deprivations of freedom, but as long as one leaves others free to make their up their own minds what to believe, say, or do, one can oneself believe, say, or do whatever one wants.Footnote ⁵⁴ For Kant this is the basis as well as the limit not only for free speech but also for freedom of religion, as the freedom to believe whatever one wants about religious matters, for belief by itself cannot limit the freedom of any other; as the freedom to say what one wants about religious matters, as long as one is leaving others free to believe and say what they want, not for example brainwashing them as in a cult; and as the freedom to practice religion as one believes best, as long as one’s practice is not interfering with the freedom of others to practice religion, or anything else, as they want. This last element of freedom of religion is the basis for the proviso in Kant’s defense of the separation of church of state, as in every other defense from the days of Roger Williams and John Locke, that “A state has only a negative right to prevent public teachers [of religion] from exercising an influence on the visible commonwealth that might be prejudicial to the public peace” (DR, General Remark C, 6:327).Footnote ⁵⁵

As we have just seen, Kant divides Right into the two classes, innate and acquired Right. The latter is in turn divided into several possible acquired rights, such as the rights to possess land, to enter into contracts with other persons for particular actions, and to enter into long-term relationships with other persons that are defined and to that extent protected by law such as marriage, parenthood, and employment (rights to things, to persons, and to persons as akin to things).Footnote ⁵⁶ There is just the one innate Right to freedom, although that can be analyzed into its three entitlements which, however, remain very general, while there are multiple species of acquired rights, which have been developed in great detail by all systems of law. For that reason Kant can say that innate Right has been adequately discussed in the “prolegomena and division of the Doctrine of Right” and that the two main sections of the following book can be reserved for expounding the complex of acquired rights and then “Public Right,” that is, the rights – and responsibilities – connected with the state, as the instrument for the enforcement of rights through its positive legislation and its juridical and penal institutions. But it would be a mistake to infer from this organizational choice that the public laws and institutions are necessary to define and enforce only acquired right, because the elements of innate Right need specification and enforcement in the actual circumstances of human life just as much as acquired rights do.Footnote ⁵⁷ For example, although we are all innately entitled to freedom of speech, we may still need law to specify that it is permissible to yell “Fire!” in the middle of a wide-open field but not in a crowded theater – or that screaming “You won’t have a country unless you fight for it!” to an armed horde is not permitted speech but incitement to riot that should be punished.

Kant’s word “prolegomena” might suggest a mere preface rather than a foundation, but the innate Right to freedom is the foundation of acquired Right. The right to do anything that leaves others equally free is the basis of the right to acquire property or enter into short- or long-term agreements with others as long as so doing leaves everyone affected as free as everyone else. What Kant does in his treatment of acquired Right is to show how property can be acquired or contracts made or long-term relationships managed in ways that leave everyone involved with their innate Right to freedom. For example, the acquisition and possession of property requires an “omnilateral” rather than a “unilateral will”; that is, it must be possible for everyone affected to agree freely to a system of property rights, because the freedom of each to use land or objects is affected by the property rights of others (DR, §8, 6:255–6). The conditions for acquired rights are grounded in the innate Right to freedom, which is in turn grounded in our shared humanity, and the basic categories of acquired Right could not be denied without denying the innate Right to freedom itself.Footnote ⁵⁸ This is not to confuse innate and acquired Right, for acquired rights require the consent of others to one’s particular claims (explicit consent in the case of contracts or marriages, for example, perhaps tacit consents in relation to some aspects of property rights, and innate Right requires no such consent. But all have an innate Right to demand the consent of others under appropriate conditions, and all have a moral obligation not to withhold consent under appropriate conditions. That is the sense in which the right to acquire acquired rights is part of everyone’s innate Right to freedom grounded in the moral obligation of all to respect the humanity in each.

In fact, not only did every author of the period include the right to acquire property on their lists of innate rights, but in the Naturrecht Feyerabend lectures Kant did so too. There Kant offers the vague definition of “original natural right” that it is “the right of a human being insofar as it rests merely on inner laws” (L-NR, 27:1338), which tells us that it does not depend on any external legislation or juridical act, such as making a contract, thus it does not arise from any social contract and obtains in status naturalis as well as civilis. The auditors had to fill in from what Kant had previously said that freedom is the end and reason merely the means; thus, innate Right must be the right to every form of freedom that can coexist with the equal freedom of others. Kant then follows Achenwall and other writers of the time by simply listing a number of jura connata, or inborn rights. The list that Kant offers is

1. (1) “No one does wrong to another if he performs actions that concern himself alone” (27:1338); such actions are exercises of one’s innate right to freedom that by definition do not interfere with the freedom of others.

