In the Reflections on the Revolution in France, Edmund Burke critiques not only the French Revolution, but also many of the main tenets of early modern social contract theory, especially as found in the work of John Locke and Jean-Jacques Rousseau. Many of Burke's serious criticisms against liberalism have become quite well-known—that liberalism fosters atomism, materialism, an excessively abstract understanding of political community. Many of these criticisms have also been addressed at length by liberal thinkers. However, one of his deepest criticisms, which I call the “flies of a summer” objection, remains largely unaddressed.Footnote 1 In the Reflections, Burke states: “By this unprincipled facility of changing the state as often and as much and in as many ways as there are floating fancies or fashions, the whole chain and continuity of the commonwealth would be broken; no one generation could link with the other; men would become little better than the flies of a summer.”Footnote 2 For Burke, the early modern social contract tradition conceives of individuals as naturally solitary, existing prior to political community, and entering that community out of a voluntary choice to advance pregiven ends, thereby consenting to and legitimating its authority. However, as each new generation is born into the community, it finds itself subject to laws to which it did not consent. Each generation then ought to be accorded the opportunity to form, alter, and consent to its own government. Since each generation will have different aims and values, it will also have a different conception of how to govern and direct society. As a result, each generation will seek to change the character and end of its community. In this way, early modern social contract theory has a revolutionary nature, in that it will lead on Burke's view to incessant transformation.
For Burke, such constant change leads inevitably to the “evils of inconstancy and versatility.”Footnote 3 Inconstancy is an evil not simply because it leads to ill effects, but more fundamentally because it thwarts a fundamental need human beings have, namely, to overcome our fear of death and connect our extremely short lives to what is eternal. The liberal society grants each generation unprecedented ability to shape the world to pursue its particular purposes, but this also means that each generation will likely ignore, undo, or defeat the work of the previous generation. The hopes and dreams of each generation die with it, and so human life in a liberal society appears ephemeral and pointless. Burke captures this thought in the image of the insignificant summer fly which has a short life and leaves no lasting mark on the world.
Burke and other conservative thinkers, of course, argue that the way to address this challenge is to fuse modern, liberal institutions with premodern traditions and religious institutions. For Burke, liberal institutions should not be regarded simply as secular instruments to satisfy material aims and interests, but rather we should “consecrate” the state to “all science,” “all art,” and “every virtue and in all perfection.” By doing so, we can understand our efforts to contribute importantly to a “great primeval contract of eternal society, linking the lower with the higher natures, connecting the visible and invisible world.”Footnote 4 In connecting the state to religious, scientific, and artistic ends, our basic need to participate in what is permanent is fulfilled.
Instead of turning back to preliberal orders to solve this problem, however, I try to see if there are any resources within the liberal tradition itself to address it. I argue that Immanuel Kant's political theory represents a powerful liberal response to the “flies of a summer” objection. Like Burke, Kant rejects the early modern liberal conception of political community as an instrument for satisfying pregiven material interests or needs. Unlike Burke, he does not reach back to premodern institutions and sources of value. Rather, he conceives of political community as an enduring partnership for the achievement of freedom. Freedom, on Kant's view, is not instrumental for some further material good, but is intrinsically good, bringing value and significance to our otherwise valueless animal existence. Therefore, each generation is linked with all previous and future generations in the gradual progression toward humanity's liberation. In other words, liberalism need not be understood as Burke portrays it; it contains resources that can obviate the objection.
In interpreting Kant in this way, I draw on recent literature on Kant's moral and political philosophy that emphasizes the teleological character of his practical philosophy.Footnote 5 This literature has rehabilitated Kant from the caricature of him as an abstract, excessively legalistic, “deontological” thinker. Instead, Kant's practical philosophy has a comprehensive aim, namely, the eventual achievement of an ethical community, a kingdom of ends, in which each treats all the others as ends in themselves. However, recent teleological approaches to Kant's political philosophy have imperfectly characterized the ultimate purpose of the political community. Many scholars understand it to be instrumental for the eventual achievement of the moral maturity of humanity. I argue, by contrast, that for Kant the achievement of right is of value in itself for humanity, because in realizing external freedom it secures value for human existence.
In part 1, I discuss Kant's concept of freedom and how freedom can bring enduring value to human existence. Parts 2–4 examine Kant's political theory by focusing on his views of perpetual peace, sovereignty, and punishment, respectively. These topics most clearly bring out the transgenerational character of Kant's political community, but Kant's views on these matters are often regarded as implausible. I argue that when read in the light of the project of conferring value on human existence, these views become more plausible, and they provide a strong response to Burke's objection.
