Representation and Democracy in the Metaphysics of Morals: Kant’s Late Answer to the ‘Problem’ of Sovereignty

Abstract

A rightful condition, according to Kant, requires both a law to limit the freedom of each and a ruler to enforce that limit, a ruler who cannot himself be subject to the law’s enforcement without ceasing to perform his primary function. Kant placed his hopes, circa 1784, in a future ruler who combined worldly experience, a ‘correct conception’ of a possible constitution, and, above all, the good will to accept it. Subsequent historical events, along with the ‘completion’ in 1790 of Kant’s own critical system, suggested a new basis for confidence in civil progress no longer ultimately dependent on the ‘good will’ of rulers, while also making new demands on citizens themselves. I share the view of many others that Kant came to prefer the people’s actual consent to the laws over the merely hypothetical consent that he endorsed in the works of the mid-1780s. My reading of the Metaphysics of Morals Part One differs in treating the work not only as a theoretical treatise but also, and necessarily, a practical intervention in historical time. The resulting reading yields an internally coherent argument favouring representative democracy of a peculiar kind – one whose ‘organic’ character has not been fully appreciated.

1. Introduction ¹

The problem of sovereignty is easy to grasp but hard to solve. A rightful condition, according to Kant, requires both a law to limit the freedom of each and a ruler to enforce that limit – a ruler who cannot himself be subject to the law’s enforcement without ceasing to perform his primary function. As Kant puts it in a famous passage from the 1784 essay ‘Idea for a Universal History’:

The human being is an animal which, if it lives among others of its kind, requires a master. For he certainly abuses his freedom with respect to others of his kind, and although as a reasonable creature he wishes to have a law which limits the freedom of all, his selfish animal impulses tempt him, where allowed, to exempt himself from them. He thus needs a master, who will break his own will and require him to obey a will that is universally valid, under which each can be free. But whence does he get this master? Nowhere else but from the human race. But then the master is himself an animal, and needs a master…. That it is the last problem to be solved follows also from this: that it demands that there be correct concepts of the nature of a possible constitution, great experience gained in many courses of life, and – far beyond these – a good will ready to accept such a constitution. Three such things are very hard, and if they are ever to be found together, it will be very late and after many vain attempts (8: 23). ²

The problem, moreover, is not merely historical but also conceptual. In Kant’s roughly contemporaneous words: ³

Here is the whole difficulty: as in the metaphysics of absolute necessario, how a highest will that would determine what is right is possible, and yet itself be an irresistible rightful authority [Gewalt], although it is not restricted through anything external or through the right of others, for in that case a still higher authority would be required. (Refl, 19: 563; §7953)

Kant placed his hopes, circa 1784, in a future ruler, who combined worldly experience, a ‘correct conception’ of a possible constitution, and, above all, the good will to accept it – in short: a combination of philosopher, king, and saint to be found, if ever, ‘very late and after many vain attempts’ (IUH, 8: 23–24). In the meantime, rulers, who out of their own ‘enlightened’ self-interest pass laws to which a people at least ‘might’ consent, must need to suffice.

Subsequent historical events, along with the ‘completion’ in 1790 of Kant’s own critical system, altered the picture, suggesting a new basis for confidence in civil progress no longer ultimately dependent, as in his earlier work, on the ‘good will’ of rulers, while also making new demands on citizens themselves. ⁴ Kant presented the outlines of that new approach in two late works: The Conflict of the Faculties, about which I have written elsewhere (Shell 2021), and the Metaphysics of Morals, the subject of the present essay.

I share the view of many others (but not all) ⁵ that Kant came to prefer the people’s actual consent to the laws over the merely hypothetical or possible consent that he endorsed in the works of the mid-1780s. I take Kant’s late position vis-à-vis the powers, limits, and location of sovereignty to be roughly the following:

1. 1. The ‘form’ or ‘essence’ of the state, that is, what Kant calls the state in the idea, involves a synthetic combination of the united will of the people – namely, determinate and assured execution of the law of equal freedom – with the people’s will qua individual subjects.

2. 2. The existence of the state depends on the (at least rough) coincidence between what the people ought to will (law + force + freedom) with what they actually will.

3. 3. A central task of enlightened citizens and rulers is to bring about over time the closest possible approximation of existing states to the state’s ideal form.

My reading of the Metaphysics of Morals Part One differs from many others mainly in treating the work not only as a theoretical treatise but also, and necessarily, a practical intervention in historical time – that is, an exercise in what Kant elsewhere calls ‘the true politics’ (TPP, 8: 380). The resulting reading yields an internally coherent argument favouring representative democracy of a peculiar kind – one whose ‘organic’ character has gone generally unappreciated in the literature.