2. (2) “All are equal to each other, not in understanding, powers, but in right,” so “Inequality of right must originate through factum juridicum” or some particular deed (27:1338–9).

3. (3) “Libertas: Before factum juridicum I infringe on no one and thus also no one can limit my freedom.”

4. (4) “The right to a good reputation.”

5. (5) “A jus connatum to acquire things” (27:1339).(and (6), the right to declare one’s mind, already mentioned).

Among these (2) corresponds to the first entitlement that he lists in his mature analysis of innate right, (3) and (4) correspond to the second entitlement in that list, and (1) is the basis of the third entitlement of innate right, the right to do anything to others that one wants as long as it does not limit their freedom. However, although (5), the inborn right to acquire things, is missing from Kant’s later analysis of innate right, it should be included on the grounds that, first, acquiring and possessing property does not limit the freedom of that which is possessed, for example land or cattle, for those things possess no freedom to be limited, and, second, does not unequally limit the freedom of other human beings as long as they could freely agree to the acquisition or possession. In the Doctrine of Right Kant makes the first of these conditions more explicit than the second, emphasizing in its “Postulate of practical reason with regard to rights” that “freedom would be depriving itself of the use of its choice with regard to an object of choice by putting usable objects” – that do not have any will and thus any possibility of freedom of their own – “beyond any possibility of being used” (DR, §6, 6:250). But in the lectures Kant makes both conditions for the exercise of the innate right to acquire rights explicit, although in reverse order to what I have listed:

It is possible to acquire rights to things, for example, a tree that one has cut down, because such things have no will and hence no possibility of freedom of their own (at least on Kant’s view of such things as trees). But that is only a necessary condition of the rightful acquisition of property, what Kant calls a negative right; for a sufficient condition for rightful acquisition, or what Kant calls an affirmative right, the consent of others, at least their possible consent, is required – there has to be some form of agreement that one had a right to cut down that tree in the first place. This is what Kant implies by his claim that a “factum juridicum” must have first occurred, although “factum juridicum” has to be understood broadly here, as referring not just to a particular act, such as a contract with the proprietor of a Christmas tree farm that creates the right to cut down one of his trees at a specified price, but also as referring more generally to a tacit or explicit but in either case free acceptance of a scheme of property rights. For it to be possible for all concerned to accept any such scheme freely it would presumably be necessary for each to regard it as sufficiently in their own interest to do so, or for the scheme to reach some standard of fairness.Footnote ⁵⁹ The point is that the right to acquire acquired rights is itself part of innate Right. Kant had also made this explicit in his preliminary sketches of the Doctrine of Right: “we have an innate right to acquire all that we are able to use, though only insofar as it agrees with that condition of the outer unity of powers of choice” (Kant Reference Kant1900—, 23:220; Kant Reference Kant and Rauscher2016, p. 258) – namely, the possible coexistence of the freedom of all, or, as Kant calls it here, “the idea of a united will.”Footnote ⁶⁰

Kant’s doctrine of Right, beginning with innate Right as the basis for all acquired Right, is founded on our obligation to treat the humanity of all as an end in itself, indeed the sole end in itself. Since Kant makes it clear in the seminal works of 1784–85, the Groundwork but also the lectures on natural right, that this is the foundation of morality in general, this should make it clear that Kant’s doctrine of Right is grounded on the fundamental principle of morality and is an integral part of his moral philosophy.

I will now conclude this Element by pointing to several features of Kant’s political theory that make sense only if we assume that Right, or the establishment and maintenance of a condition of Right through the legislative, juridical, and penal institutions of the state, is a moral obligation, not a mere matter of prudence.

4.1 The Moral Duty to Enter a State

(i) The first of these moral duties is the duty to become part of a state. Kant explicates this obligation in §§41 and 42 of the Doctrine of Right, which effect the transition between its two main sections on “Private Right” and “Public Right.”Footnote ⁶¹ Kant begins the transition with a restatement of his definition of Right, although after the detailed exposition of the particular ways in which freedom is to be preserved in innate Right and the acquired rights to property, contract, and relationships that he has offered in Private Right, he now can speak of rights instead of speaking directly of freedom: “The rightful condition [Das rechtliche Zustand] is that relation of human beings among one another that contains the conditions under which alone everyone is able to participate in his rights, and the formal condition under which this is possible in accordance with the idea of a will giving laws for everyone is called public justice [Gerechtigkeit]” (DR, §41, 6:305–6). In other words, Right obtains when everyone can enjoy the freedom embodied in their innate and acquired rights, as required by morality, and public Right is the “formal condition” of this enjoyment, what makes it determinate and secure. Kant stresses that public Right serves to realize private Right (although as we saw innate Right also needs to be made determinate and secure): it “contains no further or other duties of human beings among themselves than can be conceived in the former state”; “the matter of private Right is the same in both. The laws of the condition of public Right, therefore, have to do only with the rightful form of their association (constitution), in view of which these laws must necessarily be conceived as public” (6:306). Since the content of innate and private Right flows from the moral imperative to realize the greatest possible freedom of each to the extent consistent with the same freedom for all, and public Right has no purpose except to realize innate and private Right, its justification and necessity are also moral in origin.

