2. Rawls: Principles of Justice and Primary Goods

In the section of A Theory of Justice on the Kantian interpretation, which comes at the conclusion of part II (‘Institutions’), chapter 4 (‘Equal Liberty’), Rawls is actually summarizing the argument of the book to that point in Kantian terms that he had not yet introduced. The basic argument is that persons who want to ‘express’ their ‘nature’ as ‘free and equal rational beings’ will agree that principles of justice are those principles for the regulation of the ‘basic structure’ of society that would be selected in a situation or by a procedure that takes account only of the free and equal nature of the parties (or their representatives) and the ‘circumstances of justice’, that is, the ‘normal conditions under which human cooperation is both possible and necessary’ (1999a: 222, 109). The circumstances of justice, his conception of which Rawls avowedly models after Hume’sFootnote ⁷ (1999a: 109, n. 3) but which also contains traces of Hobbes, include objective circumstances such as proximity of people to each other, their relatively equal power, and moderate scarcity of resources, as well as subjective circumstances such as the fact that individuals have their own, potentially conflicting life plans or conceptions of the good for the realization of which they make ‘conflicting claims on the natural and social resources available’, as well as shortcomings including limited cognitive powers but also some tendency towards selfishness and negligence (1999a: 110). These are contingent facts about the human condition that are known empirically, although they are so obvious that we might not often think about how we know them. But they are general facts true for almost anyone rather than facts especially linked to anyone’s particular circumstances, so in a procedure designed to select principles of social organization for people who want to regard themselves as equal to each other they do not have to be and cannot be ignored. What does have to be ignored in such a decision procedure is knowledge about the special advantages or disadvantages of one’s own personal situation that might lead one to prefer principles of social organization that favour oneself over others in some way. This is why the principles of justice are to be chosen through a method, what we might consider a thought-experiment, in which the parties place themselves behind a ‘veil of ignorance’, that is, in which they ignore facts about their particular situation but not the general facts about the circumstances of justice. This is, of course, what Rawls calls the ‘original position’ (1999a: 15–19). In such a procedure, Rawls argues at great length, persons imagined to be motivated by and operating under instrumental rationality will select the principles of justice that Rawls identifies, as those most likely to maximize their well-being whatever their actual particular circumstances turn out to be. The principles of justice are ‘those which rational persons concerned to advance their interests would consent to as equals when none are known to be advantaged or disadvantaged by social and natural contingencies’ (1999a: 17). But it is crucial to Rawls’s argument that the reason that real people who do know their particular circumstances, with their particulars goals as well as strengths and weaknesses, accept the principles of justice that would be chosen in the thought-experiment is that they do want to express their nature as free and equal rational beings. Their appeal to the fact that people do want to achieve their ends in the actual circumstances of human existence expresses their commitment to their freedom to set and pursue their ends, whatever those turn out to be, while their acceptance of the constraint of the veil of ignorance on their decision-procedure for principles of justice, which blocks special pleading from their particular situation, expresses their commitment to their equality. As Rawls emphasized in the Tanner Lectures, the prudential reasoning that the figures in the thought experiment do within the original position, or the ‘rational’, is constrained by the moral reasoning, or the ‘reasonable’, that determines the design of the original position, and which represents the moral commitments of real people. ‘Indeed, the rational autonomy of the parties [in the original position] is merely that of artificial agents who inhabit a construction designed to model the full conception of the person as both reasonable and rational’ (1983: 20), that is, moral as well as prudential.

Rawls also argues that his method for the choice of principles of justice reflects what he calls the two ‘moral powers’ of human beings, and in this regard his argument for the principles of justice does not change between his earlier and later expositions of his view. Thus, his later presentation of the principles of justice as independent of any ‘comprehensive’ philosophical or theological view does not mean that the principles are independent of a certain basic moral principle, namely that these two powers are morally fundamental. (Thus, what Rawls calls public reason, which must eschew appeal to comprehensive moral doctrines, need not eschew appeal to the two moral powers.) Maybe there are different ways of arriving at the recognition of these two powers as morally fundamental, but the principle that they are is an ineliminable starting-point for all of Rawls’s argumentation. The two moral powers are the capacity to form ‘a conception of the good’ and that of being ‘capable of a sense of justice’, as Rawls describes them in A Theory of Justice (Reference Rawls1999a: 17).Footnote ⁸ As he further explicates his conception of these powers in the Restatement, they are the ‘capacity to have, to revise, and rationally to pursue a conception of the good … [an] ordered family of final ends and aims which specifies a person’s conception of what is of value in a human life’, on the one hand, and, on the other, ‘the capacity to understand, to apply, and to act from (and not merely in accordance with) the principles of political justice that specify the terms of social cooperation’. These are the capacities to be rational and reasonable, respectively. Rawls adds here that ‘the elements of such a conception’ of the good, that is, a conception of what is of value in a human life, ‘are normally set within, and interpreted by, certain comprehensive religious, philosophical, or moral doctrines in the light of which the various ends and aims are ordered and understood’ (2001: 18–19), and he obviously assumes that as people’s comprehensive conceptions of the good differ so will their conception of appropriate ends in a good life, or vice versa. But it is also clear that all who are to share principles of justice must share the conception of these two powers as the two fundamental moral powers of human beings, for it is on the basis of such a conception that the principles of justice are derived. This is because these two moral powers are the basis of the conception of ourselves as free and equal persons, and the commitment to them is the basis of wanting to express our conception of ourselves as free and equal persons. The conception of ourselves as capable of setting our own ends in life is the conception of ourselves as free, and the conception of ourselves as capable of acting on a sense of justice, or applying our sense of justice to our freedom to set our own ends, is the conception of ourselves as equal, or more precisely, as equally free. That is, the capacity for justice is what determines us to adopt the principle of exercising our capacity for pursuing our own conceptions of the good only under conditions of equality. But throughout this argument, our conception of our capacities for setting our own ends and for a sense of justice as moral is what makes our desire to express our nature as free and equal beings moral. The foundation of the principles of justice in a conception of the moral powers of human beings thus remains constant from earlier to later Rawls.

