The Presuppositions Of Freedom Kant And The Social Contract

May 16, 2016 · 50 min.
Philosophy

Northern Illinois University M.A. Thesis

Philosophy

Abstract Link to this heading

More than 200 years after his death, scholars continue to struggle with the works of Immanuel Kant and how to systematize it within the larger agglomerate of intellectual history. Among these struggles is a debate over Kant’s political philosophy and its relationship with the social contract theory. In this study, I suggest more scrutiny should be given to what exactly Kant meant when he used the word freedom throughout his writings on politics and the importance this has for better understanding Kantian thought. Freedom presupposes a lot of things for Kant, but within the context of his politics, it includes a need for explicit and implicit consent within the epistemic constraints of human knowledge. Considered within the larger context of Kant’s suggestions for how our politics should be done, my more meticulous investigation into Kantian freedom not only helps us better understand Kant, but also the status of the social contract theory in a post-Humean era.

Introduction Link to this heading

After making itself one of the major cornerstones of political thought in the 17th and 18th century, the social contract theory fell out of favor in the following century, only to have recently seen a resurrection of sorts behind the alluring scholarship of John Rawls and David Gauthier. Acting as a unifying theme within many different variations, the social contract theory places an emphasis upon consent as the grounding for the legitimacy of the state and state actions. The edifice for state legitimacy rests upon the consent of those being governed under it, and under its strictest interpretation, this consent exists as the only moralistic justification for its existence. Most commonly associated with the social contract theory are Hobbes, Locke, and Rousseau, who made substantial and influential contributions to its creed; less well known are the contributions made by Immanuel Kant. Why specifically Kant’s political writings have been so inadequately lacking in further investigation is difficult to surmise. But what is less uncertain is that this neglect has been an unfortunate loss for political philosophy, since a close study of Kant’s thought on politics can indeed prove to be very profitable. Some scholars, like Patrick Riley, have gone so far as to declare Kant’s work the most adequate of the modern social contract theorists (Riley, 1973). Furthermore, writing in a post-Humean era, Kant’s work may provide better insight into how the social contract theory can work around some the compelling criticisms of Hume, something other theorists before Kant had not had the burden to do. But, before such an endeavor can be adequately embarked upon, a crucial question must be settled. It turns out, categorizing Kant as a card carrying member of the social contract theory is not so cut and dry. Kenneth Baynes has produced some compelling scholarship suggesting that Kant’s political philosophy rests on the idea of permissive law rather than some sort of consensual social contract (Baynes, 1989). Others, like Leslie Mulholland, have also argued that Kant’s work isn’t necessarily in line with the social contract theory, but is instead more adequately categorized within the modern natural law tradition (Mullholland, 1990). While both scholars make excellent contributions to the Kantian literature, I wish to suggest here that they are, in fact, mistaken. Not only does Kant belong to the social contract tradition, but to the same tradition as Hobbes, Locke, and Rousseau, which emphasizes explicit and implicit consent instead of the more anomalous contractarian theories, like that of Rawls, which emphasizes hypothetical consent. But, before making my case, let us quickly explore what within Kant’s thought provides support for the suggestion that he was not of the social contract tradition.

Exploring Criticisms of Kant’s Social Contract Credentials Link to this heading

If one were to engage in a quick, superficial reading of Kant, we should expect more times than not that they would read Kant as being a social contract theorist. Many of Kant’s own words lend heavy credibility to interpreting him in this way, such as: “Here, then, is an original contract among men on which alone a civil constitution can be based, one that is thus completely compatible with right and by means of which a commonwealth can be established” (Theory and Practice, 297, emphasis mine). Similarly, in a Rousseauian fashion, Kant suggests that the state under a civil union cannot wrong its citizens, since it only passes laws which its own citizens would give to themselves i.e. consent to (MM, 6:314). But while these passages and the overall tone of Kant’s writings suggest he is of the social contract tradition, a deeper investigation leaves us less certain. Not only do most of the important elements that make up Kant’s political philosophy appear to be established upon things other than consent (Baynes, 1989; Mullholland, 1999), but even when considered in the aggregate, Kant’s political state seems to be missing any substantive aspect of the consent that remains so dear to the social contract theory. We see in other great social contract thinkers like Hobbes, Locke, and Rousseau, a depiction of man in the state of nature and the emphasis upon why he agrees to a social contract and how these circumstances influence the type of contract laid out. Particularly, in Locke’s thought, we see that a conscious and real choice is made by all within a political state to consent to the social contract and that under many circumstances (depending on if the consent was implied or explicit) this consent can be removed (Second Treatise of Government, Ch. 8). Even for Hobbes, the consent of the governed was an active choice made by the original participants that could potentially be removed under certain circumstances. And although it is most explicitly stated by Rousseau (On the Social Contract, Bk. 1 Ch. 5), we also find common to these three thinkers that the state requires unanimous consent of all in order to originally obtain legitimacy. But for Kant, so many of these crucial aspects of consent seem to be deliberately missing. According to Kant, even if there had never been a moment of consent among all subjected to a social contract, the state they reside in may nevertheless be legitimate. He states: “nor must it first be shown historically that a people, whose rights and obligations we as their descendants assume, must once have actually carried out such an act and must have left us an authentic report or instrument of it, either orally or in writing, before we can regard ourselves as bound by an already existing civil constitution.” (Theory and Practice, 297)