1. Freedom and the Value of Existence
The recent scholarly turn toward the “teleological” Kant has focused largely on his moral philosophy.Footnote 6 According to these scholars, Kant's moral philosophy is concerned not simply with universalizing maxims and evaluating moral action, but also, more comprehensively, with realizing the summum bonum, perfecting the moral character of human beings, and ushering in a perfect moral community, a kingdom of ends, in which each treats all the others as ends in themselves. Kant's teleological ethics is not of the Aristotelian variety, according to which nature is the source of goodness and it guides us to our telos, happiness. On the contrary, for Kant, natural existence possesses no worth or value (Wert) in itself: “lifeless beings or … living but nonrational beings” possess “no value at all,” since value is a “concept” legislated by “rational beings” (CJ 5:449).Footnote 7 Similar to Burke's suggestion in his summer flies image, Kant holds that rational beings who give themselves over to their natural inclinations to pursue happiness also do not lead valuable lives, since they thereby “place the value of the existence of things only in” those things that our natural inclination tells us are good. In such a case, there is instrumental value, but no “absolute final end, since the existence of such rational beings would still always be without an end” (CJ 5:449). Kant strikingly concludes that “it is easy to decide what sort of value life has for us if it is assessed merely by what one enjoys…. Less than zero.” No one would choose life again if life were simply about “enjoyment” (CJ 5:434n), just as no one would choose the life of the summer fly.Footnote 8
However, human beings are distinct from animals and the rest of the natural world in that we are “determined independently of sensory impulses,” that we can choose to turn against our instincts. This “practical freedom” allows us to evaluate each and every impulse and to develop an account of what we ought to do—what can bring the highest value to our existence (CPR A802/B830). The “value of his existence,” Kant proceeds to argue in the Critique of Judgment, lies in the “freedom of his faculty of desire” (CJ 5:443). Or, as Kant declares in his 1784–85 lectures on moral philosophy, “freedom is thus the inner worth of the world” (LE 27:344). Freedom is the sole unconditional value, and so natural existence's value derives from its contribution to the realization of freedom. Thus, we bring value to our lives by realizing our own freedom as moral autonomy, that is, by shaping our lives and character according to the moral law that we legislate for ourselves. Furthermore, for our own personal moral efforts not to seem absurd or pointless, we must understand them as contributing to the moral progress of humanity at large, toward the eventual realization of the freedom of everyone. Kant invokes the notion of the “vocation of humanity” as the moral mission we share with all others, thereby connecting us to humanity's transgenerational effort to liberate itself from natural and social ills (CB 8:115). In this way, as Thomas Pogge has recognized, Kant's philosophy of history is a form of theodicy, according to which natural and human limitations are redeemed by the eventual realization of the “ultimate end” of nature.Footnote 9 On this view, then, human beings are more than “flies of a summer” insofar as we transcend our animal instincts and connect ourselves to the endless progress of humanity toward its unconditionally valuable end.
The interpretive aim of this article is to argue that Kant's political philosophy should be understood in a similar teleological fashion so that it, too, can respond to Burke's objection. Scholars of Kant's political philosophy have indeed recognized its teleological character—the unmistakably progressive message of “Idea” and “Perpetual Peace,” for instance, is hard to miss. However, in light of the work of Patrick Riley, scholars tend to understand Kant's political philosophy as serving an instrumental role to the moral end of humanity.Footnote 10 The political philosophy, on this view, aims to protect our ability to choose (or not to choose) moral progress, specifically, to secure the protections of our lives and property such that we can concern ourselves with advancing toward moral autonomy. In this way, political freedom does not have unconditional value, but its value is, like everything else in nature, derived from its contribution to the moral end. While I do not contest that the political philosophy aims in part to create the preconditions for moral progress, I argue that political freedom is also unconditionally valuable, so that it is an end that can secure value for human existence.
We can see this role already in the 1780s, in the Feyerabend lecture notes on Natural Right, in which Kant identifies what gives our lives value and connects this value to politics.Footnote 11 Kant eschews the early modern approach to political community, which assumes life to be good and death to be the summum malum and holds that the political community serves to secure the material conditions to avoid a solitary, poor, nasty, brutish, and short existence. Instead, he asks a prior question, effectively, Is life of value at all? This is the primary political question. At the outset of the lectures, he inquires into the value of all things, in the search for what possesses unconditioned value. Unfortunately, everything in nature has only instrumental value, which means that all natural things have “no value” unless we “consider them as means to other ends, e.g. the moon has a value for us insofar as it lights the earth, causes the tides.” Even “animals” have “no value in themselves because they are not conscious of their existence,” and so cannot conceive of the notion of value (LNR 27:1319). Kant rejects the idea that human beings possess value because we “please God,” since we then only have instrumental value, and this response does not answer “why does the existence of a God have value?” (LNR 27:1321). However, Kant argues, if everything in the world possesses value instrumentally, then everything ceases to have value in the first place, because we cannot explain what all this effort is for—“were there no end then the means would also be in vain and would have no value” (LNR 27:1319). The condition for the possibility of value in existence is that something in the world must possess intrinsic or “unconditioned” value.
Casual readers of Kant might find it surprising that he denies that reason confers value on existence—“reason is merely a means,” and “does not give us dignity” (LNR 27:1321–22). Instead, for Kant, the “inner value of a human being is based on his freedom, that he has a will of his own” (LNR 27:1319).Footnote 12 Freedom is of unconditioned value because it is itself the source of all value.Footnote 13 A truly free being's actions are not determined by instinct or any external will, which means that these actions are not instrumental to the instinctual aims set by nature or the social aims of other human beings. Instead, “his will must be dependent on nothing else” but the free will alone (LNR 27:1320). As such, the free will must posit its own ends. In doing so, it does not adopt an end from outside itself and so does not make its value instrumental to that external end. What kind of end can it posit if it cannot adopt any material aim from outside itself? It can only posit its own freedom as an end, that is, it sets as its task the realization of freedom in the world. As such, freedom is not an instrumental good for something beyond itself, but the unconditional end in itself of every free will, the only thing of intrinsic value.