Kant defines a “rightful condition” more fully as comprising “protective justice (iustitita tutatrix),” “justice in acquiring from one another” (iustitia commutativa),” and “distributive justice (iustitia distributiva)” (6:306).Footnote ⁶² The first of these presumably means the protection of rights and possessions that people already have, the second a requirement of fairness in transfers, and the third Kant has defined as “legitimacy of possession, not the way it would be judged in itself by the private will of each (in the state of nature), but the way it would be judged before a court in a condition brought about by the united will of all” (DR, §39, 6:302). In other words, distributive justice obtains when a system of rights, that, is conditions for the exercise of innate Right and the acquisition of the various forms of acquired rights, could be freely agreed to by all, which could presumably happen only if the system can be perceived as adequately in the interest of each.Footnote ⁶³ But distributive justice, Kant also argues, can obtain only in a civil condition (status civilis) as opposed to the state of nature (status naturalis): the civil condition is defined by the existence of laws that “determine,” that is, make fully determinate, “what conduct is intrinsically right, in terms of its form” and “what [objects] are capable of being covered externally by laws, in terms of their matter,” thus which together define which rights people have with regard to which sorts of objects, and of courts that can “give the decision in a particular case in accordance with the given law under which it falls,” in other words, which can determine precisely how the relevant laws apply to particular circumstances (§41, 6:306). In his initial definition of distributive justice, while also suggesting that distributive justice can only obtain in a civil condition, Kant also attempts to clarify the distinction between distributive justice and the other two forms of justice by arguing that in the state of nature people have rights only against each other, presumably as a product of innate Right plus particular agreements about matters of private Right that they have made, but only in the civil condition do they actually have rights against things (§39, 6:303), presumably meaning by this that only under the rule of law and courts can people have rights to possessions that must be recognized by anyone even without personal agreements between the holder of such rights and others, such as passers-by who might trespass on their land. Surprisingly, Kant makes no mention in these passages of the need for an executive authority in the civil condition to enforce the application of the laws (made by a legislature) to particular cases (as determined by courts), when in a political theory such as Hobbes’s the role of the executive is really the raison d’etre for the state and the main motivation for people leaving the state of nature to enter into the civil condition.

Later Kant certainly will recognize the role of the executive as well as the legislature and judiciary:

Kant analogizes the three persons of the state to the three steps in a “practical syllogism,” “the major premise, which contains the law of that will; the minor premise, which contains the command to behave in accordance with the law, that is, the principle of subsumption under the law; and the conclusion, which contains the verdict (sentence), what is laid down as right in the case at hand” (§45, 6:313). One might have thought that the law that functions as the major premise of this syllogism is a command to behave in a certain way, and the analogy might better have been between the law promulgated by a legislature as the major premise, the decision of a court that a particular action falls under that law as the minor premise, and the action of the executive to enforce the ruling of the court as the conclusion.Footnote ⁶⁴ Be that as it may, Kant’s omission of the role of the executive in his initial definitions of the civil condition is striking. Perhaps this is just an expository failing on Kant’s part, or perhaps it is a subtle way of preparing the ground for the argument that he will subsequently make that the executive is merely an agent of the legislature that has the role of enforcing laws but most decidedly not making the laws or interpreting them, the functions of the legislature and judiciary respectively (§49, 6:316–17). His use of the term Herrscher to characterize the role of the legislature and mere Regierer, which could also be translated as “regent,” to characterize the role of the executive, might also be part of that diminution of the role of the executive. Kant was firm on that point, but may have felt that he had to express it subtly and cautiously in the autocratic Prussia of his time, in which as a professor he had been a public employee.Footnote ⁶⁵

