1. Other important scholarly work dedicated to Kant’s political and legal philosophy includes: Weinrib, Ernest J, “Law as a Kantian Idea of Reason” (1987) 87 Colum LR 472 CrossRefGoogle Scholar; Kersting, Wolfgang, “Politics Freedom and Order: Kant’s Political Philosophy” in Guyer, Paul, ed, Cambridge Companion to Kant (Cambridge; New York: Cambridge University Press, 1992) at 342 CrossRefGoogle Scholar; Williams, Howard L, ed, Essays on Kant’s Political Philosophy (Chicago, IL: University of Chicago Press, 1992)Google Scholar; Reiss, Hans, ed, Kant: Political Writings (Cambridge; New York: Cambridge University Press, 1991)Google Scholar; Rosen, Allen D, Kant’s Theory of Justice (Ithaca, NY: Cornell University Press, 1993)Google Scholar; Kaufman, Alexander, Welfare in the Kantian State (Oxford; New York: Oxford University Press, 1999)CrossRefGoogle Scholar.

2. See, for instance, Brown, Stuart M Jr, “Has Kant a Philosophy of Law?” (1962) 71 (1) Phil Rev 33 CrossRefGoogle Scholar cited in Ripstein, Arthur, Force and Freedom (Cambridge, MA: Harvard University Press, 2009) at 2 CrossRefGoogle Scholar (claiming that Kant has no philosophy of law because “his opinions neither are nor can be justified and elucidated by using the principles to which his moral philosophy commits him”).

3. See also Otteson, James R, “Kantian Individualism and Political Libertarianism” (2009) 13 (3) The Independent Review 389 at 389Google Scholar.

4. Ripstein, Arthur, “Kant on Law and Justice” in Hill, Thomas E, ed, The Blackwell Guide to Kant’s Ethics (Chichester, West Sussex, UK; Malden, MA: Wiley-Blackwell, 2009) at 177.Google Scholar

5. Ibid.

6. Ibid.

7. See: Penner, James, “The State Duty to Support the Poor in Kant’s Doctrine of Right” (2010) 12 (1) BJPIR 88 at 93Google Scholar. (“The point and justification of innate right is the protection of our mastery over ourselves, our capacity for freedom, in so far as that can be undermined by the actions of others.”)

8. Ripstein, supra note 4 at 163. See also Ernest J Weinrib, “Law as Idea of Reason” in Williams, supra note 1 at 41. (“The actor of Kantian legal theory is … an inherently social being, far removed from the atomism that some have ascribed to liberal thought. This sociability is not a matter of natural affection or of the wishing of another’s good; it is based, rather, on the conceptual requirements of the free will. The will is social without being communal: it takes its bearings from the public world without losing in a larger collective will its individualized capacity for detachment.”)

9. Penner, supra note 7 at 91-92.

10. See also Taylor, Charles, “Political Philosophy” in Philosophy and the Human Sciences (Cambridge; New York: Cambridge University Press, 1985) at 185, 187–210 CrossRefGoogle Scholar cited in Weinrib, “Law as Idea of Reason” in Williams, supra note 1 at 41 n 80.

11. Ripstein illustrates the distinction between autonomy and independence using the example of a slave with a kind master. While a slave operating under such favorable circumstances could be considered autonomous, she can never be independent.

12. Ripstein, supra note 4.

13. See also Weinrib, Ernest J, “Poverty and Property in Kant’s System of Rights” (2003) 78 (3) Notre Dame LR 795 at 797Google Scholar.

14. See also Weinrib, “Law as a Kantian Idea of Reason” supra note 1 at 488 (describing the transition “from the provisional enjoyment of rights in a state of nature to the juridicial condition of civil society”). As claimed by Weinrib, each of the three phases features an increase in the number of individuals involved. The first phase requires the (sole) existence of the addressee. The second phase depicts another individual with whom the first can transact. The third phase illustrates a world populated not only by the direct parties to the interaction, but also a public authoritative entity. See ibid at 500-01.

15. Penner, supra note 7 at 89.

16. See Otteson, supra note 3 at 395.

17. Kant, Immanuel, The Metaphysics of Morals, ed by Gregor, Mary J (Cambridge; New York: Cambridge University Press, 1996) 100.CrossRefGoogle Scholar

18. Kant, Immanuel, “On the Common Saying: ‘This May be True in Theory, but It Does Not Apply in Practice,” in Kant, Immanuel, Kant’s Political Writings ed by Reiss, Hans (Cambridge: Cambridge University Press, 1970) at 75 Google Scholar cited in Morison, Samuel Taylor, “A Hayekian Theory of Social Justice” (2005) 1 NYU JL & Liberty 225 at 239Google Scholar.

