Professional Documents
Culture Documents
i. introduction
Current readers often bring implicitly Lockean intuitions to bear in their
reaction to Kant on revolution: they assume that individuals are entitled
to protect themselves, by violent means if necessary, against abuses of its
coercive authority by their government. Underlying this assumption is a
broader commitment to natural rights morality that many readers
attribute to Locke and Kant alike. On this basis Kant is often charged with
inconsistency: for one committed to pre-civil individual rights, the
denial of a right to resist a rights-violating government seems contradictory. It is, however, also often suggested that Kants no-right to revolution is marginal to his practical philosophy overall, constituting an
unfortunate philosophical slipup that is at odds with his support for the
French Revolution and explicable in terms of his excessively legalistic
understanding of constitutionalism and outdated conception of sovereignty. These supposed anachronisms within Kants philosophy of Right
are said to warrant a turn to his ethical writings from which an alternative basis for a right to revolution is derived via appeal to the Kantian
Earlier versions of this article were given at a conference on Kants Doctrine of Right in
Jena during the summer of 2007; at the political philosophy seminar at the University of
Edinburgh, the philosophy seminar at the University of Bristol, and the political theory
workshop at the LSE. My thanks to participants at these events for their helpful comments
and suggestions, including Chris Bertram, Sharon Byrd, Thomas Christiano, Philip Cook,
Cecile Fabre, Tim Hayward, Joachim Hruschka, Chandran Kukathas, Jens Kulenkampff,
Hannes Leitgeb, Bernd Ludwig, and Leif Wenar. I am especially grateful to Paul Kelly for his
generous guidance on Locke; to Christian List for fascinating exchanges on collective and
group agency, and to Arthur Ripstein for sustained and always enjoyable discussion on
Kant. Many thanks, finally, to the Editors of Philosophy & Public Affairs for their helpful
suggestions for revision of the penultimate draft.
2008 Wiley Periodicals, Inc. Philosophy & Public Affairs 36, no. 4
376
377
378
379
380
381
subject sovereign over the sovereign. Commentators often find the first
half of this supposed contradiction easier to concede than the second. If
by highest legislation Kant means a constitutional document, and if by
a right to revolution he has in mind the legal act of suspending the
constitution, there may indeed be something contradictory about the
thought of a constitutions containing a provision authorizing the suspension of its authority. A constitutional right to suspend the constitution seems self-contradictory in the sense of being constitutionally
unenforceable. But even if the first part of Kants argument is valid so far
as it goes, many deem it excessively legalistic. A constitution is not
merely the highest legal document among relevantly similar legal documents but constitutes a public declaration that serves as moral foundation to all positive lawmaking. Such a founding document can contain a
suprapositive right to rebelliona Lockean natural right, in effectthe
constitutional function of which is to uphold and protect the moral basis
of positive lawmaking. Kants position is said to be legalistic in that
it fails to acknowledge the suprapositive function of a constitutional
right to revolution.9
With this response to the first part of Kants objection in hand, it is
easy to dispose of the second half also. Again, it may be true, logically,
that if A is subject to B, A cannot simultaneously be sovereign over B. But
it is not obvious that, constitutionally, the people is subordinate to its
government. For Locke, the people is constitutionally sovereign, making
the government subject to the will of the people. Granted, the government is not subject to the will of the people in an everyday legal context;
in an everyday context, the people must obey the positive directives
issued by government so long as government legislates in accordance
with constitutional law. Nonetheless, constitutionally, the governments
subordination of the people under its coercive authority is legitimate
only so long as the government abides by the moral founding principles
of the legal system. In sum, critics respond to Kant by retorting that even
though he may be correct in point of positive law, he is nonetheless
in moral error with regard to both aspects of his argument from
9. Cf. Beck, Right of Revolution, p. 413: In this argument, we see Kants formalism in
extremis. Likewise Hill, Political Violence, p. 210: Neither Kants special definition [of
justice and rights] nor the limited conclusion that follows implies that it is always immoral,
or even unjust (in a non-technical sense) to try to destroy the de facto legal system
in ones country.
382
contradiction. Constitutionally, the people is sovereign over its government, and the peoples sovereignty is grounded in the suprapositive
rights of each, the protection and promotion of which must form the
basis of all just lawmaking.
One problem with these Lockean rejoinders is that Kant follows
Hobbes and Rousseau in thinking that there cannot be a people without
a sovereign. Civil society does not, as in Locke, precede state formation,
but becomes possible through it. Prior to the state there is but a multitude: a state (civitas) is a union of a multitude of human beings under
laws of Right (VI 313). The unifying principle is the head of the civil union
under the idea of the general united will. The people may be sovereign:
but there is no people without a head to represent its united general will.
Kant also dissents from the first Lockean claim concerning natural
rights: absent a condition of public Right there are no individual rights.
Kant does not fail to acknowledge the moral foundation of legal rights in
natural rights. To the contrary, his juridical argument against a possible
right to revolution is a moral argument. Revolution, conceived as the
deliberate act of violent resistance against the sovereign as necessary
head of the civil union, is morally wrong because the existence of
the civil condition under the idea of the general united will is a necessary condition of any possible rights.10 Instead of dismissing Kants
juridical argument as legalistic on Lockean grounds, we should
ask in virtue of which features of his own morality of Right a right to
revolution is repudiated.