The main point here is that Kant recognizes a moral permission and indeed obligation to establish and enter into the civil condition. This is clear from the “postulate of public Right” with which he begins the second transitional section between private and public Right:Footnote ⁶⁶ “From private Right in the state of nature there proceeds the postulate of public Right: when you cannot avoid living side by side with all others, you ought to leave the state of nature and proceed with them into a rightful condition, that is, a condition of distributive justice” (DR, §42, 6:307), which is in turn, as Kant had just argued, the civil condition – the state. You ought to enter the state. Using his favorite terminology, Kant continues that “The ground of this postulate can be explicated analytically from the concept of right in external relations, in contrast with violence (violentia).” The right as well as the obligation to be part of a state follows analytically from the concept of right itself because, as we saw, the right to coercive enforcement of one’s rights and indeed the obligation to coercively enforce rights follows analytically from the concept of right itself, and the state is the instrument of such coercion, which can itself be established by coercion. But, as we also saw, the concept of right by itself does not establish our obligations; rather, rights follow from our obligation toward persons as ends in themselves. Rights are the means by which to fulfill our fundamental moral obligation to preserve freedom in our interactions with each other. So if the concept of Right entails the possibility and necessity of coercive enforcement, and the state or civil condition is the means for realizing Right, as Kant’s analogy with the practical syllogism expresses, then the right and the obligation to enter into the civil condition follows from the fundamental principle of morals itself. Each person has the obligation to do so, and the right against others that they do so.

Kant’s next paragraph might mislead a reader into thinking that for Kant the necessity of the state is after all grounded in mere prudence rather than in morality, in which case it would be only a relative necessity, contingent upon particular circumstances such as whom one encounters and how strong they actually are. Kant says that

Kant uses the word “prudent” (klug) here, so this sounds like a counsel of prudence, and no doubt it is a counsel of prudence: if you think that others around you will not respect your personal freedom and possessions and have the strength to take them from you, then it certainly is prudent to seek the protection of a state against them. But Kant immediately adds that one is entitled (befugt) “to use coercion against someone who already, by his nature, threatens him with coercion.” Here Kant is using the terminology of his original explication of the innate Right to freedom. And as we are entitled to coercive enforcement of our rights, the use of coercion through the instrument of the state is just the form that our permissible use of coercion against the threat of coercion takes. Since that was authorized as a hindrance to the hindrance of freedom, and that is authorized by the moral value of freedom itself, so is membership in a state not merely prudent but an enforceable right authorized by morality.

Kant continues in a moral tone in the final paragraph of §42:

That is, while it is prudent to take steps, even proactively, against others who will not assure one of one’s rights, it is wrong for everyone involved to remain in such a state of hostility; Right requires that everyone leave such a state and enter into the civil condition.

Kant’s use of “ought” (sollst) in the statement of the postulate of public right is in the second person, addressed to each of us in the same verbal form in which any moral obligation can be stated. So we each have an obligation to be part of a state governed by law, the civil condition, if we cannot simply avoid contact with other persons, which we cannot avoid in the actual conditions of human existence. But Kant’s talk of an entitlement to threaten the other with coercion against his own potential coercion implies a right to compel the other to enter into the civil condition along with oneself. In Kant’s view, this follows from the nature of a right, as including the right to enforcement, and from the moral fact that we have a right to our freedom. This is not just prudence.

One of the most astute reviewers of Kant’s Rechtslehre objected to Kant’s view that we have a right to compel others to join in a state with oneself. Ludwig Heinrich Jakob, to whose book on Moses Mendelssohn’s Morgenstunden (“Morning Lessons,” 1785) Kant had earlier contributed a preface,Footnote ⁶⁷ wrote that

Like every other author of the time, including Achenwall, Jakob recognized that any right, in Achenwall’s case the right to self-preservation and therefore to the means to it, includes the means to realize that right. Jakob though that means to protect one’s rights and possessions from hostile attackers were justified, including the right to voluntary association with like-minded others for this purpose. But he did not see how this gives anyone a positive right to force others to enter into a state with him.

However, Jakob may not have fully understood Kant’s recognition that the threat of hostility is itself a form of coercion that justifies counter-coercion, not as a matter of mere prudence but as a matter of right, thus that coercing others into joining a state with one is coercion intended to hinder coercion, not unprovoked coercion as he thinks it would be.

Another earlier reviewer, Friedrich Bouterwek, might also have failed to understand the full import of Kant’s justification of coercion. He applauded Kant’s general principle that “in accordance with the idea of universal freedom (limited only by the moral law) I cannot treat a person as a thing [Sache], for that would exclude a being from the idea of universal freedom who is yet comprehended under this idea” – indeed, he captures in this formulation Kant’s underlying idea that there is a logical contradiction in treating someone who has a will of his own as if he does not. And he has no objection to Kant’s specific view that rightful “Coercion is nothing but hindering a hindrance of freedom.” However, he takes from this only a negative concept of Right, that “the juridical concept of Right only limits the freedom of the other, insofar as this cannot coexist with the freedom of all; but it does not describe any law through which the other can be obligated to do something.”Footnote ⁷⁰ However, this does not recognize that for Kant rights and obligations are always correlative: if I have the right that you not do something, then you have an obligation not to do it and I have the right to enforce that obligation; and if the only way to hinder your coercive threat to my right is itself a form of coercion, as forcing you to join with me in a civil condition would be, then I have a right to that coercion, as hindering a hindrance to my freedom. Kant would not accept Bouterwek’s objection, although in his replies to Bouterwek’s review, in an Appendix added to the second edition of the Rechtslehre (DR, 6:356–72), he replies not to this point but to a different objection, namely, Bouterwek’s objection to his own rejection of a right to rebellion. We will come back to that issue shortly; for now we can conclude that, whatever the merits of his argument, Kant himself certainly thought that all who cannot avoid coming into contact with each other have an obligation to enter into the civil condition with each other and therefore that any of them have the right to enforce this obligation, that is, to force others to enter into a state with them – or, if the state already exists, as in human history it usually does, to continue to maintain that state along with them. Such a right can only be grounded in moral obligation.

