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derived from the principles of right and to qualify as law.
A ground for reconciling the different characters assigned to law
appears in Kant™s teleological view of history. Here Kant argues that as
everything in nature has been assigned a purpose by God, man™s posses-
sion of reason shows that he was meant to be guided, not by instinct or
innate ideas, but by the fullest exercise of his rational powers. Nature™s
device for securing this fulfillment is the “unsocial social” character of
human beings. They want to live in society, but they also want to retain
their freedom as individuals to do as each pleases. They come into conflict


11 12
Ibid., 185. Ibid., 188.
Immanuel Kant 141
because they compete for goods, honor, and power. But that induces them
to overcome their natural indolence and to take the first steps from
barbarism to culture and finally to civil union. The law acts as a master
to break man™s will and subdue his self-seeking animal inclinations. In this
fashion the inclinations that make it impossible for men to live together in
peace become the means to their progress, just as trees in a forest, by
trying to get the better of their neighbors as they struggle for air and
sunlight, compel each other to grow “beautiful and straight,” whereas
trees that grow in freedom and isolation where they can put out branches
at will become “stunted, bent and twisted.”13
As individuals and states grow more enlightened about their self-inter-
est, more freedom will result. States will come increasingly to recognize
that the way to make industry and commerce flourish and to render the
state more powerful is to permit citizens to seek their personal welfare in
whatever way they choose that is “consistent with the Freedom of all.”14
And just as civil society grows out of the self-seeking of individuals, so
a world-wide civil society will emerge from the conflict among states as
it becomes evident that peaceful arrangements are a better way than war
to settle their differences. States™ recourse to ad hoc agreements and
increasing links among themselves will bring their relationship ever closer
to a world state. And the divine plan will be completed when one law,
providing for the freedom of all, governs the whole world.
Kant™s teleology thus suggests that, in the lower stages of development,
laws serve as rules of management to promote progress to that stage
where human beings will no longer need a master to break their wills, at
which point law can assume its pure character. Law thus provides a
solution to the human predicament that arises from the dual nature of
man. Human beings can achieve moral perfection only by becoming
wholly masters of themselves, but their animal nature drives them to seek
satisfactions in ways that are incompatible with preserving the autonomy
of themselves and others. By living under law, human beings are subjected
to restraints that curb their animal nature without destroying their auton-
omy because, as rational persons, they give the law to themselves.
By giving this dual assignment to law, Kant revived the tension in
the ancient idea of law in an even more difficult form. For he requires
the law to be both non-instrumental and instrumental. It is non-
instrumental insofar as conformity to law is desirable in itself and not

13
Immanuel Kant, “Idea for a Universal History with a Cosmopolitan Intent,” in Perpetual
Peace and Other Essays on Politics, History, and Morals, trans. Ted Humphrey
(Indianapolis, IN: Hackett, 1983), 33.
14
Philosophy of Law, 48.
142 The modern quest

for the consequences it brings. But as a master for the animal in man and
as an agent for moral improvement, law serves as the instrument of a
moral enterprise.
That the two roles assigned to law have been less than perfectly recon-
ciled is evident in Kant™s emphasis on the connection between law and
coercion and in the implications of that connection for determining the
authority of law. Unlike his predecessors, Kant presents the use of coer-
cion to enforce law as a logical consequence of the principles of right: if
freedom is put to a use that hinders freedom, any coercion employed
against that use is a hindrance to a hindrance of freedom. It follows that
right entails the authority to apply coercion against anyone who interferes
with freedom. As this is a moral rather than an instrumental argument for
the use of coercion, Kant concludes that just as a sense of duty obliges us to
obey ethical laws, so the coercion that attends disobedience obliges us to
obey civil law. And when he says that “the conception of Right may be
viewed as consisting immediately in the possibility of a universal recipro-
cal Compulsion, in harmony with the Freedom of all,” Kant attributes the
authority of law to its coercive power.15
At the same time, however, Kant suggests that whatever is promulgated
by a state is authentic law because “Each of them determines the same
thing about all, and All determine the same thing about each.” Here
promulgated law has authority because the will of the people is “personi-
fied” in “a political triad” of the state: the legislative power is personified
in the person of the lawgiver, the executive in the ruler who administers
the law, and the judiciary in the judge who assigns “every one what is his
own, according to the Law.” Together the three powers of government
represent the “universal united Will of the People.”16 It is not clear
whether the whole of one branch of the government is the sovereign, as
on occasions Kant speaks both of the legislature and of the executive
power as sovereign. But certainly the sovereign does not replace the will of
all or act for the people. Instead, the sovereign constitutes the unity of the
will of the people.
This identification of the sovereign with the will of all makes it unneces-
sary for Kant to explain how the law acquires authority or to designate
procedures for ascertaining the authenticity of law. Instead, he identifies
the authority of law with its justice, which is guaranteed simply by the
nature of civil union where “all determine and decree what is to be Law to
themselves,” whereby it becomes impossible to “perpetrate a wrong on
that other.”17 But at the same time, Kant rests the authority of law on the
right to use coercion to ensure obedience. That is the implication of

