Politics, Property, Personhood: Kant’s Rousseauian Return

Rafeeq Hasan Draft 11/28/2011

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Politics, Property, Personhood: Kant’s Rousseauian Return

Abstract: In discussing Kant’s claim that the state of nature is provisional or defective, such that moral agents stand under a duty to exit it, recent interpretive approaches to the Doctrine of Right have vacillated between what I call the theses of weak and strong provisionality. Weak provisionality holds that in Kant’s state of nature the norms of justice are in place. In the absence of an institutional enforcement mechanism, however, agents lack appropriate motivations to obey these norms. By contrast, strong provisionality holds that Kant’s view is that in the absence of a state the meaning and content of property rights, a crucial class of moral norms that pertains to the purposive character of human agency, remains completely indeterminate. In other words, agents in the state of nature have no grounds to conclude that these represent genuinely binding norms of reason as opposed to unilateral exercises of power masquerading as respect for freedom and autonomy. Based on an original reading of Kant’s remarks on the failure to secure property rights in the state of nature, I suggest that he holds a version of the strong provisionality thesis hitherto unrecognized even by its defenders. Kant’s view is that prior to the institution of a just state, the making of moral claims represents a form of moral self-deceit. Thus part of the task of becoming a moral person is learning to doubt the validity of moral claims made in the absence of a democratic political structure. If my interpretation is correct, Kant holds that to be a fully developed moral person is a political achievement. Kant’s ostensibly liberal and Lockean attempt to justify the state on the grounds that it protects natural (i.e., pre-political) rights thus ends up at the door of both Rousseau’s and Hegel’s thoroughly political conception of moral personhood as grounded in the achievement of legal reciprocity.

1. Introduction

1.1 Right, Ethics, and Kant’s Provisionality Claim

The recent resurgence of scholarly interest in Kant’s political philosophy has

focused on the complex relation between political and moral obligation in the Doctrine of

Right (DR), part I of Kant’s Metaphysics of Morals (MM), by inquiring into the

conceptual relations between two principles of practical reason: (1) the Universal

Principle of Right (UPR) and (2) the Categorical Imperative as the supreme principle of

morality (CI). UPR states, “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” (6:230).1 It

1 Immanuel Kant, The Doctrine of Right, Part I of the Metaphysics of Morals, trans. and ed. Mary Gregor (Cambridge: Cambridge University Press, 1996). All references to Kant’s texts are to the Prussian Academy pagination appearing in the margins.


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concerns the way in which an agent’s actions affect the capacity for the free choice of

others. By contrast, the more familiar CI concerns maxims (very roughly, the reasons for

action) that an agent can will to be a universal law.2 Governing the domain of right

(Recht), UPR pertains to the form of interaction between agents, i.e., to the way in which

the actions of one agent restrict the possible actions of another. It enjoins rules of

legitimate coercion that render the free exercise of agency of one agent compatible with

the agency of all. Governing the domain of ethics, CI pertains to the relation of a rational

will to itself, surmounting its inclinations so as to act solely from the rational incentive of

duty.3 It thus provides an internally prescriptive rule grounded in the autonomy of the

subject rather than on an external coercive structure.

Developing the insight that UPR pertains simply to what an agent does, whereas

CI pertains to the reasons for which an agent acts, one recent strand of interpretation

insists that the domains of interaction which each of these two principles govern

represent independent and irreducible expressions of human autonomy, such that the

“realm of right…does not form a part of morality (as defined by the categorical

imperative) at all.”4 This view cuts against almost all the commentary on the DR, which

2 In its best-known formulation (the Formula of Universal Law), CI states, “[A]ct only in accordance with that maxim through which you can at the same time will that it become a universal law.” Kant, Groundwork of the Metaphysics of Morals (4:421) in Practical Philosophy, trans. and ed. Mary Gregor (Cambridge: Cambridge University Press, 1996). See also MM (6:226). 3 For an account of the dyadic structure of right verses the monadic structure of ethics see Katrin Flikschuh, “Reason, Right, and Revolution: Kant and Locke,” Philosophy and Public Affairs, vol. 36, no. 4 (2008): 386 and Kant and Modern Political Philosophy (Cambridge: Cambridge University Press, 2000), p. 101. For general and far-reaching speculations on the import of this distinction for ethical theory see Michael Thompson, “What is it to Wrong Someone? A Puzzle about Justice,” in Reason and Value: Themes from the Moral Philosophy of Joseph Raz, eds. R. Jay Wallace, Philip Pettit, Samuel Scheffler, and Michael Smith (Oxford: Oxford University Press, 2006), pp. 333-384. 4 Marcus Willaschek, “Why the Doctrine of Right does not belong in the Metaphysics of Morals, Jahrbuch für Recht und Ethik, 5 (1997): 205. See also Allen Wood, “The Final Form of Kant’s Practical Philosophy,” in Kant’s Metaphysics of Morals: Interpretive Essays, ed. Mark Timmons (Oxford: Oxford


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at least in the Anglophone tradition begins with Mary Gregor’s claim, announced in the

subtitle of her pioneering monograph, that in DR Kant “applies” CI to the domain of the

political.5

As with many philosophically fruitful interpretive debates, understanding the

relation between right and ethics cannot be settled simply by citing sections of DR.

Certain passages clearly indicate that Kant understands principles of right to be derived

from principles of morality, such that political obligations are a subset of moral

obligations. For instance Kant writes,

In contrast to laws of nature…laws of freedom are called moral laws. As directed merely to external actions and their conformity to law they are called juridical duties; but if they also require that they (the laws) themselves be the determining grounds of actions, they are ethical laws… (6:220).

On the other hand, other passages insist that principles of right refer only to external

standards for legitimate coercion. If this is so, then in the words of one commentator,

“they cannot prescribe, command, or require that their addressees act in accordance with

that standard.”6 For example, Kant writes that the law of right “lays an obligation on me,

but it does not expect, far less demand, that I myself should limit my freedom to those

conditions just for the sake of this obligation” (6:231). But if laws of right do not directly

prescribe the reasons for which actions ought to be done, it is hard to see how they might

be derived from principles of morality. Further textual evidence in favor of the separation

University Press, 2002), pp. 1-21 and Marcus Willaschek, “Which Imperatives for Right? On the Non-Prescriptive Character of Juridical Laws in Kant’s Metaphysics of Morals,” in Timmons, pp. 65-87. 5 Mary Gregor, Laws of Freedom: A Study of Kant’s Method of Applying the Categorical Imperative in the Metaphysik der Sitten (Oxford: Blackwell, 1963). For one of the most sophisticated recent defenses of the derivation of principles of right from morality (but not from CI specifically), see Paul Guyer, “Kant’s Deductions of the Principles of Right,” in Timmons, pp. 23-64. 6 Willashek, “Which Imperatives for Right?,” p. 71 (emphases in original).