The principles of justice are thus those arrived at by persons whose fundamental moral principle, however they may embed that in a comprehensive moral conception, is that all should be equally able to exercise their freedom to have and rationally pursue their own conceptions of the good. Of course, the possibility of the realization of one person’s conception of the good may conflict with the possibility of the realization of another’s, so all can be equally free to pursue their conceptions of the good only if all accept some principle of compatibility among conceptions of the good as a constraint on their own conceptions and pursuit of their good. This is the function of the principles of justice that would be adopted by persons in the original position and that should be adopted by real people committed to the moral status of the two moral powers because the original position is the way to work out what that commitment entails. Rawls states these with a few subtle variations early and late. In A Theory of Justice, he formulates the principles thus:

Rawls argues that these principles are to apply primarily to the ‘basic structure of society and govern the assignment of right and duties and regulate the distribution of social and economic advantages’, not every person-to-person interaction. Thus although the principles have a moral foundation, they are not meant to exhaust the content of morality. Further, in the ensuing sections Rawls clarifies the first clause of the second principle by arguing that what he means by ‘to everyone’s advantage’ is not average utility or overall efficiency in the social system’s production of goods or benefits, but rather that any permissible inequality in the distribution of social and economic advantages maximize the well-being, that is, success in realization of their aims, of the least well-off, in comparison to any available alternative distribution. This is what Rawls calls the ‘difference principle’, and the argument, shorn of tremendous detail, is simply that this is the principle of distribution that it is rational for people who do not know their actual circumstances and prospects in life to choose, thus the principle that it is rational for the ‘artificial agents’ or fictional people in the original position to choose and reasonable or moral for real people to choose because of their commitment to using the device of the original position to find the principles that express their nature as free and equal rational beings (1999a: 57–73).

In ‘The Basic Liberties and their Priority’, Rawls reverses the order of the two clauses of the second principle:

In the Restatement, Rawls preserves this reversal of order in the second principle and makes several further modifications:

The result of the argument that the requirement that inequalities be to everyone’s advantage is best interpreted as the difference principle is now included in the statement of the principle, but as in the Tanner Lectures the two clauses of the second principle are also now reversed: the requirement of equality of opportunity to seek offices and positions within the basic structure of society and their benefits is now placed ahead of the difference principle rather than after it.

The reversal of the order of the clauses of the second principle simply brings the statement of the principle into line with what Rawls had already argued in A Theory of Justice. For there he had argued that the two principles are lexically ordered, that is, that satisfaction of the first principle has priority over satisfaction of the second, that is, that in any case of conflict satisfaction of the second principle must give way to satisfaction of the first – ‘infringements of the basic equal liberties protected by the first principle cannot be justified, or compensated for, by greater social and economic advantages’ (1999a: 53–4) – but also that ‘inequalities so long as they improve everyone’s situation, including that of the least advantaged’, that is, what comes to be interpreted in terms of the difference principle, should be allowed only ‘provided that they are consistent with equal liberty and fair opportunity’ (1999a: 131). The idea remains that parties in the original position, seeking to maximize their own freedom, would want above all a scheme of equal basic liberties, then equality of opportunity with regard to the offices of society, and only then the application of the difference principle to remaining inequalities in their situations, and we real people, committed to expressing our moral self-conception as equally free persons, should select these principles, ordered in this way, from among other possible conceptions of justice.Footnote ⁹

The application of these principles, in either of their formulations, depends upon a conception of ‘basic liberties’ as well as the further conception of the offices and benefits made available by the basic structure of society, all of which together are subsumed under the rubric of ‘primary goods’. The basic liberties are the ‘essential social conditions for the adequate development and full exercise of the two powers of moral personality over a complete life’ (1983: 7); Rawls does not think that they can be completely specified a priori, but any list of them will include personal liberties such as freedom of conscience and speech as well as political liberties such as the right to vote, run for office, or petition. Rawls explicates the priority of the first over the second principle of justice by emphasizing that ‘Since the basic liberties may be limited when they clash with one another, none of these liberties is absolute’, but that they cannot be limited ‘for reasons of public good or of perfectionist values’ such as considerations of ‘efficiency’ (1983: 9).

The primary goods are then the concern of the second rather than first principle of justice. Rawls’s general definition of primary goods changed from the period of A Theory of Justice to that of the Restatement to reflect the change in his conception of his argument from metaphysical to political, but his list of the primary goods did not.

In the Restatement (2001), Rawls introduces a political turn to the definition of primary goods:

But Rawls’s substitution of the terminology of political persons or citizens for his previous reference to the moral powers of persons makes no difference to the ensuing list of primary goods, which is virtually identical to the earlier one. Indeed, the terminology of moral powers rather than of political citizenship reappears in the actual list:

The general idea of the primary goods as goods that are at the disposition of society rather than nature (as examples of the latter, Rawls mentions not only ‘intelligence and imagination’ but also ‘health and vigor’, even though the latter are surely to some degree influenced by social and not merely natural factors) that ‘normally have a use whatever a person’s rational plan of life’ and thus ‘things that every rational man is presumed to want’ is clear enough (1999a: 54). But the logic of his list is not completely transparent. We might propose that freedom of thought and conscience and socially based self-respect are conditions that psychologically facilitate the formation and revision of conceptions of the good and plans of life, while freedom of movement, freedom of opportunity, access to offices and positions of power, and plain old income and wealth are conditions that materially facilitate the realization of ends. Of course, any rigid distinction between psychological and material, or inner and outer, would be misleading, since in real life even the formation of one’s conception of a good life is facilitated not only by one’s own thought but by free expression and interaction with others. Nevertheless, there is a difference in principle between the conditions for the formation of conceptions of the good and those for the successful pursuit of them, and that might well have been marked by the organization of Rawls’s list. It might also be remarked that freedom of thought, conscience and access to the social bases of self-respect should be virtually unlimited, since the freedom of anyone to enjoy these goods should really not interfere with the freedom of anyone else to do so, while freedom of opportunity, access to offices and of course access to wealth and income is going to have to be more constrained in the name of equality, since these resources are limited and it will never be possible for everyone to have unlimited access to them. Although as we saw Rawls holds that even the basic liberties are not absolute, the ways in which they might actually clash with one another are less obvious than the ways in which the claims to the liberties enshrined in the second principle of justice and claims to primary goods can clash with one another.

