1. Introduction
In The Noumenal Republic, first published in German by Suhrkamp in 2021 and recently published in English by Polity in 2024,Footnote 1 Rainer Forst further develops his theory of the ‘right to justification’ into a Kantian theory of democracy.Footnote 2 Forst defines the ‘right to justification’ as the ‘right to be the authority for norms that bind you and to be such an authority together with all those bound’ (Reference Forst2024: 41). Democracy is introduced as a ‘demand for justice’ aimed at overcoming forms of domination justified by reasons that lack this form (79). By starting from the premise that we are, nolens volens, part of discursive practices, this account addresses a ‘mediated’ conception of justice, manifested in ‘justificatory reasons’ (120). There are significant advantages to approaching democracy as an emancipatory project, expressed in and evaluated by justificatory reasons.
First, the focus on the socially embodied space of reasons allows us to understand democracy not as a ready-made system, but as an open-ended social project and ongoing emancipatory practice, striving to dismantle dominating structures. It carries within it the implicit imperative to continuously monitor and prevent regressive social developments. This is particularly valuable in contemporary times, given that democracy is often treated as a state we have already achieved and are at risk of losing – a view that overlooks the continuous social struggles involved in claiming our ‘fundamental right to justification’.
Second, with its focus on the ethical logic of democratic movements, this account is not confined to a single hegemonic structure. It encourages us to understand and critique patriarchal reasons that prevent women from fully realizing their right to justification, just as it does with global forms of oppression, where, for instance, economic conditions hinder individuals from actualizing this right. The focus on the form of justificatory reasons enables us to address diverse hegemonic forms and the normativity that drives emancipatory counter-movements.
However, in what follows, I will not focus on the many strengths of a theory that focuses on the logic of emancipatory movements. Instead, I would like to raise a potential concern that arises when this logic is implemented in institutional settings. The premise of this problem is that we live in complex societies that rely on institutionalized representative practices. Consider, for instance, a parent representing their child or a democratically elected government representing an entire nation, even though only a portion of the voting body has actually voted for the particular party in power. A democratic theory must be able to account for such cases of representation.
Forst’s democratic theory has difficulties in this regard. He defines justificatory reasons as having both qualitative and procedural dimensions: reasons must (i) be reciprocally and generally justifiable in their content/form and (ii) be generated through procedures in which all affected figure as co-authors. Although each dimension independently provides normative space for justificatory reasons that legitimize unproblematic cases of representation, their simultaneous application generates mutually undermining outcomes when applied to ordinary cases of representation. Further below, I shall introduce this as the ‘quality-procedure dilemma’. But first, let me explain this in more detail.
Forst’s theory of the noumenal republic begins with the premise that individuals are part of ‘normative orders’, which are ‘orders […] based on justifications’ that legitimize our social and political practices (Reference Forst2021: 159, Reference Forst2018). Normative orders (i) govern our individual lives on multiple levels – privately, interpersonally, nationally, or transnationally; (ii) correspond to ‘justificatory narratives’ manifesting in religious, economic, legal, or other ideas that relate to one another in complex ways (Reference Forst2021: 160, Reference Forst2024: 110); (iii) are shaped by individual or collective agents; and (iv) may or may not be legitimate (Reference Forst2021: 62, Reference Forst2024: 5). The task of the critical theorist is to study and evaluate these orders both on a ‘factual’ and ‘counterfactual’ basis.
On a counterfactual basis, ‘every form of political rule […] must be judged by whether the right to justification is realized in the best possible way (or at least better than before), namely in a politically autonomous way’ (Reference Forst2024: 80). Forst calls this the ‘first principle’ (80). Forst argues that reasons that justify social structures are legitimate if they enable individuals to live a life of ‘non-domination’. Whether I am subject to a non-dominating social order depends on the formal shape of justificatory reasons of that order – specifically, whether they are ‘reciprocal’ and ‘general’. A justificatory reason is ‘reciprocal’ if the claims I make within a normative order are objective, meaning I could not rationally deny them for myself (Reference Forst2021: 192). A justificatory reason is ‘general’ if everyone who is subjected to the generated normative reasons is also a co-author of them (192). As Forst elaborates elsewhere, both criteria contain qualitative and procedural aspects; reciprocity comprises both reciprocity of content and reciprocity of reasons, when generality requires both that reasons be sharable by all affected and that those affected figure as co-authors.
Forst draws inspiration here from Kant. Our innate right to freedom and equality, substantiated under the general will, grounds ‘the right to legally protected independence and the corresponding right to partake in the making of the general law that will bind all’ (Reference Forst2024: 144). Following Ripstein, he describes this as a form of ‘non-domination’ (Ripstein Reference Ripstein2009), with the caveat that Forst’s notion of ‘non-domination’ possesses a more explicit ethical character. The ‘fundamental right to justification’ means to be recognized as an autonomous being – an agent within the kingdom of ends who enjoys equal moral and legal status with other members (Reference Forst2021: 190). Further, he emphasizes that the normative features of reasons, that is, generality and reciprocity, ‘hold sway regarding the procedure itself’ and ‘the quality of justified norms’ (Reference Forst2024: 5, emphasis added).