However, Kant is keenly aware that this freedom is extremely dangerous—“nothing worse could be thought than that each would be free without law.” Such lawless or “wild” freedom would lead to a Hobbesian state of nature, in which “each would do with the other what he wants and so no one would be free” (LNR 27:1320). Like Hobbes, Kant sees in practical reason the “means” to establish laws that limit freedom, but in doing so make freedom possible. In the Natural Law lecture notes, Kant describes these laws as “right,” namely, that “limitation of freedom according to which freedom can exist with the freedom of all others in accordance with a universal rule” (LNR 27:1320). Unlike Hobbes, however, the motivation for adopting these laws is not the material aim of avoiding a violent death, but rather the higher aim of creating value in the world by realizing human freedom.
In the 1790s, Kant refines his political philosophy, distinguishing it from his moral philosophy. They share the aim of determining those “laws of freedom” which should govern our actions and community. What distinguishes the two is the kind of freedom that each seeks to realize. The moral philosophy aims to realize our “internal” freedom as moral autonomy, the “positive” form of freedom where we take the moral law and its end as our end (MM 6:214). By contrast, the political philosophy seeks to realize our “external” freedom, the form of freedom characterized by “freedom of choice,” a “negative” freedom in which we are free from “being determined by sensible impulses,” and may give ourselves any end (MM 6:213). Kant draws this distinction because of the significance of coercion to the realization of freedom. In the political community, we are duty bound to respect the freedom of others, but can discharge our duty for any reason, including selfish reasons. Government can thereby coerce my behavior so that I comply with the law and refrain from interfering with the choices of others, regardless of my motivation. By contrast, in the moral community, we ought to respect the freedom of others, but must be motivated by the moral law. The moral community cannot employ force, because, as Kant points out, “I can never be constrained by others to have an end … only I myself can make something my end” (MM 6:381).
On a common interpretation of Kant's political philosophy, we have a duty to form political society and respect “public right,” that system of laws that coordinates the external freedom of its members (MM 6:313). Kant's liberalism seems not teleological, but a deontological, rights-based view according to which each may pursue whatever ends she wishes so long as she respects the rights of others. There seems to be little of significance here that would distinguish Kant's liberalism from that of his predecessors and assist in responding to Burke's critique.
However, Kant's liberalism is much more teleological than it seems. Like many social contract theorists, Kant holds that the legitimacy of state power rests on the consent of the governed, that “legislative authority” belongs to the “united will of the people,” and the people can only form a state through an “original contract” (MM 6:313, 315). Unlike other liberal thinkers, however, Kant does not found rights in nature or natural law. Indeed, the state of nature is “devoid of justice,” because “rights are in dispute” and there is “no judge,” no universal or “omnilateral” general will, that could settle these disputes (MM 6:312). Rights are indeterminate in the state of nature, and so right only comes to be in a civil condition as laid down by a sovereign. For this reason, Waldron refers to Kant's political thought as a form of “legal positivism.”Footnote 14 The sovereign, who is supposed to represent the “united will of the people,” posits right, and we have a duty to respect it, regardless of our opinions about the sovereign's wisdom or justice.
Nevertheless, Kant holds that right is always imperfectly realized in all communities, as the sovereign is never a perfect representative of the ideal “united will of the people.” As a result, members of a community also have a broad duty to maintain and perfect the condition of right in their community. This duty derives from the basic duty to “enter a condition in which what belongs to each can be secured to him against everyone else” (MM 6:237). In the state of nature, this duty can only be discharged by forcibly dragging the other into a civil condition. In a civil condition, we can perform this duty in two ways, by preserving and perfecting right.
First, Kant argues that we have a duty to preserve every instantiation of right, even the imperfect. We will see this clearly in the discussion of revolutions below. Yet Kant argues elsewhere that we ought not do anything that would endanger the condition of right. Kant castigates those who respond to rule breakers by breaking the rules themselves. Such individuals do “no wrong” to the cheater, but they “do wrong in the highest degree, because they take away any validity from the concept of right itself and hand everything over to savage violence, as if by law, and so subvert the right of human beings as such” (MM 6:307n).Footnote 15 Furthermore, we have a duty to refrain from employing spies or assassins, even against those who use spies or assassins themselves, as such a practice would vitiate the possibility of community among nations (PP 8:346). We are duty bound to avoid any inquiry into the “origin of the supreme authority,” lest it undermine public confidence in its rule (MM 6:318). In all these cases, our duty extends beyond our relationship to individuals to the protection of the condition for rightful relationships at all.
Second, however, in every political community, our rights are not perfectly secure and so our freedom not fully realized. As a consequence, we have a duty “by a categorical imperative” to help our “constitution” conform ever more “fully to principles of right” (MM 6:318). Members of a political community can discharge this duty through the public persuasion or correction of the sovereign. The “freedom of the pen” is the “sole palladium of the people's rights” to reveal when the sovereign does “wrong against the commonwealth” (TP 8:304). When political circumstances allow, members can also perform this duty as “active citizens” in the formation of better laws (MM 6:314). In this condition, the citizen casts a “vote” and seeks to improve the system of laws from “his own lawgiving will” (MM 6:314, 316).
This broad duty reveals the teleological structure to Kant's liberalism. We ought on the one hand to conserve and protect the rightful condition that we have created thus far as a community, and on the other hand to improve and perfect that rightful condition so that it reflects the general will and secures the external freedom of all. This duty involves a form of “positive” freedom distinct from moral autonomy on the one hand and external freedom on the other. It is freedom as political self-determination, in which each transcends his own individual sphere of external freedom to care for the conditions of freedom for all. This form of freedom is necessarily historical in nature, in that it connects us not only with the present “general will,” but with the generations past and future. All have formed a partnership for the gradual realization of freedom in a regime persisting “perpetually” (MM 6:326).