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of right from ethics can be found in Kant’s claim that the principle of right is analytic

(which would seem to indicate that it does not stand in need of derivation from a

synthetic principle such as CI) and that the Universal Law of Right is a “postulate

incapable of further proof” (6:231).7

Attempts to square these claims have moved between high-altitude interpretive

debates concerning the aims of Kant’s moral philosophy as a whole—for instance,

whether Kant thinks that moral agency is always possible come what may or whether it

depends on formal political protections, and so on some sort of priority of right with

respect to ethics—and increasingly technical debates concerning issues such as whether

or not the putative analyticity of a proposition such as UPR precludes the necessity for

justifying it in relation to a synthetic principle, and the relation between postulates and

principles in Kant’s political philosophy as opposed to his philosophy of mathematics.8

Yet despite its philosophical sophistication, much of this commentary remains at

an interpretive impasse. In DR Kant seems both to insist that principles of right in some

way follow from principles of morality, while also denying to principles of right the very

features that are the hallmark of moral principles (e.g., the concern with intentions or

reasons for action and not simply with the external form of what an agent has done, and

the attendant location of normative authority in internal self-legislation as opposed to

external coercion). The seeming irreconcilability of these claims may well stem from two

7 E.g., Wood, “The Final Form of Kant’s Practical Philosophy,” p. 7. For a helpful overview of passages supporting the Wood and Willashek reading, see Robert Pippin, “Mine and Thine? The Kantian State,” pp. 419-428, in The Cambridge Companion to Kant and Modern Philosophy, ed. Paul Guyer (Cambridge: Cambridge University Press, 2006). 8 On the technical matters see especially Guyer, “Kant’s Deductions of the Principles of Right.” For discussion of the possibility that a genuinely moral life depends on the just state, and so on the results of DR, see Pippin, “Dividing and Deriving in Kant’s Rechtslehre,” in Metaphysische Anfangsgründe der Rechtslehre, ed. Otfried Höffe (Berlin: Akademie Verlag, 1999), p. 74.


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higher-order commitments that structure Kant’s political philosophy. With the liberal

tradition, Kant insists that extending the coercive power of the state to inner intentions

violates individual freedom by turning the state into a kind of moral watchman. For Kant,

as for Locke and Hobbes before him, the state must concern itself with actions and not

intentions, legality and not morality (6:225). Thus, the state may legitimately imprison its

subjects for failing to make good on certain kinds of contractual arrangements, but it

cannot, most moderns are liable to think, punish its subjects because they have failed to

adhere to these arrangements for the right sorts of motivating reasons (e.g., ‘because this

is what duty commands’ or ‘because the laws must be loved for their own sake’) (6:220).

Yet at the same time, Kant wants to argue that agents have a genuinely moral, as opposed

to merely prudential, reason for endorsing the liberal democratic state as a coercive

arrangement. Somewhat paradoxically, Kantian agents thus appear to have a morally

weighty reason to endorse a morally non-committal state.

On the working assumption that at least some of the apparent contradictions of

DR may stem from tensions between these broader political commitments, in this paper I

approach the relation between right and morality in a manner that has less to do with the

relation between the specialized apparatus of DR and the larger architectonic of Kant’s

moral thought, and more to do with the relation between his political theory and the

social contract tradition with which he was in dialogue. As I will allude to throughout, I

am particularly concerned to chart Kant’s oscillation between Lockean and Rousseauian

commitments. More specifically, I propose to examine Kant’s argument for the duty to

exit the state of nature, and his related claim that in the state of nature the norms of

property, a crucial class of moral norms that pertains to the purposive character of human


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agency, remain in some way provisional or not fully actualized, such that agents stand

under a duty to institute a coercive structure in which the possession of property is

consonant with the freedom of all. In what follows I will refer to both the duty to exit the

state of nature and to the instability of property rights in the state of nature under the

umbrella term, ‘Kant’s provisionality claim.’

1.2 Weak and Strong Provisionality

Unfortunately, unlike interpretive debates concerning the relation between UPR

and CI, on the subject of Kant’s provisionality thesis commentators often seem unaware

that there is no significant scholarly consensus as to its precise meaning.

Surveying the commentary, one notices an unthematized distinction between what

I characterize as the interpretive theses of weak and strong provisionality. Weak

provisionality holds that in Kant’s state of nature the norms of justice are in place, in the

sense that what they enjoin is intelligible for moral agents. In the absence of an

institutional enforcement mechanism, however, agents lack the appropriate motivations

to obey these norms. By assuring each agent that other agents will respect these norms,

the state simply renders more determinate the “definitive shape of these rights.”9 By

contrast, strong provisionality holds that Kant’s view is that in the absence of a state the

meaning and content of property rights remains completely indeterminate. In other

words, agents in the state of nature have no grounds to conclude that these represent

9 Japa Pallikkathayil, “Deriving Morality from Politics: Rethinking the Formula of Humanity,” Ethics, vol. 121, no. 1 (October 2010): 130, 140.


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genuinely binding norms of reason as opposed to unilateral exercises of power

masquerading as respect for freedom and autonomy.10

I would submit that what ultimately lies behind the weak and strong

provisionality interpretations are larger commitments about the legacy of natural rights

for contemporary liberalism. But there are also local reasons for this divergence grounded

in the conceptual structure of Kant’s argument. Throughout the course of DR, Kant offers

three distinct but conceptually interrelated versions of the provisionality thesis. He argues

that in the state of nature: (1) agents lack the appropriate assurance that others will

uphold the duties of right and so lack rational motivations to do so themselves, (2) there

is no definitive way to decisively delimit the boundaries between what is mine and what

is yours, (3) there is no way for one agent to place another under an obligation consonant

with the equal liberty of all. Following Ripstein, I call these the problems of (1)

assurance, (3) indeterminacy, and (3) unilateral obligation.11

Kant has good reasons for making all three of these claims at different points in

the text, not the least of which is that each instability in the state of nature grounds the

10 For strong provisionality see Flikschuh, “Reason, Right, and Revolution: Kant and Locke”: 383-84 and Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge: Harvard University Press, 2009), pp. 145-182. For some of the more far-reaching statements of strong provisionality see Pippin, “Dividing and Deriving in Kant’s Rechtslehre,” p. 78 and “Mine and Thine? The Kantian State,” pp. 438-439. 11 Ripstein, Force and Freedom, pp. 145-147 (and passim). Regarding (1) Kant writes, “I am therefore not under obligation to leave external objects belonging to others untouched unless everyone else provides me assurance that he will behave in accordance with the same principle with regard to what is mine” (6:255). Regarding (2) Kant writes, “The indeterminacy, with respect to quantity as well as quality, of the external object that can be acquired makes this problem (of the sole, original external acquisition) the hardest of all to solve” (6:266). There are numerous important passages on the subject of (3). To introduce a passage that I consider at length below: “When I declare (by word or deed), I will that something external is to be mine, I thereby declare that everyone else is under obligation to refrain from using that object of my choice, an obligation no one would have were it not for this act of mine to establish a right…Now, a unilateral will cannot serve as a coercive law for everyone with regard to possession that is external and therefore contingent, since that would infringe upon freedom in accordance with universal laws” (6:255-256).