4.2 The Moral Obligation of Rulers

Kant also argues that those in positions of power in their states have a duty to rule in accordance with the idea of Right. This can only be a moral duty, in fact an ethical duty, since it cannot be imposed on those who rule the state by anyone other than themselves. Unlike Machiavelli, Kant does not argue that it is in the self-interest of rulers to rule with the mere appearance of morality.

Kant holds that only a republican government can truly make innate and acquired right determinate and secure, in his terms deliver distributive justice. Republican government is defined along two axes, which we might define, again in Kantian fashion, formally and materially. Formally, or structurally, republican government is distinguished by the distribution of the three functions of government, legislation, adjudication, and enforcement, among three different persons, a legislature, a judiciary, and an executive. These may be natural or artificial persons (DR, §49, 6:316), that is, single persons or groups. It is crucial that these three functions be divided among different persons so that those who have the power to adjudicate cases under the law or enforce those judgments will not have had the opportunity to make the laws in their own favor from the outset. Kant states that the three different powers in the state are “first, coordinate with one another as so many moral persons, that is, each complements the others to complete they constitution of a state.” “But, second, they are also subordinate to one another, so that one of them, in assisting another, cannot also usurp its function; instead, each has its own principle” (DR, §48, 6:316). All three functions are necessary to complete the work of the state, as the analogy with the practical syllogism shows, and to ensure that distributive justice does result each of the functions has to be carried out by a separate person, with none usurping the functions of one or both of the others.Footnote ⁷¹ Yet Kant is also emphatic that “The legislative power can belong only to the united will of the people,” for only then can the principle volenti non fit iniuria, no wrong is done to those who are willing or consent, be satisfied,Footnote ⁷² while the executive is merely an agent of the legislative authority, even though the executive gets the name of the “ruler,” for example, king or prince, of a state: “The ruler [Regent] of a state (rex, princeps) is that (moral or natural) person to whom the executive power (potestas executioria) belongs,” but he is

This suggests that while the executive is the agent of the legislature, the judiciary is in turn the agent of the executive, when one might have thought that both executive and judiciary should be considered as agents of the legislature, one charged with applying the laws that it has passed to particular cases and the other to enforcing those decisions (although Kant is prescient that the executive branch in a complex modern state also has a role in applying the law, namely, the rule-making function of executive agencies that transform the intent of the legislature into determinate rules). But what is particularly tricky is the relation between legislature and executive. On the one hand, Kant is clear that the law must express the united will of all who are subject to it, and a legislature is the instrument for the expression of that will.Footnote ⁷³ He is likewise clear that the executive must be charged merely with carrying out those laws, in that sense be the mere agent of the legislature, and his use of terms like “regent,” “king,” and “prince” might seem as if it just a sop to the pride of current kings, such as the king of Prussia, who might think that their role is greater than that. On the other hand, Kant is insistent that the executive must have a monopoly on the use of force, for it is the executive who is charged with the use of coercion to enforce the laws. Thus, the legislature may “take the ruler’s authority away from him, depose him, or reform his administration” – “But it cannot punish him” (6:317) – for then there would be more than one coercive power within a state, and the result would be chaos, a return to the state of nature rather than a civil condition. (In American terms, Kant grants the legislature the political power of impeaching the executive, but not penal power over the executive, since punishment is the prerogative of the executive.)

This is the formal structure of republican government. Kant also addresses the matter of republican government, that is, the basic civil and political rights that such a government must make determinate and secure:

These civil rights restate the components of the innate right to freedom within the framework of public Right. By means of its tripartite structure, republican government is to make the innate Right to freedom determinate and secure, and since the right to acquire property under rightful conditions is also part of the innate Right to freedom, the role of government is also to make property rights determinate and secure. In John Locke’s famous words, the purpose of government is to secure “Life, Health, Liberty, or Possessions”;Footnote ⁷⁵ in Kant’s theory, it is to secure life and liberty, as the innate Right to freedom, and property as the result of the exercise of the right to acquire things which is itself part of innate Right. Kant’s insistence upon the republican form of government is another manifestation of his moral foundation for the rule of law.