15 16 17
Ibid., 47. Ibid., 165“66. Ibid., 166.
Immanuel Kant 143
Kant™s definition of Right as “the possibility of a universal Reciprocal
compulsion, in harmony with the Freedom of all” according to universal
laws. It means, he says, “that Right is not to be regarded as composed of
two different elements “ Obligation according to a Law, and a Title on the
part of one who has bound another by his own free choice, to compel him
to perform.”18 In other words, justice, authority, and coercion are to be
understood as different aspects of law that are inseparable.
This may explain why, instead of concluding that unjust law does not
carry an obligation to be obeyed, Kant says firmly and unambiguously
that there is no “Right of Sedition, and still less of Rebellion belonging
to the People.”19 Although he presents this denial as a principle “involved
a priori in the idea of a political Constitution generally as a conception of
the Practical Reason,”20 he gives more than one argument against a right
of resistance.
One reason why resistance is always and necessarily wrong is that it
destroys an existing legal relationship. Because such a relationship is the
only one in which men are necessarily treated as ends, any constitution,
however inadequate, is better than none at all, and whatever destroys
a legal relationship is immoral. In addition, Kant argues that a right of
resistance is a logical absurdity. Whoever would restrain the supreme
power must possess sufficient power to do so and also be better able to
judge what is right. But that makes him the supreme power, which is a
contradiction. That a right of resistance is a self-contradictory idea be-
comes obvious once we ask: “Who is to be the Judge in a controversy
between the People and the Sovereign . . . the question shows that the
People would then have to be the Judge in their own cause.”21
Kant reaches the same conclusion by another route: That a supreme
will exists, “holy and irresistible,”22 he argues, is intrinsic to the idea of
a political constitution. In their natural condition the people are a multi-
plicity of wills. They are united by the institution of a supreme power that
establishes public right. If a right of resistance were allowed, the supreme
power would no longer have the final word and would cease to be the
supreme power, which would dissolve the unity into a multiplicity of
wills that can neither make nor enforce law. It follows also that what is
called a limited constitution, containing an article that allows one power
in the state to resist or restrict the supreme authority when it transgresses
constitutional law, is an “unreality.” The real object of such arrange-
ments, Kant says, is to disguise the “arbitrary influence” of a “powerful


18 19 20
Ibid., 47. Ibid., 176. Ibid., 258.
21 22
Ibid., 177. Ibid., 257.
144 The modern quest