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necessity for different branches of government ((1) executive, (2) judicial, and (3)

legislative). Furthermore, the problem of unilateral obligation pertains most obviously to

the acquisition of property, while assurance and indeterminacy concern the protection of

what one has already acquired.12 And all three instabilities are clearly related to one

another. After all, if there is no way of drawing a secure boundary between what is mine

and what is yours, agents do not stand under an obligation to uphold the duties of right,

and thus they have no assurance that others will do so as well. Moreover, if declarations

of property cannot even get off the ground, then drawing boundaries between what is

mine and yours and establishing schemes to protect that boundary are activities that lack

any moral sense (though they may serve a pragmatic function).

Nevertheless, quite surprisingly many commentators have placed almost all the

emphasis on (1) and (2) to the exclusion (3)—this despite the fact that (3) is obviously the

most foundational. This leads them to adopt weak provisionality. Without (3), (1) and (2)

give the impression that the norms of justice in the state of nature are intelligible, albeit

unstable. By contrast, if one sees the main problem behind the provisionality claim as

being (3), i.e., the very possibility that one agent could place another under an obligation

at all, one tends to strong provisionality. On this construal of Kant’s state of nature,

agents prior to the legitimate state have only the most tenuous hold on what it could even

mean to enter into the practice of property obligations, since they have no grounds to

12 Again, Ripstein’s excellent analysis is responsible for introducing much needed order into these matters.


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conclude that the very act of obligating another has any moral standing whatsoever.13 In

the situation marked by (3) instability has given way to (near) unintelligibility.

In what follows I reconstruct Kant’s provisionality argument in terms of a very

strong species of strong provisionality. I argue that even those commentators who see the

essential problem of the state of nature as one of unilateral obligation have not adequately

accounted for why in the absence of a state it so much as appears to be morally

problematic for one agent to place another under an obligation. Once we appreciate the

scope and significance of Kant’s argument for provisionality, what emerges is the

following quite striking position: making moral claims in the state of nature represents a

form of moral self-deceit—a situation in which claims of right mask morally illegitimate

self-preference. The only way out of this situation is to (re)constitute collective life as an

order of practical reason (i.e., as a state), rather than as a relation of fields of antagonistic

force relations devoid of an ordering principle of legitimacy. This, I submit, is Kant at his

most Rousseauian.14 In later sections of this paper, I suggest that Kant pulls back from

these Rousseauian results in ways that can be subjected to internal criticism.

2. Kant and the Political Actualization of Moral Personhood

2.1 From Locke to Rousseau

13 Although commentators who emphasize (1) and (2) to the expense of (3) tend to endorse weak rather than strong provisionality, they need not always do so. For example, in “Mine and Thine?” Pippin places emphasis on problems of assurance and yet ends up attributing strong provisionality to DR. 14 For the claim that Kant’s flirtation with the political status of moral freedom reveals his indebtedness to Rousseau, see Susan Shell, Kant and the Limits of Autonomy (Cambridge: Harvard University Press, 2009), p. 237 and Pippin, “Mine and Thine?,” p. 438. In his analysis of DR, Terry Pinkard goes to the most Rousseauian extremes, arguing that DR reveals that for Kant orienting oneself in a self-determining harmonious unity is the only way to be truly autonomous in a meaningful, non-formal sense. See Pinkard, “Kant, Citizenship, and Freedom,” in Metaphysische Anfangsgründe der Rechtslehre, pp. 160-163. I suspect that this overstates Kant’s proximity to both Rousseau and Hegel.


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The strong provisionality interpretation might appear to cut against the obvious

fact that Kant is not entirely at odds with the tradition of natural right. Kant, like Locke

before him, clearly constructs his state of nature as a state devoid only of law and

distributive justice, not of moral entitlements more generally (6:306).15 This is why he

countenances an innate (i.e., non-political) right to freedom. Kant writes,

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 man by virtue of his humanity (6:238) (emphasis mine).

The basic argumentative strategy behind the provisionality thesis is to show that the state

of nature is unstable because in it the parties lack the means to effectively establish one of

the necessary elements of the innate right to freedom: the right to acquire and

conclusively establish claims to property. Kant reasons that if we have a moral right to

freedom, we must also have a right to the necessary elements of freedom. (Or, more

accurately, he reasons that one cannot disallow on putatively ‘moral’ grounds the

necessary elements of moral freedom.) This is why parties in the state of nature stand

under a duty to exit it, a duty to institute an order in which they can secure their moral

entitlements to property. For Kant’s view that individuals stand under a moral duty to

create the conditions for the exercise of their pre-political moral entitlements, consider

the following passage:

If no acquisition were cognized as rightful even in a provisional way prior to entering the civil condition, the civil condition itself would be impossible. For in terms of their form, laws concerning what is mine or

15 Cf. Flikschuh, “Reason, Right, and Revolution: Kant and Locke”: 382-389. Flikschuh argues that Kant has almost nothing in common with Locke because Kant’s state of nature is one in which we have natural rights but lack “morally valid claims to right” (383; emphasis in original). But as I show below, this is true only of claims to right involving human purposiveness (e.g., property rights), not of claims to right involving basic bodily integrity. Pace-Flikschuh, these are natural through and through. I address this further in 2.3 below.


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yours in the state of nature contain the same thing that they prescribe in the civil condition…The difference is only that the civil condition provides the conditions under which these laws are put into effect (6:313).16

But as we will see below, despite Kant’s starting point in a Lockean world, he ends up

with a Rousseauian picture of the strong dependence of moral personhood on political

institutions.

2.2 The Natural Right to Freedom

To see how Kant moves from the idea that we have a natural right to freedom to

the claim that the state plays a necessary role in securing moral personhood, we must first

go into a bit more detail about the meaning of “right” (Recht). An order of right stems

from what Kant calls the “external” aspect of freedom, by which he means the way in

which any individual exercise of freedom—understood as the discretionary capacity to

set and pursue one’s own ends—necessarily affects the possibilities for the freedom of

others (6:230). For instance, if I decide to sit in this particular chair at this particular time,

I necessarily exclude you from freely determining yourself to sit in the same chair. In and

of itself, this dimension of external freedom is not morally problematic. It simply follows

from the fact that we are finite, purposive creatures, bound by space and time. Almost

every kind of purposive activity—even standing quietly in one spot—restricts the

possibilities of others.

On the other hand, if the exercise of my external freedom takes the form of tying

you to your chair, I necessarily restrict not just whatever particular end you might happen

to have, for example, getting up and walking over to another chair, but your capacity to 16 See also 6:257.


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set ends at all. This is a clear moral wrong, since it renders impossible your capacity to

exercise your innate right to freedom.

Now, one might be skeptical of drawing such a hard and fast distinction between

any particular constellations of ends that an agent happens to have and her bare capacity

to set ends at all, what Kant sometimes characterizes as the difference between the

“matter” and the “form” of choice.17 But the moral import that one ought to draw from

the distinction is intuitively obvious. It does not follow from considerations of external

freedom—i.e., from the way that my actions necessarily shape your possibilities of

acting—that I must always care about your particular ends. But it does follow that I must

not act in a manner that restricts your capacity to choose anything at all (6:230). If

freedom is genuinely a moral phenomenon, there must be a system of rules that ensures

that the free self-determining capacities of one agent do not conflict with the possibility

of free self-determination on the part of other agents. These rules constitute an order of

right.

