Legal and political theorist Arthur Ripstein has produced an impressively thorough and detailed examination of Immanuel Kant's views regarding the nature and justification of the state and the justice of its more particular laws and institutions. To date, there have been relatively few book-length discussions focusing on Kant's legal and political theory, especially in English. So Ripstein's work is partly of interest as a contribution to this small body of scholarship. More significantly, the book is valuable for the distinctive interpretation it offers, principally of Kant's Rechtslehre and of its relationship to his practical philosophy more generally. Whether one is inclined to embrace or reject Ripstein's reading (and one might reasonably be inclined, at different points, to each), it is valuable in its own right and for the debates it surely will engender.
The volume includes an overview, a ten-chapter treatment of the central elements of Kant's legal and political theory, and an appendix addressing the controversial relationship among Kant's accounts of law and justice, his moral theory, and his Critical philosophy more generally. The central chapters address topics crucial to understanding Kant's political philosophy: the foundational account of freedom; the discussions of property, contract, and status relationships belonging to what Kant terms ‘private right’; the ‘three defects’ that necessarily characterize a state of nature and find remedy in a republican system of government; the characterizations of political institutions, police powers, wealth redistribution, equal opportunity, punishment, and obligation to obey that give shape to Kant's account of the just state. Throughout, Ripstein seeks to distinguish Kant's views from those of both historical and contemporary theorists and illustrates his argument through more contemporary legal examples.
Ripstein rightly begins his interpretative work by emphasizing how widely Kant's political theory has been misunderstood. As he characterizes them, misinterpretations range among readings suggesting that Kant's political theory is (or should be) derived from his moral theory, those understanding Kant as centrally concerned with fair distribution of benefits and burdens within a political society, and those suggesting that the ‘theory’ is merely a cluster of loosely connected (and sometimes contradictory) claims. For Ripstein, the key to better success is first an accurate understanding of political ‘independence’, of ‘what it is for each person to be his or her own master rather than the servant of another’ (p. 5). Any improved grasp of Kant must go hand in hand with an appreciation of the centrality of ‘independence’ to his political theory. Second, we must avoid the common view that political institutions are mere instruments, tools designed to further predetermined outcomes.
Ripstein bases his own understanding of independence on a reading of Kant's universal principle of right and of the related discussion of innate right. Interpreted through these enunciations of Kantian fundamentals, Ripstein claims, independence best is understood as a relational concept. A person is independent so long as no other person chooses what purposes she will pursue. Most fundamentally, this requires that I, and not some other person, control my own body.
So understood, only ‘use’ and ‘injury’ violate my independence. The first involves usurping another's powers in order to advance one's own purposes, for example through force or fraud or by similar means offering the other no opportunity to decline. The second occurs when one person destroys another's powers ‘as though they were [hers] to dispose of’ (p. 45). In Ripstein's view, once we grasp this conception of independence, all of the central elements of the political theory fall into place. Among these are Kant's accounts of justice in the realms of personal security, property, contract, and status relations, as well as regarding the division of powers among legislative, executive, and judicial authorities within the state.
Ripstein suggests that this is an attractive position, in part, because it seems to avoid some familiar difficulties. Especially, Kant need not answer a host of objections to the more familiar claim that justice demands equal liberty to achieve one's purposes. Differing in other respects, these voice the shared view that there is no objective way to determine which of two conflicting exercises of liberty deserves protection and to what extent. Since each such exercise potentially interferes with others’ similar actions, we must simply choose which to favour. Kant purportedly avoids these problems because he understands equal freedom not as equal division of a good, but as freedom to select one's own purposes rather than being compelled to advance those of others. This guaranteed, it is up to the agent to use her own means to pursue purposes she has independently endorsed.
Once we grasp Kant's commitment to freedom from domination, from having others make decisions for me (whether beneficial or harmful), we also can appreciate the relationship between freedom and coercion. Coercion is simply the restoration of my decision-making authority, with a creditor's right to demand a debtor's payment (not the right to punish non-payment) as its paradigm example. It thus is not a wrong to actual or potential rights violators that must be justified, for example, by promising benefits greater than the burdens it imposes.
Ripstein's interpretations of ‘private’ and ‘public’ right are built on this foundation. The claims that private right encompasses are ones whose justification requires no appeal to public institutions. These include rights against use and injury following from the innate right of humanity in my person, and rights in other matters I might employ in setting and pursuing ends. These last are the domain of acquired right, which differs from innate right in addressing what could, in principle, belong to someone other than myself, as my body and its capacities could not.
On Kant's view, says Ripstein, if it is possible for persons to employ matters beyond their own bodies to set and pursue ends, then only inconsistency with the freedom of others could limit that employment. Anything else would itself constrain freedom illegitimately. Thus property rights, contractual rights, and rights arising from status relationships (for example, marital, parental, or employment relations) must be available to all in principle and expand the realm of possible rights violations. In particular, they impose requirements not to deprive others of duly acquired property or of actions I have agreed to perform. They also prohibit me from using another's property in ways to which she has not consented and from using a relationship to advance private purposes. Only these limits are consistent with the formal demand to respect the equal claim of each to freedom as purposiveness. Importantly, on Ripstein's interpretation, the benefits acquired rights afford play no role in Kant's account of them. Anything else would require arbitrary judgements about the relative value of individual ends. Neither my desires nor even my needs can found any right to another's action or forbearance on this interpretation of Kant. Again, right demands only protection from injury or use, now of matters rightfully in my control.