Kant's political philosophy thus conceives of a liberal community bound eternally together for a common end, namely, freedom. Citizens in Kant's liberal community are not “flies of a summer” because they understand themselves as part of a transgenerational partnership, in which each generation does not overturn the inheritance from the previous generation, but improves upon it. In the next three sections, I deepen Kant's response to Burke by arguing that the teleological character of Kant's liberalism is not instrumentally valuable, but unconditionally valuable. By examining three well-studied themes in Kant's political writings of the 1790s, we will see that the value of life grounds and guides his liberal political philosophy just as it did in his earlier lectures on Natural Law.Footnote 16
2. The Unconditional Value of Perpetual Peace
Kant's doctrine of perpetual peace is perhaps the best-known and most extensively studied of his political views. The doctrine is a powerful one, in part because it follows quite clearly from his basic liberal commitments. States exist in a state of nature with one another, and so the freedom of each state and of the members within it is insecure. Thus, each state ought to join a federation with others that can resolve disputes among states.Footnote 17 For Kant, nature aims at perpetual peace in its “purposiveness,” but imperfectly achieves it (PP 8:362).Footnote 18 In this way, Kant recognizes that perpetual peace will be a transgenerational task for the political community to complete, one that should unite the community across time.
What is the connection between perpetual peace and our comprehensive moral vocation? As scholars have recognized, the progressive development and expansion of right ultimately into perpetual peace serves to prepare human beings for their own inner moral development.Footnote 19 Kant sometimes describes this process as, first, nature's completion of its end, the peaceful coexistence of human beings in our external behavior toward one another, and, second, our own free perfection of our inner moral life culminating in an ideal ethical community in which each treats all others as ends in themselves. For these scholars, perpetual peace plays an important preparatory role in establishing the necessary preconditions for moral development, a condition for its very possibility.
This account is true, but only partially so. It gives the impression that perpetual peace is only preparatory for moral perfection. Yet for Kant, the perfection of right itself possesses unconditional value. We see this in two important places. First, in the first supplement to Perpetual Peace, Kant poses the question of the practicability of perpetual peace. He argues that peace is made possible in two ways. First, nature with its “mechanical … purposiveness” makes use of “human beings even against their will” to facilitate “concord” (PP 8:360–61). This first path toward perpetual peace instrumentalizes human beings and supports the notion that politics is simply preparatory for free moral self-development. However, Kant argues that this mechanical “fate” does not guarantee peace, which requires supplementation by human effort (PP 8:361). This second path is one in which nature “favor[s]” our “moral purpose” but does not use us, which would be a “prejudice to [our] freedom” (PP 8:365). It employs, for instance, the balancing of “self-seeking inclinations” in wisely designed institutions and the “spirit of commerce” to assist us in our free pursuit of perpetual peace (PP 8:366, 368). This second path reveals an indispensable role for the freedom of choice (not “moral” freedom [PP 8:366]) in guaranteeing perpetual peace. For Kant, then, the pursuit of perpetual peace is not simply instrumental for our moral freedom. It is at the same time an opportunity for us to exercise our freedom to choose peace. That Kant distinguishes these two paths suggests that freedom to choose peace is valuable in its own right.Footnote 20
The second passage on the unconditional value of perpetual peace is in the conclusion to the Metaphysics of Morals in the discussion of the “highest political good” (MM 6:355). There, Kant argues that we ought to “work incessantly toward” perpetual peace. But, he asks, what if perpetual peace is not “real,” an impossible and futile effort on the part of humanity? If we believe this, then we must deny the possibility of the full achievement of human freedom. Yet if we deny the possibility of freedom, the unconditional end of all our efforts, then we must “admit that the moral law within us is itself deceptive,” which commands and guides us to this end. For Kant, such a condition would be a severely unhappy one for human beings, in which our reason longs for an end that can bring value to life yet is unachievable. This unhappy condition would give rise, Kant thinks, to the “wish … rather to be rid of all reason and to regard ourselves as thrown by one's principles into the same mechanism of nature as all the other species of animals” (MM 6:354–55). At least in this condition, we will not be subject to the painful condition of being “burdened with questions which [reason] cannot dismiss … but which it also cannot answer” (CPR Avii). However, this wish in turn “arouses our abhorrence” because, as we have seen, Kant holds that the life of animals within the mechanism of nature is without value (MM 6:355). Kant's view in this way reflects Burke's worry that if our transgenerational efforts are thwarted, we are reduced to the meaningless life of the animal.
Thus, Kant argues that perpetual peace is a practical postulate, not just something that is salutary for us to believe, but something we are obliged to believe.Footnote 21 Kant here implicitly offers a version of the argument he makes in the 1784 lectures and in the Critique of Judgment. Humanity confers value on its existence through the realization of freedom in the world. Yet if freedom cannot be had, then human life is without value. Human reason cannot stand a valueless existence, and so demands as a postulate the possibility of perpetual peace. Perpetual peace serves a role similar to that of the highest good, that highest end of our practical strivings whose achievement retrospectively confers value on our sufferings and strivings. In other words, Kant announces at the end of the Metaphysics of Morals that the aim of the political community connects with the broader aim of creating value in life, in a way not mediated by our inner moral development.