Even though the Doctrine of Right is eventually going to have something to do

with the role of politics, the most basic principle of right can be deduced purely from

considering what must follow if external freedom is not to conflict with our moral

entitlements. As we have seen, UPR states that “An action is right if it can coexist with

everyone’s freedom in accordance with a universal law” (6:231). Despite those

interpreters who argue for a strict separation between right and ethics, here Kant clearly

brings in the familiar connection between morality and universality from his moral theory

17 For the language of “form” and “matter” with respect to choice see 6:230 and 6:246. Since this distinction is what in fact enables Kant to license vast inequalities in material wealth, it seems to me that querying the stability of the form/matter distinction is the direction that a properly Marxist (and so Aristotelian) critique of DR should take.


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in order to establish that if we have a moral right to freedom, then we necessarily stand

under a moral duty to exercise our external freedom in a way that is consistent with the

external freedom of everyone else.18

2.3 “The Postulate of Practical Reason with Regard to Rights”

I won’t give his arguments here, but from UPR Kant deduces two slightly more

determinate sets of entitlements: (1) first, that we have a right to our own bodily integrity

(6:248), and (2) second, that we have the right to forcibly hinder any attempt on the part

of others to interfere with this basic right (6:231). In fact, from the bare possibility of

moral freedom Kant deduces even more than this. Kant argues that it simply follows from

the fact that I am morally free that I have the right to claim bits of the external world (i.e.,

bits of the world distinct from my own body) as falling under my discretionary purposes.

Let us call such bits of the external world “objects.” This right to objects will turn out to

be a right to property.

Before getting to Kant’s argument for this claim, which he calls “the Postulate of

Practical Reason with Regard to Rights” (6:246), it is important to keep in view its result.

The Postulate establishes that part of what it means to respect each other as externally

free agents is to respect each other’s claims to enduring discretionary use of objects. So

the Postulate derives property from the entitlements of moral personhood.

18 Importantly, the force of this injunction does not stem from any particular relations of obligation incurred through the pair-wise interactions of discrete agents. Rather, it simply follows from every agents’ rational consciousness of the fact that a necessary part of being a moral person is being an externally free agent (6:232). So if it turns out that political interaction is necessary to genuinely secure the conditions for this basic aspect of moral self-consciousness—a striking claim that we will examine in more detail below—then the scope of politics will turn out to be a good deal more broad than the role it plays in securing interests that arise from narrower, more intuitively ‘political’ sorts of interaction (e.g., that you stay off my lawn).


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Kant’s argument for the Postulate depends, first, on reflections concerning the

conceptual structure of purposive activity. Some kinds of complex end-setting activity

clearly involve the possibility of continual access to the particular material objects that

are the means to one’s end.19 For instance, it seems hard to see how I could execute my

end of building a chair if I’m continually preoccupied with protecting my dominion over

the wood and my hammer. But reflections on the necessary role of possession in human

end-setting activity are not sufficient to establish that such continual, unrestricted access

to objects is necessarily rightful. Perhaps what is truly right is for us to share the hammer.

(Though the fact that it seems unintelligible to suggest that we share the wood already

tilts the argument in favor of at least some cases of unrestricted possession.)20 The claim

that that some degree of unrestricted access to objects is closely tied to the dimension of

human purposive activity that falls under the domain of external freedom is meant only to

establish the prima facie plausibility of the rightfulness of such access. Let me explain

further.

Kant’s point is not that we necessarily have a right to exclusive use of bits of the

external world because that’s the only way to be a purposive agent. To argue in this

manner would be to admit considerations of human need (as opposed to considerations of

human freedom) into the structure of right, in which case the rules of right would be

heteronymous. Rather his point is as follows:

19 Kant implicitly tracks this point with his suggestion that to think of something as an object of my choice is to think of it as falling under my power (6:246). 20 Cf. Paul Guyer, “Kant’s Deductions of the Principles of Right,” p. 58 and Leslie Mulholland, Kant’s System of Rights, (New York: Columbia University Press, 1990), p. 275. Both Guyer and Mulholland claim that Kant has little to no argument for individual possession of property, and that whatever argument he does have depends heavily on assumptions about human nature that are not purely formal. See also Kenneth Westphal, “A Kantian Justification of Possession,” in Timmons (ed), pp. 96-99.


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(1) The only way to be a purposive agent is to have unrestricted use of at least some objects. (2) The fact that we are purposive agents stems from our external freedom. (3) We’ve already seen that if an order of right is possible, there must be a way to square external freedom with our innate moral entitlements. (4) We thus have good reason to suppose that having exclusive access to objects is morally legitimate, or at least to search for such a legitimating principle. (5) If making claims to objects falls under the purview of external freedom, the only thing that could rule such access out of court is if it turns out to be incompatible with UPR (6:246-247).21

Kant will of course go on to show that making claims to enduring use of external

objects, i.e., making claims to property, does not conflict with UPR. The Postulate is only

the first step in Kant’s demonstration that we have a natural right to acquire something

that extends beyond our right to our bodies. Given its preliminary character, the real

importance of the Postulate lies in what it shows about what such a natural right must

look like: having the right to something that extends beyond our right to our bodies

entails having control over an object that lasts through time. In other words, the Postulate

motivates the claim that if our entitlement to objects stems from the necessary role they

play in enabling human purposive activity, as well as from the possibility that

discretionary use of objects may enable purposive activity without infringing on the

freedom of others, then I have a right to my hammer even when I lay it down over there,

out of arm’s reach. And this necessarily entails that having something as my own is

having a normative entitlement to it that extends beyond the empirical, physical fact of

possession.

21 Kant’s argument toward the person who says, ‘Why isn’t it more rightful to share the hammer?’ is thus, ‘It’s only wrong for me to have exclusive use of the hammer if you can show me that such possession necessarily excludes the bare capacity for choice on the part of agents who don’t own the hammer. Either show me that’s the case, or stop whining about the dignity of sharing.’


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From one point of view, Kant has established an impressive amount without

bringing in the notion of a duty to leave the state of nature and institute the state. He has

shown that we have rights to our own bodily integrity, which include the right to defend

it, even with violent force. And he has established the possibility that we have the right to

claim parts of the natural world as our own, where having something as your own is

having a normative claim to it that persists through time and space. So it looks like prior

to the exit from the state of nature, both the rights of bodily integrity and of property are

fully intelligible, though perhaps unstable at the point of implementation. Thus, it might

seem as though the thesis of weak provisionality accurately captures the argument of DR.

2.4 The Provisionality of the State of Nature

But these results are actually quite bare. Although pre-political agents are morally

entitled to possessions as a necessary element of their external freedom, it turns out that

in the state of nature the right they have concerning these possessions comes to nothing

more than the right to, quite literally, hold on to what they have (at this particular moment

in time). In other words, it turns out that until we exit the state of nature my right to my

apple is simply my right for you not to wrench the apple out of my hand while I hold it,

which is not very different from my right to my own bodily integrity (6:250).22 In effect,

Kant seems to be claiming both that we have and that we do not have property rights in

the state of nature.