19. Ibid at 225.

20. See also Weinrib, “Poverty and Property in Kant’s System of Rights”, supra note 13 at 797.

21. In the words of Kant: “The general will of the people has united itself into a society which is to maintain itself perpetually; and for this end it has submitted itself to the internal authority of the state in order to maintain those members of the society who are unable to maintain themselves. For reasons of state the government is therefore authorized to constrain the wealthy to provide the means of sustenance to those who are unable to provide for even their most necessary natural needs. The wealthy have acquired an obligation to the commonwealth, since they owe their existence to an act of submitting to its protection and care, which they need in order to live; on this obligation the state now bases its right to contribute what is theirs to maintaining their fellow citizens.” See Kant, supra note 17 at 101.

22. According to Ripstein, in the absence of an adequate social minimum (however defined), those at the bottom of the economic ladder would not willingly accept the right to exclude. The only way in which the right to exclude can be made the object of the general will, claims Ripstein, is to guarantee public support for those unable to support themselves (278). Ripstein concludes that the Kantian state has a duty to amend the effects of poverty, because this constitutes a condition for the legitimacy of property rights and of state institutions that facilitate the private allocation of property. See also Morison, supra note 19 at 238.

23. Kaufman, supra note 1 at 32.

24. Even if poverty were considered an instance of coercion, this does not necessarily justify redistribution. As Otteson argues, while some social conditions might be inherently coercive, and while transfer of wealth to poor individuals might expand their effective freedom, the State cannot engage in redistribution. Redistribution entails using some individuals (the more affluent) merely as means to the other individuals’ (the poor) ends. See Otteson, supra note 3 at 400. I will not delve more deeply into this debate because my arguments are confined to Ripstein’s lines of argument and the case Ripstein makes cannot support the assumption that poverty is an instance of coercion, as elaborated in the text above.

25. The impersonal nature of markets is at the core of the debate between market defenders and market critics. Those who object to markets raise a host of concerns emanating from its impersonal nature, including the claim that because markets are impersonal they facilitate inappropriate scales and standards of valuation, obscure moral obligations and diffuse social relations. See Yeungert, Andrew M, “Free Markets and Character” (1996) 1 CCSR 99 at 100Google Scholar. Market proponents point to the positive, liberating effects associated with the impersonalism of the market environment, and with the ability of market players to discard their personal identity.

26. Weber, Max, Economy and Society (Berkeley: University of California Press, 1978) at 636.Google Scholar

27. Ibid.

28. Under systemic market theory the market process is conceptualized as a metaphysical expression of some higher will or rationality. See Thielemann, Ulrich, “A Brief Theory of the Market: Ethically Focused” (2000) 27 (1) Int’l J Social Econ 6 at 18CrossRefGoogle Scholar.

29. Ludwig Von Mises made a similar claim in this regard, asserting that: “[M]arket phenomena … appear to the individual as something given which he himself cannot alter”. See Mises, Ludwig Von, Human Action: A Treatise on Economics (New Haven, CT: Yale University Press, 1963) at 315 Google Scholar cited in Storr, Virgil Henry, “The Social Construction of the Market” (2010) 47 Society 200 at 203CrossRefGoogle Scholar.

30. For further discussion of Hayek’s conceptualization of the market, see Zafirovski, Milan, Market and Society: Two Theoretical Frameworks (Westport, CT; London: Praeger, 2003) at 84 Google Scholar (describing Hayek’s depiction of the market as an ‘anonymous group’).

31. Von Mises, supra note 29 at 311.

32. Weber, supra note 26 at 1186.

33. The systemic dimension of the market’s force has been described by Weber as a form of ‘‘masterless slavery”. See ibid. According to Hayek, there is thus no answer to the question of who has been unjust. See Hayek, Friedrich, Law, Legislation, and Liberty (Chicago, IL: University of Chicago Press, 1976) at 69 Google Scholar. There are those who reject Hayek’s effort to equate the impersonalism of the market with that of natural processes. These critics of Hayek claim that individuals can be deemed responsible for the distributional outcomes of market activities and can be held accountable for the support they offer to market institutions. See MacLeod, AM “Justice and the Market” (1983) 13 (4) Can J Phil 551 CrossRefGoogle Scholar. See Mack, Eric, “Hayek on Justice and the Market: A Reply to MacLeod” (1983) 13 (4) Can J Phil 569 at 573CrossRefGoogle Scholar.