Treating both generality and reciprocity as features with procedural and qualitative dimensions – the two dimensions by which Forst takes justificatory reasons to be rendered legitimate – makes sense if we imagine these reasons in an idealized manner as part of the noumenal sphere. If we were fully rational beings, there would be no need to prioritize one normative feature over the other. However, because our political reality is more complex, theorists typically see themselves forced to prioritize either ‘quality over procedure’ or ‘procedure over quality’ – at least as an operative normative guideline – to establish sufficient criteria under which norms or reasons are legitimate.
Because Forst values these features equally, his theory faces the ‘quality-procedure dilemma’ at the level of application. If the qualitative feature confers legitimacy on justificatory reasons, then exclusionary practices are valid where their absence would thwart the rational form of reasons. But this conflicts with the procedural feature, which prescribes that everyone affected by these reasons has a right to act as a co-legislator. If the procedural feature confers legitimacy, we are compelled to accept that democratically generated reasons are valid regardless of their form – but that means the qualitative dimension is bracketed.
In what follows, I will use Kant as an exemplar to demonstrate that his republicanism is not meant to remain in the noumenal sphere. Although Kant is primarily concerned with specifying the formal criteria of the republic, he devotes considerable attention to showing how a priori principles are intended to be applied at a practical level. More specifically, I will discuss two lines of interpretation: a republican line of interpretation (section 2) and a democratic line of interpretation (section 3). Both interpretative accounts force us to either value quality over procedure or procedure over quality. By tracking these two lines of thoughts, I aim to show that he offers solutions for overcoming these obstacles at the practical level of institutional design – an issue I would like to invite Rainer Forst to elaborate on further (section 4).
2. Kant and the ‘quality over procedural’ democracy reading
Valuing the quality of normative reasons over procedures is a characteristic feature of the republican tradition. Philipp Pettit argues that non-domination is best achieved through ‘laws’ that ‘assume a certain sort of shape’, whereas democratic participation – even though highly important – is not a ‘bedrock value’ (Reference Pettit1997: 174). Although Kant differs from Pettit’s neo-republicanism in other crucial respects, he has been interpreted as a republican thinker who similarly values the rational quality of reasons over procedure (Widmer Reference Widmer2025).
In Theory and Practice and the Doctrine of Right in the Metaphysics of Morals, Kant argues that the concept of the state is comprised of three principles: (i) freedom; (ii) equality; and (iii) independence, the latter referring to ‘the independence of every member of a commonwealth as a citizen’ (TP, 8: 290). ‘Independent’ are those ‘citizens of a state (cives)’ who possess the ‘attribute of civil independence’, meaning they owe their ‘existence and preservation to [their] own rights and powers as a member of the commonwealth, not to the choice of another among the people’ (MM, 6: 314). Kant distinguishes between ‘active’ and ‘passive’ citizens, the former representing the latter (TP, 8: 290; MM, 6: 314). Although he states that every member of the state must be free, equal, and independent (TP, 8: 290), some individuals are considered ‘dependent’ citizens and thus only a ‘part’ rather than a full ‘member’ of the state (MM, 6: 314). Women, children, apprentices of merchants or artisans, domestic servants, woodcutters, blacksmiths in India who enter people’s homes for work, private tutors, shop clerks, day labourers, and barbers are deemed ‘passive citizens’ (TP, 8: 295; MM, 6: 315).
One way of understanding Kant’s justification for granting active status to a specific selected group is that he deems them particularly capable of giving rights the desired rational form. In various passages, Kant emphasizes that what gives the general will legitimacy is not an empirically united will but the rational form of our legislative judgements. In Theory and Practice, this is expressed in his statement that a co-legislator must ‘give his laws in such a way that they could have arisen from the united will of a whole people and regard each subject, insofar as he wants to be a citizen, as if he has joined in voting for such a will’ (TP, 8: 297, emphasis added). In the Doctrine of Right, he expresses this sentiment, arguing that a will must be ‘omnilateral, united not contingently but a priori and therefore necessarily’ (MM, 6: 263, emphasis added). It is for this reason that Kant believes that passive citizens are considered ‘free and equal’ despite their dependent status. Kant distinguishes between ‘civil independence’ and ‘innate right’: the former coming with the right to self-representation and active participation, which only active citizens enjoy, whereas the latter is a right that every citizen possesses (Pascoe Reference Pascoe2022: 8).