As a preview to the interpretation I will develop in the rest of this paper as to what

Kant could possibly mean by this, let me suggest that this situation of uncertainty stems

22 For more on the connection between rights to property and rights to my person see 6:262.


17

from the moral ambiguity surrounding cases in which one agent’s claim to property is

challenged by another. The uncertainty can be described as follows: Using the kind of

reasoning reflected in the Postulate, agents deduce that being externally free mandates

rights to possession of an object as distinct from possession of oneself. They thus assume

that they can have lasting discretionary use of the object, i.e., a normative entitlement to

it. They think the apple is theirs even after they set it down. But then another agent comes

along and swoops up the apple. Obviously, the ‘owner’ of the apple might struggle with

the ‘thief.’ But doing so is morally ambiguous. It turns out to be not so clear that forcing

you to return to me the apple that I earlier set down is in fact morally permissible. But if

my actions aimed at re-securing possession cannot be rendered morally unambiguous,

then what I thought was my right to enduring, real possession of my apple turns out to be

nothing more than the right to have it while I hold it (6:261). Later I will return to this

idea of moral ambiguity—the press of competing and antagonistic claims regarding

moral entitlement—since it is in fact the key to seeing why the problem of unilateral

obligation should lead us to attribute to Kant a very strong variant of the strong

provisionality thesis.

It is important to appreciate that if Kant’s state of nature were meant as an

empirical description of what life would be like without a political order, it would be

much easier to see what he could have in mind in claiming that my rights to property are

provisional in this way. The claim would simply be that in the state of nature an agent

cannot actually enforce his property rights because others are likely to ignore them, the

result of which is that these rights are merely formal, empty. But since Kant’s description

of the state of nature is concerned with right and not fact, we have to understand him as


18

saying something more like, ‘In the state of nature I morally have a right that I turn out

not to morally have.’ Or, ‘I have a morally required right but lack the (moral) powers to

effectively secure such a right, and thus I don’t actually have the right at all.’23

2.5 The Immorality of Property Claims? The Problem of Unilateral Obligation

We now have enough on the table to see why the provisionality claim is so

obscure. I think the best way to appreciate what is incomplete in the state of nature, and

so the best way to appreciate Kant’s political solution to the problem of securing rights to

property, is to more clearly state the apparent problem. We need to see what appears to

be morally ambiguous about property rights in the state of nature in order to understand

why exiting the state of nature dissolves the ambiguity.

As we have seen above, the deepest instability in the state of nature concerns the

problem of unilateral obligation. On this Kant writes,

When I declare (by word or deed), I will that something external is mine, I thereby declare that everyone else is under obligation to refrain from using that object of my choice, an obligation no one would have were it not for this act of mine to establish a right (6:255).

When an individual declares ‘this is mine,’ he permanently restricts the possibilities of

others such that they can no longer rightfully use that bit of the external world. The

question is why exactly the right of an individual to the permanent restriction of the

possibilities of others cannot be fully secured unless we exit the state of nature and

institute a political order.

To appreciate the force of the provisionality thesis as it pertains to the problem of

unilateral obligation, we would do well to consider the following intuition about the 23 Here I follow Arthur Ripstein’s helpful way of putting the problem in Force and Freedom, p. 147.


19

potential morality or immorality of property claims: It looks like the act of acquiring

property is not quite as obviously morally wrong as tying you to your chair. But, on the

other hand, it’s not quite as obviously morally acceptable as simply sitting in one of

many chairs in the room. It is something more like stacking all (or at least a good many)

of the chairs on top of one another and sitting on the pile. But, the intuition goes, how

could my placing such definitive and permanent restrictions on your external freedom not

count as simply enchaining you to the arbitrary dictates of my will, and so as a violation

of your innate right to freedom? This problem will obviously arise in cases where I first

acquire property, since in these cases I am seemingly just pointing to an object and

declaring, ‘See that? That can never be yours.’ But as we’ve seen from the Postulate’s

description of property as a normative entitlement, it also arises in any case where I assert

a right to ‘what I’ve currently got’ that goes beyond my right not to have my body

interfered with as I hold it.24 Both cases—the case of acquiring property, and the case of

securing entitlement to one’s possessions—involve unilateral declarations of will (‘This

is mine,’ ‘I’m going to take this,’ ‘Hey! You can’t touch that over there’) that arbitrarily

restrict the freedom of others. But why exactly is this a problem?

2.6 Action-Restricting Action and Action-Restricting Obligation

Here, our intuitions about chair-tying and chair-sitting cease to be a reliable

philosophical guide. For, when pressed, they fail to account for why the act of declaring

something as mine even appears to be morally wrong, and so to require the presence of

24 In trying to make sense of Kant’s murky text, it has been my guiding methodological conviction not to make too much of the distinction between securing access to one’s rightful possessions and initially acquiring such possessions, i.e., between holding on to what one has and actually getting something. Although Kant treats both of these dimensions separately, arguments from the section on property acquisition are key to making sense of Kant’s provisionality claim.


20

the state in order to secure its accordance with right. We don’t need to bring in the state

to establish my right to sit in a chair, because its obvious that such an action is morally

legitimate in that it involves no necessary restriction on the form of others’ agency (their

capacity to set ends at all, rather than to pursue any particular end they might have). And

we don’t need the state to establish that I can’t tie you to your chair, because it’s obvious

that such an action violates your natural right to freedom. So why do we need to bring in

the state to establish that I can in fact rightfully claim the chair as my property?

As my earlier description of the moral ambiguity in the state of nature attempted

to bring out, clearly it has something to do with how to proceed when my claim to

property is challenged. On Kant’s view, any rational agent should unproblematically

accept that your right to bodily integrity prohibits him from kicking the chair out from

under you while you sit in it. But it is not obviously irrational for him to challenge that

you have the right to stack all the chairs up (or, again, a good many of them) and claim

them as your own.25 Perhaps he thinks, ‘No matter that I find something fishy about

Kant’s distinction between the particular content of an agent’s ends and the general form

of his capacity for end-setting at all, clearly forcing me to stand in the corner all day is a

violation of my bare capacity to be an agent.’ Even before developing this case any

further, it’s important to remark on the significance of the fact that contexts of this sort

are in fact what lie in the background of Kant’s provisionality argument. This already

indicates that for Kant the state is to be understood as a mechanism for securing moral

content in the face of competing moral claims.