Even though Rawls does not remark upon these differences among the items on his list(s), it could be argued that much of what has just been said is implicit in the correlation of his list of primary goods to the principles of justice and the lexical ordering of those principles. For his first principle concerns the equality of basic liberties, thus primary good (i) and perhaps (v), while the second principle concerns equality of access to opportunities and means, thus primary goods (ii) to (iv), and the first is not to be limited by the second; this could be taken to reflect the way in which maximal freedom of thought, conscience and self-respect should not trigger conflict and require limitation, while freedom of access to opportunities and income inevitably triggers conflict and needs to be limited in the name of equality. Further, it could also be argued that the sequence of items (ii), (iii) and (iv) on Rawls’s list actually reflects the lexical ordering of the two clauses of the second principle of justice, as reordered in the restatement, with the difference principle to be applied to inequalities of income and wealth only after not only the principle of equal basic liberties but also the principle of equal opportunity, including opportunity for public office, has been satisfied.

This is why I think it would have been useful for Rawls to have made explicit use of Kant’s own doctrine of right. For in my view, both the moral foundation of right and the rationale for the lexical ordering of the primary goods, in Kant’s terms the categories of right, are clearer in Kant than in Rawls. So, I will now review the structure of Kant’s doctrine of right and then show how it could be used to clarify the logic of Rawls’s theory of justice.

3. Kant’s Doctrine of Right

As previously noted, whether Kant’s doctrine of right is grounded on his moral philosophy, and if so, how, has been intensively debated. My own position is that since Kant stated the fundamental principle of morality in his Groundwork for the Metaphysics of Morals (1785) and included his doctrine of right in a Metaphysics of Morals (1797), he must have conceived of the doctrine of right as a part of morality, dependent on its fundamental principle, in particular that he conceived of right as the subset of morality that it is physically possible and morally permissible, indeed morally necessary, to enforce through the coercive mechanism of the state. This view is sometimes rejected on the ground that the fundamental principle of morality is the requirement that we act only on universalizable maxims while right does not concern maxims at all, but only the external effects of our actions on one another. Such an objection overstates the importance of the universalizability formulation of the categorical imperative while failing to recognize that right also concerns maxims of action. KantFootnote ¹⁰ explicitly mentions maxims in his official formulation of the ‘Universal Principle of Right’: ‘Any action is right if it can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with a universal law’ (MM-DR, Introduction, section C, 6: 230; Kant Reference Kant1996: 387). For even in matters of right the issue is not simply whether an action as performed interferes with the freedom of choice and external action to which others are entitled in accordance with a universal law – that is, with the entitlement of all to a freedom equal to our own or of each to the greatest freedom compatible with the equal freedom of all – but with whether the action as intended, thus with whether the maxim or policy it expresses, violates the freedom of others. That is why attempted murder is a crime even if it is a complete failure, while an unintended harm to another, at least if it is not due to a criminal level of negligence, may be a tort but not a crime. But this is still not to say that the law cares about the agent’s fundamental motivation for adopting a particular maxim or intention. Interpreters have been confused over this issue because in Religion within the Boundaries of Mere Reason Kant calls what I am here calling the agent’s fundamental motivation his ‘fundamental maxim’ (see Rel 6:22-5, 36); thus, Kant’s insistence that ethics requires an agent to be moved by the ‘internal’ motivation of respect for the moral law itself while right or law is satisfied with the ‘external’ motivation of fear of legal sanction has been mistaken for a claim that the law does not concern maxims at all. But motivation by respect for the moral law is Kant’s requirement for moral worth, his secularization of the (Protestant) idea that only actions performed out of love of God are well-pleasing to God (Rel, part four, second part, §2, 6: 170–3), not a requirement for morality in general or a part of the specific duties demanded by morality, such as the ethical duties of self-perfection or beneficence to others – or the duties of right. Even if the ethical obligation to be virtuous demands motivation by the moral law itself, morality in general demands simply that its duties be fulfilled, even when that motivation is not available, and under certain circumstances – the circumstances of justice, the circumstances not only of finite resources but also of limited virtue in which we actually live – morality itself demands that sufficient non-internal incentives for fulfilment of its duties be put in place, by acting in accordance with which we do not earn moral esteem but at least avoid moral demerit (MM-DV, Introduction, section VII, 6: 390–1; Kant Reference Kant1996: 521–2). That is why in Kant’s view morality itself can impose upon us the obligation to join and/or maintain a state, which exists to enforce compliance with the duties of right (MM-DR, §42, 6: 307–8; Kant Reference Kant1996: 451–2).

The gist of my approach to Kant’s doctrine of right is that morality as such commands the ‘self-consistent’ and ‘greatest use of freedom’, that is, not just equal freedom but the preservation and promotion of the freedom of each to the greatest extent compatible with the preservation and promotion of the freedom of all, and that right concerns simply that subset of moral duties where it is possible to preserve the greatest consistent freedom of all by hindering hindrances to that freedom by the use of coercion.Footnote ¹¹ This general characterization of morality is not always obvious from Kant’s statements; in particular, in the Groundwork for the Metaphysics of Morals, reasonably taken as Kant’s foundational work in moral philosophy, Kant never describes the fundamental object of morality as freedom or the greatest possible self-consistent use of freedom. But in that work Kant does say that ‘ground of a possible categorical imperative’ can lie only in something that is an ‘end in itself’ and that the only thing that is an end in itself is humanity, or rational being in the only form we know it, namely human form, thus implying that the foundational formulation of the fundamental principle of morality is ‘So act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means’ (G, section II, 4: 428–9; Kant Reference Kant1996: 78–80). And then Kant defines humanity as ‘the capacity to set oneself an end –- any end whatsoever’ (MM-DV, Introduction, section VIII, 6: 392, see also section V, 6: 387; Kant Reference Kant1996: 522, 518). This means that the principle of morality in its most fundamental form is that the capacity to set our own ends – nothing other than Rawls’s first moral power – is the end in itself and should always be treated as an end, never merely as a means, in one’s own person and that of every other. Whether we start from Kant’s terminology in his lectures or in the Groundwork, we end up in the same place: morality commands the great possible and consistent intra- and interpersonal use of freedom. And to anticipate a further link to Rawls, Kant’s formula in the Groundwork already introduces the idea of a lexical ordering: what we use our freedom for is to set particular ends – in Rawls’s terms, to develop a conception of the good – so our freedom can be seen as a means to the realization of those ends; but the fact that it must always be treated as an end and never merely as a means entails that in case of any conflict between the conditions for the realization of some particular end and the preservation and promotion of intra- and interpersonal freedom as such, the former must give way to the latter. This requirement can be regarded as entailing Rawls’s second moral power, the sense of justice, and to explain the priority of the principle of equal basic liberties over all else.