What difference does it make that perpetual peace is not an instrumental aim, but something of intrinsic value to human existence? It means that citizens are not simply instruments for some higher moral aim, but our efforts are intrinsically valuable, as the civic activity of each generation steadily realizes freedom over time and hence brings value for human life. The activity of each is not overturned or defeated after each generation, but preserved and transmitted and built upon. Thus, our efforts are not for naught and meaningless like those of a summer fly, but significant for the eventual achievement of freedom.
At the same time, Kant is clear that these duties of right are not on par with our moral duties. As I discussed above, for Kant, we ought to perform the latter out of respect for the moral law and for moral ends. By contrast, we may perform civic duties for moral reasons, but we also may do so for purely self-interested reasons. Right does not demand that we take a moral end as our own end, only that we act in accordance with the law out of any motivation. Thus, Kant insists, the political community can be maintained by a “nation of devils” (PP 8:366). Nevertheless, we ought not thereby relegate even the outcome of the devils’ self-interested activity to instrumental value.Footnote 22 Even devils, on Kant's view, bring about freedom and hence value in the world, even if the way they achieve it—through self-interest—is devoid of value.
In sum, then, peace is the highest aim of politics, and the promise of its achievement brings significance and existential value to the activity of liberal politics, even if its means are nonmoral. Nevertheless, Kant suggests a few means by which the liberal political community can shape self-interested citizens to jointly adopt a common aim of peace across time. One example is that Kant calls for states to “proclaim” a “day of atonement” after the end of a war, in which citizens call “upon heaven … to forgive the great sin of which the human race continues to be guilty,” our inability to commit to perpetual peace. Too many citizens are “indifferent” to war or are brought to “joy at having annihilated a great many human beings” by “festivals of thanksgiving” after wars (PP 8:357n). For Kant, then, perpetual peace can be brought about through the self-interest of individuals and nations, but it is also helped along through the political shaping of character.
3. The Sacred Nature of Sovereignty
One of the most enduring puzzles in Kant's political philosophy concerns his categorical condemnation of revolution. The people have a right to reasoned dissent with the “freedom of the pen” and to passive disobedience, but Kant strongly holds that even under tyrannical oppression, the people must obey. Scholars have wondered how Kant could judge revolutions to be unjust yet applaud the French Revolution.Footnote 23 Other commentators have questioned why on Kant's view revolutionaries could not appeal to the moral law to judge an unjust ruler.Footnote 24 In response, recent scholars have pointed out Kant's distinctive understanding of public right as issuing from an omnilateral will. The problem with revolutions is that, whatever moral claims they make, they always derive from a particular group in society, a unilateral will, and could not be said to represent the general will. Only the sovereign in power can be said to represent the general will and hence be the legitimate judge of right.Footnote 25
Both critics and defenders of Kant's view rightly identify the role sovereignty plays in establishing the just state, but overlook the value for existence that for Kant is introduced in the world by a political sovereign. Kant speaks of sovereignty and law not in the legal terms employed by contemporary scholars, but rather in the same exalted moral language he uses for the moral law. Kant describes positive law as “beyond reproach and holy or sacred [heilig]” (R 7725 19:500), reflecting the same language of the moral law as a “holy [heilig] law” (CPrR 5:82).Footnote 26 The sovereign has “splendor of his majesty” (Glanz seiner Hoheit) and employs a ”right of majesty” (Majestätsrechts) in granting clemency (MM 6:337). In the second Critique, Kant states that the “majesty of duty has nothing to do with the enjoyment of life; it has its own law and also its own court” (CPrR 5:89). Just as Kant argues that the holiness of the moral law derives ultimately from its teleological end, so too does the majesty of the sovereign derive from its introduction of value in the world. This introduction and steady achievement of value over time—as well as its destruction through revolt—can help explain more deeply the radical nature of Kant's condemnation of revolution.
To begin with, “Your Majesty” is not just Kant's polite or conventional way of referring to the sovereign. He defends such “exalted epithets” as more than “dizzying flattery.” Calling a sovereign “the divinely anointed” does not result in making the “ruler of a country arrogant,” but rather “humbles him … and makes him reflect that he has taken on an office too great for a human being—namely the most sacred [heiligste] office that God has on earth, that of trustee of the right of human beings—and that he must always be concerned about having in some way offended against this ‘apple of God's eye’” (PP 8:352n). Yet why on Kant's view does the sovereign not merely perform a legal duty, but more importantly serve a “most sacred” vocation? In my view, Kant appropriates the traditional, Burkean concepts of divine right and its social and political benefits for a secular liberalism.
As scholars have recognized, for Kant, the state of nature is insecure most importantly because rights claims are determined, enforced, and adjudicated by unilateral wills. The general will alone—or what he calls the “omnilateral” will—can legitimately determine and enforce right, as well as adjudicate conflict. However, the general will is not empirically real, but a unified “idea” or “norm” that should guide the decision of the sovereign, the ruler in power, who is the “representative” of this will (MM 6:313; R 1399 15:610). The sovereign's decisions are supreme, because there is no other will who can legitimately claim to represent the general will.Footnote 27 The sovereign can be manifest in any number of institutional forms, though Kant argues that only a republican form of government is truly just.