Considered within the context of Kant’s time, we see that like so many of his other philosophical inquiries, Kant had to grapple with Hume’s skeptical deconstruction of so much of what philosophy had come to accept. Kant’s thoughts here of the historicity of the social contract similarly appears to be a workaround of Hume’s criticism that no social contract has ever been shown to have been made throughout human history (Of the Original Contract). But this sidestep by Kant makes room for criticism to his credentials as a social contract theorist. For how can consent be so important to his work if it is not actually required for the legitimacy of the state in its origins? But Kant’s problems do not end here. Not only is it not necessary for us to give our consent before a state originally procures legitimate power over us, but our capacity to remove our consent from a continuation of such a situation by means of relocating outside the borders of this state appear to be insufficient. There are a couple of reasons for this, the first being that there are no physical or even conceptual borders that seem to limit one from bringing others into the civil union with them. Kant argues that man by his nature cannot help “but mutually influence one another” (Theory and Practice, 289), suggesting that we are far more interconnected with one another than the atomistic man depicted by some of the other social contract theorists. But with this interconnection of influence also comes the problem that man is also by nature a constant and continuous threat to those around him. Because of this, Kant argues that everyone, by a dictate of reason, has a right to bring all those around them into the “civil condition” as a means of securing their rights (MM, 6:308). What it means to be “around” another is never clarified by Kant, but since the standard for coercive inclusion into a civil condition is the influence of one upon another, there is little reason to suspect any sort of arbitrary border would suffice to overcome this. Not only does one have a right to bring others into a civil condition with them, seemingly regardless of their location upon the planet, but this action seems to be a highly recommended one (MM, 6:306). It is true that Kant does limit the size of the state to something less than a one world government (MM, 6:350), and furthermore, he is explicit that states cannot necessarily interfere with each others internal dissensions (MM, 6:345). From these two concessions, it may follow that one could, in a sense, remove their consent by re-locating to a different state or civil union where they are no longer under the authority of the original state. But this type of consent may very well be incompatible with true consent because it might be presenting a false dichotomy upon which to make a decision. Consider the hypothetical example of a criminal that, upon pulling out a weapon, yells “your money or your life!”. The criminal’s ultimatum is a false dichotomy since to refuse giving up your money does not constitute consent to giving up your life. A third legitimate option exists, which is choosing neither. Similarly, forcing one to choose between different civil unions without the option to choose a life outside of all civil unions may be a justified part of Kant’s political philosophy, but it does not necessarily accord to a theory of consent. The comparisons between Kant and other thinkers like Locke’s social contract theory are quite stark. For Locke, although the enjoyment of those things provided within a political community produces an implied consent to submit to the state, this implied consent can be removed at anytime by relocating outside the borders of the state. But for Kant, we are provided with no evidence that others could not bring us back into a civil condition under the authority of the state after leaving it. Unless we take up residence in a different state, too large to merge with, one’s hand is essentially forced into a civil union regardless of where they reside, and if they truly consent to it. Another attempt to salvage the social contract theory in Kant’s work might be directed towards the right to reform from within the civil union. Although one may not have agreed to enter a particular civil union, nor can they choose to seriously leave it, perhaps they have a right resist or change the union from within in a way that is compatible with the type of civil union they would consent to. But even if this is a legitimate option, it remains a rather dubious one. Unlike Locke, who provides a quite liberal realm of state actions which may justify civilian resistance, or even Hobbes, who justifies resistance when there exists a threat to one’s life, the right to resist the state when it acts in a way contrary to what one would consent to is unequivocally absent in Kant’s thinking. When it comes to how one can operate within a civil condition in the state, few provide such a hardline approach as does Kant. In a famous passage of his, Kant states that: “Thus, if a people should judge that a particular actual piece of legislation would in all probability cause them to forfeit their happiness, what should they do about it? Should they not resist it? There can be only one answer: nothing can be done about it, except to obey” (Theory and Practice, 298, emphasis mine). This inability to do anything other than obey the state does not come about because Kant thinks the state lacks the ability to violate rights or act tyrannically, since to accept this would be to attribute the state with a measure of divine inspiration which Kant rejects. But regardless of the state’s capacity to act tyrannically against the rights of its citizens, Kant stands firm in the absolute moral obligation to obey the state and refrain from resistance at all times. Now, although no one has a legitimate right to resist the state, Kant does provide for a “freedom of the pen- within the bounds of respect and love for the constitution one lives under” (Theory and Practice, 304). What this seems to account for is a right held by citizens to speak freely about state action and its deleterious actions against them, in the hopes that the state will take this into account with its future actions. Despite Kant’s optimistic considerations of free speech as a safety mechanism against bad state action, there is good reason to suggest this actually provides very little in the way of substantive recourse for citizens under subjection to the state. Kant proposes that we must assume that the state’s intentions are always aimed at securing the rights of its citizens and never aimed at doing them harm (Theory and Practice, 304). Because with this assumption, freedom of speech exists as a far more effective tool. But if this assumption were to be loosened (as both history and reality would suggest we do), and if the state did in fact hold ulterior motives, other than the security of the rights of its citizens, then it seems plausible to suggest that verbal protests from its citizens might mean little to the state. For other than discontent, without the right to resist, what motivation actually exists for the state to change within the assumption that it does hold ulterior motives? Secondly, we must also remember that Kant includes the caveat within his proposal for a right to free speech that this speech must always be within the bounds of respect and love for the constitution. But it must be asked, who is it that determines what speech is compatible with this caveat? It turns out, none other than the state itself gets to be judge over these matters. So again, unless we attribute to the state that it always has the best intentions as its guide, what mechanism exists to protect legitimate free speech from the arbitrary declaration of the state that it isn’t within the realm of legitimate speech? The answer is that no mechanism does exist, and the only instrument for working within civil society to direct its actions in a way that is compatible with the type of society we could consent to is utterly at the mercy and whim of the state. In summary of what so far has been explored of Kant’s macro polity, it is quite difficult to see where any sort of real consent exists. The state can come to power and subject us to it without our consent or the consent of anyone. The capacity to remove our consent by means of relocating outside of the borders of the state appear futile since we can be immediately forced to either re-enter that civil union or enter a different civil union without our consent. And even from within the state, we are completely at its mercy with an unequivocal duty to obey and nothing other than a toothless right to free speech to protect us from tyranny. If consent is truly the foundation for the social contract theory, then how can Kant’s political philosophy ever sincerely be thought of as a part of this tradition?