Just how Kant grounds the fundamental principle of morality is another vexed question. In the lectures on ethics, he simply states that freedom is the ‘highest degree of life’ and the ‘inner worth of the world’, as if this were a self-evident normative truth (Eth-Collins, 27: 344; Kant Reference Kant1996: 125). But earlier, Kant had noted that:

This suggests that Kant then thought it a plain fact that human beings have their own wills, the capacity to set their own ends, and that it is a violation of the most fundamental principle of theoretical reason, namely the law of non-contradiction, to behave in a way that is tantamount to asserting that something that has a will, whether it is oneself or another, does not. On this approach, the fundamental principle of morality would be anchored in the most fundamental principle of reason in general, not in some special normative truth. I believe that this way of thinking remained foundational for Kant; for example, in the Groundwork he asserts that the human and in general every rational being is an end in itself because ‘their nature already marks them out as an end in itself’, that is, this is simply a fact that cannot rationally be denied (G, 4: 428; Kant Reference Kant1996: 79). To be sure, Rawls might well have balked at using such a foundation for morality as a foundation for the principles of justice, preferring to leave it as an unadorned empirical fact that people (as in A Theory of Justice) or citizens in a democracy (as in his later writings) just want to express their nature as free and equal rational agents. But in any case, this is not the place to argue more fully for an interpretation of the foundation of Kant’s moral philosophy; our task now is rather to continue the exposition of Kant’s doctrine of right that follows from his moral philosophy and then see how that might clarify the structure of Rawls’s theory of justice.

Here the crucial point is that the Universal Principle of Right is just the application of the fundamental command of morality to the case in which one person’s external use of his freedom, that is, his action in furtherance of some end he has chosen, can constrain the external use of the freedom of others, that is, their freedom of action. This principle simply commands that in such cases each limit the use of his own freedom to a level that is compatible with the equal use of freedom by all, but only to that level. Any action is right that is consistent with this principle, or as Kant says ‘can coexist with everyone’s freedom in accordance with a universal law’, namely the law that ‘the choice of one can be united with the choice of another’; wrong is hindering any action or ‘condition generally’ that ‘can coexist with the freedom of everyone in accordance with a universal law’; and since, according to Kant, ‘Resistance that counteracts the hindering of an effect promotes this effect and is consistent with it’, ‘strict right’ is the use of coercion in opposition to any use of freedom that ‘is itself a hindrance to freedom in accordance with universal laws’ (MM-DR, Introduction, sections C–E, 6: 387–8; Kant Reference Kant1996: 387–8). On the basis of the logical principle that a double negation is equivalent to an affirmation, Kant infers that since morality commands freedom in accordance with a universal law, it also commands a hindrance to any hindrance to such freedom; it commands coercion in all but only those cases where that is necessary to preserve freedom in accordance with a universal law.Footnote ¹³ Kant again observes that from the juridical point of view:

As previously noted, Kant is referring here to what in the Religion he calls the agent’s fundamental maxim (Rel, 6: 36): the law cares about our intended actions, what we were trying to do, as expressed by our particular maxims, but it does not care about our ultimate motivation. But it is still morality as such that requires that we refrain from intending actions that would compromise the equal freedom of others.

On this universal or fundamental principle of rights, Kant then erects three categories of right, namely innate right, private right, and public right. Kant’s introduction of the first of these categories of right shows its moral foundation: ‘Freedom (independence from being constrained by another’s choice), insofar as it can coexist with the freedom of every other in accordance with a universal law, is the only original right belonging to every person by virtue of his humanity’ (MM-DR, Introduction, Division of the Doctrine of Right, section B, 6: 237; Kant Reference Kant1996: 393). The right to freedom insofar as it can coexist with the freedom of others is innate in the sense that it flows directly from the humanity, the capacity to set his own ends, that is in every human being, and it is original in the sense that it does not depend upon any further act, for example, entering into a contract: by the fundamental principle of morality, each has an obligation to treat the humanity of every other as an end in itself, as long as its exercise is compatible with the same status for the freedom of all, including his own, so correlatively each has a right independent of any special agreement to the fulfilment of that obligation by any and all others. Kant then explicates the content of this right in terms of three ‘authorizations’ (Befugnisse): first, ‘innate equality; that is, independence from being bound by others to more than one can in turn bind them’, thus the quality of being one’s ‘own master’; second, being ‘beyond reproach, since before he performs any act [one] has done no wrong to anyone’; and finally, ‘being authorized to do to others anything that does not in itself diminish what is theirs, as long as they do not want to accept it – such things as merely communicating his thoughts to them, telling or promising them something, whether what he says is true and sincere or untrue and insincere’ as long as ‘it is entirely up to them whether they want to believe him or not’ (MM-DR, Introduction, General Division of Right, section B, 6: 237–8; Kant Reference Kant1996: 393–4). That is, in virtue of their innate and original right to freedom, independent of any antecedent agreement, everyone is equal before the law, no one enjoying any privilege withheld from others; everyone is equal before the law, not suffering any legal disadvantage or juridical equivalent of original sin, unless they have brought on some legal disability by an actual deed of their own; and everyone has complete freedom not only of opinion but of speech as long as such speech is not coercion or manipulation. The latter, of course, would be a direct impairment of the freedom of others, an abridgement of their freedom and an arrogation of freedom to oneself that is not compatible with the equal freedom of others, but merely saying something to them even if one believes it to be false, or even promising something to them as long as they are not manipulated into accepting that promise, is not a direct injury to their own freedom (even if it might offend their sensibilities). Fraud, of course, is a manipulation of another, withholding information needed by the other to properly decide whether to accept a promise; and yelling ‘Fire!’ in a crowded theatre induces a panic in which people cannot freely decide what to do. But otherwise, mere speech does not directly impair the freedom of any other, and thus freedom of speech is part of the innate right to freedom. On Kant’s approach, freedom of speech does not need a special defence as a means to the realization of the moral powers or to civil rights, as Rawls argues in ‘The Basic Liberties’ (1983: 55–72); other things being equal, it just is part of freedom.

