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Natural Law and Public Reason in Kant's Political Philosophy

Published online by Cambridge University Press:  01 January 2020

Daniel M. Weinstock
Daniel M. Weinstock*
Affiliation:
Université de Montréal Montréal, PQ Canada H3C 3J7
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Extract

My intention in this essay will be to explore the role that consent-based arguments perform in Kant's political and legal philosophy. I want to uncover the extent to which Kant considered that the legitimacy of the State and of its laws depends upon the outcome of intersubjective deliberation. Commentators have divided over the following question: Is Kant best viewed as a member of the social contract tradition, according to which the legitimacy of the state and of the laws it promulgates derives from the consent of those people over whom it claims authority, or should he be read as having put forward a secularized version of natural law theory, according to which the state and its laws are legitimate to the extent that they are attained by standards of sound reason and supported by an objective account of the human good?

Type
Research Article
Information
Canadian Journal of Philosophy , Volume 26 , Issue 3 , September 1996 , pp. 389 - 411
Copyright
Copyright © The Authors 1996

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Footnotes

1

I would like to thank the Social Science and Humanities Research Council of Canada for post-doctoral funding which made this study possible. A version of this paper was read at a symposium on Leslie Mulholland's Kant's System of Rights held during the 1993 convention of the Canadian Philosophy Association at Carleton University, Ottawa, Ontario. I would like to thank the symposium participants, Leslie Armour, Peter Benson, Jack Iwanicki, Pierre Laberge, and Leslie Mulholland, for their helpful remarks. I would also like to thank Jan Narveson for his extensive (skeptical) written comments. Finally, thanks are due to two anonymous referees for this Journal whose comments immeasurably improved the paper.

References

2 For a good general discussion of the social contract tradition, see Lessnoff, Michael The Social Contract (London: Methuen 1983)Google Scholar. A thorough historical study is provided in Goyard-Fabre, Simone L'interminable querelle du contrat social (Ottawa: Editions de l'Université d'Ottawa 1983)Google Scholar. A fascinating account of the evolution of the natural law tradition can be found in Weinreb, Lloyd L. Natural Law and Justice (Cambridge, MA: Harvard University Press 1987), chs. 1–4Google Scholar. The most systematic contemporary exponent of that tradition is Finnis, John Natural Law and Natural Rights (Oxford: Oxford University Press 1980)Google Scholar.

3 Rawls, John A Theory of Justice (Cambridge, MA: Harvard University Press 1971), 11Google Scholar

4 Mulholland, Leslie Kant's System of Rights (New York: Columbia University Press 1990)Google Scholar. Mulholland's principal interpretive claim is that Kant's entire practical philosophy is shot through by an unresolved tension between what he calls the ‘deed principle’ (according to which an agent cannot relinquish her immunities against other agents’ actions unless she has, in accordance with some publicly accepted rule, signalled her intent to do so) and the ‘law of nature’ principle (which states that, given certain basic facts about the human condition, there are certain things which a human agent cannot consistently will, and thus that reason imposes certain moral principles as binding upon her will, regardless of her actual consent). Mulholland argues that the former principle must give way to the second in Kant's political and legal philosophy: the state's primary raison d'être being to ensure the conditions under which a regime of private property can exist, no such conditions can be put in place by a set of individual acts of consent. The view that Kant is best interpreted as part of the natural law tradition can also be found in Kelsen, Hans General Theory of Law and Society (Cambridge, MA: Harvard University Press 1945)Google Scholar, and more recently in Riley, Patrick Will and Political Legitimacy (Cambridge, MA: Harvard University Press 1982), ch. 5Google Scholar.

5 See, most recently, Rosen, Allen D. Kant's Theory of Justice (Ithaca: Cornell University Press 1993), esp. 23-5Google Scholar.

6 For example, see Pateman, Carole The Problem of Political Obligation: A Critique of Liberal Theory, 2nd ed. (Oxford: Polity Press 1985), 114-15Google Scholar.

7 Wolff, Robert Paul In Defense of Anarchism, 2nd ed. (New York: Harper Torchbooks 1976)Google Scholar

8 Ibid., 12

9 Ibid., 70-1

10 This objection is fleshed out in Riley, Patrick ‘On the Kantian Foundations of Robert Paul Wolff's Anarchism,’ in Pennock, and Chapman, eds., Anarchism (New York: New York University Press 1978)Google Scholar. In a subsequent commentary on Kant's Groundwork, Wolff acknowledged that Kant's conception of autonomy does not support his (Wolff's) political conclusions. See Wolff, Robert Paul The Autonomy of Reason (New York: Harper Torchbooks 1973), 178Google Scholar.

11 See Höffe, Otfried ‘Kant's Principle of Justice as Categorical Imperative of Law,’ in Yovel, Yirmiahu ed., Kant's Practical Philosophy Reconsidered (Dordrecht: Kluwer Publishers 1989)Google Scholar. See also O'Neill, Onora Acting on Principle: An Essay on Kantian Ethics (New York: Columbia University Press 1975), 82Google Scholar. O'Neill argues the stronger claim that Kant's Universal Principle of Justice is extensionally equivalent to the ‘contradiction in conception’ test of the Categorical Imperative.

12 These arguments are very well isolated in Weinrib, Ernest J. ‘Law as a Kantian Idea of Reason,’ Columbia Law Review 87 (1987) 472–508CrossRefGoogle Scholar.

13 See Wolff, Robert Paul The Poverty of Liberalism (Boston: Harper Torchbooks 1969)Google Scholar; see also In Defense of Anarchism, 78-82.