I defend my approach in two ways: briefly and provisionally, from indications taken from Kant’s Preface; and more definitively and at greater length, from the overall coherence of the argument that emerges, an argument that can otherwise seem elusive or confused, and has so struck many readers. ⁶

The indications in the Preface in which I find provisional support for my reading are two-fold. First, a clear statement on Kant’s part that the concept of right is an a priori concept of a peculiar kind: namely a ‘pure concept that is yet arranged for practice [auf die Praxis…gestellter]’. It follows that:

a metaphysical system of right would also have to take account, in its divisions, of the empirical variety of such cases, in order to make its division complete (as is an unavoidable requirement in constructing a system of reason). But what is empirical cannot be divided completely, and if this is attempted (at least by way of approximation), empirical concepts cannot be brought into the system as integral parts of it but only as examples in the remarks. (6: 205)

In short: an a priori doctrine of rights must make room for the requirements of practice, including the changing empirical circumstances to which the pure concept of right is to be applied. Accordingly, Kant will put ‘that which belongs to the system a priori that is here sketched’ into the main text, leaving rights that are ‘taken from particular experience’ to ‘remarks’ which, as he notes, ‘will sometimes be extensive’.

A second indication comes at the end, with an apology and/or warning: the final sections (on ‘public right’) will be uncharacteristically sketchy, Kant announces, not only because the details can be ‘easily inferred’ from earlier sections but also because the issues in question are ‘currently subject to so much discussion’, and ‘still so important’, that ‘they can well justify putting off a decisive judgement for some time’ (6: 209).

In sum: the presentation of the a priori doctrine cannot be entirely removed from the exigencies of actual publication as itself a civic act. Such exigencies include who or what rightly commands the supreme public authority, and hence what is or isn’t lawful or prudent, at this (as well as any other) point in time.

A final preliminary note: unlike many readers, ⁷ I distinguish, on both contextual and substantive grounds, between Kant’s treatment of representation and democracy in the Metaphysics of Morals and their treatment two years earlier in Perpetual Peace. Briefly put: Kant is able in the later work to elaborate more fully on the ‘organic’ features that make democracy understood as an ‘empirical form’ the constitution best suited to embodying the ‘spirit’ of the ‘original constitution’ – that is to say, ‘the sovereign’ (head of state) as ‘pure idea’.

2. ‘Sovereignty’ in the metaphysics of morals

Kant’s late approach to the problem of sovereignty, I will argue, is both supple and subtle, culminating in an endorsement of representative democracy (or what he newly calls ‘a representative system of the people’) along roughly French lines without calling into question the legitimacy of the current constitution (of Prussia) or otherwise endangering the state’s ongoing existence.

2.1 Lexical complications

An initial complication confronting the reader of the Metaphysics of Morals arises from Kant’s varied use of the term ‘sovereign’ (and related terms) across several sections of his treatment of domestic public right. These alternate uses refer (1) to the legislative authority [Gewalt] exclusively (§43–49); (2) to the effectual head of the state or ‘supreme public authority’ (§A–§E); (3) (§50–53) to the sovereign as a ‘pure idea’ consisting in all three authorities – legislative, executive, and judicial – as coequal, coordinate, and mutually subordinating powers; and (4) to the physical person or persons who represent that idea. In short: Kant uses the term ‘sovereign’ and its cognates in at least four ways – to name: the legislative authority alone, the coercively effectual head of state, the pure idea of the sovereign as consisting of all three state powers, and the living figure who ‘represents’ that idea.

These divergent usages are sometimes dismissed as products of editorial carelessness, or – with some textual support – as a matter of political discretion at particularly tense and fluid political moments. ⁸ There is no doubt something to the latter view, as the ending to the Preface itself, as we have seen, invites us to surmise. (6: 209)

And yet, I would urge, Kant’s shifting usage is not merely or even mainly self-protective; it also provides him with a means, in keeping with his own duties as a citizen of both Prussia and the world at large, to deepen the reader’s understanding of the problem of sovereignty and how recent events in France might bear on its solution. If the ‘despotic state’ (force and law without civic freedom) provides the minimum condition necessary for a juridical order, and ‘the republican state’ (force with law and freedom) provides those necessary for a ‘true civil constitution’ (Anth, 7: 330–31), ⁹ then France as newly constituted – first in 1790, and subsequently in 1795 – shows both that and how the sovereign as pure idea can have real ‘effect upon the people’s will’.