25 See 6:260-261 for Kant’s account of a normative challenge to property claims.


21

So Kant’s thought is that in the state of nature contestation over property looks to

be legitimate, whereas an agent contesting that you have a right not to have the chair

kicked out from underneath you is simply being unreasonable. But the question returns as

to why. What is even potentially or possibly morally ambiguous about the right to claim a

chair as my own? Here commentators unfortunately have followed Kant in not providing

a clear enough answer to this question.26 Even Arthur Ripstein, on whose monumental

recent study of Kant’s political philosophy I have depended at every turn, skirts this issue

when he writes:

The acquisition of property differs from other ways in which one person might be said to change the normative situation of another…[I]f I move from one place to another, I occupy space which is not available for your occupation while I am there. This change does not place you under a new obligation, but simply applies it to a different circumstance…The acquisition of property is different: in acquiring a piece of land I make it unavailable to you even when I am not occupying it.27

Or, “The original acquisition of property remains distinctive because it does not simply

change the world: it places others under new obligations.”28 In these passages, Ripstein

draws a distinction between the morally neutral (or at least, in accordance with right) way

in which one’s actions necessarily affect the actions of others and the (potentially)

morally impermissible way in which declarations of property constrain the basic end-

setting capacities of another. Let us call this first kind of restriction action-restricting

action and this second type action-restricting obligation. Ripstein’s argument hangs on

the fact that action-restricting actions merely “change the world,” i.e., the context in

26 I thank Agnes Callard for pushing me to get clearer on this matter. 27Ripstein, Force and Freedom, 151. 28 Force and Freedom, 153.


22

which an agent can act, whereas action-restricting obligations can look like they directly

constrain others’ agential capacities and so constitute a violation of right.

The problems with locating in this distinction an actual argument for the seeming

impermissibility of property claims are two-fold: (1) First, Kant defines all rights as

“moral capacities for putting others under obligations” (6:237) (emphasis mine). So even

innate rights, rights that in no way depend on the state for their intelligibility, change the

normative situation of others by placing them under new obligations. By appearing in

your moral space, I place you under an obligation that you did not have before: the

obligation to respect me as a moral person.29 Since Kant countenances a natural, non

state-based right to freedom, from which the right to the respect of my moral personhood

necessarily follows, there is nothing about the bare fact of placing another under an

obligation that necessitates a turn to the state. Further, the sense in which my obligations

to preserve your innate right to freedom existed before you appeared in my space, such

that your arrival simply activates an obligation that was there anyway (Ripstein: “simply

apply[ing] it to a different circumstance”), is the exact same as the sense in which due to

the purposive character of human freedom I stood before your arrival under a not-yet

fully specified obligation to let you have a measure of property. In both cases we must

say that either the obligations were there anyway, waiting to be activated, or that once

inside the scene of dyadic-interaction agents come to place one another under obligations

that they did not have before.

29 A natural right does not depend on any actual act between agents (6:237), and so one might think that in this example the language of ‘placing’ another under an obligation finds no hold. But it is still the case that certain actions on my part activate your standing duties toward me. It is only my doing something—say, walking into your neighborhood—that sets off the constraint on your possibilities that was merely in potentiality when I stayed in my own backyard.


23

(2) Secondly, Ripstein does not adequately explain why restricting your

possibilities by imposing an obligation on you is necessarily different from restricting

your possibilities simply by acting in a non-obligation producing way. Both involve

permanent restrictions on your agency. If I sit in a chair, I permanently restrict your

possibility to kick it out from underneath me. If I make a claim to property, I permanently

restrict your possibility of, say, vandalizing it, or perhaps more appropriately, simply

using it for the reason that an essential element of your human purposiveness depends on

it. (What remains of the wood in the forest is owned by you, and I desperately need it to

make a chair.) So merely noting the difference between action-restricting obligation and

action-restricting action won’t do the trick.

Toward the end of the passage, Ripstein begins to acknowledge the relevant

distinction when he writes that “in acquiring a piece of land I make it unavailable to you

even when I am not occupying it” (emphasis mine). The salient difference between

action-restricting obligation and action-restricting action thus lies in the kind of

permanency they impose. By simply sitting in a chair my restriction on your possible

actions is permanent only while I continue to occupy the chair. Whereas in claiming the

chair as my property I make possibilities unavailable to you even when I no longer

occupy the chair. So we might say that in the case of action-restricting action my present

action permanently restricts your present possibilities, whereas in the case of action-

restricting obligation my present action permanently restricts your future possibilities.30

30 Kant never just comes out and says that this is his central worry about claims to property in the state of nature, though it can extracted from 6:263. In that passage he also discusses the further worry that in claims of property one subject appears to arbitrarily restrict the possibilities of all other agents. But given the concern of the UPR that the actions of any one agent be compatible the freedom of any other, I fail to see why the move from one agent to all agents could even appear to be morally salient to the parties in the natural state.


24

Kant’s intuition must be that what is potentially problematic about claims to property lies

in the way in which they entail a permanent restriction of your future possibilities,

whereas permanently restricting your present possibilities is simply a morally neutral fact

about external freedom.31

2.7 Action-Restricting Obligation as a Threat to Agency

Recall that in DR the only type of moral violation at issue are violations of the

bare form of external freedom. So if Kant thinks that action-restricting obligation could

even appear to be morally ambiguous in the state of nature it must be because stacking

up the chairs and claiming them as my own looks to have at least something in common

with the obviously immoral case of tying you to your chair, which violates your capacity

to be an end-setter. But if this is in fact what he thinks, we are faced with yet another

question, What is the relevant similarity between permanently restricting your future

possibilities and interfering with your capacity to be an agent at all?

To see why permanently restricting your future possibilities threatens to

eviscerate your capacity to be an agent, consider the etiquette of chair sitting in the

college classroom. For whatever deep reasons of group psychology, even students who

haven’t had assigned seats since they were adolescents in elementary school tend to sit in

the same seats session after session. And after a while, de facto claims to entitlement

emerge. The chair in which I always sit becomes ‘my chair.’ Suppose a situation arises in

31 If this is in fact the point, then the reason that merely sitting in a chair is morally acceptable isn’t so much that it leaves open the possibility for you to sit in another chair, but that it’s assumed that someday I’ll get up, leaving my chair open to you. It is only a permanent restriction of your present possibilities. Conversely, if by standing in one spot quietly I am actually asserting that I’ll always be standing in this spot, that I’ll never ever move, then standing in one spot starts to look just as potentially morally problematic as making a claim to property.


25

which late in the semester one student sits down in the chair of another. The ‘rightful’

owner of the chair comes into class a bit late and says, “Hey you! That’s my chair.” To

which our chair ‘thief’ replies, “I forgot my glasses today. This chair is so much closer to

the board. My obligations as a student extend to taking good notes. So I think I’m entitled

to sit in this chair.” To which the chair’s ‘owner’ replies, “Do a little bit of everyday

anthropology. The implicit rules of the classroom stipulate that once you sit in a chair for

long enough it’s yours. So that’s my chair. Get up!” This scenario brings out the way in

which in situations of moral challenge one agent’s claims to the permanent restriction of

another’s future possibilities for action begins to look morally problematic. If there is no

principle that definitively secures my moral entitlement to the chair in which I habitually

sit, it seems morally suspect that claiming it as mine could legitimately alter your world

forever (or at least until the end of the semester). Such an act looks to at least potentially

interfere with your agency in a way that extends beyond any one end you happen to have

at any given moment. In Kant’s language, it threatens to infringe on the form as opposed

to the matter of your choice.