Kant’s second category of right is acquired rather than original right, that is, the right to acquire something by agreement with others to which one does not already possess a right simply in virtue of one’s own freedom and the obligation of others to treat that freedom as an end and not merely as a means to their own ends. There are three sorts of things to which one can acquire rights, namely, physical objects such as land and the objects that sit upon it or can be produced upon it; specific performances by others, such as the deliverance of a specific service or goods under a contract; and long-term rights over others, such as rights to their labour or sexual attributes (for Kant, only within marriage). Kant calls the first category rights to ‘things’, the second category of acquired right, namely contract right, ‘rights to persons’, and the third category ‘rights to persons akin to rights to things’ in order to mark the contrast between contracts for specific performances and contracts for longer term and more general relationships, although he is careful to note that there can be no valid contract in which one party simply gives up all his freedom: ‘a contract by which one part would completely renounce its freedom for the other’s advantage would be self-contradictory … since by it one party would cease to be a person and so would have no duty to keep the contract but would recognize only force’ (MM-DR, §30, 6: 282; Kant Reference Kant1996: 431). This little argument against the permissibility of a contract of self-enslavement demonstrates Kant’s underlying tendency to argue for moral principles from the fact of human freedom combined with the principle of non-contradiction.

The opening paragraphs of Kant’s discussion of acquired right are textually corrupt and his argument notoriously obscure. But the basic idea seems to be that property consists not in mere physical possession, because in that case one could not possess more than one can hold on to at one moment and any injury to one’s property would be merely an injury to one’s innate right to freedom of the person, nothing more, but instead in ‘intelligible possession’ (MM-DR, §1, 6: 245; Kant Reference Kant1996: 401), which is an ‘omnilateral’ will or agreement of all who could control the property or service at question that one party rather than the others will get the right to control it and use it as he sees fit (MM-DR, §8, 6: 255–6; Kant Reference Kant1996: 409). Such an agreement could obviously be obtained in two ways, either by the coercion of the others involved or by their free consent. But if the innate right to freedom of all is to be honoured, then equally obviously the consent that constitutes an omnilateral will must be obtained freely: the innate right to freedom gives all a right to try to acquire property in its various forms but also limits that acquisition to conditions in which consent to it could be freely granted.Footnote ¹⁴ Kant does not say this as explicitly as he might have, but does say that in case of controversial claims to acquired right ‘someone who refuses to accept’ the disputed ‘obligation can appeal methodically to his innate right to freedom’ (MM-DR, Introduction, Division of the Concept of Right, section B, 6: 238; Kant Reference Kant1996: 394), which implies that claims to acquired right are grounded in and subject to the innate right to freedom. He also says that ‘The nominal definition of what is externally mine … would be: that outside me is externally mine which it could be a wrong (an infringement upon my freedom which can coexist with the freedom of everyone in accordance with a universal law) to prevent me from using as I please’ (MM-DR, §5, 6: 248–9; Kant Reference Kant1996: 403). That is, to deny me the right to use something might be an infringement of my innate right to freedom, but my taking control of it will be an infringement of the innate right to freedom of others unless they have freely agreed to this. Thus, the possibility of acquired right is dependent upon innate right, but the extent of acquired right is also limited by the innate right to freedom of all. This entails a lexical subordination of property rights to the innate right to freedom.

The necessity of establishing an omnilateral will for any acquired right follows from the innate right of each to the greatest freedom consistent with the equal freedom of all. But it does not follow that omnilateral will must always be established by explicit consent. Contracts for the exchange of some designated services or goods for a designated price as well as contracts for rights to persons akin to rights to things such as labour and marriage contracts typically do require some explicit form of consent. But the situation is different with regard to property rights, at least with regard to the fundamental right to land. While in any exchange of existing rights to land, specific parties must explicitly consent to the transfer, the fact of individual possession of land itself is constituted by an exclusive right to control that land on the part of one party as opposed to all others who might in principle have enjoyed that right – which is to say all the people occupying some territory, or, since no part of the surface of the earth fails to be accessible to any other, though with greater or lesser difficulty, all the occupants of the earth. Obviously, all the inhabitants of the earth or even all of the occupants of any smaller region of its surface cannot explicitly give their individual consent to individual ownership of some parcel of it, either all at once or as they individually come of age. In this case some form of hypothetical consent must do the job, namely, some system of rightful possession to which all could rationally and freely agree because it preserves the freedom of each to acquire and hold property on fair terms and thus to use such property for the ends they set for themselves. Kant expresses this idea by saying that ‘the rational title of acquisition can lie only in the idea of a will of all united a priori … which is here tacitly assumed as a necessary condition’ (MM-DV, §15, 6: 264; Kant Reference Kant1996: 416). He further specifies the condition for free and equal consent to a system of property rights by suggesting that we use the non-empirical, ‘practical rational concept’ or idea of an ‘original possession in common’ from which individual properties would be carved out (MM-DR, §13, 6: 262; Kant Reference Kant1996: 415); the key assumption, which once again he does not make explicit, is that people who originally had an undivided right to the possession of the whole would not freely agree to any scheme for assigning individual rights to parts of the whole unless they thought that this scheme was fair to themselves. Since everyone has an innate right to their freedom and thus to give their consent freely, this would mean that all should agree only to a scheme that is fair for all. While further argumentation would no doubt be necessary to get from this general requirement of fairness flowing from the innate right of each to freedom to Rawls’s difference principle, some conception of fairness is built into Kant’s basic idea of rightful possession by the combination of the ontology of property as intelligible possession with the innate right to freedom.Footnote ¹⁵

Kant’s third category of right is ‘public right’. The function of a state is to make rights or claims to rights that are merely ‘provisional’ in a state of nature ‘conclusive’ or ‘peremptory’ (peremptorisch). Rights are only provisional in a state of nature partly because their scope may be indeterminate, as would be the case for claims to land without publicly recognized surveys and deeds, and partly because such claims are only as secure as the individual force of their owners can make them. The claims that would be merely provisional in the state of nature must be made determinate and secure by means of a state, and such claims are provisional in the further sense that they are rightfully made only with an eye to the existence of the state, for otherwise they are just assertions of individual force. The state makes provisional rights conclusive by codifying the rules for innate and acquired right in positive law and by establishing a juridical and penal system for the enforcement of this law. Of course, the state can rightfully use coercion only to hinder hindrances to freedom, so every function of the state including making property rights determinate and conclusive is always subject to the Universal Principle of Right and the innate right of all to equal personal freedom. Again, lexical ordering is built into Kant’s system of categories of right: while only the establishment of a state can make rights conclusive in the sense of determinate and secure, the content of public right in the state is constrained by the contents of innate and private, acquired right.Footnote ¹⁶

