Kant, notes

Kant

1. Ripstein, Kant on Law and Justice

• Political philosophy applies moral principles to factual circumstances that make political institutions necessary
• Kant might be expected to apply the Categorical Imperative to questions of political legitimacy, state power, tax, punishment etc.

• Alternatively Kant could be expected to stand back from such questions and recommend indifference or political neutrality
• Kant is often taken to understand morality exclusively in terms of personal principles upon which a person acts
•  Such expectations lead to disappointment;

• According to Brown, Kant would only need to apply the categorical imperative to test the moral status of the rules in a body of a positive law, but Kant never advances his argument that far; but instead Kant introduces a number of different principles, many of which have no discernible logical relationship to the categorical imperative and no clear application to positive law
• In conclusion, Kant denies political institutions being a response to unfortunate circumstances, voiced by Locke and other philosophers
• Kant insists on a sharp division of metaphysics and anthropology of morals and believes law and justice are morally required regardless of the human nature
• Kant denies that justice is concerned with fair distribution

• This can be contrasted with the broadly Kantian poitical philosophy developed by Rawls in theory of justice; Rawls describes his approach as ‘overcoming the dualisms’ inherent in kant’s views and recasting them in the canons of reasonable empiricism

• Kant’s critics often  point out his fundamentalist approach answering questions a priori rather than taking an empirical approach

• Author agrees methodological factors shape Kant’s presentation, his grounds for rejecting anthropological starting points rest on the simple but compelling normative idea that         as a matter of right each person is entitled to be their own master in the contrastive sense of not being subordinated to choices of others
• This leads Kant to reject empirical and anthropological factors, benefits and burdens in particular

• Often an ‘applied ethics’ reading of Kant leads to misunderstandings
• Applied ethics approach:

• Kant’s mode of argumentation:

• He develops many examples, but refuses to accept that examples can replace arguments, or that philosophy is charged primarily with accounting for examples. He claims all examples require a metaphysics- articulation of the limits of each person’s claims to be their own master
• Kant draws from the universal principle of right
• He understands ordinary moral thought as the exercise of practical reason

• The Normative Status of rules and institutions:

• This supposes that law and state are instruments for approximating underlying factors that really matter
• Bentham’s utilitarianism provides a stark example of this idea- all institutions and morality are aimed at achieving the greatest happiness of the greatest number

• If Institutions are tools for indirect pursuit of something that can be specified without reference to them, Kant’s focus on coercion seems misplaced

• But Kant rejects that suggestion
• These utilitarian or Lockean approaches are what Kant would characterize as ‘antinomy’ as they presuppose that morality, or the way people should behave in certain situations is predeterminate, though perhaps unachievable and unknown

• For Kant, institutions and the authorization to coerce are not merely casual conditions likely to bring about the realization of freedom, but instead the consistent exercise of the right to freedom by a plurality which cannot be conceived apart from a public legal order

• A ‘noninstrumental’ conception of the right to freedom

• Kant’s view is that moral concepts are abstract because they are normative- they require judgement to apply them in particular circumstances, which is why Kant does not provide detailed formulae for the resolution of private disputes

• Instead, he shows how those issued must be framed and why public institutions are necessary to resolve them

• Another version of the applied ethics reading looks into Kant’s moral philosophy and the Categorical Imperative

• Cohen and Rawls have developed an idea that Kantians find autonomous life to be the best life and political institutions must be designed to promote autonomy
• That pseudo Kantian places Kant squarely in the instrumentalist camp and it is not Kant’s view

• Why Kant does not ‘apply’ the Categorical Imperative:

• Kant draws a series of distinctions between right and ethics

• Ethical conduct depends on the maxim on which an action is done
• Rightful conduct depends on the outer form of interaction between persons

• The Universal principle of right states that an action is right if it can coexist with everyone’s freedom in accordance with universal law or if  on its maxim the freedom of choice of each can coexist with everyone’s freedom

• This innate right creates private rights governing interactions of free persons and public rights which require a creation of a constitutional state
• The idea of independence carries the justificatory burden of the entire argument, from the prohibiton of personal injury, contract and property law and constitutional separation of powers
• For Kant, these don’t just enhance the prospects of independence, but they provide the only possible way in which a plurality of persons can interact on terms of equal freedom

• Core idea of independence is the articulation of the difference between persons and things

• A person is capable of choosing and pursuing their own purposes
• Kant follows Aristotle in distinguishing choice from mere wish, as to have a choice a person needs to have means to achieve that purpose
• A person’s independence can be interfered with by limiting their means or drawing them into purposes they haven’t chosen
• Critics often claim independence cannot be a political concept since putting any limitations on people’s rights limits their freedom automatically, but this fails to engage with Kant’s conception of independence, where limits on independence generate a set of restrictions by their nature applicable to all

• Kant develops the idea of independence in three stages:

• Independence in the simplest form as a constraint on interactions between persons, ‘the innate right of humanity’
• Innate right is incomplete, and it requires an extension to use things, ie the private right

• Without private rights purposes could be achieved with other means, such as via usufruct, a common pool of objects
• For Kant, freedom means you should have necessary things fully at your disposal
• All persons are symmetrically situated with respect to innate right, but private rights allow asymmetry

• Private rights include rights of contract (between people), property (things) and status (between persons, but akin property rights, such as parents-children)
• Kant rejects however the ‘guardian spirit’ theory of property popularized by Locke, noting that property is de facto a relation between persons, not persons and things
• Kant also believes that system of private right without a public authority is morally incoherent
• Independence is preserved by the separation of powers and three different branches of power
• Third one is public right
• To a modern reader, Kant’s list of public powers looks like a grab bag of 18th century examples; supreme proprietor of the land, rights to distribute offices, separate tax duties etc

• Kant supports the idea of original contract and believes it precludes the idea of revolution- the revolutionary claims to be speaking on behalf of ‘the people’, yet the idea that there are ‘the people’ can only exist in a rightful condition

• This understanding does not lead to a conclusion that some of the worst regimes must not be resisted, as they don’t include a rightful condition as they are built on genocide or slavery etc

• The Doctrine of Right concludes with the claim that universal and lasting peace is not part but the entire final end of the doctrine of right
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1. Sangiovanni, Can the Innate Right to Freedom alone ground a system of public and private rights?

• The state regulates how social power is exercised, often introducing limits and restrictions

•  Which human interactions should be forbidden and to what extent should interactions be limited?

• Ripstein, in defence of Kant, draws a distinction between actions that restrict others wills to our choices which would be legitimate for the state to forbid and actions that affect the context in which others act, which shouldn’t be forbidden
• In this paper, I query that distinction, and argue that the idea of independence cannot bear, on its own, the weight it is expected to bear within the Kantian framework. I first claim that the account of subjection we find in Force and Freedom presupposes rather than explains why the actions it singles out are enforceably wrong. I then go on to show that, on a revised understanding of subjection that deals with this problem, the Ripstein–Kant view still would not be able to generate a determinate and plausible way of distinguishing basic cases of subjection from basic cases of mere influence. My conclusion will be that, in trying to distinguish such cases, the Kant-Ripstein view must point to ideas other than independence or subjection.
• The whole Kantian idea of independence as the innate right to freedom from being constrained by other’s choices is overly ambitious, as it presupposes that all actions enforceably wrong are wrong only because they violate others’ independence; can a whole system of enforceable moral rights be grounded in one idea of independence?
• According to Ripstein, the distinction between actions affecting and subjecting others choices is ‘central to Kant’s argument’, but in reality these are often hard to distinguish
• Ripstein analyses the idea of subjection in terms of actions that usurp or destroy others’ powers, which is a highly moralistic concept and as such would spell disaster for a Kantian view
• we need to find a notion of subjection that explains why rather than presupposes that the actions it singles out are wrong. Given Ripstein’s nod to the republican tradition, and the similar emphasis on independence, a modified version of Pettit’s account of nondomination might seem to be just the ticket

• On that account, I subject you to my choices, if and only if, and because, I have the unhindered capacity to interfere with your choices on an arbitrary basis, and the mere presence or active exercise of the capacity raises the probability that you will behave in ways you otherwise would not have behaved.

• Ripstain needs to drop the ‘arbitrariness’ condition to make his argument valid
• it might be objected that the way the author has set up the discussion of the cases requires a rejection of the crucial Kantian idea that rights are relational (see Ripstein 2009: 21f). For the Kantian, we do not ask what interests are sufficiently strong or weighty enough to warrant holding another under a duty to promote that interest.
• A summary of the argument may be useful. We began this section by wondering how we are to draw the crucial distinction between subjecting and affecting someone’s choices. We then considered whether Ripstein’s official view, which glossed the notion of subjection in terms of usurping and destroying anothers’ capacity to set and pursue ends, could aid us in drawing the distinc- tion. I then argued that it could not: usurping means illegitimately taking control of another’s powers, or taking control of powers that are rightfully another’s. The idea of usurping someone’s powers, therefore, cannot be used to explain what actions count as violating someone’s enforceable moral rights (within a system of such rights) because it presupposes them. To remedy this defect, we recon- structed the Kantian conception of subjection in terms of a modified republican account of nondomination. According to this conception, I subject your choices if and only if, and because, either (a) I have the unhindered capacity to unilaterally interfere with your choices, and the mere presence or active exercise of that capacity raises the probability that you will behave in ways you otherwise would not have behaved, or (b) I have the unhindered capacity to destroy your ability to set ends.