For Kant, though, the demands of freedom as non-domination that necessitate our recognition of the possibility of acquired rights also preclude anyone from possessing such rights in the absence of a state. Thus we should understand private right, or right in the state of nature, to address those aspects of right whose character neither depends on the existence of a state constitution or legislation nor varies with them. Without institutions permitting public authorization and enforcement of acquisitions, as well as adjudication of particular cases by a publicly authorized arbiter, problems of unilateral action, assurance, and indeterminacy render claims to acquired rights unjustified. Absent these there is no way that one person's unilateral acquisition can obligate others, no assurance that respect for others’ acquired rights will be reciprocated, and no means of resolving disputes arising from indeterminacy regarding the existence and extent of acquired rights.
Kant's solution to these problems consists in a system of law-making, executing, and interpreting institutions that are given effect through officials who are authorized to act only for the purely public purpose of addressing the above defects. Besides powers to make, execute, and interpret laws for a citizenry, none of which a private individual can possess, Kant identifies additional powers peculiar to the state. These include the duty and authority to create public spaces (for example, public roads), the duty to support those citizens incapable of self-support, and the right to punish.
Given Ripstein's freedom-from-domination reading, this relatively robust account of state powers and responsibilities may surprise. A brief look at his interpretation of passages addressing poverty relief provides some clarification. One consequence of the state's defining role, says Ripstein, is that its institutions must ‘provide the background conditions in which no one will ever be a mendicant’ (p. 286). Neither prudence, beneficence, nor a commitment to equality of benefits and burdens plays any part in this argument, nor could they consistent with right as Ripstein interprets it. The poverty that is unjustifiable in Kant's state is not a lack of what one needs or desires. It is poverty that is cemented in place by institutions that define and enforce property rights and that renders the poor impotent to set or pursue their own ends absent others’ charity. Such reliance on charity is a paradigmatic instance of the citizen dependence that any just state must prevent.
Ripstein acknowledges that what is required if particular states are adequately to combat such poverty remains unspecified. It will depend on conditions varying with place and time and require appeal to democratic political debate. As Kant frames it, the question to be debated is what is required to provide for citizens’ ‘most necessary natural needs’? Ripstein is quick to add that redistribution is not thus automatically limited to securing what is essential for biological survival. Further candidates for public support aimed at preventing domination include, for example, education and universal healthcare.
Particularly impressive elements of Ripstein's work include his clear and careful discussion of the connection between acquired rights and individual freedom and his account of the ‘three defects’ any state must remedy. Even if one elsewhere parts company with Ripstein, these undeniably afford valuable insights into the particulars of Kant's argument and the coherence of its overall structure. This capacity to inform competing views is one mark of excellent interpretative work.
Of course, many interpretations and extensions of Kant's political philosophy do diverge quite dramatically from Ripstein's. And one weakness of his work is a failure to acknowledge that Kant's texts readily support divergent readings. Another is a sometime failure to mark shifts from interpretation of Kant's own texts to extensions of them. Together, these tendencies cause Ripstein to present Kant's texts as more fully consistent, less open to interpretation, and consequently as less rich than in fact they are. They also mask the fact that what Ripstein offers is less an interpretation of Kant than a variety of Kantianism.
Here I address only the former concern more fully, considering two examples. The first lies at the foundation of Kant's work and Ripstein's reading. Although the innate right of humanity may simply protect one person from another's direction, it is not obviously so limited. In particular, nothing in Kant's discussion rules out the more positive demand that each have meaningful access to matters essential in developing and exercising powers of choice in persons generally, that is to what often are termed primary or basic goods or fundamental interests. Contra Ripstein, such a reading need not depart from the kind of formal argument Kant intends. To say that each has a right to those matters prerequisite to independent setting and pursuit of ends is not to say what these matters will be in any particular society or to prefer some ends to others. Nor does it render laws and institutions mere tools to a predetermined end. Rather, these would serve both to identify protected goods/interests for the place and time in question and to foster and shape discussion regarding how properly to provide them in concert and to all.
Kant's more concrete discussions offer added support for this alternative view. Consider again, for example, the passages on poverty relief. For Ripstein, relief aims to prevent the subjugation that comes with dependence on others to fulfil elemental needs. Little in these passages supports this narrow reading though. Rather, Kant's chief argument in favour of relief via compulsory taxation is that the wealthy themselves ‘owe their existence to an act of submitting to [the state's] protection and care, which they need in order to live’. They thus have an obligation to the commonwealth ‘to contribute what is theirs to maintaining their fellow citizens’ (MM 6: 326).
Kant's point, it appears, is not that relief is necessary simply in order to avoid a condition of dependence on charity. Instead, the wealthy and the poor alike depend on the state to provide for their ‘most necessary natural needs’ through its ‘protection and care’. The state protects the wealthy in their active capacity to set and pursue ends via a legal system that enables citizens to own property and to enter contracts with assurance that these will be fairly interpreted and enforced where necessary. Where the fundamental needs essential to the development and exercise of such capacities go unmet through these institutions, whether due to accident, illness, or entrenched legal/social disadvantage, the state and its citizens must meet the obligation to supply them by other means.
Although Kant's language is not explicit, it invites us to understand the just Kantian state and its citizens as charged with more than insuring freedom-from-domination through measures designed to prevent injury or use. Neither here nor in the more fundamental discussion of innate right is Kant committed to such a narrow picture of political justice. Rather, the way is open for interpreters and contemporary followers who find in Kant a recognition that civic respect, richly conceived, demands active and multifaceted support for the development and pursuit of life's projects in all its citizens. Both in the perspective it requires and the laws and institutions it demands, such a state will differ markedly from the one Ripstein describes. Citizens who recognize an obligation to support mutual development differ importantly from those who acknowledge only the demand to refrain from what would render their fellows mere tools. The state that addresses issues of crippling poverty, healthcare, or education with the aim of personal and citizen development is not the state that views these merely as means to prevent domination.