While Rawls, especially in his political phase, assumes that he is providing principles of justice for people who live and want to live in democracies, Kant argues that only a republic, or at least a state that is governed as if it were a republic (forma regiminis), whatever the actual form or structure of its government (forma imperii), can produce a rightful condition,Footnote ¹⁷ and part of Rawls’s second principle of justice as well as of his list of primary goods follow directly from Kant’s conception of republican government. On this conception, sovereignty arises from the people, as it must if the state serves only to make conclusive the provisional right of all to their freedom, so the ‘legislative authority can only belong to the united will of the people’ (MM-DR, §46, 6: 313; Kant Reference Kant1996: 457). Kant assumes without argument that in modern circumstances the legislature can only be representational, not an assembly of all citizens, but preserves the sovereignty of all by holding that the representational legislature must evaluate proposed laws with reference to the idea of an ‘original contract … in terms of which alone we can think of the legitimacy of state’ (MM-DR, §47, 6: 315; Kant Reference Kant1996: 459). Kant’s theory of a rightful state is a social contract theory only in the sense that the idea of laws to which all could agree is the test of the rightfulness of the legislation enacted by a representative legislation in the name of the people. He holds then that judgements about the application of the legislature’s laws to particular cases must be made through a judiciary whose members can be regarded as the ‘people judg[ing] itself through those of its fellows whom it designates as its representatives for this by a free choice’, although he does not specify the method of choice. Finally, he holds that the judgements of the judiciary must be enforced by an ‘executive authority (potestas executoria)’ who has a monopoly on the use of coercion and thus cannot be forcibly disciplined by the people acting through their legislature, let alone acting as a mob, but who is nevertheless only the ‘agent of the state’ and who is therefore morally bound to ‘exercise coercion in conformity with the law’ even though it would lead to a vicious regress for any other organ of the state to attempt to coerce the executive into conformity with the law (MM-DR, §49, 6: 316–17; Kant Reference Kant1996: 460). A state is an institution intended to motivate conformity to its laws by coercion when its subjects are not moved to conform by their own good will, that is, by their respect for the moral law, but no institution can be operated without individual human beings in positions of power, and since there cannot be an infinite regress of individuals ruling over one another, at some point or points in the system we ultimately have to rely on good will. For Kant, the ‘moral politicians’ or legislators who design a rightful state as well as the executive who must enforce their laws but cannot himself be rightfully coerced must be moved by morality in their design and maintenance of the political institutions that can rightfully coerce others (IUH, Sixth Proposition, 8: 23; in Kant Reference Kant2007: 113–14, and TPP, Appendix I, 8: 372; Kant Reference Kant1996: 340).Footnote ¹⁸

Finally, Kant adds several remarks about the powers of government and its limits to his very general description of the three branches of a proper republic that bear on the comparison of Kant and Rawls that we will shortly undertake. Throughout these remarks Kant refers to the ‘ruler’ (Beherrscher) or ‘supreme commander’ (Oberbefehlshaber) without it being completely clear whether he is talking about the legislature that embodies the sovereignty of the people or the executive who is the agent of the legislature (a point Kant might have preferred to obfuscate in the Prussian monarchy under which he worked). But what is clear is that the state derives all of its authority from the moral right of the populace and is not entitled to do anything that conflicts with their innate right to freedom. The first remark contains Kant’s argument that even though the people through their legislature are sovereign, there cannot be a right of rebellion against the executive because that would lead to anarchy rather than a coherent use of coercion. Kant next argues, against lingering feudalism, that the state or its ruler cannot be considered the ‘supreme proprietor’ of the land who grants individual possessions out of his beneficence, but rather that the ruler represents ‘only the idea of the civil union that serves to represent in accordance with concepts of right the necessary union of the private property of everyone within the people under a general public possessor, so that determination of the particular property of each is in accordance with the necessary formal principle of division’ (MM-DR, General Remark B, 6: 323; Kant Reference Kant1996: 466). In other words, property within a state cannot be distributed in accordance with the whim of any particular person happening to occupy a position of power, but only in accordance with the idea of a freely established omnilateral will, as required by the Universal Principle of Justice and innate right of freedom. The right of the state to tax or require services for its maintenance and defence, or to distribute these burdens rather than benefits of ownership, also derives from and is subject to the limitations of this ground (MM-DR, General Remark B, 6: 325; Kant Reference Kant1996: 467). Kant then adds that the right of the state to ‘impose taxes on the people for its own preservation, such as taxes to support organizations providing for the poor, foundling homes and church organizations’ also derives only from the people’s own right and duty to preserve themselves and their freedom of action, and is subject to the limits inherent therein. In particular, Kant emphasizes that:

In other words, because of the innate right of freedom no one has the right to abridge anyone else’s freedom of belief and inquiry (and speech, because churches involve speech not just belief), indeed no one has the right to restrict their own belief and inquiry, so since all rights of rulers derive from the rights of the people, no ruler can have such a right.

Further, Kant adds that:

But the principle governing such distribution of offices and honours is that ‘What a people (the entire mass of subjects) cannot decide with regard to itself and its fellows, the sovereign can also not decide with regard to it’, thus ‘the head of state can never make a decision about a civil official which the united will of the people would not make’ (MM-DR, General Remark D, 6: 329, 328; Kant Reference Kant1996: 471, 470) – any other principle would be a violation of the Universal Principle of Right and the innate right to freedom. In particular, Kant emphasizes that although only secure tenure for public officials will allow them to develop the competence the state, that is to say, the people, needs them to have, there can be no hereditary offices and honours in a rightful state because heredity provides ‘no basis to hope for merit’ and talent for office, so no people would freely agree to any such institution. This implies that all offices and honours in a rightful state must be open to all qualified citizens, with necessary principles of selection in case there are too many applicants being made by criteria to which all could freely agree. The only people who can be barred from the right to seek office are those who have lost the ‘dignity of a citizen’ by their own crime. (MM-DR, General Remark D, 6: 330; Kant Reference Kant1996: 471)

Many points in Kant’s doctrine of right are sketchy, at least when his text is read without its rich background in eighteenth-century political theory, above all the point that all possession of private property is subject to a general constraint of fairness. But the general structure of his doctrine, deriving acquired right and public right from the innate right to freedom and the lexical entailed by that derivation, is clear enough. So now let us see how the structure of Kant’s theory of rights might clarify the structure of Rawls’s account of the principles of justice and the primary goods.