2.8 An Omnilateral Will: Assurance and Indeterminacy Revisited

One might of course contest this claim by conjuring up cases in which simple

action-restricting action on the part of one agent has similarly drastic consequences for

the agency of another. For example, if you and I exist in an extremely confined space,

then by simply shifting my weight I may force you against the wall, rendering you unable


26

to move, breathe, or, indeed, set any ends at all.32 But such examples would be beside the

point, because Kant’s claim is not that property is a violation of the external freedom of

another, only that in the state of nature it would not be irrational for agents to take it to

be. As it turns out, property claims are not morally problematic. They only appear to be

because it is hard to see how a unilateral will could permanently restrict the future

possibilities of other free wills. The grand conclusion of Kant’s argument for the duty to

exit the state of nature is that such a restriction could be consistent with UPR only if the

apparently unilateral declaration ‘this is mine’ were in fact the result of a prior,

omnilateral will, an agreement of the free wills of all (6:259, 264). What kind of entity

could have an omnilateral will? Obviously, only a legitimate state.

Only the state can make possible both the rightful acquisition of property and the

more conceptually basic right to possession that extends beyond the right to my person.

By exercising an omnilateral will and so solving the problem of unilateral obligation, the

state ensures that my claiming something as mine necessarily places me under an

obligation to let you keep what is yours. This is the way in which the state solves the

problem of assurance. And in the case of the acquisition of property, the state renders

such an act rightful by ensuring that the same criteria apply to all. And so the state solves

problems of indeterminacy. In sum, we stand under a duty to institute a state because our

moral entitlement to property can be rendered compatible with the free agency of each if

and only if such claims are secured and settled by the collective will of all.

32 Does this necessitate that my duty to respect your external freedom must necessarily take the form of standing perfectly still? For the impossibility of the shared exercise of external freedom under conditions of dire scarcity see Kenneth Westphal, “A Kantian Justification of Possession,” pp. 106-107.


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2.9 Moral Self-Deceit

Given the results of Kant’s provisionality argument, consider, as a bit of imagined

phenomenology, what life in the state of nature looks like. Agents have the ability to

reason themselves into accepting the legitimacy of property claims. But absent an

omnilateral will they have no way of acting in a way that expresses this legitimacy. This

has two major consequences for their acts of moral claim-making. First, there is a

profound instability between what agents think they are doing as individuals and what

they are actually doing as a matter of collective practice—there is a lack of fit between

intention and actualization. Agents take themselves to be making moral claims, but

absent adequate ground, they are simply asserting privilege. (“I have a right to this

wood,” turns out to be nothing more than high-flown shorthand for, “I get to keep the

wood and you don’t.”) Second, any agent’s attempt to defend his property from the

encroachments of another is in no way different from a situation in which one agent

illegitimately restrains another. What I take to be the defensive act of protecting my

rights is nothing but an application of force.

Kant expresses something like these points when he writes:

It is true that the state of nature need not, just because it is natural, be a state of injustice (iniustus), of dealing with one another only in terms of the degree of force each has. But it would still be a state devoid of justice (status iustitia vacuus), in which when rights are in dispute (ius controversum), there would be no judge competent to render a verdict having rightful force (6:312).

Contra Hobbes, in Kant’s state of nature agents may well have moral intentions. This is

why it is not a “state of injustice.” But since there is no procedure by which such moral

intentions can be translated into a rights-preserving reality, it is a “state devoid of

justice.” In the absence of an appropriate institutionalization of morality, the inability to


28

make genuine judgments concerning right is not so much epistemic as it is structural.

And so any actual instantiation of a rights claim must be without “rightful force.” Cast in

this light, the argument for the duty to exit the state of nature turns out to be the claim

that it is only by entering into a legitimate state that one’s claims to moral personhood

can in fact represent anything other than clamoring for self-assertion. Thus, it is only by

becoming a political person that one can be a moral person.

If my interpretation is correct, then with the provisionality argument Kant is on

the cusp of a view in which politics turns out to be necessary to avoid the idea that a

single agent, operating solely on her own, could definitively arrive at the enormously

complex demands of living together as free and equal members of a moral community.

Or, said yet another way, by overcoming our natural tendency to moral self-deceit, the

institution of a state as an order of practical reason retroactively reveals that pre-political

claims to morality were always only partially actualizations of the real thing.

2.10 Having What I have and Being Who I am

We should note just how far we have come from what one ordinarily thinks of as

the de-politicized realm of Kantian morality. It has turned out that the only way to be

morally free is to cede to the community the authority to (1) decide the conditions under

which I can acquire an object, and (2) secure the conditions under which I can be said to

be entitled to what I currently have. Although Kant does not go down this road—one that

should have a familiar ring to students of post-Kantian idealism—we can extend his

reasoning as follows: (3) my sense of what or who I am is clearly rooted in a sense of

what I own or have. (4) So even my sense of myself seems to be intimately bound up


29

with a political network of norms that allow me to have what I have and so to be who I

am.

To put the point in slightly less psychological and so more recognizably Kantian

terms, if having things other than myself (i.e., property) is key to being a purposive being,

and if being a purposive being is a condition for being a moral being, and if I can only

rightfully ‘have’ something other than myself if I exist in political community, then

something extremely fundamental about what it means to be morally me depends upon

the results of political agreement. My identity as a moral person is situated at a nexus of

reciprocity between moral persons. Said yet another way, the constitution of a political

order is what reveals that human purposiveness is congruous with moral personhood.

In sum, Kant’s argument for the political status of moral personhood is as follows:

(1) Being a moral person requires having property, but (2) in a pre-political condition

making claims to property wrongs someone and so violates their claims to moral

personhood. (3) But I can’t be a moral person in a way that violates the moral personhood

of another, since it is a reciprocal concept. (4) So the only way to be a moral person is to

be a political person.

2.11 Politics and the Dignity of the Moral Person

As it stands, my last interpretive claim about the political status of moral

personhood is still a bit obscure. Let me trace the way in which this idea emerges in

Kant’s use of the terminology of the Roman jurist Ulpian to delineate the “General

Division of Duties of Right.” Kant writes:

(1) Be an honorable human being (honeste vive). Rightful honor (honestas iuridica) consists in asserting one’s worth as a human being in relation to


30

others, a duty expressed by the saying, “Do not make yourself a mere means for others but be at the same time an end for them.” This duty will be explained later as obligation from the right of humanity in your own person (Lex iusti).

(2) Do not wrong anyone (neminem laede) even if, to avoid doing so, you should have to stop associating with others and shun all society (Lex iuridica).

(3) (If you cannot help associating with others), enter into a society with them in which each can keep what is his (suum cuiquie tribue). […]Enter a condition in which what belongs to each can be secured to him against everyone else (Lex iusititaie) (6:236-237).

Clearly Kant intends (3), the duty to enter into political society, to follow from (2), the

general moral duty not to wrong.33The connection between (1) and (2), between being an

honorable person and being a moral person, is similarly unsurprising. Some version of

this claim pops up throughout Kant’s best-known works of moral theory.