3. The state ‘in the idea’ (§43–49)

What Kant calls the ‘state in the idea’, or as it ‘ought to be from pure concepts of right’, abstracts from everything that gives particular commonwealths their individual character while also serving as a norm for all. The state, so understood, is analogous to an individual rational will acting in accordance with a practical syllogism (6: 313): namely, major premise (e.g. act only on those maxims that one could also will as universal laws), minor premise (e.g. never break your promise), and conclusion (e.g. meet Joe, as promised, despite the bad weather). ¹⁰

In keeping with the analogy between the actions of a state and those of an individual practically rational will [Willkür], these public powers are (1) mutually complementary, (2) mutually subordinating (each resisting functional encroachment by the others), and collectively commanding (6: 316). ¹¹ Moreover, as with an individual rational will, they exert collective authority over the passive parts they dominate, be it sensuous impulse in the individual case, or citizens in their capacity as subjects, in the communal one. ¹² In sum, the legislative, executive, and judicial powers are, respectively, irreproachable, irresistible, and unappealable (in judging). What the united lawgiving will lays down as law cannot be unjust, on grounds that Volenti non fit injuria; what the ruler enforces cannot be coercively opposed without negating the juridical condition; and what the court (both judge and jury) condemns cannot be appealed, since a jury of the people has itself rendered the verdict.

Kant issues two important provisos that qualify the formal equality of the three powers. First, in actual states, the executive authority has temporal priority over the other two, since without a commanding power to make laws effective, there is no formal separation between the people’s united will and individuals in their capacity as subjects, and the ‘form’ of a state, as a relation of subordination between the people’s united will and their wills qua subjects, is lost. Second, although the executive authority may not be coercively resisted, it can be non-coercively criticized, either by the lawgiving power itself or by individual members of the public. We are here put on notice with regard to the task that Kant will proceed to address: namely, how to actualize the state that is in accordance with ‘pure concepts of right’ in historical times, in which executive authority not only ‘naturally’ comes first (such being ‘the nature of uncivilized beings’ [6: 339–40]) but also cannot be coercively challenged, either by the lawgiving power (or ‘sovereign’ in its first meaning) or by private individuals in their capacity as subjects.

4. General remark: ‘juridical effects’ flowing from ‘the nature of the civil union’

Having stated the essential features of the state in the idea, Kant pauses to examine the juridical effects that follow from the ‘nature of the civil union’. By setting these lettered sections under the heading ‘General Remark’ Kant makes clear their temporally qualified character – as indicated in the Preface.

By ‘juridical effects’, I take Kant specifically to mean ‘effects in time and space’, for example, the temporal priority of the executive over the legislative power, the ‘idea’ of which legitimates the former but does not naturally precede it. The main implication of that temporal priority is the effectual subsumption by the executive power, in its capacity as the current head of state, of the other two authorities. For however much the executive power may juridically fall short, without actual executive enforcement of the actions of the legislator and the courts, the state exists only ‘in the idea’.

One subsidiary juridical effect is the impermissibility of inquiring into the origin of the executive’s appropriation of the legislative and judicial powers with a view to undermining the coercive authority of the current ruler, whom Kant alternatively refers to as the ‘organ’ of the sovereign, the ‘head of state’, the ‘supreme commander’, and the ‘supreme authority’ (6: 319–20). Here the apparent exception of parliamentary monarchy, in which the executive and legislative powers are nominally split, serves to prove the rule, given the (English) king’s effectual domination, and corruption, of the latter through his appointment of offices, etc. The apparent counter-example of France poses Kant with a more formidable argumentative challenge, given the National Assembly’s recent execution of the (former) head of state, without evident subsequent destruction of the state and reversion to a state of nature. And it evokes a complex response on Kant’s part, further detailed in a lengthy footnote.

First, as Kant elaborates: if the execution of the (former) sovereign had indeed been seriously intended as such, it would have constituted an act of ‘civic suicide’ that exceeds the boundaries of human evil. Hence, and second: the perpetrators must instead be presumed to have acted out of fear, albeit under the mistaken impression that they would be safest by cloaking their killing of the king under the mask of a formal legal execution. In this, however, they were ‘very wrong’ both juridically and prudentially – that is, both in their misunderstanding of the basic principles of right and in their belief that they could thereby save themselves. For (as Kant’s contemporary readers would surely know) the perpetrators were themselves convicted and condemned soon thereafter. Hence: the contemporary examples of England and France do not vindicate the legitimacy of coercive resistance to a sitting head of state, either via the false appearance of coercive opposition on the part of Parliament to the actions of the king or the seeming formal execution by the National Assembly of a (former) sovereign. All they show is that appearances can be deceptive.

To summarize: Every actual state exhibits what Kant calls ‘the form of the state as such’. That form involves both the unity of the general will’s three stages of determination (legislative, executive, and judicial), a unity towards which ‘reason obliges us to strive’ (6: 318), and submission of the people’s will as individuals to the highest state authority as the union of all three. To be sure, every actual state instantiates that unified authority in an imperfect way, with executive authority (or the power to lawfully coerce) temporally proceeding with the other two in time. For without actual coercive authority of some kind, there is no effectual differentiation between ruler and ruled or between the people qua sovereign and the people qua subjects. In such a case, the state is ‘without form’ (TPP, 8: 352), that is, not a (true) state at all (MM, 6: 313), ruling out direct (or non-representative) democracy in principle.