14 See Barnard, F.M. Self-Direction and Autonomy: Rousseau and Herder (Oxford: Oxford University Press 1989), 241-2Google Scholar.

15 See for example the suggestion made at the end of Levine, Andrew The Politics of Autonomy: A Kantian Reading of Rousseau's Social Contract (Amherst: University of Massachussets Press 1976), 199–200Google Scholar.

16 See Linden, Harry von der Kantian Ethics and Socialism (Indianapolis: Hackett Publishing 1988), 203-5Google Scholar.

17 In Jeremy Waldron's terms, Kant offers a ‘general justification of private property; one that sees property rights as emerging in the first instance not from ‘particular relations’ between individuals, but from the importance and centrality of the human interest served by them. Waldron sees Hegel as the paradigmatic character in the tradition of thinking about property as a ‘general’ rather than as a ‘special’ right. I would argue that Kant's theory of property also fits this description, and probably provided Hegel with the materials for his. See Waldron, Jeremy The Right to Private Property (Oxford: Oxford University Press 1988)Google Scholar.

18 For an illuminating discussion of this argument, see Rosen, 118-28.

19 Although Kant's doctrine of ‘independence’ envisages that some people might be property-less, a state of affairs which would be quite problematic on Kant's own first principles.

20 Finnis, Natural Law and Natural Rights, 23Google Scholar

21 This argument foreshadows Dworkin's, Ronald anti-welfarist arguments in ‘What is Equality? Part 1: Equality of Welfare,’ in Philosophy and Public Affairs 10 (1981) 185–246Google Scholar.

22 This anticipates Rawls's, John recent concerns about justice as fairness being construed as neutral in a society marked by the ‘fact of pluralism.’ See ‘The Idea of an Overlapping Consensus,’ in Oxford Journal of Legal Studies 7 (1987) 1–25CrossRefGoogle Scholar.

23 I owe this point to conversation with, as well as to papers written by, O'Neill, Onora. See in particular her ‘Constructivisms in Ethics,’ in Constructions of Reason: Explorations in Kant's Practical Philosophy (Cambridge: Cambridge University Press 1990), 206-18CrossRefGoogle Scholar; and ‘Ethical Reasoning and Ideological Pluralism,’ Ethics 98 (1988) 705-72.

24 The principle also bears importantly on the issues of economic equality and distributive justice. Remember that the entire argument for the rational necessity of the state gets going as a result of an examination of what is involved in each individual's right to freedom. Kant argued that the protection of this right was unthinkable without the ability to marshal external resources, and that one's claim to external resources was at least in large measure warranted by one's innate right to freedom, rather than by particular, right-producing agreements between individuals. Although I cannot argue for this claim fully here, let me merely suggest that basing the claim to external resources in general as opposed to special rights implies that legislators must refrain from implementing laws or permitting states of affairs which have as their effect the immiseration of segments of a citizenry, its inability to avail itself of its general right to property. More speculatively, I would also suggest that the general right of all to property must place strict limits on the extent to which particular individuals can legitimately benefit materially from special rights.

25 There are considerable similarities here with Minow's, Martha critique of various strands of the American legal system in her Making all the Difference: Inclusion, Exclusion and American Law (Ithaca: Cornell University Press 1990)Google Scholar. She argues that the terms in which legal disputes between members of the majority and members of various minorities in American law reflect under the appearances of neutrality the evaluative standpoint of the members of the majority.

26 O'Neill, Onora ‘Constructivisms in Ethics,’ 217Google Scholar

27 A Theory of Justice, 92

28 For example, Nagel, Thomas ‘Rawls on Justice,’ in Daniels, Norman ed., Reading Rawls (Oxford: Basil Blackwell 1975)Google Scholar.

29 Rawls himself has in his most recent book acknowledged that given what he calls the ‘fact of pluralism,’ the type of hypothetical contractualism which he had previously endorsed requires the support of ‘free public reason.’ See Rawls, John Political Liberalism (New York: Columbia University Press 1993)Google Scholar, Lecture 6. The idea has been fleshed out very helpfully along Rawlsian lines by Solum, Lawrence B. ‘Constructing an Ideal of Public Reason,’ in San Diego Law Review 30, 4 729-53Google Scholar. Another liberal who has concluded that social pluralism requires actual fora of public deliberation for the legitimacy of legislation is Donald, J. Moon in Constructing Community: Moral Pluralism and Tragic Conflicts (Princeton: Princeton University Press 1993)Google Scholar.

30 Wellmer, Albrecht has recently criticized Kantian ethics on precisely this point. See ‘Ethics and Dialogue: Elements of Moral Judgement in Kant and Discourse Ethics,’ in The Persistence of Modernity: Essays on Aesthetics, Ethics and Postmodernism, Midgley, David trans. (Oxford: Basil Blackwell 1991), 136Google Scholar. Similar concerns are expressed by Herman, Barbara in ‘The Practice of Moral Judgment,’ in The Practice of Moral Judgment (Cambridge, MA: Harvard University Press 1993)Google Scholar. Unlike Wellmer, Herman finds resources within Kant's philosophy to address the problem of relevant descriptions, through her articulation of the notion of ‘rules of moral salience.’

31 For interesting recent discussions of the epistemic virtues and vices of democracy, see Hurley, Susan L. Natural Reasons (Oxford: Oxford University Press 1989), ch. 15Google Scholar; David Estlund, ‘Making Truth Safe for Democracy,’ and Copp, David ‘Could Political Truth be a Hazard for Democracy?’ in Copp, David Hampton, Jean and Roemer, John E. eds., The Idea of Democracy (Cambridge: Cambridge University Press 1993)Google Scholar.