The Freedom Axiom Link to this heading

Among many of the scholars who have attempted to defend Kant’s political philosophy as part of the social contract tradition, there has been a general tendency to attenuate Kant to overcome many of the objections considered above. In Jeffrie Murphy’s investigation, he argues that Kant’s theory does not attempt to answer the question of why we have a moral obligation to obey the law, but instead to answer the question of when a law is just (Murphy, 1978). Like so many other scholars writing on Kant, Murphy gets stuck on a passage of Kant’s where he states that the social contract is not necessarily a real historical agreement, but instead only “a mere idea of reason” (Theory and Practice, 297). The implication here being that the social contract and its emphasis upon consent does not actually require consent, but instead only acts as a guideline or idea for the state to use when acting. It sits as a blueprint or recommendation for all to use when considering the justice of any public law. Kant states that “if only it is possible that a people could agree to it [the law], it is a duty to regard that law as just, even if the people are presently in such a position or disposition of mind that if asked it would probably withhold its consent” (Theory and Practice, 297, emphasis mine). What Murphy and others interpret this to mean is that the state must consider what all would possibly or hypothetically consent to when the state crafts its actions; for it is only those laws which all hypothetically would consent to that are truly just. Furthermore, even if it could be demonstrated that all citizens disliked a certain law, it does not necessarily mean they would not consent to the law under ideal conditions of rationality. This interpretation has been one of the main driving forces behind many contemporary contractarian theories, including Rawls’ A Theory of Justice. Although the attempt by scholars like Murphy to categorize Kant as a social contract theorist are correct, more is happening here than what Murphy and others are suggesting. Kant is a social contract theorist, but his theory is not grounded in a hypothetical consent but in explicit and implicit consent. What is missing from so many of the examinations into Kant’s politics is a deeper investigation into his fundamental freedom axiom within the Doctrine of Right and its implications for the rest of Kant’s thought. In his typical deontological fashion, Kant’s entire political philosophy is grounded on a single philosophical axiom. This axiom states that: “any action is right if it can coexist with everyone’s freedom in accordance with a universal law (MM, 6:231). The key to understanding Kant’s political philosophy and its integral connection to the social contract theory rests within this axiom (henceforth referred to as the freedom axiom) and in particular, two key words within it: right and freedom. By further investigating the meaning of these two words, we should come to a clearer picture of how Kant constructs the social contract. When Kant says that an action is right when it coexists with the freedom of everyone else, what does it mean to be right and what are its implications? The answer to this question requires a big picture approach to Kant’s thought and his interconnection between political and moral philosophy. In The Metaphysics of Morals, Kant states that his entire system of morality is made up of two parts which he titles the Doctrine of Right and the Doctrine of Virtue. The Doctrine of Virtue tells us what is ethical and is comprised of all three of Kant’s moral criteria. These criteria, as laid out in The Groundwork of the Metaphysics of Morals, state that an action is only ethical if it 1) has universalizability (GMM, AK 4:401), 2) treats all rational beings as an end in itself and never as a means only (GMM, 4:428), 3) allows all rational beings to be their own law giving agents (GMM, 4:434). Crucial to the Doctrine of Virtue is the third criterion which demands that rational actors voluntarily choose to act morally (as laid out by the first two criteria) for the sake of being moral. Without this voluntary choice, Kant argues that any act is not an ethical act and does not belong to the Doctrine of Virtue. While Kant is clear that ethical behavior cannot be forced upon anyone, he seems to still suggest that there must be times when one is justified in coercing others to act a certain way. This is the fundamental point of emphasis that the Doctrine of Right is designed to answer: when and how is coercion justified within his account of morality. Kant argues that right should be understood as the link that intrinsically connects and justifies coercion within his account of the moral law (MM 6:231). Right connects the first two criteria of the moral law with the justification to coercively enforce these criteria as an external law, regardless of the internal reasons for obeying it or not (MM 6:220). When coercion is used successfully within the accord of right, it is a moral action, although not necessarily an ethical action since the coercion violates one’s need to be their own lawgiver. The Doctrine of Right helps guide the moral legitimacy behind coercion by laying out two rules. The first, that when an individual acts rightly, no moral basis exists for others to coerce them from engaging in that action (MM, 6:222). The second, that coercion only obtains its legitimacy when others do not act rightly; and even then the coercion must be utilized in a way that is compatible with right, with the intentions of re-establishing right. But when is an action right? To answer this we must explore the other important aspect of the freedom axiom, which is, the concept of freedom. The freedom axiom states that all actions are right if they can coexist with the freedom of everyone else (MM, 6:231). But how are we to judge the rightness of any action without a coherent understanding of what freedom others have and do not have? It is here that I believe many Kantian scholars run off-course in understanding Kant, because they fail to take into account what precisely Kant means by the word freedom. This is probably for good reason, as although our understanding of freedom here is absolutely crucial to Kant’s entire political philosophy, he never provides a categorical definition of what the word means in relation to this axiom. We know by our understanding of right, and its connection to both freedom and the moral law, that freedom must accord with both the universalizability criterion as well as the criterion for treating everyone as an end in itself. But this isn’t as helpful as we would like it to be. Although these two criteria, as well as the third of adopting the moral law as your incentive, are enough to direct ethical behavior, Kant argues that ethics prescribe wide obligations with room for exceptions whereas right demands very narrow obligations with no exceptions (MM 6:390). So what freedom means, as a fulfillment of right, requires a precise and well defined understanding in order to arrive at the precise and narrow obligations that arise from it.