What scholars have missed is the quasi-divine character that Kant invests in the general will. For Kant, the general will is the ideal of a people freely willing its own freedom. He speaks of this as “the idea of a civil constitution as such, which is also an absolute command that practical reason, judging according to concepts of right, gives to every people.” This idea, Kant argues, “is beyond reproach, sacred [heilig]” (MM 6:372).Footnote 28 The idea of the general will is the “absolute lord,” and the sovereign is the “vicar of God on earth,” who “in his function as the highest representative” must be instructed and “inspired by a religious disposition” (R 1399 15:610). Indeed, in a later Reflection, Kant compares the church to the republic—“just as one says that besides the visible church there lies at its basis an invisible church (as its model) with the prescript: there is no salvation outside the church; so one now says of the political condition of states and nations: there is no salvation outside the republic” (R 8076 19:603). Just as the visible church is guided by the divinity, so too is the visible republic guided by the idea of the civil constitution, and we gain not just security but also “salvation” from it.
The reason why the general will claims such accolades for Kant is that it resembles God in its “holy” will (MM 6:335). In the Groundwork and in the Critique of Practical Reason, Kant discusses the ideal of the holy (heilig) will, which wills the moral law without need of necessitation. It is impossible for it to be tempted as we finite wills are. In our individual wills, we can only try to approximate it as a “practical idea, which must necessarily serve as a model” for us (CPrR 5:32). Yet the idea of the general will resembles the holy will in that it freely wills its own freedom, and is not tempted by happiness or particular interests, but wills the freedom of all. In this way, if realized in the world, it could possess unconditional value in willing the negative freedom of all. Kant says that the realization of the general will in a republic confers “autonomy” on the “state,” since the state creates, enforces, and judges its own laws, just like a divine sovereign (MM 6:317). The state approximates and hence makes real this idealized holy will.
That the sovereign's value derives from the sacredness of the general will is further confirmed when we examine how Kant thinks the sovereign loses his majesty. As a representative of the general will, the sovereign ought freely to will the freedom of his subjects, and so not exploit his office for personal gain. If he does so, he is still “as head of state” always “right,” but “as human being wrong” (R 7989 19:574). He also ought not take sides in a partisan dispute. Kant says that “it even infringes upon his majesty if he meddles” in such particular disputes (WIE 8:40). Kant's favored example—because pressing in his time—concerns the freedom of religion, and the way in which sovereigns tended to take stands on theological disputes and enforce those claims. “For the supreme authority to say that a church should have a certain belief, or to say which it should have or that it must maintain it unalterably and may not reform itself, are interferences by it which are beneath its dignity; for in doing this, as in meddling in the quarrels of the schools, it puts itself on a level of equality with its subjects …, and they can straightaway tell him that he understands nothing about it” (MM 6:327). The sovereign should instead will the freedom of all, not just the liberty of one faction to lord their views over another. If the sovereign does so, he loses the sacredness conferred by embodying a holy will on earth. Indeed, for the “sovereigns” of our “own species” to “consider and treat” us “as an animal” or a “mere tool of their designs … that is no trifle, but a subversion of the final end of creation itself” (CF 7:89). Finally, investing the sovereign with an exalted task—fostering value for existence rather than simply securing material needs—gives the sovereign an additional moral motivation for representing the general will.
This understanding of sovereignty helps us better understand what Rosen calls Kant's “conservative” approach to rebellion.Footnote 29 On Kant's view, the people ought not “inquire with any practical aim in view into the origin of the supreme authority,” to point out the sovereign's violent or unjust claim to power. Instead, the people ought to see the law as “holy (inviolable),” issuing from “some highest, flawless lawgiver,” and it should be a “crime even to call it in doubt.” Yet at the same time, we ought to believe this about the origin of law not simply to conserve what has come in the past, but rather out of a collective aspiration of what is to come in the future, toward a “change in a (defective) constitution” (MM 6:321). This belief, in other words, fuses the sovereign and the general will in a more intimate way than the historical record suggests. Yet this belief functions as an aspiration for the sovereign as well, to guide him toward the end of the unity with the general will, to have him rise to meet the exalted language of his station. In this way, Kant calls such a belief a “practical principle of reason” (MM 6:319), a rational faith that assists humanity in the realization of its own freedom. The denial of this faith fills us with a sense of meaninglessness and leaves us hopeless in the quest to realize freedom in the political world.
Similarly, we can make sense of Kant's vehement denial of the right to revolution based on this teleological or aspirational character of his practical philosophy. For Kant, sovereignty in whatever form has introduced right into the world. Citizens ought to help improve sovereignty, to perfect the always imperfect right the sovereign introduces. By contrast, the assassination of any sovereign destroys such right and value, moving humanity back to the state of nature, and leaving it without any value. Kant heaps even greater scorn on revolutions that involve the appearance of rightful procedure, such as the “fate of Charles I or Louis XVI.” In these cases, the people do not simply destroy right, but “violence is elevated above the most sacred rights [heiligste Recht] brazenly and in accordance with principle,” which is a “chasm that irretrievably swallows everything.” This “crime … remains forever and can never be expiated … and it seems to be like what theologians call the sin that cannot be forgiven either in this world or the next” (MM 6:321n). Kant's theological metaphor is aptly chosen, because, as we have seen, the sovereign introduces a holy will into the world, and revolution destroys something sacred from the world. Kant uses this exalted language to convey the high stakes in politics—the sovereign allows value to come into existence. Without it, or if it is destroyed, our lives have no value. Given these immense stakes, it is no wonder that Kant condemns revolution.