violator of popular Rights” by giving the violator the pretext that he is
exercising a right of opposition conceded to the people. In short, Kant
maintains unequivocally that the people are bound by duty to “bear any
abuse of the Supreme Power,” however unbearable it might be.23
All questions about the origins of civil government, about whether the
power or the law came first, or how the existing ruler attained legitimacy,
are either pointless or dangerous to the existing state: “It is a duty to obey
the Law of the existing Legislative Power, be its origin what it may.”24
Even when a revolution establishes a new constitution, its unlawful
origins do not “release the Subjects from the obligation of adapting
themselves, as good Citizens, to the new order of things.” They cannot
honorably refuse “to obey the authority that has thus attained the power
of the State.” But neither are they entitled to punish the deposed ruler. If
he should withdraw into private life within the same state instead of
going into exile, he may not be tried for his past misdeeds. On the
contrary, even if he should attempt a counter-revolution, he is still within
his rights “because the Rebellion that drove him from his position was
inherently unjust.”25
A formal trial to justify the execution of a monarch is even worse than
simply assassinating him because “mere violence is thus elevated with
bold brow, and as it were by principle, above the holiest Right.” Using
the forms of law in this fashion perverts the “Principles that should
regulate the relation between a Sovereign and his People,” for the people
“who owe their constitutional existence” to the laws made by the sover-
eign are thereby made to rule over the sovereign. The state cannot
recognize a right of resistance without in effect committing suicide in
the name of a principle that also makes it impossible to restore the state.26
Defects in an existing constitution, however, may and should be re-
moved gradually by reform. But all such measures must proceed from the
sovereign power and affect only the executive, never the legislative power.
Giving the people legal power to resist the executive through their repre-
sentatives in the legislature is the only way in which a constitution may be
genuinely limited without being destroyed. But the executive must not be
coerced into doing what the people want because that would constitute a
usurpation of the executive™s power by the people. At most, the people
may put up “a negative Resistance” by refusing “to concede all the
demands which the Executive may deem it necessary to make [on behalf]
of the political Administration.”27


23 24 25
Ibid., 176“77. Ibid., 175. Ibid., 181.
26 27
Ibid., 179“80. Ibid., 181.
Immanuel Kant 145
Hence, without formulating or indeed recognizing a concept of author-
ity, Kant insists more unreservedly than any of his predecessors, even
than Hobbes, on an obligation to obey the established sovereign. But it is
not easy to reconcile his views on rebellion with his identification of law
with right. The difficulty here is analogous to the disparity between the
different roles that Kant assigns to law. It might be argued that the
identification of law with right is a postulate of law, and that the prohib-
ition of rebellion is a practical recommendation made at a less abstract
level. But Kant provides no ground for distinguishing among his prescrip-
tions in this fashion. He nowhere separates the postulates of law from
practical prescriptions for law. He says nothing about the legislator™s
deliberation or the judge™s decision to suggest that it is an activity
different from that of the philosopher reflecting on the principles of right.
On the contrary, he describes the relationship between the three powers
of government as analogous to that of the three propositions in a syllo-
gism. The major premise is laid down by the legislator, who is apparently
supposed to arrive at it by deduction from the science of right, and the
conclusion as well as the premise is no less exact or certain than an axiom
of mathematics: Just as geometry can unequivocally define a straight line,
so the “Science of Right aims at determining what every one shall have as
his own with mathematical exactness.”28 Kant may seem to make a
concession to practical considerations when he says that whether a law
is just can easily be discovered by asking: Could every person subject to it
have consented to it? But the question does not mean, he warns, that
everyone has to agree that the law is acceptable. It requires only that there
must be nothing in the law that is unacceptable in principle. And this can
be known a priori. It need be only possible to consent to such a law; that
at any time someone, if asked, might refuse his or her consent to it is
irrelevant. Far from supposing that the answer might be disputable, Kant
is so certain that the answer is self-evident that he does not hesitate to
make quite specific prescriptions for the content of law.
He is sure, for instance, that no one could agree to give others a status
superior to his own. Therefore, a hereditary aristocracy could not be
established in the state of nature and is intrinsically unjust. Even where
an aristocracy is permitted, the head of the state is entitled to abolish its
privileges at any time because the rank of nobleman, having no founda-
tion in right, is merely a contingent feature of the constitution. When the
sovereign decides to abolish aristocratic privileges, as he should do in
order to promote justice, he does not deprive a nobleman of his rights