Now comes a further argument for the moral foundation of legal and political rule. As already mentioned, Kant assumes that actual governments have arisen in situations of conflict and violence and that their rulers have typically not come to power through genuinely republican election by uncoerced electors – a fair enough assumption in eighteenth-century Europe, when even electoral kingship had long since given way to hereditary absolutism. He also holds that while rulers, that is, executives, can and should enforce the law by the threat and when necessary the exercise of coercion, they themselves cannot be coerced – otherwise there would be, again, chaos or anarchy, not government. But this means, to bring on stage one of Kant’s most famous images, that while the crooked timber of the subjects of rulers can be made to grow straight by establishment and enforcement of the law, thus without need for the motivation of respect for the moral law itself, there is no one to exercise coercion against the rulers in a state – yet they are made of the same crooked timber as everyone else. As Kant puts it in the Sixth Proposition of his 1784 essay on the “Idea for a Universal History with a Cosmopolitan Aim,” the ordinary

The problem is that anyone in a position of power is just as human as anyone else, therefore just as tempted to make exceptions to morality including justice in his own favor as anyone else is, and while subjects can nevertheless be induced to act within the law (at least for the most part) by the threat of punishment or actual punishment, those at the top of the system, with no one above them, cannot be coerced into rightful behavior, therefore into rightful administration of the whole system. And since justice can be secured only by the legislation and administration of just laws, injustice at the top can pervert the entire system. This problem will arise in an autocracy, of course, but it will also arise even in a formally constituted republic, where the three branches have the appropriate independence from each other, because there must be people at the highest level of each branch, thus members of the legislature and their leaders, the highest officer in the executive branch, the judges of the highest court in a judicial system, who have nobody above them to coerce them into rightful conduct, whether in legislation, adjudication, or enforcement. The problem is only exacerbated by the ascription of the sole power of coercion to the executive; and while a power of impeachment may nominally give superiority to the legislature over both executive and judiciary, it may be difficult to exercise and give the executive the upper hand in practice if not in theory.Footnote ⁷⁶

What is the solution to the problem of crooked timber? Although it offers only an approximation to a solution, Kant says it must be this: “correct concepts of the nature of a possible constitution, great experience practiced through many courses of life, and beyond this a good will that is prepared to accept it,” although “three such items are very difficult to find altogether, and if it happens, it will only be very late,” in the history of any state, or in human history altogether, “after many fruitless attempts” (8:23–4). Kant’s use of the phrase “good will” in 1784 – as with the lectures on natural right, the very period in which he was composing the Groundwork – is a sure indicator that he regards rulers of any kind as having a moral obligation to conform their polities to the requirements of Right and through their use of their power to conform the behavior of those that they rule to the moral demands of Right. While external, aversive incentives can substitute for the internal motivation of respect for the moral law among the subjects, only their own ethical motivation can ensure that rulers will rule in a rightful fashion, and that makes sense only if the rule of Right is itself required by morality itself. In Kant’s terminology, legality will suffice for subjects, but rulers must be moved by morality. Only their own morality can ensure that what is required for legality in their state is defined by morals.

A decade later Kant makes the same point in Toward Perpetual Peace. In this work, written in the form of a mock treaty, Kant outlines preliminary and definitive articles for the establishment of perpetual peace, which in the Doctrine of Right itself he characterizes as “the entire final end of the doctrine of Right within the limits of pure reason; for the condition of peace is alone that condition in which what is mine and what is yours for a multitude of human beings living in proximity to one another is secured under laws” (DR, Conclusion, 6:355). The preliminary articles are rules that must be followed during hostilities to make subsequent peace even possible, while the definitive articles are the rules that must be followed to establish such peace and make it enduring.Footnote ⁷⁷ The former include such things as the abolition of standing armies and national debt for maintaining them, while the three definitive articles are that all states must become republics, republics must be associated in a league of nations, and that states must receive visitors who wish to offer commerce in any form without hostility, although they need not enter into the proffered commerce or allow the visitors to immigrate.Footnote ⁷⁸ Kant’s basic idea is that in genuine republics where the citizens who would bear the costs of war without expecting any particular benefits from it have ultimate sovereignty there will be no will to make war, thus genuine republics would rather will that such conflicts as do inevitably arise, for example over boundaries, resources, or terms of trade, be peacefully arbitrated by an international organization, whose decisions they are committed to accept. These conditions are so obvious, Kant holds, that even a “nation of devils,” that is, rational beings with understanding but driven only by self-love, can figure out the solution to the problem of peace, as if it were a mathematical problem (TPP, First Supplement, 8:366). However, the solution can be implemented only if all states do transform themselves into genuine republics, and for that it requires not devils but “moral politicians,” who “will make it [their] principle that, once defects that could not have been prevented are found within the constitution of a state or in the relation of states, it is a duty, especially for heads of state, to be concerned about how they can be improved as soon as possible and brought into conformity with natural right, which stands before us as a model in the idea of reason.” The key is that even though such rulers are not subject to coercion in the way that their subjects are, they are willing to bear “the cost of sacrifices to their self-seeking” (TPP, Appendix I, 8:372). Unlike the devils with theoretical but no pure practical reason, moral politicians can override self-interest out of sheer respect for the moral law. Again, this makes sense only if it is morality that requires the condition of Right in the first place.