Two strategies exist to develop what precisely Kant might mean by the word freedom. First we can look at what Kant’s politics look like at the macro level and attempt an induction into how the understanding of freedom would produce these results. Or, we can take what comments Kant does provide by the word freedom littered throughout his works (particularly in metaphysics and ethics) and try to abstract a coherent meaning from them. Since the purpose of this investigation is to demonstrate what precisely Kant’s macro-political society is, it would seem inappropriate to start our analysis at the macro-level since it would appear to beg the question. Instead we shall start from the latter of the two approaches and see what can be discovered from there. Luckily for us, Kant does use the same word for freedom (freiheirt) in his freedom axiom as well as elsewhere in some of his writings on metaphysics and morality. Within a more metaphysical context, Kant uses the word freedom to describe humanity’s free will, or capacity to not be wholly compelled to act according to a deterministic universe (Critique of Practical Reason, 228; GMM, AK 4:452; MM 6:214). In this account, it does not mean that human beings are not causally influenced by determinism, since Kant argues all our inclinations are imposed upon us by nature (Critique of Practical Reason, 211), but these factors do not necessitate how we act, only influence it. In addition to his more metaphysical account of what it means to be free, Kant also suggests within the context of his work in morality that freedom is the capacity to give oneself their own ends (GMM, AK 4:452; MM, 6:380). Added together, we can begin to see how both accounts complement each other well since, according to Kant, being ethical means choosing to act morally for the sake of being moral; or in other words choosing moral behavior as our end regardless of the consequences. This choice of making morality our end is only meaningful if nature itself does not necessitate us to do so like robots. Bringing these two different uses of the concept freedom together shows a commonality between necessitation and action, and between action and the setting of our own ends. Abstracting from Kant’s use of the word freedom in both its metaphysical and ethical context, I wish to suggest that the most likely interpretation of what freedom means in the freedom axiom is the capacity to not have our ends necessitated for us by others. This extracts the importance of freedom in its ethical context as being tied to the setting of ends and from the importance of freedom in its metaphysical context which focuses on being free from necessitation. Of course, for the freedom axiom, Kant is concerned with our political freedom, which deals with our relations with others. So this freedom in its connection between necessitation and end setting should focus upon how others necessitate ends.
A major presupposition to Kant’s freedom axiom is the capacity for individuals to act in a way that is incompatible with the freedom of others, or that violates the freedom of others. For if the capacity to violate another’s freedom did not exist, the axiom would be meaningless. This presupposition though, is problematic under our interpretation of the freedom axiom once we analyze it a little further. For Kant, an end by its very nature is the internal creation of the human mind and only becomes the end of any single person if and only if that person adopts the end for them-self (MM, 6:381). For one to choose the end of another against their will is impossible because at no point does this person actually make it their end. Instead, the coercer only uses the one being coerced as a means to their ends without ever making something the end of the one being coerced. Without the invention of a device which can mind control others, our ends safely remain our own at all times, out of the reach of others to set them for use. This becomes very problematic when we consider our understanding of freedom in the freedom axiom, for since Kant suggests it is tautologically true that we always choose our own ends for ourselves, then how can others ever violate our freedom? For if it is impossible to violate our freedom, then isn’t Kant’s freedom axiom meaningless? If this interpretation of Kant’s political freedom were to be taken seriously, then Kant’s freedom axiom is quite meaningless and the entirety of his political philosophy an impolite waste of time. Instead, we must include in Kant’s account some connection between our ends and the actual fulfillment of these ends. To do so, Kant argues that an intimate connection exists between the ends we set for ourselves and the means available for us to achieve those ends. While others may not be able to directly control the ends we set for ourselves, in many cases they certainly have the capacity to control the means necessary for the fulfillment of these ends. The importance of considering both the means and ends of action for Kant can be found in multiple places within his works. Perhaps most famously is Kant’s argument that an ought always implies a can do (Critique of Pure Reason, A548/B576). Here we see that moral obligations, an end onto itself, only exist and are enforceable upon people if the means necessary to fulfill the obligatory ends are available. No one can ever set as an obligatory moral end for another human being that they become a duckbill platypus or stand on the sun since it is beyond the available means of any human being to do these things. Without considering the means available, the importance of ends cannot be enforced. This intimate connections between means and ends does not only extend to moral considerations, but to all ends. Elsewhere Kant tells us that “every person may seek happiness in a way that seems best to him” (Theory and Practice, 290). Happiness, for Kant ,is not an ultimate moral obligation but is nonetheless an end human beings are wired to strive for. But here Kant does not say that every person has a right to make happiness their end, but to seek it in a way that seems best to him. Or in other words, with the means they deem most appropriate. Once we understand the intimate connection between means and ends for Kant, we can begin to coherently understand the different ways that Kant operationalizes his use of the word freedom and formulate a lucid definition of what Kant means by political freedom. Our freedom is violated when another causally influences my means to the point that it necessitates my ends in a way contrary to how I myself have determined my ends to be. Here, the word necessitate is taken to mean that it has made the attainment of my ends impossible. The reasoning for this comes again from Kant’s metaphysical account of freedom in which nature is still able to influence our ends through inclination, but it does not necessitate them. Similarly here, others can influence our ends by causally influencing our means, but once their causal influence completely closes off the possibility of attaining our ends, they have violated our freedom according to the freedom axiom.