28
Ibid., 49.
146 The modern quest

because what the nobleman called his own was dependent only on the
contingent will of the sovereign. The same is true of the right of primo-
geniture. Kant is equally certain that reason requires giving men a right to
transmit titles of nobility to their wives but not the converse, as well as
requiring that officials should have tenure for life.
About marriage, too, the commands of reason are in Kant™s view
indisputable. Since marriage is a mutual possession of sexual organs,
and since possessing a part of a person necessarily entails possessing the
whole, monogamous marriage is the only relationship between those
engaged in sexual intercourse that does not dehumanize the partners. In
binding both the partners to life-long fidelity, marriage commits both
equally, and the right that each acquires in marriage entitles each to
compel the other, should one partner stray into the possession of someone
else, to return to the former relationship. Kant concludes that “if a man
and a woman have the will to enter on reciprocal enjoyment in accordance
with their sexual nature, they must necessarily marry each other” and that
this is “necessary in its nature by the Law of Humanity.”29 A contract of
concubinage cannot be right because it is a contract to hire a part of a
person for the use of another, which reduces that person to a thing subject
to the arbitrary will of someone else.30 As a contract of marriage confers a
right to a whole person, “if one of the married Persons run away or enter
into the possession of another, the other is entitled, at any time, and
incontestably, to bring such a one back to the former relation, as if that
Person were a Thing.”31 If the contract to engage in conjugal cohabitation
is not fulfilled because of a secret understanding to that effect, the con-
tract is merely simulated and thereby annulled. But if non-consummation
is due to an incapacity that arises after marriage, the contract remains in
force because non-consummation arises from “a contingency that cannot
be legally blamed.”32 It is not, however, contrary to the natural equality
of husband and wife if the law says that the husband shall be master and
that the wife shall obey him. This right can be “deduced from the very
duty of Unity and Equality in relation to the End involved” because the
husband™s right to command is based upon “the natural superiority of the
faculties of the Husband compared with the Wife, in the effectuation of
the common interest of the household.”33
Although some consideration of circumstances is allowed to intrude
when Kant turns to the law regulating charitable foundations, even there
his argument begins from the principles of right. It would seem to prohibit


29 30 31
Ibid., 110“11. Ibid., 112. Ibid., 111.
32 33
Ibid., 113. Ibid., 112“13.
Immanuel Kant 147
abolishing or altering such foundations because that would violate the
rights of the heirs appointed in the legacy. But that is only according to
the letter of the legacy. If we take into account also the intention of the
legacy, as we should, then a change in circumstances might make it
advisable to abolish such foundations, or at least to alter their form.
For example, the poor and sick might be provided for better by giving
them a sum of money instead of maintaining them in institutions that are
not only costly, but also restrict personal liberty. Some institutions, such
as lunatic asylums, cannot be modified in this fashion because the inmates
cannot be said to have a right of their own, and the state has to decide
what is good for them.34 But others, such as educational institutions,
“cannot be held as founded for all time, so as to be a burden upon the
land.” The state must be permitted to reconstitute them “in accordance
with the wants of the time.” Although the founder who hoped to enjoy the
glory of being associated with the charitable foundation that he created
may dislike having it altered by others, this cannot deprive the state of
a right, indeed a duty, to ensure the institution™s “preservation and
progress” under changed conditions.35
No such considerations, however, enter into Kant™s prescriptions for
punishment. What constitutes just punishment for each crime is wholly a
matter of right. Kant derives his prescriptions about punishment from the
principle that all people must be treated as ends in themselves. Whether
punishment designed to reform the criminal might be thought compatible
with that principle, he does not consider, but instead concentrates on
condemning punishment for the sake of deterrence. He acknowledges that
there is such a thing as “punitive Expediency, the foundation of which is
merely pragmatic (ne peccetur) as being grounded upon the experience of
what operates most effectively to prevent crime.”36 But he nowhere
indicates how such considerations could or should be combined with his
prescription for just punishment. Instead, he insists that deterrence
cannot be the moral ground for punishment: first, because it entails using
the criminal as a means to the good of others and, second, because it has
to be based on generalizations from experience that ought never to
intrude on a moral judgment.37 Besides, as generalizations from experi-
ence are necessarily “wavering and uncertain,” they cannot furnish a
universally necessary criterion for the justice of punishment. The only
moral ground for punishment is that the criminal has committed a crime
and must suffer for it: “The Penal Law is a Categorical Imperative; and
woe to him who creeps through the serpent-windings of Utilitarianism to