34. Other arguments against the duty to support the poor in Kant’s Doctrine of Right were formulated by James Penner. One argument that Penner raises relates to the fact that there is no empirical connection between abolition of poverty and preservation of civil society. Penner points to the historical and empirical coincidence of fully functioning states with extreme forms of poverty. See Penner, supra note 7 at 89. Moreover, according to Penner, prior to the establishment of the state and the formation of public juridicial institutions “there is no ‘people’; there are merely individuals, Therefore, he claims, they can have no collective duties. Ibid.

35. Penner, supra note 7 at 97.

36. Immanuel Kant, “Theory and Practice” (8:297) cited in Kersting, supra note 1 at 355. As Kersting claims, this prerequisite in the political context is analogous to the categorical imperative in the moral context. The test of universizability serves as a standard for evaluating positive law just as the categorical imperative serves as a moral principle for judging maxims. Kant gives the example of law giving master status to a hereditary caste. See Penner, supra note 7 at 89.

37. Ibid at 90.

38. Rawls, John, Political Liberalism (New York: Columbia University Press, 1993) at 55.Google Scholar

39. Ibid.

40. Zupancic, Alenka, Ethics of the Real: Kant, Lacan (London; New York: Verso, 2000) at 93.Google Scholar

41. See Kaufman, supra note 1 at 151. For this interpretation of the test of universalizability and the application of the formula of universal law see Korsgaard, Christine M, “Kant’s Formula of Universal Law” (1985) 66 Pacific Phil Quart 24 Google Scholar.

42. Otteson, supra note 3 at 390 (claiming that for a law to be valid it “admit of no exceptions”).

43. When discussing the test of universalizability Kant refers to the maxim of support for the poor in the reverse manner. According to Kant, the principle of not-aiding the poor could not be willed to hold universally. As stated by Kant: “… it is nevertheless impossible to will that such a principle should hold everywhere as a universal law of nature. For a will that resolved this would conflict with itself … instances can often arise in which he would need the love and sympathy of others, and in which he would have robbed himself, by such a law of nature springing from his own will of all hope of the aid he desires.” Kant, supra note 17 at 32.

44. Penner makes a more extensive claim in this regard. According to him, the abovementioned reading of Kant “never justifies any particular positive laws like a law taxing the wealthy to support the poor but rather only rules out laws that no people could possibly have consented to”; Penner, supra note 7 at 90.

45. Ripstein’s justification of the duty to support the poor, based upon the conceptualization of this obligation as a prerequisite to the rightful condition, is contested in the literature from another perspective. As claimed by Penner, the presumption of inherent dependency of the property-less, following the complete appropriation of property rights does not justify transfer of wealth. This, claims Penner, “is not the right resolution under Kant’s characterization of the state in the Doctrine of Right”. (Ibid at 88.) If property rights are assumed to create inevitable dependency upon others “then property rights are not rightful and no state could legitimately enforce them”. (Ibid.) Imposing a duty to support the poor upon the state cannot remedy an otherwise un-legislatable rule. (Ibid at 102.)

46. This note challenges the welfare state in light of the premises underlying Ripstein’s interpretation of Kant’s political and legal philosophy. Others use different considerations to make the general claim that Kant’s individualism supports political libertarianism. Thus, Otteson claims that poor relief and charitable activities violate Kant’s law of equal freedom in two fundamental ways—the first involving individuals to whom the help is provided, while the second relating to those whom the State calls upon to offer support. With respect to those offered support Otteson’s claim is, that Kantian freedom includes the freedom to make poor decisions and to learn from them. State support deprives the supported individuals of the opportunity for such moral progress, that the law of equal freedom is intended to protect. As to those forced to offer support, Otteson claims, that the State is substituting its judgment, regarding support of the poor, for these individuals’ judgments. It grants to some a freedom that is denied of others, which is another violation of the law of equal freedom. See Otteson, supra note 3 at 399. Attempts have been made to reconcile the inner tension between these conflicting strands of Kantian thought. According to Otteson, some suggest that Kant held divergent views at different stages of his life. See Rosen, supra note 1 at 197. Others draw a distinction, in this regard, between pure considerations in the utopia of perfect freedom and the need for political states in the imperfect empirical world. See Williams, supra note 1 at 192.