Although we may be inclined to opt for laws (or reasons) that serve our own benefit (i.e., private interest), the form of the general will requires that we only accept laws (or reasons) with a rational quality (i.e., the public interest). The republican reading of Kant’s exclusion of citizens from actively participating does not contradict the noumenal right to be a co-legislator. Although, according to Kant, every citizen is noumenally an independent member of the state, there are phenomenally dependent citizens who are legitimately excluded from participating in law-making practices. It is in this respect that he steps out of the noumenal realm and seeks to specify the conditions under which one is ‘fit to vote’. Problematically, the empirical condition to politically participate is to be economically self-sufficient and male, as Forst critically points out himself (Reference Forst2021: 185, Reference Forst2024: 40) and – although Kant does not explicitly say that – it may be added that Kant presumably takes them to be white (Mills Reference Mills2017, Lu-Adler Reference Lu-Adler2023). While neo-republicans would certainly reject that those features have any legitimate justificatory force, Kant believes that the exclusion of social groups who he deems likely to reason privately functions as a safeguard of a rational legislation.
Forst distances himself even further from such justifications in his rejection of the ‘quality over procedure’ reading. Independence is not simply an idea that can be superseded on a practical level. Although he agrees that the content of law must satisfy the requirements of reciprocity and generality, he emphasizes that the generation of laws must also involve – what he calls – the ‘Kantian movement’, i.e., the moment when someone ‘reclaims one’s status as a normative authority equal to all others who should not be dominated by an established but unjustifiable order of recognition and power’ (Reference Forst2024: 195). Forst’s emphasis on having autonomy instantiated not only as an idea but also in the actual procedure of generating reasons is also reflected in the thought experiment of the ‘neo-republican’ machine (Reference Forst2024: 194ff): a machine meticulously calculating how to distribute power and goods equally. Because political participation, or ‘co-authorship’, is a bedrock value of his theory, he emphasizes that even in cases in which the laws generated by this machine have a rational form, they would still lack a crucial component of justice: namely, the actual involvement of those subjected to these norms.
3. Kant and the ‘procedure over quality’ reading
If it is true that rightful reasons cannot be instantiated for others, but only by those affected by the laws themselves, it seems that Forst’s reading of Kant places him more firmly within a tradition that considers democratic participation a bedrock value. In contrast to republicans, the guiding question is not how to preserve the quality of rational law but how to organize institutions on a procedural level so that the principle of self-rule is sufficiently realized in democratic procedures.
Kant – who repeatedly claims that only the people themselves can decide what is good for them – has also been interpreted in democratic terms. If ‘independence’ is not understood as a judgement form but a principle that prescribes that everyone actually be an independent citizen, we end up with a reading, which most influentially has been brought forward by Jacob Weinrib (Reference Weinrib2008) and, before this, in similar ways by Ingeborg Maus (Reference Maus2015). Weinrib argues that the right to universal suffrage follows logically from Kant’s notion of innate right. In the innate right section of the Doctrine of Right, Kant claims that in order to be free from arbitrary interference in the public sphere, we must treat each other with the same respect we afford ourselves. This sets the foundation for the ‘equality’ criterion of innate right; because we are beings with the same dispositions, we must be equally bound by and subjected to ‘coercive laws’ (TP, 8: 290). Kant defines the equality criterion of innate right as the ‘independence from being bound by others to more than one can in turn bind them’ (MM, 6: 237–8).
According to this reading, procedures that exclude specific groups from political participation are seen in conflict with the rational constraints of innate right. If it is true that equality is achieved only when every adult citizen has equal rights, including voting rights, it follows that every citizen must be granted the status of civil independence. The existence of adult passive citizens appears problematic because active citizens are granted legal prerogatives that passive citizens do not possess. Weinrib captures this idea by stating: the rightful condition is generated by the requirements of innate right, which include ‘innate equality’, that is, ‘independence from being bound by others more than one can in turn bind them’ (Weinrib Reference Weinrib2008: 21). A state is legitimate only if the same rights, including the right to political participation, are granted to everyone and any state that allows for passive citizenship has yet to embrace the ‘conditions of universal active citizenship’ necessary to meet its formal requirements (23).
Prima facie, this seems to align more closely with Forst’s emphasis on the innate right to independence and autonomous self-rule. However, once we move away from the ideal justification of autonomy and toward the design of institutional settings, we see that this reading is also compelled to specify the criteria under which autonomy is sufficiently realized. Among theorists in which participatory rights are seen as fundamental, democratic theorists often specify auxiliary principles that specify the conditions under which autonomous self-rule is deemed sufficiently achieved. In Weinrib, the sufficient criteria spelled out in terms of the qualities a citizen must have in order to partake in democratic voting procedures: being an adult with ‘normal cognitive abilities’ (Weinrib Reference Weinrib2008). Other scholars who interpret Kant democratically are keen to find in Kant a ‘majority voting’ principle, a procedure through which autonomous self-rule is considered sufficiently realized (Gregory Reference Gregory2023: 7–8).