At the same time, there are rightful limits – also detailed in these sections – upon the highest state authority, limits that can and should non-coercively constrain its exercise, under the principled assumption that it oversteps those limits out of ignorance and hence non-culpably. It follows that the sovereign qua sitting head of state can be criticized by informed citizens and/or deposed by the legislative power but not punished or otherwise coercively resisted.

In short: Kant’s ‘General Remark’ applies the a priori principles (the ‘state in the idea’) outlined earlier to actual civil conditions, in which a ‘highest (coercive) authority’ of some sort already exists. The empirical relations, in such an actual state, both among its three ‘dignities’ and between their unified authority and the people in their capacity of subjects, will inevitably fall short of the ‘form’ in accordance with ‘pure concepts of right’. This is so mainly owing to the ‘natural’ temporal priority (given human limitations) of an executive power capable of effectively commanding the wills of individual subjects, but it is also owing to a naturally imperfect public understanding of the a priori principles of right themselves, an understanding that is presumably open to improvement. Still, the effectual head of state is, for all practical purposes, the ‘sovereign’ and must be so recognized on pain of undermining the civil condition as such.

5. Sovereignty as both ‘pure idea’ and as ‘representative’ thereof (§50–52)

The final sections on domestic public right, under the heading titled ‘the rightful relations of citizens to the fatherland and external lands’ (6: 337), reaffirm sovereignty’s essential link with the rights of subjects qua citizens.

5.1 The sovereign as pure idea/physical representative thereof

Whereas Machiavelli had opposed the ‘effectual truth’ of political life to the imaginary ideas of others, ¹³ Kant turns, by way of implicit rejoinder, ¹⁴ to the sovereign as the head of state [‘{Staats}oberhaupt (der Sourverän)’], now meaning not the empirically effectual head of state (as in the ‘General Remark’) but as a ‘pure idea’ – albeit one that has ‘objective practical reality’ only when there is a physical person or person to ‘represent’ it (6: 338). ¹⁵

Kant here makes explicit what was earlier implied: The three authorities, or ‘persons’, in a state are ‘only the several relations of the united will of a people’ in accordance with the pure rational idea that alone makes statehood thinkable.

The idea of the united will of the people has objective practical reality, however, only when the three associated authorities are united by being ‘represented’ by a physical person able to influence the people’s will in their capacity as individual subjects.

The three authorities in a state, which arise from the concept of a commonwealth as such (res publica latius dicta), are only the several relations of the united will of the people [Volkswillens] deriving from reason a priori and a pure idea of a head of state, which has objective practical reality. But this head (the sovereign) is only a thought entity (representing the entire people) where there is still lacking a physical person who represents the highest state authority and gives this idea efficacy [Wirksamkeit] upon the people’s will. (6: 338; cf. TPP, 8: 372)

In short, the idea actualized, or given objective practical reality, must exhibit in historical time a juridical relation that is ‘real’ – that is simultaneously ideal and physical – between public ‘rights’ and public ‘duties’ (cf. 6: 241).

5.2 The three empirical ‘forms of state’ ¹⁶

Representation of the sort at issue can assume three basic forms: autocratic, or the command of one over all; aristocratic, or the command of several united over all the others; and democratic, or the command of all united over each and hence of themselves as well (6: 338). Readers familiar with Toward Perpetual Peace will recall that Kant there decries ‘democracy’ as both ‘formless’ and as essentially ‘despotic’:

Of the three forms of state that of democracy in the proper sense of the word is necessarily a despotism, because it establishes an executive authority in which all decide for and, if need be, against one (who is thus not in agreement), so that all, who are nevertheless not all, decide; and this is a contradiction of the general will with itself and with freedom. (8: 352)

Kant’s apparent reassessment of democracy in the Metaphysics of Morals has puzzled many readers. To be sure, the difference between the two texts partly reflects a change in terminology: what in Toward Perpetual Peace Kant had called democracy ‘in the proper sense’, he now terms ‘ochlochracy’, or, literally, ‘rule of the mob’ (6: 339n.). There are also, however, more substantive changes. Whereas Kant had earlier endorsed a ‘representative system’ [repräsentatives System] consisting in the separation of legislative and executive authorities (TPP, 8: 352), he now speaks of representation by the people themselves, or what he calls a ‘representative system of the people’ [repräsentatives System des Volks] (MM, 6: 341) whose conceptual demands are, as we shall see, decidedly more complex. And whereas he had earlier distinguished the republican from the despotic constitution not on the basis of the ‘form of sovereignty’ (which may be either autocratic or aristocratic, a democratic constitution having no ‘form’ at all), but solely on the basis of the ‘form of government’ (TPP, 8: 352), he now speaks not of the ‘forms of sovereignty’ but instead of three ‘empirical forms of state’, with a ‘democratic form’ now explicitly included. Finally, the focus has shifted from the attitude of the sitting sovereign (e.g. whether Frederick the Great actually regarded himself as ‘only the highest servant of the state’ or merely claimed as much [8: 352–53]) to that of the people themselves – that is, to how well each form succeeds in ‘giving the idea efficacy on the people’s will’. The answer ranges, in turn, from the simplest (autocracy) to the ‘most composited’ [allerzusammengesetzteste] (democracy). The forms range, in other words, from the most mechanically effective to the one most organically attuned to the ‘spirit’ of the original constitution.