But (1) becomes especially relevant if one considers not the just the relation from

(1) to (2) to (3), but the reverse dependence of (1) and (2) on (3). Kant thinks that

although (3) follows from (2), we can only have a full and determinate sense of (2) once

inside the sphere of (3). As we have seen, this is because prior to the legitimate state the

morality of the state of nature is merely provisional and precarious. There is a similar

relation of dependence and completion—in other words, dialectical dependence—

between (1) and (2). But then there is no reason to think that the laws of transitivity do

not hold. So (1) also depends on (3). In other words, if a political order is needed to

secure moral relations, and moral relations are needed to secure the proper moral relation

to oneself as possessing dignity or worth, then a political order is needed to secure one’s

individual dignity. To put it in slogan form, ‘Moral dignity depends on political equality.’

We thus see quite clearly see that for Kant the connection between politics and moral

33 Once again, this should cast suspicion on interpretive approaches that argue for a strict separation between right and ethics.


31

personhood is not merely that politics secures the external realm of freedom, but also that

politics secures internal aspects of my moral relation to myself, “the right of humanity in

my own person” (emphasis mine).

In the remaining sections of this paper I show that elsewhere in DR Kant backs

off in various ways from these deeply Rousseauian and Hegelian insights as to the

political and socially recognitive status of moral personhood.

3. Kant’s (Lockean Restrictions): Outline of a Critique

3.1 Right and Reciprocity

It is worth repeating yet again that the provisionality of the state of nature is not a

problem of collective action or prudence, but a genuine problem of morality. Kant’s

claim is not that we need a state to imagine why prudentially rational agents would ever

mark off pieces of land or refrain from trespassing on the land of others, but that we need

a state to imagine how such activities could be morally acceptable. So when Kant details

situations in which I have no reason to let you keep what’s yours if you won’t let me keep

what’s mine, what he means is that in such cases I have no duty to let you keep what’s

yours if you won’t let me keep what’s mine. But that would seem to be consistent with it

being morally acceptable to let you keep what yours. Not having a duty not to X is

compatible with one’s being allowed to X. At times Kant’s formulations do in fact

suggest the relatively weak claim that I am not morally obligated to turn the other cheek.

He writes, “No one is bound to refrain from encroaching on what another possesses if the

other gives him no equal assurance that he will observe the same restraint towards him”

(emphasis mine) (6:307).


32

And yet Kant countenances a genuine moral duty to exit the state of nature and

institute a political order. And so, as I see it, Kant is actually committed to a much

stronger view of the role of political reciprocity in morality. Kant ought to conclude that I

actually have a duty not to let you keep what’s yours if you won’t let me keep what’s

mine. Why?

If I respect your property even while you usurp mine—if I look the other way

while you creep on to my land by stealth of night and steal my apples—I am in effect

placing my will under your discretion. And in allowing you to arbitrarily interfere with

my external freedom I am directly attacking the system of right, which is what allows all

of us, myself included, to be externally free in the sense of not bound by relations of

dependence that violate our innate moral right to freedom. In relations of right there is

thus no place for turning the other cheek, since the only thing that allows me to be a

morally free person is the system of reciprocal limits that ensures that the freedom of one

does not violate the freedom of another. Allowing you to interfere with my property

should thus fall under the class of wrong operative in “willing to be and to remain in a

condition that is not rightful” (6:307).

Of course, it’s important not to get carried away here. My claim is not that Kant

must necessarily accept that something like political fraternity, or dedication to the

system of collective adjudication that establishes the freedom of all by determining the

reciprocal boundaries of the freedom of each, has to be each individual’s primary mode

of moral allegiance. To search for such a position in Kant would be to ignore that MM

has two distinct parts, a doctrine of political right and a doctrine of moral virtue.

Discussing this division, Kant clearly acknowledges that it can be a virtuous action to


33

keep up my end of the bargain even when you fail to keep yours (6:220). Kant’s reticence

to countenance a duty not to let other agents infringe on one’s property stems from an

understandable desire to render the Doctrine of Virtue compatible with DR.

More importantly, as I mentioned in the introduction to this paper DR is

concerned with what Kant calls external, juridical lawgiving. All of its arguments apply

to a class of duties that an agent can count as following even if she is not acting from any

sort of intrinsic, rational love for the duty per se. On Kant’s view, you can be a perfectly

worthy moral subject if you obey the laws of the state for no other reason than that you

don’t want to go to jail.

From the fact that DR pertains only to external lawgiving one might conclude that

all that Kant intends in linking moral personhood to the system of reciprocity is that I

have a moral duty to participate in a legal structure that ensures the reciprocal rights of

all, even if my ‘participation’ amounts only to simple legal obedience. On this view, I can

be a subject both virtuous and politically upstanding if I turn the other cheek while you

interfere with my lawn—the Doctrine of Virtue—just as long as I also support a system

of laws that allows you to be punished for trespassing on the lawns of others (including

my own)—the Doctrine of Right. But this seems difficult, if not impossible, to square

with the claim that it is only through politics that agents can avoid moral self-deceit, only

through a state that I can be sure that my enactments of moral virtue do not in fact

represent an attempt to elevate my own desires to an unwarranted place of privilege.


34

3.2 Moral and Political Self-Deceit

In his moral writings Kant is of course acutely interested in the pathologies of

pseudo-moral self-regard.34 Kant’s insistence that the maxims on which an agent acts are

never transparent to the agent herself registers the point that we can never actually know

if we are doing the right thing for the right reason.35 And this lack of moral self-

consciousness is just what spurs us on to the moral task to try and try again. But

unfortunately, Kant localizes such reflections to the moral sphere. As we have just seen,

in the political sphere his official position is that intentions don’t matter, so that it is

perfectly fine if agents advance claims of justice as a cover for their self-interest.36 This is

the point behind Kant’s well-known defense of the liberal insulation of politics from

morality:

The problem of establishing a state…is soluble even for a nation of devils (if only they have understanding) and goes like this: ‘Given a multitude of rational beings all of whom need universal laws for their preservation but each of whom is inclined covertly to exempt himself from them, so to order this multitude and establish their constitution that, although in their private dispositions they strive against one another, these yet so check one another that in the public conduct the result is the same as if they had no such evil dispositions.’37

34 I owe this reminder to Erica Holberg’s criticisms of an earlier draft of this paper. 35 See for example Kant’s discussion of the human being’s fundamental inability to know the “purity of his moral intention” in the Doctrine of Virtue 6:392. See also Groundwork 4:404-405 and Critique of Practical Reason 5:29-32. 36 As Terry Pinkard points out, however, Kant’s notorious argument against a right of revolution depend, at least in part, on reflections concerning the tendency of political agents to mask self-assertion or lust for power as a concern for revolutionary transformation in the direction of justice. See Pinkard, “Kant, Citizenship, Freedom,” p. 169. 37 Kant, Toward Perpetual Peace, in Practical Philosophy 8:366.


35

Kant officially insists on an absolute separation between being a morally good human

being and being a good citizen. Yet, as I hope to have shown, given the nature of the

provisionality argument in DR, this distinction must break down.

Politics, Property, Personhood: Kant’s Rousseauian Return

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