The search for sufficient procedural conditions is illustrative of democratic theories more generally, at least for those who take actual participation – or, in Forst’s Kantian terms, ‘active co-authorship’ – as a bedrock value. Hans Kelsen has highlighted this point aptly. According to Kelsen, the idea of autonomous self-rule is the ‘highest principle’ of democracy, rooted in our rational desire ‘not to be ruled by anyone but ourselves’ (Kelsen Reference Kelsen1920: 2). This, however, is and can only be a principle dealing with ‘hypothetical’ consent. If democracy is not meant to remain merely in the ‘realm of ideas’, Kelsen contends, it must be accompanied by principles that take the non-ideal realm as a starting point (Reference Kelsen1920: 26). It is on this level – the level of ‘social technique’ – where we are searching for democratic procedures under which the unattainable ideal is sufficiently realized (Reference Kelsen1920: 36). The rational form is an ideal which we can try to approximate, however, legitimacy is provided by the procedure under which a positive law is brought forward and gains legitimacy.
Forst not only pushes back against the republican ‘quality over procedure’ approach; he also rejects the ‘procedure over quality’ approach. In the German edition, Forst emphasizes that legitimacy derived from principles like ‘diversity’ – a value based on which Kelsen sees political institutions legitimized – is to be rejected. Any additional foundational values such as ‘diversity’, the ‘rule of law’, or ‘pluralism’ that come into play on a procedural level is to be dismissed because it potentially risks contradicting the constraints of the right to justification from where all other values are to be derived (Reference Forst2021: 289).
4. Forst’s noumenal republic and democratic institutions
Although Kant scholars disagree whether Kant’s view is better placed in the tradition of republicanism or democratic thought, the fact that he addresses this issue is an indication of his concern with specifying sufficient conditions under which normative reasons are rightfully generated. Sufficient criteria are of special importance if we consider that in a large part of the population lives under structures justified by reasons they have not personally co-authored – be it because they were outvoted, ineligible to participate, or simply unwilling to participate politically. In his discussion of citizenship, we see that Kant acknowledges that what is noumenally right cannot be the same principle on which we phenomenally organize our institutions. Because of this, Kant and Kantians believe that certain concessions must be made once we implement a priori principles in practice.
Forst touches upon this aspect very briefly. He acknowledges that not everyone has ‘the capacity to exercise this right’ (Reference Forst2021: 190, emphasis added). However, it is unclear how the ‘lack of capacity’ is defined or in what ways the right to justification is capable of legitimizing representative practices. If the qualitative dimension of norms is the crucial feature that provides legitimacy, we have to accept that in some cases, bottom-up approaches might not be the most effective procedure to instantiate this dimension. But that conflicts with the procedural dimension, which requires that all affected actually figure as co-authors. Conversely, if the procedural dimension provides legitimacy, we must accept that even irrational laws are legitimate if presented in the right way – but this in turn conflicts with the qualitative requirement. Because justificatory reasons must exhibit both qualitative and procedural features to be legitimate, the right to justification leaves no justificatory room for commonplace cases of representation.
One might object that the quality-procedure dilemma is only a problem under certain empirical assumptions. Forst’s right to justification should not be understood as a legally coercive right requiring institutional backing but rather as a general right that individuals invoke when standing up for themselves to put an end to domination – or so the objection goes. However, although it is true that Forst understands justice as part of a ‘reflexive’ discourse, which starts from ‘the right practice’ rather than ‘pre-given’ institutions (Reference Forst2024: 159), he criticizes political theories that fall victim to what he calls the ‘Platonic paradox’. The paradox, as Forst frames it, emerges when the ‘true reality of politics (outside the cave)’ is considered ‘not communicable due to the reality of political life (inside the cave)’ (118, emphasis added). To overcome the ideal/non-ideal distinction, which results in two incompatible forms of ‘reality’, Forst’s focus on ‘justificatory discourses’ prompts us to develop normative reflections of political orders and their dynamics ‘along the very same conceptual lines of analysis as in the descriptive work’ (Reference Forst2024, 120).
Thus, judged by his own standards, it is insufficient to claim that a democratic theory merely provides ideal features of reasons, which are later translated into an applied political theory grappling with the factual conditions of society. If it is true that the right to justification is supposed to be the measure for ‘every form of political rule’ (Reference Forst2024: 80, emphasis added), I would like to invite Rainer Forst to further elaborate on how he envisions his theory to play out in practice where we are inevitably confronted with institutional forms of representation. How can exclusionary measures be derived from the right to justification itself, which requires everyone to participate as co-authors? Do our existing institutions provide the necessary framework to democratic emancipation, or are we forced to fundamentally rebuild our political orders to accommodate the constraints put on us by the right to justification?
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