Addressing himself as he is to an autocratic audience, the princes ruling the warring states of Europe (and by 1795, after the Terror, even France was a republic in name more than reality), Kant let them know that they are not expected to transform their principalities into republics overnight nor alone, thus that their subjects have a duty to undergo moral transformation as well:

In the Metaphysics of Morals, as we saw, Kant maintains that the duties of Right can always be fulfilled ethically, that is, out of respect for the moral law itself, but that they never have to be. Here he seems to be suggesting that ultimately the members of a state should be motivated by respect for the moral law, but in any case he is also suggesting that rulers must go first, and that they can only be ethically motivated in so doing. Again, this makes sense only if it is morally incumbent upon them to realize Right.

Kant expresses his view of the moral obligation of politicians in the form of their obligation to transform their nonrepublican states into republics. But, of course, we know that any state regardless of its form can degenerate, and that republics have to be maintained even once they have been established. According to legend, Benjamin Franklin certainly knew that when, asked what sort of government the drafters of the Constitution had established, he replied “A republic, if you can keep it”; and those of us in the United States or elsewhere who are living through the Trump years know it too. Politicians who are in positions of power and who are as clever as they are self-interested can always pervert even the best-designed institutions. The obligation of politicians in power to respect the moral law and the duties of Right that arise from is unremitting even if in a state that is not merely well-designed but also well-run everyone else can be motivated by self-interest to do what morality requires. Politicians should always be moral politicians.

4.3 The Moral Obligation of Subjects

The moral foundation of Right is evident in Kant’s argument about subjects rather than rulers: that they must have the right to inform their rulers of injustices and to petition for reform, but they do not have a right to rebel. Kant’s argument is not merely that they cannot have a legal or constitutional right to rebel, but they do not have a moral right to rebel, for they have a moral obligation to remain in the civil condition once established.

Kant’s argument against a right to rebellion proceeds in several steps. In the 1793 essay on “Theory and Practice,” he starts by arguing that subjects do not have a right to rebel for the sake of what they expect will be their greater happiness, for the purpose of the state is not to secure their happiness in the first place, but to secure the rule of Right. Does the people have the right to resist a piece of legislation, Kant asks, that they view as “in all probability … detrimental to their happiness”? No, because “what is under discussion here,” that is, what is the proper function of the state, “is not the happiness that a subject may expect from the institution or administration of a commonwealth but above all merely the right that is to be secured for each by means of it, which is the supreme principle for which all maxims having to do with a commonwealth must proceed and which is limited by no other principle” (TP, 8:297–8). This already implies that the demand for Right is not a matter of prudence – but for Kant the only alternative is that it is a matter of morality. Kant anchors this argument in a ringing statement of the fundamental principle of his philosophy of Right:

The goal of morality in general is universal freedom in conformity with law, not happiness; the goal of government is securing universal freedom in conformity with law in our external relations with each other; so its failure in no other regard could provide a basis for resistance to it.

But what if what would move a populace to forcible resistance against their government is their judgment of its injustice, not their judgment of its imprudence? Surely people can be roused to rebellion by their sense of justice denied rather than self-interest impaired. Would not the failure of a government at its fundamental task be a good reason, indeed a moral reason, for resisting and if possible overthrowing that government? Kant has further arguments that do not turn on the claim that the happiness of the people is not the goal of government in the first place. One of these is what might be called a constitutional argument: a constitution cannot include a right on the part of the people – or, as is more likely, some self-appointed segment of the people – to resist or overthrow its designated supreme authority, which is or will include an executive with a monopoly on the use of coercion, because then that supreme authority will not be a supreme authority after all, and the constitution will be self-contradictory.