Developing an accurate understanding of what Kant means by the freedom axiom, and therefore the fundamental grounding for his political philosophy, brings us closer to tying Kant to the social contract tradition if we can then connect freedom to consent. By connecting the freedom axiom to consent, I wish to suggest that two important conclusions can be made. First, since Kant argues that individuals enter a civil union under the state in order to protect their freedom and fulfill the freedom axiom (MM, 6:308), this suggests that the state exists to protect everyone’s freedom and therefore is legitimized by consent via the freedom axiom. Secondly, by investigating the nature of this consent, we can negate a Kantian interpretation that emphasizes hypothetical consent over explicit and implicit consent. Because Kant’s political philosophy is grounded on the freedom axiom, we know that human beings must act to avoid necessitating the ends of others. To fail to do so is to act in a way contrary to right, which gives others moral permission to act coercively against them. This emphasizes human ends as the central focus of Kantian political philosophy. It also sets definitive standards for what it means to violate someone’s freedom by grounding it in necessitation or impossibility. This provides an important demarcation to work with, since Kant argues we cannot help but to constantly influence each other at all times. Now as we have considered previously, scholars like John Rawls and Jeffrie Murphy have suggested that what these ends are can be rationally known and used as the guideline for constructing hypothetical consent based on what rational beings would consent to in relation to their ends. Presupposed in this discussion of hypothetical consent is a basis for dividing human ends into two different types of ends, one which corresponds with the momentary intentional end of any single person and the other corresponding to the end each individual would or ought to have. For even if all do disagree with a law passed by the state, Kant suggests that so long as they could “possibly” consent to the law, it is legitimate within the context of the freedom axiom (Theory and Practice, 297). This would mean that individual ends, which might be different from their the hypothetical ends as a rational being, are not the focus of the freedom axiom. Instead, their hypothetical ends take prominence and coercion becomes justified in forcing others to act in accord with these hypothetical ends when any sort of action might make the attainment of these hypothetical ends impossible. This interpretation suffers though, from some very serious deficiencies within the larger context of Kant’s work. These deficiencies become far more prominent once we attempt to better understand what these hypothetical ends might be. The first logical interpretation of what the hypothetical ends of a rational being might be would appear to be the categorical imperative. There would be two ways to further develop this line of thinking, both equally problematic. The first would be to argue that a rational beings hypothetical end is that which accords with the categorical imperative of right, or that which could be universally compatible with the freedom of all others. This would be a circular argument though, as it involves using the concept of freedom in order to define our hypothetical ends in order to argue what Kant means by freedom.
The second interpretation would be to declare that the hypothetical ends of a rational being are the ethical ends laid out in the Doctrine of Virtue. The dilemma with this is that we are working within the context of the Doctrine of Right which lays out the rules by which we can coerce others. If we are justified in coercing others whenever their ends were incompatible with the Doctrine of Virtue, then we are simply justified in coercing others to act ethical. But as has been already discussed, Kant argues no one can be forced into acting ethical; this must be a choice. Another type of end that might be compatible with the ends of a rational being is found in Kant’s essay, An Idea for a Universal History with a Cosmopolitan Intent. Here Kant argues that “Individual men and even entire peoples give little thought to the fact that while each according to his own ways pursues his own end-often at cross purposes with each other- they unconsciously proceed toward an unknown natural end” (18). This appears promising since it points towards an end which is unique from the momentary intentional ends of individuals. Kant suggests further along in the essay that this natural end by which we all unintentionally move is “the highest attainable development of mankind’s capacities… in the species, not in the individuals” (Universal History, 22). To leave the thought here though, would be to incorrectly interpret Kant, for we see elsewhere that Kant also states that the natural end of man is their own happiness (Theory and Practice, 63). To make these two different thoughts compatible, Kant argues that it is an inherent aspect of nature that it forces mankind to provide everything for themselves (Universal History, 19). Because of this, in order to obtain individual ends and move towards obtaining happiness, mankind must develop their capacities to work with the little nature has given them to obtain the ends individuals set for themselves. So although the development of our capacities is a natural end, it is only an end that implicitly acts as a definitive means towards helping mankind obtain their true natural end of happiness. If happiness is the natural end of individuals, then the freedom axiom must act to restrict us from necessitating the means of others in a way that is incompatible with their ends of obtaining happiness. Therefore, if Kant truly does suggests that only hypothetical consent is necessary for the state, then this hypothetical consent must be happiness focused. The problem with suggesting that Kant’s political philosophy is based upon hypothetical consent focused on happiness becomes clear with further scrutiny upon happiness and its epistemic problems. Writing in a post-Humean era, Kant argues that what makes one happy is an empirical concern, understood through an experiential method of trial and error. But like everything else that is intrinsically empirical for Kant, there is little certainty to it. As Kant argues, for the man seeking happiness, “does he will riches, how much anxiety, envy, and snares might he not thereby draw upon his shoulders?…Would he have a long life? Who guarantees to him that it would not be a long misery?” (GMM, 36). In order to completely know what makes one happy requires omniscience. This does not mean we should abandon the pursuit of happiness but only that there is a difficulty that exists in obtaining it through the messy process of inductive experience. But if happiness is a matter of experience, then it suggests that only those who are uniquely situated to experience these experiences will know what makes them happy and as a result, know which ends to set up for themselves. Kant appears to be uncharacteristically clear on this point stating that “men do have different thoughts about it [happiness] and each places it where he wants, and hence their wills cannot be brought under any common principle” (Theory and Practice, 290). This is why Kant calls that government which makes the happiness of its subjects its primary focus “the worse despotism we can think of” (Theory and Practice, 291). Our happiness, and the ends we set up for ourselves to obtain it cannot be known or determined by others. It is uniquely ours in that we are both best situated to come to know it and that it is not necessarily in conformity to how all others understand their own happiness. It appears we can safely remove both the categorical imperative and happiness as the guide for hypothetical ends. This removes both those actions which are ethical and those which are our natural ends. Any further investigation into hypothetical ends would probably be fruitless, for little else can be found in Kant’s own writings or in the secondary literature to suggest that any other type of end exists in Kantian thought which can act as a guide for hypothetical consent. No matter which way we turn to discover what the rational ends of individuals are for hypothetical consent, we are left with only those ends which are, or must be, in-deterministically decided upon by the individual. Any interpretation of Kant that emphasizes hypothetical consent now becomes naturally suspect; for the epistemic constraints put upon knowing hypothetical consent are probably too large to overcome. But if hypothetical consent isn’t the guiding force behind legitimate state action, then perhaps we are free to return to implied and explicit consent as the grounding force behind Kant’s thought. This has major implications because both implied and explicit consent are drastically different from hypothetical consent; the former two are purposefully and knowingly expressed by those engaging in consent by their actions, while the latter does not require any intentionality to demonstrate consent. Far from bringing skepticism between the link in Kant’s political philosophy to consent, the epistemic difficulties in Kant’s work does quite the opposite. Still under the absolute authority of the freedom axiom, Kant only allows those actions which do not necessitate the ends of others. But since the ends of others cannot be easily accessed, we need a mechanism that assists us. This mechanism appears to be consent, for consent has the capacity to act as a signal of sorts to others that the actions they are engaging in do not violate one’s freedom. Kant suggests that this consent can be either explicit, through means such as verbal or written consent, or implicit. Although not limited to this, implicit consent makes an appearance in Kant’s thought through what he calls the right of “innate equality” (MM, 6:238). The right of innate equality suggests that one can only bind up another to the same extent that they themselves allow others to bind them. Simply put, this is the golden rule where implicit in how you treat others is a form of consent on how others can treat you. This form of consent, although implicit, acts as a signal that all actions directed towards others can be equally directed back at them with their implicit consent.