Although autocracy may be the most mechanically effective, however, it is also ‘the most dangerous for a people’. For by thus simplifying ‘the mechanism’ of ‘operation’ [Handhabung] by which the people are united, it also renders them entirely ‘passive’ (MM, 6: 339). The democratic form of state, by way of contrast, involves the active participation of the people in three conceptually distinct relations: (1) the ‘unit[ing of] the will of all to form a people’; (2) the ‘unit[ing] of the citizens to form a commonwealth’; and (3) the ‘set[ting of] the sovereign [Souverän], which is itself this united will, before that commonwealth’ (6: 339; bold emphasis added). Kant’s characterization of democracy as ‘most composited’ is not only new with the Metaphysics of Morals; it also uncannily resembles, as we shall see, the actual doings of the French National Assembly circa 1790.

Kant had previously used Zusammensetzung to distinguish an ‘organic’ whole from one that is merely mechanical:

This concept [of an organized being] leads reason into an entirely different order of things than that of a mere mechanism of nature, which will no longer suffice. An idea should lie at the basis of the possibility of an organized being. But because this is an absolute unity of the representation, while the matter is instead a multitude of things, which by itself cannot give to hand any determinate unity of composition [Zusammensetzung]. (CPJ, 5: 377; emphasis added)

As the most composited of the state forms, democracy, in Kant’s current sense, comes closest, I would suggest, to embodying the sort of ‘determinate unity of composition’ whose possibility can only be conceived as grounded in a supersensible cause that is neither strictly mechanical nor strictly teleological – that is, one that exceeds human powers of comprehension altogether (CPJ, 5: 422).

Nor was that the only time the Critique of Judgment had compared the relation of a mechanism and an organism to that between a despotism and a state that is ruled in accordance with the ‘inner laws of the people’ (CPJ, 5: 352). As Kant there notes:

One can … throw light on a certain association [Verbindung], though one that is met with more in the idea than in reality [der Wirklichkeit], through an analogy with immediate natural ends…. Thus in the case of a recently undertaken complete transformation [gänzlichen Umbildung] of a great people into a state the word organization [Organisation] has frequently quite appropriately been used for the institution of the magistrates, etc., and even the entire state body. For in such a whole [in which] each member cooperates in the possibility of the whole, the position and function of each member should also be determined by the idea of the whole. [CPJ, 5: 375n.)

Read together with these related passages from the Critique of Judgment, democracy as described in the Metaphysics of Morals comes closest of all state forms, I would suggest, to unifying the state into an organic whole – one in which the sovereign representative stands ‘before’ the people, as Kant here literally puts it, rather than (as in the other forms) ‘above’ it (MM, 6: 339). In other words, in such a representative democracy, the idea is made effective on the people’s will not solely ‘mechanically’ or through coercive laws but also through their own active ‘cooperation’ (6: 315): first, as individuals, in the formation of the united will; second, as citizens, in the formation of commonwealth; and third, as commonwealth in the ‘setting before it of the sovereign [as the people’s united will]’ (6: 339; cf. 6: 315).

5.3 The origins of the state, revisited

The fuller meaning of Kant’s three-fold description of the democratic form of state is brought home in section 52, which begins by returning to a question he had previously addressed in section A (6: 318), now phrased in the following terms: namely, whether one may rightfully seek the ‘historical authentication certificate [Geschictsurkunde]’ of the ‘mechanism of government’ – that is, ‘reach back to the time at which civil society began’ – with a view to changing it. Kant here not only raises the concern that he previously broached in section A: namely, both the impossibility of reaching back empirically to when the civil condition first began – that is, before recorded history (6: 339–40); he now also adds that such a transformation could only be undertaken by the people ‘acting as a mob’, that is, through the dissolution [Aufflösung] of the civil condition as such (6: 340). Such would amount, as Kant continues – extending the organic metaphor – to ‘palingenesis’, or life ceasing and beginning anew, ¹⁷ rather than ‘metamorphosis’, or a change of outward form in one and the same living being. ¹⁸ Correction of an imperfect constitution must, in other words, allow the form ‘essentially required for a people to constitute a state [to] continue to exist’ (6: 340). But how?