Kant's view of sovereignty, then, provides another response to Burke, by revealing another way for citizens to lead valuable lives and to connect us with an enduring moral project. Kant, like Hegel, asks citizens first to reconcile ourselves to the rationality of the actual, that is, not adopt an attitude of sweeping criticism, but one of fundamental reverence for the sacred character of right in every regime.Footnote 30 Yet Kant does not at the same time command political quietude. On the contrary, on this interpretation, citizens have a compelling reason to engage in the “freedom of the pen” to reform the failings of the sovereign.Footnote 31 Namely, political society confers value on human lives as the general will is gradually realized on earth. Citizens hence lead meaningful lives by guiding our regime toward this end over time, generation to generation, toward its “well-being,” in which it “conforms most fully to principles of right; it is that condition which reason, by a categorical imperative, makes it obligatory for us to strive after” (MM 6:318). Finally, sovereigns themselves possess an added incentive to live up to the general will rather than exploit their position for personal aims—namely, because they themselves can lead lives of significance. “Later posterity” will look back with “glorious remembrance” on these sovereigns for their contribution to this “cosmopolitan aim” of realizing right in the world (I 8:31).
4. Justice as the Highest Holiness
Kant's view of punishment has been much discussed, but the literature overlooks the teleological context of Kant's political theory. Thus far, we have been discussing the expansion, preservation, and perfection of right as vehicles for realizing human freedom. In addition, on Kant's view, the proper application of right also realizes our freedom. It does so by asserting the unconditional value of justice over conditional values of happiness and expediency. The creation and maintenance of a system of punishment thus provides another way to bring value to existence.
Though recent scholars have not attended to this teleological character of punishment, they have challenged the long-standing retributivist interpretation of Kant's view. Scholars argue that Kant distinguishes between the end or purpose of punishment and its limiting principle, and that he is a consequentialist with regard to the purpose of punishment—the practice is for the “well-being” of society—and a retributivist in judging the punishment deserved in each case: criminals must be punished according to what they deserve, not in accordance with what would bring welfare to society.Footnote 32 Yet as critics have pointed out, there remains a tension between the consequentialist and retributivist features, and his retributivism also does not have a clear justification.Footnote 33 I argue that Kant's concern with the value of existence helps explain his retributivism and provides the telos for the practice of punishment.Footnote 34
As is well known, Kant rejects any consequentialist calculus when considering punishment, even if it would bring great “benefit to the commonwealth” (MM 6:332). For Kant, the political community's aim is to secure external freedom by upholding right. It violates freedom if it uses criminals as means to some particular benefit. Yet Kant goes much further in condemning such consequentialism in punishment than declaring it unjust. He states that “if justice goes, there is no longer any value in human being's living on the earth” (MM 6:332). Kant's retributivism, then, is grounded on the need to create value for human existence.
As we have seen, human existence gains value through the creation of a system of right, in which the external freedom of each is secured. Occasionally, human beings violate the freedom of others within a political society. Punishment is a reassertion of right by right, what Kant calls the “hindering of a hindrance to freedom,” in which the negation of right is itself eliminated (MM 6:231). Thus, the rightful condition emerges, in Ripstein's apt phrase, “as if it [the harm] never happened.”Footnote 35 Right maintains its own worldly permanence, in which the general will continues freely to will the freedom of all. If, by contrast, we begin to punish criminals more or less than they deserve for some other benefit, then in effect, the general will no longer wills the freedom of all, but some benefit redounding to general (or particular) happiness, casting the people back upon the “mechanism of nature.” We thereby lose the system of right and the value for human life we had created.
This account makes sense of an infamous passage that has stumped scholars thus far: “Even if a civil society were to be dissolved by the consent of all its members … the last murderer remaining in prison would first have to be executed, so that each has done to him what his deeds deserve and blood guilt does not cling to the people for not having insisted upon this punishment; for otherwise the people can be regarded as collaborators in this public violation of justice” (MM 6:333). This passage is often cited as prime evidence for Kant's uncompromising, rigid retributivism. Yet reading it in accordance with Kant's teleology of freedom makes it more plausible. A system of right that lets a criminal go unpunished allows the hindrance to freedom to stand, which extinguishes the value this system had brought into existence. In his drafts to this passage, he states that justice is the “highest holiness” whose destruction leads to the “blood debt which lies upon a land always crying out for vengeance” (DMM 23:348). Human beings ought therefore to insist on justice being done in all cases, not out of some abstract vengeful duty, but because we collectively are engaged in a project to bring value to humanity as a whole. If some human beings fail to do this, they are answerable to humanity for losing such value.
On the other hand, scholars have pointed out several places where Kant adopts a consequentialist approach to punishment: the sovereign can grant clemency in the case of a threat to the state as a whole, the state should not punish acts done out of the “right to necessity,” nor punish with death a soldier who kills in a duel or an unmarried mother who commits infanticide. Scholars interpret Kant as saying that the practice of punishment functions to “secure a peaceful society.”Footnote 36 However, as Tunick recognizes, there remains a “deep tension in Kant's position” between this consequentialism and his retributivism, since Kant holds there is “some moral necessity to punishment beyond the need fairly to adhere to institutional rules” and secure peace.Footnote 37
The solution to this problem involves abandoning these scholars’ assumption that the purpose of punishment on Kant's view is to preserve society. Rather, punishment serves to preserve right. The state is only the necessary condition for the existence of right, the vehicle for it. For instance, Kant imagines a conspiracy of criminals—in which the execution of all of them would empty the state of nearly all citizens—and declares that the sovereign has the “right of majesty” to lessen their sentence so that the “state” not “dissolve, that is, pass over into the state of nature.” In this example, the justification for adopting a consequentialist approach is not the loss of the state as such, but the fact that there would no longer be “external justice at all” (MM 6:334). In this way, retributive and consequentialist approaches to punishment do not contradict one another, but have the same end, the upholding, transmission, and perfection of right. Retributive punishment is salient when there is no threat to the existence of right, and consequentialist punishment modifies retributivism when the system of right itself is in danger.