4. Principles of Justice, Primary Goods and the Categories of Right

Kant’s categories of right and Rawls’s list of primary goods do not add rights to the basic conception of justice, Kant’s Universal Principle of Right on the one hand and Rawls’s two principles of justice on the other; they specify what those principles imply under the basic conditions of human existence or implement those principles under these conditions. In Kant’s case, this is clear from his description of a metaphysics of morals in general as ‘show[ing] … what can be inferred from universal moral principles’ when ‘we take as our object the particular nature of human beings’ (MM-DR, Introduction, section I, 6: 217; Kant Reference Kant1996: 372): the Universal Principle of Right is inferred from ‘universal moral principles’ by the addition of the fact about ‘human nature’ that one person’s freedom of action can interfere with that of others and then the more specific principles of innate, acquired, and public right are inferred with the addition of such further facts about human nature as that people speak, that they need to use physical objects and enter into various relationships with one another to realize their ends, and that they are not always motivated to do what is right by respect for the moral law alone but sometimes need to be coerced into doing so. In Rawls’s case, that the relationship between the principles of justice and the list of primary goods is one of specification rather than addition should be clear from the fact that, for example, the first principle refers to a system or scheme of equal basic liberties and then the first item on the list of primary goods specifies or at least gives some examples (freedom of thought and liberty of conscience) of what those basic liberties are. So, the question now is, how do the particular items on Rawls’s list of primary goods implement his principles of justice, and can Kant’s presentation of the categories of right help us understand the underlying structure of Rawls’s theory?

The most striking difference between the two accounts is, of course, that Kant presents a single Universal Principle of Right while Rawls offers two principles of justice. But in both cases the principle or principles respectively are supposed to express a single moral norm, that we are all free agents whose freedom ought to be maximally but equally preserved in all our interactions, or more specifically in all those affected by the basic structure of society, in Rawls’s terms, or that are appropriately governed by the coercive instrumentality of the state, in Kant’s terms. One advantage to Kant’s mode of presentation might be that while Rawls has to add the rider that the two principles are lexically ordered, the second being subordinate to the first, Kant’s single principle makes its priority in all circumstances self-evident, with lexical ordering at the level of implementation being implied by the relationship among innate right, acquired right and public right: as original, the innate right to freedom both grounds the possibility of acquired right and limits their scope – no system of acquired right could be justified that abrogates the innate right to freedom, as was evident from the structure of Kant’s argument against self-enslavement – and public right, as the system for making both innate and acquired right determinate and secure, is obviously limited in its scope to that function. So, on Kant’s account there is no need to add any lexical ordering of principles of justice or primary goods as an additional assumption needing its own justification; it is built into the theory. That is, the constituents of the innate right of freedom instantiate the equality in the external use of freedom that is prescribed by the Universal Principle of Right, the forms of private right are derived from that combined with the assumption that human beings need to use external objects and even each other to realize their freely set goals, and the use of coercion by the state is justified only to the extent necessary to make the previous two categories of right determinate and secure.Footnote ¹⁹

Next, because Rawls lists two principles of justice but five categories of primary goods, we have to specify how the categories of primary goods relate to the principles of justice. In four cases, the relationship is fairly clear. Rawls’s first category of primary goods, the basic liberties, obviously spells out the contents of the first principle of justice, which says that each person is to have an equal right to the most extensive total system or scheme of these basic liberties compatible with a similar system of these liberties for all. However, where Rawls argues, particularly in ‘The Basic Liberties and their Priority’, that the basic liberties are valued because they are means to the development of the two moral powers – ‘The institutional protection of this range of application [of the basic liberties] is a condition of the adequate development and full exercise of the two moral powers of citizens as free and equal persons’ (1983: 11, 50) – for Kant they are simply part of the innate right to freedom, thus not hostage to any merely instrumental justification. Thus, Kant would reject Rawls’s statement that ‘No priority is assigned to liberty as such, as if the exercise of something called “liberty” has a pre-eminent value and is the main if not the sole end of political and social justice’ (1983: 5). On the contrary, for Kant, liberty has pre-eminent value, and need not be justified as a means to something else, even something as noble as the development of the two moral powers. In particular, there is no suggestion in Kant that the priority of the basic liberties is due to their being necessary conditions for the successful exercise of citizenship: his argument is not restricted to those who happen to want or happen already to live in constitutional democracies, but is rather that the innate right to freedom entails the obligation of all to enter into the civil condition and of those in positions of power to transform their governments into genuine republics.

Rawls’s second category of primary goods, freedom of movement and free choice of opportunities against a background of diverse opportunities, could also be thought to implement the first principle of justice, insofar as freedom of movement and freedom of opportunity can be thought of as basic liberties that should be as great for each as far as is compatible with their being equal for all. However, since Rawls makes no distinction between private and public opportunities, say opportunities in private business and opportunities in government or the public sphere, this second category of primary goods could overlap the third, namely powers and prerogatives of offices and positions of responsibility, which seems to concern opportunities in the public sphere and thus imply equality of opportunity for public office, subject of course to any limitation by the first principle of justice. Thus while part of the second category of primary good, namely freedom of movement, would still seem to be part of the implementation of the first principle of justice, that is, part of what comprises the greatest system of basic liberties, another part of the second category as well as the third category of primary good seem to specify what is meant by the requirement of the first clause of the second principle of justice, on the revised ordering of these clauses in the Restatement, namely the attachment of social and economic inequalities to offices and positions open to all under conditions of fair equality of opportunity. Rawls’s fourth category of primary goods, namely income and wealth as all-purpose means to whatever ends free agents might set for themselves, is clearly what is governed by the second clause of the second principle, for it is inequalities in income and wealth that are to be regulated in accordance with the difference principle, that they are only allowable insofar as they best benefit the least well-off in terms of income and wealth.