“Indeed, even the constitution cannot contain any article that would make it possible for there to be some authority in a state to resist the supreme commander in case he should violate the law of the constitution,” for in that case the “supreme commander in a state” would not be the supreme commander after all (6:319). It would be self-contradictory for a constitution to allow two supreme authorities, one appointed according to its procedures and the other by the people as such, self-appointed when they think that best, and while it might seem that this contradiction could be avoided by appointing yet another head over both, what is to prevent either the people or the now-supplanted ruler from rebelling against that head? Yet another really supreme authority? And then? The contradiction could be avoided only by an infinite regress – not much of an improvement. So again Kant concludes that “a people cannot offer any resistance to the legislative head of a state which would be consistent with Right” (DR, General Remark A, 6:319), where “the legislative head of a state” could mean either the legislature itself, on his account the true seat of sovereignty, or an executive appointed according to the rules set by the legislature and its agent. But apparently this is to hold even if the legislative and executive powers are combined in the hands of a single autocrat, although they should not be so combined in a proper republic. The only alternative is that the people have the right to petition for reforms, and that rulers have a moral duty to undertake necessary reforms – properly speaking an ethical duty, enforceable only by their own respect for the moral law. “A change in a (defective) constitution, which may certainly be necessary at times, can therefore be carried out only through reform by the sovereign itself, but not by the people, and therefore not by revolution” (6:321–2).

Kant goes even further and insists that

Friedrich Bouterwek called this “the most paradoxical of all the paradoxical Kantian propositions … that the mere Idea of overlordship [Oberherrschaft] should necessitate me to obey anyone who sets himself up as my lord [Herr] without asking who has given him the right to command me.”Footnote ⁸⁰ Bouterwek was the only reviewer of the book to whom Kant responded, in an Appendix added to the second edition of the Rechtslehre, but his response to this question was to argue that a people in “appearance” rather than as “thing in itself” is a people united by an actual constitution, warts and all, rather than by an ideal constitution, so that people must act in accordance with their actual constitution – thus “even though this constitution may be afflicted with great defects and gross faults and to be in need eventually of important improvements, it is still absolutely unpermitted and culpable to resist it,” for again that “would result in a supreme will that destroys itself,” a constitution that includes the contradiction that its designated supreme authority is not supreme after all (DR, Appendix, Conclusion, 6:371–2).

But something more than the threat of a formal violation of the law of noncontradiction in a right to rebellion bothered Kant. This is that rebellion, even if aimed solely at greater justice, could not actually happen without a reversion to the state of nature, that is to say, to anarchy, and thus represents a violation of our moral obligation to become and remain part of a civil condition. This real worry is expressed in a footnote in the essay on “Theory and Practice”:

This is what really moved Kant to reject a purported right to rebellion. No one actually thought that this could be a constitutional right, a right endorsed by a constitution, but defenders going back to John Locke thought that it was a moral right. But Kant thinks that it is morality itself that commands us to exit the state of nature and enter into the civil condition. So morality can never command us to revert to the state of nature.

The obvious objection to this is that some states are civil conditions in name only but in fact are nothing other than a war of some against others dressed up in the trappings of law and legitimacy. Think of the Nazi “state,” which, apart from its aggression on the other states of Europe, carried on war against Jews, Roma, homosexuals, and the mentally disabled, yet dressed itself up with courts and even with a legal theorist, Carl Schmitt, whom some who would be horrified to think of themselves as Nazis persist in taking seriously to this day. Or think of Stalin’s show trials. It can be argued that some so-called states are not states at all, for quite apart from their formal organization they do not materially govern in the spirit of a Kantian republic, thus they have already dissolved any genuine state into an anarchical state of nature, and the opprobrium of doing that cannot be placed on the head of the people who would resist, for example the 1944 plotters against Hitler.Footnote ⁸³ Whatever might be said in behalf of this position, Kant’s response to Bouterwek makes it clear that Kant did not accept it: he recognized that actual states, states “in appearance,” would not be perfectly just, but did not see this as a reason to revise his rejection of a right to rebellion under any circumstances.

Rather, we will conclude this section, and the whole argument of this Element, with Kant’s own conclusion that the people have the morally grounded right to “freedom of the pen” and rulers have the ethical obligation to reform their states in the direction of genuine republics in both form and matter, that is, in their division of powers and their assurance of the basic rights due to their citizens simply in virtue of their humanity. As Kant writes in “Theory and Practice,”

But it is the palladium, that is, the knight champion, of the people’s rights, and the people have a right to it, that is, the constitution of their state must include the freedom of the pen, and thus of the press (the only mass medium that Kant knew). This is the political realization of the right to freedom of speech that is part of the innate right to freedom. Thus freedom of the pen and the press is a moral right of human beings, and it is a moral obligation of rulers to concede it. Conversely, if rulers should be moral politicians, then it is a moral obligation for them to concede this right, and not just that, but also actually to reform the administration of their state – or, if legislators, the legislation of the state – to conform to the ideal of a rightful civil condition – in the terms of Kant’s response to Friedrich Bouterwek, to bring the appearance of their states into better approximation of the state as thing in itself.