Consent is an integral part of the freedom axiom within Kant’s political philosophy. Without it, we lack the epistemic capacity to act in congruence with the doctrine of right and are subject to legitimate coercion within Kant’s account of morality. Admittedly, this line of reasoning includes a theoretical leap between the epistemic constraints put upon fulfilling the freedom axiom and the role consent has in overcoming it. Such reasoning is never explicitly stated by Kant himself. Nonetheless, I do wish to suggest that not only does it flow quite well out of our investigation of the freedom axiom, but adopting the importance of consent in this way helps to make sense out of a lot of puzzling passages within Kant’s work. The role of private property serves well to emphasize the importance of consent for Kant and how it fits in with his thinking. A distinction gets made between internal property, which consists of our persons and the things physically connected with our persons, and external property, which consists of things further removed from our physical selves (MM, 6:254). Not much of a problem exists for internal property, but the same cannot be said for external property. Kant argues that external property is necessary because the freedom axiom appears to make its existence a crucial part of fulfilling the freedom axiom. He suggests that if we could not come to rightfully possess the things that are within our power to possess, then the freedom axiom would be depriving us of the ends we set for ourselves and therefore violating our freedom (MM, 6:251). Of course, this would mean that the freedom axiom comes into contradiction with itself and violates Kant’s universalizability criterion and can no longer be an aspect of his moral system. Although, as a matter of practical reason, the freedom axiom makes the ownership of external property necessary, it also simultaneously frustrates our efforts to actually obtain it in a rightful manner. Much in the same way suggested by Rousseau, Kant argues that what constitutes true property ownership are the obligations it puts upon all others to refrain from using the objects of our ownership in a way we do not agree with (MM, 6:247). When I own a piece of land, in reality what I have done is put a positive obligation upon everyone else to accept and act in accordance with my monopoly control over the piece of land. But unlike Locke, who would ground the legitimacy of this obligation upon others in a natural right to homestead, Kant again grounds his political philosophy in the freedom axiom, arguing that freedom is the only natural right mankind has (MM 6:238). Without further natural rights to ground external property acquisitions, the obligations put upon others in acquiring property is problematic since “a unilateral will cannot serve as a coercive law for everyone with regard to possession that is external and therefore contingent, since that would infringe upon freedom in accordance with a universal law” (MM, 6:256). In other words, putting obligations upon others to refrain from using a piece of land that I call my own may necessitate their ends (perhaps they wanted the piece of land I claim as mine) and therefore violates the freedom axiom. In order to get around this, Kant suggests all must consent to each others external property thereby signaling that their ends are not being necessitated. External private property only becomes justified within the freedom axiom when all consent to it. Some scholars like Baynes, arguing against the interpretation of Kant as a social contract thinker, have focused upon the complications in Kant’s thoughts on private property and have suggested that private property, and perhaps even his entire political philosophy, is not so much based on consent, but instead upon what Kant calls permissive laws (Baynes, 1989). The permissive law is used by Kant in the context of private property to argue that individuals are rightful in forcefully protecting their external property from others (before consent is given by everyone regarding that property) in anticipation of a future agreement between all parties that would consensually agree to that property holding (MM 6:247). Baynes argues that what a permissive law truly is, is the temporary suspension of a general prohibition in anticipation of a more just state (p. 437). Following this line of reasoning further, in order to get to a Kantian civil union, where everyone’s freedom is best protected, there must be a temporary suspension of certain aspects of the freedom axiom until the civil union is established, at which point they can be reinstated. In this interpretation, no need exists for consent between parties in their day-to-day actions or in the establishment of the state, since the consent requirement within the freedom axiom can be suspended through permissive laws until the state is established and freedom truly protected in accordance with right. While this interpretation of Kant has its merits, something remains off-kilter. What this interpretation of the permissive laws boils down to can be summarized by the maxim that the ends justify the means. For although temporarily suspending the moral law (the freedom axiom and its emphasis upon consent) seems by default immoral, Baynes argues that so long as it leads to a more moral state, the permissive law would say the action is justified. This maxim though, is quite blatantly un-Kantian in its reliance upon the consequences of any action to justify the action. But as we have discussed earlier, Kant’s political philosophy is grounded in the freedom axiom and right, which securely sits within Kant’s account of morality. If the permissive law were to be interpreted in the manner suggested by Baynes, then Kant’s political philosophy sits in contradiction with his moral philosophy, something non-realistic to a generous interpretation of Kant’s thought in the context of his dislike for internal contradictions. But if this is not what the permissive law means, then what does it mean and how do we handle it? For Kant, the most rightful state is the one where none can act without the consent of everyone else. This is the most rightful state, when all are under the same civil constitution where each individual gives only those laws that they would give themselves i.e. consent to. Kant suggests that it is this institutional setup which is the best way to fulfill the freedom axiom. A civil constitution under which all are bound and obligated is so much in congruence with right that individuals have the moral capacity to bring others into this civil union by coercion, if necessary (MM, 6:256). This does not mean that Kant thinks a civil union comes about through a violation of consent, because this civil condition is completely compatible with everyone’s right to freedom and consent. When an individual obligates that all others come into a civil union with them, we are to assume no one’s freedom is ever violated since only those laws come about in a civil union that everyone could give to themselves. From what is given, the permissive law allows action that are compatible with the political state when it has achieved its highest status within the moral law. It allows individuals to act as though the civil state, which these individuals have a right to bring all others under, already exists with all parties under a consensual agreement about the property claim. It exists as a sort of concession to realism, that although we may have a right to bring all others into a civil union, we may not have the physical capacity to do so. The permissive law acts as a mechanism by which individuals can act rightly within the freedom axiom, even if they do not have the influential capacity (perhaps physical capacity) to actually bring everyone else into the civil condition with them, if they indeed refused to do so. But this is uniquely different from the interpretation of the permissive law given by Baynes, for never is the freedom axiom or any components within it “suspended.” Consent is still an integral part of the process by which property is justified and the civil state established. The importance of consent in Kant’s thought is perhaps most strongly found in an often ignored passage of Kant under the context of establishing a civil state. Although we see littered throughout Kant’s political writings that the civil state is a contract between all that we ought to have (TP, 289), we see that this ought does not seem to override the importance of consent. For Kant argues that “Given the intention to be and to remain in this state of externally lawless freedom, human beings do one another no wrong at all when they feud among themselves; for what holds for one holds also in turn for the other, as if by mutual consent (MM, 6:307, emphasis mine). If all parties are to purposefully refrain from entering the civil union with one another, they do so by consent and seemingly remain in a state that is rightful within the freedom axiom because of its grounding in consent. Now Kant does suggest that there are higher levels of right grounded on the security one has in their freedom and in holding all others to their agreement by entering the civil union, but a state of consensual lawlessness nevertheless remains a rightful state.