This leaves Rawls’s fifth category of primary goods, namely the social bases of self-respect. Does this category line up specifically with either of the principles of justice or either of the two clauses of the second principle? Not obviously; it would seem that self-respect could be fostered by any and all of the other primary goods, that is, by a truly equal scheme of basic liberties, by genuine equality of opportunity in both private and public spheres, thus including but not limited to equal opportunity for public offices, and by the allowance of only just inequalities of income and wealth. That is, the social bases of self-respect do not seem to be an additional category of primary good, but rather self-respect would appear to be fostered by a truly just distribution of the other primary goods. Perhaps we could acknowledge that as a matter of human psychology self-respect may be affected by the attitude or style with which the other primary goods are distributed within a society, that is, by whether all elements of society seem sincerely committed to the just distribution of these goods or whether such a distribution seems like a grudging concession by a ruling class. But basically the fifth category of primary goods seems supervenient on the other four rather than a genuine addition to them. And Rawls seems to admit as much when he states that ‘self-respect depends upon and is encouraged by certain public features of basic social institutions, how they work together and how people who accept these arrangements are expect to (and normally do) regard and treat one another’. The ‘social bases’ of self-respect ‘are importantly determined by the public principles of justice’ (1983: 33). That is, the social bases of self-respect are not an additional category of basic liberties or primary goods, like freedom of speech, freedom of movement, or equal opportunity for offices; the social bases of self-respect are the basic liberties and (other) primary goods. The self-respect of individuals within a just society is both a necessary condition of its justice but also reinforced by its justice.Footnote ²⁰

We have had to provide some interpretation and even some revision in order to understand the relations between Rawls’s principles of justice and his list of primary goods. The relationships between Kant’s single principle of right and his three categories of rights may be intrinsically clearer and also shed additional light on Rawls’s principles and list. Kant implements his single Universal Principle of Right in a sequence of categories of rights. The principle requires, itself on moral grounds, that everyone have as much freedom in their interactions with others as is compatible with a like freedom for all. That implies an obligation to allow all uses of freedom that do not directly impact the freedom of others and a correlative right to such uses of freedom – the innate right to freedom. It further implies an innate right to enter into agreements with others for the control and use of resources and their own services subject to the overriding principle of equality of freedom – thus the possibility of acquired right subject to limitation by the innate right to freedom. And the innate right to freedom gives people the right to make their freedom and its exercise in the form of both innate and acquired right determinate and secure by the instrument of the state, and the corresponding obligation of all to honour this right, thus to enter into a civil union with others, ultimately with all of humankind (for empirical reasons, in the form of a federation of sovereign states) (MM-DR, §61, 6: 350; Kant Reference Kant1996: 487–8).Footnote ²¹ We can then interpret the structure of Rawls’s theory in terms of that of Kant’s as follows.

Rawls’s first principle of justice is basically the same as Kant’s Universal Principle of Right; in both cases, the principle is the foundation of everything that follows, and the rest follows as more assumptions about the human condition are added. Kant’s category of innate right is implied by his Universal Principle as soon as we add the general assumption that human beings speak to and enter into relations of any kind with one another. Kant spells out innate right in terms of the three authorizations of being one’s own master, equality before the law unless one has committed a crime, and freedom of thought and speech; Rawls’s first category of basic liberties, freedom of thought and conscience, and the first item in his second category, freedom of movement, are the same or similar specifications of the innate right to freedom and thus specifications of Rawls’s first principle as well as of Kant’s Universal Principle. The second item in Rawls’s second category, namely equality of opportunity, might also be thought of as part of the innate right to freedom as long as the nature of opportunity remains unspecified. Rawls’s fourth category, to skip ahead, namely income and wealth as the subject of the difference principle, can be thought of as the subject of Kant’s category of acquired, private right, and the difference principle itself as the structural equivalent of Kant’s requirement that acquired right be acquired only in a rightful way, that is, in a way that people could and should agree to freely and thus as in their own interest as far as that is compatible with the freedom of all.Footnote ²² Rawls’s third category, now to backtrack, namely equal access to powers and prerogatives of offices and positions of responsibility, at least insofar as these are public or governmental, can be thought of as part of Kant’s public right, included in Kant’s own account, via negativa, by the exclusion of hereditary offices and privileges. Insofar as these offices and positions of responsibility are not governmental, equality of opportunity with respect to them is already required by the second part of Rawls’s second category of primary good, equality of opportunity in general, which is itself part of innate right and of innate right’s constraint on the acquisition of private right. Finally, Rawls’s fifth category, equality in the distribution of the social bases of self-respect, does not appear among Kant’s categories of right, but neither should it, since, as we have seen, this category of primary good is either supervenient on the others or else more a matter of the style in which those goods are distributed than an independent matter. Here we might add that Kant does enumerate duties to treat both oneself (MM-DV, Introduction, section XII.d, 6: 402–3; Kant Reference Kant1996: 531) and others with respect, the latter again, in part, via negativa, by the prohibition of arrogance, defamation and ridicule (MM-DV, §§41–4, 6: 464–8; Kant Reference Kant1996: 581–3), but also positively, by the prescription of modesty (MM-DV, §37, 6: 462; Kant Reference Kant1996: 579), yet in all cases as duties of virtue rather than right. In Kant’s view fostering self-respect and promoting respect for others are duties of virtue rather than right, more properly ethical duties, because they are part of treating persons as ends in themselves but do not involve any more specific ends than that,Footnote ²³ and because they are not the sort of duties that can appropriately be coercively enforced. Justice with regard to the other categories of primary goods can be coercively enforced, but providing such justice with a respectful attitude seems to go beyond what can and should be coercively enforced. There may well be some borderline cases here – for example, American, British and German law differ on the criminalization of defamation and hate-speech – but on the whole Kant seems right about this.

To sum up: Rawls’s first principle of justice seems much the same as Kant’s Universal Principle of Right. Rawls’s second principle seems to concern Kant’s categories of acquired private right and offices under public right, and thus to be more a matter of the implementation of the first principle of justice than an independent second principle. Rawls’s lexical subordination of the second principle to the first (and the second clause of the second principle to its first clause) reflects this fact, but can come across as an ad hoc constraint rather than an inherent feature of the implementation of the general principle of justice. Rawls’s first category of primary goods lines up with Kant’s category of innate right, as does part of his second category; his fourth category is analogous to the fairness constraint built into Kant’s conception of acquired right; and his third category, equal access to offices, is a requirement of Kant’s conception of public right. For purposes of the comparison to Kant, Rawls’s original presentation of the second principle, in which the difference principle was placed before the requirement that positions be open to all, more closely parallels Kant’s placement of acquired right before public right, which itself reflects the rationale that public right is merely the means to making (innate and) acquired right conclusive. Finally, Rawls’s category of the social bases of self-respect does not match any of Kant’s categories of right, but does match some of his ethical duties, those of self-esteem and respect for others, and Kant’s approach seems a reasonable reflection of the fact that it would be difficult to legislate the social fostering of self-respect in any way other than by legislating a just distribution of all other legislatable rights and privileges in a society.Footnote ²⁴