383
384
385
386
differentiated, like theoretical concepts, into empirical and pure concepts. Empirical practical concepts, now associated with instrumental
practical reason, maintain a connection to something that is empirical.
By contrast, concepts of pure practical reason pertain to our conception
of ourselves and others merely as moral agents.17 In Groundwork Kant
speaks of the concept of duty as a pure practical concept. We are conscious of our obligations towards ourselves and others merely in virtue of
our status as rational agents, not because of sentiments of kinship or
sympathy we may feel towards others. The Doctrine of Right similarly
asserts that we stand under obligations of Right vis--vis one another
merely in virtue of each our rational capacity for freedom of choice and
action, not because we are creatures of need, or vie one another with
Hobbesian distrust, or aspire to the good life with one another.18
For Kant, then, the content of all moral conceptsethical and juridical alikeis specified by our practical standing towards one another as
coexisting and interacting rational agents, and makes no reference to our
physical or psychological needs and capacities. As Joachim Hruschka
has shown, a centrally distinguishing feature of the morality of Right is its
strictly interpersonal character. Virtue has an intrapersonal dimension:
Robinson Crusoe owes himself duties of virtue even while alone on his
island. The ethical demand to treat the humanity in my own person never
merely as a means but always at the same time as an end in itself remains
in force even under solitary conditions. By contrast, duties of Right
become relevant only with the arrival of Friday: So long as Robinson
remains alone on his island, a Doctrine of Right is superfluous. With
Fridays arrival, a Doctrine of Right becomes morally necessary.19 In one
sense Hruschkas point is perfectly general: Locke would agree that individuals rights become practically relevant on Robinsons island only
with Fridays arrival. Nonetheless, conceptually, Robinson and Friday
have rights even before they make contact with one another. When Robinson and Friday encounter one another, the status of each as independent rights holder restricts the type of relations they may permissibly
enter into with one another: it is at this point that their respective
17. Cf. Critique of Practical Reason, V: 9n.
18. Cf. Bernd Ludwig, Whence Public Right? The Role of Theoretical and Practical
Reasoning in Kants Doctrine of Right, in Kants Metaphysics of Morals: Interpretative
Essays, ed. Mark Timmons (Oxford: Oxford University Press, 2002), pp. 15984.
19. Hruschka, Die Notwehr, p. 205.
387
enforcement authority against one another becomes practically relevant. The arresting feature of Kants position lies in the thought that
until Fridays arrival the concept of Right is morally meaningless on
Crusoes island: absent the presence of others, the concept of Right has
no content.20 Right, in Kant, consists in the morally requisite form of
external relations between two or more persons with regard to the
capacity for freedom of choice and action of each:
The concept of Right, insofar as it is related to an obligation corresponding to it (i.e., the moral concept of Right), has to do, first, only
with the external and indeed practical relation of one person to
another, insofar as their actions, as facts, can have (direct or indirect)
influence on each other. But, second, it does not signify the relation of
ones choice to the mere wish of the other, as in actions of beneficence
or callousness, but only a relation to the others choice. Third, in this
reciprocal relation of choice no account at all is taken of the matter of
choice, that is, of the end each has in mind with the objects he wants.
. . . All that is in question is the form in the relation of choice on the
part of both, insofar as choice is regarded merely as free (VI 230).
To raise a Kantian entitlement claim is to raise a claim to being treated
by others in morally requisite ways in virtue of ones capacity for external
freedom. Unlike Lockean entitlement claims, Kantian entitlement
claims cannot intelligibly be raised in the absence of coexistence with
others. Of course, to say that they cannot intelligibly be raised in the
pre-social condition is not to say that they cannot intelligibly be raised in
the pre-civil condition. As for Locke, so for Kant the pre-civil condition is
a social condition. When Friday and Robinson encounter one another on
the island, they find themselves in a pre-civil social condition. In this
condition, and consonant with each their conception of themselves as
beings capable of external freedom, Friday and Robinson will each raise
entitlement to freedom of choice and action claims against one another;
they will each claim morally requisite forms of action-restraint from the
other. Their joint problem will be that neither possesses the authority to
enforce these claims against the other.
I shall consider the problem of rights enforcement immediately
below. Here I want briefly to clarify the status of the innate right in
20. I should point out that my extrapolations from his island example diverge from
those drawn by Hruschka, for whom Kant follows Achenwalls natural rights theory.
388
389
390
391
392
393
28. But see Andrews Reath, Legislating for a Realm of Ends: The Social Dimension of
Autonomy, in Reclaiming the History of Ethics, ed. A. Reath, pp. 21440. For criticism of this
position, see my Kants Kingdom of Ends: Metaphysical, not Political, in A Critical Guide
to the Groundwork of the Metaphysics of Morals, ed. Jens Timmermann (Cambridge: Cambridge University Press, forthcoming).
394
395
396
397
398
399
400
401
402
403
404
43. For example, Christian List, The Discursive Dilemma and Public Reason, Ethics
116 (2006): 362402; Philip Pettit and David Schweikard, Joint Action and Group Agency,
Philosophy of the Social Sciences 36 (2006): 1839; Philip Pettit, Responsibility Incorporated, Ethics 117 (2007): 171201.
44. Public reason in Kant is widely discussed, but rarely in the context of his
no-right to revolution.
45. Cf. Applbaum, Forcing a People to Be Free. Applbaum both rejects Kants denial
of a right to revolution and enlists his putative support for coercive imposition of democratic government upon unwilling distant others.