47. Libertarian readings of Kant’s political and legal philosophy include: Humboldt, Wilhelm von, Limits of State Action [1854], ed by Burrow, JW (Cambridge: Cambridge University Press, 1969)Google Scholar; Hayek, Friedrich, The Constitution of Liberty (Chicago, IL: University of Chicago Press, 1960)Google Scholar. Wolfgang Kersting, “Kant’s Concept of the State” in Williams, supra note 1 at 143. For anti-ethical readings of Kant that reject the libertarian interpretation, see Rosen, supra note 1; Kaufman, supra note 1; Varden, Helga, “Kant and Dependency Relations: Kant on the State’s Right to Redistribute Resources to Protect the Rights of Dependents” (2006) 45 (2) Dialogue 257Google Scholar.

48. See Penner, supra note 7 at 103.

49. Ibid at 95.

50. Ibid.

51. See also Nozick, Robert, The Examined Life: Philosophical Meditations (New York: Simon and Schuster, 1989) at 286.Google Scholar

52. Network structures can be contrasted with both the market and hierarchical governance models, and can be said to form an intermediate point on the continuum stretching between free market ordering and state monopoly. See Powell, Walter W, “Neither Market nor Hierarchy: Network Forms of Organization” (1990) 12 Research in Organizational Behavior 295 at 296Google Scholar (claiming that the “market-hierarchy continuum does not do justice to the notion of network forms of organization”).

53. For further discussion of network industries and their unique characteristics, see Stanley J Liebowitz & Margolis, Stephen E, “Network Effects and Externalities” in New Palgrave Dictionary of Economics and the Law, vol 2 (London: Macmillan Reference; New York, NY: Stockton Press, 1998) at 671 Google Scholar; Kolasky, William J, “Network Effects: A Contrarian View” (1999) 7 Geo Mason LR 577 Google Scholar; Katz, Michael L & Shapiro, Carl, “Systems Competition and Network Effects” (1994) 8 (2) J Econ Persp 93 CrossRefGoogle Scholar; Katz, Michael L & Shapiro, Carl, “Systems Competition and Network Effects” (1994) 8 J Econ Persp 93 CrossRefGoogle Scholar; Katz, Michael L & Shapiro, Carl, “Network Externalities, Competition and Compatibility” (1985) 75 (3) Am Econ Rev 424 Google Scholar.

54. The fact that law is a network industry gives rise to two possible failures in its market supply: The one is under-standardization in the market for law. In a private law market every consumer of legal goods may fail to internalize the benefit all other consumers derive from her membership in the network, the result of which would be “too many legal networks” operating within a single geopolitical unit. The second potential market failure can be conceived of as over-standardization—namely, the problem of legal lock-ins: Providers and consumers of legal services would have incentive to join the largest legal network in order to reap the benefits of large scale, even if that network locks-in on a sub-optimal legal standard. Leaving a large legal network and switching to alternative legal standards would entail a high switching cost, and so rational maximizers of their utilities may be induced to remain with the large-scale suboptimal network. All else being equal, the latter network will thus grow at the expense of competing networks (since it has the most valuable network externalities and, hence, involves the highest switching costs). These failures do not necessarily justify state law, for state law and state supply of the adjudicative function are associated with parallel political failures, as exemplified in the public choice literature. These questions, however, as to which system for the provision of law is more efficient remain outside the parameters of the debate over Kant’s political theory.

55. See Katz & Shapiro, ibid at 434.

56. See Evans, David S & Schmalensee, Richard, “A Guide to the Antitrust Economics of Networks” (1996) 10 (2) Antitrust 36 Google Scholar.

57. Berman, Harold J, Law and Revolution: The Formation of Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983).Google Scholar

58. Weinrib attributes a similar systematizing role to reason. See J Weinrib, “Law as Idea of Reason” in Williams, supra note 1 at 19. (“The idea of reason runs through the whole length of law as a single fibre that connects each part with every other part, not as an overlapping of fibre twisted on fibre.”)

59. Ripstein raised these points in an e-mail exchange we conducted following the publication of his book.

60. In some sense, such a polycentric legal regime can be depicted as a perfect analogy of the global order, in which each individual is subjected to the legal regime of a particular country, but is free to leave to other countries willing to accept her.