It cannot come about by the sovereign changing its empirical form (e.g. from autocracy to democracy) as if it rested on his ‘free choice and discretion’:

Now this alteration cannot consist in the state constituting itself from one of these three forms to either of the other two (e.g. by aristocrats unanimously willing to subject themselves to an autocracy or to melt down [verschmelzen] into a democracy, as if it rested on the sovereign’s free choice and discretion to which constitution the people would be subjected. For even if the sovereign decided to transform itself [umzuänderen] into democracy, it could still do the people an injustice, for they might abhor [verabscheuen] it and find one of the other two more conducive [zuträglicher]. (6: 340)

Scholars have puzzled over Kant’s stated reason for not allowing the sitting head of state to change its constitution on the grounds that it might wrong the people, who, as he insists, may find the former more conducive to its ends. ¹⁹ Kant’s argument, however, should by now be relatively clear. Only the united people’s will is capable of constituting (as in ‘constituiren’) a state constitution (Verfassung/Constitution). The actual sovereign represents that will by virtue of a standing constitution that the united will must (ideally) have approved and hence that only it can change. In short: every actual constitution is valid only in consequence of the idea of an original contract by which it was (presumably) established. The right of the sitting sovereign to represent the ‘pure idea’ of supreme state authority is thus ‘the most personal of all rights’ and non-transferrable in principle (6: 342). But how, if the lawgiving authority cannot be changed either by the arbitrary choice of the sitting sovereign or by coercive resistance by others, can it be corrected so as to better reflect the ‘form of the state as such’?

5.4 Constituting power and the ‘spirit’ of the original contract

In lieu of an immediate answer, Kant introduces another metaphor: the forms of state are only the ‘letter’ of the ‘original legislation of the state’ and may remain as long as they are deemed necessary, by longstanding custom, to the constitution’s ‘machinery’. This holds, however, only if the letter is accompanied by the ‘spirit’, understood as the ‘obligation’ [Verbindlichkeit] ²⁰ of the ‘constituting authority’ [constituirenden Gewalt] to making the ‘way of governing conformable to that idea’ (6: 340).

Far from accidental, Kant’s adaptation of the French ‘constituir’ – a term that figured prominently in the doctrines of Abbe Sieyès, who exerted powerful and continuing influence on constitutional changes in France – signals Kant’s own attraction to the early stages of the Revolution, which was not yet, in Kantian terms, an actual ‘revolution’. Sieyès himself avoided the term ‘sovereignty’ – both for its absolutist connotations and owing to the unworkability, given a country of France’s size, of Rousseau’s association of sovereignty with an actual ‘general will’ (Rubinelli 2019). Instead, Sieyès distinguished a ‘constituting’ power, consisting of an original legislative popular will, from the power thereby ‘constituted’ consisting of the state’s actual ruling agents.

Rather than following Sieyès in abandoning the term ‘sovereignty’, Kant, as we have seen, retains it, while also transforming Rousseau’s general will from the actual consensus in historical time that Rousseau had (mainly) intended, ²¹ and to which Sieyès had himself objected, to an ideal consensus among rationally mature moral agents, that is, an original contract outside of space and time. Kant also appropriates the term ‘constituting power’, applying it not to the ‘general will’ itself (which is merely an idea) but to the actual legislative power responsible for ‘constituting’ the state’s ‘empirical form’ or ‘constitution’ as either autocratic, aristocratic, or democratic. In short, Kant’s ‘constituting power’ does not replace the concept of a general will as ultimate source of sovereign authority (as with Sieyès) but is instead peculiarly associated with what Kant now calls the democratic form of state. As he here puts it:

The forms of state are only the letter [Buchstabe] (littera) of the original lawgiving in the civil condition, and may thus remain, so long as they are held to be necessary by ancient and long custom (hence only subjectively) as belonging to the mechanism [Maschinenwesen] of the state constitution. But the spirit of that original contract (anima pacti originarii) consists in the obligation [Verbindlichkeit] of the constituting authority to making the way of governing [Regierunsart] congruent with that idea, and when this cannot happen all at once, to change it gradually and continuously, so that it harmonizes in its effect with … a pure republic. (6: 340)

Spirit, as here defined, consists in the necessitation of a ‘constituting authority’ to ‘making a way of governing [Regierungsart]’ that ‘harmonizes in its effect with the constitution of a “pure republic”’. In this way, ‘the old (empirical) statutory forms’ that ‘merely served to effect [zu bewirken dienten]’ the people’s subjugation [Unterthänigkeit] ²² are replaced by one that makes ‘freedom the principle and …condition of any exercise of coercion’.