Freedom and the Social Contract Link to this heading

I have set out to argue that consent is an integral part of Kant’s political philosophy by showing its intimate connection to the freedom axiom. And as a consequence of bringing out the importance of consent within Kant’s thought, I have attempted to align Kant’s thinking squarely within the social contract tradition. What is left to do is to tie up the loose ends between what has been laid out in the freedom axiom and the criticisms discussed at the beginning of this paper that depict Kant as being far removed from the social contract tradition. How do we make Kant’s macro-political suggestions for the state and its apparent lack of consent compatible with the freedom axiom and its heavy reliance upon consent? Our first concern should focus on the problem that Kant clearly states no historical example of an agreement between all parties (or any parties) must exist for the state to be legitimate. This, in a very serious way, appears to be the most hefty criticism laid out against Kant as a social contract thinker in the tradition of Hobbes, Locke, and Rousseau. For if consent should be found anywhere, one might expect it to be found at the origin of the social contract. But once we consider this from the more substantive context of the freedom axiom, this critique is far less problematic. It must be remembered that even in a state of nature with two or more individuals, it only takes one individual to bring all the rest together with them into a civil state. This binding of all by one or more individuals does not require their consent, but is nonetheless in complete accord with their consent since this civil state only authorizes those state actions which each individual could give to themselves. So if this applies in Kant’s state of nature, we should expect it to apply equally to our real world examples by which no consent actually need be given for the civil condition under a state to be justified for Kant. This does not mean the state is by default a legitimate entity in compliance with the freedom axiom, but only that the lack of a historical contract of consent does not necessarily negate the justificatory existence of the state since an historical account of consent is not technically needed to be compatible with the consent of all. This brings up another important critique of Kant’s social contract credentials which is that even though we can be brought into a civil condition with others that theoretically is compatible with our consent, we have no right to remove our consent and resist the state when the state violates its purpose. But while Kant’s position on revolution is famously unforgiving, it may not necessarily be out of line with the social contract theory. To understand this, we must understand that what makes up the fundamental aspect of the civil union and social contract for Kant is a incentive for the security of one’s freedom. What individuals do when entering the civil condition with others is to bind themselves to a third party that enforces what all parties consent to. This third party acts to enforce the social contract, ensuring all parties are held to their agreement as a measure of security for all other parties that are under it. It acts as a mechanism by which what belongs to each is secured (MM, 6:256). Kant argues that although man is indeed a rational being that understands the moral law, “his selfish animal propensities induce him to exempt himself from them wherever he can” (Universal History, 23). Human beings regularly make themselves the exception to the rule, and because of this, even under some sort of social compact, no one remains secure in their agreements alone. This is why we see Kant argue that societies of peoples can be compatible with rights but never achieve a true state of rightfulness until it institutes “distributed justice,” otherwise understood as the institution of a third party to enforce the rules consented to by all other parties (MM, 6:306). This third party becomes the executive, entrusted to enforce the consensual rules decided on by the general will, ideally exercised through a republican legislature, although not necessarily. (MM, 6:317). Together, the sovereign and the executive make up the state.
But once a third party is installed to enforce the social contract, all become bound to obey it. For Kant, in order to ensure all parties are held to the same rules under the social contract and that no one makes themselves an exception to these rules, a right to revolution or disobedience cannot be allowed. If disobedience were allowed, this would mean that those parties negating state action would have to hold a legitimately higher decision making power than the state itself. This would return us to a situation by which it is possible for some to make themselves an exception to the rules that make up the social contract. And by giving anyone the chance to be an exception to the rules of the social contract, they thereby have the opportunity to act in ways contrary to the consent of the rest and thereby violate the freedom of all others. In this situation, no one becomes bound to the civil condition equally with all others, but instead unequally by their capacity to resist the state and their intentions to make themselves an exception to the rule. The refusal to give individuals the right to remove their consent from the state by means of disobedience is not the result of Kant not subscribing to a social contract theory, it is instead