Kant's other puzzling examples also become intelligible on this interpretation. The man who pushes another to his death out of self-preservation, the soldier in a duel, and the unmarried mother have all left civil society and exist in a state of nature with their victims, in which no condition of right holds. In the case of the “shipwreck,” a man, “to save his own life, shoves another, whose life is equally in danger, off a plank on which he had saved himself” (MM 6:235). Kant judges this action unjust, since it violates the freedom of another. However, it is “unpunishable,” because “necessity has no law” (MM 6:236). In the moment of the shipwreck, both individuals exist in a state of nature where each can assume the other will violate his freedom at the first opportunity, and no common authority will adjudicate their dispute or enforce their rights (MM 6:307). Scholars read this example in terms of Kant's consequentialist accommodation of right.Footnote 38 But these individuals stand outside of right entirely in the state of nature, in which right is not violated at all, and so need not reassert itself through punishment.
Similarly, Kant argues that the soldier and mother “find themselves in the state of nature” so that “these acts of killing” are not “to be called murder” (MM 6:336). As Sussman has pointed out, these cases involve the “right to honor,” which Kant regards as foundational to political society (MM 6:236).Footnote 39 However, to protect my honor in these cases—the dueling culture of soldiers or the chastity culture for women—“would be ineluctably personal, left to each individual to defend according to his own sense of justice.”Footnote 40 The state cannot prove my honor for me—I must do it unilaterally. In these cases, individuals exist in a state of nature with one another only with regard to the matter of honor—otherwise, they stand under a political society.
At the same time, the state cannot simply ignore such violations of freedom within its borders. Accordingly, these cases differ from the shipwreck in that, for Kant, the state is “responsible” for maintaining the culture of honor in society and thus fostering such conditions. As a result, the positive law cannot judge in accordance with pure right, but rather must issue a sentence that accommodates the mitigating factors of the culture it is complicit in promoting. Indeed, “from the perspective of the justice arising from the people,” or general will, these murders ought to be treated no differently from any other murder, these particular cultures of honor extinguished and indeed brought under the civil authority. Thus, Kant thinks, the general will condemns the “public justice arising from the state” as an “injustice” (MM 6:336–37). Kant's examples here, then, do not adopt a consequentialist approach to punishment, but rather recognize that under nonideal conditions of right, the state cannot legitimately punish what a criminal deserves.Footnote 41
In sum, these examples point to Kant's teleological understanding of right, according to which citizens should engage in a transgenerational project of upholding and reforming the law until it accords with the general will freely willing the freedom of all. On this view, the activity of upholding justice and reforming the law confers value on our activity, because only when justice obtains can there be any value to our existence at all. Accordingly, the unconditional concern for justice in a liberal society makes us much more than summer flies.
5. Conclusion
Burke charges that liberalism severs the connection between generations and devalues our existence, so that our lives are as cosmically insignificant as that of a fleeting insect. Kant provides a compelling defense of liberalism against this charge. The liberal community itself is on Kant's view a perpetual partnership for the gradual achievement of right. Rather than severing the generations, liberalism fuses them together in the common aspiration for freedom. Furthermore, Kant invests in freedom itself a cosmic value—it is the only part of existence that possesses unconditional value, and so freedom is of great metaphysical significance, serving to redeem the evils and limitations of nature and human history. Without freedom, life would be absurd. In this way, freedom becomes the end of humanity's striving, such that the project of liberalism is a project of lifting humanity out of a valueless animal existence. On Kant's view, liberalism emphatically does not undermine life's value, but fills it with significance.
However, one might worry that Kant has replaced human beings as “flies of a summer” with human beings as worker bees. Worker bees contribute to a project that far outlasts their lives—the preservation of the hive—but they never get to enjoy the fruits of their efforts. Similarly, citizens work for the eventual realization of right which they never see. What kind of satisfaction can this vocation bring? For Kant, however, every political community instantiates right to some degree, so that every individual in a political community can take advantage of the condition of right to exercise her freedom. Nevertheless, future generations will enjoy a more fully realized right than we will in the present, and so there seems to be an unfairness here. Yet Kant suggests that individuals’ moral efforts and citizens’ political work will live on beyond their lives, as future generations will build on their efforts. In this way, each generation does not really die, but subsists in the memory and moral and political progress of humanity.Footnote 42 Thus, we should not separate the generations as sharply as the objection does—for Kant, the generations form a perpetually existing community in which all gain spiritual satisfaction through participation in realizing right. Kant's idea of the political community as an enduring partnership of spiritual rather than material purposes thereby shares something in common with Burke's “great primeval contract of eternal society.”
In our current age, in which many individuals are turning to illiberal outlets to satisfy their hunger for meaning—blood-and-soil nationalism or fundamentalist religious communities, for instance—the liberal community could provide a liberal source of moral value that could unify and guide our longings.Footnote 43 One of conservatism's lasting critiques of liberalism has been that it abandons a higher sense of purpose, leaving it to individuals themselves to formulate notions of meaning in life. The result, conservatives claim, is that there no longer remains a communal and transgenerational sense of meaning. Liberalism provides individual liberty and material security at the expense of common purpose. Kant's liberalism, however, responds to this critique, holding out the possibility that liberty and meaning can both be realized.