In thus characterizing the ‘obligation’ of the ‘constituting authority’, Kant introduces something new: the key issue is no longer the actual sovereign’s ‘way of governing’ (whatever form of sovereignty it may take, as in Perpetual Peace) but the way taken by a ‘constituting authority’ which Kant now identifies solely with the ‘democratic form of state’. To be sure, be they monarchic, aristocratic, or democratic in their form, states that maintain public authority solely by coercive means are ruled merely in accordance with the ‘letter’ of the original contract. States constituted in accordance with the ‘spirit’, by way of contrast, maintain public authority not through the people’s passive ‘subjection’ (i.e. ‘mechanically’) but through and with a view to their own active participation in lawgiving. ²³ Such a ‘form’, as Kant here adds, is the only one that ‘will finally lead to what is literally [dem Buchstaben nach] a state’, the only one that lasts and in which ‘law itself rules’ rather than ‘depend[ing ]on any particular person’ (6: 341).

Representative sovereignty of the sort Kant here has in mind (i.e. in accordance not merely with the ‘letter’ but rather with the ‘spirit of the original contract’) makes the idea genuinely ‘efficacious’ on the people’s will and can thus alone transform what is otherwise an ‘empty thought’ into ‘a pure idea that has objective practical reality’. It must, in short, be a representative system not only of the people (in their capacity as passive subjects) but also by the people (in their capacity as active citizens).

Any true republic … is and cannot be otherwise than a representative system of the people [repräsentatives System des Volks], in order in its name to protect its rights, through all the citizens united, by means of its delegates (deputies) [Abgeordneten (Deputiren)].

As to how such a system might rightfully come about, Kant now adds:

But a soon as the person of the head of state (be it monarch, aristocratic class, or the entire population, the democratic union) also allows itself to be represented, the united will of people does not merely represent the sovereign; it is the sovereign itself. (6: 341)

In such a hypothetical case, in other words, the united will would be sovereign not only ideally but in fact, and the constitution would assume a form that harmonizes ‘in its effect’ with that of a ‘true republic’ – and this without the civil condition itself ‘dissolving’ or ceasing to exist even for a moment (6: 341). ²⁴

Moreover, once sovereignty ‘passed to the people’ in this way, the state would no longer be the ‘representative system’ it had been formerly but a ‘representative system of the people’ (6: 341, emphasis added). Hence, as Kant concludes, it need not yield the reins of government to others in whom the ‘spirit’ of the original contract might not similarly prevail ²⁵ :

[For] in …[the people] is originally found the supreme authority from which all rights of individuals as mere subjects [Unterthanen] (and if need be) [allenfalls] as officials of the state must be derived; and a republic, once erected, need no longer let the reins of government leave its hands to transition again to those who had previously held them and could nullify all new ordinances through absolute choice. (6: 341)

Nor does Kant leave matters here, or with what is possible in principle, as befits the main section of the text. Instead, he ends his treatment of domestic public right with a long remark, in indented type, detailing a civic transformation of this kind that actually occurred in recent living memory: namely a ‘mighty ruler of our time’ (Louis XVI of France), who inadvertently allowed such a system of the people to arise, by calling forth the Estates General and allowing it to meet as a united body for purposes of assuming an essential function of sovereignty (i.e. carrying the public debt). For in so doing, he unwittingly returned power to the people qua constituting authority, leaving it free to establish whatever constituted powers it wished.

Nor did that assembly of delegates merely ‘represent’ the people in the usual sense, that is, by acting however one sees fit and only nominally in the people’s name. ²⁶ Instead, the delegates (Kant never calls them ‘representatives’) had in this case been charged directly by the people to carry out a specific mandate of the people’s choosing. That assembly did not merely represent the united will of the people as the ideal ground of sovereignty; in other words, they were, for all practical purposes, the people themselves.

For once the National Assembly had assumed the public debt – itself an essential function of the supreme authority (6: 323–24) – they themselves became sovereign (meaning #2). Moreover, since the members of the National Assembly were also the deputies through whom the people themselves acted (6: 341), the decisions of the Assembly were a direct expression of the people’s will. Hence, they did not merely ‘represent’ the people (in the sense that the person of a monarch ‘represents’ the sovereign [6: 338]); rather, ‘the united will of the people was itself the sovereign’ [6: 341], not just ideally but in fact [That] (6: 372).

In sum: the actions that transpired between Louis XVI and the National Assembly circa 1790 played out in time the three-fold ‘composition’ of the ‘democratic form of state’ as earlier described: first, the self-formation of individuals into a people (thanks to the creation of the National Assembly); second, the self-formation of citizens into a commonwealth (thanks to the National Assembly’s assumption of ‘constituting’ authority); and third, the latter’s establishment of supreme authority, or sovereign (viz. Louis XVI newly constituted as constitutional monarch) that is no longer set above a people that is passively ‘subservient’, but that is instead ‘set before it’ [vorzusetzen], as, so to speak, its own reflection ²⁷ (emphasis added) (6: 339). ²⁸ In ‘constituting’ the National Assembly as a ‘constituted’ power, the Constitutive Assembly did not merely claim to ‘represent’ the ‘people’s united will’ (as with Frederick the Great [8: 354]), but itself organically embodied it.