34 35 36 37
Ibid., 250. Ibid., 253. Ibid., 244. Ibid., 195.
148 The modern quest

discover some advantage that may discharge him from the Justice of
Punishment, or even from the due measure of it.”38 The principle of
equality tells us that all who inflict an undeserved evil on another are
doing an evil to themselves. It follows that the Right of Retaliation ( jus
talionis), which requires a punishment similar and equal to the injury
sustained, is the only principle according to which a court can assign a
penalty.
From the principle of retaliation, Kant unhesitatingly derives the pun-
ishments due to different crimes. About theft, for instance, he argues that
anyone who steals from another steals from himself because by stealing he
makes all property insecure and thereby destroys his own property. But
having lost everything, since he still retains the will to live, he must be
supported by others. The state should not do this for free. Therefore, the
criminal must be employed by the state in penal labor and so be reduced,
for a time or perhaps for life, to a condition of slavery. Kant is even more
positive about the punishment due for murder: “whoever has committed
Murder, must die. There is, in this case, no juridical substitute or surro-
gate, that can be given or taken for the satisfaction of Justice. There is no
Likeness or proportion between Life, however painful, and Death; and
therefore there is no Equality between the crime of Murder and the
retaliation of it but what is judicially accomplished by the execution of
the Criminal.” Kant™s only qualification is that the execution “be kept free
from all maltreatment that would make the humanity suffering in his
Person loathsome or abominable.”39 Even if a civil society should decide
to dissolve itself, dissolution has to wait until the last murderer awaiting
execution has been put to death. Otherwise, the blood of the murderer™s
victim would stain the hands of all because, by publicly violating justice
through their failure to punish murder, they would have participated in
the crime. However many people may have been involved in any way in a
murder, they should all be executed, “for so Justice wills it, in accordance
with the Idea of the juridical Power as founded on the universal Laws of
Reason.”40 Kant™s only concession to contingency or expediency is for
cases where the numbers are so great that, by executing all, the state
would cease to have subjects, and the peoples™ feelings would be blunted
by the spectacle of mass slaughter. As the only alternative is the dissol-
ution of civil society and a return to the state of nature, which would be
even worse, the sovereign ought to treat such a case as an emergency in
which he imposes a penalty such as transportation in place of death. But
his decision should be recognized to be an act of prerogative rather than a
sentence carried out according to law.

38 39 40
Ibid., 195“96. Ibid., 198. Ibid., 200.
Immanuel Kant 149
The argument that capital punishment is immoral because no one could
have agreed, when entering civil society, to forfeit his life, is dismissed by
Kant as sophistry and a perversion of justice. The fundamental error
consists in confounding a judgment of reason “ that the criminal must
forfeit his life “ with the will to take his own life. Punishment follows not
from anyone™s having willed to be punished, but from his having willed to
perform a punishable act: To say, “I will to be punished, if I murder any
one,” can mean nothing more than, “I submit myself along with all the
other citizens to the Laws.” The person who participates in enacting penal
law is not the same as the person who is punished according to law
because no one, qua criminal, can be supposed to have a voice in legisla-
tion, “the Legislator being rationally viewed as just and holy.” It is only
“the pure juridically law-given Reason” in him that promulgates a penal
law against himself and others who act as criminals.41
Two kinds of killing are, however, excluded from jus talionis. Kant
denies that the legislature has authority to impose capital punishment for
maternal infanticide and for dueling between subordinate officers because
both killings are motivated by honor, which the perpetrators have a
duty to uphold. Because it is impossible for legislation to remove the
shame of an illegitimate birth or the humiliation of an officer, those
shamed in this fashion are in a state of nature, that is to say, compelled
to act for themselves. If the birth of a child outside marriage becomes
known, the mother cannot escape disgrace; moreover, since such a child
enters the commonwealth illegally, like contraband goods, it has no claim
on the protection of the law. Therefore, the commonwealth is entitled to
ignore both its existence and its destruction. Similarly, if an officer of

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