because he holds so tightly to the importance of the social contract and its need to have the civil constitution securely enforced by a third party. Furthermore, we see here how and why Kant gets interpreted as grounding his politics in hypothetical consent. We must recall that the epistemic constraints put upon all requires that the freedom axiom actually include an individual’s real consent (either explicit or implicit) and not just hypothetical consent. But this consideration must be bounded by a different consideration also based on epistemic constraints, as well as man’s corrupt and selfish nature, which requires the state to slightly abstract from what they are being told. If people truly do make themselves an exception to the rule, then a ruling third party could not necessarily act upon one’s stated intentions in a dispute over a contract, since these intentions may be motivated by their corrupt animal nature instead of how they should act under the social contract they agreed to. For example, two individuals might agree to a contract and within a year one party may dispute with the other over the meaning of the contract. Here Kant would suggest that a third party deciding on the dispute cannot simply go by the words of both parties, since by the very nature of the disagreement they are disparate, but must instead abstract on what can be known about the intentionality of the original agreement to come to a decision. In his discussion of contracts, Kant speaks of the “presumptions” that must necessarily be made by a third party on the original intent of the contract since it is impossible to truly know what the intentions of both parties were at the time of the agreement (MM, 6:297). These presumptions are not based on what all parties would hypothetically agree to now, but instead, use what information is available now to decide what they would have agreed to at the time of the agreement. Similarly here, we should look to interpret Kant as suggesting that the government take a similar approach in its actions. Human nature will produce citizens who want to act against the consented purposes of the social contract for their own personal advantage; it is up to the state to work around these deficiencies of human nature and act according to the freedom axiom as best as possible by considering the presumptions of the civil contract. But the suggestion to work cautiously around the explicit expressions of its subjects does not mean explicit and implicit consent loses its importance for Kant. The very fact that citizens have a right to speak freely against state actions for the purpose of redirecting state action seems to presuppose that the state cannot simply rely upon hypothetical constructions of what its citizens want, but must keep in consideration what its citizens actually say that they want and as a result, would consent to. But even with those first two critiques answered, it still appears that removing our consent from the state never seems to be an option for us. Earlier, it was contended that the provision of removing consent by moving to a different civil union was the presentation of a false dichotomy because it ignored a third option of living outside all civil unions. Because it did not allow for this choice of a third option, it limited individuals to a false dichotomy that is inconsistent with their consent. The issue with this critique is that it fails to consider consent adequately, for a false dichotomy only exists if another option is legitimate. In our considered hypothetical of the criminal providing the ultimatum to his victims of their money or their life, the choice of neither exists as a legitimate third option which means forcing the victim into one of the original two options does not necessarily accord with their consent. But with Kant, residing outside of any civil union does not appear to be a legitimate option for individuals if anyone else wants them to reside within a civil union with them. Because this is not a legitimate option, it is possible to still say individuals are being constrained to choices that are within their capacity to give consent.

Conclusion Link to this heading 

Many of Kant’s political suggestions have been found to be anywhere from inadequate to outright appalling. Like many of his criticisms for being too rigid and formalistic in his deontological thinking, Kant’s political philosophy also suffers from the critique of being too rigid, with far too perplexing of a justification for the rigidity. To what degree such criticisms are accurate or not is not for me to consider here. What has been considered though is if Kant can squarely be found within the same social contract theory as Hobbes, Locke, and Rousseau; and to this point I hope to have demonstrated in the affirmative. Because Kant’s political philosophy rests upon the freedom axiom and because this freedom axiom is intimately tied with consent, we are left with the conclusion that consent grounds Kant’s politics. 
Kant had both the advantage and disadvantage of writing in a post-Humean era, where the bar of justification for the social contract theory had been significantly raised. What Kant does to overcome these challenges deserves further scrutiny to further understand some of the possible nuances that might exist in the social contract theory. Hopefully, with the help of this paper, this is a project we are more justified to endeavor upon.

Sources Link to this heading

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