6. Improving the state: the French example

6.1 Civic rebirth vs. civic suicide

Like the religious ‘rebirth’ to which it is analogous, ²⁹ such a transformation is neither a gradual metamorphosis (or a mere change of outward shape) nor a complete palingenesis (or the emergence of new life following the death of the old). ³⁰ For the state never lacks a sitting sovereign and thus maintains the form that is essential to a state’s existence. This consideration, in turn, suggests why the mere thought of the formal execution of a head of state is uniquely abhorrent, according to Kant, and hence necessary to recast as an act of fear; for taken literally, it would destroy that ‘essential form’ and thus make ‘regeneration [Wiedererzeugung] of the state impossible’ (6: 321–22n.).

Kant’s comparison of the formal execution of Louis XVI to the ‘swallowing up of everything’ is thus less hyperbolic than it seems. Like the ens realissimum that grounds the possibility of real relations generally, the sovereign grounds the possibility of juridical real relations among embodied rational beings. ³¹ Hence the analogously ‘abyss of thought’ posed by challenging the origin of either, in contrast to the French case at hand, whose establishment was available to contemporary scrutiny. ³²

To be sure: that moment of political convergence, through the popular election of delegates to a Constitutive Assembly, between the pure idea of sovereignty and its non-subjugating effect soon gave way to the Terror. ³³ As Kant puts it in a later unpublished draft: the ‘rebirth of a state’ through the ‘undeniable inspiration [Begeisterung] of the idea of universally-valid human right’ is necessarily accompanied by ‘feverish inner movement’ including ‘acts of cruelty’ (Drafts for Conflict of the Faculties, 19: 607–8). Indeed, such a (temporary) outcome should evoke no surprise, given Kant’s earlier concessions as to the ‘crooked timber of humanity’ (IUH, 8: 23). What the Metaphysics of Morals adds to Kant’s previous treatments of human history is a more urgent articulation of its crucial transitional phase – that is, between the undocumentable beginnings of civil society and fulfilment of the idea – that makes up actual political life. Whether France’s civic constitution will prove lasting in the longer run – that is, a ‘true republic’ – remains undecided at the moment that Kant writes; hence, I would suggest, the peculiar care with which he deploys the term ‘sovereignty’, ending with the French example as living evidence that a ‘representative system of the people’ is not only ‘really possible’ but that it has existed in recent, documentable time.

6.2 Conclusion

What larger purpose, on Kant’s part, is served by this closing remark, especially given that few monarchs are likely to repeat Louis XVI’s foolish error? The answer, here left largely implicit, is presented a year later, following the death of Frederick William II after a lingering illness and the accompanying ‘happy event’, – namely, the ascent to the reins of government of ‘an enlightened statesman’ in place of the earlier ‘obscurantist’ (CF, 7: 11). Even if the relatively peaceful achievement of 1789, followed by the more violent constitutional renewal of 1795, should prove to be short-lived, the effect will be long-lasting. For as Kant now avers, this ‘phenomenon’ of the evolution of a constitution in accordance with natural right – or, to speak more precisely, that phenomenon’s sympathetic reception (7: 85) – ‘will not be forgotten’ (7: 88). Rather, it is ‘so interwoven with the interests of humanity’ and its influence too widespread among the world and its continents ‘not to be recalled by peoples on any favorable occasion’, peoples ‘who would thus be aroused to a repetition of new efforts of this kind’ (7: 88).

To be sure, those efforts will be painful:

The idea of a constitution in harmony with the natural rights of human beings – one namely in which those obedient to the laws, besides being united are also lawgiving – lies at the basis of all forms of state, and the commonwealth, which thought in conformity with it is called a platonic ideal (respublica noumenon) is not an empty figment of the brain but the eternal norm for all civil constitutions generally…. A civil society so organized [organisirte] is the exhibition [Darstellung] in accordance with the laws of freedom of that ideal through an example in experience (respublica phenomeonon). (CF, 7: 90–91) ³⁴

If my earlier argument is correct, then the ‘respublica phenomenon’ Kant here has in mind is nothing other than the ‘phenomenon’ and ‘example’ to which the Metaphysics of Morals had earlier referred, that is, the ‘organized’ French state that ‘exhibited’, however briefly, the ‘true republic’ in a manner suitable to the historical transmission for which Kant last works are themselves to be a conduit. He could hardly have done more, during these tumultuous final years of his productive life, to promote civic progress as he understood it.