1. Kirskgaard, Taking the Law into Our Own Hands: Kant on the Right to Revolution

• Kant's attitudes towards revolution, both in his work and in his life, are notoriously paradoxical. In many of his published works, revolution is roundly condemned. In the Metaphysical Principles of Justice, Kant argues that “there is no right of sedition, much less a right of revolution” and concludes that “It is the people's duty to endure even the most intolerable abuse of supreme authority”
• In ‘On the Common Saying’ Kant calls revolution ‘the most punishable crime’, even under tyrannical power

• Yet if a revolution succeeds, Kant find the new government legitimate
•  In the Metaphysical Principles of Justice he writes: if a revolution has succeeded and a new constitution has been established, the illegitimacy of its beginning and of its success cannot free the subjects from being bound to accept the new order of things as good citizens
• Kant was also a supporter of the French and American revolutions, he was even nicknamed ‘the old jacobin’

• Kant's political philosophy is a social contract theory, in obvious ways in the tradition of Locke. But the differences are important. In Locke's view, individuals have rights in the state of nature, and may enforce those rights. But when each person determines and enforces his own rights the result is social disorder. Since this disorder is contrary to our interests, people join together into a political state, transferring our executive authority to a government.
• Kant also believes that there is a sense in which we have rights in the state of nature. We have a natural right to our freedom (MPJ 6:237), and, Kant thinks, the Universal Principle of Justice allows us to claim rights in land and, more generally, in external objects, in property. Kant argues that it would be inconsistent with freedom to deny the possibility of property rights, on the grounds that unless we can claim rights to objects, those objects cannot be used is would be a restriction on freedom not based in freedom itself, which we should therefore reject, and this leads us to postulate that objects may be owned. But unlike Locke, Kant argues that in the state of nature these rights are only “provisional”

• In making his argument, Kant evoke’s Rosseau’s ‘general will’

• This means that Kant's conception is different from Locke's in important ways. According to Kant a juridical condition—a condition in which human rights are upheld and enforced—can only exist in political society. And therefore existence in political society is not merely, as Locke had it, in our interest. It is a duty of justice to live in political society.
• For Kant, If the sovereign “himself” carries out all three functions of government directly, the government is despotic; if, however, the sovereign adopts a constitution establishing legal and institutional forms through which it performs the three functions of government separately, then the government is republican.

• A republican constitution is the only legitimate constitution

• Kant believes we should take it for granted that the current government is a legitimate representative of the general will originated in social contracts
• Kant seems to believe that no government in practice is ideal
• Justice is upheld by the separation of power, but

• There is a difference between procedural and substantive judgement- someone might be voted in as president and it’s procedurally just but he’s not the best person for the job

• To arrive at Kant's position you need only see that the individual subject, when considered only as a private individual with his own private ideas about what constitutes good government, is in exactly the same position as an outsider towards his own government he must acknowledge its procedures, as they stand, to be the expression of the general will, if he is to see his country as having a general will and so a government at all. And according to Kant he must see himself as living under a government because, as we saw earlier, it is our duty to live in political society
• For Kant, every government is the representation of the will of the people- hence no right to revolution        

• Hence ny revolution is against the general will and a return to state of nature

• Another consequence follows from Kant’s views about responsibility for actions and their consequences- one does do what the moral law demands, let the consequences be what they may- you are only respo sible for the consequences of your actions if you do something else than the moral law demands
• In the Lectures on Ethics, Kant puts the point more simply:

• If we do either more or less than is required of us we can be held accountable for the consequences, but not otherwise—not if we only do what is required, neither more nor less
• Revolutionaries are responsible for the death and disorder they cause about

• It is because justice is a virtue that there is an ethical duty, as well as a duty of justice, not to revolt. The just person respects the rights of humanity, and for this reason respects the government that enforces those rights, and the juridical condition that makes their enforcement possible. But it is by no means obvious that a person who makes the rights of humanity his end would never, under any circumstances, oppose the extant government. If this is correct, nothing in Kant's theory absolutely commits him to the view that a good person would never revolt. Nor, I believe, is this what he himself thought.
• Kant would probably not support systems such as apartheid or slavery, where lack of justice is dressed as lawfulness and a legal order

• Proof for this can be found in his belief that it is not the murder of a monarch that is the ultimate abomination, but his public execution- the revolutionaries in doing so don’t just ignore justice, but mock it

• universalization test cannot serve as a guide when we make it. The imperfections of the actual state of affairs are no excuse for revolution—if they were, revolution would always be in order. It is the perversion of justice, not merely its imperfection, which turns the virtue of justice against itself.
• For Williams, a concept iniminical to Kantism is moral luck- since the consequences are on you, you need to succeed with the revolution; ie revolution is justified only if you win 
• the fact is that Kant never discusses the question whether the ethical duty not to revolt is always in place – he is concerned only with the duty of justice and it is the punishibility of revolution he always emphasizes
• In “On the Old Question” Kant praises the enthusiasm of the spectators of the French Revolution, claim the prospects of success or failure are all on the revolutionary

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